First 9 Cases Consti

G.R. No.
160261 November 10, 2003
ERNESTO B. FRANCISCO, JR., petitioner,

NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA MANGGAGAWANG PILIPINO, INC.,
ITS OFFICERS AND MEMBERS, petitioner-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER JOSE G. DE VENECIA,
THE SENATE, REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON,
REPRESENTATIVE GILBERTO C. TEODORO, JR. AND REPRESENTATIVE FELIX WILLIAM B.
FUENTEBELLA, respondents.
JAIME N. SORIANO, respondent-in-Intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160262 November 10, 2003
SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND HENEDINA RAZON-

ABAD, petitioners,
ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO QUADRA, petitioners-in-intervention,
intervention,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR
PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G.
TEODORO, JR., REPRESENTA-TIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE
PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M.
DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
x---------------------------------------------------------x
G.R. No. 160263 November 10, 2003
ARTURO M. DE CASTRO AND SOLEDAD M. CAGAMPANG, petitioners,

WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioners-in-
intervention,
vs.
FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE PRESIDENT, AND JOSE G. DE
VENECIA, JR., IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES, respondents,
x---------------------------------------------------------x
G.R. No. 160277 November 10, 2003

FRANCISCO I. CHAVEZ, petitioner,
intervention,
vs.
JOSE G. DE VENECIA, IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES, FRANKLIN M. DRILON, IN HIS CAPACITY AS PRESIDENT OF THE
SENATE OF THE REPUBLIC OF THE PHILIPPINES, GILBERT TEODORO, JR., FELIX WILLIAM
FUENTEBELLA, JULIO LEDESMA IV, HENRY LANOT, KIM BERNARDO-LOKIN, MARCELINO
LIBANAN, EMMYLOU TALIÑO-SANTOS, DOUGLAS CAGAS, SHERWIN GATCHALIAN, LUIS
BERSAMIN, JR., NERISSA SOON-RUIZ, ERNESTO NIEVA, EDGAR ERICE, ISMAEL MATHAY,
SAMUEL DANGWA, ALFREDO MARAÑON, JR., CECILIA CARREON-JALOSJOS, AGAPITO
AQUINO, FAUSTO SEACHON, JR., GEORGILU YUMUL-HERMIDA, JOSE CARLOS LACSON,
MANUEL ORTEGA, ULIRAN JUAQUIN, SORAYA JAAFAR, WILHELMINO SY-ALVARADO,
CLAUDE BAUTISTA, DEL DE GUZMAN, ZENAIDA CRUZ-DUCUT, AUGUSTO BACULIO,
FAUSTINO DY III, AUGUSTO SYJUCO, ROZZANO RUFINO BIAZON, LEOVIGILDO BANAAG,
ERIC SINGSON, JACINTO PARAS, JOSE SOLIS, RENATO MATUBO, HERMINO TEVES,
AMADO ESPINO, JR., EMILIO MACIAS, ARTHUR PINGOY, JR., FRANCIS NEPOMUCENO,
CONRADO ESTRELLA III, ELIAS BULUT, JR., JURDIN ROMUALDO, JUAN PABLO BONDOC,
GENEROSO TULAGAN, PERPETUO YLAGAN, MICHAEL DUAVIT, JOSEPH DURANO, JESLI
LAPUS, CARLOS COJUANGCO, GIORGIDI AGGABAO, FRANCIS ESCUDERRO, RENE
VELARDE, CELSO LOBREGAT, ALIPIO BADELLES, DIDAGEN DILANGALEN, ABRAHAM
MITRA, JOSEPH SANTIAGO, DARLENE ANTONIO-CUSTODIO, ALETA SUAREZ, RODOLF
PLAZA, JV BAUTISTA, GREGORIO IPONG, GILBERT REMULLA, ROLEX SUPLICO, CELIA
LAYUS, JUAN MIGUEL ZUBIRI, BENASING MACARAMBON, JR., JOSEFINA JOSON, MARK
COJUANGCO, MAURICIO DOMOGAN, RONALDO ZAMORA, ANGELO MONTILLA, ROSELLER
BARINAGA, JESNAR FALCON, REYLINA NICOLAS, RODOLFO ALBANO, JOAQUIN CHIPECO,
JR., AND RUY ELIAS LOPEZ, respondents,
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G.R. No. 160292 November 10, 2003
HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA. CECILIA PAPA, NAPOLEON C.
REYES, ANTONIO H. ABAD, JR., ALFREDO C. LIGON, JOAN P. SERRANO AND GARY S.
MALLARI, petitioners,
intervention,
vs.
HON. SPEAKER JOSE G. DE VENECIA, JR. AND ROBERTO P. NAZARENO, IN HIS CAPACITY
AS SECRETARY GENERAL OF THE HOUSE OF REPRESENTATIVES, AND THE HOUSE OF
REPRESENTATIVES,respondents,
x---------------------------------------------------------x
G.R. No. 160295 November 10, 2003
SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M. GONZALES, petitioners,

intervention,
vs.
THE HOUSE OF REPRESEN-TATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR
TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE
PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M.
DRILON, respondents,
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G.R. No. 160310 November 10, 2003
LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR, MELVIN MATIBAG, RAMON

MIQUIBAS, RODOLFO MAGSINO, EDUARDO MALASAGA, EDUARDO SARMIENTO,
EDGARDO NAOE, LEONARDO GARCIA, EDGARD SMITH, EMETERIO MENDIOLA, MARIO
TOREJA, GUILLERMO CASTASUS, NELSON A. LOYOLA, WILFREDO BELLO, JR., RONNIE
TOQUILLO, KATE ANN VITAL, ANGELITA Q. GUZMAN, MONICO PABLES, JR., JAIME
BOAQUINA, LITA A. AQUINO, MILA P. GABITO, JANETTE ARROYO, RIZALDY EMPIG, ERNA
LAHUZ, HOMER CALIBAG, DR. BING ARCE, SIMEON ARCE, JR., EL DELLE ARCE, WILLIE
RIVERO, DANTE DIAZ, ALBERTO BUENAVISTA, FAUSTO BUENAVISTA, EMILY SENERIS,
ANNA CLARISSA LOYOLA, SALVACION LOYOLA, RAINIER QUIROLGICO, JOSEPH
LEANDRO LOYOLA, ANTONIO LIBREA, FILEMON SIBULO, MANUEL D. COMIA, JULITO U.
SOON, VIRGILIO LUSTRE, AND NOEL ISORENA, MAU RESTRIVERA, MAX VILLAESTER, AND
EDILBERTO GALLOR, petitioners,
intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HON. SPEAKER JOSE C. DE
VENECIA, JR., THE SENATE, REPRESENTED BY HON. SENATE PRESIDENT FRANKLIN
DRILON, HON. FELIX FUENTEBELLA, ET AL., respondents.
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G.R. No. 160318 November 10, 2003
PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners,

vs.
HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF REPRESENTATIVES,
HON. SENATE PRESIDENT FRANKLIN M. DRILON, AND ALL MEMBERS, PHILIPPINE
SENATE, respondents.
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G.R. No. 160342 November 10, 2003
ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER OF THE INTEGRATED BAR
OF THE PHILIPPINES, MANILA III, AND ENGR. MAXIMO N. MENEZ JR., IN HIS CAPACITY AS
A TAXPAYER AND MEMBER OF THE ENGINEERING PROFESSION, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES REPRESENTED BY THE 83 HONORABLE MEMBERS
OF THE HOUSE LED BY HON. REPRESENTATIVE WILLIAM FUENTEBELLA, respondents.
x---------------------------------------------------------x
G.R. No. 160343 November 10, 2003
INTEGRATED BAR OF THE PHILIPPINES, petitioner,

vs.
THE HOUSE OF REPRESENTA-TIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR
TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE
PHILIPPINES THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M.
DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160360 November 10, 2003
CLARO B. FLORES, petitioner,
vs.
THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER, AND THE SENATE OF THE
PHILIPPINES, THROUGH THE SENATE PRESIDENT, respondents.
x---------------------------------------------------------x
G.R. No. 160365 November 10, 2003
U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C. PADERANGA, DANILO V.
ORTIZ, GLORIA C. ESTENZO-RAMOS, LIZA D. CORRO, LUIS V. DIORES, SR., BENJAMIN S.
RALLON, ROLANDO P. NONATO, DANTE T. RAMOS, ELSA R. DIVINAGRACIA, KAREN B.
CAPARROS-ARQUILLANO, SYLVA G. AGUIRRE-PADERANGA, FOR THEMSELVES AND IN
BEHALF OF OTHER CITIZENS OF THE REPUBLIC OF THE PHILIPPINES, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, SPEAKER JOSE G. DE VENECIA, THE SENATE OF
THE PHILIPPINES, SENATE PRESIDENT FRANKLIN DRILON, HOUSE REPRESENTATIVES
FELIX FUENTEBELLA AND GILBERTO TEODORO, BY THEMSELVES AND AS
REPRESENTATIVES OF THE GROUP OF MORE THAN 80 HOUSE REPRESENTATIVES WHO
SIGNED AND FILED THE IMPEACHMENT COMPLAINT AGAINST SUPREME COURT CHIEF
JUSTICE HILARIO G. DAVIDE, JR. respondents.
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G.R. No. 160370 November 10, 2003
FR. RANHILIO CALLANGAN AQUINO, petitioner,

vs.
THE HONORABLE PRESIDENT OF THE SENATE, THE HONORABLE SPEAKER OF THE
HOUSE OF REPRESENTATIVES, respondents.
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G.R. No. 160376 November 10, 2003
NILO A. MALANYAON, petitioner,
vs.
HON. FELIX WILLIAM FUENTEBELLA AND GILBERT TEODORO, IN REPRESENTATION OF
THE 86 SIGNATORIES OF THE ARTICLES OF IMPEACHMENT AGAINST CHIEF JUSTICE
HILARIO G. DAVIDE, JR. AND THE HOUSE OF REPRESENTATIVES, CONGRESS OF THE
PHILIPPINES, REPRESENTED BY ITS SPEAKER, HON. JOSE G. DE VENECIA, respondents.
x---------------------------------------------------------x
G.R. No. 160392 November 10, 2003
VENICIO S. FLORES AND HECTOR L. HOFILEÑA, petitioners,

vs.
THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER JOSE G. DE VENECIA, AND THE
SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT FRANKLIN
DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160397 November 10, 2003
IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST CHIEF JUSTICE HILARIO G.

DAVIDE, JR., ATTY. DIOSCORO U. VALLEJOS, JR., petitioner.
x---------------------------------------------------------x
G.R. No. 160403 November 10, 2003
PHILIPPINE BAR ASSOCIATION, petitioner,

vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR PRESIDING OFFICER,
HON. JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTATIVE FELIX WILLIAM B. FUENTEBELA, THE SENATE OF THE PHILIPPINES,
THROUGH SENATE PRESIDENT, HON. FRANKLIN DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160405 November 10, 2003
DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY CHAPTER, MANUEL M.

MONZON, PRESIDING OF IBP, CEBU PROVINCE, VICTOR A. MAAMBONG, PROVINCIAL
BOARD MEMBER, ADELINO B. SITOY, DEAN OF THE COLLEG EOF LAW, UNIVERSITY OF
CEBU, YOUNG LAWYERS ASSOCAITION OF CEBU, INC. [YLAC], REPRSEENTED BY ATTY.
MANUEL LEGASPI, CONFEDERATION OF ACCREDITED MEDIATORS OF THE PHILIPPINES,
INC. [CAMP, INC], REPRESENTED BY RODERIC R. POCA, MANDAUE LAWYERS
ASSOCIATION, [MANLAW], REPRESENTED BY FELIPE VELASQUEZ, FEDERACION
INTERNACIONAL DE ABOGADAS [FIDA], REPRESENTED BY THELMA L. JORDAN, CARLOS
G. CO, PRESIENT OF CEBU CHAMBER OF COMMERCE AND INDUSTRY AND CEBU LADY
LAWYERS ASSOCIATION, INC. [CELLA, INC.], MARIBELLE NAVARRO AND BERNARDITO
FLORIDO, PAST PRESIDENT CEBU CHAMBER OF COMMERCE AND INTEGRATED BAR OF
THE PHILIPPINES, CEBU CHAPTER, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, REPRESENTED BY REP. JOSE G. DE VENECIA, AS
HOUSE SPEAKER AND THE SENATE, REPRESENTED BY SENATOR FRANKLIN DRILON, AS
SENATE PRESIDENT, respondents.
CARPIO MORALES, J.:
There can be no constitutional crisis arising from a conflict, no matter how passionate and seemingly
irreconcilable it may appear to be, over the determination by the independent branches of
government of the nature, scope and extent of their respective constitutional powers where the
Constitution itself provides for the means and bases for its resolution.
Our nation's history is replete with vivid illustrations of the often frictional, at times turbulent,
dynamics of the relationship among these co-equal branches. This Court is confronted with one such
today involving the legislature and the judiciary which has drawn legal luminaries to chart antipodal
courses and not a few of our countrymen to vent cacophonous sentiments thereon.
There may indeed be some legitimacy to the characterization that the present controversy subject of
the instant petitions – whether the filing of the second impeachment complaint against Chief Justice
Hilario G. Davide, Jr. with the House of Representatives falls within the one year bar provided in the
Constitution, and whether the resolution thereof is a political question – has resulted in a political
crisis. Perhaps even more truth to the view that it was brought upon by a political crisis of
conscience.
In any event, it is with the absolute certainty that our Constitution is sufficient to address all the
issues which this controversy spawns that this Court unequivocally pronounces, at the first instance,
that the feared resort to extra-constitutional methods of resolving it is neither necessary nor legally
permissible. Both its resolution and protection of the public interest lie in adherence to, not departure
from, the Constitution.
In passing over the complex issues arising from the controversy, this Court is ever mindful of the
essential truth that the inviolate doctrine of separation of powers among the legislative, executive or
judicial branches of government by no means prescribes for absolute autonomy in the discharge by
each of that part of the governmental power assigned to it by the sovereign people.
At the same time, the corollary doctrine of checks and balances which has been carefully calibrated
by the Constitution to temper the official acts of each of these three branches must be given effect
without destroying their indispensable co-equality.
Taken together, these two fundamental doctrines of republican government, intended as they are to
insure that governmental power is wielded only for the good of the people, mandate a relationship of
interdependence and coordination among these branches where the delicate functions of enacting,
interpreting and enforcing laws are harmonized to achieve a unity of governance, guided only by
what is in the greater interest and well-being of the people. Verily, salus populi est suprema lex.
Article XI of our present 1987 Constitution provides:
ARTICLE XI
Accountability of Public Officers
SECTION 1. Public office is a public trust. Public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism and justice, and lead modest lives.
SECTION 2. The President, the Vice-President, the Members of the Supreme Court, the
Members of the Constitutional Commissions, and the Ombudsman may be removed from
office, on impeachment for, and conviction of, culpable violation of the Constitution, treason,
bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public
officers and employees may be removed from office as provided by law, but not by
impeachment.
SECTION 3. (1) The House of Representatives shall have the exclusive power to initiate all

cases of impeachment.
(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member thereof,
which shall be included in the Order of Business within ten session days, and referred to the
proper Committee within three session days thereafter. The Committee, after hearing, and by
a majority vote of all its Members, shall submit its report to the House within sixty session
days from such referral, together with the corresponding resolution. The resolution shall be
calendared for consideration by the House within ten session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the House shall be necessary either to
affirm a favorable resolution with the Articles of Impeachment of the Committee, or override
its contrary resolution. The vote of each Member shall be recorded.
(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of
all the Members of the House, the same shall constitute the Articles of Impeachment, and
trial by the Senate shall forthwith proceed.
(5) No impeachment proceedings shall be initiated against the same official more than once

within a period of one year.
(6) The Senate shall have the sole power to try and decide all cases of impeachment. When
sitting for that purpose, the Senators shall be on oath or affirmation. When the President of
the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not
vote. No person shall be convicted without the concurrence of two-thirds of all the Members
of the Senate.
(7) Judgment in cases of impeachment shall not extend further than removal from office and
disqualification to hold any office under the Republic of the Philippines, but the party
convicted shall nevertheless be liable and subject to prosecution, trial, and punishment
according to law.
(8) The Congress shall promulgate its rules on impeachment to effectively carry out the
purpose of this section. (Emphasis and underscoring supplied)
Following the above-quoted Section 8 of Article XI of the Constitution, the 12th Congress of the
House of Representatives adopted and approved the Rules of Procedure in Impeachment
Proceedings (House Impeachment Rules) on November 28, 2001, superseding the previous House
Impeachment Rules1 approved by the 11th Congress. The relevant distinctions between these two
Congresses' House Impeachment Rules are shown in the following tabulation:
11TH CONGRESS RULES 12TH CONGRESS NEW RULES
RULE II RULE V
INITIATING IMPEACHMENT BAR AGAINST INITIATION OF

IMPEACHMENT PROCEEDINGS
Section 2. Mode of Initiating AGAINST THE SAME OFFICIAL
Impeachment. – Impeachment shall
be initiated only by a verified Section 16. – Impeachment
complaint for impeachment filed by Proceedings Deemed Initiated. –
any Member of the House of In cases where a Member of the
Representatives or by any citizen House files a verified complaint of
upon a resolution of endorsement by impeachment or a citizen files a
any Member thereof or by a verified verified complaint that is endorsed
complaint or resolution of by a Member of the House through
impeachment filed by at least one- a resolution of endorsement
third (1/3) of all the Members of the against an impeachable officer,
House. impeachment proceedings against
such official are deemed initiated
on the day the Committee on
Justice finds that the verified
complaint and/or resolution against
such official, as the case may be,
is sufficient in substance, or on the
date the House votes to overturn
or affirm the finding of the said
Committee that the verified
complaint and/or resolution, as the
case may be, is not sufficient in
substance.
In cases where a verified

complaint or a resolution of
impeachment is filed or endorsed,
as the case may be, by at least
one-third (1/3) of the Members of
the House, impeachment
proceedings are deemed
initiated at the time of the filing
of such verified complaint or
resolution of impeachment with
the Secretary General.
RULE V Section 17. Bar Against

Initiation Of Impeachment
Proceedings. – Within a period of
one (1) year from the date
BAR AGAINST IMPEACHMENT impeachment proceedings are
deemed initiated as provided in
Section 14. Scope of Bar. – No Section 16 hereof, no
impeachment proceedings shall be impeachment proceedings, as
initiated against the same official such, can be initiated against the
more than once within the period of same official. (Italics in the original;
one (1) year. emphasis and underscoring
supplied)
On July 22, 2002, the House of Representatives adopted a Resolution,2 sponsored by

Representative Felix William D. Fuentebella, which directed the Committee on Justice "to conduct an
investigation, in aid of legislation, on the manner of disbursements and expenditures by the Chief
Justice of the Supreme Court of the Judiciary Development Fund (JDF)."3
On June 2, 2003, former President Joseph E. Estrada filed an impeachment complaint4 (first

impeachment complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate Justices5 of
this Court for "culpable violation of the Constitution, betrayal of the public trust and other high
crimes."6 The complaint was endorsed by Representatives Rolex T. Suplico, Ronaldo B. Zamora and
Didagen Piang Dilangalen,7 and was referred to the House Committee on Justice on August 5,
20038 in accordance with Section 3(2) of Article XI of the Constitution which reads:
Section 3(2) A verified complaint for impeachment may be filed by any Member of the House
of Representatives or by any citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business within ten session days, and
referred to the proper Committee within three session days thereafter. The Committee, after
hearing, and by a majority vote of all its Members, shall submit its report to the House within
sixty session days from such referral, together with the corresponding resolution. The
resolution shall be calendared for consideration by the House within ten session days from
receipt thereof.
The House Committee on Justice ruled on October 13, 2003 that the first impeachment complaint
was "sufficient in form,"9 but voted to dismiss the same on October 22, 2003 for being insufficient in
substance.10 To date, the Committee Report to this effect has not yet been sent to the House in
plenary in accordance with the said Section 3(2) of Article XI of the Constitution.
Four months and three weeks since the filing on June 2, 2003 of the first complaint or on October
23, 2003, a day after the House Committee on Justice voted to dismiss it, the second impeachment
complaint11 was filed with the Secretary General of the House12 by Representatives Gilberto C.
Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella (Third District, Camarines Sur)
against Chief Justice Hilario G. Davide, Jr., founded on the alleged results of the legislative inquiry
initiated by above-mentioned House Resolution. This second impeachment complaint was
accompanied by a "Resolution of Endorsement/Impeachment" signed by at least one-third (1/3) of all
the Members of the House of Representatives.13
Thus arose the instant petitions against the House of Representatives, et. al., most of which petitions
contend that the filing of the second impeachment complaint is unconstitutional as it violates the
provision of Section 5 of Article XI of the Constitution that "[n]o impeachment proceedings shall be
initiated against the same official more than once within a period of one year."
In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he has a duty as a
member of the Integrated Bar of the Philippines to use all available legal remedies to stop an
unconstitutional impeachment, that the issues raised in his petition for Certiorari, Prohibition and
Mandamus are of transcendental importance, and that he "himself was a victim of the capricious and
arbitrary changes in the Rules of Procedure in Impeachment Proceedings introduced by the 12th
Congress,"14 posits that his right to bring an impeachment complaint against then Ombudsman
Aniano Desierto had been violated due to the capricious and arbitrary changes in the House
Impeachment Rules adopted and approved on November 28, 2001 by the House of Representatives
and prays that (1) Rule V, Sections 16 and 17 and Rule III, Sections 5, 6, 7, 8, and 9 thereof be
declared unconstitutional; (2) this Court issue a writ of mandamus directing respondents House of
Representatives et. al. to comply with Article IX, Section 3 (2), (3) and (5) of the Constitution, to
return the second impeachment complaint and/or strike it off the records of the House of
Representatives, and to promulgate rules which are consistent with the Constitution; and (3) this
Court permanently enjoin respondent House of Representatives from proceeding with the second
impeachment complaint.
In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as citizens and taxpayers, alleging
that the issues of the case are of transcendental importance, pray, in their petition for
Certiorari/Prohibition, the issuance of a writ "perpetually" prohibiting respondent House of
Representatives from filing any Articles of Impeachment against the Chief Justice with the Senate;
and for the issuance of a writ "perpetually" prohibiting respondents Senate and Senate President
Franklin Drilon from accepting any Articles of Impeachment against the Chief Justice or, in the event
that the Senate has accepted the same, from proceeding with the impeachment trial.
In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad Cagampang, as citizens,
taxpayers, lawyers and members of the Integrated Bar of the Philippines, alleging that their petition
for Prohibition involves public interest as it involves the use of public funds necessary to conduct the
impeachment trial on the second impeachment complaint, pray for the issuance of a writ of
prohibition enjoining Congress from conducting further proceedings on said second impeachment
complaint.
In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court has recognized that he
has locus standi to bring petitions of this nature in the cases of Chavez v. PCGG15 and Chavez v.
PEA-Amari Coastal Bay Development Corporation,16 prays in his petition for Injunction that the
second impeachment complaint be declared unconstitutional.
In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers and members of the legal
profession, pray in their petition for Prohibition for an order prohibiting respondent House of
Representatives from drafting, adopting, approving and transmitting to the Senate the second
impeachment complaint, and respondents De Venecia and Nazareno from transmitting the Articles
of Impeachment to the Senate.
In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina and Deputy Speaker Raul M.
Gonzalez, alleging that, as members of the House of Representatives, they have a legal interest in
ensuring that only constitutional impeachment proceedings are initiated, pray in their petition for
Certiorari/Prohibition that the second impeachment complaint and any act proceeding therefrom be
declared null and void.
In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming that they have a right to be
protected against all forms of senseless spending of taxpayers' money and that they have an
obligation to protect the Supreme Court, the Chief Justice, and the integrity of the Judiciary, allege in
their petition for Certiorari and Prohibition that it is instituted as "a class suit" and pray that (1) the
House Resolution endorsing the second impeachment complaint as well as all issuances emanating
therefrom be declared null and void; and (2) this Court enjoin the Senate and the Senate President
from taking cognizance of, hearing, trying and deciding the second impeachment complaint, and
issue a writ of prohibition commanding the Senate, its prosecutors and agents to desist from
conducting any proceedings or to act on the impeachment complaint.
In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members are citizens and
taxpayers, and its co-petitioner Crispin T. Reyes, a citizen, taxpayer and a member of the Philippine
Bar, both allege in their petition, which does not state what its nature is, that the filing of the second
impeachment complaint involves paramount public interest and pray that Sections 16 and 17 of the
House Impeachment Rules and the second impeachment complaint/Articles of Impeachment be
declared null and void.
In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen and a member of the
Philippine Bar Association and of the Integrated Bar of the Philippines, and petitioner Engr. Maximo
N. Menez, Jr., as a taxpayer, pray in their petition for the issuance of a Temporary Restraining Order
and Permanent Injunction to enjoin the House of Representatives from proceeding with the second
impeachment complaint.
In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that it is mandated by the
Code of Professional Responsibility to uphold the Constitution, prays in its petition for Certiorari and
Prohibition that Sections 16 and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III of the House
Impeachment Rules be declared unconstitutional and that the House of Representatives be
permanently enjoined from proceeding with the second impeachment complaint.
In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his petition for Certiorari and
Prohibition that the House Impeachment Rules be declared unconstitutional.
In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et. al., in their petition for
Prohibition and Injunction which they claim is a class suit filed in behalf of all citizens, citing Oposa v.
Factoran17 which was filed in behalf of succeeding generations of Filipinos, pray for the issuance of a
writ prohibiting respondents House of Representatives and the Senate from conducting further
proceedings on the second impeachment complaint and that this Court declare as unconstitutional
the second impeachment complaint and the acts of respondent House of Representatives in
interfering with the fiscal matters of the Judiciary.
In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino, alleging that the issues in
his petition for Prohibition are of national and transcendental significance and that as an official of
the Philippine Judicial Academy, he has a direct and substantial interest in the unhampered
operation of the Supreme Court and its officials in discharging their duties in accordance with the
Constitution, prays for the issuance of a writ prohibiting the House of Representatives from
transmitting the Articles of Impeachment to the Senate and the Senate from receiving the same or
giving the impeachment complaint due course.
In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in his petition for
Prohibition that respondents Fuentebella and Teodoro at the time they filed the second
impeachment complaint, were "absolutely without any legal power to do so, as they acted without
jurisdiction as far as the Articles of Impeachment assail the alleged abuse of powers of the Chief
Justice to disburse the (JDF)."
In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L. Hofileña, alleging that as
professors of law they have an abiding interest in the subject matter of their petition for Certiorari and
Prohibition as it pertains to a constitutional issue "which they are trying to inculcate in the minds of
their students," pray that the House of Representatives be enjoined from endorsing and the Senate
from trying the Articles of Impeachment and that the second impeachment complaint be declared
null and void.
In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging his locus standi, but
alleging that the second impeachment complaint is founded on the issue of whether or not the
Judicial Development Fund (JDF) was spent in accordance with law and that the House of
Representatives does not have exclusive jurisdiction in the examination and audit thereof, prays in
his petition "To Declare Complaint Null and Void for Lack of Cause of Action and Jurisdiction" that
the second impeachment complaint be declared null and void.
In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the issues raised in the filing
of the second impeachment complaint involve matters of transcendental importance, prays in its
petition for Certiorari/Prohibition that (1) the second impeachment complaint and all proceedings
arising therefrom be declared null and void; (2) respondent House of Representatives be prohibited
from transmitting the Articles of Impeachment to the Senate; and (3) respondent Senate be
prohibited from accepting the Articles of Impeachment and from conducting any proceedings
thereon.
In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens and taxpayers, pray in their
petition for Certiorari/Prohibition that (1) the second impeachment complaint as well as the resolution
of endorsement and impeachment by the respondent House of Representatives be declared null and
void and (2) respondents Senate and Senate President Franklin Drilon be prohibited from accepting
any Articles of Impeachment against the Chief Justice or, in the event that they have accepted the
same, that they be prohibited from proceeding with the impeachment trial.
Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263, the first three of the
eighteen which were filed before this Court,18 prayed for the issuance of a Temporary Restraining
Order and/or preliminary injunction to prevent the House of Representatives from transmitting the
Articles of Impeachment arising from the second impeachment complaint to the Senate. Petition
bearing docket number G.R. No. 160261 likewise prayed for the declaration of the November 28,
2001 House Impeachment Rules as null and void for being unconstitutional.
Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295, which were filed on
October 28, 2003, sought similar relief. In addition, petition bearing docket number G.R. No. 160292
alleged that House Resolution No. 260 (calling for a legislative inquiry into the administration by the
Chief Justice of the JDF) infringes on the constitutional doctrine of separation of powers and is a
direct violation of the constitutional principle of fiscal autonomy of the judiciary.
On October 28, 2003, during the plenary session of the House of Representatives, a motion was put
forth that the second impeachment complaint be formally transmitted to the Senate, but it was not
carried because the House of Representatives adjourned for lack of quorum,19 and as reflected
above, to date, the Articles of Impeachment have yet to be forwarded to the Senate.
Before acting on the petitions with prayers for temporary restraining order and/or writ of preliminary
injunction which were filed on or before October 28, 2003, Justices Puno and Vitug offered to recuse
themselves, but the Court rejected their offer. Justice Panganiban inhibited himself, but the Court
directed him to participate.
Without necessarily giving the petitions due course, this Court in its Resolution of October 28, 2003,
resolved to (a) consolidate the petitions; (b) require respondent House of Representatives and the
Senate, as well as the Solicitor General, to comment on the petitions not later than 4:30 p.m. of
November 3, 2003; (c) set the petitions for oral arguments on November 5, 2003, at 10:00 a.m.; and
(d) appointed distinguished legal experts as amici curiae.20 In addition, this Court called on
petitioners and respondents to maintain the status quo, enjoining all the parties and others acting for
and in their behalf to refrain from committing acts that would render the petitions moot.
Also on October 28, 2003, when respondent House of Representatives through Speaker Jose C. De
Venecia, Jr. and/or its co-respondents, by way of special appearance, submitted a Manifestation
asserting that this Court has no jurisdiction to hear, much less prohibit or enjoin the House of
Representatives, which is an independent and co-equal branch of government under the
Constitution, from the performance of its constitutionally mandated duty to initiate impeachment
cases. On even date, Senator Aquilino Q. Pimentel, Jr., in his own behalf, filed a Motion to Intervene
(Ex Abudante Cautela)21 and Comment, praying that "the consolidated petitions be dismissed for lack
of jurisdiction of the Court over the issues affecting the impeachment proceedings and that the sole
power, authority and jurisdiction of the Senate as the impeachment court to try and decide
impeachment cases, including the one where the Chief Justice is the respondent, be recognized and
upheld pursuant to the provisions of Article XI of the Constitution."22
Acting on the other petitions which were subsequently filed, this Court resolved to (a) consolidate
them with the earlier consolidated petitions; (b) require respondents to file their comment not later
than 4:30 p.m. of November 3, 2003; and (c) include them for oral arguments on November 5, 2003.
On October 29, 2003, the Senate of the Philippines, through Senate President Franklin M. Drilon,
filed a Manifestation stating that insofar as it is concerned, the petitions are plainly premature and
have no basis in law or in fact, adding that as of the time of the filing of the petitions, no justiciable
issue was presented before it since (1) its constitutional duty to constitute itself as an impeachment
court commences only upon its receipt of the Articles of Impeachment, which it had not, and (2) the
principal issues raised by the petitions pertain exclusively to the proceedings in the House of
Representatives.
On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave to Intervene" in G.R. Nos.
160261, 160262, 160263, 160277, 160292, and 160295, questioning the status quo Resolution
issued by this Court on October 28, 2003 on the ground that it would unnecessarily put Congress
and this Court in a "constitutional deadlock" and praying for the dismissal of all the petitions as the
matter in question is not yet ripe for judicial determination.
On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino Quadra filed in G.R. No.
160262 a "Motion for Leave of Court to Intervene and to Admit the Herein Incorporated Petition in
Intervention."
On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino,

Inc. filed a Motion for Intervention in G.R. No. 160261. On November 5, 2003, World War II Veterans
Legionnaires of the Philippines, Inc. also filed a "Petition-in-Intervention with Leave to Intervene" in
G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and 160310.
The motions for intervention were granted and both Senator Pimentel's Comment and Attorneys
Macalintal and Quadra's Petition in Intervention were admitted.
On November 5-6, 2003, this Court heard the views of the amici curiae and the arguments of
petitioners, intervenors Senator Pimentel and Attorney Makalintal, and Solicitor General Alfredo
Benipayo on the principal issues outlined in an Advisory issued by this Court on November 3, 2003,
to wit:
Whether the certiorari jurisdiction of the Supreme Court may be invoked; who can invoke it;
on what issues and at what time; and whether it should be exercised by this Court at this
time.
In discussing these issues, the following may be taken up:
a) locus standi of petitioners;
b) ripeness(prematurity; mootness);
c) political question/justiciability;
d) House's "exclusive" power to initiate all cases of impeachment;
e) Senate's "sole" power to try and decide all cases of impeachment;
f) constitutionality of the House Rules on Impeachment vis-a-vis Section 3(5) of

Article XI of the Constitution; and
g) judicial restraint (Italics in the original)
In resolving the intricate conflux of preliminary and substantive issues arising from the instant
petitions as well as the myriad arguments and opinions presented for and against the grant of the
reliefs prayed for, this Court has sifted and determined them to be as follows: (1) the threshold and
novel issue of whether or not the power of judicial review extends to those arising from impeachment
proceedings; (2) whether or not the essential pre-requisites for the exercise of the power of judicial
review have been fulfilled; and (3) the substantive issues yet remaining. These matters shall now be
discussed in seriatim.
Judicial Review
As reflected above, petitioners plead for this Court to exercise the power of judicial review to
determine the validity of the second impeachment complaint.
This Court's power of judicial review is conferred on the judicial branch of the government in Section
1, Article VIII of our present 1987 Constitution:
SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government. (Emphasis
supplied)
Such power of judicial review was early on exhaustively expounded upon by Justice Jose P. Laurel
in the definitive 1936 case of Angara v. Electoral Commission23 after the effectivity of the 1935
Constitution whose provisions, unlike the present Constitution, did not contain the present provision
in Article VIII, Section 1, par. 2 on what judicial power includes. Thus, Justice Laurel discoursed:
x x x In times of social disquietude or political excitement, the great landmarks of the
Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict,
the judicial department is the only constitutional organ which can be called upon
to determine the proper allocation of powers between the several departments and
among the integral or constituent units thereof.
As any human production, our Constitution is of course lacking perfection and perfectibility,
but as much as it was within the power of our people, acting through their delegates to so
provide, that instrument which is the expression of their sovereignty however limited, has
established a republican government intended to operate and function as a harmonious
whole, under a system of checks and balances, and subject to specific limitations and
restrictions provided in the said instrument. The Constitution sets forth in no uncertain
language the restrictions and limitations upon governmental powers and agencies. If
these restrictions and limitations are transcended it would be inconceivable if the
Constitution had not provided for a mechanism by which to direct the course of
government along constitutional channels,for then the distribution of powers would be
mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good
government mere political apothegms. Certainly, the limitations and restrictions embodied in
our Constitution are real as they should be in any living constitution. In the United States
where no express constitutional grant is found in their constitution, the possession of this
moderating power of the courts, not to speak of its historical origin and development there,
has been set at rest by popular acquiescence for a period of more than one and a half
centuries. In our case, this moderating power is granted, if not expressly, by clear
implication from section 2 of article VIII of our Constitution.
The Constitution is a definition of the powers of government. Who is to determine the

nature, scope and extent of such powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when the judiciary mediates to
allocate constitutional boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the legislature, but only
asserts the solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and to establish for
the parties in an actual controversy the rights which that instrument secures and
guarantees to them. This is in truth all that is involved in what is termed "judicial
supremacy" which properly is the power of judicial review under the Constitution. Even
then, this power of judicial review is limited to actual cases and controversies to be exercised
after full opportunity of argument by the parties, and limited further to the constitutional
question raised or the very lis mota presented. Any attempt at abstraction could only lead to
dialectics and barren legal questions and to sterile conclusions unrelated to actualities.
Narrowed as its function is in this manner, the judiciary does not pass upon questions of
wisdom, justice or expediency of legislation. More than that, courts accord the presumption
of constitutionality to legislative enactments, not only because the legislature is presumed to
abide by the Constitution but also because the judiciary in the determination of actual cases
and controversies must reflect the wisdom and justice of the people as expressed through
their representatives in the executive and legislative departments of the government.24 (Italics
in the original; emphasis and underscoring supplied)
As pointed out by Justice Laurel, this "moderating power" to "determine the proper allocation of
powers" of the different branches of government and "to direct the course of government along
constitutional channels" is inherent in all courts25 as a necessary consequence of the judicial power
itself, which is "the power of the court to settle actual controversies involving rights which are legally
demandable and enforceable."26
Thus, even in the United States where the power of judicial review is not explicitly conferred upon
the courts by its Constitution, such power has "been set at rest by popular acquiescence for a period
of more than one and a half centuries." To be sure, it was in the 1803 leading case of Marbury v.
Madison27 that the power of judicial review was first articulated by Chief Justice Marshall, to wit:
It is also not entirely unworthy of observation, that in declaring what shall be the supreme law
of the land, the constitution itself is first mentioned; and not the laws of the United States
generally, but those only which shall be made in pursuance of the constitution, have that
rank.
Thus, the particular phraseology of the constitution of the United States confirms and
strengthens the principle, supposed to be essential to all written constitutions, that a
law repugnant to the constitution is void; and that courts, as well as other
departments, are bound by that instrument.28(Italics in the original; emphasis supplied)
In our own jurisdiction, as early as 1902, decades before its express grant in the 1935 Constitution,
the power of judicial review was exercised by our courts to invalidate constitutionally infirm
acts.29 And as pointed out by noted political law professor and former Supreme Court Justice Vicente
V. Mendoza,30 the executive and legislative branches of our government in fact effectively
acknowledged this power of judicial review in Article 7 of the Civil Code, to wit:
Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance
shall not be excused by disuse, or custom or practice to the contrary.
When the courts declare a law to be inconsistent with the Constitution, the former
shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only when they
are not contrary to the laws or the Constitution. (Emphasis supplied)
As indicated in Angara v. Electoral Commission,31 judicial review is indeed an integral component of

the delicate system of checks and balances which, together with the corollary principle of separation
of powers, forms the bedrock of our republican form of government and insures that its vast powers
are utilized only for the benefit of the people for which it serves.
The separation of powers is a fundamental principle in our system of government. It

obtains not through express provision but by actual division in our Constitution. Each
department of the government has exclusive cognizance of matters within its jurisdiction, and
is supreme within its own sphere. But it does not follow from the fact that the three powers
are to be kept separate and distinct that the Constitution intended them to be absolutely
unrestrained and independent of each other. The Constitution has provided for an
elaborate system of checks and balances to secure coordination in the workings of
the various departments of the government. x x x And the judiciary in turn, with the
Supreme Court as the final arbiter, effectively checks the other departments in the
exercise of its power to determine the law, and hence to declare executive and
legislative acts void if violative of the Constitution.32 (Emphasis and underscoring
supplied)
In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "x x x judicial
review is essential for the maintenance and enforcement of the separation of powers and the
balancing of powers among the three great departments of government through the definition and
maintenance of the boundaries of authority and control between them."33 To him, "[j]udicial review is
the chief, indeed the only, medium of participation – or instrument of intervention – of the judiciary in
that balancing operation."34
To ensure the potency of the power of judicial review to curb grave abuse of discretion by "any
branch or instrumentalities of government," the afore-quoted Section 1, Article VIII of the
Constitution engraves, for the first time into its history, into block letter law the so-called
"expanded certiorari jurisdiction" of this Court, the nature of and rationale for which are mirrored in
the following excerpt from the sponsorship speech of its proponent, former Chief Justice
Constitutional Commissioner Roberto Concepcion:
xxx
The first section starts with a sentence copied from former Constitutions. It says:
The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it first and explain.
Judicial power includes the duty of courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part
or instrumentality of the government.
Fellow Members of this Commission, this is actually a product of our experience during

martial law. As a matter of fact, it has some antecedents in the past, but the role of the
judiciary during the deposed regime was marred considerably by the circumstance
that in a number of cases against the government, which then had no legal defense at
all, the solicitor general set up the defense of political questions and got away with it.
As a consequence, certain principles concerning particularly the writ of habeas corpus, that
is, the authority of courts to order the release of political detainees, and other matters related
to the operation and effect of martial law failed because the government set up the defense
of political question. And the Supreme Court said: "Well, since it is political, we have no
authority to pass upon it." The Committee on the Judiciary feels that this was not a
proper solution of the questions involved. It did not merely request an encroachment
upon the rights of the people, but it, in effect, encouraged further violations thereof
during the martial law regime. x x x
xxx
Briefly stated, courts of justice determine the limits of power of the agencies and
offices of the government as well as those of its officers. In other words, the judiciary
is the final arbiter on the question whether or not a branch of government or any of its
officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously
as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of
jurisdiction. This is not only a judicial power but a duty to pass judgment on matters
of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts cannot
hereafter evade the duty to settle matters of this nature, by claiming that such matters
constitute a political question.35 (Italics in the original; emphasis and underscoring
supplied)
To determine the merits of the issues raised in the instant petitions, this Court must necessarily turn
to the Constitution itself which employs the well-settled principles of constitutional construction.
First, verba legis, that is, wherever possible, the words used in the Constitution must be given
their ordinary meaning except where technical terms are employed. Thus, in J.M. Tuason & Co., Inc.
v. Land Tenure Administration,36 this Court, speaking through Chief Justice Enrique Fernando,
declared:
We look to the language of the document itself in our search for its meaning. We do
not of course stop there, but that is where we begin. It is to be assumed that the
words in which constitutional provisions are couched express the objective sought to
be attained. They are to be given their ordinary meaning except where technical terms
are employed in which case the significance thus attached to them prevails. As the
Constitution is not primarily a lawyer's document, it being essential for the rule of law to
obtain that it should ever be present in the people's consciousness, its language as much as
possible should be understood in the sense they have in common use. What it says
according to the text of the provision to be construed compels acceptance and
negates the power of the courts to alter it, based on the postulate that the framers and the
people mean what they say. Thus these are the cases where the need for construction is
reduced to a minimum.37 (Emphasis and underscoring supplied)
Second, where there is ambiguity, ratio legis est anima. The words of the Constitution should be
interpreted in accordance with the intent of its framers. And so did this Court apply this principle
in Civil Liberties Union v. Executive Secretary38 in this wise:
A foolproof yardstick in constitutional construction is the intention underlying the provision

under consideration. Thus, it has been held that the Court in construing a Constitution should
bear in mind the object sought to be accomplished by its adoption, and the evils, if any,
sought to be prevented or remedied. A doubtful provision will be examined in the light of the
history of the times, and the condition and circumstances under which the Constitution was
framed. The object is to ascertain the reason which induced the framers of the
Constitution to enact the particular provision and the purpose sought to be
accomplished thereby, in order to construe the whole as to make the words
consonant to that reason and calculated to effect that purpose.39 (Emphasis and
underscoring supplied)
As it did in Nitafan v. Commissioner on Internal Revenue 40 where, speaking through Madame Justice
Amuerfina A. Melencio-Herrera, it declared:
x x x The ascertainment of that intent is but in keeping with the fundamental principle
of constitutional construction that the intent of the framers of the organic law and of
the people adopting it should be given effect. The primary task in constitutional
construction is to ascertain and thereafter assure the realization of the purpose of the
framers and of the people in the adoption of the Constitution. It may also be safely
assumed that the people in ratifying the Constitution were guided mainly by the
explanation offered by the framers.41 (Emphasis and underscoring supplied)
Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a whole. Thus,
in Chiongbian v. De Leon,42 this Court, through Chief Justice Manuel Moran declared:
x x x [T]he members of the Constitutional Convention could not have dedicated a

provision of our Constitution merely for the benefit of one person without considering
that it could also affect others.When they adopted subsection 2, they permitted, if not
willed, that said provision should function to the full extent of its substance and its
terms, not by itself alone, but in conjunction with all other provisions of that great
document.43 (Emphasis and underscoring supplied)
Likewise, still in Civil Liberties Union v. Executive Secretary,44 this Court affirmed that:
It is a well-established rule in constitutional construction that no one provision of the

Constitution is to be separated from all the others, to be considered alone, but that all
the provisions bearing upon a particular subject are to be brought into view and to be
so interpreted as to effectuate the great purposes of the instrument. Sections bearing
on a particular subject should be considered and interpreted together as to effectuate
the whole purpose of the Constitution and one section is not to be allowed to defeat
another, if by any reasonable construction, the two can be made to stand together.
In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make the
words idle and nugatory.45 (Emphasis supplied)
If, however, the plain meaning of the word is not found to be clear, resort to other aids is available. In
still the same case of Civil Liberties Union v. Executive Secretary, this Court expounded:
While it is permissible in this jurisdiction to consult the debates and proceedings of the

constitutional convention in order to arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only when other guides fail as said
proceedings are powerless to vary the terms of the Constitution when the meaning is
clear. Debates in the constitutional convention "are of value as showing the views of the
individual members, and as indicating the reasons for their votes, but they give us no light as
to the views of the large majority who did not talk, much less of the mass of our fellow
citizens whose votes at the polls gave that instrument the force of fundamental law. We
think it safer to construe the constitution from what appears upon its face." The
proper interpretation therefore depends more on how it was understood by the people
adopting it than in the framers's understanding thereof.46 (Emphasis and underscoring
supplied)
It is in the context of the foregoing backdrop of constitutional refinement and jurisprudential

application of the power of judicial review that respondents Speaker De Venecia, et. al. and
intervenor Senator Pimentel raise the novel argument that the Constitution has excluded
impeachment proceedings from the coverage of judicial review.
Briefly stated, it is the position of respondents Speaker De Venecia et. al. that impeachment is a

political action which cannot assume a judicial character. Hence, any question, issue or incident
arising at any stage of the impeachment proceeding is beyond the reach of judicial review.47
For his part, intervenor Senator Pimentel contends that the Senate's "sole power to
try" impeachment cases48 (1) entirely excludes the application of judicial review over it; and (2)
necessarily includes the Senate's power to determine constitutional questions relative to
impeachment proceedings.49
In furthering their arguments on the proposition that impeachment proceedings are outside the
scope of judicial review, respondents Speaker De Venecia, et. al. and intervenor Senator Pimentel
rely heavily on American authorities, principally the majority opinion in the case of Nixon v. United
States.50 Thus, they contend that the exercise of judicial review over impeachment proceedings is
inappropriate since it runs counter to the framers' decision to allocate to different fora the powers to
try impeachments and to try crimes; it disturbs the system of checks and balances, under which
impeachment is the only legislative check on the judiciary; and it would create a lack of finality and
difficulty in fashioning relief.51 Respondents likewise point to deliberations on the US Constitution to
show the intent to isolate judicial power of review in cases of impeachment.
Respondents' and intervenors' reliance upon American jurisprudence, the American Constitution and
American authorities cannot be credited to support the proposition that the Senate's "sole power to
try and decide impeachment cases," as provided for under Art. XI, Sec. 3(6) of the Constitution, is a
textually demonstrable constitutional commitment of all issues pertaining to impeachment to the
legislature, to the total exclusion of the power of judicial review to check and restrain any grave
abuse of the impeachment process. Nor can it reasonably support the interpretation that it
necessarily confers upon the Senate the inherently judicial power to determine constitutional
questions incident to impeachment proceedings.
Said American jurisprudence and authorities, much less the American Constitution, are of dubious
application for these are no longer controlling within our jurisdiction and have only limited persuasive
merit insofar as Philippine constitutional law is concerned. As held in the case of Garcia vs.
COMELEC,52 "[i]n resolving constitutional disputes, [this Court] should not be beguiled by foreign
jurisprudence some of which are hardly applicable because they have been dictated by different
constitutional settings and needs."53 Indeed, although the Philippine Constitution can trace its origins
to that of the United States, their paths of development have long since diverged. In the colorful
words of Father Bernas, "[w]e have cut the umbilical cord."
The major difference between the judicial power of the Philippine Supreme Court and that of the
U.S. Supreme Court is that while the power of judicial review is only impliedly granted to the U.S.
Supreme Court and is discretionary in nature, that granted to the Philippine Supreme Court and
lower courts, as expressly provided for in the Constitution, is not just a power but also a duty, and it
was given an expanded definition to include the power to correct any grave abuse of discretion on
the part of any government branch or instrumentality.
There are also glaring distinctions between the U.S. Constitution and the Philippine Constitution with
respect to the power of the House of Representatives over impeachment proceedings. While the
U.S. Constitution bestows sole power of impeachment to the House of Representatives without
limitation,54 our Constitution, though vesting in the House of Representatives the exclusive power to
initiate impeachment cases,55 provides for several limitations to the exercise of such power as
embodied in Section 3(2), (3), (4) and (5), Article XI thereof. These limitations include the manner of
filing, required vote to impeach, and the one year bar on the impeachment of one and the same
official.
Respondents are also of the view that judicial review of impeachments undermines their finality and
may also lead to conflicts between Congress and the judiciary. Thus, they call upon this Court to
exercise judicial statesmanship on the principle that "whenever possible, the Court should defer to
the judgment of the people expressed legislatively, recognizing full well the perils of judicial
willfulness and pride."56
But did not the people also express their will when they instituted the above-mentioned safeguards
in the Constitution? This shows that the Constitution did not intend to leave the matter of
impeachment to the sole discretion of Congress. Instead, it provided for certain well-defined limits, or
in the language of Baker v. Carr,57"judicially discoverable standards" for determining the validity of
the exercise of such discretion, through the power of judicial review.
The cases of Romulo v. Yniguez58 and Alejandrino v. Quezon,59 cited by respondents in support of

the argument that the impeachment power is beyond the scope of judicial review, are not in point.
These cases concern the denial of petitions for writs of mandamus to compel the legislature to
perform non-ministerial acts, and do not concern the exercise of the power of judicial review.
There is indeed a plethora of cases in which this Court exercised the power of judicial review over
congressional action. Thus, in Santiago v. Guingona, Jr.,60 this Court ruled that it is well within the
power and jurisdiction of the Court to inquire whether the Senate or its officials committed a violation
of the Constitution or grave abuse of discretion in the exercise of their functions and prerogatives.
In Tanada v. Angara,61 in seeking to nullify an act of the Philippine Senate on the ground that it
contravened the Constitution, it held that the petition raises a justiciable controversy and that when
an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes
not only the right but in fact the duty of the judiciary to settle the dispute. In Bondoc v. Pineda,62 this
Court declared null and void a resolution of the House of Representatives withdrawing the
nomination, and rescinding the election, of a congressman as a member of the House Electoral
Tribunal for being violative of Section 17, Article VI of the Constitution. In Coseteng v. Mitra,63 it held
that the resolution of whether the House representation in the Commission on Appointments was
based on proportional representation of the political parties as provided in Section 18, Article VI of
the Constitution is subject to judicial review. In Daza v. Singson,64 it held that the act of the House of
Representatives in removing the petitioner from the Commission on Appointments is subject to
judicial review. In Tanada v. Cuenco,65 it held that although under the Constitution, the legislative
power is vested exclusively in Congress, this does not detract from the power of the courts to pass
upon the constitutionality of acts of Congress. In Angara v. Electoral Commission, 66 it ruled that
confirmation by the National Assembly of the election of any member, irrespective of whether his
election is contested, is not essential before such member-elect may discharge the duties and enjoy
the privileges of a member of the National Assembly.
Finally, there exists no constitutional basis for the contention that the exercise of judicial review over
impeachment proceedings would upset the system of checks and balances. Verily, the Constitution
is to be interpreted as a whole and "one section is not to be allowed to defeat another."67 Both are
integral components of the calibrated system of independence and interdependence that insures
that no branch of government act beyond the powers assigned to it by the Constitution.
Essential Requisites for Judicial Review
As clearly stated in Angara v. Electoral Commission, the courts' power of judicial review, like almost
all powers conferred by the Constitution, is subject to several limitations, namely: (1) an actual case
or controversy calling for the exercise of judicial power; (2) the person challenging the act must have
"standing" to challenge; he must have a personal and substantial interest in the case such that he
has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest possible opportunity; and (4) the issue of
constitutionality must be the very lis mota of the case.
x x x Even then, this power of judicial review is limited to actual cases and controversies to
be exercised after full opportunity of argument by the parties, and limited further to the
constitutional question raised or the very lis mota presented. Any attempt at abstraction
could only lead to dialectics and barren legal questions and to sterile conclusions unrelated
to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon
questions of wisdom, justice or expediency of legislation. More than that, courts accord the
presumption of constitutionality to legislative enactments, not only because the legislature is
presumed to abide by the Constitution but also because the judiciary in the determination of
actual cases and controversies must reflect the wisdom and justice of the people as
expressed through their representatives in the executive and legislative departments of the
government.68 (Italics in the original)
Standing
Locus standi or legal standing or has been defined as a personal and substantial interest in the case
such that the party has sustained or will sustain direct injury as a result of the governmental act that
is being challenged. The gist of the question of standing is whether a party alleges such personal
stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of difficult constitutional
questions.69
Intervenor Soriano, in praying for the dismissal of the petitions, contends that petitioners do not have
standing since only the Chief Justice has sustained and will sustain direct personal injury. Amicus
curiae former Justice Minister and Solicitor General Estelito Mendoza similarly contends.
Upon the other hand, the Solicitor General asserts that petitioners have standing since this Court
had, in the past, accorded standing to taxpayers, voters, concerned citizens, legislators in cases
involving paramount public interest70 and transcendental importance,71 and that procedural matters
are subordinate to the need to determine whether or not the other branches of the government have
kept themselves within the limits of the Constitution and the laws and that they have not abused the
discretion given to them.72 Amicus curiae Dean Raul Pangalangan of the U.P. College of Law is of
the same opinion, citing transcendental importance and the well-entrenched rule exception that,
when the real party in interest is unable to vindicate his rights by seeking the same remedies, as in
the case of the Chief Justice who, for ethical reasons, cannot himself invoke the jurisdiction of this
Court, the courts will grant petitioners standing.
There is, however, a difference between the rule on real-party-in-interest and the rule on standing,
for the former is a concept of civil procedure73 while the latter has constitutional underpinnings.74 In
view of the arguments set forth regarding standing, it behooves the Court to reiterate the ruling
in Kilosbayan, Inc. v. Morato75 to clarify what is meant by locus standi and to distinguish it from real
party-in-interest.
The difference between the rule on standing and real party in interest has been noted by
authorities thus: "It is important to note . . . that standing because of its constitutional and
public policy underpinnings, is very different from questions relating to whether a particular
plaintiff is the real party in interest or has capacity to sue. Although all three requirements are
directed towards ensuring that only certain parties can maintain an action, standing
restrictions require a partial consideration of the merits, as well as broader policy concerns
relating to the proper role of the judiciary in certain areas.
Standing is a special concern in constitutional law because in some cases suits are brought
not by parties who have been personally injured by the operation of a law or by official action
taken, but by concerned citizens, taxpayers or voters who actually sue in the public interest.
Hence the question in standing is whether such parties have "alleged such a personal stake
in the outcome of the controversy as to assure that concrete adverseness which sharpens
the presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions."
xxx
On the other hand, the question as to "real party in interest" is whether he is "the party who
would be benefited or injured by the judgment, or the 'party entitled to the avails of the
suit.'"76 (Citations omitted)
While rights personal to the Chief Justice may have been injured by the alleged unconstitutional acts
of the House of Representatives, none of the petitioners before us asserts a violation of the personal
rights of the Chief Justice. On the contrary, they invariably invoke the vindication of their own rights –
as taxpayers; members of Congress; citizens, individually or in a class suit; and members of the bar
and of the legal profession – which were supposedly violated by the alleged unconstitutional acts of
the House of Representatives.
In a long line of cases, however, concerned citizens, taxpayers and legislators when specific
requirements have been met have been given standing by this Court.
When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must
be direct and personal. He must be able to show, not only that the law or any government act is
invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a
result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must
appear that the person complaining has been or is about to be denied some right or privilege to
which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by
reason of the statute or act complained of.77 In fine, when the proceeding involves the assertion of a
public right,78 the mere fact that he is a citizen satisfies the requirement of personal interest.
In the case of a taxpayer, he is allowed to sue where there is a claim that public funds are illegally
disbursed, or that public money is being deflected to any improper purpose, or that there is a
wastage of public funds through the enforcement of an invalid or unconstitutional law.79 Before he
can invoke the power of judicial review, however, he must specifically prove that he has sufficient
interest in preventing the illegal expenditure of money raised by taxation and that he would sustain a
direct injury as a result of the enforcement of the questioned statute or contract. It is not sufficient
that he has merely a general interest common to all members of the public.80
At all events, courts are vested with discretion as to whether or not a taxpayer's suit should be
entertained.81 This Court opts to grant standing to most of the petitioners, given their allegation that
any impending transmittal to the Senate of the Articles of Impeachment and the ensuing trial of the
Chief Justice will necessarily involve the expenditure of public funds.
As for a legislator, he is allowed to sue to question the validity of any official action which he claims
infringes his prerogatives as a legislator.82 Indeed, a member of the House of Representatives has
standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in
his office.83
While an association has legal personality to represent its members,84 especially when it is

composed of substantial taxpayers and the outcome will affect their vital interests,85 the mere
invocation by the Integrated Bar of the Philippines or any member of the legal profession of the duty
to preserve the rule of law and nothing more, although undoubtedly true, does not suffice to clothe it
with standing. Its interest is too general. It is shared by other groups and the whole citizenry.
However, a reading of the petitions shows that it has advanced constitutional issues which deserve
the attention of this Court in view of their seriousness, novelty and weight as precedents.86 It,
therefore, behooves this Court to relax the rules on standing and to resolve the issues presented by
it.
In the same vein, when dealing with class suits filed in behalf of all citizens, persons intervening
must be sufficiently numerous to fully protect the interests of all concerned87 to enable the court to
deal properly with all interests involved in the suit,88 for a judgment in a class suit, whether favorable
or unfavorable to the class, is, under the res judicata principle, binding on all members of the class
whether or not they were before the court.89 Where it clearly appears that not all interests can be
sufficiently represented as shown by the divergent issues raised in the numerous petitions before
this Court, G.R. No. 160365 as a class suit ought to fail. Since petitioners additionallyallege standing
as citizens and taxpayers, however, their petition will stand.
The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground of transcendental
importance, while Atty. Dioscoro U. Vallejos, in G.R. No. 160397, is mum on his standing.
There being no doctrinal definition of transcendental importance, the following instructive

determinants formulated by former Supreme Court Justice Florentino P. Feliciano are instructive: (1)
the character of the funds or other assets involved in the case; (2) the presence of a clear case of
disregard of a constitutional or statutory prohibition by the public respondent agency or
instrumentality of the government; and (3) the lack of any other party with a more direct and specific
interest in raising the questions being raised.90 Applying these determinants, this Court is satisfied
that the issues raised herein are indeed of transcendental importance.
In not a few cases, this Court has in fact adopted a liberal attitude on the locus standi of a petitioner
where the petitioner is able to craft an issue of transcendental significance to the people, as when
the issues raised are of paramount importance to the public.91 Such liberality does not, however,
mean that the requirement that a party should have an interest in the matter is totally eliminated. A
party must, at the very least, still plead the existence of such interest, it not being one of which
courts can take judicial notice. In petitioner Vallejos' case, he failed to allege any interest in the case.
He does not thus have standing.
With respect to the motions for intervention, Rule 19, Section 2 of the Rules of Court requires an
intervenor to possess a legal interest in the matter in litigation, or in the success of either of the
parties, or an interest against both, or is so situated as to be adversely affected by a distribution or
other disposition of property in the custody of the court or of an officer thereof. While intervention is
not a matter of right, it may be permitted by the courts when the applicant shows facts which satisfy
the requirements of the law authorizing intervention.92
In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadra's case, they seek to join
petitioners Candelaria, et. al. in G.R. No. 160262. Since, save for one additional issue, they raise the
same issues and the same standing, and no objection on the part of petitioners Candelaria, et. al.
has been interposed, this Court as earlier stated, granted the Motion for Leave of Court to Intervene
and Petition-in-Intervention.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et. al. sought to join

petitioner Francisco in G.R. No. 160261. Invoking their right as citizens to intervene, alleging that
"they will suffer if this insidious scheme of the minority members of the House of Representatives is
successful," this Court found the requisites for intervention had been complied with.
Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262, 160263, 160277,
160292, 160295, and 160310 were of transcendental importance, World War II Veterans
Legionnaires of the Philippines, Inc. filed a "Petition-in-Intervention with Leave to Intervene" to raise
the additional issue of whether or not the second impeachment complaint against the Chief Justice is
valid and based on any of the grounds prescribed by the Constitution.
Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et al. and
World War II Veterans Legionnaires of the Philippines, Inc. possess a legal interest in the matter in
litigation the respective motions to intervene were hereby granted.
Senator Aquilino Pimentel, on the other hand, sought to intervene for the limited purpose of making
of record and arguing a point of view that differs with Senate President Drilon's. He alleges that
submitting to this Court's jurisdiction as the Senate President does will undermine the independence
of the Senate which will sit as an impeachment court once the Articles of Impeachment are
transmitted to it from the House of Representatives. Clearly, Senator Pimentel possesses a legal
interest in the matter in litigation, he being a member of Congress against which the herein petitions
are directed. For this reason, and to fully ventilate all substantial issues relating to the matter at
hand, his Motion to Intervene was granted and he was, as earlier stated, allowed to argue.
Lastly, as to Jaime N. Soriano's motion to intervene, the same must be denied for, while he asserts
an interest as a taxpayer, he failed to meet the standing requirement for bringing taxpayer's suits as
set forth in Dumlao v. Comelec,93 to wit:
x x x While, concededly, the elections to be held involve the expenditure of public moneys,
nowhere in their Petition do said petitioners allege that their tax money is "being extracted
and spent in violation of specific constitutional protection against abuses of legislative
power," or that there is a misapplication of such funds by respondent COMELEC, or that
public money is being deflected to any improper purpose. Neither do petitioners seek to
restrain respondent from wasting public funds through the enforcement of an invalid or
unconstitutional law.94 (Citations omitted)
In praying for the dismissal of the petitions, Soriano failed even to allege that the act of petitioners
will result in illegal disbursement of public funds or in public money being deflected to any improper
purpose. Additionally, his mere interest as a member of the Bar does not suffice to clothe him with
standing.
Ripeness and Prematurity
In Tan v. Macapagal,95 this Court, through Chief Justice Fernando, held that for a case to be
considered ripe for adjudication, "it is a prerequisite that something had by then been accomplished
or performed by either branch before a court may come into the picture."96 Only then may the courts
pass on the validity of what was done, if and when the latter is challenged in an appropriate legal
proceeding.
The instant petitions raise in the main the issue of the validity of the filing of the second
impeachment complaint against the Chief Justice in accordance with the House Impeachment Rules
adopted by the 12th Congress, the constitutionality of which is questioned. The questioned acts
having been carried out, i.e., the second impeachment complaint had been filed with the House of
Representatives and the 2001 Rules have already been already promulgated and enforced, the
prerequisite that the alleged unconstitutional act should be accomplished and performed before suit,
as Tan v. Macapagal holds, has been complied with.
Related to the issue of ripeness is the question of whether the instant petitions are
premature. Amicus curiae former Senate President Jovito R. Salonga opines that there may be no
urgent need for this Court to render a decision at this time, it being the final arbiter on questions of
constitutionality anyway. He thus recommends that all remedies in the House and Senate should
first be exhausted.
Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law who suggests to this
Court to take judicial notice of on-going attempts to encourage signatories to the second
impeachment complaint to withdraw their signatures and opines that the House Impeachment Rules
provide for an opportunity for members to raise constitutional questions themselves when the
Articles of Impeachment are presented on a motion to transmit to the same to the Senate. The dean
maintains that even assuming that the Articles are transmitted to the Senate, the Chief Justice can
raise the issue of their constitutional infirmity by way of a motion to dismiss.
The dean's position does not persuade. First, the withdrawal by the Representatives of their
signatures would not, by itself, cure the House Impeachment Rules of their constitutional infirmity.
Neither would such a withdrawal, by itself, obliterate the questioned second impeachment complaint
since it would only place it under the ambit of Sections 3(2) and (3) of Article XI of the
Constitution97 and, therefore, petitioners would continue to suffer their injuries.
Second and most importantly, the futility of seeking remedies from either or both Houses of
Congress before coming to this Court is shown by the fact that, as previously discussed, neither the
House of Representatives nor the Senate is clothed with the power to rule with definitiveness on the
issue of constitutionality, whether concerning impeachment proceedings or otherwise, as said power
is exclusively vested in the judiciary by the earlier quoted Section I, Article VIII of the Constitution.
Remedy cannot be sought from a body which is bereft of power to grant it.
Justiciability
In the leading case of Tanada v. Cuenco,98 Chief Justice Roberto Concepcion defined the term
"political question," viz:
[T]he term "political question" connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy. In other words, in the language of Corpus Juris
Secundum, it refers to "those questions which, under the Constitution, are to be decided by
the people in their sovereign capacity, or in regard to which full discretionary authority has
been delegated to the Legislature or executive branch of the Government." It is concerned
with issues dependent upon the wisdom, not legality, of a particular measure.99(Italics in the
original)
Prior to the 1973 Constitution, without consistency and seemingly without any rhyme or reason, this
Court vacillated on its stance of taking cognizance of cases which involved political questions. In
some cases, this Court hid behind the cover of the political question doctrine and refused to exercise
its power of judicial review.100 In other cases, however, despite the seeming political nature of the
therein issues involved, this Court assumed jurisdiction whenever it found constitutionally imposed
limits on powers or functions conferred upon political bodies.101 Even in the landmark 1988 case
of Javellana v. Executive Secretary102 which raised the issue of whether the 1973 Constitution was
ratified, hence, in force, this Court shunted the political question doctrine and took cognizance
thereof. Ratification by the people of a Constitution is a political question, it being a question decided
by the people in their sovereign capacity.
The frequency with which this Court invoked the political question doctrine to refuse to take
jurisdiction over certain cases during the Marcos regime motivated Chief Justice Concepcion, when
he became a Constitutional Commissioner, to clarify this Court's power of judicial review and its
application on issues involving political questions, viz:
MR. CONCEPCION. Thank you, Mr. Presiding Officer.
I will speak on the judiciary. Practically, everybody has made, I suppose, the usual comment that the
judiciary is the weakest among the three major branches of the service. Since the legislature holds
the purse and the executive the sword, the judiciary has nothing with which to enforce its decisions
or commands except the power of reason and appeal to conscience which, after all, reflects the will
of God, and is the most powerful of all other powers without exception. x x x And so, with the body's
indulgence, I will proceed to read the provisions drafted by the Committee on the Judiciary.
The first section starts with a sentence copied from former Constitutions. It says:
The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it first and explain.
Judicial power includes the duty of courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part
or instrumentality of the government.
Fellow Members of this Commission, this is actually a product of our experience during
martial law. As a matter of fact, it has some antecedents in the past, but the role of the
judiciary during the deposed regime was marred considerably by the circumstance
that in a number of cases against the government, which then had no legal defense at
all, the solicitor general set up the defense of political questions and got away with it.
As a consequence, certain principles concerning particularly the writ of habeas
corpus, that is, the authority of courts to order the release of political detainees, and
other matters related to the operation and effect of martial law failed because the
government set up the defense of political question. And the Supreme Court said: "Well,
since it is political, we have no authority to pass upon it." The Committee on the Judiciary
feels that this was not a proper solution of the questions involved. It did not merely
request an encroachment upon the rights of the people, but it, in effect, encouraged
further violations thereof during the martial law regime. I am sure the members of the
Bar are familiar with this situation. But for the benefit of the Members of the Commission who
are not lawyers, allow me to explain. I will start with a decision of the Supreme Court in 1973
on the case of Javellana vs. the Secretary of Justice, if I am not mistaken. Martial law was
announced on September 22, although the proclamation was dated September 21. The
obvious reason for the delay in its publication was that the administration had apprehended
and detained prominent newsmen on September 21. So that when martial law was
announced on September 22, the media hardly published anything about it. In fact, the
media could not publish any story not only because our main writers were already
incarcerated, but also because those who succeeded them in their jobs were under mortal
threat of being the object of wrath of the ruling party. The 1971 Constitutional Convention
had begun on June 1, 1971 and by September 21 or 22 had not finished the Constitution; it
had barely agreed in the fundamentals of the Constitution. I forgot to say that upon the
proclamation of martial law, some delegates to that 1971 Constitutional Convention, dozens
of them, were picked up. One of them was our very own colleague, Commissioner Calderon.
So, the unfinished draft of the Constitution was taken over by representatives of
Malacañang. In 17 days, they finished what the delegates to the 1971 Constitutional
Convention had been unable to accomplish for about 14 months. The draft of the 1973
Constitution was presented to the President around December 1, 1972, whereupon the
President issued a decree calling a plebiscite which suspended the operation of some
provisions in the martial law decree which prohibited discussions, much less public
discussions of certain matters of public concern. The purpose was presumably to allow a
free discussion on the draft of the Constitution on which a plebiscite was to be held
sometime in January 1973. If I may use a word famous by our colleague, Commissioner
Ople, during the interregnum, however, the draft of the Constitution was analyzed and
criticized with such a telling effect that Malacañang felt the danger of its approval. So, the
President suspended indefinitely the holding of the plebiscite and announced that he would
consult the people in a referendum to be held from January 10 to January 15. But the
questions to be submitted in the referendum were not announced until the eve of its
scheduled beginning, under the supposed supervision not of the Commission on Elections,
but of what was then designated as "citizens assemblies or barangays." Thus the barangays
came into existence. The questions to be propounded were released with proposed answers
thereto, suggesting that it was unnecessary to hold a plebiscite because the answers given
in the referendum should be regarded as the votes cast in the plebiscite. Thereupon, a
motion was filed with the Supreme Court praying that the holding of the referendum be
suspended. When the motion was being heard before the Supreme Court, the Minister of
Justice delivered to the Court a proclamation of the President declaring that the new
Constitution was already in force because the overwhelming majority of the votes cast in the
referendum favored the Constitution. Immediately after the departure of the Minister of
Justice, I proceeded to the session room where the case was being heard. I then informed
the Court and the parties the presidential proclamation declaring that the 1973 Constitution
had been ratified by the people and is now in force.
A number of other cases were filed to declare the presidential proclamation null and void.
The main defense put up by the government was that the issue was a political question and
that the court had no jurisdiction to entertain the case.
xxx
The government said that in a referendum held from January 10 to January 15, the vast
majority ratified the draft of the Constitution. Note that all members of the Supreme Court
were residents of Manila, but none of them had been notified of any referendum in their
respective places of residence, much less did they participate in the alleged referendum.
None of them saw any referendum proceeding.
In the Philippines, even local gossips spread like wild fire. So, a majority of the members of
the Court felt that there had been no referendum.
Second, a referendum cannot substitute for a plebiscite. There is a big difference between

a referendum and a plebiscite. But another group of justices upheld the defense that
the issue was a political question. Whereupon, they dismissed the case. This is not
the only major case in which the plea of "political question" was set up. There have
been a number of other cases in the past.
x x x The defense of the political question was rejected because the issue was clearly
justiciable.
xxx
x x x When your Committee on the Judiciary began to perform its functions, it faced the
following questions: What is judicial power? What is a political question?
The Supreme Court, like all other courts, has one main function: to settle actual
controversies involving conflicts of rights which are demandable and enforceable. There are
rights which are guaranteed by law but cannot be enforced by a judiciary party. In a decided
case, a husband complained that his wife was unwilling to perform her duties as a wife. The
Court said: "We can tell your wife what her duties as such are and that she is bound to
comply with them, but we cannot force her physically to discharge her main marital duty to
her husband. There are some rights guaranteed by law, but they are so personal that to
enforce them by actual compulsion would be highly derogatory to human dignity."
This is why the first part of the second paragraph of Section I provides that:
Judicial power includes the duty of courts to settle actual controversies involving rights which
are legally demandable or enforceable . . .
The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a
presidential system of government, the Supreme Court has, also another important
function. The powers of government are generally considered divided into three
branches: the Legislative, the Executive and the Judiciary. Each one is supreme
within its own sphere and independent of the others. Because of that supremacy
power to determine whether a given law is valid or not is vested in courts of justice.
Briefly stated, courts of justice determine the limits of power of the agencies and
offices of the government as well as those of its officers. In other words, the judiciary
is the final arbiter on the question whether or not a branch of government or any of its
officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously
as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of
jurisdiction. This is not only a judicial power but a duty to pass judgment on matters
of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts
cannot hereafter evade the duty to settle matters of this nature, by claiming that such
matters constitute a political question.
I have made these extended remarks to the end that the Commissioners may have an initial
food for thought on the subject of the judiciary.103 (Italics in the original; emphasis supplied)
During the deliberations of the Constitutional Commission, Chief Justice Concepcion further clarified
the concept of judicial power, thus:
MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial power is
not vested in the Supreme Court alone but also in other lower courts as may be
created by law.
MR. CONCEPCION. Yes.
MR. NOLLEDO. And so, is this only an example?

MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify political
questions with jurisdictional questions. But there is a difference.
MR. NOLLEDO. Because of the expression "judicial power"?
MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but where
there is a question as to whether the government had authority or had abused its
authority to the extent of lacking jurisdiction or excess of jurisdiction, that is not a
political question. Therefore, the court has the duty to decide.
xxx
FR. BERNAS. Ultimately, therefore, it will always have to be decided by the Supreme Court
according to the new numerical need for votes.
On another point, is it the intention of Section 1 to do away with the political question
doctrine?
MR. CONCEPCION. No.
FR. BERNAS. It is not.
MR. CONCEPCION. No, because whenever there is an abuse of discretion, amounting

to a lack of jurisdiction. . .
FR. BERNAS. So, I am satisfied with the answer that it is not intended to do away with
the political question doctrine.
MR. CONCEPCION. No, certainly not.
When this provision was originally drafted, it sought to define what is judicial power.
But the Gentleman will notice it says, "judicial power includes" and the reason being
that the definition that we might make may not cover all possible areas.
FR. BERNAS. So, this is not an attempt to solve the problems arising from the political
question doctrine.
MR. CONCEPCION. It definitely does not eliminate the fact that truly political
questions are beyond the pale of judicial power.104 (Emphasis supplied)
From the foregoing record of the proceedings of the 1986 Constitutional Commission, it is clear that
judicial power is not only a power; it is also a duty, a duty which cannot be abdicated by the mere
specter of this creature called the political question doctrine. Chief Justice Concepcion hastened to
clarify, however, that Section 1, Article VIII was not intended to do away with "truly political
questions." From this clarification it is gathered that there are two species of political questions: (1)
"truly political questions" and (2) those which "are not truly political questions."
Truly political questions are thus beyond judicial review, the reason for respect of the doctrine of
separation of powers to be maintained. On the other hand, by virtue of Section 1, Article VIII of the
Constitution, courts can review questions which are not truly political in nature.
As pointed out by amicus curiae former dean Pacifico Agabin of the UP College of Law, this Court
has in fact in a number of cases taken jurisdiction over questions which are not truly political
following the effectivity of the present Constitution.
In Marcos v. Manglapus,105 this Court, speaking through Madame Justice Irene Cortes, held:
The present Constitution limits resort to the political question doctrine and broadens the
scope of judicial inquiry into areas which the Court, under previous constitutions, would have
normally left to the political departments to decide.106 x x x
In Bengzon v. Senate Blue Ribbon Committee, 107 through Justice Teodoro Padilla, this Court
declared:
The "allocation of constitutional boundaries" is a task that this Court must perform under the
Constitution. Moreover, as held in a recent case, "(t)he political question doctrine neither
interposes an obstacle to judicial determination of the rival claims. The jurisdiction
to delimit constitutional boundaries has been given to this Court. It cannot abdicate
that obligation mandated by the 1987 Constitution, although said provision by no
means does away with the applicability of the principle in appropriate
cases."108 (Emphasis and underscoring supplied)
And in Daza v. Singson,109 speaking through Justice Isagani Cruz, this Court ruled:
In the case now before us, the jurisdictional objection becomes even less tenable and
decisive. The reason is that, even if we were to assume that the issue presented before us
was political in nature, we would still not be precluded from resolving it under
the expanded jurisdiction conferred upon us that now covers, in proper cases, even the
political question.110 x x x (Emphasis and underscoring supplied.)
Section 1, Article VIII, of the Court does not define what are justiciable political questions and non-
justiciable political questions, however. Identification of these two species of political questions may
be problematic. There has been no clear standard. The American case of Baker v. Carr111 attempts
to provide some:
x x x Prominent on the surface of any case held to involve a political question is found
a textually demonstrable constitutional commitment of the issue to a coordinate political
department; or a lack of judicially discoverable and manageable standards for resolving it; or
the impossibility of deciding without an initial policy determination of a kind clearly for non-
judicial discretion; or the impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an unusual need
for questioning adherence to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various departments on one
question.112(Underscoring supplied)
Of these standards, the more reliable have been the first three: (1) a textually demonstrable
constitutional commitment of the issue to a coordinate political department; (2) the lack of judicially
discoverable and manageable standards for resolving it; and (3) the impossibility of deciding without
an initial policy determination of a kind clearly for non-judicial discretion. These standards are not
separate and distinct concepts but are interrelated to each in that the presence of one strengthens
the conclusion that the others are also present.
The problem in applying the foregoing standards is that the American concept of judicial review is
radically different from our current concept, for Section 1, Article VIII of the Constitution provides our
courts with far less discretion in determining whether they should pass upon a constitutional issue.
In our jurisdiction, the determination of a truly political question from a non-justiciable political
question lies in the answer to the question of whether there are constitutionally imposed limits on
powers or functions conferred upon political bodies. If there are, then our courts are duty-bound to
examine whether the branch or instrumentality of the government properly acted within such limits.
This Court shall thus now apply this standard to the present controversy.
These petitions raise five substantial issues:
I. Whether the offenses alleged in the Second impeachment complaint constitute valid
impeachable offenses under the Constitution.
II. Whether the second impeachment complaint was filed in accordance with Section 3(4),
Article XI of the Constitution.
III. Whether the legislative inquiry by the House Committee on Justice into the Judicial
Development Fund is an unconstitutional infringement of the constitutionally mandated fiscal
autonomy of the judiciary.
IV. Whether Sections 15 and 16 of Rule V of the Rules on Impeachment adopted by the 12th
Congress are unconstitutional for violating the provisions of Section 3, Article XI of the
Constitution.
V. Whether the second impeachment complaint is barred under Section 3(5) of Article XI of
the Constitution.
The first issue goes into the merits of the second impeachment complaint over which this
Court has no jurisdiction. More importantly, any discussion of this issue would require this
Court to make a determination of what constitutes an impeachable offense. Such a
determination is a purely political question which the Constitution has left to the sound
discretion of the legislation. Such an intent is clear from the deliberations of the
Constitutional Commission.113
Although Section 2 of Article XI of the Constitution enumerates six grounds for impeachment, two of
these, namely, other high crimes and betrayal of public trust, elude a precise definition. In fact, an
examination of the records of the 1986 Constitutional Commission shows that the framers could find
no better way to approximate the boundaries of betrayal of public trust and other high crimes than by
alluding to both positive and negative examples of both, without arriving at their clear cut definition or
even a standard therefor.114 Clearly, the issue calls upon this court to decide a non-justiciable political
question which is beyond the scope of its judicial power under Section 1, Article VIII.
Lis Mota
It is a well-settled maxim of adjudication that an issue assailing the constitutionality of a

governmental act should be avoided whenever possible. Thus, in the case of Sotto v. Commission
on Elections,115 this Court held:
x x x It is a well-established rule that a court should not pass upon a constitutional question
and decide a law to be unconstitutional or invalid, unless such question is raised by the
parties and that when it is raised, if the record also presents some other ground upon
which the court may rest its judgment, that course will be adopted and the
constitutional question will be left for consideration until a case arises in which a
decision upon such question will be unavoidable.116 [Emphasis and underscoring
supplied]
The same principle was applied in Luz Farms v. Secretary of Agrarian Reform,117 where this Court
invalidated Sections 13 and 32 of Republic Act No. 6657 for being confiscatory and violative of due
process, to wit:
It has been established that this Court will assume jurisdiction over a constitutional
question only if it is shown that the essential requisites of a judicial inquiry into such
a question are first satisfied. Thus, there must be an actual case or controversy involving a
conflict of legal rights susceptible of judicial determination, the constitutional question must
have been opportunely raised by the proper party, and the resolution of the question is
unavoidably necessary to the decision of the case itself.118 [Emphasis supplied]
Succinctly put, courts will not touch the issue of constitutionality unless it is truly unavoidable and is
the very lis mota or crux of the controversy.
As noted earlier, the instant consolidated petitions, while all seeking the invalidity of the second
impeachment complaint, collectively raise several constitutional issues upon which the outcome of
this controversy could possibly be made to rest. In determining whether one, some or all of the
remaining substantial issues should be passed upon, this Court is guided by the related cannon of
adjudication that "the court should not form a rule of constitutional law broader than is required by
the precise facts to which it is applied."119
In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among other reasons, the
second impeachment complaint is invalid since it directly resulted from a Resolution120 calling for a
legislative inquiry into the JDF, which Resolution and legislative inquiry petitioners claim to likewise
be unconstitutional for being: (a) a violation of the rules and jurisprudence on investigations in aid of
legislation; (b) an open breach of the doctrine of separation of powers; (c) a violation of the
constitutionally mandated fiscal autonomy of the judiciary; and (d) an assault on the independence of
the judiciary.121
Without going into the merits of petitioners Alfonso, et. al.'s claims, it is the studied opinion of this
Court that the issue of the constitutionality of the said Resolution and resulting legislative inquiry is
too far removed from the issue of the validity of the second impeachment complaint. Moreover, the
resolution of said issue would, in the Court's opinion, require it to form a rule of constitutional law
touching on the separate and distinct matter of legislative inquiries in general, which would thus be
broader than is required by the facts of these consolidated cases. This opinion is further
strengthened by the fact that said petitioners have raised other grounds in support of their petition
which would not be adversely affected by the Court's ruling.
En passant, this Court notes that a standard for the conduct of legislative inquiries has already been
enunciated by this Court in Bengzon, Jr. v. Senate Blue Ribbon Commttee,122 viz:
The 1987 Constitution expressly recognizes the power of both houses of Congress to
conduct inquiries in aid of legislation. Thus, Section 21, Article VI thereof provides:
The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by such inquiries shall be
respected.
The power of both houses of Congress to conduct inquiries in aid of legislation is not,
therefore absolute or unlimited. Its exercise is circumscribed by the afore-quoted provision of
the Constitution. Thus, as provided therein, the investigation must be "in aid of legislation in
accordance with its duly published rules of procedure" and that "the rights of persons
appearing in or affected by such inquiries shall be respected." It follows then that the right
rights of persons under the Bill of Rights must be respected, including the right to due
process and the right not be compelled to testify against one's self.123
In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino Quadra, while joining the
original petition of petitioners Candelaria, et. al., introduce the new argument that since the second
impeachment complaint was verified and filed only by Representatives Gilberto Teodoro, Jr. and
Felix William Fuentebella, the same does not fall under the provisions of Section 3 (4), Article XI of
the Constitution which reads:
Section 3(4) In case the verified complaint or resolution of impeachment is filed by at least
one-third of all the Members of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.
They assert that while at least 81 members of the House of Representatives signed a Resolution of
Endorsement/Impeachment, the same did not satisfy the requisites for the application of the afore-
mentioned section in that the "verified complaint or resolution of impeachment" was not filed "by at
least one-third of all the Members of the House." With the exception of Representatives Teodoro and
Fuentebella, the signatories to said Resolution are alleged to have verified the same merely as a
"Resolution of Endorsement." Intervenors point to the "Verification" of the Resolution of
Endorsement which states that:
"We are the proponents/sponsors of the Resolution of Endorsement of the abovementioned

Complaint of Representatives Gilberto Teodoro and Felix William B. Fuentebella x x x"124
Intervenors Macalintal and Quadra further claim that what the Constitution requires in order for said
second impeachment complaint to automatically become the Articles of Impeachment and for trial in
the Senate to begin "forthwith," is that the verified complaint be "filed," not merely endorsed, by at
least one-third of the Members of the House of Representatives. Not having complied with this
requirement, they concede that the second impeachment complaint should have been calendared
and referred to the House Committee on Justice under Section 3(2), Article XI of the
Constitution, viz:
Section 3(2) A verified complaint for impeachment may be filed by any Member of the House
of Representatives or by any citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business within ten session days, and
referred to the proper Committee within three session days thereafter. The Committee, after
hearing, and by a majority vote of all its Members, shall submit its report to the House within
sixty session days from such referral, together with the corresponding resolution. The
resolution shall be calendared for consideration by the House within ten session days from
receipt thereof.
Intervenors' foregoing position is echoed by Justice Maambong who opined that for Section 3 (4),
Article XI of the Constitution to apply, there should be 76 or more representatives who signed and
verified the second impeachment complaint as complainants, signed and verified the signatories to a
resolution of impeachment. Justice Maambong likewise asserted that the Resolution of
Endorsement/Impeachment signed by at least one-third of the members of the House of
Representatives as endorsers is not the resolution of impeachment contemplated by the
Constitution, such resolution of endorsement being necessary only from at least one Member
whenever a citizen files a verified impeachment complaint.
While the foregoing issue, as argued by intervenors Macalintal and Quadra, does indeed limit the
scope of the constitutional issues to the provisions on impeachment, more compelling considerations
militate against its adoption as the lis mota or crux of the present controversy. Chief among this is
the fact that only Attorneys Macalintal and Quadra, intervenors in G.R. No. 160262, have raised this
issue as a ground for invalidating the second impeachment complaint. Thus, to adopt this additional
ground as the basis for deciding the instant consolidated petitions would not only render for naught
the efforts of the original petitioners in G.R. No. 160262, but the efforts presented by the other
petitioners as well.
Again, the decision to discard the resolution of this issue as unnecessary for the determination of the
instant cases is made easier by the fact that said intervenors Macalintal and Quadra have joined in
the petition of Candelaria, et. al., adopting the latter's arguments and issues as their own.
Consequently, they are not unduly prejudiced by this Court's decision.
In sum, this Court holds that the two remaining issues, inextricably linked as they are, constitute the
very lis mota of the instant controversy: (1) whether Sections 15 and 16 of Rule V of the House
Impeachment Rules adopted by the 12th Congress are unconstitutional for violating the provisions of
Section 3, Article XI of the Constitution; and (2) whether, as a result thereof, the second
impeachment complaint is barred under Section 3(5) of Article XI of the Constitution.
Judicial Restraint
Senator Pimentel urges this Court to exercise judicial restraint on the ground that the Senate, sitting
as an impeachment court, has the sole power to try and decide all cases of impeachment. Again,
this Court reiterates that the power of judicial review includes the power of review over justiciable
issues in impeachment proceedings.
On the other hand, respondents Speaker De Venecia et. al. argue that "[t]here is a moral compulsion
for the Court to not assume jurisdiction over the impeachment because all the Members thereof are
subject to impeachment."125But this argument is very much like saying the Legislature has a moral
compulsion not to pass laws with penalty clauses because Members of the House of
Representatives are subject to them.
The exercise of judicial restraint over justiciable issues is not an option before this Court.
Adjudication may not be declined, because this Court is not legally disqualified. Nor can jurisdiction
be renounced as there is no other tribunal to which the controversy may be referred."126 Otherwise,
this Court would be shirking from its duty vested under Art. VIII, Sec. 1(2) of the Constitution. More
than being clothed with authority thus, this Court is duty-bound to take cognizance of the instant
petitions.127 In the august words of amicus curiae Father Bernas, "jurisdiction is not just a power; it is
a solemn duty which may not be renounced. To renounce it, even if it is vexatious, would be a
dereliction of duty."
Even in cases where it is an interested party, the Court under our system of government cannot
inhibit itself and must rule upon the challenge because no other office has the authority to do
so.128 On the occasion that this Court had been an interested party to the controversy before it, it has
acted upon the matter "not with officiousness but in the discharge of an unavoidable duty and, as
always, with detachment and fairness."129 After all, "by [his] appointment to the office, the public has
laid on [a member of the judiciary] their confidence that [he] is mentally and morally fit to pass upon
the merits of their varied contentions. For this reason, they expect [him] to be fearless in [his] pursuit
to render justice, to be unafraid to displease any person, interest or power and to be equipped with a
moral fiber strong enough to resist the temptations lurking in [his] office."130
The duty to exercise the power of adjudication regardless of interest had already been settled in the
case of Abbas v. Senate Electoral Tribunal.131 In that case, the petitioners filed with the respondent
Senate Electoral Tribunal a Motion for Disqualification or Inhibition of the Senators-Members thereof
from the hearing and resolution of SET Case No. 002-87 on the ground that all of them were
interested parties to said case as respondents therein. This would have reduced the Tribunal's
membership to only its three Justices-Members whose disqualification was not sought, leaving them
to decide the matter. This Court held:
Where, as here, a situation is created which precludes the substitution of any Senator sitting
in the Tribunal by any of his other colleagues in the Senate without inviting the same
objections to the substitute's competence, the proposed mass disqualification, if sanctioned
and ordered, would leave the Tribunal no alternative but to abandon a duty that no other
court or body can perform, but which it cannot lawfully discharge if shorn of the participation
of its entire membership of Senators.
To our mind, this is the overriding consideration — that the Tribunal be not prevented from
discharging a duty which it alone has the power to perform, the performance of which is in
the highest public interest as evidenced by its being expressly imposed by no less than the
fundamental law.
It is aptly noted in the first of the questioned Resolutions that the framers of the Constitution
could not have been unaware of the possibility of an election contest that would involve all
Senators—elect, six of whom would inevitably have to sit in judgment thereon. Indeed, such
possibility might surface again in the wake of the 1992 elections when once more, but for the
last time, all 24 seats in the Senate will be at stake. Yet the Constitution provides no scheme
or mode for settling such unusual situations or for the substitution of Senators designated to
the Tribunal whose disqualification may be sought. Litigants in such situations must simply
place their trust and hopes of vindication in the fairness and sense of justice of the Members
of the Tribunal. Justices and Senators, singly and collectively.
Let us not be misunderstood as saying that no Senator-Member of the Senate Electoral

Tribunal may inhibit or disqualify himself from sitting in judgment on any case before said
Tribunal. Every Member of the Tribunal may, as his conscience dictates, refrain from
participating in the resolution of a case where he sincerely feels that his personal interests or
biases would stand in the way of an objective and impartial judgment. What we are merely
saying is that in the light of the Constitution, the Senate Electoral Tribunal cannot legally
function as such, absent its entire membership of Senators and that no amendment of its
Rules can confer on the three Justices-Members alone the power of valid adjudication of a
senatorial election contest.
More recently in the case of Estrada v. Desierto,132 it was held that:

Moreover, to disqualify any of the members of the Court, particularly a majority of them, is
nothing short of pro tanto depriving the Court itself of its jurisdiction as established by the
fundamental law. Disqualification of a judge is a deprivation of his judicial power. And if that
judge is the one designated by the Constitution to exercise the jurisdiction of his court, as is
the case with the Justices of this Court, the deprivation of his or their judicial power is
equivalent to the deprivation of the judicial power of the court itself. It affects the very heart of
judicial independence. The proposed mass disqualification, if sanctioned and ordered, would
leave the Court no alternative but to abandon a duty which it cannot lawfully discharge if
shorn of the participation of its entire membership of Justices.133 (Italics in the original)
Besides, there are specific safeguards already laid down by the Court when it exercises its power of
judicial review.
In Demetria v. Alba,134 this Court, through Justice Marcelo Fernan cited the "seven pillars" of
limitations of the power of judicial review, enunciated by US Supreme Court Justice Brandeis
in Ashwander v. TVA135 as follows:
1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary
proceeding, declining because to decide such questions 'is legitimate only in the last resort,
and as a necessity in the determination of real, earnest and vital controversy between
individuals. It never was the thought that, by means of a friendly suit, a party beaten in the
legislature could transfer to the courts an inquiry as to the constitutionality of the legislative
act.'
2. The Court will not 'anticipate a question of constitutional law in advance of the necessity of
deciding it.' . . . 'It is not the habit of the Court to decide questions of a constitutional nature
unless absolutely necessary to a decision of the case.'
3. The Court will not 'formulate a rule of constitutional law broader than is required by the
precise facts to which it is to be applied.'
4. The Court will not pass upon a constitutional question although properly presented by the
record, if there is also present some other ground upon which the case may be disposed of.
This rule has found most varied application. Thus, if a case can be decided on either of two
grounds, one involving a constitutional question, the other a question of statutory
construction or general law, the Court will decide only the latter. Appeals from the highest
court of a state challenging its decision of a question under the Federal Constitution are
frequently dismissed because the judgment can be sustained on an independent state
ground.
5. The Court will not pass upon the validity of a statute upon complaint of one who fails to
show that he is injured by its operation. Among the many applications of this rule, none is
more striking than the denial of the right of challenge to one who lacks a personal or property
right. Thus, the challenge by a public official interested only in the performance of his official
duty will not be entertained . . . In Fairchild v. Hughes, the Court affirmed the dismissal of a
suit brought by a citizen who sought to have the Nineteenth Amendment declared
unconstitutional. In Massachusetts v. Mellon, the challenge of the federal Maternity Act was
not entertained although made by the Commonwealth on behalf of all its citizens.
6. The Court will not pass upon the constitutionality of a statute at the instance of one who
has availed himself of its benefits.
7. When the validity of an act of the Congress is drawn in question, and even if a serious
doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain
whether a construction of the statute is fairly possible by which the question may be avoided
(citations omitted).
The foregoing "pillars" of limitation of judicial review, summarized in Ashwander v. TVA from

different decisions of the United States Supreme Court, can be encapsulated into the following
categories:
1. that there be absolute necessity of deciding a case
2. that rules of constitutional law shall be formulated only as required by the facts of the case
3. that judgment may not be sustained on some other ground
4. that there be actual injury sustained by the party by reason of the operation of the statute
5. that the parties are not in estoppel
6. that the Court upholds the presumption of constitutionality.
As stated previously, parallel guidelines have been adopted by this Court in the exercise of judicial
review:
1. actual case or controversy calling for the exercise of judicial power
2. the person challenging the act must have "standing" to challenge; he must have a
personal and substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement
3. the question of constitutionality must be raised at the earliest possible opportunity
4. the issue of constitutionality must be the very lis mota of the case.136
Respondents Speaker de Venecia, et. al. raise another argument for judicial restraint the possibility
that "judicial review of impeachments might also lead to embarrassing conflicts between the
Congress and the [J]udiciary." They stress the need to avoid the appearance of impropriety or
conflicts of interest in judicial hearings, and the scenario that it would be confusing and humiliating
and risk serious political instability at home and abroad if the judiciary countermanded the vote of
Congress to remove an impeachable official.137 Intervenor Soriano echoes this argument by alleging
that failure of this Court to enforce its Resolution against Congress would result in the diminution of
its judicial authority and erode public confidence and faith in the judiciary.
Such an argument, however, is specious, to say the least. As correctly stated by the Solicitor
General, the possibility of the occurrence of a constitutional crisis is not a reason for this Court to
refrain from upholding the Constitution in all impeachment cases. Justices cannot abandon their
constitutional duties just because their action may start, if not precipitate, a crisis.
Justice Feliciano warned against the dangers when this Court refuses to act.
x x x Frequently, the fight over a controversial legislative or executive act is not regarded as
settled until the Supreme Court has passed upon the constitutionality of the act involved, the
judgment has not only juridical effects but also political consequences. Those political
consequences may follow even where the Court fails to grant the petitioner's prayer to nullify
an act for lack of the necessary number of votes. Frequently, failure to act explicitly, one way
or the other, itself constitutes a decision for the respondent and validation, or at least quasi-
validation, follows." 138
Thus, in Javellana v. Executive Secretary139 where this Court was split and "in the end there were not
enough votes either to grant the petitions, or to sustain respondent's claims,"140 the pre-existing
constitutional order was disrupted which paved the way for the establishment of the martial law
regime.
Such an argument by respondents and intervenor also presumes that the coordinate branches of the
government would behave in a lawless manner and not do their duty under the law to uphold the
Constitution and obey the laws of the land. Yet there is no reason to believe that any of the branches
of government will behave in a precipitate manner and risk social upheaval, violence, chaos and
anarchy by encouraging disrespect for the fundamental law of the land.
Substituting the word public officers for judges, this Court is well guided by the doctrine in People v.
Veneracion, to wit:141
Obedience to the rule of law forms the bedrock of our system of justice. If [public officers],
under the guise of religious or political beliefs were allowed to roam unrestricted beyond
boundaries within which they are required by law to exercise the duties of their office, then
law becomes meaningless. A government of laws, not of men excludes the exercise of broad
discretionary powers by those acting under its authority. Under this system, [public officers]
are guided by the Rule of Law, and ought "to protect and enforce it without fear or favor,"
resist encroachments by governments, political parties, or even the interference of their own
personal beliefs.142
Constitutionality of the Rules of Procedure

for Impeachment Proceedings
adopted by the 12th Congress
Respondent House of Representatives, through Speaker De Venecia, argues that Sections 16 and
17 of Rule V of the House Impeachment Rules do not violate Section 3 (5) of Article XI of our
present Constitution, contending that the term "initiate" does not mean "to file;" that Section 3 (1) is
clear in that it is the House of Representatives, as a collective body, which has the exclusive power
to initiate all cases of impeachment; that initiate could not possibly mean "to file" because filing can,
as Section 3 (2), Article XI of the Constitution provides, only be accomplished in 3 ways, to wit: (1)
by a verified complaint for impeachment by any member of the House of Representatives; or (2) by
any citizen upon a resolution of endorsement by any member; or (3) by at least 1/3 of all the
members of the House. Respondent House of Representatives concludes that the one year bar
prohibiting the initiation of impeachment proceedings against the same officials could not have been
violated as the impeachment complaint against Chief Justice Davide and seven Associate Justices
had not been initiated as the House of Representatives, acting as the collective body, has yet to act
on it.
The resolution of this issue thus hinges on the interpretation of the term "initiate." Resort to statutory
construction is, therefore, in order.
That the sponsor of the provision of Section 3(5) of the Constitution, Commissioner Florenz
Regalado, who eventually became an Associate Justice of this Court, agreed on the meaning of
"initiate" as "to file," as proffered and explained by Constitutional Commissioner Maambong during
the Constitutional Commission proceedings, which he (Commissioner Regalado) as amicus
curiae affirmed during the oral arguments on the instant petitions held on November 5, 2003 at
which he added that the act of "initiating" included the act of taking initial action on the complaint,
dissipates any doubt that indeed the word "initiate" as it twice appears in Article XI (3) and (5) of the
Constitution means to file the complaint and take initial action on it.
"Initiate" of course is understood by ordinary men to mean, as dictionaries do, to begin, to

commence, or set going. As Webster's Third New International Dictionary of the English Language
concisely puts it, it means "to perform or facilitate the first action," which jibes with Justice
Regalado's position, and that of Father Bernas, who elucidated during the oral arguments of the
instant petitions on November 5, 2003 in this wise:
Briefly then, an impeachment proceeding is not a single act. It is a comlexus of acts

consisting of a beginning, a middle and an end. The end is the transmittal of the articles of
impeachment to the Senate. The middle consists of those deliberative moments leading to
the formulation of the articles of impeachment. The beginning or the initiation is the filing of
the complaint and its referral to the Committee on Justice.
Finally, it should be noted that the House Rule relied upon by Representatives Cojuangco
and Fuentebella says that impeachment is "deemed initiated" when the Justice Committee
votes in favor of impeachment or when the House reverses a contrary vote of the
Committee. Note that the Rule does not say "impeachment proceedings" are initiated but
rather are "deemed initiated." The language is recognition that initiation happened earlier, but
by legal fiction there is an attempt to postpone it to a time after actual initiation. (Emphasis
and underscoring supplied)
As stated earlier, one of the means of interpreting the Constitution is looking into the intent of the
law. Fortunately, the intent of the framers of the 1987 Constitution can be pried from its records:
MR. MAAMBONG. With reference to Section 3, regarding the procedure and the substantive
provisions on impeachment, I understand there have been many proposals and, I think,
these would need some time for Committee action.
However, I would just like to indicate that I submitted to the Committee a resolution on
impeachment proceedings, copies of which have been furnished the Members of this body.
This is borne out of my experience as a member of the Committee on Justice, Human Rights
and Good Government which took charge of the last impeachment resolution filed before the
First Batasang Pambansa. For the information of the Committee, the resolution covers
several steps in the impeachment proceedings starting with initiation, action of the
Speaker committee action, calendaring of report, voting on the report, transmittal
referral to the Senate, trial and judgment by the Senate.
xxx
MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration of the
approval of the amendment submitted by Commissioner Regalado, but I will just make of
record my thinking that we do not really initiate the filing of the Articles of Impeachment on
the floor. The procedure, as I have pointed out earlier, was that the initiation starts with
the filing of the complaint. And what is actually done on the floor is that the committee
resolution containing the Articles of Impeachment is the one approved by the body.
As the phraseology now runs, which may be corrected by the Committee on Style, it appears
that the initiation starts on the floor. If we only have time, I could cite examples in the case of
the impeachment proceedings of President Richard Nixon wherein the Committee on the
Judiciary submitted the recommendation, the resolution, and the Articles of Impeachment to
the body, and it was the body who approved the resolution. It is not the body which
initiates it. It only approves or disapproves the resolution. So, on that score, probably
the Committee on Style could help in rearranging these words because we have to be very
technical about this. I have been bringing with me The Rules of the House of
Representatives of the U.S. Congress. The Senate Rules are with me. The proceedings on
the case of Richard Nixon are with me. I have submitted my proposal, but the Committee has
already decided. Nevertheless, I just want to indicate this on record.
xxx
MR. MAAMBONG. I would just like to move for a reconsideration of the approval of Section 3
(3). My reconsideration will not at all affect the substance, but it is only in keeping with the
exact formulation of the Rules of the House of Representatives of the United States
regarding impeachment.
I am proposing, Madam President, without doing damage to any of this provision, that on
page 2, Section 3 (3), from lines 17 to 18, we delete the words which read: "to initiate
impeachment proceedings" and the comma (,) and insert on line 19 after the word
"resolution" the phrase WITH THE ARTICLES, and then capitalize the letter "i" in
"impeachment" and replace the word "by" with OF, so that the whole section will now read:
"A vote of at least one-third of all the Members of the House shall be necessary either to
affirm a resolution WITH THE ARTICLES of Impeachment OF the Committee or to override
its contrary resolution. The vote of each Member shall be recorded."
I already mentioned earlier yesterday that the initiation, as far as the House of
Representatives of the United States is concerned, really starts from the filing of the
verified complaint and every resolution to impeach always carries with it the Articles of
Impeachment. As a matter of fact, the words "Articles of Impeachment" are mentioned on
line 25 in the case of the direct filing of a verified compliant of one-third of all the Members of
the House. I will mention again, Madam President, that my amendment will not vary the
substance in any way. It is only in keeping with the uniform procedure of the House of
Representatives of the United States Congress. Thank you, Madam President.143 (Italics in
the original; emphasis and udnerscoring supplied)
This amendment proposed by Commissioner Maambong was clarified and accepted by the
Committee on the Accountability of Public Officers.144
It is thus clear that the framers intended "initiation" to start with the filing of the complaint. In
his amicus curiae brief, Commissioner Maambong explained that "the obvious reason in deleting the
phrase "to initiate impeachment proceedings" as contained in the text of the provision of Section
3 (3) was to settle and make it understood once and for all that the initiation of impeachment
proceedings starts with the filing of the complaint, and the vote of one-third of the House in a
resolution of impeachment does not initiate the impeachment proceedings which was already
initiated by the filing of a verified complaint under Section 3, paragraph (2), Article XI of the
Constitution."145
Amicus curiae Constitutional Commissioner Regalado is of the same view as is Father Bernas, who
was also a member of the 1986 Constitutional Commission, that the word "initiate" as used in Article
XI, Section 3(5) means to file, both adding, however, that the filing must be accompanied by an
action to set the complaint moving.
During the oral arguments before this Court, Father Bernas clarified that the word "initiate,"
appearing in the constitutional provision on impeachment, viz:
Section 3 (1) The House of Representatives shall have the exclusive power to initiate all
cases of impeachment.
xxx
within a period of one year, (Emphasis supplied)
refers to two objects, "impeachment case" and "impeachment proceeding."
Father Bernas explains that in these two provisions, the common verb is "to initiate." The object in
the first sentence is "impeachment case." The object in the second sentence is "impeachment
proceeding." Following the principle of reddendo singuala sinuilis, the term "cases" must be
distinguished from the term "proceedings." An impeachment case is the legal controversy that must
be decided by the Senate. Above-quoted first provision provides that the House, by a vote of one-
third of all its members, can bring a case to the Senate. It is in that sense that the House has
"exclusive power" to initiate all cases of impeachment. No other body can do it. However, before a
decision is made to initiate a case in the Senate, a "proceeding" must be followed to arrive at a
conclusion. A proceeding must be "initiated." To initiate, which comes from the Latin word initium,
means to begin. On the other hand, proceeding is a progressive noun. It has a beginning, a middle,
and an end. It takes place not in the Senate but in the House and consists of several steps: (1) there
is the filing of a verified complaint either by a Member of the House of Representatives or by a
private citizen endorsed by a Member of the House of the Representatives; (2) there is the
processing of this complaint by the proper Committee which may either reject the complaint or
uphold it; (3) whether the resolution of the Committee rejects or upholds the complaint, the resolution
must be forwarded to the House for further processing; and (4) there is the processing of the same
complaint by the House of Representatives which either affirms a favorable resolution of the
Committee or overrides a contrary resolution by a vote of one-third of all the members. If at least one
third of all the Members upholds the complaint, Articles of Impeachment are prepared and
transmitted to the Senate. It is at this point that the House "initiates an impeachment case." It is at
this point that an impeachable public official is successfully impeached. That is, he or she is
successfully charged with an impeachment "case" before the Senate as impeachment court.
Father Bernas further explains: The "impeachment proceeding" is not initiated when the complaint is
transmitted to the Senate for trial because that is the end of the House proceeding and the beginning
of another proceeding, namely the trial. Neither is the "impeachment proceeding" initiated when the
House deliberates on the resolution passed on to it by the Committee, because something prior to
that has already been done. The action of the House is already a further step in the proceeding, not
its initiation or beginning. Rather, the proceeding is initiated or begins, when a verified complaint is
filed and referred to the Committee on Justice for action. This is the initiating step which triggers the
series of steps that follow.
The framers of the Constitution also understood initiation in its ordinary meaning. Thus when a
proposal reached the floor proposing that "A vote of at least one-third of all the Members of the
House shall be necessary… to initiate impeachment proceedings," this was met by a proposal to
delete the line on the ground that the vote of the House does not initiate impeachment proceeding
but rather the filing of a complaint does.146 Thus the line was deleted and is not found in the present
Constitution.
Father Bernas concludes that when Section 3 (5) says, "No impeachment proceeding shall be
initiated against the same official more than once within a period of one year," it means that no
second verified complaint may be accepted and referred to the Committee on Justice for action. By
his explanation, this interpretation is founded on the common understanding of the meaning of "to
initiate" which means to begin. He reminds that the Constitution is ratified by the people, both
ordinary and sophisticated, as they understand it; and that ordinary people read ordinary meaning
into ordinary words and not abstruse meaning, they ratify words as they understand it and not as
sophisticated lawyers confuse it.
To the argument that only the House of Representatives as a body can initiate impeachment
proceedings because Section 3 (1) says "The House of Representatives shall have the exclusive
power to initiate all cases of impeachment," This is a misreading of said provision and is contrary to
the principle of reddendo singula singulis by equating "impeachment cases" with "impeachment
proceeding."
From the records of the Constitutional Commission, to the amicus curiae briefs of two former
Constitutional Commissioners, it is without a doubt that the term "to initiate" refers to the filing of the
impeachment complaint coupled with Congress' taking initial action of said complaint.
Having concluded that the initiation takes place by the act of filing and referral or endorsement of the
impeachment complaint to the House Committee on Justice or, by the filing by at least one-third of
the members of the House of Representatives with the Secretary General of the House, the meaning
of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated,
another impeachment complaint may not be filed against the same official within a one year period.
Under Sections 16 and 17 of Rule V of the House Impeachment Rules, impeachment proceedings
are deemed initiated (1) if there is a finding by the House Committee on Justice that the verified
complaint and/or resolution is sufficient in substance, or (2) once the House itself affirms or
overturns the finding of the Committee on Justice that the verified complaint and/or resolution is not
sufficient in substance or (3) by the filing or endorsement before the Secretary-General of the House
of Representatives of a verified complaint or a resolution of impeachment by at least 1/3 of the
members of the House. These rules clearly contravene Section 3 (5) of Article XI since the rules give
the term "initiate" a meaning different meaning from filing and referral.
In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court could not use
contemporaneous construction as an aid in the interpretation of Sec.3 (5) of Article XI, citing Vera v.
Avelino147 wherein this Court stated that "their personal opinions (referring to Justices who were
delegates to the Constitution Convention) on the matter at issue expressed during this Court's our
deliberations stand on a different footing from the properly recorded utterances of debates and
proceedings." Further citing said case, he states that this Court likened the former members of the
Constitutional Convention to actors who are so absorbed in their emotional roles that intelligent
spectators may know more about the real meaning because of the latter's balanced perspectives
and disinterestedness.148
Justice Gutierrez's statements have no application in the present petitions. There are at present only
two members of this Court who participated in the 1986 Constitutional Commission – Chief Justice
Davide and Justice Adolf Azcuna. Chief Justice Davide has not taken part in these proceedings for
obvious reasons. Moreover, this Court has not simply relied on the personal opinions now given by
members of the Constitutional Commission, but has examined the records of the deliberations and
proceedings thereof.
Respondent House of Representatives counters that under Section 3 (8) of Article XI, it is clear and
unequivocal that it and only it has the power to make and interpret its rules governing impeachment.
Its argument is premised on the assumption that Congress has absolute power to promulgate its
rules. This assumption, however, is misplaced.
Section 3 (8) of Article XI provides that "The Congress shall promulgate its rules on impeachment to
effectively carry out the purpose of this section." Clearly, its power to promulgate its rules on
impeachment is limited by the phrase "to effectively carry out the purpose of this section." Hence,
these rules cannot contravene the very purpose of the Constitution which said rules were intended to
effectively carry out. Moreover, Section 3 of Article XI clearly provides for other specific limitations on
its power to make rules, viz:
Section 3. (1) x x x
(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member thereof,
which shall be included in the Order of Business within ten session days, and referred to the
proper Committee within three session days thereafter. The Committee, after hearing, and by
a majority vote of all its Members, shall submit its report to the House within sixty session
days from such referral, together with the corresponding resolution. The resolution shall be
calendared for consideration by the House within ten session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the House shall be necessary to either
affirm a favorable resolution with the Articles of Impeachment of the Committee, or override
its contrary resolution. The vote of each Member shall be recorded.
(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of
all the Members of the House, the same shall constitute the Articles of Impeachment, and
trial by the Senate shall forthwith proceed.
within a period of one year.
It is basic that all rules must not contravene the Constitution which is the fundamental law. If as
alleged Congress had absolute rule making power, then it would by necessary implication have the
power to alter or amend the meaning of the Constitution without need of referendum.
In Osmeña v. Pendatun,149 this Court held that it is within the province of either House of Congress to
interpret its rules and that it was the best judge of what constituted "disorderly behavior" of its
members. However, in Paceta v. Secretary of the Commission on Appointments,150 Justice (later
Chief Justice) Enrique Fernando, speaking for this Court and quoting Justice Brandeis in United
States v. Smith,151 declared that where the construction to be given to a rule affects persons other
than members of the Legislature, the question becomes judicial in nature. In Arroyo v. De
Venecia,152 quoting United States v. Ballin, Joseph & Co.,153 Justice Vicente Mendoza, speaking for
this Court, held that while the Constitution empowers each house to determine its rules of
proceedings, it may not by its rules ignore constitutional restraints or violate fundamental rights, and
further that there should be a reasonable relation between the mode or method of proceeding
established by the rule and the result which is sought to be attained. It is only within these limitations
that all matters of method are open to the determination of the Legislature. In the same case
of Arroyo v. De Venecia, Justice Reynato S. Puno, in his Concurring and Dissenting Opinion, was
even more emphatic as he stressed that in the Philippine setting there is even more reason for
courts to inquire into the validity of the Rules of Congress, viz:
With due respect, I do not agree that the issues posed by the petitioner are non-
justiciable. Nor do I agree that we will trivialize the principle of separation of power if
we assume jurisdiction over he case at bar. Even in the United States, the principle of
separation of power is no longer an impregnable impediment against the interposition of
judicial power on cases involving breach of rules of procedure by legislators.
Rightly, the ponencia uses the 1891 case of US v Ballin (144 US 1) as a window to view the
issues before the Court. It is in Ballin where the US Supreme Court first defined the
boundaries of the power of the judiciary to review congressional rules. It held:
"x x x
"The Constitution, in the same section, provides, that each house may determine the rules of
its proceedings." It appears that in pursuance of this authority the House had, prior to that
day, passed this as one of its rules:
Rule XV
3. On the demand of any member, or at the suggestion of the Speaker, the names of
members sufficient to make a quorum in the hall of the House who do not vote shall be noted
by the clerk and recorded in the journal, and reported to the Speaker with the names of the
members voting, and be counted and announced in determining the presence of a quorum to
do business. (House Journal, 230, Feb. 14, 1890)
The action taken was in direct compliance with this rule. The question, therefore, is as to
the validity of this rule, and not what methods the Speaker may of his own motion resort to
for determining the presence of a quorum, nor what matters the Speaker or clerk may of their
own volition place upon the journal. Neither do the advantages or disadvantages, the
wisdom or folly, of such a rule present any matters for judicial consideration. With the courts
the question is only one of power. The Constitution empowers each house to determine
its rules of proceedings. It may not by its rules ignore constitutional restraints or
violate fundamental rights, and there should be a reasonable relation between the
mode or method of proceedings established by the rule and the result which is
sought to be attained. But within these limitations all matters of method are open to the
determination of the House, and it is no impeachment of the rule to say that some other way
would be better, more accurate, or even more just. It is no objection to the validity of a rule
that a different one has been prescribed and in force for a length of time. The power to make
rules is not one which once exercised is exhausted. It is a continuous power, always subject
to be exercised by the House, and within the limitations suggested, absolute and beyond the
challenge of any other body or tribunal."
Ballin, clearly confirmed the jurisdiction of courts to pass upon the validity of

congressional rules, i.e, whether they are constitutional. Rule XV was examined by the
Court and it was found to satisfy the test: (1) that it did not ignore any constitutional restraint;
(2) it did not violate any fundamental right; and (3) its method had a reasonable relationship
with the result sought to be attained. By examining Rule XV, the Court did not allow its
jurisdiction to be defeated by the mere invocation of the principle of separation of powers.154
xxx
In the Philippine setting, there is a more compelling reason for courts to categorically

reject the political question defense when its interposition will cover up abuse of
power. For section 1, Article VIII of our Constitution was intentionally cobbled to
empower courts "x x x to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government." This power is new and was not granted to our courts
in the 1935 and 1972 Constitutions. It was not also xeroxed from the US Constitution or
any foreign state constitution. The CONCOM granted this enormous power to our
courts in view of our experience under martial law where abusive exercises of state
power were shielded from judicial scrutiny by the misuse of the political question
doctrine. Led by the eminent former Chief Justice Roberto Concepcion, the CONCOM
expanded and sharpened the checking powers of the judiciary vis-à-vis the Executive and
the Legislative departments of government.155
xxx
The Constitution cannot be any clearer. What it granted to this Court is not a mere power
which it can decline to exercise. Precisely to deter this disinclination, the Constitution
imposed it as a duty of this Court to strike down any act of a branch or instrumentality
of government or any of its officials done with grave abuse of discretion amounting to
lack or excess of jurisdiction. Rightly or wrongly, the Constitution has elongated the
checking powers of this Court against the other branches of government despite their more
democratic character, the President and the legislators being elected by the people. 156
xxx
The provision defining judicial power as including the 'duty of the courts of justice. . . to
determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government'
constitutes the capstone of the efforts of the Constitutional Commission to upgrade the
powers of this court vis-à-vis the other branches of government. This provision was dictated
by our experience under martial law which taught us that a stronger and more independent
judiciary is needed to abort abuses in government. x x x
xxx
In sum, I submit that in imposing to this Court the duty to annul acts of government
committed with grave abuse of discretion, the new Constitution transformed this Court from
passivity to activism. This transformation, dictated by our distinct experience as nation, is not
merely evolutionary but revolutionary.Under the 1935 and the 1973 Constitutions, this Court
approached constitutional violations by initially determining what it cannot do; under the
1987 Constitution, there is a shift in stress – this Court is mandated to approach
constitutional violations not by finding out what it should not do but what
it must do. The Court must discharge this solemn duty by not resuscitating a past that
petrifies the present.
I urge my brethren in the Court to give due and serious consideration to this new
constitutional provision as the case at bar once more calls us to define the parameters of our
power to review violations of the rules of the House. We will not be true to our trust as the
last bulwark against government abuses if we refuse to exercise this new power or if
we wield it with timidity. To be sure, it is this exceeding timidity to unsheathe the
judicial sword that has increasingly emboldened other branches of government to
denigrate, if not defy, orders of our courts. In Tolentino, I endorsed the view of former
Senator Salonga that this novel provision stretching the latitude of judicial power is distinctly
Filipino and its interpretation should not be depreciated by undue reliance on inapplicable
foreign jurisprudence. In resolving the case at bar, the lessons of our own history should
provide us the light and not the experience of foreigners.157 (Italics in the original emphasis
and underscoring supplied)
Thus, the ruling in Osmena v. Pendatun is not applicable to the instant petitions. Here, the third
parties alleging the violation of private rights and the Constitution are involved.
Neither may respondent House of Representatives' rely on Nixon v. US158 as basis for arguing that
this Court may not decide on the constitutionality of Sections 16 and 17 of the House Impeachment
Rules. As already observed, the U.S. Federal Constitution simply provides that "the House of
Representatives shall have the sole power of impeachment." It adds nothing more. It gives no clue
whatsoever as to how this "sole power" is to be exercised. No limitation whatsoever is given. Thus,
the US Supreme Court concluded that there was a textually demonstrable constitutional commitment
of a constitutional power to the House of Representatives. This reasoning does not hold with regard
to impeachment power of the Philippine House of Representatives since our Constitution, as earlier
enumerated, furnishes several provisions articulating how that "exclusive power" is to be exercised.
The provisions of Sections 16 and 17 of Rule V of the House Impeachment Rules which state that
impeachment proceedings are deemed initiated (1) if there is a finding by the House Committee on
Justice that the verified complaint and/or resolution is sufficient in substance, or (2) once the House
itself affirms or overturns the finding of the Committee on Justice that the verified complaint and/or
resolution is not sufficient in substance or (3) by the filing or endorsement before the Secretary-
General of the House of Representatives of a verified complaint or a resolution of impeachment by
at least 1/3 of the members of the House thus clearly contravene Section 3 (5) of Article XI as they
give the term "initiate" a meaning different from "filing."
Validity of the Second Impeachment Complaint
Having concluded that the initiation takes place by the act of filing of the impeachment complaint and
referral to the House Committee on Justice, the initial action taken thereon, the meaning of Section 3
(5) of Article XI becomes clear. Once an impeachment complaint has been initiated in the foregoing
manner, another may not be filed against the same official within a one year period following Article
XI, Section 3(5) of the Constitution.
In fine, considering that the first impeachment complaint, was filed by former President Estrada
against Chief Justice Hilario G. Davide, Jr., along with seven associate justices of this Court, on
June 2, 2003 and referred to the House Committee on Justice on August 5, 2003, the second
impeachment complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix William
Fuentebella against the Chief Justice on October 23, 2003 violates the constitutional prohibition
against the initiation of impeachment proceedings against the same impeachable officer within a
one-year period.
Conclusion
If there is anything constant about this country, it is that there is always a phenomenon that takes the
center stage of our individual and collective consciousness as a people with our characteristic flair
for human drama, conflict or tragedy. Of course this is not to demean the seriousness of the
controversy over the Davide impeachment. For many of us, the past two weeks have proven to be
an exasperating, mentally and emotionally exhausting experience. Both sides have fought bitterly a
dialectical struggle to articulate what they respectively believe to be the correct position or view on
the issues involved. Passions had ran high as demonstrators, whether for or against the
impeachment of the Chief Justice, took to the streets armed with their familiar slogans and chants to
air their voice on the matter. Various sectors of society - from the business, retired military, to the
academe and denominations of faith – offered suggestions for a return to a state of normalcy in the
official relations of the governmental branches affected to obviate any perceived resulting instability
upon areas of national life.
Through all these and as early as the time when the Articles of Impeachment had been constituted,
this Court was specifically asked, told, urged and argued to take no action of any kind and form with
respect to the prosecution by the House of Representatives of the impeachment complaint against
the subject respondent public official. When the present petitions were knocking so to speak at the
doorsteps of this Court, the same clamor for non-interference was made through what are now the
arguments of "lack of jurisdiction," "non-justiciability," and "judicial self-restraint" aimed at halting the
Court from any move that may have a bearing on the impeachment proceedings.
This Court did not heed the call to adopt a hands-off stance as far as the question of the
constitutionality of initiating the impeachment complaint against Chief Justice Davide is concerned.
To reiterate what has been already explained, the Court found the existence in full of all the requisite
conditions for its exercise of its constitutionally vested power and duty of judicial review over an
issue whose resolution precisely called for the construction or interpretation of a provision of the
fundamental law of the land. What lies in here is an issue of a genuine constitutional material which
only this Court can properly and competently address and adjudicate in accordance with the clear-
cut allocation of powers under our system of government. Face-to-face thus with a matter or problem
that squarely falls under the Court's jurisdiction, no other course of action can be had but for it to
pass upon that problem head on.
The claim, therefore, that this Court by judicially entangling itself with the process of impeachment
has effectively set up a regime of judicial supremacy, is patently without basis in fact and in law.
This Court in the present petitions subjected to judicial scrutiny and resolved on the merits only the
main issue of whether the impeachment proceedings initiated against the Chief Justice transgressed
the constitutionally imposed one-year time bar rule. Beyond this, it did not go about assuming
jurisdiction where it had none, nor indiscriminately turn justiciable issues out of decidedly political
questions. Because it is not at all the business of this Court to assert judicial dominance over the
other two great branches of the government. Rather, the raison d'etre of the judiciary is to
complement the discharge by the executive and legislative of their own powers to bring about
ultimately the beneficent effects of having founded and ordered our society upon the rule of law.
It is suggested that by our taking cognizance of the issue of constitutionality of the impeachment
proceedings against the Chief Justice, the members of this Court have actually closed ranks to
protect a brethren. That the members' interests in ruling on said issue is as much at stake as is that
of the Chief Justice. Nothing could be farther from the truth.
The institution that is the Supreme Court together with all other courts has long held and been
entrusted with the judicial power to resolve conflicting legal rights regardless of the personalities
involved in the suits or actions. This Court has dispensed justice over the course of time, unaffected
by whomsoever stood to benefit or suffer therefrom, unfraid by whatever imputations or speculations
could be made to it, so long as it rendered judgment according to the law and the facts. Why can it
not now be trusted to wield judicial power in these petitions just because it is the highest ranking
magistrate who is involved when it is an incontrovertible fact that the fundamental issue is not him
but the validity of a government branch's official act as tested by the limits set by the Constitution?
Of course, there are rules on the inhibition of any member of the judiciary from taking part in a case
in specified instances. But to disqualify this entire institution now from the suit at bar is to regard the
Supreme Court as likely incapable of impartiality when one of its members is a party to a case,
which is simply a non sequitur.
No one is above the law or the Constitution. This is a basic precept in any legal system which
recognizes equality of all men before the law as essential to the law's moral authority and that of its
agents to secure respect for and obedience to its commands. Perhaps, there is no other government
branch or instrumentality that is most zealous in protecting that principle of legal equality other than
the Supreme Court which has discerned its real meaning and ramifications through its application to
numerous cases especially of the high-profile kind in the annals of jurisprudence. The Chief Justice
is not above the law and neither is any other member of this Court. But just because he is the Chief
Justice does not imply that he gets to have less in law than anybody else. The law is solicitous of
every individual's rights irrespective of his station in life.
The Filipino nation and its democratic institutions have no doubt been put to test once again by this
impeachment case against Chief Justice Hilario Davide. Accordingly, this Court has resorted to no
other than the Constitution in search for a solution to what many feared would ripen to a crisis in
government. But though it is indeed immensely a blessing for this Court to have found answers in
our bedrock of legal principles, it is equally important that it went through this crucible of a
democratic process, if only to discover that it can resolve differences without the use of force and
aggression upon each other.
WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in Impeachment

Proceedings which were approved by the House of Representatives on November 28, 2001 are
unconstitutional. Consequently, the second impeachment complaint against Chief Justice Hilario G.
Davide, Jr. which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix William B.
Fuentebella with the Office of the Secretary General of the House of Representatives on October 23,
2003 is barred under paragraph 5, section 3 of Article XI of the Constitution.
.R. No. 155336 November 25, 2004
COMMISSION ON HUMAN RIGHTS EMPLOYEES' ASSOCIATION (CHREA) Represented by its

President, MARCIAL A. SANCHEZ, JR., petitioner,
vs.
COMMISSION ON HUMAN RIGHTS, respondent.
DECISION
CHICO-NAZARIO, J.:
Can the Commission on Human Rights lawfully implement an upgrading and reclassification of
personnel positions without the prior approval of the Department of Budget and Management?
Before this Court is a petition for review filed by petitioner Commission on Human Rights Employees'
Association (CHREA) challenging the Decision dated 29 November 2001 of the Court of Appeals in
1
CA-G.R. SP No. 59678 affirming the Resolutions dated 16 December 1999 and 09 June 2000 of the
2
Civil Service Commission (CSC), which sustained the validity of the upgrading and reclassification of
certain personnel positions in the Commission on Human Rights (CHR) despite the disapproval
thereof by the Department of Budget and Management (DBM). Also assailed is the resolution dated
11 September 2002 of the Court of Appeals denying the motion for reconsideration filed by
petitioner.
The antecedent facts which spawned the present controversy are as follows:
On 14 February 1998, Congress passed Republic Act No. 8522, otherwise known as the General
Appropriations Act of 1998. It provided for Special Provisions Applicable to All Constitutional Offices
Enjoying Fiscal Autonomy. The last portion of Article XXXIII covers the appropriations of the CHR.
These special provisions state:
1. Organizational Structure. Any provision of law to the contrary notwithstanding and within
the limits of their respective appropriations as authorized in this Act, the Constitutional
Commissions and Offices enjoying fiscal autonomy are authorized to formulate and
implement the organizational structures of their respective offices, to fix and determine the
salaries, allowances, and other benefits of their personnel, and whenever public interest so
requires, make adjustments in their personal services itemization including, but not limited to,
the transfer of item or creation of new positions in their respective offices: PROVIDED, That
officers and employees whose positions are affected by such reorganization or adjustments
shall be granted retirement gratuities and separation pay in accordance with existing laws,
which shall be payable from any unexpended balance of, or savings in the appropriations of
their respective offices: PROVIDED, FURTHER, That the implementation hereof shall be in
accordance with salary rates, allowances and other benefits authorized under compensation
standardization laws.
2. Use of Savings. The Constitutional Commissions and Offices enjoying fiscal autonomy are
hereby authorized to use savings in their respective appropriations for: (a) printing and/or
publication of decisions, resolutions, and training information materials; (b) repair,
maintenance and improvement of central and regional offices, facilities and equipment; (c)
purchase of books, journals, periodicals and equipment; (d) necessary expenses for the
employment of temporary, contractual and casual employees; (e) payment of extraordinary
and miscellaneous expenses, commutable representation and transportation allowances,
and fringe benefits for their officials and employees as may be authorized by law; and (f)
other official purposes, subject to accounting and auditing rules and regulations. (Emphases
supplied)
on the strength of these special provisions, the CHR, through its then Chairperson Aurora P.
Navarette-Reciña and Commissioners Nasser A. Marohomsalic, Mercedes V. Contreras, Vicente P.
Sibulo, and Jorge R. Coquia, promulgated Resolution No. A98-047 on 04 September 1998, adopting
an upgrading and reclassification scheme among selected positions in the Commission, to wit:
WHEREAS, the General Appropriations Act, FY 1998, R.A. No. 8522 has provided special
provisions applicable to all Constitutional Offices enjoying Fiscal Autonomy, particularly on
organizational structures and authorizes the same to formulate and implement the
organizational structures of their respective offices to fix and determine the salaries,
allowances and other benefits of their personnel and whenever public interest so requires,
make adjustments in the personnel services itemization including, but not limited to, the
transfer of item or creation of new positions in their respective offices: PROVIDED, That
officers and employees whose positions are affected by such reorganization or adjustments
shall be granted retirement gratuities and separation pay in accordance with existing laws,
which shall be payable from any unexpanded balance of, or savings in the appropriations of
their respective offices;
Whereas, the Commission on Human Rights is a member of the Constitutional Fiscal

Autonomy Group (CFAG) and on July 24, 1998, CFAG passed an approved Joint Resolution
No. 49 adopting internal rules implementing the special provisions heretoforth mentioned;
NOW THEREFORE, the Commission by virtue of its fiscal autonomy hereby approves and
authorizes the upgrading and augmentation of the commensurate amount generated from
savings under Personal Services to support the implementation of this resolution effective
Calendar Year 1998;
Let the Human Resources Development Division (HRDD) prepare the necessary Notice of
Salary Adjustment and other appropriate documents to implement this resolution; . . . .
(Emphasis supplied)
3
Annexed to said resolution is the proposed creation of ten additional plantilla positions, namely: one
Director IV position, with Salary Grade 28 for the Caraga Regional Office, four Security Officer II with
Salary Grade 15, and five Process Servers, with Salary Grade 5 under the Office of the
Commissioners. 4
On 19 October 1998, CHR issued Resolution No. A98-055 providing for the upgrading or raising of
5
salary grades of the following positions in the Commission:
Number Position Salary Grade Total Salary

of Requirements
Positions Title
From To From To
12 Attorney VI Director IV 26 28 P229,104.00
(In the
Regional
Field Offices)
4 Director III Director IV 27 28 38,928.00
1 Financial & Director IV 24 28 36,744.00
Management
Officer II
1 Budget Budget Officer 18 24 51,756.00
Officer III IV
1 Accountant Chief 18 24 51,756.00
III Accountant
1 Cashier III Cashier V 18 24 51,756.00
1 Information Director IV 24 28 36,744.006
Officer V
It, likewise, provided for the creation and upgrading of the following positions:
A. Creation
Number of Position Title Salary Grade Total Salary

Positions Requirements
4 Security Officer II 15 684,780.00
(Coterminous)
B. Upgrading
Number of Position Title Salary Grade Total Salary

Positions Requirements
From To From To
1 Attorney V Director IV 25 28 P28,092.00
2 Security Security 11 15 57,456.00
Officer I Officer II
----------------
Total 3 P 85,548.00 7
To support the implementation of such scheme, the CHR, in the same resolution, authorized the
augmentation of a commensurate amount generated from savings under Personnel Services.
By virtue of Resolution No. A98-062 dated 17 November 1998, the CHR "collapsed" the vacant
positions in the body to provide additional source of funding for said staffing modification. Among the
positions collapsed were: one Attorney III, four Attorney IV, one Chemist III, three Special
Investigator I, one Clerk III, and one Accounting Clerk II.8
The CHR forwarded said staffing modification and upgrading scheme to the DBM with a request for
its approval, but the then DBM secretary Benjamin Diokno denied the request on the following
justification:
… Based on the evaluations made the request was not favorably considered as it effectively
involved the elevation of the field units from divisions to services.
The present proposal seeks further to upgrade the twelve (12) positions of Attorney VI, SG-26 to
Director IV, SG-28. This would elevate the field units to a bureau or regional office, a level even
higher than the one previously denied.
The request to upgrade the three (3) positions of Director III, SG-27 to Director IV, SG-28, in the
Central Office in effect would elevate the services to Office and change the context from support to
substantive without actual change in functions.
In the absence of a specific provision of law which may be used as a legal basis to elevate the level
of divisions to a bureau or regional office, and the services to offices, we reiterate our previous stand
denying the upgrading of the twelve (12) positions of Attorney VI, SG-26 to Director III, SG-27 or
Director IV, SG-28, in the Field Operations Office (FOO) and three (3) Director III, SG-27 to Director
IV, SG-28 in the Central Office.
As represented, President Ramos then issued a Memorandum to the DBM Secretary dated 10
December 1997, directing the latter to increase the number of Plantilla positions in the CHR both
Central and Regional Offices to implement the Philippine Decade Plan on Human Rights Education,
the Philippine Human Rights Plan and Barangay Rights Actions Center in accordance with existing
laws. (Emphasis in the original)
Pursuant to Section 78 of the General Provisions of the General Appropriations Act (GAA) FY 1998,
no organizational unit or changes in key positions shall be authorized unless provided by law or
directed by the President, thus, the creation of a Finance Management Office and a Public Affairs
Office cannot be given favorable recommendation.
Moreover, as provided under Section 2 of RA No. 6758, otherwise known as the Compensation
Standardization Law, the Department of Budget and Management is directed to establish and
administer a unified compensation and position classification system in the government. The
Supreme Court ruled in the case of Victorina Cruz vs. Court of Appeals, G.R. No. 119155, dated
January 30, 1996, that this Department has the sole power and discretion to administer the
compensation and position classification system of the National Government.
Being a member of the fiscal autonomy group does not vest the agency with the authority to
reclassify, upgrade, and create positions without approval of the DBM. While the members of the
Group are authorized to formulate and implement the organizational structures of their respective
offices and determine the compensation of their personnel, such authority is not absolute and must
be exercised within the parameters of the Unified Position Classification and Compensation System
established under RA 6758 more popularly known as the Compensation Standardization Law. We
therefore reiterate our previous stand on the matter. (Emphases supplied)
9
In light of the DBM's disapproval of the proposed personnel modification scheme, the CSC-National
Capital Region Office, through a memorandum dated 29 March 1999, recommended to the CSC-
Central Office that the subject appointments be rejected owing to the DBM's disapproval of the
plantilla reclassification.
Meanwhile, the officers of petitioner CHREA, in representation of the rank and file employees of the
CHR, requested the CSC-Central Office to affirm the recommendation of the CSC-Regional Office.
CHREA stood its ground in saying that the DBM is the only agency with appropriate authority
mandated by law to evaluate and approve matters of reclassification and upgrading, as well as
creation of positions.
The CSC-Central Office denied CHREA's request in a Resolution dated 16 December 1999, and
reversed the recommendation of the CSC-Regional Office that the upgrading scheme be censured.
The decretal portion of which reads:
WHEREFORE, the request of Ronnie N. Rosero, Hubert V. Ruiz, Flordeliza A. Briones,

George Q. Dumlao [and], Corazon A. Santos-Tiu, is hereby denied. 10
CHREA filed a motion for reconsideration, but the CSC-Central Office denied the same on
09 June 2000.
Given the cacophony of judgments between the DBM and the CSC, petitioner CHREA
elevated the matter to the Court of Appeals. The Court of Appeals affirmed the
pronouncement of the CSC-Central Office and upheld the validity of the upgrading, retitling,
and reclassification scheme in the CHR on the justification that such action is within the
ambit of CHR's fiscal autonomy. The fallo of the Court of Appeals decision provides:
IN VIEW OF ALL THE FOREGOING, the instant petition is ordered DISMISSED and the
questioned Civil Service Commission Resolution No. 99-2800 dated December 16, 1999 as
well as No. 001354 dated June 9, 2000, are hereby AFFIRMED. No cost. 11
Unperturbed, petitioner filed this petition in this Court contending that:
A.
…THE COURT OF APPEALS GRAVELY ERRED WHEN IT HELD THAT UNDER THE 1987
CONSTITUTION, THE COMMISSION ON HUMAN RIGHTS ENJOYS FISCAL AUTONOMY.
B.
…THE COURT OF APPEALS SERIOUSLY ERRED IN UPHOLDING THE

CONSTRUCTION OF THE COMMISSION ON HUMAN RIGHTS OF REPUBLIC ACT NO.
8522 (THE GENERAL APPROPRIATIONS ACT FOR THE FISCAL YEAR 1998) DESPITE
ITS BEING IN SHARP CONFLICT WITH THE 1987 CONSTITUTION AND THE STATUTE
ITSELF.
C.
…THE COURT OF APPEALS SERIOUSLY AND GRAVELY ERRED IN AFFIRMING THE

VALIDITY OF THE CIVIL SERVICE COMMISSION RESOLUTION NOS. 992800 AND
001354 AS WELL AS THAT OF THE OPINION OF THE DEPARTMENT OF JUSTICE IN
STATING THAT THE COMMISSION ON HUMAN RIGHTS ENJOYS FISCAL AUTONOMY
UNDER THE 1987 CONSTITUTION AND THAT THIS FISCAL AUTONOMY INCLUDES
THE ACTION TAKEN BY IT IN COLLAPSING, UPGRADING AND RECLASSIFICATION OF
POSITIONS THEREIN. 12
The central question we must answer in order to resolve this case is: Can the Commission on
Human Rights validly implement an upgrading, reclassification, creation, and collapsing of plantilla
positions in the Commission without the prior approval of the Department of Budget and
Management?
Petitioner CHREA grouses that the Court of Appeals and the CSC-Central Office both erred in
sanctioning the CHR's alleged blanket authority to upgrade, reclassify, and create positions
inasmuch as the approval of the DBM relative to such scheme is still indispensable. Petitioner
bewails that the CSC and the Court of Appeals erroneously assumed that CHR enjoys fiscal
autonomy insofar as financial matters are concerned, particularly with regard to the upgrading and
reclassification of positions therein.
Respondent CHR sharply retorts that petitioner has no locus standi considering that there exists no
official written record in the Commission recognizing petitioner as a bona fide organization of its
employees nor is there anything in the records to show that its president, Marcial A. Sanchez, Jr.,
has the authority to sue the CHR. The CHR contends that it has the authority to cause the
upgrading, reclassification, plantilla creation, and collapsing scheme sans the approval of the DBM
because it enjoys fiscal autonomy.
After a thorough consideration of the arguments of both parties and an assiduous scrutiny of the
records in the case at bar, it is the Court's opinion that the present petition is imbued with merit.
On petitioner's personality to bring this suit, we held in a multitude of cases that a proper party is one
who has sustained or is in immediate danger of sustaining an injury as a result of the act complained
of. Here, petitioner, which consists of rank and file employees of respondent CHR, protests that the
13
upgrading and collapsing of positions benefited only a select few in the upper level positions in the
Commission resulting to the demoralization of the rank and file employees. This sufficiently meets
the injury test. Indeed, the CHR's upgrading scheme, if found to be valid, potentially entails eating up
the Commission's savings or that portion of its budgetary pie otherwise allocated for Personnel
Services, from which the benefits of the employees, including those in the rank and file, are derived.
Further, the personality of petitioner to file this case was recognized by the CSC when it took
cognizance of the CHREA's request to affirm the recommendation of the CSC-National Capital
Region Office. CHREA's personality to bring the suit was a non-issue in the Court of Appeals when it
passed upon the merits of this case. Thus, neither should our hands be tied by this technical
concern. Indeed, it is settled jurisprudence that an issue that was neither raised in the complaint nor
in the court below cannot be raised for the first time on appeal, as to do so would be offensive to the
basic rules of fair play, justice, and due process.
14
We now delve into the main issue of whether or not the approval by the DBM is a condition
precedent to the enactment of an upgrading, reclassification, creation and collapsing of plantilla
positions in the CHR.
Germane to our discussion is Rep. Act No. 6758, An Act Prescribing a Revised Compensation and
Position Classification System in the Government and For Other Purposes, or the Salary
Standardization Law, dated 01 July 1989, which provides in Sections 2 and 4 thereof that it is the
DBM that shall establish and administer a unified Compensation and Position Classification System.
Thus:
SEC. 2. Statement of Policy. -- It is hereby declared the policy of the State to provide equal
pay for substantially equal work and to base differences in pay upon substantive differences
in duties and responsibilities, and qualification requirements of the positions. In determining
rates of pay, due regard shall be given to, among others, prevailing rates in the private
sector for comparable work. For this purpose, the Department of Budget and Management
(DBM) is hereby directed to establish and administer a unified Compensation and Position
Classification System, hereinafter referred to as the System as provided for in Presidential
Decree No. 985, as amended, that shall be applied for all government entities, as mandated
by the Constitution. (Emphasis supplied.)
SEC. 4. Coverage. – The Compensation and Position Classification System herein provided
shall apply to all positions, appointive or elective, on full or part-time basis, now existing or
hereafter created in the government, including government-owned or controlled corporations
and government financial institutions.
The term "government" refers to the Executive, the Legislative and the Judicial Branches and the
Constitutional Commissions and shall include all, but shall not be limited to, departments, bureaus,
offices, boards, commissions, courts, tribunals, councils, authorities, administrations, centers,
institutes, state colleges and universities, local government units, and the armed forces. The term
"government-owned or controlled corporations and financial institutions" shall include all
corporations and financial institutions owned or controlled by the National Government, whether
such corporations and financial institutions perform governmental or proprietary functions.
(Emphasis supplied.)
The disputation of the Court of Appeals that the CHR is exempt from the long arm of the Salary
Standardization Law is flawed considering that the coverage thereof, as defined above,
encompasses the entire gamut of government offices, sans qualification.
This power to "administer" is not purely ministerial in character as erroneously held by the Court of
Appeals. The word to administer means to control or regulate in behalf of others; to direct or
superintend the execution, application or conduct of; and to manage or conduct public affairs, as to
administer the government of the state. 15
The regulatory power of the DBM on matters of compensation is encrypted not only in law, but in
jurisprudence as well. In the recent case of Philippine Retirement Authority (PRA) v. Jesusito L.
Buñag, this Court, speaking through Mr. Justice Reynato Puno, ruled that compensation,
16
allowances, and other benefits received by PRA officials and employees without the requisite
approval or authority of the DBM are unauthorized and irregular. In the words of the Court –
Despite the power granted to the Board of Directors of PRA to establish and fix a compensation and
benefits scheme for its employees, the same is subject to the review of the Department of Budget
and Management. However, in view of the express powers granted to PRA under its charter, the
extent of the review authority of the Department of Budget and Management is limited. As stated in
Intia, the task of the Department of Budget and Management is simply to review the compensation
and benefits plan of the government agency or entity concerned and determine if the same complies
with the prescribed policies and guidelines issued in this regard. The role of the Department of
Budget and Management is supervisorial in nature, its main duty being to ascertain that the
proposed compensation, benefits and other incentives to be given to PRA officials and employees
adhere to the policies and guidelines issued in accordance with applicable laws.
In Victorina Cruz v. Court of Appeals, we held that the DBM has the sole power and discretion to
17
administer the compensation and position classification system of the national government.
In Intia, Jr. v. Commission on Audit, the Court held that although the charter of the Philippine Postal
18 19
Corporation (PPC) grants it the power to fix the compensation and benefits of its employees and
exempts PPC from the coverage of the rules and regulations of the Compensation and Position
Classification Office, by virtue of Section 6 of P.D. No. 1597, the compensation system established
by the PPC is, nonetheless, subject to the review of the DBM. This Court intoned:
It should be emphasized that the review by the DBM of any PPC resolution affecting the
compensation structure of its personnel should not be interpreted to mean that the DBM can dictate
upon the PPC Board of Directors and deprive the latter of its discretion on the matter. Rather, the
DBM's function is merely to ensure that the action taken by the Board of Directors complies with the
requirements of the law, specifically, that PPC's compensation system "conforms as closely as
possible with that provided for under R.A. No. 6758." (Emphasis supplied.)
As measured by the foregoing legal and jurisprudential yardsticks, the imprimatur of the DBM must
first be sought prior to implementation of any reclassification or upgrading of positions in
government. This is consonant to the mandate of the DBM under the Revised Administrative Code
of 1987, Section 3, Chapter 1, Title XVII, to wit:
SEC. 3. Powers and Functions. – The Department of Budget and Management shall assist
the President in the preparation of a national resources and expenditures budget,
preparation, execution and control of the National Budget, preparation and maintenance of
accounting systems essential to the budgetary process, achievement of more economy and
efficiency in the management of government operations, administration of compensation and
position classification systems, assessment of organizational effectiveness and review and
evaluation of legislative proposals having budgetary or organizational implications.
(Emphasis supplied.)
Irrefragably, it is within the turf of the DBM Secretary to disallow the upgrading, reclassification, and
creation of additional plantilla positions in the CHR based on its finding that such scheme lacks legal
justification.
Notably, the CHR itself recognizes the authority of the DBM to deny or approve the proposed
reclassification of positions as evidenced by its three letters to the DBM requesting approval thereof.
As such, it is now estopped from now claiming that the nod of approval it has previously sought from
the DBM is a superfluity.
The Court of Appeals incorrectly relied on the pronouncement of the CSC-Central Office that the
CHR is a constitutional commission, and as such enjoys fiscal autonomy. 20
Palpably, the Court of Appeals' Decision was based on the mistaken premise that the CHR belongs
to the species of constitutional commissions. But, Article IX of the Constitution states in no uncertain
terms that only the CSC, the Commission on Elections, and the Commission on Audit shall be
tagged as Constitutional Commissions with the appurtenant right to fiscal autonomy. Thus:
Sec. 1. The Constitutional Commissions, which shall be independent, are the Civil Service
Commission, the Commission on Elections, and the Commission on Audit.
Sec. 5. The Commission shall enjoy fiscal autonomy. Their approved annual appropriations
shall be automatically and regularly released.
Along the same vein, the Administrative Code, in Chapter 5, Sections 24 and 26 of Book II on
Distribution of Powers of Government, the constitutional commissions shall include only the Civil
Service Commission, the Commission on Elections, and the Commission on Audit, which are
granted independence and fiscal autonomy. In contrast, Chapter 5, Section 29 thereof, is silent on
the grant of similar powers to the other bodies including the CHR. Thus:
SEC. 24. Constitutional Commissions. – The Constitutional Commissions, which shall be

independent, are the Civil Service Commission, the Commission on Elections, and the
Commission on Audit.
SEC. 26. Fiscal Autonomy. – The Constitutional Commissions shall enjoy fiscal autonomy.
The approved annual appropriations shall be automatically and regularly released.
SEC. 29. Other Bodies. – There shall be in accordance with the Constitution, an Office of the
Ombudsman, a Commission on Human Rights, and independent central monetary authority,
and a national police commission. Likewise, as provided in the Constitution, Congress may
establish an independent economic and planning agency. (Emphasis ours.)
From the 1987 Constitution and the Administrative Code, it is abundantly clear that the CHR is not
among the class of Constitutional Commissions. As expressed in the oft-repeated maxim expressio
unius est exclusio alterius, the express mention of one person, thing, act or consequence excludes
all others. Stated otherwise, expressium facit cessare tacitum – what is expressed puts an end to
what is implied.21
Nor is there any legal basis to support the contention that the CHR enjoys fiscal autonomy. In
essence, fiscal autonomy entails freedom from outside control and limitations, other than those
provided by law. It is the freedom to allocate and utilize funds granted by law, in accordance with
law, and pursuant to the wisdom and dispatch its needs may require from time to time. In Blaquera
22
v. Alcala and Bengzon v. Drilon, it is understood that it is only the Judiciary, the Civil Service
23
Commission, the Commission on Audit, the Commission on Elections, and the Office of the
Ombudsman, which enjoy fiscal autonomy. Thus, in Bengzon, we explained:
24
As envisioned in the Constitution, the fiscal autonomy enjoyed by the Judiciary, the Civil
Service Commission, the Commission on Audit, the Commission on Elections, and the Office
of the Ombudsman contemplates a guarantee of full flexibility to allocate and utilize their
resources with the wisdom and dispatch that their needs require. It recognizes the power
and authority to levy, assess and collect fees, fix rates of compensation not exceeding the
highest rates authorized by law for compensation and pay plans of the government and
allocate and disburse such sums as may be provided by law or prescribed by them in the
course of the discharge of their functions.
...
The Judiciary, the Constitutional Commissions, and the Ombudsman must have the
independence and flexibility needed in the discharge of their constitutional duties. The
imposition of restrictions and constraints on the manner the independent constitutional
offices allocate and utilize the funds appropriated for their operations is anathema to fiscal
autonomy and violative not only of the express mandate of the Constitution but especially as
regards the Supreme Court, of the independence and separation of powers upon which the
entire fabric of our constitutional system is based. In the interest of comity and cooperation,
the Supreme Court, [the] Constitutional Commissions, and the Ombudsman have so far
limited their objections to constant reminders. We now agree with the petitioners that this
grant of autonomy should cease to be a meaningless provision. (Emphasis supplied.)
Neither does the fact that the CHR was admitted as a member by the Constitutional Fiscal
Autonomy Group (CFAG) ipso facto clothed it with fiscal autonomy. Fiscal autonomy is a
constitutional grant, not a tag obtainable by membership.
We note with interest that the special provision under Rep. Act No. 8522, while cited under the
heading of the CHR, did not specifically mention CHR as among those offices to which the special
provision to formulate and implement organizational structures apply, but merely states its coverage
to include Constitutional Commissions and Offices enjoying fiscal autonomy. In contrast, the Special
Provision Applicable to the Judiciary under Article XXVIII of the General Appropriations Act of 1998
specifically mentions that such special provision applies to the judiciary and had categorically
authorized the Chief Justice of the Supreme Court to formulate and implement the organizational
structure of the Judiciary, to wit:
1. Organizational Structure. Any provision of law to the contrary notwithstanding and within
the limits of their respective appropriations authorized in this Act, the Chief Justice of the
Supreme Court is authorized to formulate and implement organizational structure of the
Judiciary, to fix and determine the salaries, allowances, and other benefits of their personnel,
and whenever public interest so requires, make adjustments in the personal services
itemization including, but not limited to, the transfer of item or creation of new positions in the
Judiciary; PROVIDED, That officers and employees whose positions are affected by such
reorganization or adjustments shall be granted retirement gratuities and separation pay in
accordance with existing law, which shall be payable from any unexpended balance of, or
savings in the appropriations of their respective offices: PROVIDED, FURTHER, That the
implementation hereof shall be in accordance with salary rates, allowances and other
benefits authorized under compensation standardization laws. (Emphasis supplied.)
All told, the CHR, although admittedly a constitutional creation is, nonetheless, not included in the
genus of offices accorded fiscal autonomy by constitutional or legislative fiat.
Even assuming en arguendo that the CHR enjoys fiscal autonomy, we share the stance of the DBM
that the grant of fiscal autonomy notwithstanding, all government offices must, all the same, kowtow
to the Salary Standardization Law. We are of the same mind with the DBM on its standpoint, thus-
Being a member of the fiscal autonomy group does not vest the agency with the authority to
reclassify, upgrade, and create positions without approval of the DBM. While the members of the
Group are authorized to formulate and implement the organizational structures of their respective
offices and determine the compensation of their personnel, such authority is not absolute and must
be exercised within the parameters of the Unified Position Classification and Compensation System
established under RA 6758 more popularly known as the Compensation Standardization
Law. (Emphasis supplied.)
25
The most lucid argument against the stand of respondent, however, is the provision of Rep. Act No.
8522 "that the implementation hereof shall be in accordance with salary rates, allowances and other
benefits authorized under compensation standardization laws." 26
Indeed, the law upon which respondent heavily anchors its case upon has expressly provided that
any form of adjustment in the organizational structure must be within the parameters of the Salary
Standardization Law.
The Salary Standardization Law has gained impetus in addressing one of the basic causes of
discontent of many civil servants. For this purpose, Congress has delegated to the DBM the power
27
to administer the Salary Standardization Law and to ensure that the spirit behind it is observed. This
power is part of the system of checks and balances or system of restraints in our government. The
DBM's exercise of such authority is not in itself an arrogation inasmuch as it is pursuant to the
paramount law of the land, the Salary Standardization Law and the Administrative Code.
In line with its role to breathe life into the policy behind the Salary Standardization Law of "providing
equal pay for substantially equal work and to base differences in pay upon substantive differences in
duties and responsibilities, and qualification requirements of the positions," the DBM, in the case
under review, made a determination, after a thorough evaluation, that the reclassification and
upgrading scheme proposed by the CHR lacks legal rationalization.
The DBM expounded that Section 78 of the general provisions of the General Appropriations Act FY
1998, which the CHR heavily relies upon to justify its reclassification scheme, explicitly provides that
"no organizational unit or changes in key positions shall be authorized unless provided by law or
directed by the President." Here, the DBM discerned that there is no law authorizing the creation of a
Finance Management Office and a Public Affairs Office in the CHR. Anent CHR's proposal to
upgrade twelve positions of Attorney VI, SG-26 to Director IV, SG-28, and four positions of Director
III, SG-27 to Director IV, SG-28, in the Central Office, the DBM denied the same as this would
change the context from support to substantive without actual change in functions.
This view of the DBM, as the law's designated body to implement and administer a unified
compensation system, is beyond cavil. The interpretation of an administrative government agency,
which is tasked to implement a statute is accorded great respect and ordinarily controls the
construction of the courts. In Energy Regulatory Board v. Court of Appeals, we echoed the basic
28
rule that the courts will not interfere in matters which are addressed to the sound discretion of
government agencies entrusted with the regulation of activities coming under the special technical
knowledge and training of such agencies.
To be sure, considering his expertise on matters affecting the nation's coffers, the Secretary of the
DBM, as the President's alter ego, knows from where he speaks inasmuch as he has the front seat
view of the adverse effects of an unwarranted upgrading or creation of positions in the CHR in
particular and in the entire government in general.
WHEREFORE, the petition is GRANTED, the Decision dated 29 November 2001 of the Court of
Appeals in CA-G.R. SP No. 59678 and its Resolution dated 11 September 2002 are hereby
REVERSED and SET ASIDE. The ruling dated 29 March 1999 of the Civil Service Commision-
National Capital Region is REINSTATED. The Commission on Human Rights Resolution No. A98-
047 dated 04 September 1998, Resolution No. A98-055 dated 19 October 1998 and Resolution No.
A98-062 dated 17 November 1998 without the approval of the Department of Budget and
Management are disallowed. No pronouncement as to costs.
SO ORDERED.
Puno, Acting C.J., Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.
G.R. No. 83896 February 22, 1991
CIVIL LIBERTIES UNION, petitioner,

vs.
THE EXECUTIVE SECRETARY, respondent.
G.R. No. 83815 February 22, 1991
ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. REYES, petitioners,

vs.
PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS DOMINGUEZ, as Secretary
of Agriculture; LOURDES QUISUMBING, as Secretary of Education, Culture and Sports;
FULGENCIO FACTORAN, JR., as Secretary of Environment and Natural Resources; VICENTE
V. JAYME, as Secretary of Finance; SEDFREY ORDOÑEZ, as Secretary of Justice; FRANKLIN
N. DRILON, as Secretary of Labor and Employment; LUIS SANTOS, as Secretary of Local
Government; FIDEL V. RAMOS, as Secretary of National Defense; TEODORO F. BENIGNO, as
Press Secretary; JUANITO FERRER, as Secretary of Public Works and Highways; ANTONIO
ARRIZABAL, as Secretary of Science and Technology; JOSE CONCEPCION, as Secretary of
Trade and Industry; JOSE ANTONIO GONZALEZ, as Secretary of Tourism; ALFREDO R.A.
BENGZON, as Secretary of Health; REINERIO D. REYES, as Secretary of Transportation and
Communication; GUILLERMO CARAGUE, as Commissioner of the Budget; and SOLITA
MONSOD, as Head of the National Economic Development Authority, respondents.
Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for petitioners in 83896.
Antonio P. Coronel for petitioners in 83815.
FERNAN, C.J.:p
These two (2) petitions were consolidated per resolution dated August 9, 19881 and are being resolved jointly as both seek a declaration of
the unconstitutionality of Executive Order No. 284 issued by President Corazon C. Aquino on July 25, 1987. The pertinent provisions of the
assailed Executive Order are:
Sec. 1. Even if allowed by law or by the ordinary functions of his position, a member of the
Cabinet, undersecretary or assistant secretary or other appointive officials of the Executive
Department may, in addition to his primary position, hold not more than two positions in the
government and government corporations and receive the corresponding compensation
therefor; Provided, that this limitation shall not apply to ad hoc bodies or committees, or to
boards, councils or bodies of which the President is the Chairman.
Sec. 2. If a member of the cabinet, undersecretary or assistant secretary or other appointive

official of the Executive Department holds more positions than what is allowed in Section 1
hereof, they (sic) must relinquish the excess position in favor of the subordinate official who
is next in rank, but in no case shall any official hold more than two positions other than his
primary position.
Sec. 3. In order to fully protect the interest of the government in government-owned or

controlled corporations, at least one-third (1/3) of the members of the boards of such
corporation should either be a secretary, or undersecretary, or assistant secretary.
Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet, their
undersecretaries and assistant secretaries to hold other government offices or positions in addition
to their primary positions, albeit subject to the limitation therein imposed, runs counter to Section 13,
Article VII of the 1987 Constitution, which provides as follows:
2
Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in this Constitution, hold any other office or
employment during their tenure. They shall not, during said tenure, directly or indirectly
practice any other profession, participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted by the Government or any
subdivision, agency, or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of
their office.
It is alleged that the above-quoted Section 13, Article VII prohibits public respondents, as members
of the Cabinet, along with the other public officials enumerated in the list attached to the petitions as
Annex "C" in G.R. No.
83815 and as Annex "B" in G.R. No. 83896 from holding any other office or employment during
3 4
their tenure. In addition to seeking a declaration of the unconstitutionality of Executive Order No.
284, petitioner Anti-Graft League of the Philippines further seeks in G.R. No. 83815 the issuance of
the extraordinary writs of prohibition and mandamus, as well as a temporary restraining order
directing public respondents therein to cease and desist from holding, in addition to their primary
positions, dual or multiple positions other than those authorized by the 1987 Constitution and from
receiving any salaries, allowances, per diems and other forms of privileges and the like appurtenant
to their questioned positions, and compelling public respondents to return, reimburse or refund any
and all amounts or benefits that they may have received from such positions.
Specifically, petitioner Anti-Graft League of the Philippines charges that notwithstanding the
aforequoted "absolute and self-executing" provision of the 1987 Constitution, then Secretary of
Justice Sedfrey Ordoñez, construing Section 13, Article VII in relation to Section 7, par. (2), Article
IX-B, rendered on July 23, 1987 Opinion No. 73, series of 1987, declaring that Cabinet members,
5
their deputies (undersecretaries) and assistant secretaries may hold other public office, including
membership in the boards of government corporations: (a) when directly provided for in the
Constitution as in the case of the Secretary of Justice who is made an ex-officio member of the
Judicial and Bar Council under Section 8, paragraph 1, Article VIII; or (b) if allowed by law; or (c) if
allowed by the primary functions of their respective positions; and that on the basis of this Opinion,
the President of the Philippines, on July 25, 1987 or two (2) days before Congress convened on July
27, 1987: promulgated Executive Order No. 284. 6
Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73 and Executive
Order No. 284 as they allegedly "lumped together" Section 13, Article VII and the general provision
in another article, Section 7, par. (2), Article I-XB. This "strained linkage" between the two provisions,
each addressed to a distinct and separate group of public officers –– one, the President and her
official family, and the other, public servants in general –– allegedly "abolished the clearly separate,
higher, exclusive, and mandatory constitutional rank assigned to the prohibition against multiple jobs
for the President, the Vice-President, the members of the Cabinet, and their deputies and
subalterns, who are the leaders of government expected to lead by example." Article IX-B, Section
7
7, par. (2) provides:

8
Sec. 7. . . . . .
Unless otherwise allowed by law or by the primary functions of his position, no appointive
official shall hold any other office or employment in the government or any subdivision,
agency or instrumentality thereof, including government-owned or controlled corporations or
their subsidiaries.
The Solicitor General counters that Department of Justice DOJ Opinion No. 73, series of 1987, as
further elucidated and clarified by DOJ Opinion No. 129, series of 1987 and DOJ Opinion No. 155,
9
series of 1988, being the first official construction and interpretation by the Secretary of Justice of
10
Section 13, Article VII and par. (2) of Section 7, Article I-XB of the Constitution, involving the same
subject of appointments or designations of an appointive executive official to positions other than his
primary position, is "reasonably valid and constitutionally firm," and that Executive Order No. 284,
promulgated pursuant to DOJ Opinion No. 73, series of 1987 is consequently constitutional. It is
worth noting that DOJ Opinion No. 129, series of 1987 and DOJ Opinion No. 155, series of 1988
construed the limitation imposed by E.O. No. 284 as not applying to ex-officio positions or to
positions which, although not so designated as ex-officio are allowed by the primary functions of the
public official, but only to the holding of multiple positions which are not related to or necessarily
included in the position of the public official concerned (disparate positions).
In sum, the constitutionality of Executive Order No. 284 is being challenged by petitioners on the
principal submission that it adds exceptions to Section 13, Article VII other than those provided in the
Constitution. According to petitioners, by virtue of the phrase "unless otherwise provided in this
Constitution," the only exceptions against holding any other office or employment in Government are
those provided in the Constitution, namely: (1) The Vice-President may be appointed as a Member
of the Cabinet under Section 3, par. (2), Article VII thereof; and (2) the Secretary of Justice is an ex-
officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.
Petitioners further argue that the exception to the prohibition in Section 7, par. (2), Article I-XB on the
Civil Service Commission applies to officers and employees of the Civil Service in general and that
said exceptions do not apply and cannot be extended to Section 13, Article VII which applies
specifically to the President, Vice-President, Members of the Cabinet and their deputies or
assistants.
There is no dispute that the prohibition against the President, Vice-President, the members of the
Cabinet and their deputies or assistants from holding dual or multiple positions in the Government
admits of certain exceptions. The disagreement between petitioners and public respondents lies on
the constitutional basis of the exception. Petitioners insist that because of the phrase "unless
otherwise provided in this Constitution" used in Section 13 of Article VII, the exception must be
expressly provided in the Constitution, as in the case of the Vice-President being allowed to become
a Member of the Cabinet under the second paragraph of Section 3, Article VII or the Secretary of
Justice being designated an ex-officio member of the Judicial and Bar Council under Article VIII,
Sec. 8 (1). Public respondents, on the other hand, maintain that the phrase "unless otherwise
provided in the Constitution" in Section 13, Article VII makes reference to Section 7, par. (2), Article
I-XB insofar as the appointive officials mentioned therein are concerned.
The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987
Constitution insofar as Cabinet members, their deputies or assistants are concerned admit of the
broad exceptions made for appointive officials in general under Section 7, par. (2), Article I-XB
which, for easy reference is quoted anew, thus: "Unless otherwise allowed by law or by the primary
functions of his position, no appointive official shall hold any other office or employment in the
Government or any subdivision, agency or instrumentality thereof, including government-owned or
controlled corporation or their subsidiaries."
We rule in the negative.
A foolproof yardstick in constitutional construction is the intention underlying the provision under
consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind
the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or
remedied. A doubtful provision will be examined in the light of the history of the times, and the
condition and circumstances under which the Constitution was framed. The object is to ascertain the
reason which induced the framers of the Constitution to enact the particular provision and the
purpose sought to be accomplished thereby, in order to construe the whole as to make the words
consonant to that reason and calculated to effect that purpose. 11
The practice of designating members of the Cabinet, their deputies and assistants as members of
the governing bodies or boards of various government agencies and instrumentalities, including
government-owned and controlled corporations, became prevalent during the time legislative powers
in this country were exercised by former President Ferdinand E. Marcos pursuant to his martial law
authority. There was a proliferation of newly-created agencies, instrumentalities and government-
owned and controlled corporations created by presidential decrees and other modes of presidential
issuances where Cabinet members, their deputies or assistants were designated to head or sit as
members of the board with the corresponding salaries, emoluments, per diems, allowances and
other perquisites of office. Most of these instrumentalities have remained up to the present time.
This practice of holding multiple offices or positions in the government soon led to abuses by
unscrupulous public officials who took advantage of this scheme for purposes of self-enrichment. In
fact, the holding of multiple offices in government was strongly denounced on the floor of the
Batasang Pambansa. This condemnation came in reaction to the published report of the
12
Commission on Audit, entitled "1983 Summary Annual Audit Report on: Government-Owned and
Controlled Corporations, Self-Governing Boards and Commissions" which carried as its Figure No. 4
a "Roaster of Membership in Governing Boards of Government-Owned and Controlled Corporations
as of December 31, 1983."
Particularly odious and revolting to the people's sense of propriety and morality in government
service were the data contained therein that Roberto V. Ongpin was a member of the governing
boards of twenty-nine (29) governmental agencies, instrumentalities and corporations; Imelda R.
Marcos of twenty-three (23); Cesar E.A. Virata of twenty-two (22); Arturo R. Tanco, Jr. of fifteen (15);
Jesus S. Hipolito and Geronimo Z. Velasco, of fourteen each (14); Cesar C. Zalamea of thirteen
(13); Ruben B. Ancheta and Jose A. Roño of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro,
and Edgardo Tordesillas of eleven (11) each; and Lilia Bautista and Teodoro Q. Peña of ten (10)
each.13
The blatant betrayal of public trust evolved into one of the serious causes of discontent with the
Marcos regime. It was therefore quite inevitable and in consonance with the overwhelming sentiment
of the people that the 1986 Constitutional Commission, convened as it was after the people
successfully unseated former President Marcos, should draft into its proposed Constitution the
provisions under consideration which are envisioned to remedy, if not correct, the evils that flow from
the holding of multiple governmental offices and employment. In fact, as keenly observed by Mr.
Justice Isagani A. Cruz during the deliberations in these cases, one of the strongest selling points of
the 1987 Constitution during the campaign for its ratification was the assurance given by its
proponents that the scandalous practice of Cabinet members holding multiple positions in the
government and collecting unconscionably excessive compensation therefrom would be
discontinued.
But what is indeed significant is the fact that although Section 7, Article I-XB already contains a
blanket prohibition against the holding of multiple offices or employment in the government
subsuming both elective and appointive public officials, the Constitutional Commission should see it
fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-
President, members of the Cabinet, their deputies and assistants from holding any other office or
employment during their tenure, unless otherwise provided in the Constitution itself.
Evidently, from this move as well as in the different phraseologies of the constitutional provisions in
question, the intent of the framers of the Constitution was to impose a stricter prohibition on the
President and his official family in so far as holding other offices or employment in the government or
elsewhere is concerned.
Moreover, such intent is underscored by a comparison of Section 13, Article VII with other provisions
of the Constitution on the disqualifications of certain public officials or employees from holding other
offices or employment. Under Section 13, Article VI, "(N)o Senator or Member of the House of
Representatives may hold any other office or employment in the Government . . .". Under Section
5(4), Article XVI, "(N)o member of the armed forces in the active service shall, at any time, be
appointed in any capacity to a civilian position in the Government,including government-owned or
controlled corporations or any of their subsidiaries." Even Section 7 (2), Article IX-B, relied upon by
respondents provides "(U)nless otherwise allowed by law or by the primary functions of his position,
no appointive official shall hold any other office or employment in the Government."
It is quite notable that in all these provisions on disqualifications to hold other office or employment,
the prohibition pertains to an office or employment in the government and government-owned or
controlled corporations or their subsidiaries. In striking contrast is the wording of Section 13, Article
VII which states that "(T)he President, Vice-President, the Members of the Cabinet, and their
deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office
or employment during their tenure." In the latter provision, the disqualification is absolute, not being
qualified by the phrase "in the Government." The prohibition imposed on the President and his
official family is therefore all-embracing and covers both public and private office or employment.
Going further into Section 13, Article VII, the second sentence provides: "They shall not, during said
tenure, directly or indirectly, practice any other profession, participate in any business, or be
financially interested in any contract with, or in any franchise, or special privilege granted by the
Government or any subdivision, agency or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries." These sweeping, all-embracing prohibitions imposed
on the President and his official family, which prohibitions are not similarly imposed on other public
officials or employees such as the Members of Congress, members of the civil service in general
and members of the armed forces, are proof of the intent of the 1987 Constitution to treat the
President and his official family as a class by itself and to impose upon said class stricter
prohibitions.
Such intent of the 1986 Constitutional Commission to be stricter with the President and his official
family was also succinctly articulated by Commissioner Vicente Foz after Commissioner Regalado
Maambong noted during the floor deliberations and debate that there was no symmetry between the
Civil Service prohibitions, originally found in the General Provisions and the anticipated report on the
Executive Department. Commissioner Foz Commented, "We actually have to be stricter with the
President and the members of the Cabinet because they exercise more powers and, therefore, more
cheeks and restraints on them are called for because there is more possibility of abuse in their
case."14
Thus, while all other appointive officials in the civil service are allowed to hold other office or
employment in the government during their tenure when such is allowed by law or by the primary
functions of their positions, members of the Cabinet, their deputies and assistants may do so only
when expressly authorized by the Constitution itself. In other words, Section 7, Article I-XB is meant
to lay down the general rule applicable to all elective and appointive public officials and employees,
while Section 13, Article VII is meant to be the exception applicable only to the President, the Vice-
President, Members of the Cabinet, their deputies and assistants.
This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in Section
13, Article VII cannot possibly refer to the broad exceptions provided under Section 7, Article I-XB of
the 1987 Constitution. To construe said qualifying phrase as respondents would have us do, would
render nugatory and meaningless the manifest intent and purpose of the framers of the Constitution
to impose a stricter prohibition on the President, Vice-President, Members of the Cabinet, their
deputies and assistants with respect to holding other offices or employment in the government
during their tenure. Respondents' interpretation that Section 13 of Article VII admits of the exceptions
found in Section 7, par. (2) of Article IX-B would obliterate the distinction so carefully set by the
framers of the Constitution as to when the high-ranking officials of the Executive Branch from the
President to Assistant Secretary, on the one hand, and the generality of civil servants from the rank
immediately below Assistant Secretary downwards, on the other, may hold any other office or
position in the government during their tenure.
Moreover, respondents' reading of the provisions in question would render certain parts of the
Constitution inoperative. This observation applies particularly to the Vice-President who, under
Section 13 of Article VII is allowed to hold other office or employment when so authorized by the
Constitution, but who as an elective public official under Sec. 7, par. (1) of Article I-XB is absolutely
ineligible "for appointment or designation in any capacity to any public office or position during his
tenure." Surely, to say that the phrase "unless otherwise provided in this Constitution" found in
Section 13, Article VII has reference to Section 7, par. (1) of Article I-XB would render meaningless
the specific provisions of the Constitution authorizing the Vice-President to become a member of the
Cabinet, and to act as President without relinquishing the Vice-Presidency where the President
15
shall not nave been chosen or fails to qualify. Such absurd consequence can be avoided only by
16
interpreting the two provisions under consideration as one, i.e., Section 7, par. (1) of Article I-XB
providing the general rule and the other, i.e., Section 13, Article VII as constituting the exception
thereto. In the same manner must Section 7, par. (2) of Article I-XB be construed vis-a-vis Section
13, Article VII.
It is a well-established rule in Constitutional construction that no one provision of the Constitution is

to be separated from all the others, to be considered alone, but that all the provisions bearing upon a
particular subject are to be brought into view and to be so interpreted as to effectuate the great
purposes of the instrument. Sections bearing on a particular subject should be considered and
17
interpreted together as to effectuate the whole purpose of the Constitution and one section is not to
18
be allowed to defeat another, if by any reasonable construction, the two can be made to stand
together. 19
In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make the words idle
and nugatory. 20
Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition
on the President, Vice-President, members of the Cabinet, their deputies and assistants with respect
to holding multiple offices or employment in the government during their tenure, the exception to this
prohibition must be read with equal severity. On its face, the language of Section 13, Article VII is
prohibitory so that it must be understood as intended to be a positive and unequivocal negation of
the privilege of holding multiple government offices or employment. Verily, wherever the language
used in the constitution is prohibitory, it is to be understood as intended to be a positive and
unequivocal negation. The phrase "unless otherwise provided in this Constitution" must be given a
21
literal interpretation to refer only to those particular instances cited in the Constitution itself, to wit:
the Vice-President being appointed as a member of the Cabinet under Section 3, par. (2), Article VII;
or acting as President in those instances provided under Section 7, pars. (2) and (3), Article VII; and,
the Secretary of Justice being ex-officiomember of the Judicial and Bar Council by virtue of Section 8
(1), Article VIII.
The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of
the Constitution must not, however, be construed as applying to posts occupied by the Executive
officials specified therein without additional compensation in an ex-officio capacity as provided by
law and as required by the primary functions of said officials' office. The reason is that these posts
22
do no comprise "any other office" within the contemplation of the constitutional prohibition but are
properly an imposition of additional duties and functions on said officials. To characterize these
23
posts otherwise would lead to absurd consequences, among which are: The President of the
Philippines cannot chair the National Security Council reorganized under Executive Order No. 115
(December 24, 1986). Neither can the Vice-President, the Executive Secretary, and the Secretaries
of National Defense, Justice, Labor and Employment and Local Government sit in this Council,
which would then have no reason to exist for lack of a chairperson and members. The respective
undersecretaries and assistant secretaries, would also be prohibited.
The Secretary of Labor and Employment cannot chair the Board of Trustees of the National
Manpower and Youth Council (NMYC) or the Philippine Overseas Employment Administration
(POEA), both of which are attached to his department for policy coordination and guidance. Neither
can his Undersecretaries and Assistant Secretaries chair these agencies.
The Secretaries of Finance and Budget cannot sit in the Monetary Board. Neither can their
24
respective undersecretaries and assistant secretaries. The Central Bank Governor would then be
assisted by lower ranking employees in providing policy direction in the areas of money, banking and
credit.
25
Indeed, the framers of our Constitution could not have intended such absurd consequences. A
Constitution, viewed as a continuously operative charter of government, is not to be interpreted as
demanding the impossible or the impracticable; and unreasonable or absurd consequences, if
possible, should be avoided. 26
To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering positions
held without additional compensation in ex-officio capacities as provided by law and as required by
the primary functions of the concerned official's office. The term ex-officio means "from office; by
virtue of office." It refers to an "authority derived from official character merely, not expressly
conferred upon the individual character, but rather annexed to the official position." Ex-
officio likewise denotes an "act done in an official character, or as a consequence of office, and
without any other appointment or authority than that conferred by the office." An ex-officio member
27
of a board is one who is a member by virtue of his title to a certain office, and without further warrant
or appointment. To illustrate, by express provision of law, the Secretary of Transportation and
28
Communications is the ex-officioChairman of the Board of the Philippine Ports Authority, and the
29
Light Rail Transit Authority.30
The Court had occasion to explain the meaning of an ex-officio position in Rafael vs. Embroidery
and Apparel Control and Inspection Board, thus: "An examination of section 2 of the questioned
31
statute (R.A. 3137) reveals that for the chairman and members of the Board to qualify they need only
be designated by the respective department heads. With the exception of the representative from
the private sector, they sit ex-officio. In order to be designated they must already be holding
positions in the offices mentioned in the law. Thus, for instance, one who does not hold a previous
appointment in the Bureau of Customs, cannot, under the act, be designated a representative from
that office. The same is true with respect to the representatives from the other offices. No new
appointments are necessary. This is as it should be, because the representatives so
designated merely perform duties in the Board in addition to those already performed under their
original appointments." 32
The term "primary" used to describe "functions" refers to the order of importance and thus means
chief or principal function. The term is not restricted to the singular but may refer to the plural. The
33
additional duties must not only be closely related to, but must be required by the official's primary
functions. Examples of designations to positions by virtue of one's primary functions are the
Secretaries of Finance and Budget sitting as members of the Monetary Board, and the Secretary of
Transportation and Communications acting as Chairman of the Maritime Industry Authority and the 34
Civil Aeronautics Board.
If the functions required to be performed are merely incidental, remotely related, inconsistent,
incompatible, or otherwise alien to the primary function of a cabinet official, such additional functions
would fall under the purview of "any other office" prohibited by the Constitution. An example would
be the Press Undersecretary sitting as a member of the Board of the Philippine Amusement and
Gaming Corporation. The same rule applies to such positions which confer on the cabinet official
management functions and/or monetary compensation, such as but not limited to chairmanships or
directorships in government-owned or controlled corporations and their subsidiaries.
Mandating additional duties and functions to the President, Vice-President, Cabinet Members, their
deputies or assistants which are not inconsistent with those already prescribed by their offices or
appointments by virtue of their special knowledge, expertise and skill in their respective executive
offices is a practice long-recognized in many jurisdictions. It is a practice justified by the demands of
efficiency, policy direction, continuity and coordination among the different offices in the Executive
Branch in the discharge of its multifarious tasks of executing and implementing laws affecting
national interest and general welfare and delivering basic services to the people. It is consistent with
the power vested on the President and his alter egos, the Cabinet members, to have control of all
the executive departments, bureaus and offices and to ensure that the laws are faithfully
executed. Without these additional duties and functions being assigned to the President and his
35
official family to sit in the governing bodies or boards of governmental agencies or instrumentalities
in an ex-officio capacity as provided by law and as required by their primary functions, they would be
supervision, thereby deprived of the means for control and resulting in an unwieldy and confused
bureaucracy.
It bears repeating though that in order that such additional duties or functions may not transgress the
prohibition embodied in Section 13, Article VII of the 1987 Constitution, such additional duties or
functions must be required by the primary functions of the official concerned, who is to perform the
same in an ex-officio capacity as provided by law, without receiving any additional compensation
therefor.
The ex-officio position being actually and in legal contemplation part of the principal office, it follows
that the official concerned has no right to receive additional compensation for his services in the said
position. The reason is that these services are already paid for and covered by the compensation
attached to his principal office. It should be obvious that if, say, the Secretary of Finance attends a
meeting of the Monetary Board as an ex-officio member thereof, he is actually and in legal
contemplation performing the primary function of his principal office in defining policy in monetary
and banking matters, which come under the jurisdiction of his department. For such attendance,
therefore, he is not entitled to collect any extra compensation, whether it be in the form of a per them
or an honorarium or an allowance, or some other such euphemism. By whatever name it is
designated, such additional compensation is prohibited by the Constitution.
It is interesting to note that during the floor deliberations on the proposal of Commissioner Christian
Monsod to add to Section 7, par. (2), Article IX-B, originally found as Section 3 of the General
Provisions, the exception "unless required by the functions of his position," express reference to
36
certain high-ranking appointive public officials like members of the Cabinet were made. Responding
37
to a query of Commissioner Blas Ople, Commissioner Monsod pointed out that there are instances
when although not required by current law, membership of certain high-ranking executive officials
in other offices and corporations is necessary by reason of said officials' primary functions. The
example given by Commissioner Monsod was the Minister of Trade and Industry. 38
While this exchange between Commissioners Monsod and Ople may be used as authority for saying
that additional functions and duties flowing from the primary functions of the official may be imposed
upon him without offending the constitutional prohibition under consideration, it cannot, however, be
taken as authority for saying that this exception is by virtue of Section 7, par. (2) of Article I-XB. This
colloquy between the two Commissioners took place in the plenary session of September 27, 1986.
Under consideration then was Section 3 of Committee Resolution No. 531 which was the proposed
article on General Provisions. At that time, the article on the Civil Service Commission had been
39
approved on third reading on July 22, 1986, while the article on the Executive Department,
40
containing the more specific prohibition in Section 13, had also been earlier approved on third
reading on August 26, 1986. It was only after the draft Constitution had undergone reformatting and
41
"styling" by the Committee on Style that said Section 3 of the General Provisions became Section 7,
par. (2) of Article IX-B and reworded "Unless otherwise allowed by law or by the primary functions of
his position. . . ."
What was clearly being discussed then were general principles which would serve as constitutional
guidelines in the absence of specific constitutional provisions on the matter. What was primarily at
issue and approved on that occasion was the adoption of the qualified and delimited phrase "primary
functions" as the basis of an exception to the general rule covering all appointive public officials. Had
the Constitutional Commission intended to dilute the specific prohibition in said Section 13 of Article
VII, it could have re-worded said Section 13 to conform to the wider exceptions provided in then
Section 3 of the proposed general Provisions, later placed as Section 7, par. (2) of Article IX-B on
the Civil Service Commission.
That this exception would in the final analysis apply also to the President and his official family is by
reason of the legal principles governing additional functions and duties of public officials rather than
by virtue of Section 7, par. 2, Article IX-B At any rate, we have made it clear that only the additional
functions and duties "required," as opposed to "allowed," by the primary functions may be
considered as not constituting "any other office."
While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional
convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto
may be had only when other guides fail as said proceedings are powerless to vary the terms of the
42
Constitution when the meaning is clear. Debates in the constitutional convention "are of value as
1âwphi1
showing the views of the individual members, and as indicating the reasons for their votes, but they
give us no light as to the views of the large majority who did not talk, much less of the mass of our
fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it
safer to construe the constitution from what appears upon its face." The proper interpretation
43
therefore depends more on how it was understood by the people adopting it than in the framers's
understanding thereof. 44
It being clear, as it was in fact one of its best selling points, that the 1987 Constitution seeks to
prohibit the President, Vice-President, members of the Cabinet, their deputies or assistants from
holding during their tenure multiple offices or employment in the government, except in those cases
specified in the Constitution itself and as above clarified with respect to posts held without additional
compensation in an ex-officio capacity as provided by law and as required by the primary functions
of their office, the citation of Cabinet members (then called Ministers) as examples during the debate
and deliberation on the general rule laid down for all appointive officials should be considered as
mere personal opinions which cannot override the constitution's manifest intent and the people'
understanding thereof.
In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2), Article
IX-B of the 1987 Constitution, Executive Order No. 284 dated July 23, 1987 is unconstitutional.
Ostensibly restricting the number of positions that Cabinet members, undersecretaries or assistant
secretaries may hold in addition to their primary position to not more than two (2) positions in the
government and government corporations, Executive Order No. 284 actually allows them to hold
multiple offices or employment in direct contravention of the express mandate of Section 13, Article
VII of the 1987 Constitution prohibiting them from doing so, unless otherwise provided in the 1987
Constitution itself.
The Court is alerted by respondents to the impractical consequences that will result from a strict
application of the prohibition mandated under Section 13, Article VII on the operations of the
Government, considering that Cabinet members would be stripped of their offices held in an ex-
officio capacity, by reason of their primary positions or by virtue of legislation. As earlier clarified in
this decision, ex-officio posts held by the executive official concerned without additional
compensation as provided by law and as required by the primary functions of his office do not fall
under the definition of "any other office" within the contemplation of the constitutional prohibition.
With respect to other offices or employment held by virtue of legislation, including chairmanships or
directorships in government-owned or controlled corporations and their subsidiaries, suffice it to say
that the feared impractical consequences are more apparent than real. Being head of an executive
department is no mean job. It is more than a full-time job, requiring full attention, specialized
knowledge, skills and expertise. If maximum benefits are to be derived from a department head's
ability and expertise, he should be allowed to attend to his duties and responsibilities without the
distraction of other governmental offices or employment. He should be precluded from dissipating
his efforts, attention and energy among too many positions of responsibility, which may result in
haphazardness and inefficiency. Surely the advantages to be derived from this concentration of
attention, knowledge and expertise, particularly at this stage of our national and economic
development, far outweigh the benefits, if any, that may be gained from a department head
spreading himself too thin and taking in more than what he can handle.
Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders respondents
Secretary of Environment and Natural Resources Fulgencio Factoran, Jr., Secretary of Local
Government Luis Santos, Secretary of National Defense Fidel V. Ramos, Secretary of Health
45
Alfredo R.A. Bengzon and Secretary of the Budget Guillermo Carague to immediately relinquish their
other offices or employment, as herein defined, in the government, including government-owned or
controlled corporations and their subsidiaries. With respect to the other named respondents, the
petitions have become moot and academic as they are no longer occupying the positions
complained of.
During their tenure in the questioned positions, respondents may be considered de facto officers and
as such entitled to emoluments for actual services rendered. It has been held that "in cases where
46
there is no de jure,officer, a de facto officer, who, in good faith has had possession of the office and
has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and
may in an appropriate action recover the salary, fees and other compensations attached to the
office. This doctrine is, undoubtedly, supported on equitable grounds since it seems unjust that the
public should benefit by the services of an officer de facto and then be freed from all liability to pay
any one for such services. Any per diem, allowances or other emoluments received by the
47
respondents by virtue of actual services rendered in the questioned positions may therefore be
retained by them.
WHEREFORE, subject to the qualification above-stated, the petitions are GRANTED. Executive
Order No. 284 is hereby declared null and void and is accordingly set aside.
SO ORDERED.
Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,
Medialdea, Regalado and Davide, Jr., JJ., concur.
Sarmiento and Griño-Aquino, JJ., took no part.
G.R. No. 122156 February 3, 1997
MANILA PRINCE HOTEL petitioner,

vs.
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION,
COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE
COUNSEL, respondents.
BELLOSILLO, J.:
The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of rights, privileges, and
concessions covering the national economy and patrimony, the State shall give preference to
qualified Filipinos, is in oked by petitioner in its bid to acquire 51% of the shares of the Manila Hotel
1
Corporation (MHC) which owns the historic Manila Hotel. Opposing, respondents maintain that the
provision is not self-executing but requires an implementing legislation for its enforcement.
Corollarily, they ask whether the 51% shares form part of the national economy and patrimony
covered by the protective mantle of the Constitution.
The controversy arose when respondent Government Service Insurance System (GSIS), pursuant to
the privatization program of the Philippine Government under Proclamation No. 50 dated 8
December 1986, decided to sell through public bidding 30% to 51% of the issued and outstanding
shares of respondent MHC. The winning bidder, or the eventual "strategic partner," is to provide
management expertise and/or an international marketing/reservation system, and financial support
to strengthen the profitability and performance of the Manila Hotel. In a close bidding held on 18
2
September 1995 only two (2) bidders participated: petitioner Manila Prince Hotel Corporation, a
Filipino corporation, which offered to buy 51% of the MHC or 15,300,000 shares at P41.58 per
share, and Renong Berhad, a Malaysian firm, with ITT-Sheraton as its hotel operator, which bid for
the same number of shares at P44.00 per share, or P2.42 more than the bid of petitioner.
Pertinent provisions of the bidding rules prepared by respondent GSIS state —
I. EXECUTION OF THE NECESSARY CONTRACTS WITH

GSIS/MHC —
1. The Highest Bidder must comply with the conditions set forth below by October 23,
1995 (reset to November 3, 1995) or the Highest Bidder will lose the right to
purchase the Block of Shares and GSIS will instead offer the Block of Shares to the
other Qualified Bidders:
a. The Highest Bidder must negotiate and execute with the

GSIS/MHC the Management Contract, International
Marketing/Reservation System Contract or other type of contract
specified by the Highest Bidder in its strategic plan for the Manila
Hotel. . . .
b. The Highest Bidder must execute the Stock Purchase and Sale
Agreement with GSIS . . . .
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC

PARTNER —
The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the
following conditions are met:
a. Execution of the necessary contracts with GSIS/MHC not later than

October 23, 1995 (reset to November 3, 1995); and
b. Requisite approvals from the GSIS/MHC and COP (Committee on

Privatization)/OGCC (Office of the Government Corporate Counsel)
are obtained. 3
Pending the declaration of Renong Berhad as the winning bidder/strategic partner and the execution
of the necessary contracts, petitioner in a letter to respondent GSIS dated 28 September 1995
matched the bid price of P44.00 per share tendered by Renong Berhad. In a subsequent letter
4
dated 10 October 1995 petitioner sent a manager's check issued by Philtrust Bank for Thirty-three
Million Pesos (P33.000.000.00) as Bid Security to match the bid of the Malaysian Group,
Messrs. Renong Berhad . . . which respondent GSIS refused to accept.
5
On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded the tender of the
matching bid and that the sale of 51% of the MHC may be hastened by respondent GSIS and
consummated with Renong Berhad, petitioner came to this Court on prohibition and mandamus. On
18 October 1995 the Court issued a temporary restraining order enjoining respondents from
perfecting and consummating the sale to the Malaysian firm.
On 10 September 1996 the instant case was accepted by the Court En Banc after it was referred to
it by the First Division. The case was then set for oral arguments with former Chief Justice Enrique
M. Fernando and Fr. Joaquin G. Bernas, S.J., as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution and submits
that the Manila Hotel has been identified with the Filipino nation and has practically become a
historical monument which reflects the vibrancy of Philippine heritage and culture. It is a proud
legacy of an earlier generation of Filipinos who believed in the nobility and sacredness of
independence and its power and capacity to release the full potential of the Filipino people. To all
intents and purposes, it has become a part of the national patrimony. Petitioner also argues that
6
since 51% of the shares of the MHC carries with it the ownership of the business of the hotel which
is owned by respondent GSIS, a government-owned and controlled corporation, the hotel business
of respondent GSIS being a part of the tourism industry is unquestionably a part of the national
economy. Thus, any transaction involving 51% of the shares of stock of the MHC is clearly covered
by the term national economy, to which Sec. 10, second par., Art. XII, 1987 Constitution, applies. 7
It is also the thesis of petitioner that since Manila Hotel is part of the national patrimony and its
business also unquestionably part of the national economy petitioner should be preferred after it has
matched the bid offer of the Malaysian firm. For the bidding rules mandate that if for any reason, the
Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified
Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match
the highest bid in terms of price per share.8
Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the 1987
Constitution is merely a statement of principle and policy since it is not a self-executing provision
and requires implementing legislation(s) . . . Thus, for the said provision to Operate, there must be
existing laws "to lay down conditions under which business may be done." 9
Second, granting that this provision is self-executing, Manila Hotel does not fall under the term
national patrimony which only refers to lands of the public domain, waters, minerals, coal, petroleum
and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and
fauna and all marine wealth in its territorial sea, and exclusive marine zone as cited in the first and
second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to respondents, while petitioner
speaks of the guests who have slept in the hotel and the events that have transpired therein which
make the hotel historic, these alone do not make the hotel fall under the patrimony of the nation.
What is more, the mandate of the Constitution is addressed to the State, not to respondent GSIS
which possesses a personality of its own separate and distinct from the Philippines as a State.
Third, granting that the Manila Hotel forms part of the national patrimony, the constitutional provision
invoked is still inapplicable since what is being sold is only 51% of the outstanding shares of the
corporation, not the hotel building nor the land upon which the building stands. Certainly, 51% of the
equity of the MHC cannot be considered part of the national patrimony. Moreover, if the disposition
of the shares of the MHC is really contrary to the Constitution, petitioner should have questioned it
right from the beginning and not after it had lost in the bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules which provides that if
for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to
the other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are
willing to match the highest bid in terms of price per share, is misplaced. Respondents postulate that
the privilege of submitting a matching bid has not yet arisen since it only takes place if for any
reason, the Highest Bidder cannot be awarded the Block of Shares. Thus the submission by
petitioner of a matching bid is premature since Renong Berhad could still very well be awarded the
block of shares and the condition giving rise to the exercise of the privilege to submit a matching bid
had not yet taken place.
Finally, the prayer for prohibition grounded on grave abuse of discretion should fail since respondent
GSIS did not exercise its discretion in a capricious, whimsical manner, and if ever it did abuse its
discretion it was not so patent and gross as to amount to an evasion of a positive duty or a virtual
refusal to perform a duty enjoined by law. Similarly, the petition for mandamus should fail as
petitioner has no clear legal right to what it demands and respondents do not have an imperative
duty to perform the act required of them by petitioner.
We now resolve. A constitution is a system of fundamental laws for the governance and
administration of a nation. It is supreme, imperious, absolute and unalterable except by the authority
from which it emanates. It has been defined as the fundamental and paramount law of the
nation. It prescribes the permanent framework of a system of government, assigns to the different
10
departments their respective powers and duties, and establishes certain fixed principles on which
government is founded. The fundamental conception in other words is that it is a supreme law to
which all other laws must conform and in accordance with which all private rights must be
determined and all public authority administered. Under the doctrine of constitutional supremacy, if
11
a law or contract violates any norm of the constitution that law or contract whether promulgated by
the legislative or by the executive branch or entered into by private persons for private purposes is
null and void and without any force and effect. Thus, since the Constitution is the fundamental,
paramount and supreme law of the nation, it is deemed written in every statute and contract.
Admittedly, some constitutions are merely declarations of policies and principles. Their provisions
command the legislature to enact laws and carry out the purposes of the framers who merely
establish an outline of government providing for the different departments of the governmental
machinery and securing certain fundamental and inalienable rights of citizens. A provision which
12
lays down a general principle, such as those found in Art. II of the 1987 Constitution, is usually not
self-executing. But a provision which is complete in itself and becomes operative without the aid of
supplementary or enabling legislation, or that which supplies sufficient rule by means of which the
right it grants may be enjoyed or protected, is self-executing. Thus a constitutional provision is self-
executing if the nature and extent of the right conferred and the liability imposed are fixed by the
constitution itself, so that they can be determined by an examination and construction of its terms,
and there is no language indicating that the subject is referred to the legislature for action.
13
As against constitutions of the past, modern constitutions have been generally drafted upon a
different principle and have often become in effect extensive codes of laws intended to operate
directly upon the people in a manner similar to that of statutory enactments, and the function of
constitutional conventions has evolved into one more like that of a legislative body. Hence, unless it
is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the
presumption now is that all provisions of the constitution are self-executing If the constitutional
provisions are treated as requiring legislation instead of self-executing, the legislature would have
the power to ignore and practically nullify the mandate of the fundamental law. This can be
14
cataclysmic. That is why the prevailing view is, as it has always been, that —
. . . in case of doubt, the Constitution should be considered self-executing rather than

non-self-executing . . . . Unless the contrary is clearly intended, the provisions of the
Constitution should be considered self-executing, as a contrary rule would give the
legislature discretion to determine when, or whether, they shall be effective. These
provisions would be subordinated to the will of the lawmaking body, which could
make them entirely meaningless by simply refusing to pass the needed implementing
statute.
15
Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is clearly not self-
executing, as they quote from discussions on the floor of the 1986 Constitutional Commission —
MR. RODRIGO. Madam President, I am asking this question as the

Chairman of the Committee on Style. If the wording of
"PREFERENCE" is given to QUALIFIED FILIPINOS," can it be
understood as a preference to qualified Filipinos vis-a-vis Filipinos
who are not qualified. So, why do we not make it clear? To qualified
Filipinos as against aliens?
THE PRESIDENT. What is the question of Commissioner Rodrigo? Is

it to remove the word "QUALIFIED?".
MR. RODRIGO. No, no, but say definitely "TO QUALIFIED

FILIPINOS" as against whom? As against aliens or over aliens?
MR. NOLLEDO. Madam President, I think that is understood. We use

the word "QUALIFIED" because the existing laws or prospective laws
will always lay down conditions under which business may be
done. For example, qualifications on the setting up of other financial
structures, et cetera (emphasis supplied by respondents)
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO Yes, 16
Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as not to make it appear
that it is non-self-executing but simply for purposes of style. But, certainly, the legislature is not
precluded from enacting other further laws to enforce the constitutional provision so long as the
contemplated statute squares with the Constitution. Minor details may be left to the legislature
without impairing the self-executing nature of constitutional provisions.
In self-executing constitutional provisions, the legislature may still enact legislation to facilitate the
exercise of powers directly granted by the constitution, further the operation of such a provision,
prescribe a practice to be used for its enforcement, provide a convenient remedy for the protection of
the rights secured or the determination thereof, or place reasonable safeguards around the exercise
of the right. The mere fact that legislation may supplement and add to or prescribe a penalty for the
violation of a self-executing constitutional provision does not render such a provision ineffective in
the absence of such legislation. The omission from a constitution of any express provision for a
remedy for enforcing a right or liability is not necessarily an indication that it was not intended to be
self-executing. The rule is that a self-executing provision of the constitution does not necessarily
exhaust legislative power on the subject, but any legislation must be in harmony with the
constitution, further the exercise of constitutional right and make it more available. Subsequent
17
legislation however does not necessarily mean that the subject constitutional provision is not, by
itself, fully enforceable.
Respondents also argue that the non-self-executing nature of Sec. 10, second par., of Art. XII is
implied from the tenor of the first and third paragraphs of the same section which undoubtedly are
not self-executing. The argument is flawed. If the first and third paragraphs are not self-executing
18
because Congress is still to enact measures to encourage the formation and operation of enterprises
fully owned by Filipinos, as in the first paragraph, and the State still needs legislation to regulate and
exercise authority over foreign investments within its national jurisdiction, as in the third paragraph,
then a fortiori, by the same logic, the second paragraph can only be self-executing as it does not by
its language require any legislation in order to give preference to qualified Filipinos in the grant of
rights, privileges and concessions covering the national economy and patrimony. A constitutional
provision may be self-executing in one part and non-self-executing in another. 19
Even the cases cited by respondents holding that certain constitutional provisions are merely
statements of principles and policies, which are basically not self-executing and only placed in the
Constitution as moral incentives to legislation, not as judicially enforceable rights — are simply not in
point. Basco v. Philippine Amusements and Gaming Corporation speaks of constitutional
20
provisions on personal dignity, the sanctity of family life, the vital role of the youth in nation-
21 22
building the promotion of social justice, and the values of education. Tolentino v. Secretary of
23 24 25
Finance refers to the constitutional provisions on social justice and human rights and on
26 27
education. Lastly, Kilosbayan, Inc. v. Morato cites provisions on the promotion of general

28 29
welfare, the sanctity of family life, the vital role of the youth in nation-building and the promotion
30 31 32
of total human liberation and development. A reading of these provisions indeed clearly shows that
33
they are not judicially enforceable constitutional rights but merely guidelines for legislation. The very
terms of the provisions manifest that they are only principles upon which the legislations must be
based. Res ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the of the 1987 Constitution is a mandatory,
positive command which is complete in itself and which needs no further guidelines or implementing
laws or rules for its enforcement. From its very words the provision does not require any legislation
to put it in operation. It is per se judicially enforceable When our Constitution mandates that [i]n the
grant of rights, privileges, and concessions covering national economy and patrimony, the State
shall give preference to qualified Filipinos, it means just that — qualified Filipinos shall be preferred.
And when our Constitution declares that a right exists in certain specified circumstances an action
may be maintained to enforce such right notwithstanding the absence of any legislation on the
subject; consequently, if there is no statute especially enacted to enforce such constitutional right,
such right enforces itself by its own inherent potency and puissance, and from which all legislations
must take their bearings. Where there is a right there is a remedy. Ubi jus ibi remedium.
As regards our national patrimony, a member of the 1986 Constitutional Commission explains — 34
The patrimony of the Nation that should be conserved and developed refers not only
to out rich natural resources but also to the cultural heritage of out race. It also refers
to our intelligence in arts, sciences and letters. Therefore, we should develop not
only our lands, forests, mines and other natural resources but also the mental ability
or faculty of our people.
We agree. In its plain and ordinary meaning, the term patrimony pertains to heritage. When the
35
Constitution speaks of national patrimony, it refers not only to the natural resources of the
Philippines, as the Constitution could have very well used the term natural resources, but also to
the cultural heritage of the Filipinos.
Manila Hotel has become a landmark — a living testimonial of Philippine heritage. While it was
restrictively an American hotel when it first opened in 1912, it immediately evolved to be truly
Filipino, Formerly a concourse for the elite, it has since then become the venue of various significant
events which have shaped Philippine history. It was called the Cultural Center of the 1930's. It was
the site of the festivities during the inauguration of the Philippine Commonwealth. Dubbed as
the Official Guest House of the Philippine Government. it plays host to dignitaries and official visitors
who are accorded the traditional Philippine hospitality. 36
The history of the hotel has been chronicled in the book The Manila Hotel: The Heart and Memory of
a City. During World War II the hotel was converted by the Japanese Military Administration into a
37
military headquarters. When the American forces returned to recapture Manila the hotel was
selected by the Japanese together with Intramuros as the two (2) places fro their final stand.
Thereafter, in the 1950's and 1960's, the hotel became the center of political activities, playing host
to almost every political convention. In 1970 the hotel reopened after a renovation and reaped
numerous international recognitions, an acknowledgment of the Filipino talent and ingenuity. In 1986
the hotel was the site of a failed coup d' etat where an aspirant for vice-president was "proclaimed"
President of the Philippine Republic.
For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs and failures,
loves and frustrations of the Filipinos; its existence is impressed with public interest; its own
historicity associated with our struggle for sovereignty, independence and nationhood. Verily, Manila
Hotel has become part of our national economy and patrimony. For sure, 51% of the equity of the
MHC comes within the purview of the constitutional shelter for it comprises the majority and
controlling stock, so that anyone who acquires or owns the 51% will have actual control and
management of the hotel. In this instance, 51% of the MHC cannot be disassociated from the hotel
and the land on which the hotel edifice stands. Consequently, we cannot sustain respondents' claim
that the Filipino First Policy provision is not applicable since what is being sold is only 51% of
the outstanding shares of the corporation, not the Hotel building nor the land upon which the building
stands. 38
The argument is pure sophistry. The term qualified Filipinos as used in Our Constitution also
includes corporations at least 60% of which is owned by Filipinos. This is very clear from the
proceedings of the 1986 Constitutional Commission
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I would like to introduce an amendment to the Nolledo

amendment. And the amendment would consist in substituting the
words "QUALIFIED FILIPINOS" with the following: "CITIZENS OF
THE PHILIPPINES OR CORPORATIONS OR ASSOCIATIONS
WHOSE CAPITAL OR CONTROLLING STOCK IS WHOLLY
OWNED BY SUCH CITIZENS.
x x x x x x x x x
MR. MONSOD. Madam President, apparently the proponent is
agreeable, but we have to raise a question. Suppose it is a
corporation that is 80-percent Filipino, do we not give it preference?
MR. DAVIDE. The Nolledo amendment would refer to an individual

Filipino. What about a corporation wholly owned by Filipino citizens?
MR. MONSOD. At least 60 percent, Madam President.
MR. DAVIDE. Is that the intention?
MR. MONSOD. Yes, because, in fact, we would be limiting it if we

say that the preference should only be 100-percent Filipino.
MR: DAVIDE. I want to get that meaning clear because "QUALIFIED

FILIPINOS" may refer only to individuals and not to juridical
personalities or entities.
MR. MONSOD. We agree, Madam President. 39
x x x x x x x x x
MR. RODRIGO. Before we vote, may I request that the amendment

be read again.
MR. NOLLEDO. The amendment will read: "IN THE GRANT OF

RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE
NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS." And the word
"Filipinos" here, as intended by the proponents, will include not only
individual Filipinos but also Filipino-controlled entities or entities fully-
controlled by Filipinos. 40
The phrase preference to qualified Filipinos was explained thus —
MR. FOZ. Madam President, I would like to request Commissioner

Nolledo to please restate his amendment so that I can ask a
question.
MR. NOLLEDO. "IN THE GRANT OF RIGHTS, PRIVILEGES AND

CONCESSIONS COVERING THE NATIONAL ECONOMY AND
PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO
QUALIFIED FILIPINOS."
MR FOZ. In connection with that amendment, if a foreign enterprise is

qualified and a Filipino enterprise is also qualified, will the Filipino
enterprise still be given a preference?
MR. NOLLEDO. Obviously.

MR. FOZ. If the foreigner is more qualified in some aspects than the
Filipino enterprise, will the Filipino still be preferred?
MR. NOLLEDO. The answer is "yes."
MR. FOZ. Thank you, 41
Expounding further on the Filipino First Policy provision Commissioner Nolledo continues —
MR. NOLLEDO. Yes, Madam President. Instead of "MUST," it will be "SHALL —

THE STATE SHALL GlVE PREFERENCE TO QUALIFIED FILIPINOS. This
embodies the so-called "Filipino First" policy. That means that Filipinos should be
given preference in the grant of concessions, privileges and rights covering the
national patrimony. 42
The exchange of views in the sessions of the Constitutional Commission regarding the subject
provision was still further clarified by Commissioner Nolledo —
43
Paragraph 2 of Section 10 explicitly mandates the "Pro-Filipino" bias in all economic

concerns. It is better known as the FILIPINO FIRST Policy . . . This provision was
never found in previous Constitutions . . . .
The term "qualified Filipinos" simply means that preference shall be given to those
citizens who can make a viable contribution to the common good, because of
credible competence and efficiency. It certainly does NOT mandate the pampering
and preferential treatment to Filipino citizens or organizations that are incompetent or
inefficient, since such an indiscriminate preference would be counter productive and
inimical to the common good.
In the granting of economic rights, privileges, and concessions, when a choice has to
be made between a "qualified foreigner" end a "qualified Filipino," the latter shall be
chosen over the former."
Lastly, the word qualified is also determinable. Petitioner was so considered by respondent GSIS
and selected as one of the qualified bidders. It was pre-qualified by respondent GSIS in accordance
with its own guidelines so that the sole inference here is that petitioner has been found to be
possessed of proven management expertise in the hotel industry, or it has significant equity
ownership in another hotel company, or it has an overall management and marketing proficiency to
successfully operate the Manila Hotel. 44
The penchant to try to whittle away the mandate of the Constitution by arguing that the subject
provision is not self-executory and requires implementing legislation is quite disturbing. The attempt
to violate a clear constitutional provision — by the government itself — is only too distressing. To
adopt such a line of reasoning is to renounce the duty to ensure faithfulness to the Constitution. For,
even some of the provisions of the Constitution which evidently need implementing legislation have
juridical life of their own and can be the source of a judicial remedy. We cannot simply afford the
government a defense that arises out of the failure to enact further enabling, implementing or guiding
legislation. In fine, the discourse of Fr. Joaquin G. Bernas, S.J., on constitutional government is apt
—
The executive department has a constitutional duty to implement laws, including the
Constitution, even before Congress acts — provided that there are discoverable legal
standards for executive action. When the executive acts, it must be guided by its own
understanding of the constitutional command and of applicable laws. The
responsibility for reading and understanding the Constitution and the laws is not the
sole prerogative of Congress. If it were, the executive would have to ask Congress,
or perhaps the Court, for an interpretation every time the executive is confronted by a
constitutional command. That is not how constitutional government operates. 45
Respondents further argue that the constitutional provision is addressed to the State, not to
respondent GSIS which by itself possesses a separate and distinct personality. This argument again
is at best specious. It is undisputed that the sale of 51% of the MHC could only be carried out with
the prior approval of the State acting through respondent Committee on Privatization. As correctly
pointed out by Fr. Joaquin G. Bernas, S.J., this fact alone makes the sale of the assets of
respondents GSIS and MHC a "state action." In constitutional jurisprudence, the acts of persons
distinct from the government are considered "state action" covered by the Constitution (1) when the
activity it engages in is a "public function;" (2) when the government is so significantly involved with
the private actor as to make the government responsible for his action; and, (3) when the
government has approved or authorized the action. It is evident that the act of respondent GSIS in
selling 51% of its share in respondent MHC comes under the second and third categories of "state
action." Without doubt therefore the transaction. although entered into by respondent GSIS, is in fact
a transaction of the State and therefore subject to the constitutional command. 46
When the Constitution addresses the State it refers not only to the people but also to the
government as elements of the State. After all, government is composed of three (3) divisions of
power — legislative, executive and judicial. Accordingly, a constitutional mandate directed to the
State is correspondingly directed to the three(3) branches of government. It is undeniable that in this
case the subject constitutional injunction is addressed among others to the Executive Department
and respondent GSIS, a government instrumentality deriving its authority from the State.
It should be stressed that while the Malaysian firm offered the higher bid it is not yet the winning
bidder. The bidding rules expressly provide that the highest bidder shall only be declared the winning
bidder after it has negotiated and executed the necessary contracts, and secured the requisite
approvals. Since the "Filipino First Policy provision of the Constitution bestows preference on
qualified Filipinos the mere tending of the highest bid is not an assurance that the highest bidder will
be declared the winning bidder. Resultantly, respondents are not bound to make the award yet, nor
are they under obligation to enter into one with the highest bidder. For in choosing the awardee
respondents are mandated to abide by the dictates of the 1987 Constitution the provisions of which
are presumed to be known to all the bidders and other interested parties.
Adhering to the doctrine of constitutional supremacy, the subject constitutional provision is, as it
should be, impliedly written in the bidding rules issued by respondent GSIS, lest the bidding rules be
nullified for being violative of the Constitution. It is a basic principle in constitutional law that all laws
and contracts must conform with the fundamental law of the land. Those which violate the
Constitution lose their reason for being.
Paragraph V. J. 1 of the bidding rules provides that [if] for any reason the Highest Bidder cannot be
awarded the Block of Shares, GSIS may offer this to other Qualified Bidders that have validly
submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of
price per
share. Certainly, the constitutional mandate itself is reason enough not to award the block of
47
shares immediately to the foreign bidder notwithstanding its submission of a higher, or even the
highest, bid. In fact, we cannot conceive of a stronger reason than the constitutional injunction itself.
In the instant case, where a foreign firm submits the highest bid in a public bidding concerning the
grant of rights, privileges and concessions covering the national economy and patrimony, thereby
exceeding the bid of a Filipino, there is no question that the Filipino will have to be allowed to match
the bid of the foreign entity. And if the Filipino matches the bid of a foreign firm the award should go
to the Filipino. It must be so if we are to give life and meaning to the Filipino First Policy provision of
the 1987 Constitution. For, while this may neither be expressly stated nor contemplated in the
bidding rules, the constitutional fiat is, omnipresent to be simply disregarded. To ignore it would be to
sanction a perilous skirting of the basic law.
This Court does not discount the apprehension that this policy may discourage foreign investors. But
the Constitution and laws of the Philippines are understood to be always open to public scrutiny.
These are given factors which investors must consider when venturing into business in a foreign
jurisdiction. Any person therefore desiring to do business in the Philippines or with any of its
agencies or instrumentalities is presumed to know his rights and obligations under the Constitution
and the laws of the forum.
The argument of respondents that petitioner is now estopped from questioning the sale to Renong
Berhad since petitioner was well aware from the beginning that a foreigner could participate in the
bidding is meritless. Undoubtedly, Filipinos and foreigners alike were invited to the bidding. But
foreigners may be awarded the sale only if no Filipino qualifies, or if the qualified Filipino fails to
match the highest bid tendered by the foreign entity. In the case before us, while petitioner was
already preferred at the inception of the bidding because of the constitutional mandate, petitioner
had not yet matched the bid offered by Renong Berhad. Thus it did not have the right or personality
then to compel respondent GSIS to accept its earlier bid. Rightly, only after it had matched the bid of
the foreign firm and the apparent disregard by respondent GSIS of petitioner's matching bid did the
latter have a cause of action.
Besides, there is no time frame for invoking the constitutional safeguard unless perhaps the award
has been finally made. To insist on selling the Manila Hotel to foreigners when there is a Filipino
group willing to match the bid of the foreign group is to insist that government be treated as any
other ordinary market player, and bound by its mistakes or gross errors of judgment, regardless of
the consequences to the Filipino people. The miscomprehension of the Constitution is regrettable.
Thus we would rather remedy the indiscretion while there is still an opportunity to do so than let the
government develop the habit of forgetting that the Constitution lays down the basic conditions and
parameters for its actions.
Since petitioner has already matched the bid price tendered by Renong Berhad pursuant to the
bidding rules, respondent GSIS is left with no alternative but to award to petitioner the block of
shares of MHC and to execute the necessary agreements and documents to effect the sale in
accordance not only with the bidding guidelines and procedures but with the Constitution as well.
The refusal of respondent GSIS to execute the corresponding documents with petitioner as provided
in the bidding rules after the latter has matched the bid of the Malaysian firm clearly constitutes
grave abuse of discretion.
The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987 Constitution
not merely to be used as a guideline for future legislation but primarily to be enforced; so must it be
enforced. This Court as the ultimate guardian of the Constitution will never shun, under any
reasonable circumstance, the duty of upholding the majesty of the Constitution which it is tasked to
defend. It is worth emphasizing that it is not the intention of this Court to impede and diminish, much
less undermine, the influx of foreign investments. Far from it, the Court encourages and welcomes
more business opportunities but avowedly sanctions the preference for Filipinos whenever such
preference is ordained by the Constitution. The position of the Court on this matter could have not
been more appropriately articulated by Chief Justice Narvasa —
As scrupulously as it has tried to observe that it is not its function to substitute its
judgment for that of the legislature or the executive about the wisdom and feasibility
of legislation economic in nature, the Supreme Court has not been spared criticism
for decisions perceived as obstacles to economic progress and development . . . in
connection with a temporary injunction issued by the Court's First Division against
the sale of the Manila Hotel to a Malaysian Firm and its partner, certain statements
were published in a major daily to the effect that injunction "again demonstrates that
the Philippine legal system can be a major obstacle to doing business here.
Let it be stated for the record once again that while it is no business of the Court to
intervene in contracts of the kind referred to or set itself up as the judge of whether
they are viable or attainable, it is its bounden duty to make sure that they do not
violate the Constitution or the laws, or are not adopted or implemented with grave
abuse of discretion amounting to lack or excess of jurisdiction. It will never shirk that
duty, no matter how buffeted by winds of unfair and ill-informed criticism. 48
Privatization of a business asset for purposes of enhancing its business viability and preventing
further losses, regardless of the character of the asset, should not take precedence over non-
material values. A commercial, nay even a budgetary, objective should not be pursued at the
expense of national pride and dignity. For the Constitution enshrines higher and nobler non-material
values. Indeed, the Court will always defer to the Constitution in the proper governance of a free
society; after all, there is nothing so sacrosanct in any economic policy as to draw itself beyond
judicial review when the Constitution is involved. 49
Nationalism is inherent, in the very concept of the Philippines being a democratic and republican
state, with sovereignty residing in the Filipino people and from whom all government authority
emanates. In nationalism, the happiness and welfare of the people must be the goal. The nation-
state can have no higher purpose. Any interpretation of any constitutional provision must adhere to
such basic concept. Protection of foreign investments, while laudible, is merely a policy. It cannot
override the demands of nationalism. 50
The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to be sold to the
highest bidder solely for the sake of privatization. We are not talking about an ordinary piece of
property in a commercial district. We are talking about a historic relic that has hosted many of the
most important events in the short history of the Philippines as a nation. We are talking about a hotel
where heads of states would prefer to be housed as a strong manifestation of their desire to cloak
the dignity of the highest state function to their official visits to the Philippines. Thus the Manila Hotel
has played and continues to play a significant role as an authentic repository of twentieth century
Philippine history and culture. In this sense, it has become truly a reflection of the Filipino soul — a
place with a history of grandeur; a most historical setting that has played a part in the shaping of a
country. 51
This Court cannot extract rhyme nor reason from the determined efforts of respondents to sell the
historical landmark — this Grand Old Dame of hotels in Asia — to a total stranger. For, indeed, the
conveyance of this epic exponent of the Filipino psyche to alien hands cannot be less than
mephistophelian for it is, in whatever manner viewed, a veritable alienation of a nation's soul for
some pieces of foreign silver. And so we ask: What advantage, which cannot be equally drawn from
a qualified Filipino, can be gained by the Filipinos Manila Hotel — and all that it stands for — is sold
to a non-Filipino? How much of national pride will vanish if the nation's cultural heritage is entrusted
to a foreign entity? On the other hand, how much dignity will be preserved and realized if the
national patrimony is safekept in the hands of a qualified, zealous and well-meaning Filipino? This is
the plain and simple meaning of the Filipino First Policy provision of the Philippine Constitution. And
this Court, heeding the clarion call of the Constitution and accepting the duty of being the elderly
watchman of the nation, will continue to respect and protect the sanctity of the Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL

CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT
CORPORATE COUNSEL are directed to CEASE and DESIST from selling 51% of the shares of the
Manila Hotel Corporation to RENONG BERHAD, and to ACCEPT the matching bid of petitioner
MANILA PRINCE HOTEL CORPORATION to purchase the subject 51% of the shares of the Manila
Hotel Corporation at P44.00 per share and thereafter to execute the necessary clearances and to do
such other acts and deeds as may be necessary for purpose.
SO ORDERED.
Regalado, Davide, Jr., Romero, Kapunan, Francisco and Hermosisima, Jr., JJ., concur.
Separate Opinions
PADILLA, J., concurring:
I concur with the ponencia of Mr. Justice Bellosillo. At the same time, I would like to expound a bit
more on the concept of national patrimony as including within its scope and meaning institutions
such as the Manila Hotel.
It is argued by petitioner that the Manila Hotel comes under "national patrimony" over which qualified
Filipinos have the preference, in ownership and operation. The Constitutional provision on point
states:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall Give preference to qualified Filipinos.
1
Petitioner's argument, I believe, is well taken. Under the 1987 Constitution, "national patrimony"
consists of the natural resources provided by Almighty God (Preamble) in our territory (Article I)
consisting of land, sea, and air. study of the 1935 Constitution, where the concept of "national
2
patrimony" originated, would show that its framers decided to adopt the even more comprehensive
expression "Patrimony of the Nation" in the belief that the phrase encircles a concept embracing not
only their natural resources of the country but practically everything that belongs to the Filipino
people, the tangible and the material as well as the intangible and the spiritual assets and
possessions of the people. It is to be noted that the framers did not stop with conservation. They
knew that conservation alone does not spell progress; and that this may be achieved only through
development as a correlative factor to assure to the people not only the exclusive ownership, but
also the exclusive benefits of their national patrimony). 3
Moreover, the concept of national patrimony has been viewed as referring not only to our rich natural
resources but also to the cultural heritage of our
race.4
There is no doubt in my mind that the Manila Hotel is very much a part of our national patrimony
and, as such, deserves constitutional protection as to who shall own it and benefit from its operation.
This institution has played an important role in our nation's history, having been the venue of many a
historical event, and serving as it did, and as it does, as the Philippine Guest House for visiting
foreign heads of state, dignitaries, celebrities, and others. 5
It is therefore our duty to protect and preserve it for future generations of Filipinos. As President
Manuel L. Quezon once said, we must exploit the natural resources of our country, but we should do
so with. an eye to the welfare of the future generations. In other words, the leaders of today are the
trustees of the patrimony of our race. To preserve our national patrimony and reserve it for Filipinos
was the intent of the distinguished gentlemen who first framed our Constitution. Thus, in debating
the need for nationalization of our lands and natural resources, one expounded that we should "put
more teeth into our laws, and; not make the nationalization of our lands and natural resources a
subject of ordinary legislation but of constitutional enactment" To quote further: "Let not our children
6
be mere tenants and trespassers in their own country. Let us preserve and bequeath to them what is
rightfully theirs, free from all foreign liens and encumbrances". 7
Now, a word on preference. In my view "preference to qualified Filipinos", to be meaningful, must

refer not only to things that are peripheral, collateral, or tangential. It must touch and affect the very
"heart of the existing order." In the field of public bidding in the acquisition of things that pertain to
the national patrimony, preference to qualified Filipinos must allow a qualified Filipino to match or
equal the higher bid of a non-Filipino; the preference shall not operate only when the bids of the
qualified Filipino and the non-Filipino are equal in which case, the award should undisputedly be
made to the qualified Filipino. The Constitutional preference should give the qualified Filipino an
opportunity to match or equal the higher bid of the non-Filipino bidder if the preference of the
qualified Filipino bidder is to be significant at all.
It is true that in this present age of globalization of attitude towards foreign investments in our
country, stress is on the elimination of barriers to foreign trade and investment in the country. While
government agencies, including the courts should re-condition their thinking to such a trend, and
make it easy and even attractive for foreign investors to come to our shores, yet we should not
preclude ourselves from reserving to us Filipinos certain areas where our national identity, culture
and heritage are involved. In the hotel industry, for instance, foreign investors have established
themselves creditably, such as in the Shangri-La, the Nikko, the Peninsula, and Mandarin Hotels.
This should not stop us from retaining 51% of the capital stock of the Manila Hotel Corporation in the
hands of Filipinos. This would be in keeping with the intent of the Filipino people to preserve our
national patrimony, including our historical and cultural heritage in the hands of Filipinos.
VITUG, J., concurring:
I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements, shared by Mr. Justice
Reynato S. Puno in a well written separate (dissenting) opinion, that:
First, the provision in our fundamental law which provides that "(I)n the grant of rights, privileges, and
qualified Filipinos" is self-executory. The provision verily does not need, although it can obviously be
1
amplified or regulated by, an enabling law or a set of rules.
Second, the term "patrimony" does not merely refer to the country's natural resources but also to its
cultural heritage. A "historical landmark," to use the words of Mr. Justice Justo P. Torres, Jr., Manila
Hotel has now indeed become part of Philippine heritage.
Third, the act of the Government Service Insurance System ("GSIS"), a government entity which
derives its authority from the State, in selling 51% of its share in MHC should be considered an act
of the State subject to the Constitutional mandate.
On the pivotal issue of the degree of "preference to qualified Filipinos," I find it somewhat difficult to
take the same path traversed by the forceful reasoning of Justice Puno. In the particular case before
us, the only meaningful preference, it seems, would really be to allow the qualified Filipino to match
the foreign bid for, as a particular matter, I cannot see any bid that literally calls for millions of dollars
to be at par (to the last cent) with another. The magnitude of the magnitude of the bids is such that it
becomes hardly possible for the competing bids to stand exactly "equal" which alone, under the
dissenting view, could trigger the right of preference.
It is most unfortunate that Renong Berhad has not been spared this great disappointment, a letdown
that it did not deserve, by a simple and timely advise of the proper rules of bidding along with the
peculiar constitutional implications of the proposed transaction. It is also regrettable that the Court at
time is seen, to instead, be the refuge for bureaucratic inadequate which create the perception that it
even takes on non-justiciable controversies.
All told, I am constrained to vote for granting the petition.
MENDOZA, J., concurring in the judgment:
I take the view that in the context of the present controversy the only way to enforce the
constitutional mandate that "[i]n the grant of rights, privileges and concessions covering the national
patrimony the State shall give preference to qualified Filipinos" is to allow petitioner Philippine
1
corporation to equal the bid of the Malaysian firm Renong Berhad for the purchase of the controlling
shares of stocks in the Manila Hotel Corporation. Indeed, it is the only way a qualified Filipino of
Philippine corporation can be given preference in the enjoyment of a right, privilege or concession
given by the State, by favoring it over a foreign national corporation.
Under the rules on public bidding of the Government Service and Insurance System, if petitioner and
the Malaysian firm had offered the same price per share, "priority [would be given] to the bidder
seeking the larger ownership interest in MHC," so that petitioner bid for more shares, it would be
2
preferred to the Malaysian corporation for that reason and not because it is a Philippine corporation.
Consequently, it is only in cases like the present one, where an alien corporation is the highest
bidder, that preferential treatment of the Philippine corporation is mandated not by declaring it winner
but by allowing it "to match the highest bid in terms of price per share" before it is awarded the
shares of stocks. That, to me, is what "preference to qualified Filipinos" means in the context of this
3
case — by favoring Filipinos whenever they are at a disadvantage vis-a-vis foreigners.
This was the meaning given in Co Chiong v. Cuaderno to a 1947 statute giving "preference to
4
Filipino citizens in the lease of public market stalls." This Court upheld the cancellation of existing
5
leases covering market stalls occupied by persons who were not Filipinos and the award thereafter
of the stalls to qualified Filipino vendors as ordered by the Department of Finance. Similarly,
in Vda. de Salgado v. De la Fuente, this Court sustained the validity of a municipal ordinance
6
passed pursuant to the statute (R.A. No. 37), terminating existing leases of public market stalls and
granting preference to Filipino citizens in the issuance of new licenses for the occupancy of the
stalls. In Chua Lao v. Raymundo, the preference granted under the statute was held to apply to
7
cases in which Filipino vendors sought the same stalls occupied by alien vendors in the public
markets even if there were available other stalls as good as those occupied by aliens. "The law,
apparently, is applicable whenever there is a conflict of interest between Filipino applicants and
aliens for lease of stalls in public markets, in which situation the right to preference immediately
arises."8
Our legislation on the matter thus antedated by a quarter of a century efforts began only in the 1970s
in America to realize the promise of equality, through affirmative action and reverse discrimination
programs designed to remedy past discrimination against colored people in such areas as
employment, contracting and licensing. Indeed, in vital areas of our national economy, there are
9
situations in which the only way to place Filipinos in control of the national economy as contemplated
in the Constitution is to give them preferential treatment where they can at least stand on equal
10
footing with aliens.
There need be no fear that thus preferring Filipinos would either invite foreign retaliation or deprive
the country of the benefit of foreign capital or know-how. We are dealing here not with common
trades of common means of livelihood which are open to aliens in our midst, but with the sale of
11
government property, which is like the grant of government largess of benefits and concessions
covering the national economy" and therefore no one should begrudge us if we give preferential
treatment to our citizens. That at any rate is the command of the Constitution. For the Manila Hotel is
a business owned by the Government. It is being privatized. Privatization should result in the
relinquishment of the business in favor of private individuals and groups who are Filipino citizens, not
in favor of aliens.
Nor should there be any doubt that by awarding the shares of stocks to petitioner we would be
trading competence and capability for nationalism. Both petitioner and the Malaysian firm are
qualified, having hurdled the prequalification process. It is only the result of the public bidding that
12
is sought to be modified by enabling petitioner to up its bid to equal the highest bid.
Nor, finally, is there any basis for the suggestion that to allow a Filipino bidder to match the highest
bid of an alien could encourage speculation, since all that a Filipino entity would then do would be
not to make a bid or make only a token one and, after it is known that a foreign bidder has submitted
the highest bid, make an offer matching that of the foreign firm. This is not possible under the rules
on public bidding of the GSIS. Under these rules there is a minimum bid required (P36.87 per share
for a range of 9 to 15 million shares). Bids below the minimum will not be considered. On the other
13
hand, if the Filipino entity, after passing the prequalification process, does not submit a bid, he will
not be allowed to match the highest bid of the foreign firm because this is a privilege allowed only to
those who have "validly submitted bids." The suggestion is, to say the least, fanciful and has no
14
basis in fact.
For the foregoing reasons, I vote to grant the petition.
TORRES, JR., J., separate opinion:
Constancy in law is not an attribute of a judicious mind. I say this as we are not confronted in the
case at bar with legal and constitutional issues — and yet I am driven so to speak on the side of
history. The reason perhaps is due to the belief that in the words of Justice Oliver Wendell Holmes,
Jr., a "page of history is worth a volume of logic."
I will, however, attempt to share my thoughts on whether the Manila Hotel has a historical and
cultural aspect within the meaning of the constitution and thus, forming part of the "patrimony of the
nation".
Section 10, Article XII of the 1987 Constitution provides:
xxx xxx xxx
patrimony, the State shall give preference to qualified Filipinos.
The State shall regulate and exercise authority over foreign investments within its
national goals and priorities.
The foregoing provisions should be read in conjunction with Article II of the same Constitution
pertaining to "Declaration of Principles and State Policies" which ordain —
The State shall develop a self-reliant and independent national economy effectively
by Filipinos. (Sec. 19).
Interestingly, the matter of giving preference to "qualified Filipinos" was one of the highlights in the
1987 Constitution Commission proceedings thus:
x x x x x x x x x
MR. NOLLEDO. The Amendment will read: "IN THE

GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL
ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS".
And the word "Filipinos" here, as intended by the
proponents, will include not only individual Filipinos
but also Filipino-Controlled entities fully controlled by
Filipinos (Vol. III, Records of the Constitutional
Commission, p. 608).
MR. MONSOD. We also wanted to add, as

Commissioner Villegas said, this committee and this
body already approved what is known as the Filipino
First policy which was suggested by Commissioner de
Castro. So that it is now in our Constitution (Vol. IV,
Records of the Constitutional Commission, p. 225).
Commissioner Jose Nolledo explaining the provision adverted to above, said:
MR. NOLLEDO. In the grant of rights, privileges and

concessions covering the national economy and
patrimony, the State shall give preference to qualified
Filipinos.
MR. FOZ. In connection with that amendment, if a
foreign enterprise is qualified and the Filipinos
enterprise is also qualified, will the Filipino enterprise
still be given a preference?
MR. FOZ. If the foreigner is more qualified in some

aspects than the Filipino enterprise, will the Filipino
still be preferred:?
MR. NOLLEDO. The answer is "yes". (Vol. III, p. 616,

Records of the Constitutional Commission).
The nationalistic provisions of the 1987 Constitution reflect the history and spirit of the Malolos
Constitution of 1898, the 1935 Constitution and the 1973 Constitutions. That we have no reneged on
this nationalist policy is articulated in one of the earliest case, this Court said —
The nationalistic tendency is manifested in various provisions of the Constitution. . . .

It cannot therefore be said that a law imbued with the same purpose and spirit
underlying many of the provisions of the Constitution is unreasonable, invalid or
unconstitutional (Ichong, et al. vs. Hernandez, et al., 101 Phil. 1155).
I subscribe to the view that history, culture, heritage, and traditions are not legislated and is the
product of events, customs, usages and practices. It is actually a product of growth and acceptance
by the collective mores of a race. It is the spirit and soul of a people.
The Manila Hotel is part of our history, culture and heritage. Every inch of the Manila Hotel is witness
to historic events (too numerous to mention) which shaped our history for almost 84 years.
As I intimated earlier, it is not my position in this opinion, to examine the single instances of the legal
largese which have given rise to this controversy. As I believe that has been exhaustively discussed
in the ponencia. Suffice it to say at this point that the history of the Manila Hotel should not be
placed in the auction block of a purely business transaction, where profits subverts the cherished
historical values of our people.
As a historical landmark in this "Pearl of the Orient Seas", it has its enviable tradition which, in the
words of the philosopher Salvador de Madarriaga tradition is "more of a river than a stone, it keeps
flowing, and one must view the flowing , and one must view the flow of both directions. If you look
towards the hill from which the river flows, you see tradition in the form of forceful currents that push
the river or people towards the future, and if you look the other way, you progress."
Indeed, tradition and progress are the same, for progress depends on the kind of tradition. Let us not
jettison the tradition of the Manila Hotel and thereby repeat our colonial history.
I grant, of course the men of the law can see the same subject in different lights.
I remember, however, a Spanish proverb which says — "He is always right who suspects that he
makes mistakes". On this note, I say that if I have to make a mistake, I would rather err upholding
the belief that the Filipino be first under his Constitution and in his own land.
I vote GRANT the petition.
PUNO, J., dissenting:
This is a. petition for prohibition and mandamus filed by the Manila Prince Hotel Corporation, a
domestic corporation, to stop the Government Service Insurance System (GSIS) from selling the
controlling shares of the Manila Hotel Corporation to a foreign corporation. Allegedly, the sale
violates the second paragraph of section 10, Article XII of the Constitution.
Respondent GSIS is a government-owned and controlled corporation. It is the sole owner of the
Manila Hotel which it operates through its subsidiary, the Manila Hotel Corporation. Manila Hotel was
included in the privatization program of the government. In 1995, GSIS proposed to sell to interested
buyers 30% to 51% of its shares, ranging from 9,000,000 to 15,300,000 shares, in the Manila Hotel
Corporation. After the absence of bids at the first public bidding, the block of shares offered for sale
was increased from a maximum of 30% to 51%. Also, the winning bidder, or the eventual "strategic
partner" of the GSIS was required to "provide management expertise and/or an international
marketing/reservation system, and financial support to strengthen the profitability and performance
of the Manila Hotel" The proposal was approved by respondent Committee on Privatization.
1
In July 1995, a conference was held where prequalification documents and the bidding rules were
furnished interested parties. Petitioner Manila Prince Hotel, a domestic corporation, and Renong
Berhad, Malaysian firm with ITT Sheraton as operator, prequalified. 2
The bidding rules and procedures entitled "Guidelines and Procedures: Second Prequalification and
Public Bidding of the MHC Privatization" provide:
I INTRODUCTION AND HIGHLIGHTS
DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER
The party that accomplishes the steps set forth below will be declared the Winning
Bidder/Strategic Partner and will be awarded the Block of Shares:
First — Pass the prequalification process;
Second — Submit the highest bid on a price per share basis for the Block of Shares;
Third — Negotiate and execute the necessary contracts with GSIS/MHC not later
than October 23, 1995;
xxx xxx xxx
IV GUIDELINES FOR PREQUALIFICATION
A. PARTIES WHO MAP APPLY FOR PREQUALIFICATION
The Winning Bidder/Strategic Partner will be expected to provide

management expertise and/or an international marketing reservation
system, and financial support to strengthen the profitability and
performance of The Manila Hotel. In this context, the GSIS is inviting
to the prequalification process any local and/or foreign corporation,
consortium/joint venture or juridical entity with at least one of the
following qualifications:
a. Proven management .expertise in the hotel

industry; or
b. Significant equity ownership (i.e. board

representation) in another hotel company; or
c. Overall management and marketing expertise to

successfully operate the Manila Hotel.
Parties interested in bidding for MHC should be able to provide

access to the requisite management expertise and/or international
marketing/reservation system for The Manila Hotel.
xxx xxx xxx
D. PREQUALIFICATION DOCUMENTS
xxx xxx xxx
E. APPLICATION PROCEDURE
1. DOCUMENTS AVAILABLE AT THE REGISTRATION OFFICE
The prequalification documents can be secured at the Registration

Office between 9:00 AM to 4:00 PM during working days within the
period specified in Section III. Each set of documents consists of the
following:
a. Guidelines and Procedures: Second

Prequalification and Public Bidding of the MHC
Privatization
b. Confidential Information Memorandum: The Manila

Hotel Corporation
c. Letter of Invitation. to the Prequalification and

Bidding Conference
xxx xxx xxx
4. PREQUALIFICATION AND BIDDING CONFERENCE
A prequalification and bidding conference will be held at The Manila

Hotel on the date specified in Section III to allow the Applicant to seek
clarifications and further information regarding the guidelines and
procedures. Only those who purchased the prequalification
documents will be allowed in this conference. Attendance to this
conference is strongly advised, although the Applicant will not be
penalized if it does not attend.
5. SUBMISSION OF PREQUALIFICATION DOCUMENTS
The applicant should submit 5 sets of the prequalification documents

(1 original set plus 4 copies) at the Registration Office between 9:00
AM to 4:00 PM during working days within the period specified in
Section III.
F. PREQUALIFICATION PROCESS
1. The Applicant will be evaluated by the PBAC with

the assistance of the TEC based on the Information
Package and other information available to the PBAC.
2. If the Applicant is a Consortium/Joint Venture, the

evaluation will consider the overall qualifications of
the group, taking into account the contribution of each
member to the venture.
3. The decision of the PBAC with respect to the

results of the PBAC evaluation will be final.
4. The Applicant shall be evaluated according to the

criteria set forth below:
a. Business management expertise,

track record, and experience
b. Financial capability.
c. Feasibility and acceptability of the

proposed strategic plan for the Manila
Hotel
5. The PBAC will shortlist such number of Applicants as it may deem

appropriate.
6. The parties that prequalified in the first MHC public bidding — ITT
Sheraton, Marriot International Inc., Renaissance Hotels International
Inc., consortium of RCBC Capital/Ritz Carlton — may participate in
the Public Bidding without having to undergo the prequalification
process again.
G. SHORTLIST OF QUALIFIED BIDDERS
1. A notice of prequalification results containing the shortlist of

Qualified Bidders will be posted at the Registration Office at the date
specified in Section III.
2. In the case of a Consortium/Joint Venture, the withdrawal by
member whose qualification was a material consideration for being
included in the shortlist is ground for disqualification of the Applicant.
V. GUIDELINES FOR THE PUBLIC BIDDING
A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC BIDDING
All parties in the shortlist of Qualified Bidders will be eligible to

participate in the Public Bidding.
B. BLOCK OF SHARES
A range of Nine Million (9,000,000) to Fifteen Million Three Hundred

Thousand (15,300,000) shares of stock representing Thirty Percent
to Fifty-One Percent (30%-51%) of the issued and outstanding shares
of MHC, will be offered in the Public Bidding by the GSIS. The
Qualified Bidders will have the Option of determining the number of
shares within the range to bid for. The range is intended to attract
bidders with different preferences and objectives for the operation
and management of The Manila Hotel.
C. MINIMUM BID REQUIRED ON A PRICE PER SHARE BASIS
1. Bids will be evaluated on a price per share basis. The minimum

bid required on a price per share basis for the Block of Shares is
Thirty-Six Pesos and Sixty-Seven Centavos (P36.67).
2. Bids should be in the Philippine currency payable to the GSIS.
3. Bids submitted with an equivalent price per share below the

minimum required will not considered.
D. TRANSFER COSTS
x x x x x x x x x
E. OFFICIAL BID FORM
1. Bids must be contained in the prescribed Official Bid Form, a copy

of which is attached as Annex IV. The Official Bid Form must be
properly accomplished in all details; improper accomplishment may
be a sufficient basis for disqualification.
2. During the Public Bidding, the Qualified Bidder will submit the
Official Bid Form, which will indicate the offered purchase price, in a
sealed envelope marked "OFFICIAL BID."
F. SUPPORTING DOCUMENTS
During the Public Bidding, the following documents should be
submitted along with the bid in a separate envelop marked
"SUPPORTING DOCUMENTS":
1. WRITTEN AUTHORITY TO BID (UNDER OATH).
If the Qualified Bidder is a corporation, the representative of the

Qualified Bidder should submit a Board resolution which adequately
authorizes such representative to bid for and in behalf of the
corporation with full authority to perform such acts necessary or
requisite to bind the Qualified Bidder.
If the Qualified Bidder is a Consortium/Joint Venture, each member of

the Consortium/Joint venture should submit a Board resolution
authorizing one of its members and such member's representative to
make the bid on behalf of the group with full authority to perform such
acts necessary or requisite to bind the Qualified Bidder.
2. BID SECURITY
a. The Qualified Bidder should deposit Thirty-Three Million Pesos

(P33,000,00), in Philippine currency as Bid Security in the form of:
i. Manager's check or unconditional demand draft

payable to the "Government Service Insurance
System" and issued by a reputable banking institution
duly licensed to do business in the Philippines and
acceptable to GSIS; or
ii. Standby-by letter of credit issued by a reputable

banking institution acceptable to the GSIS.
b. The GSIS will reject a bid if:
i. The bid does not have Bid Security; or
ii. The Bid Security accompanying the bid is for less

than the required amount.
c. If the Bid Security is in the form of a manager's check or

unconditional demand draft, the interest earned on the Bid Security
will be for the account of GSIS.
d. If the Qualified Bidder becomes the winning Bidder/Strategic

Partner, the Bid Security will be applied as the downpayment on the
Qualified Bidder's offered purchase price.
e. The Bid Security of the Qualified Bidder will be returned

immediately after the Public Bidding if the Qualified Bidder is not
declared the Highest Bidder.
f. The Bid Security will be returned by October 23, 1995 if the Highest
Bidder is unable to negotiate and execute with GSIS/MHC the
Management Contract, International Marketing/Reservation System
Contract or other types of contract specified by the Highest Bidder in
its strategic plan for The Manila Hotel.
g. The Bid Security of the Highest Bidder will be forfeited in favor of

GSIS if the Highest Bidder, after negotiating and executing the
Contract specified by the Highest Bidder or other types of contract in
its strategic plan for The Manila Hotel, fails or refuses to:
i. Execute the Stock Purchase and Sale Agreement

with GSIS not later than October 23, 1995; or
ii. Pay the full amount of the offered purchase price

not later than October 23, 1995; or
iii. Consummate the sale of the Block of Shares for

any other reason.
G. SUBMISSION OF BIDS
1. The Public Bidding will be held on September 7, 1995 at the

following location:
New GSIS Headquarters Building

Financial Center, Reclamation Area
Roxas Boulevard, Pasay City, Metro Manila.
2. The Secretariat of the PBAC will be stationed at the Public Bidding

to accept any and all bids and supporting requirements.
Representatives from the Commission on Audit and COP will be
invited to witness the proceedings.
3. The Qualified Bidder should submit its bid using the Official Bid
Form. The accomplished Official Bid Form should be submitted in a
4. The Qualified Bidder should submit the following documents

in another sealed envelope marked "SUPPORTING BID
DOCUMENTS"
a. Written Authority Bid
b. Bid Security
5. The two sealed envelopes marked "OFFICIAL BID" and

"SUPPORTING BID DOCUMENTS" must be submitted
simultaneously to the Secretariat between 9:00 AM and 2:00 PM,
Philippine Standard Time, on the date of the Public Bidding. No bid
shall be accepted after the closing time. Opened or tampered bids
shall not be accepted.
6. The Secretariat will log and record the actual time of submission of
the two sealed envelopes. The actual time of submission will also be
indicated by the Secretariat on the face of the two envelopes.
7. After Step No. 6, the two sealed envelopes will be dropped in the
corresponding bid boxes provided for the purpose. These boxes will
be in full view of the invited public.
H. OPENING AND READING OF BIDS
1. After the closing time of 2:00 PM on the date of the Public Bidding,
the PBAC will open all sealed envelopes marked "SUPPORTING BID
DOCUMENTS" for screening, evaluation and acceptance. Those who
submitted incomplete/insufficient documents or document/s which
is/are not substantially in the form required by PBAC will be
disqualified. The envelope containing their Official Bid Form will be
immediately returned to the disqualified bidders.
2. The sealed envelopes marked "OFFICIAL BID" will be opened at

3:00 PM. The name of the bidder and the amount of its bid price will
be read publicly as the envelopes are opened.
3. Immediately following the reading of the bids, the PBAC will

formally announce the highest bid and the Highest Bidder.
4. The highest bid will be, determined on a price per share basis. In
the event of a tie wherein two or more bids have the same equivalent
price per share, priority will be given to the bidder seeking the larger
ownership interest in MHC.
5. The Public Bidding will be declared a failed bidding in case:
a. No single bid is submitted within the prescribed

period; or
b. There is only one (1) bid that is submitted and

acceptable to the PBAC.

GSIS/MHC
1. The Highest Bidder must comply with the conditions set forth below
by October 23, 1995 or the Highest Bidder will lose the right to
purchase the Block of Shares and GSIS will instead offer the Block of
Shares to the other Qualified Bidders:
a. The Highest Bidder must negotiate and execute

with GSIS/MHC the Management Contract,
International Marketing Reservation System Contract
or other type of contract specified by the Highest
Bidder in its strategic plan for The Manila Hotel. If the
Highest Bidder is intending to provide only financial
support to The Manila Hotel, a separate institution
may enter into the aforementioned contract/s with
GSIS/MHC.
b. The Highest Bidder must execute the Stock

Purchase and Sale Agreement with GSIS, a copy of
which will be distributed to each of the Qualified
Bidder after the prequalification process is completed.
2. In the event that the Highest Bidder chooses a Management

Contract for The Manila Hotel, the maximum levels for the
management fee structure that GSIS/MHC are prepared to accept in
the Management Contract are as follows:
a. Basic management fee: Maximum of 2.5% of gross

revenues.(1)
b. Incentive fee: Maximum of 8.0% of gross operating

profit(1) after deducting undistributed overhead
expenses and the basic management fee.
c. Fixed component of the international

marketing/reservation system fee: Maximum of 2.0%
of gross room revenues.(1) The Applicant should
indicate in its Information Package if it is wishes to
charge this fee.
Note (1): As defined in the uniform system of account for hotels.
The GSIS/MHC have indicated above the acceptable parameters for

the hotel management fees to facilitate the negotiations with the
Highest Bidder for the Management Contract after the Public Bidding.
A Qualified Bidder envisioning a Management Contract for The

Manila Hotel should determine whether or not the management fee
structure above is acceptable before submitting their prequalification
documents to GSIS.
J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS
1. If for any reason, the Highest Bidder cannot be awarded the Block
of Shares, GSIS may offer this to the other Qualified Bidders that
have validly submitted bids provided that these Qualified are willing to
match the highest bid in terms of price per share.
2. The order of priority among the interested Qualified Bidders will be

in accordance wit the equivalent price per share of their respective
bids in their public Bidding, i.e., first and second priority will be given
to the Qualified Bidders that submitted the second and third highest
bids on the price per share basis, respectively, and so on.

PARTNER
The Highest Bidder will be declared the Winning Bidder/Strategic

Partner after the following conditions are met:
a. Execution of the necessary contract with

GSIS/MHC not later than October 23, 1995; and
b. Requisite approvals from the GSIS/MHC and

COP/OGCC are obtained.
I. FULL PAYMENT FOR THE BLOCK OF SHARES
1. Upon execution of the necessary contracts with GSIS/MHC, the

Winning Bidder/Strategic Partner must fully pay, not later than
October 23, 1995, the offered purchase price for the Block of Shares
after deducting the Bid Security applied as downpayment.
2. All payments should be made in the form of a Manager's Check or

unconditional Demand Draft, payable to the "Government Service
Insurance System," issued by a reputable banking institution licensed
to do business in the Philippines and acceptable to GSIS.
M. GENERAL CONDITIONS
1. The GSIS unconditionally reserves the right to reject any or all

applications, waive any formality therein, or accept such application
as maybe considered most advantageous to the GSIS. The GSIS
similarly reserves the right to require the submission of any additional
information from the Applicant as the PBAC may deem necessary.
2. The GSIS further reserves the right to call off the Public Bidding
prior to acceptance of the bids and call for a new public bidding under
amended rules, and without any liability whatsoever to any or all the
Qualified Bidders, except the obligation to return the Bid Security.
3. The GSIS reserves the right to reset the date of the

prequalification/bidding conference, the deadline for the submission
of the prequalification documents, the date of the Public Bidding or
other pertinent activities at least three (3) calendar days prior to the
respective deadlines/target dates.
4. The GSIS sells only whatever rights, interest and participation it

has on the Block of Shares.
5. All documents and materials submitted by the Qualified Bidders,
except the Bid Security, may be returned upon request.
6. The decision of the PBAC/GSIS on the results of the Public

Bidding is final. The Qualified Bidders, by participating in the Public
Bidding, are deemed to have agreed to accept and abide by these
results.
7. The GSIS will be held free and harmless form any liability, suit or
allegation arising out of the Public Bidding by the Qualified Bidders
who have participated in the Public Bidding. 3
The second public bidding was held on September 18, 1995. Petitioner bidded P41.00 per share for
15,300,000 shares and Renong Berhad bidded P44.00 per share also for 15,300,000 shares. The
GSIS declared Renong Berhad the highest bidder and immediately returned petitioner's bid security.
On September 28, 1995, ten days after the bidding, petitioner wrote to GSIS offering to match the
bid price of Renong Berhad. It requested that the award be made to itself citing the second
paragraph of Section 10, Article XII of the Constitution. It sent a manager's check for thirty-three
million pesos (P33,000,000.00) as bid security.
Respondent GSIS, then in the process of negotiating with Renong Berhad the terms and conditions
of the contract and technical agreements in the operation of the hotel, refused to entertain
petitioner's request.
Hence, petitioner filed the present petition. We issued a temporary restraining order on October 18,
1995.
Petitioner anchors its plea on the second paragraph of Article XII, Section 10 of the Constitution on
4
the "National Economy and Patrimony" which provides:
xxx xxx xxx
xxx xxx xxx
The vital issues can be summed up as follows:
(1) Whether section 10, paragraph 2 of Article XII of the Constitution is a self-
executing provision and does not need implementing legislation to carry it into effect;
(2) Assuming section 10 paragraph 2 of Article XII is self-executing whether the

controlling shares of the Manila Hotel Corporation form part of our patrimony as a
nation;
(3) Whether GSIS is included in the term "State," hence, mandated to implement
section 10, paragraph 2 of Article XII of the Constitution;
(4) Assuming GSIS is part of the State, whether it failed to give preference to
petitioner, a qualified Filipino corporation, over and above Renong Berhad, a foreign
corporation, in the sale of the controlling shares of the Manila Hotel Corporation;
(5) Whether petitioner is estopped from questioning the sale of the shares to Renong
Berhad, a foreign corporation.
Anent the first issue, it is now familiar learning that a Constitution provides the guiding policies and
principles upon which is built the substantial foundation and general framework of the law and
government. As a rule, its provisions are deemed self-executing and can be enforced without further
5
legislative action. Some of its provisions, however, can be implemented only through appropriate
6
laws enacted by the Legislature, hence not self-executing.
To determine whether a particular provision of a Constitution is self-executing is a hard row to hoe.

The key lies on the intent of the framers of the fundamental law oftentimes submerged in its
language. A searching inquiry should be made to find out if the provision is intended as a present
enactment, complete in itself as a definitive law, or if it needs future legislation for completion and
enforcement. The inquiry demands a micro-analysis of the text and the context of the provision in
7
question.8
Courts as a rule consider the provisions of the Constitution as self-executing, rather than as 9
requiring future legislation for their enforcement. The reason is not difficult to discern. For if they
10
are not treated as self-executing, the mandate of the fundamental law ratified by the sovereign
people can be easily ignored and nullified by Congress. Suffused with wisdom of the ages is the
11
unyielding rule that legislative actions may give breath to constitutional rights but congressional in
action should not suffocate them. 12
Thus, we have treated as self-executing the provisions in the Bill of Rights on arrests, searches and
seizures, the rights of a person under custodial investigation, the rights of an accused, and the
13 14 15
privilege against self-incrimination, It is recognize a that legislation is unnecessary to enable courts
16
to effectuate constitutional provisions guaranteeing the fundamental rights of life, liberty and the
protection of property. The same treatment is accorded to constitutional provisions forbidding the
17
taking or damaging of property for public use without just compensation. 18
Contrariwise, case law lays down the rule that a constitutional provision is not self-executing where it
merely announces a policy and its language empowers the Legislature to prescribe the means by
which the policy shall be carried into effect. Accordingly, we have held that the provisions in Article
19
II of our Constitution entitled "Declaration of Principles and State Policies" should generally be
construed as mere statements of principles of the State. We have also ruled that some provisions
20
of Article XIII on "Social Justice and Human Rights," and Article XIV on "Education Science and
21
Technology, Arts, Culture end Sports" cannot be the basis of judicially enforceable rights. Their
22
enforcement is addressed to the discretion of Congress though they provide the framework for
legislation to effectuate their policy content.
23 24
Guided by this map of settled jurisprudence, we now consider whether Section 10, Article XII of the
1987 Constitution is self-executing or not. It reads:
Sec. 10. The Congress shall, upon recommendation of the economic and planning
agency, when the national interest dictates, reserve to citizens of the Philippines or to
corporations or associations at least sixty per centum of whose capital is owned by
such citizens, or such higher percentage as Congress may prescribe, certain areas
of investments. The Congress shall enact measures that will encourage the
formation and operation of enterprises whose capital is wholly owned by Filipinos.
national jurisdiction and in accordance with its national goals and priorities.
The first paragraph directs Congress to reserve certain areas of investments in the
country to Filipino citizens or to corporations sixty per
25
cent of whose capital stock is owned by Filipinos. It further commands Congress to enact
26
laws that will encourage the formation and operation of one hundred percent Filipino-owned
enterprises. In checkered contrast, the second paragraph orders the entire State to give
preference to qualified Filipinos in the grant of rights and privileges covering the national
economy and patrimony. The third paragraph also directs the State to regulate foreign
investments in line with our national goals and well-set priorities.
The first paragraph of Section 10 is not self-executing. By its express text, there is a
categorical command for Congress to enact laws restricting foreign ownership in certain
areas of investments in the country and to encourage the formation and operation of wholly-
owned Filipino enterprises. The right granted by the provision is clearly still in esse.
Congress has to breathe life to the right by means of legislation. Parenthetically, this
paragraph was plucked from section 3, Article XIV of the 1973 Constitution. The provision
27
in the 1973 Constitution affirmed our ruling in the landmark case of Lao Ichong
v. Hernandez, where we upheld the discretionary authority of Congress to Filipinize certain
28
areas of investments. By reenacting the 1973 provision, the first paragraph of section 10
29
affirmed the power of Congress to nationalize certain areas of investments in favor of

Filipinos.
The second and third paragraphs of Section 10 are different. They are directed to the State and not
to Congress alone which is but one of the three great branches of our government. Their coverage is
also broader for they cover "the national economy and patrimony" and "foreign investments within
[the] national jurisdiction" and not merely "certain areas of investments." Beyond debate, they cannot
be read as granting Congress the exclusive power to implement by law the policy of giving
preference to qualified Filipinos in the conferral of rights and privileges covering our national
economy and patrimony. Their language does not suggest that any of the State agency or
instrumentality has the privilege to hedge or to refuse its implementation for any reason whatsoever.
Their duty to implement is unconditional and it is now. The second and the third paragraphs of
Section 10, Article XII are thus self-executing.
This submission is strengthened by Article II of the Constitution entitled "Declaration of Principles

and State Policies." Its Section 19 provides that "[T]he State shall develop a self-reliant and
independent national economy effectively controlled by Filipinos." It engrafts the all-important Filipino
First policy in our fundamental law and by the use of the mandatory word "shall," directs its
enforcement by the whole State without any pause or a half- pause in time.
The second issue is whether the sale of a majority of the stocks of the Manila Hotel Corporation
involves the disposition of part of our national patrimony. The records of the Constitutional
Commission show that the Commissioners entertained the same view as to its meaning. According
to Commissioner Nolledo, "patrimony" refers not only to our rich natural resources but also to the
cultural heritage of our race. By this yardstick, the sale of Manila Hotel falls within the coverage of
30
the constitutional provision giving preferential treatment to qualified Filipinos in the grant of rights
involving our national patrimony. The unique value of the Manila Hotel to our history and culture
cannot be viewed with a myopic eye. The value of the hotel goes beyond pesos and centavos. As
chronicled by Beth Day Romulo, the hotel first opened on July 4, 1912 as a first-class hotel built by
31
the American Insular Government for Americans living in, or passing through, Manila while traveling
to the Orient. Indigenous materials and Filipino craftsmanship were utilized in its construction, For
sometime, it was exclusively used by American and Caucasian travelers and served as the "official
guesthouse" of the American Insular Government for visiting foreign dignitaries. Filipinos began
coming to the Hotel as guests during the Commonwealth period. When the Japanese occupied
Manila, it served as military headquarters and lodging for the highest-ranking officers from Tokyo. It
was at the Hotel and the Intramuros that the Japanese made their last stand during the Liberation of
Manila. After the war, the Hotel again served foreign guests and Filipinos alike. Presidents and
kings, premiers and potentates, as well as glamorous international film and sports celebrities were
housed in the Hotel. It was also the situs of international conventions and conferences. In the local
scene, it was the venue of historic meetings, parties and conventions of political parties. The Hotel
has reaped and continues reaping numerous recognitions and awards from international hotel and
travel award-giving bodies, a fitting acknowledgment of Filipino talent and ingenuity. These are
judicially cognizable facts which cannot be bent by a biased mind.
The Hotel may not, as yet, have been declared a national cultural treasure pursuant to Republic Act
No. 4846 but that does not exclude it from our national patrimony. Republic Act No. 4846, "The
Cultural Properties Preservation and Protection Act," merely provides a procedure whereby a
particular cultural property may be classified a "national cultural treasure" or an "important cultural
property. Approved on June 18, 1966 and amended by P.D. 374 in 1974, the law is limited in its
32
reach and cannot be read as the exclusive law implementing section 10, Article XII of the 1987
Constitution. To be sure, the law does not equate cultural treasure and cultural property as
synonymous to the phrase "patrimony of the nation."
The third issue is whether the constitutional command to the State includes the respondent GSIS. A
look at its charter will reveal that GSIS is a government-owned and controlled corporation that
administers funds that come from the monthly contributions of government employees and the
government. The funds are held in trust for a distinct purpose which cannot be disposed of
33
indifferently. They are to be used to finance the retirement, disability and life insurance benefits of
34
the employees and the administrative and operational expenses of the GSIS, Excess funds,
35
however, are allowed to be invested in business and other ventures for the benefit of the
employees. It is thus contended that the GSIS investment in the Manila Hotel Corporation is a
36
simple business venture, hence, an act beyond the contemplation of section 10, paragraph 2 of
Article XII of the Constitution.
The submission is unimpressive. The GSIS is not a pure private corporation. It is essentially a public
corporation created by Congress and granted an original charter to serve a public purpose. It is
subject to the jurisdictions of the Civil Service Commission and the Commission on Audit. As
37 38
state-owned and controlled corporation, it is skin-bound to adhere to the policies spelled out in the
general welfare of the people. One of these policies is the Filipino First policy which the people
elevated as a constitutional command.
The fourth issue demands that we look at the content of phrase "qualified Filipinos" and their
"preferential right." The Constitution desisted from defining their contents. This is as it ought to be for
a Constitution only lays down flexible policies and principles which can bent to meet today's manifest
needs and tomorrow's unmanifested demands. Only a constitution strung with elasticity can grow as
a living constitution.
Thus, during the deliberations in the Constitutional Commission, Commissioner Nolledo to define the
phrase brushed aside a suggestion to define the phrase "qualified Filipinos." He explained that
present and prospective "laws" will take care of the problem of its interpretation, viz:
x x x x x x x x x
THE PRESIDENT. What is the suggestion of

Commissioner Rodrigo? Is it to remove the word
"QUALIFIED?"
MR. RODRIGO. No, no, but say definitely "TO

QUALIFIED FILIPINOS" as against whom? As
against aliens over aliens?
MR. NOLLEDO. Madam President, I think that is

understood. We use the word "QUALIFIED" because
the existing laws or the prospective laws will always
lay down conditions under which business map be
done, for example, qualifications on capital,
qualifications on the setting up of other financial
structures, et cetera.
MR. NOLLEDO Yes.
MR. RODRIGO. If we say, "PREFERENCE TO

QUALIFIED FILIPINOS," it can be understood as
giving preference to qualified Filipinos as against
Filipinos who are not qualified.
MR. NOLLEDO. Madam President, that was the

intention of the proponents. The committee has
accepted the amendment.
x x x x x x x x x
As previously discussed, the constitutional command to enforce the Filipino First policy is
addressed to the State and not to Congress alone. Hence, the word "laws" should not be
understood as limited to legislations but all state actions which include applicable rules and
regulations adopted by agencies and instrumentalities of the State in the exercise of their
rule-making power. In the case at bar, the bidding rules and regulations set forth the
standards to measure the qualifications of bidders Filipinos and foreigners alike. It is not
seriously disputed that petitioner qualified to bid as did Renong Berhad. 39
Thus, we come to the critical issue of the degree of preference which GSIS should have accorded
petitioner, a qualified Filipino, over Renong Berhad, a foreigner, in the purchase of the controlling
shares of the Manila Hotel. Petitioner claims that after losing the bid, this right of preference gives it
a second chance to match the highest bid of Renong Berhad.
With due respect, I cannot sustain petitioner's submission. I prescind from the premise that the
second paragraph of section 10, Article XII of the Constitution is pro-Pilipino but not anti-alien. It is
pro-Filipino for it gives preference to Filipinos. It is not, however, anti-alien per se for it does not
absolutely bar aliens in the grant of rights, privileges and concessions covering the national
economy and patrimony. Indeed, in the absence of qualified Filipinos, the State is not prohibited
from granting these rights, privileges and concessions to foreigners if the act will promote the weal of
the nation.
In implementing the policy articulated in section 10, Article XII of the Constitution, the stellar task of
our State policy-makers is to maintain a creative tension between two desiderata — first, the need to
develop our economy and patrimony with the help of foreigners if necessary, and, second, the need
to keep our economy controlled by Filipinos. Rightfully, the framers of the Constitution did not define
the degree of the right of preference to be given to qualified Filipinos. They knew that for the right to
serve the general welfare, it must have a malleable content that can be adjusted by our policy-
makers to meet the changing needs of our people. In fine, the right of preference of qualified
Filipinos is to be determined by degree as time dictates and circumstances warrant. The lesser the
need for alien assistance, the greater the degree of the right of preference can be given to Filipinos
and vice verse.
Again, it should be stressed that the right and the duty to determine the degree of this privilege at
any given time is addressed to the entire State. While under our constitutional scheme, the right
primarily belongs to Congress as the lawmaking department of our government, other branches of
government, and all their agencies and instrumentalities, share the power to enforce this state
policy. Within the limits of their authority, they can act or promulgate rules and regulations defining
the degree of this right of preference in cases where they have to make grants involving the national
economy and judicial duty. On the other hand, our duty is to strike down acts of the state that violate
the policy.
To date, Congress has not enacted a law defining the degree of the preferential right. Consequently,
we must turn to the rules and regulations of on respondents Committee Privatization and GSIS to
determine the degree of preference that petitioner is entitled to as a qualified Filipino in the subject
sale. A tearless look at the rules and regulations will show that they are silent on the degree of
preferential right to be accorded qualified Filipino bidder. Despite their silence, however, they cannot
be read to mean that they do not grant any degree of preference to petitioner for paragraph 2,
section 10, Article XII of the Constitution is deemed part of said rules and regulations. Pursuant to
legal hermeneutics which demand that we interpret rules to save them from unconstitutionality, I
submit that the right of preference of petitioner arises only if it tied the bid of Benong Berhad. In that
instance, all things stand equal, and bidder, as a qualified Pilipino bidder, should be preferred.
It is with deep regret that I cannot subscribe to the view that petitioner has a right to match the bid of
Renong Berhad. Petitioner's submission must be supported by the rules but even if we examine the
rules inside-out .thousand times, they can not justify the claimed right. Under the rules, the right to
match the highest bid arises only "if for any reason, the highest bidder cannot be awarded block of
shares . . ." No reason has arisen that will prevent the award to Renong Berhad. It qualified as
bidder. It complied with the procedure of bidding. It tendered the highest bid. It was declared as the
highest bidder by the GSIS and the rules say this decision is final. It deserves the award as a matter
of right for the rules clearly did not give to the petitioner as a qualified Filipino privilege to match the
higher bid of a foreigner. What the rules did not grant, petitioner cannot demand. Our symphaties
may be with petitioner but the court has no power to extend the latitude and longtitude of the right of
preference as defined by the rules. The parameters of the right of preference depend on galaxy of
facts and factors whose determination belongs to the province of the policy-making branches and
agencies of the State. We are duty-bound to respect that determination even if we differ with the
wisdom of their judgment. The right they grant may be little but we must uphold the grant for as long
as the right of preference is not denied. It is only when a State action amounts to a denial of the right
that the Court can come in and strike down the denial as unconstitutional.
Finally, I submit that petitioner is estopped from assailing the winning bid of Renong Berhad.
Petitioner was aware of the rules and regulations of the bidding. It knew that the rules and
regulations do not provide that a qualified Filipino bidder can match the winning bid submitting an
inferior bid. It knew that the bid was open to foreigners and that foreigners qualified even during the
first bidding. Petitioner cannot be allowed to repudiate the rules which it agreed to respect. It cannot
be allowed to obey the rules when it wins and disregard them when it loses. If sustained, petitioners'
stance will wreak havoc on he essence of bidding. Our laws, rules and regulations require highest
bidding to raise as much funds as possible for the government to maximize its capacity to deliver
essential services to our people. This is a duty that must be discharged by Filipinos and foreigners
participating in a bidding contest and the rules are carefully written to attain this objective. Among
others, bidders are prequalified to insure their financial capability. The bidding is secret and the bids
are sealed to prevent collusion among the parties. This objective will be undermined if we grant
petitioner that privilege to know the winning bid and a chance to match it. For plainly, a second
chance to bid will encourage a bidder not to strive to give the highest bid in the first bidding.
We support the Filipino First policy without any reservation. The visionary nationalist Don Claro M.
Recto has warned us that the greatest tragedy that can befall a Filipino is to be an alien in his own
land. The Constitution has embodied Recto's counsel as a state policy. But while the Filipino First
policy requires that we incline to a Filipino, it does not demand that we wrong an alien. Our policy
makers can write laws and rules giving favored treatment to the Filipino but we are not free to be
unfair to a foreigner after writing the laws and the rules. After the laws are written, they must be
obeyed as written, by Filipinos and foreigners alike. The equal protection clause of the Constitution
protects all against unfairness. We can be pro-Filipino without unfairness to foreigner.
I vote to dismiss the petition.
Narvasa, C.J., and Melo, J., concur.
PANGANIBAN, J., dissenting:
I regret I cannot join the majority. To the incisive Dissenting Opinion of Mr. Justice Reynato S. Puno,
may I just add
1. The majority contends the Constitution should be interpreted to mean that, after a bidding process
is concluded, the losing Filipino bidder should be given the right to equal the highest foreign bid, and
thus to win. However, the Constitution [Sec. 10 (2), Art. XII] simply states that "in the grant of
rights . . . covering the national economy and patrimony, the State shall give preference to qualified
Filipinos." The majority concedes that there is no law defining the extent or degree of such
preference. Specifically, no statute empowers a losing Filipino bidder to increase his bid and equal
that of the winning foreigner. In the absence of such empowering law, the majority's strained
interpretation, I respectfully submit constitutes unadulterated judicial legislation, which makes
bidding a ridiculous sham where no Filipino can lose and where no foreigner can win. Only in the
Philippines!.
2. Aside from being prohibited by the Constitution, such judicial is short-sighted and, viewed
properly, gravely prejudicial to long-term Filipino interest. It encourages other countries — in the
guise of reverse comity or worse, unabashed retaliation — to discriminate against us in their own
jurisdictions by authorizing their own nationals to similarly equal and defeat the higher bids of Filipino
enterprises solely, while on the other hand, allowing similar bids of other foreigners to remain
unchallenged by their nationals. The majority's thesis will thus marginalize Filipinos as pariahs in the
global marketplace with absolute no chance of winning any bidding outside our country. Even
authoritarian regimes and hermit kingdoms have long ago found out unfairness, greed and isolation
are self-defeating and in the long-term, self-destructing.
The moral lesson here is simple: Do not do unto other what you dont want other to do unto you.
3. In the absence of a law specifying the degree or extent of the "Filipino First" policy of the
Constitution, the constitutional preference for the "qualified Filipinos" may be allowed only where all
the bids are equal. In this manner, we put the Filipino ahead without self-destructing him and without
being unfair to the foreigner.
In short, the Constitution mandates a victory for the qualified Filipino only when the scores are tied.
But not when the ballgame is over and the foreigner clearly posted the highest score.
Separate Opinions
I concur with the ponencia of Mr. Justice Bellosillo. At the same time, I would like to expound a bit
more on the concept of national patrimony as including within its scope and meaning institutions
such as the Manila Hotel.
It is argued by petitioner that the Manila Hotel comes under "national patrimony" over which qualified
Filipinos have the preference, in ownership and operation. The Constitutional provision on point
states:
xxx xxx xxx
patrimony, the State shall Give preference to qualified Filipinos. 1
Petitioner's argument, I believe, is well taken. Under the 1987 Constitution, "national patrimony"
consists of the natural resources provided by Almighty God (Preamble) in our territory (Article I)
consisting of land, sea, and air. study of the 1935 Constitution, where the concept of "national
2
patrimony" originated, would show that its framers decided to adopt the even more comprehensive
expression "Patrimony of the Nation" in the belief that the phrase encircles a concept embracing not
only their natural resources of the country but practically everything that belongs to the Filipino
people, the tangible and the material as well as the intangible and the spiritual assets and
possessions of the people. It is to be noted that the framers did not stop with conservation. They
knew that conservation alone does not spell progress; and that this may be achieved only through
development as a correlative factor to assure to the people not only the exclusive ownership, but
also the exclusive benefits of their national patrimony).3
Moreover, the concept of national patrimony has been viewed as referring not only to our rich natural
resources but also to the cultural heritage of our
race.4
There is no doubt in my mind that the Manila Hotel is very much a part of our national patrimony
and, as such, deserves constitutional protection as to who shall own it and benefit from its operation.
This institution has played an important role in our nation's history, having been the venue of many a
historical event, and serving as it did, and as it does, as the Philippine Guest House for visiting
foreign heads of state, dignitaries, celebrities, and others.5
It is therefore our duty to protect and preserve it for future generations of Filipinos. As President
Manuel L. Quezon once said, we must exploit the natural resources of our country, but we should do
so with. an eye to the welfare of the future generations. In other words, the leaders of today are the
trustees of the patrimony of our race. To preserve our national patrimony and reserve it for Filipinos
was the intent of the distinguished gentlemen who first framed our Constitution. Thus, in debating
the need for nationalization of our lands and natural resources, one expounded that we should "put
more teeth into our laws, and; not make the nationalization of our lands and natural resources a
subject of ordinary legislation but of constitutional enactment" To quote further: "Let not our children
6
be mere tenants and trespassers in their own country. Let us preserve and bequeath to them what is
rightfully theirs, free from all foreign liens and encumbrances". 7
Now, a word on preference. In my view "preference to qualified Filipinos", to be meaningful, must

refer not only to things that are peripheral, collateral, or tangential. It must touch and affect the very
"heart of the existing order." In the field of public bidding in the acquisition of things that pertain to
the national patrimony, preference to qualified Filipinos must allow a qualified Filipino to match or
equal the higher bid of a non-Filipino; the preference shall not operate only when the bids of the
qualified Filipino and the non-Filipino are equal in which case, the award should undisputedly be
made to the qualified Filipino. The Constitutional preference should give the qualified Filipino an
opportunity to match or equal the higher bid of the non-Filipino bidder if the preference of the
qualified Filipino bidder is to be significant at all.
It is true that in this present age of globalization of attitude towards foreign investments in our
country, stress is on the elimination of barriers to foreign trade and investment in the country. While
government agencies, including the courts should re-condition their thinking to such a trend, and
make it easy and even attractive for foreign investors to come to our shores, yet we should not
preclude ourselves from reserving to us Filipinos certain areas where our national identity, culture
and heritage are involved. In the hotel industry, for instance, foreign investors have established
themselves creditably, such as in the Shangri-La, the Nikko, the Peninsula, and Mandarin Hotels.
This should not stop us from retaining 51% of the capital stock of the Manila Hotel Corporation in the
hands of Filipinos. This would be in keeping with the intent of the Filipino people to preserve our
national patrimony, including our historical and cultural heritage in the hands of Filipinos.
VITUG, J., concurring:
I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements, shared by Mr. Justice
Reynato S. Puno in a well written separate (dissenting) opinion, that:
First, the provision in our fundamental law which provides that "(I)n the grant of rights, privileges, and
qualified Filipinos" is self-executory. The provision verily does not need, although it can obviously be
1
amplified or regulated by, an enabling law or a set of rules.

Second, the term "patrimony" does not merely refer to the country's natural resources but also to its
cultural heritage. A "historical landmark," to use the words of Mr. Justice Justo P. Torres, Jr., Manila
Hotel has now indeed become part of Philippine heritage.
Third, the act of the Government Service Insurance System ("GSIS"), a government entity which
derives its authority from the State, in selling 51% of its share in MHC should be considered an act
of the State subject to the Constitutional mandate.
On the pivotal issue of the degree of "preference to qualified Filipinos," I find it somewhat difficult to
take the same path traversed by the forceful reasoning of Justice Puno. In the particular case before
us, the only meaningful preference, it seems, would really be to allow the qualified Filipino to match
the foreign bid for, as a particular matter, I cannot see any bid that literally calls for millions of dollars
to be at par (to the last cent) with another. The magnitude of the magnitude of the bids is such that it
becomes hardly possible for the competing bids to stand exactly "equal" which alone, under the
dissenting view, could trigger the right of preference.
It is most unfortunate that Renong Berhad has not been spared this great disappointment, a letdown
that it did not deserve, by a simple and timely advise of the proper rules of bidding along with the
peculiar constitutional implications of the proposed transaction. It is also regrettable that the Court at
time is seen, to instead, be the refuge for bureaucratic inadequate which create the perception that it
even takes on non-justiciable controversies.
All told, I am constrained to vote for granting the petition.
MENDOZA, J., concurring in the judgment:
I take the view that in the context of the present controversy the only way to enforce the
constitutional mandate that "[i]n the grant of rights, privileges and concessions covering the national
patrimony the State shall give preference to qualified Filipinos" is to allow petitioner Philippine
1
corporation to equal the bid of the Malaysian firm Renong Berhad for the purchase of the controlling
shares of stocks in the Manila Hotel Corporation. Indeed, it is the only way a qualified Filipino of
Philippine corporation can be given preference in the enjoyment of a right, privilege or concession
given by the State, by favoring it over a foreign national corporation.
Under the rules on public bidding of the Government Service and Insurance System, if petitioner and
the Malaysian firm had offered the same price per share, "priority [would be given] to the bidder
seeking the larger ownership interest in MHC," so that petitioner bid for more shares, it would be
2
preferred to the Malaysian corporation for that reason and not because it is a Philippine corporation.
Consequently, it is only in cases like the present one, where an alien corporation is the highest
bidder, that preferential treatment of the Philippine corporation is mandated not by declaring it winner
but by allowing it "to match the highest bid in terms of price per share" before it is awarded the
shares of stocks. That, to me, is what "preference to qualified Filipinos" means in the context of this
3
case — by favoring Filipinos whenever they are at a disadvantage vis-a-vis foreigners.
This was the meaning given in Co Chiong v. Cuaderno to a 1947 statute giving "preference to
4
Filipino citizens in the lease of public market stalls." This Court upheld the cancellation of existing
5
leases covering market stalls occupied by persons who were not Filipinos and the award thereafter
of the stalls to qualified Filipino vendors as ordered by the Department of Finance. Similarly,
in Vda. de Salgado v. De la Fuente, this Court sustained the validity of a municipal ordinance
6
passed pursuant to the statute (R.A. No. 37), terminating existing leases of public market stalls and
granting preference to Filipino citizens in the issuance of new licenses for the occupancy of the
stalls. In Chua Lao v. Raymundo, the preference granted under the statute was held to apply to
7
cases in which Filipino vendors sought the same stalls occupied by alien vendors in the public
markets even if there were available other stalls as good as those occupied by aliens. "The law,
apparently, is applicable whenever there is a conflict of interest between Filipino applicants and
aliens for lease of stalls in public markets, in which situation the right to preference immediately
arises."8
Our legislation on the matter thus antedated by a quarter of a century efforts began only in the 1970s
in America to realize the promise of equality, through affirmative action and reverse discrimination
programs designed to remedy past discrimination against colored people in such areas as
employment, contracting and licensing. Indeed, in vital areas of our national economy, there are
9
situations in which the only way to place Filipinos in control of the national economy as contemplated
in the Constitution is to give them preferential treatment where they can at least stand on equal
10
footing with aliens.
There need be no fear that thus preferring Filipinos would either invite foreign retaliation or deprive
the country of the benefit of foreign capital or know-how. We are dealing here not with common
trades of common means of livelihood which are open to aliens in our midst, but with the sale of
11
government property, which is like the grant of government largess of benefits and concessions
covering the national economy" and therefore no one should begrudge us if we give preferential
treatment to our citizens. That at any rate is the command of the Constitution. For the Manila Hotel is
a business owned by the Government. It is being privatized. Privatization should result in the
relinquishment of the business in favor of private individuals and groups who are Filipino citizens, not
in favor of aliens.
Nor should there be any doubt that by awarding the shares of stocks to petitioner we would be
trading competence and capability for nationalism. Both petitioner and the Malaysian firm are
qualified, having hurdled the prequalification process. It is only the result of the public bidding that
12
is sought to be modified by enabling petitioner to up its bid to equal the highest bid.
Nor, finally, is there any basis for the suggestion that to allow a Filipino bidder to match the highest
bid of an alien could encourage speculation, since all that a Filipino entity would then do would be
not to make a bid or make only a token one and, after it is known that a foreign bidder has submitted
the highest bid, make an offer matching that of the foreign firm. This is not possible under the rules
on public bidding of the GSIS. Under these rules there is a minimum bid required (P36.87 per share
for a range of 9 to 15 million shares). Bids below the minimum will not be considered. On the other
13
hand, if the Filipino entity, after passing the prequalification process, does not submit a bid, he will
not be allowed to match the highest bid of the foreign firm because this is a privilege allowed only to
those who have "validly submitted bids." The suggestion is, to say the least, fanciful and has no
14
basis in fact.
For the foregoing reasons, I vote to grant the petition.
TORRES, JR., J., separate opinion:
Constancy in law is not an attribute of a judicious mind. I say this as we are not confronted in the
case at bar with legal and constitutional issues — and yet I am driven so to speak on the side of
history. The reason perhaps is due to the belief that in the words of Justice Oliver Wendell Holmes,
Jr., a "page of history is worth a volume of logic."
I will, however, attempt to share my thoughts on whether the Manila Hotel has a historical and
cultural aspect within the meaning of the constitution and thus, forming part of the "patrimony of the
nation".
Section 10, Article XII of the 1987 Constitution provides:
xxx xxx xxx
national goals and priorities.
The foregoing provisions should be read in conjunction with Article II of the same Constitution
pertaining to "Declaration of Principles and State Policies" which ordain —
The State shall develop a self-reliant and independent national economy effectively
by Filipinos. (Sec. 19).
Interestingly, the matter of giving preference to "qualified Filipinos" was one of the highlights in the
1987 Constitution Commission proceedings thus:
x x x x x x x x x
MR. NOLLEDO. The Amendment will read: "IN THE

GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL
ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS".
And the word "Filipinos" here, as intended by the
proponents, will include not only individual Filipinos
but also Filipino-Controlled entities fully controlled by
Filipinos (Vol. III, Records of the Constitutional
Commission, p. 608).
MR. MONSOD. We also wanted to add, as

Commissioner Villegas said, this committee and this
body already approved what is known as the Filipino
First policy which was suggested by Commissioner de
Castro. So that it is now in our Constitution (Vol. IV,
Records of the Constitutional Commission, p. 225).
Commissioner Jose Nolledo explaining the provision adverted to above, said:
MR. NOLLEDO. In the grant of rights, privileges and

concessions covering the national economy and
patrimony, the State shall give preference to qualified
Filipinos.
MR. FOZ. In connection with that amendment, if a

foreign enterprise is qualified and the Filipinos
enterprise is also qualified, will the Filipino enterprise
still be given a preference?
MR. FOZ. If the foreigner is more qualified in some

aspects than the Filipino enterprise, will the Filipino
still be preferred:?
MR. NOLLEDO. The answer is "yes". (Vol. III, p. 616,

Records of the Constitutional Commission).
The nationalistic provisions of the 1987 Constitution reflect the history and spirit of the Malolos
Constitution of 1898, the 1935 Constitution and the 1973 Constitutions. That we have no reneged on
this nationalist policy is articulated in one of the earliest case, this Court said —
The nationalistic tendency is manifested in various provisions of the Constitution. . . .

It cannot therefore be said that a law imbued with the same purpose and spirit
underlying many of the provisions of the Constitution is unreasonable, invalid or
unconstitutional (Ichong, et al. vs. Hernandez, et al., 101 Phil. 1155).
I subscribe to the view that history, culture, heritage, and traditions are not legislated and is the
product of events, customs, usages and practices. It is actually a product of growth and acceptance
by the collective mores of a race. It is the spirit and soul of a people.
The Manila Hotel is part of our history, culture and heritage. Every inch of the Manila Hotel is witness
to historic events (too numerous to mention) which shaped our history for almost 84 years.
As I intimated earlier, it is not my position in this opinion, to examine the single instances of the legal
largese which have given rise to this controversy. As I believe that has been exhaustively discussed
in the ponencia. Suffice it to say at this point that the history of the Manila Hotel should not be
placed in the auction block of a purely business transaction, where profits subverts the cherished
historical values of our people.
As a historical landmark in this "Pearl of the Orient Seas", it has its enviable tradition which, in the
words of the philosopher Salvador de Madarriaga tradition is "more of a river than a stone, it keeps
flowing, and one must view the flowing , and one must view the flow of both directions. If you look
towards the hill from which the river flows, you see tradition in the form of forceful currents that push
the river or people towards the future, and if you look the other way, you progress."
Indeed, tradition and progress are the same, for progress depends on the kind of tradition. Let us not
jettison the tradition of the Manila Hotel and thereby repeat our colonial history.
I grant, of course the men of the law can see the same subject in different lights.
I remember, however, a Spanish proverb which says — "He is always right who suspects that he
makes mistakes". On this note, I say that if I have to make a mistake, I would rather err upholding
the belief that the Filipino be first under his Constitution and in his own land.
I vote GRANT the petition.
This is a. petition for prohibition and mandamus filed by the Manila Prince Hotel Corporation, a
domestic corporation, to stop the Government Service Insurance System (GSIS) from selling the
controlling shares of the Manila Hotel Corporation to a foreign corporation. Allegedly, the sale
violates the second paragraph of section 10, Article XII of the Constitution.
Respondent GSIS is a government-owned and controlled corporation. It is the sole owner of the
Manila Hotel which it operates through its subsidiary, the Manila Hotel Corporation. Manila Hotel was
included in the privatization program of the government. In 1995, GSIS proposed to sell to interested
buyers 30% to 51% of its shares, ranging from 9,000,000 to 15,300,000 shares, in the Manila Hotel
Corporation. After the absence of bids at the first public bidding, the block of shares offered for sale
was increased from a maximum of 30% to 51%. Also, the winning bidder, or the eventual "strategic
partner" of the GSIS was required to "provide management expertise and/or an international
marketing/reservation system, and financial support to strengthen the profitability and performance
of the Manila Hotel" The proposal was approved by respondent Committee on Privatization.
1
In July 1995, a conference was held where prequalification documents and the bidding rules were
furnished interested parties. Petitioner Manila Prince Hotel, a domestic corporation, and Renong
Berhad, Malaysian firm with ITT Sheraton as operator, prequalified. 2
The bidding rules and procedures entitled "Guidelines and Procedures: Second Prequalification and
Public Bidding of the MHC Privatization" provide:
I INTRODUCTION AND HIGHLIGHTS
DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER
The party that accomplishes the steps set forth below will be declared the Winning
Bidder/Strategic Partner and will be awarded the Block of Shares:
First — Pass the prequalification process;
Second — Submit the highest bid on a price per share basis for the Block of Shares;
Third — Negotiate and execute the necessary contracts with GSIS/MHC not later
than October 23, 1995;
xxx xxx xxx
IV GUIDELINES FOR PREQUALIFICATION
A. PARTIES WHO MAP APPLY FOR PREQUALIFICATION
The Winning Bidder/Strategic Partner will be expected to provide

management expertise and/or an international marketing reservation
system, and financial support to strengthen the profitability and
performance of The Manila Hotel. In this context, the GSIS is inviting
to the prequalification process any local and/or foreign corporation,
consortium/joint venture or juridical entity with at least one of the
following qualifications:
a. Proven management .expertise in the hotel
industry; or
b. Significant equity ownership (i.e. board

representation) in another hotel company; or
c. Overall management and marketing expertise to

successfully operate the Manila Hotel.
Parties interested in bidding for MHC should be able to provide

access to the requisite management expertise and/or international
marketing/reservation system for The Manila Hotel.
xxx xxx xxx
D. PREQUALIFICATION DOCUMENTS
xxx xxx xxx
E. APPLICATION PROCEDURE
1. DOCUMENTS AVAILABLE AT THE REGISTRATION OFFICE
The prequalification documents can be secured at the Registration

Office between 9:00 AM to 4:00 PM during working days within the
period specified in Section III. Each set of documents consists of the
following:
a. Guidelines and Procedures: Second

Prequalification and Public Bidding of the MHC
Privatization
b. Confidential Information Memorandum: The Manila

Hotel Corporation
c. Letter of Invitation. to the Prequalification and

Bidding Conference
xxx xxx xxx
4. PREQUALIFICATION AND BIDDING CONFERENCE
A prequalification and bidding conference will be held at The Manila

Hotel on the date specified in Section III to allow the Applicant to seek
clarifications and further information regarding the guidelines and
procedures. Only those who purchased the prequalification
documents will be allowed in this conference. Attendance to this
conference is strongly advised, although the Applicant will not be
penalized if it does not attend.
5. SUBMISSION OF PREQUALIFICATION DOCUMENTS

The applicant should submit 5 sets of the prequalification documents
(1 original set plus 4 copies) at the Registration Office between 9:00
AM to 4:00 PM during working days within the period specified in
Section III.
F. PREQUALIFICATION PROCESS
1. The Applicant will be evaluated by the PBAC with

the assistance of the TEC based on the Information
Package and other information available to the PBAC.
2. If the Applicant is a Consortium/Joint Venture, the

evaluation will consider the overall qualifications of
the group, taking into account the contribution of each
member to the venture.
3. The decision of the PBAC with respect to the

results of the PBAC evaluation will be final.
4. The Applicant shall be evaluated according to the

criteria set forth below:
a. Business management expertise,

track record, and experience
b. Financial capability.
c. Feasibility and acceptability of the

proposed strategic plan for the Manila
Hotel
5. The PBAC will shortlist such number of Applicants as it may deem

appropriate.
6. The parties that prequalified in the first MHC public bidding — ITT
Sheraton, Marriot International Inc., Renaissance Hotels International
Inc., consortium of RCBC Capital/Ritz Carlton — may participate in
the Public Bidding without having to undergo the prequalification
process again.
G. SHORTLIST OF QUALIFIED BIDDERS
1. A notice of prequalification results containing the shortlist of

Qualified Bidders will be posted at the Registration Office at the date
specified in Section III.
2. In the case of a Consortium/Joint Venture, the withdrawal by

member whose qualification was a material consideration for being
included in the shortlist is ground for disqualification of the Applicant.
V. GUIDELINES FOR THE PUBLIC BIDDING

A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC BIDDING
All parties in the shortlist of Qualified Bidders will be eligible to

participate in the Public Bidding.
B. BLOCK OF SHARES
A range of Nine Million (9,000,000) to Fifteen Million Three Hundred

Thousand (15,300,000) shares of stock representing Thirty Percent
to Fifty-One Percent (30%-51%) of the issued and outstanding shares
of MHC, will be offered in the Public Bidding by the GSIS. The
Qualified Bidders will have the Option of determining the number of
shares within the range to bid for. The range is intended to attract
bidders with different preferences and objectives for the operation
and management of The Manila Hotel.
C. MINIMUM BID REQUIRED ON A PRICE PER SHARE BASIS
1. Bids will be evaluated on a price per share basis. The minimum

bid required on a price per share basis for the Block of Shares is
Thirty-Six Pesos and Sixty-Seven Centavos (P36.67).
2. Bids should be in the Philippine currency payable to the GSIS.
3. Bids submitted with an equivalent price per share below the

minimum required will not considered.
D. TRANSFER COSTS
x x x x x x x x x
E. OFFICIAL BID FORM
1. Bids must be contained in the prescribed Official Bid Form, a copy

of which is attached as Annex IV. The Official Bid Form must be
properly accomplished in all details; improper accomplishment may
be a sufficient basis for disqualification.
2. During the Public Bidding, the Qualified Bidder will submit the
Official Bid Form, which will indicate the offered purchase price, in a
F. SUPPORTING DOCUMENTS
During the Public Bidding, the following documents should be

submitted along with the bid in a separate envelop marked
"SUPPORTING DOCUMENTS":
1. WRITTEN AUTHORITY TO BID (UNDER OATH).

If the Qualified Bidder is a corporation, the representative of the
Qualified Bidder should submit a Board resolution which adequately
authorizes such representative to bid for and in behalf of the
corporation with full authority to perform such acts necessary or
requisite to bind the Qualified Bidder.
If the Qualified Bidder is a Consortium/Joint Venture, each member of

the Consortium/Joint venture should submit a Board resolution
authorizing one of its members and such member's representative to
make the bid on behalf of the group with full authority to perform such
acts necessary or requisite to bind the Qualified Bidder.
2. BID SECURITY
a. The Qualified Bidder should deposit Thirty-Three Million Pesos

(P33,000,00), in Philippine currency as Bid Security in the form of:
i. Manager's check or unconditional demand draft

payable to the "Government Service Insurance
System" and issued by a reputable banking institution
duly licensed to do business in the Philippines and
acceptable to GSIS; or
ii. Standby-by letter of credit issued by a reputable

banking institution acceptable to the GSIS.
b. The GSIS will reject a bid if:
i. The bid does not have Bid Security; or
ii. The Bid Security accompanying the bid is for less

than the required amount.
c. If the Bid Security is in the form of a manager's check or

unconditional demand draft, the interest earned on the Bid Security
will be for the account of GSIS.
d. If the Qualified Bidder becomes the winning Bidder/Strategic

Partner, the Bid Security will be applied as the downpayment on the
Qualified Bidder's offered purchase price.
e. The Bid Security of the Qualified Bidder will be returned

immediately after the Public Bidding if the Qualified Bidder is not
declared the Highest Bidder.
f. The Bid Security will be returned by October 23, 1995 if the Highest
Bidder is unable to negotiate and execute with GSIS/MHC the
Contract or other types of contract specified by the Highest Bidder in
its strategic plan for The Manila Hotel.
g. The Bid Security of the Highest Bidder will be forfeited in favor of
GSIS if the Highest Bidder, after negotiating and executing the
Contract specified by the Highest Bidder or other types of contract in
its strategic plan for The Manila Hotel, fails or refuses to:
i. Execute the Stock Purchase and Sale Agreement

with GSIS not later than October 23, 1995; or
ii. Pay the full amount of the offered purchase price

not later than October 23, 1995; or
iii. Consummate the sale of the Block of Shares for

any other reason.
G. SUBMISSION OF BIDS
1. The Public Bidding will be held on September 7, 1995 at the

following location:
New GSIS Headquarters Building

Financial Center, Reclamation Area
Roxas Boulevard, Pasay City, Metro Manila.
2. The Secretariat of the PBAC will be stationed at the Public Bidding

to accept any and all bids and supporting requirements.
Representatives from the Commission on Audit and COP will be
invited to witness the proceedings.
3. The Qualified Bidder should submit its bid using the Official Bid
Form. The accomplished Official Bid Form should be submitted in a
4. The Qualified Bidder should submit the following documents

in another sealed envelope marked "SUPPORTING BID
DOCUMENTS"
a. Written Authority Bid
b. Bid Security
5. The two sealed envelopes marked "OFFICIAL BID" and

"SUPPORTING BID DOCUMENTS" must be submitted
simultaneously to the Secretariat between 9:00 AM and 2:00 PM,
Philippine Standard Time, on the date of the Public Bidding. No bid
shall be accepted after the closing time. Opened or tampered bids
shall not be accepted.
6. The Secretariat will log and record the actual time of submission of
the two sealed envelopes. The actual time of submission will also be
indicated by the Secretariat on the face of the two envelopes.
7. After Step No. 6, the two sealed envelopes will be dropped in the
corresponding bid boxes provided for the purpose. These boxes will
be in full view of the invited public.
H. OPENING AND READING OF BIDS
1. After the closing time of 2:00 PM on the date of the Public Bidding,
the PBAC will open all sealed envelopes marked "SUPPORTING BID
DOCUMENTS" for screening, evaluation and acceptance. Those who
submitted incomplete/insufficient documents or document/s which
is/are not substantially in the form required by PBAC will be
disqualified. The envelope containing their Official Bid Form will be
immediately returned to the disqualified bidders.
2. The sealed envelopes marked "OFFICIAL BID" will be opened at

3:00 PM. The name of the bidder and the amount of its bid price will
be read publicly as the envelopes are opened.
3. Immediately following the reading of the bids, the PBAC will

formally announce the highest bid and the Highest Bidder.
4. The highest bid will be, determined on a price per share basis. In
the event of a tie wherein two or more bids have the same equivalent
price per share, priority will be given to the bidder seeking the larger
ownership interest in MHC.
5. The Public Bidding will be declared a failed bidding in case:
a. No single bid is submitted within the prescribed

period; or
b. There is only one (1) bid that is submitted and

acceptable to the PBAC.

GSIS/MHC
1. The Highest Bidder must comply with the conditions set forth below
by October 23, 1995 or the Highest Bidder will lose the right to
purchase the Block of Shares and GSIS will instead offer the Block of
Shares to the other Qualified Bidders:
a. The Highest Bidder must negotiate and execute

with GSIS/MHC the Management Contract,
International Marketing Reservation System Contract
or other type of contract specified by the Highest
Bidder in its strategic plan for The Manila Hotel. If the
Highest Bidder is intending to provide only financial
support to The Manila Hotel, a separate institution
may enter into the aforementioned contract/s with
GSIS/MHC.
b. The Highest Bidder must execute the Stock
Purchase and Sale Agreement with GSIS, a copy of
which will be distributed to each of the Qualified
Bidder after the prequalification process is completed.
2. In the event that the Highest Bidder chooses a Management

Contract for The Manila Hotel, the maximum levels for the
management fee structure that GSIS/MHC are prepared to accept in
the Management Contract are as follows:
a. Basic management fee: Maximum of 2.5% of gross

revenues.(1)
b. Incentive fee: Maximum of 8.0% of gross operating

profit(1) after deducting undistributed overhead
expenses and the basic management fee.
c. Fixed component of the international

marketing/reservation system fee: Maximum of 2.0%
of gross room revenues.(1) The Applicant should
indicate in its Information Package if it is wishes to
charge this fee.
Note (1): As defined in the uniform system of account for hotels.
The GSIS/MHC have indicated above the acceptable parameters for

the hotel management fees to facilitate the negotiations with the
Highest Bidder for the Management Contract after the Public Bidding.
A Qualified Bidder envisioning a Management Contract for The

Manila Hotel should determine whether or not the management fee
structure above is acceptable before submitting their prequalification
documents to GSIS.
J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS
1. If for any reason, the Highest Bidder cannot be awarded the Block
of Shares, GSIS may offer this to the other Qualified Bidders that
have validly submitted bids provided that these Qualified are willing to
match the highest bid in terms of price per share.
2. The order of priority among the interested Qualified Bidders will be

in accordance wit the equivalent price per share of their respective
bids in their public Bidding, i.e., first and second priority will be given
to the Qualified Bidders that submitted the second and third highest
bids on the price per share basis, respectively, and so on.

PARTNER
The Highest Bidder will be declared the Winning Bidder/Strategic
Partner after the following conditions are met:
a. Execution of the necessary contract with

GSIS/MHC not later than October 23, 1995; and
b. Requisite approvals from the GSIS/MHC and

COP/OGCC are obtained.
I. FULL PAYMENT FOR THE BLOCK OF SHARES
1. Upon execution of the necessary contracts with GSIS/MHC, the

Winning Bidder/Strategic Partner must fully pay, not later than
October 23, 1995, the offered purchase price for the Block of Shares
after deducting the Bid Security applied as downpayment.
2. All payments should be made in the form of a Manager's Check or

unconditional Demand Draft, payable to the "Government Service
Insurance System," issued by a reputable banking institution licensed
to do business in the Philippines and acceptable to GSIS.
M. GENERAL CONDITIONS
1. The GSIS unconditionally reserves the right to reject any or all

applications, waive any formality therein, or accept such application
as maybe considered most advantageous to the GSIS. The GSIS
similarly reserves the right to require the submission of any additional
information from the Applicant as the PBAC may deem necessary.
2. The GSIS further reserves the right to call off the Public Bidding
prior to acceptance of the bids and call for a new public bidding under
amended rules, and without any liability whatsoever to any or all the
Qualified Bidders, except the obligation to return the Bid Security.
3. The GSIS reserves the right to reset the date of the

prequalification/bidding conference, the deadline for the submission
of the prequalification documents, the date of the Public Bidding or
other pertinent activities at least three (3) calendar days prior to the
respective deadlines/target dates.
4. The GSIS sells only whatever rights, interest and participation it

has on the Block of Shares.
5. All documents and materials submitted by the Qualified Bidders,

except the Bid Security, may be returned upon request.
6. The decision of the PBAC/GSIS on the results of the Public

Bidding is final. The Qualified Bidders, by participating in the Public
Bidding, are deemed to have agreed to accept and abide by these
results.
7. The GSIS will be held free and harmless form any liability, suit or
allegation arising out of the Public Bidding by the Qualified Bidders
who have participated in the Public Bidding. 3
The second public bidding was held on September 18, 1995. Petitioner bidded P41.00 per share for
15,300,000 shares and Renong Berhad bidded P44.00 per share also for 15,300,000 shares. The
GSIS declared Renong Berhad the highest bidder and immediately returned petitioner's bid security.
On September 28, 1995, ten days after the bidding, petitioner wrote to GSIS offering to match the
bid price of Renong Berhad. It requested that the award be made to itself citing the second
paragraph of Section 10, Article XII of the Constitution. It sent a manager's check for thirty-three
million pesos (P33,000,000.00) as bid security.
Respondent GSIS, then in the process of negotiating with Renong Berhad the terms and conditions
of the contract and technical agreements in the operation of the hotel, refused to entertain
petitioner's request.
Hence, petitioner filed the present petition. We issued a temporary restraining order on October 18,
1995.
Petitioner anchors its plea on the second paragraph of Article XII, Section 10 of the Constitution on
4
the "National Economy and Patrimony" which provides:
xxx xxx xxx
xxx xxx xxx
The vital issues can be summed up as follows:
(1) Whether section 10, paragraph 2 of Article XII of the Constitution is a self-
executing provision and does not need implementing legislation to carry it into effect;
(2) Assuming section 10 paragraph 2 of Article XII is self-executing whether the

controlling shares of the Manila Hotel Corporation form part of our patrimony as a
nation;
(3) Whether GSIS is included in the term "State," hence, mandated to implement
section 10, paragraph 2 of Article XII of the Constitution;
(4) Assuming GSIS is part of the State, whether it failed to give preference to
petitioner, a qualified Filipino corporation, over and above Renong Berhad, a foreign
corporation, in the sale of the controlling shares of the Manila Hotel Corporation;
(5) Whether petitioner is estopped from questioning the sale of the shares to Renong
Berhad, a foreign corporation.
Anent the first issue, it is now familiar learning that a Constitution provides the guiding policies and
principles upon which is built the substantial foundation and general framework of the law and
government. As a rule, its provisions are deemed self-executing and can be enforced without further
5
legislative action. Some of its provisions, however, can be implemented only through appropriate
6
laws enacted by the Legislature, hence not self-executing.
To determine whether a particular provision of a Constitution is self-executing is a hard row to hoe.

The key lies on the intent of the framers of the fundamental law oftentimes submerged in its
language. A searching inquiry should be made to find out if the provision is intended as a present
enactment, complete in itself as a definitive law, or if it needs future legislation for completion and
enforcement. The inquiry demands a micro-analysis of the text and the context of the provision in
7
question.8
Courts as a rule consider the provisions of the Constitution as self-executing, rather than as 9
requiring future legislation for their enforcement. The reason is not difficult to discern. For if they
10
are not treated as self-executing, the mandate of the fundamental law ratified by the sovereign
people can be easily ignored and nullified by Congress. Suffused with wisdom of the ages is the
11
unyielding rule that legislative actions may give breath to constitutional rights but congressional in
action should not suffocate them. 12
Thus, we have treated as self-executing the provisions in the Bill of Rights on arrests, searches and
seizures, the rights of a person under custodial investigation, the rights of an accused, and the
13 14 15
privilege against self-incrimination, It is recognize a that legislation is unnecessary to enable courts
16
to effectuate constitutional provisions guaranteeing the fundamental rights of life, liberty and the
protection of property. The same treatment is accorded to constitutional provisions forbidding the
17
taking or damaging of property for public use without just compensation. 18
Contrariwise, case law lays down the rule that a constitutional provision is not self-executing where it
merely announces a policy and its language empowers the Legislature to prescribe the means by
which the policy shall be carried into effect. Accordingly, we have held that the provisions in Article
19
II of our Constitution entitled "Declaration of Principles and State Policies" should generally be
construed as mere statements of principles of the State. We have also ruled that some provisions
20
of Article XIII on "Social Justice and Human Rights," and Article XIV on "Education Science and
21
Technology, Arts, Culture end Sports" cannot be the basis of judicially enforceable rights. Their
22
enforcement is addressed to the discretion of Congress though they provide the framework for
legislation to effectuate their policy content.
23 24
Guided by this map of settled jurisprudence, we now consider whether Section 10, Article XII of the
1987 Constitution is self-executing or not. It reads:
Sec. 10. The Congress shall, upon recommendation of the economic and planning
agency, when the national interest dictates, reserve to citizens of the Philippines or to
corporations or associations at least sixty per centum of whose capital is owned by
such citizens, or such higher percentage as Congress may prescribe, certain areas
of investments. The Congress shall enact measures that will encourage the
formation and operation of enterprises whose capital is wholly owned by Filipinos.
national jurisdiction and in accordance with its national goals and priorities.
The first paragraph directs Congress to reserve certain areas of investments in the
country to Filipino citizens or to corporations sixty per
25
cent of whose capital stock is owned by Filipinos. It further commands Congress to enact
26
laws that will encourage the formation and operation of one hundred percent Filipino-owned
enterprises. In checkered contrast, the second paragraph orders the entire State to give
preference to qualified Filipinos in the grant of rights and privileges covering the national
economy and patrimony. The third paragraph also directs the State to regulate foreign
investments in line with our national goals and well-set priorities.
The first paragraph of Section 10 is not self-executing. By its express text, there is a
categorical command for Congress to enact laws restricting foreign ownership in certain
areas of investments in the country and to encourage the formation and operation of wholly-
owned Filipino enterprises. The right granted by the provision is clearly still in esse.
Congress has to breathe life to the right by means of legislation. Parenthetically, this
paragraph was plucked from section 3, Article XIV of the 1973 Constitution. The provision
27
in the 1973 Constitution affirmed our ruling in the landmark case of Lao Ichong
v. Hernandez, where we upheld the discretionary authority of Congress to Filipinize certain
28
areas of investments. By reenacting the 1973 provision, the first paragraph of section 10
29
affirmed the power of Congress to nationalize certain areas of investments in favor of

Filipinos.
The second and third paragraphs of Section 10 are different. They are directed to the State and not
to Congress alone which is but one of the three great branches of our government. Their coverage is
also broader for they cover "the national economy and patrimony" and "foreign investments within
[the] national jurisdiction" and not merely "certain areas of investments." Beyond debate, they cannot
be read as granting Congress the exclusive power to implement by law the policy of giving
preference to qualified Filipinos in the conferral of rights and privileges covering our national
economy and patrimony. Their language does not suggest that any of the State agency or
instrumentality has the privilege to hedge or to refuse its implementation for any reason whatsoever.
Their duty to implement is unconditional and it is now. The second and the third paragraphs of
Section 10, Article XII are thus self-executing.
This submission is strengthened by Article II of the Constitution entitled "Declaration of Principles

and State Policies." Its Section 19 provides that "[T]he State shall develop a self-reliant and
independent national economy effectively controlled by Filipinos." It engrafts the all-important Filipino
First policy in our fundamental law and by the use of the mandatory word "shall," directs its
enforcement by the whole State without any pause or a half- pause in time.
The second issue is whether the sale of a majority of the stocks of the Manila Hotel Corporation
involves the disposition of part of our national patrimony. The records of the Constitutional
Commission show that the Commissioners entertained the same view as to its meaning. According
to Commissioner Nolledo, "patrimony" refers not only to our rich natural resources but also to the
cultural heritage of our race. By this yardstick, the sale of Manila Hotel falls within the coverage of
30
the constitutional provision giving preferential treatment to qualified Filipinos in the grant of rights
involving our national patrimony. The unique value of the Manila Hotel to our history and culture
cannot be viewed with a myopic eye. The value of the hotel goes beyond pesos and centavos. As
chronicled by Beth Day Romulo, the hotel first opened on July 4, 1912 as a first-class hotel built by
31
the American Insular Government for Americans living in, or passing through, Manila while traveling
to the Orient. Indigenous materials and Filipino craftsmanship were utilized in its construction, For
sometime, it was exclusively used by American and Caucasian travelers and served as the "official
guesthouse" of the American Insular Government for visiting foreign dignitaries. Filipinos began
coming to the Hotel as guests during the Commonwealth period. When the Japanese occupied
Manila, it served as military headquarters and lodging for the highest-ranking officers from Tokyo. It
was at the Hotel and the Intramuros that the Japanese made their last stand during the Liberation of
Manila. After the war, the Hotel again served foreign guests and Filipinos alike. Presidents and
kings, premiers and potentates, as well as glamorous international film and sports celebrities were
housed in the Hotel. It was also the situs of international conventions and conferences. In the local
scene, it was the venue of historic meetings, parties and conventions of political parties. The Hotel
has reaped and continues reaping numerous recognitions and awards from international hotel and
travel award-giving bodies, a fitting acknowledgment of Filipino talent and ingenuity. These are
judicially cognizable facts which cannot be bent by a biased mind.
The Hotel may not, as yet, have been declared a national cultural treasure pursuant to Republic Act
No. 4846 but that does not exclude it from our national patrimony. Republic Act No. 4846, "The
Cultural Properties Preservation and Protection Act," merely provides a procedure whereby a
particular cultural property may be classified a "national cultural treasure" or an "important cultural
property. Approved on June 18, 1966 and amended by P.D. 374 in 1974, the law is limited in its
32
reach and cannot be read as the exclusive law implementing section 10, Article XII of the 1987
Constitution. To be sure, the law does not equate cultural treasure and cultural property as
synonymous to the phrase "patrimony of the nation."
The third issue is whether the constitutional command to the State includes the respondent GSIS. A
look at its charter will reveal that GSIS is a government-owned and controlled corporation that
administers funds that come from the monthly contributions of government employees and the
government. The funds are held in trust for a distinct purpose which cannot be disposed of
33
indifferently. They are to be used to finance the retirement, disability and life insurance benefits of
34
the employees and the administrative and operational expenses of the GSIS, Excess funds,
35
however, are allowed to be invested in business and other ventures for the benefit of the
employees. It is thus contended that the GSIS investment in the Manila Hotel Corporation is a
36
simple business venture, hence, an act beyond the contemplation of section 10, paragraph 2 of
Article XII of the Constitution.
The submission is unimpressive. The GSIS is not a pure private corporation. It is essentially a public
corporation created by Congress and granted an original charter to serve a public purpose. It is
subject to the jurisdictions of the Civil Service Commission and the Commission on Audit. As
37 38
state-owned and controlled corporation, it is skin-bound to adhere to the policies spelled out in the
general welfare of the people. One of these policies is the Filipino First policy which the people
elevated as a constitutional command.
The fourth issue demands that we look at the content of phrase "qualified Filipinos" and their
"preferential right." The Constitution desisted from defining their contents. This is as it ought to be for
a Constitution only lays down flexible policies and principles which can bent to meet today's manifest
needs and tomorrow's unmanifested demands. Only a constitution strung with elasticity can grow as
a living constitution.
Thus, during the deliberations in the Constitutional Commission, Commissioner Nolledo to define the
phrase brushed aside a suggestion to define the phrase "qualified Filipinos." He explained that
present and prospective "laws" will take care of the problem of its interpretation, viz:
x x x x x x x x x
THE PRESIDENT. What is the suggestion of

Commissioner Rodrigo? Is it to remove the word
"QUALIFIED?"
MR. RODRIGO. No, no, but say definitely "TO
QUALIFIED FILIPINOS" as against whom? As
against aliens over aliens?
MR. NOLLEDO. Madam President, I think that is

understood. We use the word "QUALIFIED" because
the existing laws or the prospective laws will always
lay down conditions under which business map be
done, for example, qualifications on capital,
qualifications on the setting up of other financial
structures, et cetera.
MR. NOLLEDO Yes.
MR. RODRIGO. If we say, "PREFERENCE TO

QUALIFIED FILIPINOS," it can be understood as
giving preference to qualified Filipinos as against
Filipinos who are not qualified.
MR. NOLLEDO. Madam President, that was the

intention of the proponents. The committee has
accepted the amendment.
x x x x x x x x x
As previously discussed, the constitutional command to enforce the Filipino First policy is
addressed to the State and not to Congress alone. Hence, the word "laws" should not be
understood as limited to legislations but all state actions which include applicable rules and
regulations adopted by agencies and instrumentalities of the State in the exercise of their
rule-making power. In the case at bar, the bidding rules and regulations set forth the
standards to measure the qualifications of bidders Filipinos and foreigners alike. It is not
seriously disputed that petitioner qualified to bid as did Renong Berhad. 39
Thus, we come to the critical issue of the degree of preference which GSIS should have accorded
petitioner, a qualified Filipino, over Renong Berhad, a foreigner, in the purchase of the controlling
shares of the Manila Hotel. Petitioner claims that after losing the bid, this right of preference gives it
a second chance to match the highest bid of Renong Berhad.
With due respect, I cannot sustain petitioner's submission. I prescind from the premise that the
second paragraph of section 10, Article XII of the Constitution is pro-Pilipino but not anti-alien. It is
pro-Filipino for it gives preference to Filipinos. It is not, however, anti-alien per se for it does not
absolutely bar aliens in the grant of rights, privileges and concessions covering the national
economy and patrimony. Indeed, in the absence of qualified Filipinos, the State is not prohibited
from granting these rights, privileges and concessions to foreigners if the act will promote the weal of
the nation.
In implementing the policy articulated in section 10, Article XII of the Constitution, the stellar task of
our State policy-makers is to maintain a creative tension between two desiderata — first, the need to
develop our economy and patrimony with the help of foreigners if necessary, and, second, the need
to keep our economy controlled by Filipinos. Rightfully, the framers of the Constitution did not define
the degree of the right of preference to be given to qualified Filipinos. They knew that for the right to
serve the general welfare, it must have a malleable content that can be adjusted by our policy-
makers to meet the changing needs of our people. In fine, the right of preference of qualified
Filipinos is to be determined by degree as time dictates and circumstances warrant. The lesser the
need for alien assistance, the greater the degree of the right of preference can be given to Filipinos
and vice verse.
Again, it should be stressed that the right and the duty to determine the degree of this privilege at
any given time is addressed to the entire State. While under our constitutional scheme, the right
primarily belongs to Congress as the lawmaking department of our government, other branches of
government, and all their agencies and instrumentalities, share the power to enforce this state
policy. Within the limits of their authority, they can act or promulgate rules and regulations defining
the degree of this right of preference in cases where they have to make grants involving the national
economy and judicial duty. On the other hand, our duty is to strike down acts of the state that violate
the policy.
To date, Congress has not enacted a law defining the degree of the preferential right. Consequently,
we must turn to the rules and regulations of on respondents Committee Privatization and GSIS to
determine the degree of preference that petitioner is entitled to as a qualified Filipino in the subject
sale. A tearless look at the rules and regulations will show that they are silent on the degree of
preferential right to be accorded qualified Filipino bidder. Despite their silence, however, they cannot
be read to mean that they do not grant any degree of preference to petitioner for paragraph 2,
section 10, Article XII of the Constitution is deemed part of said rules and regulations. Pursuant to
legal hermeneutics which demand that we interpret rules to save them from unconstitutionality, I
submit that the right of preference of petitioner arises only if it tied the bid of Benong Berhad. In that
instance, all things stand equal, and bidder, as a qualified Pilipino bidder, should be preferred.
It is with deep regret that I cannot subscribe to the view that petitioner has a right to match the bid of
Renong Berhad. Petitioner's submission must be supported by the rules but even if we examine the
rules inside-out .thousand times, they can not justify the claimed right. Under the rules, the right to
match the highest bid arises only "if for any reason, the highest bidder cannot be awarded block of
shares . . ." No reason has arisen that will prevent the award to Renong Berhad. It qualified as
bidder. It complied with the procedure of bidding. It tendered the highest bid. It was declared as the
highest bidder by the GSIS and the rules say this decision is final. It deserves the award as a matter
of right for the rules clearly did not give to the petitioner as a qualified Filipino privilege to match the
higher bid of a foreigner. What the rules did not grant, petitioner cannot demand. Our symphaties
may be with petitioner but the court has no power to extend the latitude and longtitude of the right of
preference as defined by the rules. The parameters of the right of preference depend on galaxy of
facts and factors whose determination belongs to the province of the policy-making branches and
agencies of the State. We are duty-bound to respect that determination even if we differ with the
wisdom of their judgment. The right they grant may be little but we must uphold the grant for as long
as the right of preference is not denied. It is only when a State action amounts to a denial of the right
that the Court can come in and strike down the denial as unconstitutional.
Finally, I submit that petitioner is estopped from assailing the winning bid of Renong Berhad.
Petitioner was aware of the rules and regulations of the bidding. It knew that the rules and
regulations do not provide that a qualified Filipino bidder can match the winning bid submitting an
inferior bid. It knew that the bid was open to foreigners and that foreigners qualified even during the
first bidding. Petitioner cannot be allowed to repudiate the rules which it agreed to respect. It cannot
be allowed to obey the rules when it wins and disregard them when it loses. If sustained, petitioners'
stance will wreak havoc on he essence of bidding. Our laws, rules and regulations require highest
bidding to raise as much funds as possible for the government to maximize its capacity to deliver
essential services to our people. This is a duty that must be discharged by Filipinos and foreigners
participating in a bidding contest and the rules are carefully written to attain this objective. Among
others, bidders are prequalified to insure their financial capability. The bidding is secret and the bids
are sealed to prevent collusion among the parties. This objective will be undermined if we grant
petitioner that privilege to know the winning bid and a chance to match it. For plainly, a second
chance to bid will encourage a bidder not to strive to give the highest bid in the first bidding.
We support the Filipino First policy without any reservation. The visionary nationalist Don Claro M.
Recto has warned us that the greatest tragedy that can befall a Filipino is to be an alien in his own
land. The Constitution has embodied Recto's counsel as a state policy. But while the Filipino First
policy requires that we incline to a Filipino, it does not demand that we wrong an alien. Our policy
makers can write laws and rules giving favored treatment to the Filipino but we are not free to be
unfair to a foreigner after writing the laws and the rules. After the laws are written, they must be
obeyed as written, by Filipinos and foreigners alike. The equal protection clause of the Constitution
protects all against unfairness. We can be pro-Filipino without unfairness to foreigner.
I vote to dismiss the petition.
Narvasa, C.J., and Melo, J., concur.
PANGANIBAN, J., dissenting:
I regret I cannot join the majority. To the incisive Dissenting Opinion of Mr. Justice Reynato S. Puno,
may I just add
1. The majority contends the Constitution should be interpreted to mean that, after a bidding process
is concluded, the losing Filipino bidder should be given the right to equal the highest foreign bid, and
thus to win. However, the Constitution [Sec. 10 (2), Art. XII] simply states that "in the grant of
rights . . . covering the national economy and patrimony, the State shall give preference to qualified
Filipinos." The majority concedes that there is no law defining the extent or degree of such
preference. Specifically, no statute empowers a losing Filipino bidder to increase his bid and equal
that of the winning foreigner. In the absence of such empowering law, the majority's strained
interpretation, I respectfully submit constitutes unadulterated judicial legislation, which makes
bidding a ridiculous sham where no Filipino can lose and where no foreigner can win. Only in the
Philippines!.
2. Aside from being prohibited by the Constitution, such judicial is short-sighted and, viewed
properly, gravely prejudicial to long-term Filipino interest. It encourages other countries — in the
guise of reverse comity or worse, unabashed retaliation — to discriminate against us in their own
jurisdictions by authorizing their own nationals to similarly equal and defeat the higher bids of Filipino
enterprises solely, while on the other hand, allowing similar bids of other foreigners to remain
unchallenged by their nationals. The majority's thesis will thus marginalize Filipinos as pariahs in the
global marketplace with absolute no chance of winning any bidding outside our country. Even
authoritarian regimes and hermit kingdoms have long ago found out unfairness, greed and isolation
are self-defeating and in the long-term, self-destructing.
The moral lesson here is simple: Do not do unto other what you dont want other to do unto you.
3. In the absence of a law specifying the degree or extent of the "Filipino First" policy of the
Constitution, the constitutional preference for the "qualified Filipinos" may be allowed only where all
the bids are equal. In this manner, we put the Filipino ahead without self-destructing him and without
being unfair to the foreigner.
In short, the Constitution mandates a victory for the qualified Filipino only when the scores are tied.
But not when the ballgame is over and the foreigner clearly posted the highest score.
G.R. No. L-1123 March 5, 1947
ALEJO MABANAG, ET AL., petitioners,

vs.
JOSE LOPEZ VITO, ET AL., respondents.
Alejo Mabanag, Jose O. Vera, Jesus G. Barrera, Felixberto Serrano, J. Antonio Araneta, Antonio
Barredo, and Jose W. Diokno for petitioners.
Secretary of Justice Ozaeta, Solicitor General Tañada, and First Assistant Solicitor General Reyes
for respondents.
TUASON, J.:
This is a petition for prohibition to prevent the enforcement of a congressional resolution designated
"Resolution of both houses proposing an amendment to the Constitution of the Philippines to be
appended as an ordinance thereto." The members of the Commission on Elections, the Treasurer of
the Philippines, the Auditor General, and the Director of the Bureau of Printing are made defendants,
and the petitioners are eight senators, seventeen representatives, and the presidents of the
Democratic Alliance, the Popular Front and the Philippine Youth Party. The validity of the above-
mentioned resolution is attacked as contrary to the Constitution.
The case was heard on the pleadings and stipulation of facts. In our view of the case it is
unnecessary to go into the facts at length. We will mention only the facts essential for the proper
understanding of the issues. For this purpose it suffices to say that three of the plaintiff senators and
eight of the plaintiff representatives had been proclaimed by a majority vote of the Commission on
Elections as having been elected senators and representatives in the elections held on April 23,
1946. The three senators were suspended by the Senate shortly after the opening of the first
session of Congress following the elections, on account of alleged irregularities in their election. The
eight representatives since their election had not been allowed to sit in the lower House, except to
take part in the election of the Speaker, for the same reason, although they had not been formally
suspended. A resolution for their suspension had been introduced in the House of Representatives,
but that resolution had not been acted upon definitely by the House when the present petition was
filed.
As a consequence these three senators and eight representatives did not take part in the passage of
the questioned resolution, nor was their membership reckoned within the computation of the
necessary three-fourths vote which is required in proposing an amendment to the Constitution. If
these members of Congress had been counted, the affirmative votes in favor of the proposed
amendment would have been short of the necessary three-fourths vote in either branch of Congress.
At the threshold we are met with the question of the jurisdiction of this Court. The respondents deny
that this Court has jurisdiction, relying on the conclusiveness on the courts of an enrolled bill or
resolution. There is some merit in the petitioners' contention that this is confusing jurisdiction, which
is a matter of substantive law, with conclusiveness of an enactment or resolution, which is a matter
of evidence and practice. This objection, however, is purely academic. Whatever distinction there is
in the juridical sense between the two concepts, in practice and in their operation they boil down to
the same thing. Basically the two notions are synonymous in that both are founded on the regard
which the judiciary accords a co-equal coordinate, and independent departments of the Government.
If a political question conclusively binds the judges out of respect to the political departments, a duly
certified law or resolution also binds the judges under the "enrolled bill rule" born of that respect.
It is a doctrine too well established to need citation of authorities, that political questions are not
within the province of the judiciary, except to the extent that power to deal with such questions has
been conferred upon the courts by express constitutional or statutory provision. (16 C.J.S., 431.)
This doctrine is predicated on the principle of the separation of powers, a principle also too well
known to require elucidation or citation of authorities. The difficulty lies in determining what matters
fall within the meaning of political question. The term is not susceptible of exact definition, and
precedents and authorities are not always in full harmony as to the scope of the restrictions, on this
ground, on the courts to meddle with the actions of the political departments of the government.
But there is one case approaching this in its circumstances: Coleman vs. Miller, a relatively recent
decision of the United States Supreme Court reported and annotated in 122 A.L.R., 695. The case,
by a majority decision delivered by Mr. Chief Justice Hughes, is authority for the conclusion that the
efficacy of ratification by state legislature of a proposed amendment to the Federal Constitution is a
political question and hence not justiciable. The Court further held that the decision by Congress, in
its control of the Secretary of State, of the questions of whether an amendment has been adopted
within a reasonable time from the date of submission to the state legislature, is not subject to review
by the court.
If ratification of an amendment is a political question, a proposal which leads to ratification has to be

a political question. The two steps complement each other in a scheme intended to achieve a single
objective. It is to be noted that the amendatory process as provided in section 1 of Article XV of the
Philippine Constitution "consists of (only) two distinct parts: proposal and ratification." There is no
logic in attaching political character to one and withholding that character from the other. Proposal to
amend the Constitution is a highly political function performed by the Congress in its sovereign
legislative capacity and committed to its charge by the Constitution itself. The exercise of this power
is even independent of any intervention by the Chief Executive. If on grounds of expediency
scrupulous attention of the judiciary be needed to safeguard public interest, there is less reason for
judicial inquiry into the validity of a proposal than into that of a ratification. As the Mississippi
Supreme Court has once said:
There is nothing in the nature of the submission which should cause the free exercise of it to
be obstructed, or that could render it dangerous to the stability of the government; because
the measure derives all its vital force from the action of the people at the ballot box, and
there can never be danger in submitting in an established form, to a free people, the
proposition whether they will change their fundamental law. The means provided for the
exercise of their sovereign right of changing their constitution should receive such a
construction as not to trammel the exercise of the right. Difficulties and embarrassments in
its exercise are in derogation of the right of free government, which is inherent in the people;
and the best security against tumult and revolution is the free and unobstructed privilege to
the people of the State to change their constitution in the mode prescribed by the instrument.
(Green vs. Weller, 32 Miss., 650; note, 10 L.R.A., N.S., 150.)
Mr. Justice Black, in a concurring opinion joined in by Justices Roberts, Frankfurter and Douglas, in
Miller vs.Coleman, supra, finds no basis for discriminating between proposal and ratification. From
his forceful opinion we quote the following paragraphs:
The Constitution grant Congress exclusive power to control submission of constitutional

amendments. Final determination by Congress that ratification by three-fourths of the States
has taken place "is conclusive upon the courts." In the exercise of that power, Congress, of
course, is governed by the Constitution. However, whether submission, intervening
procedure or Congressional determination of ratification conforms to the commands of the
Constitution, call for decisions by a "political department" of questions of a type which this
Court has frequently designated "political." And decision of a "political question" by the
"political department" to which the Constitution has committed it "conclusively binds the
judges, as well as all other officers, citizens and subjects of . . . government." Proclamation
under authority of Congress that an amendment has been ratified will carry with it a solemn
assurance by the Congress that ratification has taken place as the Constitution commands.
Upon this assurance a proclaimed amendment must be accepted as a part of the
Constitution, leaving to the judiciary its traditional authority of interpretation. To the extent
that the Court's opinion in the present case even impliedly assumes a power to make judicial
interpretation of the exclusive constitutional authority of Congress over submission and
ratification of amendments, we are unable to agree.
The State court below assumed jurisdiction to determine whether the proper procedure is
being followed between submission and final adoption. However, it is apparent that judicial
review of or pronouncements upon a supposed limitation of a "reasonable time" within which
Congress may accept ratification; as to whether duly authorized State officials have
proceeded properly in ratifying or voting for ratification; or whether a State may reverse its
action once taken upon a proposed amendment; and kindred questions, are all consistent
only with an intimate control over the amending process in the courts. And this must
inevitably embarrass the course of amendment by subjecting to judicial interference matters
that we believe were intrusted by the Constitution solely to the political branch of
government.
The Court here treats the amending process of the Constitution in some respects as subject
to judicial construction, in others as subject to the final authority of the Congress. There is no
disapproval of the conclusion arrived at in Dillon vs. Gloss, that the Constitution impliedly
requires that a properly submitted amendment must die unless ratified within a "reasonable
time." Nor does the Court now disapprove its prior assumption of power to make such a
pronouncement. And it is not made clear that only Congress has constitutional power to
determine if there is any such implication in Article 5 of the Constitution. On the other hand,
the Court's opinion declares that Congress has the exclusive power to decide the "political
questions" of whether as State whose legislature has once acted upon a proposed
amendment may subsequently reverse its position, and whether, in the circumstances of
such a case as this, an amendment is dead because an "unreasonable" time has elapsed.
No such division between the political and judicial branches of the government is made by
Article 5 which grants power over the amending of the Constitution to Congress alone.
Undivided control of that process has been given by the Article exclusively and completely to
Congress. The process itself is "political" in its entirely, from submission until an amendment
becomes part of the Constitution, and is not subject to judicial guidance, control or
interference at any point.
Mr. Justice Frankfurter, in another concurring opinion to which the other three justices subscribed,
arrives at the same conclusion. Though his thesis was the petitioner's lack of standing in court — a
point which not having been raised by the parties herein we will not decide — his reasoning
inevitably extends to a consideration of the nature of the legislative proceeding the legality of which
the petitioners in that case assailed. From a different angle he sees the matter as political, saying:
The right of the Kansas senators to be here is rested on recognition by Leser vs. Garnett,

258 U.S., 130; 66 Law. ed., 505; 42 S. Ct., 217, of a voter's right to protect his franchise. The
historic source of this doctrine and the reasons for it were explained in Nixon vs. Herndon,
273 U.S., 436, 540; 71 Law. ed., 759, 761; 47 S. Ct., 446. That was an action for $5,000
damages against the Judges of Elections for refusing to permit the plaintiff to vote at a
primary election in Texas. In disposing of the objection that the plaintiff had no cause of
action because the subject matter of the suit was political, Mr. Justice Homes thus spoke for
the Court: "Of course the petition concerns political action, but it alleges and seeks to
recover for private damage. That private damage may be caused by such political action and
may be recovered for in a suit at law hardly has been doubted for over two hundred years,
since Ashby vs. White, 2 Ld. Raym., 938; 92 Eng. Reprint, 126; 1 Eng. Rul. Cas., 521; 3 Ld.
Raym., 320; 92 Eng. Reprint, 710, and has been recognized by this Court." "Private
damage" is the clue to the famous ruling in Ashby vs. White, supra, and determines its scope
as well as that of cases in this Court of which it is the justification. The judgment of Lord Holt
is permeated with the conception that a voter's franchise is a personal right, assessable in
money damages, of which the exact amount "is peculiarly appropriate for the determination
of a jury," see Wiley vs. Sinkler, 179 U.S., 58, 65; 45 Law. ed., 84, 88; 21 S. Ct., 17, and for
which there is no remedy outside the law courts. "Although this matter relates to the
parliament," said Lord Holt, "yet it is an injury precedaneous to the parliament, as my Lord
Hale said in the case of Bernardiston vs. Some, 2 Lev., 114, 116; 83 Eng. Reprint, 175. The
parliament cannot judge of this injury, nor give damage to the plaintiff for it: they cannot
make him a recompense." (2 Ld. Raym., 938, 958; 92 Eng. Reprint, 126; 1 Eng. Rul. Cas.,
521.)
The reasoning of Ashby vs. White and the practice which has followed it leave intra-
parliamentary controversies to parliaments and outside the scrutiny of law courts. The
procedures for voting in legislative assemblies — who are members, how and when they
should vote, what is the requisite number of votes for different phases of legislative activity,
what votes were cast and how they were counted — surely are matters that not merely
concern political action but are of the very essence of political action, if "political" has any
connotation at all. Marshall Field & Co. vs. Clark, 143 U.S., 649, 670, et seq.; 36 Law. ed.,
294, 302; 12 S. Ct., 495; Leser vs. Garnett, 258 U.S., 130, 137; 66 Law. ed., 505, 511; 42 S.
Ct., 217. In no sense are they matters of "private damage." They pertain to legislators not as
individuals but as political representatives executing the legislative process. To open the law
courts to such controversies is to have courts sit in judgment on the manifold disputes
engendered by procedures for voting in legislative assemblies. If the doctrine of
Ashby vs. White vindicating the private rights of a voting citizen has not been doubted for
over two hundred years, it is equally significant that for over two hundred years
Ashby vs. White has not been sought to be put to purposes like the present. In seeking
redress here these Kansas senators have wholly misconceived the functions of this Court.
The writ of certiorari to the Kansas Supreme Court should therefore be dismissed.
We share the foregoing views. In our judgment they accord with sound principles of political
jurisprudence and represent liberal and advanced thought on the working of constitutional and
popular government as conceived in the fundamental law. Taken as persuasive authorities, they
offer enlightening understanding of the spirit of the United States institutions after which ours are
patterned.
But these concurring opinions have more than persuasive value. As will be presently shown, they
are the opinions which should operate to adjudicate the questions raised by the pleadings. To make
the point clear, it is necessary, at the risk of unduly lengthening this decision, to make a statement
and an analysis of the Coleman vs. Miller case. Fortunately, the annotation on that case in the
American Law Reports, supra, comes to out aid and lightens our labor in this phase of the
controversy.
Coleman vs. Miller was an original proceeding in mandamus brought in the Supreme Court of

Kansas by twenty-one members of the Senate, including twenty senators who had voted against a
resolution ratifying the Child Labor Amendment, and by three members of the House of
Representatives, to compel the Secretary of the Senate to erase in indorsement on the resolution to
the effect that it had been adopted by the Senate and to indorse thereon the words "as not passed."
They sought to restrain the offices of the Senate and House of Representatives from signing the
resolution, and the Secretary of State of Kansas from authenticating it and delivering it to the
Governor.
The background of the petition appears to have been that the Child Labor Amendment was
proposed by Congress in June, 1924; that in January, 1925, the legislature of Kansad adopted a
resolution rejecting it and a copy of the resolution was sent to the Secretary of State of the United
States; that in January, 1927, a new resolution was introduced in the Senate of Kansas ratifying the
proposed amendment; that there were forty senators, twenty of whom voted for and twenty against
the resolution; and that as a result of the tie, the Lieutenant Governor cast his vote in favor of the
resolution.
The power of the Lieutenant Governor to vote was challenged, and the petition set forth prior
rejection of the proposed amendment and alleged that in the period from June 1924 to March 1927,
the proposed amendment had been rejected by both houses of the legislatures of twenty-six states
and had been ratified only in five states, and that by reason of that rejection and the failure of
ratification within a reasonable time, the proposed amendment had lost its vitality.
The Supreme Court of Kansas entertained jurisdiction of all the issues but dismissed the petition on
the merits. When the case reached the Supreme Court of the United States the questions were
framed substantially in the following manner:
First, whether the court had jurisdiction; that is, whether the petitioners had standing to seek to have
the judgment of the state court reversed; second, whether the Lieutenant Governor had the right to
vote in case of a tie, as he did, it being the contention of the petitioners that "in the light of the
powers and duties of the Lieutenant Governor and his relation to the Senate under the state
Constitution, as construed by the Supreme Court of the state, the Lieutenant Governor was not a
part of the 'legislature' so that under Article 5 of the Federal Constitution, he could be permitted to
have a deciding vote on the ratification of the proposed amendment, when the Senate was equally
divided"; and third, the effect of the previous rejection of the amendment and of the lapse of time
after its submission.
The first question was decided in the affirmative. The second question, regarding the authority of the
Lieutenant Governor to vote, the court avoided, stating: "Whether this contention presents a
justiciable controversy, or a question which is political in its nature and hence not justiciable, is a
question upon which the Court is equally divided and therefore the court expresses no opinion upon
that point." On the third question, the Court reached the conclusion before referred to, namely, (1)
that the efficacy of ratification by state legislature of a proposed amendment to the Federal
Constitution is a political question, within the ultimate power of Congress in the exercise of its control
and of the promulgation of the adoption of amendment, and (2) that the decision by Congress, in its
control of the action of the Secretary of State, of the questions whether an amendment to the
Federal Constitution has been adopted within a reasonable time, is not subject to review by the
court.
The net result was that the judgment of the Supreme Court of Kansas was affirmed but in the
grounds stated in the United States Supreme Court's decision. The nine justices were aligned in
three groups. Justices Roberts, Black, Frankfurter and Douglas opined that the petitioners had no
personality to bring the petition and that all the questions raised are political and non-justiciable
Justices Butler and McReynolds opined that all the questions were justiciable; that the Court had
jurisdiction of all such questions, and that the petition should have been granted and the decision of
the Supreme Court of Kansas reversed on the ground that the proposal to amend had died of old
age. The Chief Justice, Mr. Justice Stone and Mr. Justice Reed regarded some of the issues as
political and non-justiciable, passed by the question of the authority of the Lieutenant Governor to
case a deciding vote, on the ground that the Court was equally divided, and took jurisdiction of the
rest of the questions.
The sole common ground between Mr. Justice Butler and Mr. Justice McReynolds, on the one hand
and the Chief Justice, Mr. Justice Stone and Mr. Justice Reed, on the other, was on the question of
jurisdiction; on the result to be reached, these two groups were divided. The agreement between
Justices Roberts, Black, Frankfurter and Douglas, on the one hand, and the Chief Justice and
Justices Stone and Reed, on the other, was on the result and on that part of the decision which
declares certain questions political and non-justiciable.
As the annotator in American Law Reports observes, therefore going four opinions "show
interestingly divergent but confusing positions of the Justices on the issues discussed. "It cites an
article in 48 Yale Law Journal, 1455, amusingly entitled "Sawing a Justice in Half," which, in the light
of the divergencies in the opinions rendered, aptly queries" whether the proper procedure for the
Supreme Court would not have been to reverse the judgment below and direct dismissal of the suit
for want of jurisdiction." It says that these divergencies and line-ups of the justices "leave power to
dictate the result and the grounds upon which the decision should be rested with the four justices
who concurred in Mr. Justice Black's opinion." Referring to the failure of the Court to decide the
question of the right of the Lieutenant Governor to vote, the article points out that from the opinions
rendered the "equally divided" court would seem under any circumstances to bean equal division of
an odd number of justices, and asks "What really did happen? Did a justice refuse to vote on this
issue? And if he did, was it because he could not make up his mind, or is it possible to saw a justice
vertically in half during the conference and have him walk away whole?" But speaking in a more
serious vein, the commentator says that decision of the issue could not be avoided on grounds of
irrelevance, since if the court had jurisdiction of the case, decision of the issue in favor of the
petitioners would have required reversal of the judgment below regardless of the disposal of the
other issues.
From this analysis the conclusion is that the concurring opinions should be considered as laying
down the rule of the case.
The respondent's other chief reliance is on the contention that a duly authenticated bill or resolution
imports absolute verity and is binding on the courts. This is the rule prevailing in England. In the
United States, "In point of numbers, the jurisdictions are divided almost equally pro and con the
general principle (of these, two or three have changed from their original position), two or three
adopted a special variety of view (as in Illinois), three or four are not clear, and one or two have not
yet made their decisions." (IV Wigmore on Evidence, 3d Edition, 685, footnote.) It is important to
bear in mind, in this connection, that the United States Supreme Court is on the side of those which
favor the rule. (Harwood vs. Wentworth, 40 Law. ed., 1069; Lyon vs. Wood, 38 Law. ed., 854;
Field vs. Clark, 36 Law. ed., 294.)
If for no other reason than that it conforms to the expressed policy of our law making body, we
choose to follow the rule. Section 313 of the old Code of Civil Procedure, as amended by Act No.
2210, provides: "Official documents may be proved as follows: . . . (2) the proceedings of the
Philippine Commission, or of any legislative body that may be provided for in the Philippine Islands,
or of Congress, by the journals of those bodies or of either house thereof, or by published statutes or
resolutions, or by copies certified by the clerk or secretary, or printed by their order; Provided, That
in the case of Acts of the Philippine Commission or the Philippine Legislature, when there is an
existence of a copy signed by the presiding officers and secretaries of said bodies, it shall be
conclusive proof of the provisions of such Acts and of the due enactment thereof."
But there is more than statutory sanction for conclusiveness.
This topic has been the subject of a great number of decisions and commentaries written with
evident vehemence. Arguments for and against the rule have been extensive and exhaustive. It
would be presumptuous on our part to pretend to add more, even if we could, to what has already
been said. Which such vast mass of cases to guide our judgment and discretion, our labor is
reduced to an intelligent selection and borrowing of materials and arguments under the criterion of
adaptability to a sound public policy.
The reasons adduced in support of enrollment as contrasted with those which opposed it are, in our
opinion, almost decisive. Some of these reasons are summarized in 50 American Jurisprudence,
section 150 as follows:
SEC. 150. Reasons for Conclusiveness. — It has been declared that the rule against going
behind the enrolled bill is required by the respect due to a coequal and independent
department of the government, and it would be an inquisition into the conduct of the
members of the legislature, a very delicate power, the frequent exercise of which must lead
to endless confusion in the administration of the law. The rule is also one of convenience,
because courts could not rely on the published session laws, but would be required to look
beyond these to the journals of the legislature and often to any printed bills and amendments
which might be found after the adjournment of the legislature. Otherwise, after relying on the
prima facie evidence of the enrolled bills, authenticated as exacted by the Constitution, for
years, it might be ascertained from the journals that an act theretofore enforced had never
become a law. In this respect, it has been declared that these is quite enough uncertainty as
to what the law is without saying that no one may be certain that an act of the legislature has
become such until the issue has been determined by some court whose decision might not
be regarded as conclusive in an action between the parties.
From other decisions, selected and quoted in IV Wigmore on Evidence, 696, 697, we extract these
passages:
I think the rule thus adopted accords with public policy. Indeed, in my estimation, few things
would be more mischievous than the introduction of the opposite rule. . . . The rule
contended for is that the Court should look at the journals of the Legislature to ascertain
whether the copy of the act attested and filed with the Secretary of State conforms in its
contents with the statements of such journals. This proposition means, if it has any legal
value whatever, that, in the event of a material discrepancy between the journal and the
enrolled copy, the former is to be taken as the standard of veracity and the act is to be
rejected. This is the test which is to be applied not only to the statutes now before the Court,
but to all statutes; not only to laws which have been recently passed, but to laws the most
ancient. To my mind, nothing can be more certain than that the acceptance of this doctrine
by the Court would unsettle the entire statute law of the State. We have before us some
evidence of the little reliability of these legislative journals. . . . Can any one deny that if the
laws of the State are to be tested by a comparison with these journals, so imperfect, so
unauthenticated, the stability of all written law will be shaken to its very foundations? . . . We
are to remember the danger, under the prevalence of such a doctrine, to be apprehended
from the intentional corruption of evidences of this character. It is scarcely too much to say
that the legal existence of almost every legislative act would be at the mercy of all persons
having access to these journals. . . . ([1866], Beasley, C.J., in Pangborn vs. Young, 32
N.J.L., 29, 34.)
But it is argued that if the authenticated roll is conclusive upon the Courts, then less than a
quorum of each House may be the aid of corrupt presiding officers imposed laws upon the
State in defiance of the inhibition of the Constitution. It must be admitted that the
consequence stated would be possible. Public authority and political power must of necessity
be confided to officers, who being human may violate the trusts reposed in them. This
perhaps cannot be avoided absolutely. But it applies also to all human agencies. It is not fit
that the Judiciary should claim for itself a purity beyond all others; nor has it been able at all
times with truth to say that its high places have not been disgraced. The framers of our
government have not constituted it with faculties to supervise coordinate departments and
correct or prevent abuses of their authority. It cannot authenticate a statute; that power does
not belong to it; nor can it keep a legislative journal. (1869, Frazer, J., in Evans vs. Brownem
30 Ind., 514, 524.)
Professor Wigmore in his work on Evidence — considered a classic, and described by one who
himself is a noted jurist, author, and scholar, as "a permanent contribution to American law" and
having "put the matured nineteenth-century law in form to be used in a new era of growth" —
unequivocally identifies himself with those who believe in the soundness of the rule. The
distinguished professor, in answer to the argument of Constitutional necessity, i.e., the impossibility
of securing in any other way the enforcement of constitutional restrictions on legislative action, says:
(1) In the first place, note that it is impossible of consistent application. If, as it is urged, the
Judiciary are bound to enforce the constitutional requirements of three readings, a two-thirds
vote, and the like, and if therefore an act must be declared no law which in fact was not read
three times or voted upon by two-thirds, this duty is a duty to determine according to the
actual facts of the readings and the votes. Now the journals may not represent the actual
facts. That duty cannot allow us to stop with the journals, if it can be shown beyond doubt
that the facts were otherwise than therein represented. The duty to uphold a law which in
fact was constitutionally voted upon is quite as strong as the duty to repudiate an act
unconstitutionally voted upon. The Court will be going as far wrong in repudiating an act
based on proper votes falsified in the journal as it will be in upholding an act based on
improper votes falsified in the enrollment. This supposed duty, in short, is to see that the
constitutional facts did exist; and it cannot stop short with the journals. Yet, singularly
enough, it is unanimously conceded that an examination into facts as provable by the
testimony of members present is not allowable. If to support that it be said that such an
inquiry would be too uncertain and impracticable, then it is answered that this concedes the
supposed constitutional duty not to be inexorable, after all; for if the duty to get at the facts is
a real and inevitable one, it must be a duty to get at them at any cost; and if it is merely a
duty that is limited by policy and practical convenience, then the argument changes into the
second one above, namely, how far it is feasible to push the inquiry with regard to policy and
practical convenience; and from this point of view there can be but one answer.
(2) In the second place, the fact that the scruple of constitutional duty is treated thus
inconsistently and pushed only up to a certain point suggests that it perhaps is based on
some fallacious assumption whose defect is exposed only by carrying it to its logical
consequences. Such indeed seems to be the case. It rests on the fallacious motion that
every constitutional provision is "per se" capable of being enforced through the Judiciary and
must be safeguarded by the Judiciary because it can be in no other way. Yet there is
certainly a large field of constitutional provision which does not come before the Judiciary for
enforcement, and may remain unenforced without any possibility or judicial remedy. It is not
necessary to invoke in illustration such provisions as a clause requiring the Governor to
appoint a certain officer, or the Legislature to pass a law for a certain purpose; here the
Constitution may remain unexecuted by the failure of Governor or Legislature to act, and yet
the Judiciary cannot safeguard and enforce the constitutional duty. A clearer illustration may
be had by imagining the Constitution to require the Executive to appoint an officer or to call
out the militia whenever to the best of his belief a certain state of facts exists; suppose he
appoints or calls out when in truth he has no such belief; can the Judiciary attempt to enforce
the Constitution by inquiring into his belief? Or suppose the Constitution to enjoin on the
Legislators to pass a law upon a certain subject whenever in their belief certain conditions
exist; can the Judiciary declare the law void by inquiring and ascertaining that the
Legislature, or its majority, did not have such a belief? Or suppose the Constitution
commands the Judiciary to decide a case only after consulting a soothsayer, and in a given
case the Judiciary do not consult one; what is to be done?
These instances illustrate a general situation in which the judicial function of applying and
enforcing the Constitution ceases to operate. That situation exists where the Constitution
enjoins duties which affect the motives and judgment of a particular independent department
of government, — Legislature, Executive, and Judiciary. Such duties are simply beyond
enforcement by any other department if the one charged fails to perform them. The
Constitution may provide that no legislator shall take a bribe, but an act would not be treated
as void because the majority had been bribed. So far as the Constitution attempts to lay
injunctions in matters leading up to and motivating the action of a department, injunctions
must be left to the conscience of that department to obey or disobey. Now the act of the
Legislature as a whole is for this purpose of the same nature as the vote of a single
legislator. The Constitution may expressly enjoin each legislator not to vote until he has
carefully thought over the matter of legislation; so, too, it may expressly enjoin the whole
Legislature not to act finally until it has three times heard the proposition read aloud. It is for
the Legislature alone, in the latter case as well as in the former, to take notice of this
injunction; and it is no more the function of the Judiciary in the one case than in the other to
try to keep the Legislature to its duty:
xxx xxx xxx
The truth is that many have been carried away with the righteous desire to check at any cost
the misdoings of Legislatures. They have set such store by the Judiciary for this purpose that
they have almost made them a second and higher Legislature. But they aim in the wrong
direction. Instead of trusting a faithful Judiciary to check an inefficient Legislature, they
should turn to improve the legislature. The sensible solution is not to patch and mend casual
errors by asking the Judiciary to violate legal principle and to do impossibilities with the
Constitution; but to represent ourselves with competent, careful, and honest legislators, the
work of whose hands on the statute-roll may come to reflect credit upon the name of popular
government. (4 Wigmore on Evidence, 699-702.)
The petitioners contend that the enrolled bill rule has not found acceptance in this jurisdiction, citing
the case of United States vs. Pons (34 Phil., 729). It is argued that this Court examined the journal in
that case to find out whether or not the contention of the appellant was right. We think the petitioners
are in error.
It will be seen upon examination of section 313 of the Code of Civil Procedure, as amended by Act
No. 2210, that, roughly, it provides two methods of proving legislative proceedings: (1) by the
journals, or by published statutes or resolutions, or by copies certified by the clerk or secretary or
printed by their order; and (2) in case of acts of the Legislature, by a copy signed by the presiding
officers and secretaries thereof, which shall be conclusive proof of the provisions of such Acts and of
the due enactment thereof.
The Court looked into the journals in United States vs. Pons because, in all probability, those were
the documents offered in evidence. It does not appear that a duly authenticated copy of the Act was
in existence or was placed before the Court; and it has not been shown that if that had been done,
this Court would not have held the copyconclusive proof of the due enactment of the law. It is to be
remembered that the Court expressly stated that it "passed over the question" of whether the
enrolled bill was conclusive as to its contents and the mode of its passage.
Even if both the journals and an authenticated copy of the Act had been presented, the disposal of
the issue by the Court on the basis of the journals does not imply rejection of the enrollment theory,
for, as already stated, the due enactment of a law may be proved in either of the two ways specified
in section 313 of Act No. 190 as amended. This Court found in the journals no signs of irregularity in
the passage of the law and did not bother itself with considering the effects of an authenticated copy
if one had been introduced. It did not do what the opponents of the rule of conclusiveness advocate,
namely, look into the journals behind the enrolled copy in order to determine the correctness of the
latter, and rule such copy out if the two, the journals and the copy, be found in conflict with each
other. No discrepancy appears to have been noted between the two documents and the court did
not say or so much as give to understand that if discrepancy existed it would give greater weight to
the journals, disregarding the explicit provision that duly certified copies "shall be conclusive proof of
the provisions of such Acts and of the due enactment thereof."
In view of the foregoing consideration, we deem it unnecessary to decide the question of whether
the senators and representatives who were ignored in the computation of the necessary three-
fourths vote were members of Congress within the meaning of section 1 of Article XV of the
Philippine Constitution.
The petition is dismissed without costs.
Moran, C.J., Pablo, and Hontiveros, JJ., concur.
Separate Opinions
BENGZON, J., with whom concurs PADILLA, J., concurring:

Although I maintain that we have jurisdiction as petitioners contend, I can't vote for them, because
the enrolled copy of the resolution and the legislative journals are conclusive upon us.
A. The overwhelming majority of the state courts are of the opinion that the question whether an
amendment to the existing constitution has been duly proposed in the manner required by such
constitution properly belongs to the judiciary. That is the position taken by Alabama, Arkansas,
California, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Maryland,
Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New
Jersey, Ohio, Oregon, Rhode Island, Washington and Wisconsin. (See 12 C. J., 880 and 16C.J.S.,
437.) (See also 11 Am. Jur., 639.) Only North Dakota and Oklahoma have adopted a different view.
(16 C.J.S., 437, notes 41 and 43.)
"The authorities are thus practically uniform in holding that whether a constitutional
amendment has been properly adopted according to the requirements of an existing
constitution is a judicial question." (McConaughy vs. Secretary of State, 106 Minn., 392, 409;
119 N.W., 408.) (12 C.J., 880.)
"An examination of the decisions shows that the courts have almost uniformly exercised the
authority to determine the validity of the proposal, submission, or ratification of constitutional
amendments. It has been judicially determined whether a proposed amendment received the
constitutional majority of votes. (Knight vs.Shelton, 134 Fed., 423; Rice vs. Palmer, 78 Ark.,
432; 96 S. W. 396; Green vs. State Canvassers, 5 Ida., 130; 47 P., 259; 95 Am. S.R., 169; In
re Denny, 156 Ind., 104; 59 N.E., 359; 51 L. R. A., 722; Dayton vs. St. Paul, 22 Minn., 400;
Tecumseh Nat. Bank vs. Saunders, 51 Nebr., 801; 71 N.W., 779; Bott vs. Wurts, 63 N.J.L.,
289; 43 A., 744, 881; 45 L.R.A., 251; State vs. Foraker, 46 Oh. St., 677; 23 N.E., 491; 6
L.R.A., 422.)" (12 C.J., 880.)
As our constitutional system ("limitation" of powers) is more analogous to state systems than to the
Federal theory of "grant" of powers, it is proper to assume that the members of our Constitutional
convention, composed mostly of lawyers, and even the members of the American Congress that
approved the Tydings-McDuffie enabling legislation, contemplated the adoption of such
constitutional practice in this portion of the world. Hence, my conclusion that in Philippine polity,
courts may and should take cognizance of the subject of this controversy.
B. The petitioners' grievance is that, contrary to the provisions of the Constitution (Article XV), the
proposed amendment was not approved "by a vote of three-fourths of all the members of the Senate
and of the House of Representatives." They complain that certain Senators and some members of
the House of Representatives were not allowed to participate and were not considered in
determining the required three fourths vote.
The respondents, besides denying our power to revised the counting, assert that the persons
mentioned, for all practical purposed did not belong to the Congress of the Philippines on the day the
amendment was debated and approved.
Central target of attack is Republic Act No. 73 "to submit to the Filipino people, for approval or
disapproval, the amendment to the Constitution of the Philippines to be appended as an Ordinance
thereto, proposed by the Congress of the Philippines in a Resolution of both Houses, etc."
Petitioners would have a declaration of invalidity of that piece of legislation. Its first section provides
that "the amendment to the Constitution of the Philippines to be appended as an Ordinance thereto,
proposed by the Congress of the Philippines in a Resolution of both Houses, adopted on September
eighteen, nineteen hundred and forty-six, shall be submitted to the people, for approval or
disapproval, at a general election which shall be held on March eleven, nineteen hundred and forty-
seven, in accordance with the provisions of this Act."
By this provision, the Legislative Department with the concurrence of the Executive, declares in the
most solemn manner that the resolution proposing the amendment was duly carried. Therefore, it
would be pertinent to inquire whether those petitioners who are members of the Congress that
approved Republic Act No. 73 are not precluded from questioning its validity or veracity, unless they
assert and prove that in Congress they opposed its enactment. In default of a contrary showing, it is
not reasonable to suppose that as members of Congress they endorsed-- or at least are bound by —
the declarations of Republic Act No. 73? And if a private party is estopped from challenging the
constitutional efficacy of a law whose enactment he has procured (see 16 C.J.S., 198 and 11 Am.
Jur., 767) should not a member of Congress be estopped from impugning a statute he helped
(presumably) to pass? Parenthetically it should be added that the remaining petitioners, as mere
citizens, would probably have no suable claim. (Cf. 16 C.J.S., 169.)
C. But perhaps these points should be left to future study and decision, because the instant litigation
may be solved by the application of other well-established principles founded mainly on the
traditional respect which one department of the Government entertains for the actions of the others.
On account of the separation of powers, which I firmly believe, I agree to the applicability and
binding effect of section 313 of Act No. 190, as amended by Act No. 2210, which, in my opinion, has
not been abrogated by the Rules of Court. I likewise believe the soundness of the doctrine
expounded by the authoritative Wigmore on a question admittedly within the domain of the law on
evidence: conclusiveness of the enrolled bill of resolution upon the judicial authorities.
D. Withal, should that principle of conclusiveness be denied, the respondents could plausibly fall
back on the time-honored rule that the courts may not go behind the legislative journals to contradict
their veracity. (United States vs.Pons, 34 Phil., 729.)
According to the minutes of the joint session Exhibit 3, in the Senate sixteenth (16) senators
approved the resolution against five (5), with no absences; whereas in the house sixty-eight (68)
congressmen voted "yes", eighteen(18) voted "no", one abstained from voting and one was absent.
Therefore, 16 being three-fourths of the total membership of twenty-one of the Senate (16 plus 5),
and 68 being more than three-fourths of the total membership of eighty-eight (88) of the House of
Representatives (68 plus 18 plus 1 plus 1), it is crystal clear that the measure was upheld by the
number of votes prescribed by the Constitution.
True, there are in the said exhibit statements by two Senators and one congressman to the effect
that the votes did not constitute the majority required by the Constitution. However, in the fact of the
incontestable arithmetical computation above shown, those protests must be attributed to their
erroneous counting of votes; none of them having then asserted that "there were absent Senators or
Congressmen who had not been taken into account. "Ford although we might have judicial notice of
the number of proclaimed members of Congress, still we are no better qualified than the Legislature
to determine the number of its actual membership at any given moment, what with demises or
demissions, remotions or suspensions.
HILADO, J., concurring and dissenting:

I concur in the result of the majority opinion as well as in the grounds supporting the same in so far
as they are not inconsistent with the applicable reasons supporting my concurring opinion in Vera
vs. Avelino (77 Phil., 192). But I dissent from that part of the majority opinion (page 3, ante) wherein
it is stated that if the suspended members of the Senate and House of Representatives had been
counted "the affirmative votes in favor of the proposed amendment would have been short of the
necessary three-fourths of vote in either branch of Congress."
The basic theories underlying my aforesaid concurring opinion in Vera vs. Avelino, supra, are, first,
that the questions therein raised were political in nature within the exclusive province of the
legislature, and, second, that the judiciary does not possess jurisdiction over such questions. It is to
me evidence that the questions involved in the present proceeding are no less political than those
involved in that former Senate case. It is deemed unnecessary to dwell at more length upon the
grounds of my said concurring opinion.
The ground for my dissent from the above-quoted statement of the majority opinion in the instant
proceeding is that the suspension of the said members of the Senate and the House of
Representatives being a political question, the judiciary, being without jurisdiction to interfere with
the determination thereof by the proper political department of the government, has perforce to abide
by said determination if it were to go any further in the consideration of the case. In other words, any
further discussion of the case in this Court will have to start from the premise that said members
have been suspended by the respective Houses of Congress and that we, being powerless to
interfere with the matter of said suspension, must consider ourselves bound by the determination of
said political branches of the government. As said by the Supreme Court of the United States in
Philipps vs. Payne (2 Otto. [U.S.], 130; 23 Law. ed., 649), "in cases involving the action of the
political departments of the government, the judiciary is bound by such action."
(Williams vs. Insurance Co., 13 Pet., 420; Garcia vs. Lee, 12 Pet., 511; Kennel vs. Chambers, 14
How., 38; Foster vs. Neilson, 2 Pet., 209; Nabob of Carnatio vs. East Ind. Co., Ves., Jr., 60;
Lucer vs. Barbon, 7 How., 1; R.I. vs. Mass., 12 Pet., 714.)
If, then, we are to proceed, as I think we should, upon the premise that said members have been
thus suspended, there will be to my mind, absolutely no justification, ground nor reason for counting
them in the determination of whether or not the required three-fourths vote was attained. Their case
was entirely different from that of members who, not having been suspended nor otherwise
disqualified, had the right to vote upon the resolution. In the case of the latter, they had, like all other
members similarly situated, three alternatives, namely, to vote in favor of the resolution, to vote
against it, or to abstain from voting. If they voted in favor, of course, their votes had to be counted
amount those supporting the resolution. If they voted against, of course, their votes had to be
counted with those opposing. And if they abstained from voting, there would be sound justification
for counting them as not in favor of the resolution, because by their very abstention they impliedly
but necessarily would signify that they did not favor the resolution, for it is obvious that if they did,
they would have voted in favor of it. On the other hand, those suspended members who, by reason
of the suspension, whose validity or legality we are devoid of jurisdiction to inquire into, cannot be
similarly treated. In their case there would be no way of determining which way their votes would
have gone or whether or not they would have abstained from voting. In this connection, in
considering the hypothesis of their voting in case they had not been suspended, I must go upon the
assumption that while those suspended members may belong to the political party which, as a party,
was opposed to the resolution, still they would have voted independently and following their
individual convictions. In this connection, it might not be amiss to mention that there were quite a
number of minority members of the legislature who voted for the resolution. Hence, we are not in a
position to say that said suspended members, if they had not been suspended, would have voted
against the resolution, nor in favor of it either, nor that they would have abstained from voting. Why
then should they bed counted with the members who voted against the resolution or those who,
having the right to vote, abstained from doing so? Why should we count them as though
we knew that they would have voted against the resolution, or even that they would have abstained
from voting? Soundly construed, I submit that the Constitution does not, and could not, include
suspended members in the determination of the required three-fourths vote.
I take it, that the drafters in providing in Article XV, section 1, of the Constitution that "The Congress
in joint session assembled, by a vote of three-fourths of all the Members of the Senate and of the
House of Representatives voting (emphasis supplied) separately . . .", advisedly used the vital and
all-important word "voting" therein. I take it, that they meant to refer to the
members voting, undoubtedly expecting that all members not suspended or otherwise disqualified,
would cast their votes one way or the other. But I am here even making a concession in favor of the
opponents when I say that those who, with the right to vote, abstain from voting, may be counted
among those not in favor of the measure. But what I cannot bring myself to conceive is that the
quoted provision should have intended to count suspended or disqualified members as opposed to
the measure, or not being in favor of it, without it being possible to know which way they would have
voted or that they would have abstained from voting — that they would never have voted in favor of
the measure. If I should ask why we should not count such suspended or disqualified members
among those in favor of the measure, I am sure those who opine differently would answer, because
we do not know that they would have voted in favor of it. By the same token, if they should ask me
why we should not count them among those against the measure, I would answer that we do not
know that they would have voted against it or that they would have abstained from voting. All this
inevitably leads to the conclusion — the only one possible — that such suspended or disqualified
members should not and cannot be counted due to that very impossibility of knowing which way they
would have voted or whether they would have abstained from voting. I stand for a sound and rational
construction of the constitutional precept.
PARAS, J.:
I fully concur in the foregoing opinion of Mr. Justice Hilado.
PERFECTO, J., dissenting:
To surrender or not to surrender, that is the question.
The last bastion of democracy is in danger.
Those who are manning it are summoned to give up without the least resistance, and the banner of
the Constitution is silently and meekly hauled down from its pole to be offered as a booty to the
haughty standard bearers of a new brand of Farcism. In t he words of Cicero, "recedere de statu
suae dignitatis."
Cardinal moral bearings have been lost in the psychological chaos suffered by those, throwing
overboard all ideals as burdensome and dangerous ballast, in desperate efforts to attain at all costs
individual survival, even in ignominy, could not stand the impact of initial defeats at the hands of
invading fearsome military hordes.
The present is liable to confusion. Our minds are subjected to determinate and indeterminate
ideological pressures. Very often man walks in the darkness of a blind alley obeying the pullings and
pushings of hidden and unhidden forces, or the arcane predeterminations of the genes of human
chromosomes. A rudderless ship floating in the middle of an ocean without any visible shoreline, is
bound to be wrecked at the advent of the first typhoon. From early youth we begin to hear and learn
about the true ideals. Since then we set them as the guiding stars in our actions and decisions, but
in the long travel of life, many times the clouds dim or completely darken those stars and then we
have only to rely on our faith in their existence and on habit, becoming unerring if long enough
followed, of adjusting our conduct to their guidance in calm and cloudless nights. We are sitting in
judgment to pass upon the conflicts, disputes and disagreements of our fellowmen. Let us not forget
that the day shall come that we will be judged on how are are judging. Posterity shall always have
the final say. When the time solvent has dissolved the human snag, then shall be rendered the final
verdict as to whether we have faced our task fearlessly or whether our hearts have shrunk upon the
magnitude of our duties and have chosen the most comfortable path of retreat. Then it will be
conclusively known whether did keep burning the tripod fire in the temples of old. Some of us will just
return into anonymity, covered by the cold mist of historical oblivion; others will have their names as
by words repeatedly pronounced with popular hate or general contempt; and still others will be
remembered with universal gratefulness, love and veneration, the guard on accorded to all those
who remained faithful to the fundamental tenets of justice. Winnowing time will sift the chaff from the
grain.
This is one of the cases upon which future generations will decide if this tribunal has the sturdy
courage to keep its responsibility in proper high level. It will need the passing of decades and
perhaps centuries before a conclusive verdict is rendered, whether we should merit the scorn of our
fellow citizens and our decision shall be cursed as the Dred Scot decision of Chief Justice Taney,
the one that plunged the United States into civil war, or whether in the heart of each future Filipino
citizen there will be a shrine in which our memory will be remembered with gratefulness, because we
have shown the far-reaching judicial statesmanship of Chief Justice Marshall, the legal genius who
fixed and held the rock bottom foundations which made of the American Constitution the veritable
supreme law of the land and established the role of the tribunals as the ultimate keepers of the
Constitution. But for sure it will be rendered, and it will be impartial and unbiased, exacting and
pitiless, with unappealable finality, and for the one condemned Dante wrote this lapidary line:
"lasciate ogni speranza."
Unless the vision of our mental eyes should be shut up by the opaque cornea of stubborn refusal to
see reality or should be impaired by the polaroid visors of prejudice, there is no question that at the
time when the resolution in question, proposing an amendment to the Constitution, was adopted, the
members of the Senate were 24 and the members of the House of Representatives were 96, and
that the 16 members of the Senate who voted in favor of the resolution, by undisputable
mathematical computation, do not constituted three-fourths of the 24 members thereof, and the 68
members of the House of Representatives who voted for the resolution, by equally simple
arithmetical operation, do not constitute three-fourths of the 96 members of the said chamber. The
official certifications made by the presiding officers of the two houses of Congress to the effect that
three-fourths of all the members of the Senate and three-fourths of all the members of the House of
Representatives voted for the resolution, being untrue, cannot change the facts. Nothing in existence
can. The certification, being a clear falsification of public document punished by article 171 of the
Revised Penal Code with prision mayor and a fine not to exceed P5,000, cannot give reality to a
fiction based in a narration of facts that is in conflict with the absolute metaphysical reality of the
events.
FACTS OF THE CASE

Petitioners are citizens of the Philippines, taxpayers and electors, and besides some of them are
members of the Senate, others are members of the House of Representatives, and still others are
presidents of political parties, duly registered, with considerable following in all parts of the
Philippines.
The first three respondents are chairman and members, respectively, of the Commission on
Elections and the remaining three are respectively the Treasurer of the Philippines, the Auditor
General and the Director of the Bureau of Printing.
Petitioners alleged that the Senate is actually composed of 24 Senators, 8 elected in 1941 and 16 in
April 23, 1946, and that the House of Representatives is composed of 98 members, elected on April
23, 1946, minus 2d who resigned to assume other positions in the Government.
On September 18, 1946, there was presented for adoption by the Congress of the Philippines a
resolution proposing an amendment to the Constitution of the Philippines to be appended as an
ordinance thereto, which reads as follows:
Resolved by the Senate and House of Representatives, of the Philippines in joint session
assembled, by a vote of not less than three-fourths of all the Members of each House voting
separately. To propose, as they do hereby propose, the following amendment to the
Constitution of the Philippines to be appended as an Ordinance thereto:
ORDINANCE APPENDED TO THE CONSTITUTION
"Notwithstanding the provisions of section one, Article Thirteen, and section eight, Article
Fourteen, of the foregoing Constitution, during the effectivity of the Executive Agreement
entered into by the President of the Philippines with the President of the United States on the
fourth of July, nineteen hundred and forty-six, pursuant to the provisions of Commonwealth
Act Numbered seven hundred and thirty-three, but in no case to extend beyond the third of
July, nineteen hundred and seventy-four, the disposition, exploitation, development, and
utilization, of all agricultural, timber, and mineral lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces and sources of potential energy, and other
natural resources of the Philippines, and the operation of public utilities, shall, if open to any
person, be open to citizens of the United States and to all forms of business enterprise
owned or controlled, directly or indirectly, by citizens of the United States in the same
manner as to, and under the same conditions imposed upon, citizens of the Philippines or
corporations or associations owned or controlled by citizens of the Philippines."
This amendment shall be valid as a part of the Constitution when approved by a majority of
the votes cast in an election at which it is submitted to the people for the ratification pursuant
to Article XV of the Constitution.
Sixteen Senators voted in favor of the resolution and 5 against it, and 68 Representatives voted in
favor and 18 against.
Thereafter, Congress passed Republic Act No. 73 calling a plebiscite to be held on March 11, 1947,
for the purpose of submitting to the people the proposed amendment embodied in the resolution,
and appropriating P1,000,000 for said purpose.
Petitioners assail the validity of Republic Act No. 73 as unconstitutional because Congress may not,
by said act, submit to the people for approval or disapproval the proposed amendment to the
Constitution embodied in resolution Exhibit B inasmuch as, to comply with the express provisions of
Article XV of the Constitution, requiring the affirmative votes of three-fourths of all the members of
the Senate and of the House of Representatives voting separately, three-fourths of the 24 members
of the Senate is constituted by at least 18 Senators, 2 more than those who actually voted for the
resolution in question, and three-fourths of the 98 members of the House of Representatives should
at least be 72 Representatives, or 4 more than those who actually voted for the resolution.
Respondents deny that the Senate is composed of 24 Senators, by excluding from them petitioners
Jose O. Vera, Ramon Diokno and Jose E. Romero and allege that the House of Representatives is
not composed of 98 members but of only 90. They admit that at the joint session of Congress to
consider the resolution Exhibit B, in favor of the resolution 16 votes were cast in the Senate and in
the House of Representatives 68 and 5 in the Senate and 18 in the House of Representatives had
voted against. They admit the approval of Republic Act No. 73 and that necessary steps to hold the
plebiscite therein provided are being taken, but deny that said act is unconstitutional, and byway of
defense, allege that the resolution Exhibit B was adopted by three-fourths of all the qualified
members of the Senate and of the House of Representatives voting separately and, consequently,
Republic Act No. 73, ordering its submission to the people for approval or disapproval, fixing a date
for a general election, and appropriating public funds for said purpose, is valid and constitutional.
At the hearing of this case both parties submitted the following stipulation:
The parties through their undersigned counsel hereby stipulate the following facts:
1. That Messrs. Jose O. Vera, Ramon Diokno and Jose E. Romero were, by the majority
vote of the Commission on Elections, proclaimed elected senators in the election of April 23,
1946;
2. That when the Senate convened on May 25, 1946, the said senators-elect took part in the
election of the President of that body; but that before the senators-elect were sworn in by the
President of the Senate, a resolution was presented, and subsequently approved, to defer
the administration of oath and the seating of Messrs. Jose O. Vera, Ramon Diokno, and Jose
E. Romero, pending the hearing and decision of the protest lodged against their election;
3. That on the 25th of May, 1946, the said senators individually took their alleged oath of
office before notaries public, and not on the floor, and filed said oaths with the Secretary of
the Senate during the noon recess of the said date;
4. That Messrs. Vera and Romero filed with the Auditor of the Senate other oaths of office
accomplished by them outside of the floor before a notary public and the Secretary of the
Senate, on September 5 and August 31, 1946, respectively; and that their corresponding
salaries from April 23, 1946, were paid on August 31, 1946;
5. That Mr. Diokno, having left for the United States, his son Jose W. Diokno filed a copy of
Mr. Diokno's alleged oath of office dated May 25, 1946, with the Auditor of the Senate on
October 15,1946, and on said date his salary was paid corresponding to the period from
April 23 to October 15, 1946;
6. That all three have subsequently received their salaries every fifteen days;
7. That since the approval of the resolution deferring their seating and oaths up to the
present time, the said Messrs. Vera, Diokno, and Romero have not been allowed to sit and
take part in the deliberations of the Senate and to vote therein, not do their names appear in
the roll of the Senate;
8. That before May 25, 1946, the corresponding provincial boards of canvassers certified as
having been elected in the election held on April 23, 1946, ninety-eight representatives,
among them Messrs. Alejo Santos and Jesus B. Lava for Bulacan, Jose Cando and
Constancio P. Padilla for Nueva Ecija, Amado M. Yuson and Luis Taruc for Pampanga,
Alejandro Simpauco for Tarlac, and Vicente F. Gustilo for Negros Occidental;
9. That the aforesaid eight members-elect of the House of Representatives took part in the
election of the Speaker of the House of Representatives held on May 25, 1946;
10. That before the members-elect of the House of Representatives were sworn in by the
Speaker, Mr. Topacio Nueno, representative for Manila, submitted a resolution to defer the
taking of oath and seating of Luis Taruc and Amado Yuson for Pampanga, Constancio P.
Padilla and Jose Cando for Nueva Ecija, Alejandro Simpauco for Tarlac, Alejo Santos and
Jesus Lava for Bulacan, and Vicente F. Gustilo for Negros Occidental "pending the hearing
and decision on the protests lodged against their election," copy of the resolution being
attached to and made part of this stipulation as Exhibit 1 thereof;
11. That the resolution Exhibit 1 was, upon motion of Representative Escareal and approved
by the House, referred for study to a committee of seven, which up to the present has not
reported, as shown by the Congressional Record for the House of Representatives;
12. That the eight representatives-elect included in the resolution were not shown in on the
floor and have not been so sworn in or allowed to sit up to the present time, nor have they
participated in any of the proceedings of the House of Representatives except during the
debate of the Escareal motion referred to in paragraph 11 hereof, nor cast any vote therein
since May 25, 1946, and their names do not appear in the roll of the members of the House
except as shown by the Congressional Record of the House of Representatives, nor in the
roll inserted in the official program for the inauguration of the Republic of the Philippines
hereto attached as Exhibit 2 hereof;
13. That the eight representatives-elect above mentioned took their alleged oaths of office on
the date set opposite their names, as follows:
Jose Cando May 25, 1946

Vicente Gustilo May 25, 1946
Constancio Padilla May 22, 1946
Alejo Santos May 23, 1946
Luis M. Taruc May 25, 1946
Amado M. Yuson May 25, 1946
Jesus B. Lava May 25, 1946
Alejandro Simpauco May 25, 1946
all of which oaths were taken before notaries public, with the exception of the first four who
took their oaths before Mr. Narciso Pimentel, Secretary of the House;
14. That said oaths were filed with the Auditor through the office of the Secretary of the
House of Representatives;
15. That the persons mentioned in paragraph 13 were paid salaries for the term beginning
April 23, 1946, up to the present, with the exception of Messrs. Luis Taruc and Jesus Lava,
to whom payment was suspended since August 16;
16. That Messrs. Alejo Santos and Vicente F. Gustilo took their oaths before the Speaker of
the House of Representatives and were allowed to sit on September 30, 1946, the last day
of the Special Sessions;
17. That in addition to the eight persons above mentioned, two members of the House,
Representatives Jose C. Zulueta and Narciso Ramos, had resigned before the resolution
proposing an amendment to the Constitution was discussed and passed on September
18,1946;
18. That the voting on the resolution proposing an amendment to the Constitution was made
by the Secretary calling the roll of each house and the votes cast were as shown in the
attached certificate of the Secretary of the House of Representatives hereto attached,
marked Exhibit 3 and made a part hereof; and
19. That the Congressional Records for the Senate and House of Representatives and the
alleged oaths of office are made a part of this Stipulation by reference thereto, respondents
reserving the right to question their materiality and admissibility.
Manila, Philippines, November 25, 1946.
For the petitioners: For the respondents:
JOSE E. ROMERO ROMAN OZAETA

ANTONIO BARREDO Secretary of Justice
JOSE B.L. REYES

First Asst. Solicitor General
PETITIONER'S PERSONALITY
Whether petitioners have or have not the personality to file the petition in this case is the first
question we have to consider.
No party raised the question, but it having arisen in the course of the Court's deliberation, we should
not evade deciding it and giving what in law and justice should be the answer.
To our mind there is no doubt that petitioners have the personality to institute the present recourse of
prohibition. If petitioners should lack that personality, such legal defect would not certainly have
failed to be noticed by respondents themselves.
Respondents' failure to raise the question indicates their conviction that petitioners have the
necessary legal personality to file the petition, and we do not see any reason why such personality
should be put in doubt.
Petitioners are divided into three groups: the first is composed of senators; the second, of
representatives; and the third, of presidents of four political parties.
All of the individuals composing the first two groups, with the exception of Senators Jose O. Vera,
Ramon Diokno, and Jose E. Romero, are members of either of the two houses of Congress and took
part in the consideration of Resolution Exhibit B and of Republic Act No. 73, while the above three
excepted senators were the ones who were excluded in the consideration of said resolution and act
and were not counted for purposes of determining the three-fourths constitutional rule in the
adoption of the resolution.
In paragraph eight of the petition it is alleged that respondents have taken all the necessary steps for
the holding of the general election on March 11, 1947, and that the carrying out of said acts
"constitute an attempt to enforce the resolution and act aforementioned in open violation of the
Constitution," is without or in excess of respondents' jurisdiction and powers, "violative of the rights
of the petitioners who are members of the Congress, and will cause the illegal expenditure and
disbursement of public funds and end in an irreparable injury to the taxpayers and the citizens of the
Philippines, among whom are the petitioners and those represented by them in their capacities
mentioned above."
There should not be any question that the petitioners who are either senators or members of the
House of Representatives have direct interest in the legal issues involved in this case as members
of the Congress which adopted the resolution, in open violation of the Constitution, and passed the
act intended to make effective such unconstitutional resolution. Being members of Congress, they
are even duty bound to see that the latter act within the bounds of the Constitution which, as
representatives of the people, they should uphold, unless they are to commit a flagrant betrayal of
public trust. They are representatives of the sovereign people and it is their sacred duty to see to it
that the fundamental law embodying the will of the sovereign people is not trampled upon.
The four political parties represented by the third group of petitioners, represent large groups of our
population, perhaps nearly one-half of the latter, and the numerous persons they represent are
directly interested and will personally be affected by the question whether the Constitution should be
lightly taken and can easily be violated without any relief and whether it can be amended by a
process openly repugnant to the letter of the Constitution itself.
As a matter of fact, the vital questions raised in this case affect directly each and every one of the
citizens and inhabitants of this country. Whether our Constitution is, as it is supposed to be, a
paramount law or just a mere scrap of paper, only good to be thrown into a waste basket, is a matter
of far-reaching importance to the security, property, personal freedom, life, honor, and interests of
the citizens. That vital question will necessarily affect the way of life of the whole people and of its
most unimportant unit. Each and every one of the individuals inhabiting this land of ours shall have
to make plans for the future depending on how the question is finally decided. No one can remain
indifferent; otherwise, it will at his peril.
Our conclusion is that petitioners have full legal personality to institute the present action; and much
more, those who are members of Congress have the legal duty to institute it, lest they should betray
the trust reposed in them by the electorate.
24 SENATORS
The first question raised by respondents' answer refers to the actual number of the members of the
Senate. According to petitioners there are 24 of them while according to respondents there are only
21, excluding Senators Jose O. Vera, Ramon Diokno, and Jose E. Romero, because, according to
them, "they are not duly qualified and sworn in members of the Senate."
This allegation appears to be belied by the first seven paragraphs of the stipulation of facts
submitted by both parties.
No amount of sophism, of mental gymnastics or logo-daedaly may change the meanings and effects
of the words placed by respondents themselves in said seven paragraphs. No amount of argument
may delude anyone into believing that Senators Vera, Diokno, and Romero are not senators
notwithstanding their having been proclaimed as elected senators, their having taken part in the
election of the President of the Senate, their having taken their oaths of office, and their receiving
salaries as senators.
Such a paradoxical proposition could have been driven into acceptance in the undeveloped brains of
the pithecanthropus or gigantopithecus of five hundred millennia ago, but it would be unpardonably
insulting o the human mind of the twentieth century.
Our conclusion is that Senators Vera, Diokno, and Romero should be counted as members of the
Senate, without taking into consideration whatever legal effects the Pendatun resolution may have
produced, a question upon which we have already elaborated in our opinion in Vera vs. Avelino (77
Phil., 192). Suspended or not suspended, they are senators anyway, and there is no way of ignoring
a fact so clear and simple as the presence of the sun at day time. Therefore, counting said three
Senators, there are 24 Senators in all in the present Senate.
96 REPRESENTATIVES
The next question raised by respondents is their denial of petitioners' allegations to the effect that
the present House of Representatives is composed of 98 members and their own allegation to the
effect that at present "only 90 members have qualified, have been fully sworn in, and have taken
their seats as such."
Again respondents' allegations are belied by paragraphs eight to seventeen of the stipulation of
facts.
The disagreement between the parties is as to whether or not Representatives Cando, Gustilo,
Padilla, Santos, Taruc, Yuson, Lava and Simpauco, mentioned in paragraph 13 of the stipulation of
facts, are members of the House of Representatives.
The facts stipulated by the parties proved conclusively that said eight persons are actual members of
the House of Representatives. We may even add that the conclusiveness about said eight
representatives is even greater than in the case of Senators Vera, Diokno, and Romero, because no
resolution of suspension has ever been adopted by the House of Representatives against said eight
members, who are being deprived of the exercise of some of their official functions and privileges by
the unipersonal, groundless, dictatorial act of the Speaker.
That illegal deprivation, whose counterpart can only be found in countries where the insolence of
totalitarian rulers have replaced all constitutional guarantees and all concepts of decent government,
raises again a constitutional question: whether it is permissible for the Speaker of the House of
Representatives to exercise the arbitrary power of depriving representatives duly elected by the
people of their constitutional functions, privileges, and prerogatives. To allow the existence of such
an arbitrary power and to permit its exercise unchecked is to make of democracy a mockery.
The exercise of such an arbitrary power constitutes a want on onslaught against the sovereignty
itself of the people, an onslaught which may cause the people sooner or later to take justice in their
own hands. No system of representative government may subsist if those elected by the people may
so easily be silenced or obliterated from the exercise of their constitutional functions.
From the stipulation of facts, there should not be any question that at the last national election, 98
representatives were elected and at the time the resolution Exhibit B was adopted on September 18,
1946, 96 of them were actual members of the House, as two (Representatives Zulueta and Ramos)
has resigned.
Applying the three-fourth rule, if there were 24 senators at the time the resolution was adopted;
three-fourths of them should at least be 18 and not the 16 who only voted in favor of the resolution,
and if there were 96 representatives, three-fourths of them should certainly be more than the 68 who
voted for the resolution. The necessary consequence is that, since not three-fourths of the senators
and representatives voting separately have voted in favor of the resolution as required by Article XV
of the Constitution, there can be no question that the resolution has not been validly adopted.
We cannot but regret that our brethren, those who have signed or are in agreement with the majority
opinion, have skipped the questions as to the actual membership of the Senate and House of
Representatives, notwithstanding the fact that they are among the first important ones squarely
raised by the pleadings of both parties. If they had taken them into consideration, it would seem
clear that their sense of fairness will bring them to the same conclusion we now arrived at, at least,
with respect to the actual membership of the House of Representatives.
Upon our conclusions as to the membership of the Senate and House of Representatives, it appears
evident that the remedy sought for in the petition should be granted.
JURISDICTION OF THE SUPREME COURT
Without judging respondents' own estimate as to the strength of their own position concerning the
questions of the actual membership of the Senate and House of Representatives, it seems that
during the oral and in the written arguments they have retreated to the theory of conclusiveness of
the certification of authenticity made by the presiding officers and secretaries of both House of
Congress as their last redoubt.
The resolution in question begins as follows: "Resolved by the Senate and House of
Representatives of the Philippines in joint session assembled, by a vote of not less than three-
fourths of all the members of each House voting separately, . . .."
Just because the adoption of the resolution, with the above statement, appears to be certified over
the signatures of the President of the Senate and the House of Representatives and the Secretaries
of both Houses, respondents want us to accept blindly as a fact what is not. They want us to accept
unconditionally as a dogma, as absolute as a creed of faith, what, as we have shown, appears to be
a brazen official falsehood.
Our reason revolts against such an unethical proposition.
An intimation or suggestion that we, in the sacred temple of justice, throwing overboard all scruples,
in the administration of justice, could accept as true what we know is not and then perform our
official functions upon that voluntary self-delusion, is too shocking and absurb to be entertained even
for a moment. Anyone who keeps the minimum sense of justice will not fail to feel aghast at the
perversion or miscarriage of justice which necessarily will result from the suggestion.
But the theory is advanced as a basis to attack the jurisdiction of this Court to inquire behind the
false certification made by the presiding officers and the secretaries of the two Houses of Congress.
Respondents rely on the theory of, in the words of the majority opinion, "the conclusiveness on the
courts of an enrolled bill or resolution."
To avoid repeating the arguments advanced by the parties, we have made part of this opinion, as
Appendices A, B, and C,1 the memoranda presented by both petitioners and respondents, where
their attorneys appear to have amply and ably discussed the question. The perusal of the
memoranda will show petitioners' contentions to be standing on stronger ground and, therefore, we
generally agree with their arguments.
In what follows we will try to analyze the positions taken in the majority opinion.
POLITICAL QUESTIONS
The majority enunciates the proposition that "political questions are not within the province of the
judiciary," except "by express constitutional or statutory provision" to the contrary. Then argues that
"a duly certified law or resolution also binds the judges under the 'enrolled bill rule' out of respect to
the political departments."
The doctrine is predicated "on the principle of the separation of powers."
This question of separation of powers is the subject of discussion in the case of Vera vs.
Avelino, supra. We deem unnecessary to repeat what we have already said in our opinion in said
case, where we have elaborated on the question.
Although the majority maintains that what they call the doctrine that political questions are not within
the province of the judiciary is "too well-established to need citation of authorities," they recognize
the difficulty "in determining what matters fall under the meaning of political questions."
This alleged doctrine should not be accepted at its face value. We do not accept it even as a good
doctrine. It is a general proposition made without a full comprehension of its scope and
consequences. No judicial discernment lies behind it.
The confession that the "difficulty lies in determining what matters fall within the meaning of political
question" shows conclusively that the so-called doctrine has recklessly been advanced.
This allegedly "well-established" doctrine is no doctrine at all in view of the confessed difficulty in
determining what matters fall within the designation of political question. The majority itself admits
that the term "is not susceptible of exact definition, and precedents and authorities are not always in
full harmony as to the scope of the restrictions, on this ground, on the courts to meddle with the acts
of the political department of the government."
Doctrine is that "what is taught; what is held; put forth as true, and supported by a teacher, a school,
or a sect; a principle or position, or the body of principles, in any branch of knowledge; tenet; dogma;
principle of faith. "It is a synonym of principle, position, opinion, article, maxim, rule, and axiom. in its
general sense, doctrine applies to any speculative truth or working principle, especially as taught to
others or recommended to their acceptance. Therefore, to be true, it should be expressed on simple
and self-evident terms. A doctrine in which one of the elemental or nuclear terms is the subject of an
endless debate is a misnomer and paradox.
A doctrine is advanced and accepted as an established truth, as a starting point for developing new
propositions, as a guiding principle in the solution of many problems. It is a groundwork for the
building of an intellectual system. It is the basis of a more or less complex legal structure. If not the
cornerstone, it should at least be one of the main columns of an architectonic construction. If that
groundwork, cornerstone or column is supported by a thing whose existence still remains in dispute,
it is liable to fall.
We irrevocably refuse to accept and sanction such a pseudo-doctrine which is based on the
unsettled meaning of political question. The general proposition that "political questions are not
within the province of the judiciary" is just one of the many numerous general pronouncements made
as an excuse for apathetic, indifferent, lazy or uncourageous tribunals to refuse to decide hard or
ticklish legal issues submitted to them.
It belongs to the category of that much-vaunted principle of separation of powers, the handful of
sand with which judicial ostriches blind themselves, as if self-inflicted blindness may solve a problem
or may act as a conjuration to drive away a danger or an evil.
We agree with the majority that the proposal to amend the Constitution and the process to make it
effective, as provided in Article XV of the Constitution, are matters of political nature, but we cannot
agree with their conclusion that a litigation as to whether said article has been complied with a
violated is beyond the jurisdiction of the tribunals, because to arrive at this conclusion we must
accept as a major premise the pseudo-doctrine which we have precisely exposed as erroneous and
false.
Is there anything more political in nature than the Constitution? Shall all questions relating to it,
therefore, betaken away from the courts? Then, what about the constitutional provision conferring
the Supreme Court with the power to decide "all cases involving the constitutionality of a treaty or a
law?"
COLEMAN versus MILLER
The decision of the United States Supreme Court in Coleman vs. Miller (122 A. L. R., 625) is invoked
as the mainstay of the majority position.
No less than eight pages of the majority opinion are occupied by the exposition and analysis of the
decision of the Supreme Court.
The case is invoked as authority for the conclusion that "the efficacy of ratification by the State
legislature of a proposed amendment to the federal Constitution" and that "the decision by
Congress, in its control of the Secretary of State of the questions of whether an amendment has
been adopted within a reasonable time from the date of submission to the State legislature," are
political questions and not justiciable.
At the outset it must be noted that the two above mentioned questions have no similarity or analogy
with the constitutional questions herein discussed. The questions as to the efficacy of the ratification
by the Senate of Kansas of the Child Labor amendment proposed by the United States Congress in
June, 1924, and upon the decision of said Congress, "in its control of the Secretary of State,"
whether the amendment has been adopted "within a reasonable time from the date of submission to
the State legislature," either one of them does not raise a controversy of violation of specific
provisions of the Constitution as the ones raised in the present case.
No specific constitutional provision has been mentioned to have been violated because in January,
1925, the Legislature of Kansas rejected the amendment, a copy of the rejection having been sent to
the Secretary of State of the United States, and in January, 1927, a new resolution ratifying the
amendment was adopted by the Senate of Kansas on a 21-20 division, the Lieutenant Governor
casting the deciding vote. Neither was there such mention of constitutional violation as to the effect
of the previous rejection and of the lapse of time after submission of the amendment to the State
legislature.
No constitutional provision has been pointed out to have been violated because the Lieutenant
Governor had cast his vote or because by the lapse of time from June, 1924 to March, 1927, the
proposed amendment had allegedly lost its vitality.
It is only natural that, in the absence of a constitutional provision upon the efficacy of ratification by a
State legislature of a proposed amendment, it was within the ultimate power of the United States
Congress to decide the question, in its decision rendered in the exercise of its constitutional power,
to control the action of the Secretary of State, and the promulgation of the adoption of amendment
could not be controlled by the courts.
Evidently, the invoked authority has no bearing at all with the matters in controversy in the present
case.
We note, as observed in the majority opinion, that the four opinions in Coleman vs. Miller, according
to the American Law Reports, show "interestingly divergent but confusing positions of the justices,"
and are the subject of an amusing article in 48 Yale Law Journal, 1455, entitled "Sawing a Justice in
Half," asking how it happened that the nine-member United States Supreme Court could not reach a
decision on the question of the right of the Lieutenant Governor of Kansas to cast his vote, because
the odd number of justices was "equally divided."
How such a "confusing" and "amusing" four-opinion decision in Coleman vs. Miller could be an

authority is beyond our comprehension.
GREEN versus WELLER
One of the authorities upon which the majority relies is the decision of the Mississippi Supreme
Court in Green vs.Miller (32 Miss., 650), quoting one paragraph thereof.
Here again we have a case of inapplicable authority, unless taken in its reversed effect.
The Mississippi Supreme Court maintains that there is nothing in the nature of the submission to the
people of a proposal to amend the Constitution which should cause the free exercise of it to be
obstructed or that could render it dangerous to the stability of the government, but in making this
pronouncement, it assumes that the submission is made "in a established form," adding that the
means provided for the exercise by the people of their sovereign right of changing the fundamental
law should receive such a construction as not to trample upon the exercise of their right, and that the
best security against tumult and revolution is the free and unobstructed privilege to the people of the
state to change their Constitution "in the mode prescribed by the instrument."
So the authority, if clearly interpreted, will lead us to the conclusion that the majority position is
wrong because the Mississippi Supreme Court, in making the pronouncement, upon the assumption
that the submission to the people is made "in a established form" and "in the mode prescribed" by
the Constitution, namely, in accordance with the provisions of the instrument, the pronouncements
would be the opposite if, as in the present case, the submission of the proposal of amendment to the
people is made through a process flagrantly violative of the Constitution, aggravated by wanton
falsification of public records and tyrannical trampling of the constitutional prerogatives of duly
elected representatives of the people.
MR. JUSTICE BLACK
The concurring opinion of Mr. Justice Black, joined in by Mr. Justice Roberts, Mr. Justice Frankfurter
and Mr. Justice Douglas, in the "confusing" and "amusing" decision in Coleman vs. Miller, is also
invoked by the majority, but this other authority seems equally reluctant to offer its helping hand to a
helpless, desperate position.
The major premise of the concurring opinion is as follows: "The Constitution granted Congress
exclusive power to control submission of constitutional amendments."
Everybody ought to know that no such an unlimited, unchecked, omnipotent power is granted by our
fundamental law to the Congress of the Philippines. Our Congress may propose amendments or call
a convention to make the proposal, but that is all. Nowhere in the Constitution can be found any
word, any grammatical sign, not even the faintest hint that in submitting the proposed amendments
to the people, Congress shall have "exclusive power to control the submission." That submission
must be provided by law, and no law may be enacted and come into effect by the exclusive power of
Congress. It needs the concurring action of the President of the Philippines. And if the law happens
to violate the fundamental law, courts of justice may step in to nullify its effectiveness. After the law
is enacted, its execution devolves upon the Executive Department. As a matter of fact, it is the
Executive Department which actually submits to the people the proposed amendment. Congress
fixes the date of submission, but the President of the Philippines may refuse to submit it in the day
fixed by law if war, rebellion, or insurrection prevents a plebiscite from proceeding.
After showing that Mr. Justice Black started his argument from a major premise not obtainable in the
Philippines, his conclusions cannot help the majority in anyway.
MR. JUSTICE FRANKFURTER
The concurring opinion of Mr. Justice Frankfurter in the "confusing" and "amusing" case of
Coleman vs. Miller is the next authority invoked by the majority, but the opinion does not offered
much help. The justice maintains that the proceedings for voting in legislative assemblies "are
matters that concern not merely political actions but are also of the very essence of political action,"
and then advances the following argument: "To open the law-courts to such controversies is to have
courts sit in judgment on the manifold disputes engendered by procedures for voting in legislative
assemblies."
The argument has no weight at all. The argument merely displays an attitude, one of simple distaste
for the idea, but fails to give any sensible reason for the attitude. Ina totalitarian regime, where
decisions are rendered not in answer to the promptings of a sense of justice, but as expressions of
moods, caprices and whims of arbitrary rulers, Mr. Justice Frankfurter's attitude could be taken as
the law, but then it would be necessary to elevate him first to the category of a fuehrer.
In our jurisdiction personal attitudes are not the law. Here, justice must be founded on reason, but
never on passing unreasoned moods, judicial or otherwise.
We regret that we cannot agree with the majority's sharing Mr. Justice Frankfurter's views, which in
their judgment are in accord "with sound principles of political jurisprudence and represent liberal
and advanced thought on the workings of constitutional and popular government. "Our regret is not
for ourselves alone but for those who happen to accept as authority the unreasoned and
unexplained mental attitude of a judicial officer of a foreign country, praising it even with the much-
abused label as "liberal," notwithstanding the fact that it represents the whimsical rule of personal
attitudes and not the rule of well-matured reason.
THE ENROLLED BILL THEORY
This theory is amply discussed in the memoranda of the parties attached hereto as Appendices A, B,
and C. Although we consider it unnecessary to enlarge the discussion, we deem it convenient to
make a little analysis of what is stated in the majority opinion. Respondents contend, with the full
approval of the majority, that a duly authenticated bill or resolution imports absolute verity and is
binding on the courts.
The present case is a conclusive evidence of the absurdity of the theory. How can we accept the
absolute verity of the presiding officers' certification that the resolution in question has been adopted
by three-fourths of all the members of the Senate and of the House of Representatives, when as a
matter of undisputable fact the certification is false? How can we accept a theory which elevates a
false-hood to the category of truth?
The majority alleges that the rule is the one prevailing in England. Because the English have
committed the nonsense of accepting the theory, is that reason for Filipinos to follow suit? Why, in
the administration of justice, should our tribunals not think independently? Our temple of justice is
not presided by simians trained in the art of imitation but by human beings, and human beings must
act according to reason, never just to imitate what is wrong, although such mistakes may happen to
be consecrated as a judicial precedent. It would be inconceivable for our courts to commit such a
blunder.
Repeating what Wigmore has said (4 Wigmore on Evidence, 685, footnote), the majority states that
in the United States the jurisdictions are divided almost equally pro and con on the theory, although
in petitioners' memorandum Appendix A there appears more up-to-date evidence to the effect that
there is a great majority for the rejection. But to our mind, mere numbers as to pro and con seem to
us immaterial in the decision as to whether the theory is or is not correct. Numbers do not make
reason nor justice.
The majority contends that the theory conforms to the express policy of our law-making body,
invoking to said effect the now obsolete section 313 of the old Code of Civil Procedure, as amended
by Act No. 2210.
Even if we should follow the anachronistic practice of deciding issues upon the authority of laws
which have been repealed or abolished, still the evidence pointed out by the majority does not
support their contention. Section 313 alluded to enumerates the evidence that may prove the
procedures of the defunct Philippine Commission or of any legislative body that may be provided for
in the Philippines, with the proviso that the existence of a copy of acts of said commission or the
Philippine Legislature, signed by the presiding officers and secretaries of said bodies, is a conclusive
proof "of the provisions of such acts and of the due enactment thereof."
This proviso has been repealed by its non-inclusion in the Rules of Court. Sections 5 and 41 of Rule
123 show conclusively that this Supreme Court, in making the rules effective since July 1, 1940,
rejected the proviso as unreasonable and unjust. Section 5 provides that we may take judicial notice
of the official acts of Congress and section 41 provides what evidence can be used to prove said
official acts, but nowhere in the rules can a provision be found that would make conclusive a
certification by the presiding officers and secretaries of both House of Congress even if we know by
conclusive evidence that the certification is false.
The allegation that the theory in question conforms to the express policy of our lawmaking body,
upon the very evidence used in support thereof, after a little analysis, has to banish as a mid-
summer night's dream.
50 AMERICAN JURISDICTION, SECTION 150
In support of the theory of conclusiveness of the enrollment, the authority of 50 American

Jurisprudence, 150 is invoked as reasons for the theory.
We will analyze the reasons adduced:
1. Respect due to a coequal and independent department of the government. This must be the
strongest one, when it is first mentioned. It is so flimsy to require much discussion. Shall we sacrifice
truth and justice for the sake of a social courtesy, the mutual respect that must be shown between
different departments of the government? Has our sense of evaluation of spiritual values become so
perverted that we can make such a blunder in our choice? Since when have the social or official
amenities become of paramount value to the extent of overshadowing the principles of truth and
justice?
2. Because without the theory, courts would have to make "a n inquisition into the conduct of the
members of the legislature, a very delicate power." This second reason is premised not on a
democratic attitude, but rather on a Fascistic one. It is premised on the false belief that the members
of the majority are a king of emperos of Japan, to be worshipped but never to be discussed. The
ideology depicted by the second reason should be relegated to where it belongs: the archeological
museum.
3. "The rule is also one of convenience." This reason again shows a perverted evaluation of human
values. Is justice to be sacrificed for the sake of convenience?
4. "Otherwise after relying on the prima facie evidence of the enrolled bills authenticated as

executed by the Constitution, for years, it might be ascertained from the journals that an act
heretofore enforced had never become a law." This last reason personifies unreasonableness to the
nth degree. So we leave it as it is, as a perpetual evidence of the extent to which legal stupidity may
reach.
WIGMORE ON EVIDENCE
Now let us examine the arguments of the next authority invoked by the majority, Wigmore on
Evidence. We will also analyzed the arguments relied upon.
1. That to go beyond the enrolled bill "would unsettle the entire statute law of the State." This
argument, as it appears quoted in the majority decision, is premised on the unreliability of legislative
journals, and it seems to depict a mind poisoned by prejudice, as shown by the following: "We are to
remember the danger, under the prevalence of such a doctrine, to be apprehended from the
intentional corruption of evidences of this character. It is scarcely too much to say that the legal
existence of almost every legislative action would be at the mercy of all persons having access to
these journals. . . ."
The argument should be taken into consideration in connection with American experience, which
seems not to be too flattering to our former metropolis.
Our own personal experience of more than a decade in legislative processes convinces us that
Wigmore's assumption does not obtain in the Philippines. It is true that in the pre-constitution
legislative enactments we have seen few instances in which there had been disagreement between
what has actually been passed, as shown by the journal, and the authenticated enrolled bill. But the
instances were so few to justify entertaining here the same fears entertained by Wigmore in
America. Although those instances were few, we fought to correct the evil in the Constitutional
Convention, where we were able to introduce the following revolutionary provision in the
Constitution: "No bill shall be passed by either House unless it shall be printed and copies thereof in
their final from furnished each member at least three calendar days prior to its passage, except
when the President shall have certified to the necessity of its immediate enactment. Upon the last
reading of a bill no amendment thereof shall be allowed, and the question upon its passage shall be
taken immediately thereafter, and the yeas and nays entered in the journal." (Section 21 [2], Article
VI of the Constitution.)
This provision is an effective guarantee against the situation depicted by Wigmore's fears.
2. To the argument that if the authenticated roll is conclusive upon the courts, then less than a
quorum of each House may by the aid of presiding officers impose laws upon the State in defiance
of the inhibition of the Constitution, Wigmore answers: "This perhaps cannot be avoided absolutely.
But it applies also to all human agencies. It is not fit that the judiciary should claim for itself a purity
beyond all others; nor has it been able at all times with truth to say that its high places have not been
disgraced."
The answer is unconvincing. Because there can be and there have been blundering, disgraceful, or
corrupt judicial officers is no reason why arbitrary presiding officers and members of the legislature
should be allowed to have their way unchecked. Precisely the system of checks and balances
established by the Constitution presupposes the possibility of error and corruption in any department
of government and the system is established to put a check on them.
When the question of an unconstitutional, arbitrary or corrupt action by the legislature is placed at
the bar of justice, the judiciary must not shrink from its duty. If there is corruption in the judiciary, our
laws provide the proper remedy. Even we, the members of the highest tribunal, cannot with impunity
commit "culpable violation of the Constitution, treason, bribery, or other high crimes" without being
liable to be removed from office on impeachment, and we hope, if there is such a case, that the
House of Representatives and the Senate will do their duty in accordance with Article IX of the
Constitution, and not follow the uncourageous example which is given under the intellectual tutelage
of Wigmore.
THE CONSTITUTIONAL NUMERICAL RULES
The three-fourth rule has been provided in Article XV of the Constitution as a guarantee against the
adoption of amendments to the fundamental law by mere majorities.
The Constitution must be accorded more stability than ordinary laws and if any change is to be
introduced in it, it must be in answer to a pressing public need so powerful as to sway the will of
three-fourths of all the members of the Senate and of the House of Representatives. Said three-
fourth rule has been adopted by the Constitutional Convention, as all the other numerical rules, with
the purpose of avoiding any doubt that it must be complied with mathematical precision, with the
same certainty of all numbers and fractions expressed or expressible in arithmetical figures.
Where the Constitution says three-fourths of all the members of the Senate and of the House of
Representatives voting separately, it means an exact number, not susceptible of any more or less.
All the members means that no single member should be excluded in the counting. It means not
excluding three Senators and eight Representatives as respondents want us to do in order not to
cause any inconvenience to the presiding officers and secretaries of both Houses of Congress who
had the boldness of certifying that the three-fourth rule had been complied within the adoption of the
resolution in question, when such a certification is as false as any falsehood can be.
The three-fourth rule must not be left to the caprice of arbitrary majorities, otherwise it would be the
death knell of constitutionalism in our country. If a constitutional provision can be so trifled with, as
has happened in the adoption of the resolution in question, it would mean breaking faith with the
vitality of a government of laws, to enthrone in its stead a whimsical government of men.
The Constitution contains several numerical provisions. It requires that the Senate shall be
composed of 24 Senators (section 2, Article VI); that Congress shall by law make an apportionment
within three years after the return of every enumeration, and not otherwise (section 5, Article VI); that
each House may expel a member with the concurrence of two-third of all the members (section 10
[3], Article VI); that electoral tribunals shall each be composed of nine members, three Justices of
the Supreme Court and six legislature members (section 11, Article VI); that to overrun the veto of
the President, the concurrence of two-thirds of all the members of each House is necessary (section
20 [1], Article VI), and in certain cases the concurrence of three-fourths of all the members of each
House is necessary (section 20 [2], Article VI); that Congress shall, with the concurrence of two-
thirds of all the members of each House, have the sole power to declare war (section 25, Article VI);
that no treaty or law may be declared unconstitutional without the concurrence of two-thirds of all the
members of the Supreme Court (section 10, Article VIII); that the House of Representatives shall
have the sole power of impeachment by a vote of two-thirds of all its members (section 2, Article IX);
and that the Senate shall have the sole power to try all impeachments, but no person shall be
convicted without the concurrence of three-fourths of all the members of the Senate (section 3,
Article IX).
So it can be seen that the numerical rules inserted in the Constitution affect matters not of
momentary but of momentous importance. Each and every one of them should be given effect with
religious scruple, not only because our loyalty to the sovereign people so requires, but also because
by inserting them the Constitutional Convention had abided by the wise teachings of experience.
By denying the petition and allowing those responsible for the unconstitutional adoption of the
resolution in question to have their way is to set up a precedent that eventually may lead to the
supremacy of an empire of lawlessness. It will be tantamount to opening Pandora's box of evils and
disasters.
The power to declare was can only be exercised by Congress with the concurrence of two-thirds of
all the members of each House. From now on, by the simple expediency of certification by the
presiding officers and secretaries of both Houses that two-thirds had voted where a bare majority
had voted in fact, said majority may plunge our people into a maelstrome of war.
The Constitution provides that the power of impeachment needs the vote of two-thirds of all the
members of the House of Representatives. From now on, a mere plurality of one will be enough to
put impeachable high officials, including the President, on the carpet.
To convict an impeached officer the fundamental law requires the concurrence of three-fourths of all
the members of the Senate. From now on, that three-fourth rule may be dispensed with or
circumvented by not counting three actual Senators, as has been done in the resolution in question,
and thereby oust the President of the Philippines if he happens not to be in the good graces of a
senatorial majority.
Without entering into the merits of the proposed constitutional amendment, to submit which to the
people high-handed means have been resorted to, there can be no question that it is of vital
importance to the people and it will affect future generations to unimaginable extent. The
Constitutional Convention had thought it wise that before such a momentous proposal could be
submitted to the people the three-fourth rule should be adhered to by Congress.
QUOTATION FROM THE JALANDONI CASE
Months ago we stated: "It is high time to sound the clarion call that will summon all the forces of
liberalism to wage a crusade for human freedom. They should put on the armor of righteousness
and rally behind the banner for the vindication of the principles and guarantees embodied in the
Constitution and the high purposes of the Chapter of the United Nations." This, we said in our
dissenting opinion in People vs. Jalandoni, L-777. Concerning the judgment that the future may pass
upon the actuations of the Supreme Court, in that same opinion we ventured that the historian army,
under the heading of "Epoch of Great Reaction," write as follows:
At no epoch of its history has the Supreme Court shown to be most reactionary and
retrogressive. When the victims of a constitutional violation, perpetrated by a group of the
highest officials of the government, came to if for redress, it adopted a hands-off policy,
showing lack of the necessary vitality to grapple with the situation and finding refuge in a
comfortable retreat, completely disappointing those who have pinned their faith and hope in
it as the first pillar of the Constitution and the inexpugnable bulwark of human fundamental
rights. The issue of human freedom was disposed of by them most discouragingly by
nullifying the right of an accused to be free on bail on appeal, in flagrant violation of a
constitutional guarantee and of one of the fundamental purposes and principles of the
Charter of the United Nations.
Upon touching the decision of this Court in the instant case, the same historian may record that the
highest tribunal of the new Republic of the Philippines has struck the hardest blow to the Philippine
constitutional system, by refusing to do its duty in giving redress in a clear case of violation of the
fundamental law, to the great disappointment, despair and apallment of millions of souls all over the
world who are pinning their hopes on constitutionalism for the survival of humanity.
The ideal of one world oftenly enunciated by progressive leaders in the deliberations of the several
organs of the United Nations is predicated in the adoption of a single standard of laws, compulsory
within all jurisdictions of our planet. The ethology of all mankind must be shaped under the pattern of
that single legal standard. But the whole system is liable to crash if it is not founded on the rock bed
of the elemental principle that the majesty of the law must always be held supreme.
To keep inviolate this primary principle it is necessary that some of the existing social organs, moral
attitudes and habits of thinking should undergo reforms and overhauling, and many fixed traditional
ideas should be discarded to be replaced with more progressive ones and inconsonance with truth
and reason. Among these ideas are the wrong ones which are used as premises for the majority
opinion in this case.
The role of innovators and reformers is hard and often thankless, but innovation and reform should
continuously be undertaken if death by stagnation is to be avoided. New truths must be discovered
and new ideas created. New formulas must be devised and invented, and those outworn discarded.
Good and useful traditions must be preserved, but those hampering the progressive evolution of
cultured should be stored in the museum of memory. The past and the present are just stepping
stones for the fulfilment of the promises of the future.
Since the last decade of the nineteenth century, physical science had progressed by leaps and
bounds. Polonium and radium were discovered by Madam Curie, Rontgen discovered the X-ray, and
Rutherford the alpha, beta and gamma particles. Atom ceased to be the smallest unit of matter to
become an under-microscopic planetarian system of neutrons, protons, and electrons.
Ion exchangers are utilized to make of electrons veritable lamps of Aladdin. Plants are grown in plain
water, without any soil, but only with anions and cations. Sawdust has ceased to be a waste matter,
and from it is produced wood sugar, weighing one-half of the sawdust processed. Inter-stellar space
vacuum, almost absolute, is being achieved to serve ends that contribute to human welfare. Bacteria
and other microbes are harnessed to serve useful human purposes. The aspergillus niger is made
to manufacture the acetic to produce vinegar for the asking. The penicillum notatum and the bacillus
brevis are made to produce penicillin and tyrothricin, two wonder drugs that are saving many lives
from formerly lethal infections. DDT decimates harmful insects, thus checking effectively malaria, an
illness that used to claim more than one million victims a year in the world. The creation of synthetics
had enriched the material treasures offered to man by nature. Means of transportation are
developed to achieve supersonic speeds. Many scientific dreams are fast becoming marvelous
realities. Thus, science marches on. There is no reason why the administration of justice should not
progress onward, synchronized with the rhythm of general human advancement towards a better
future.
The fact that the majorities of the two chambers of Congress have without any qualm violated Article
XV of the Constitution and the majority of this Court, instead of granting the proper relief provided by
law, preferred to adopt the comfortable attitude of indifferent by-standers, creates a situation that
seems to be ogling for more violations of the fundamental law. The final results no one is in a
position to foresee.
Our vote is for the granting of the petition.
G.R. No. 113375 May 5, 1994
KILOSBAYAN, INCORPORATED, JOVITO R. SALONGA, CIRILO A. RIGOS, ERME CAMBA,

EMILIO C. CAPULONG, JR., JOSE T. APOLO, EPHRAIM TENDERO, FERNANDO SANTIAGO,
JOSE ABCEDE, CHRISTINE TAN, FELIPE L. GOZON, RAFAEL G. FERNANDO, RAOUL V.
VICTORINO, JOSE CUNANAN, QUINTIN S. DOROMAL, SEN. FREDDIE WEBB, SEN.
WIGBERTO TAÑADA, and REP. JOKER P. ARROYO, petitioners,
vs.
TEOFISTO GUINGONA, JR., in his capacity as Executive Secretary, Office of the President;
RENATO CORONA, in his capacity as Assistant Executive Secretary and Chairman of the
Presidential review Committee on the Lotto, Office of the President; PHILIPPINE CHARITY
SWEEPSTAKES OFFICE; and PHILIPPINE GAMING MANAGEMENT CORPORATION,
respondents.
Jovito R. Salonga, Fernando Santiago, Emilio C. Capulong, Jr. and Felipe L. Gozon for petitioners.
Renato L. Cayetano and Eleazar B. Reyes for PGMC.

Gamaliel G. Bongco, Oscar Karaan and Jedideoh Sincero for intervenors.
DAVIDE, JR., J.:
This is a special civil action for prohibition and injunction, with a prayer for a temporary restraining
order and preliminary injunction, which seeks to prohibit and restrain the implementation of the
"Contract of Lease" executed by the Philippine Charity Sweepstakes Office (PCSO) and the
Philippine Gaming Management Corporation (PGMC) in connection with the on- line lottery system,
also known as "lotto."
Petitioner Kilosbayan, Incorporated (KILOSBAYAN) avers that it is a non-stock domestic corporation

composed of civic-spirited citizens, pastors, priests, nuns, and lay leaders who are committed to the
cause of truth, justice, and national renewal. The rest of the petitioners, except Senators Freddie
Webb and Wigberto Tañada and Representative Joker P. Arroyo, are suing in their capacities as
members of the Board of Trustees of KILOSBAYAN and as taxpayers and concerned citizens.
Senators Webb and Tañada and Representative Arroyo are suing in their capacities as members of
Congress and as taxpayers and concerned citizens of the Philippines.
The pleadings of the parties disclose the factual antecedents which triggered off the filing of this
petition.
Pursuant to Section 1 of the charter of the PCSO (R.A. No. 1169, as amended by B.P. Blg. 42)
which grants it the authority to hold and conduct "charity sweepstakes races, lotteries and other
similar activities," the PCSO decided to establish an on- line lottery system for the purpose of
increasing its revenue base and diversifying its sources of funds. Sometime before March 1993,
after learning that the PCSO was interested in operating an on-line lottery system, the Berjaya
Group Berhad, "a multinational company and one of the ten largest public companies in Malaysia,"
long "engaged in, among others, successful lottery operations in Asia, running both Lotto and Digit
games, thru its subsidiary, Sports Toto Malaysia," with its "affiliate, the International Totalizator
Systems, Inc., . . . an American public company engaged in the international sale or provision of
computer systems, softwares, terminals, training and other technical services to the gaming
industry," "became interested to offer its services and resources to PCSO." As an initial step,
Berjaya Group Berhad (through its individual nominees) organized with some Filipino investors in
March 1993 a Philippine corporation known as the Philippine Gaming Management Corporation
(PGMC), which "was intended to be the medium through which the technical and management
services required for the project would be offered and delivered to PCSO." 1
Before August 1993, the PCSO formally issued a Request for Proposal (RFP) for the Lease Contract
of an on-line lottery system for the PCSO. Relevant provisions of the RFP are the following:
2
1. EXECUTIVE SUMMARY
xxx xxx xxx
1.2. PCSO is seeking a suitable contractor which shall build, at its own expense, all
the facilities ('Facilities') needed to operate and maintain a nationwide on-line lottery
system. PCSO shall lease the Facilities for a fixed percentage ofquarterly gross
receipts. All receipts from ticket sales shall be turned over directly to PCSO. All
capital, operating expenses and expansion expenses and risks shall be for the
exclusive account of the Lessor.
xxx xxx xxx
1.4. The lease shall be for a period not exceeding fifteen (15) years.
1.5. The Lessor is expected to submit a comprehensive nationwide lottery

development plan ("Development Plan") which will include the game, the marketing
of the games, and the logistics to introduce the games to all the cities and
municipalities of the country within five (5) years.
xxx xxx xxx
1.7. The Lessor shall be selected based on its technical expertise, hardware and
software capability, maintenance support, and financial resources. The Development
Plan shall have a substantial bearing on the choice of the Lessor. The Lessor shall
be a domestic corporation, with at least sixty percent (60%) of its shares owned by
Filipino shareholders.
xxx xxx xxx
The Office of the President, the National Disaster Control Coordinating Council, the
Philippine National Police, and the National Bureau of Investigation shall be
authorized to use the nationwide telecommunications system of the Facilities Free of
Charge.
1.8. Upon expiration of the lease, the Facilities shall be owned by PCSO without any
additional consideration.
3
xxx xxx xxx
2.2. OBJECTIVES
The objectives of PCSO in leasing the Facilities from a private entity are as follows:
xxx xxx xxx
2.2.2. Enable PCSO to operate a nationwide on-line Lottery system at no expense or

risk to the government.
xxx xxx xxx
2.4. DUTIES AND RESPONSIBILITIES OF THE LESSOR
xxx xxx xxx
2.4.2. THE LESSOR
The Proponent is expected to furnish and maintain the Facilities, including the
personnel needed to operate the computers, the communications network and sales
offices under a build-lease basis. The printing of tickets shall be undertaken under
the supervision and control of PCSO. The Facilities shall enable PCSO to
computerize the entire gaming system.
The Proponent is expected to formulate and design consumer-oriented Master

Games Plan suited to the marketplace, especially geared to Filipino gaming habits
and preferences. In addition, the Master Games Plan is expected to include a
Product Plan for each game and explain how each will be introduced into the market.
This will be an integral part of the Development Plan which PCSO will require from
the Proponent.
xxx xxx xxx
The Proponent is expected to provide upgrades to modernize the entire gaming

system over the life ofthe lease contract.
The Proponent is expected to provide technology transfer to PCSO technical

personnel. 4
7. GENERAL GUIDELINES FOR PROPONENTS
xxx xxx xxx
Finally, the Proponent must be able to stand the acid test of proving that it is an entity
able to take on the role of responsible maintainer of the on-line lottery system, and
able to achieve PSCO's goal of formalizing an on-line lottery system to achieve its
mandated objective. 5
xxx xxx xxx
16. DEFINITION OF TERMS
Facilities: All capital equipment, computers, terminals, software, nationwide

telecommunication network, ticket sales offices, furnishings, and fixtures; printing
costs; cost of salaries and wages; advertising and promotion expenses; maintenance
costs; expansion and replacement costs; security and insurance, and all other
related expenses needed to operate nationwide on-line lottery system. 6
Considering the above citizenship requirement, the PGMC claims that the Berjaya Group "undertook
to reduce its equity stakes in PGMC to 40%," by selling 35% out of the original 75% foreign
stockholdings to local investors.
On 15 August 1993, PGMC submitted its bid to the PCSO. 7
The bids were evaluated by the Special Pre-Qualification Bids and Awards Committee (SPBAC) for
the on-line lottery and its Bid Report was thereafter submitted to the Office of the President. The
8
submission was preceded by complaints by the Committee's Chairperson, Dr. Mita Pardo de
Tavera. 9
On 21 October 1993, the Office of the President announced that it had given the respondent PGMC
the go-signal to operate the country's on-line lottery system and that the corresponding implementing
contract would be submitted not later than 8 November 1993 "for final clearance and approval by the
Chief Executive." This announcement was published in the Manila Standard, Philippine Daily
10
Inquirer, and the Manila Times on 29 October 1993. 11
On 4 November 1993, KILOSBAYAN sent an open letter to Presidential Fidel V. Ramos strongly
opposing the setting up to the on-line lottery system on the basis of serious moral and ethical
considerations. 12
At the meeting of the Committee on Games and Amusements of the Senate on 12 November 1993,
KILOSBAYAN reiterated its vigorous opposition to the on-line lottery on account of its immorality and
illegality.
13
On 19 November 1993, the media reported that despite the opposition, "Malacañang will push
through with the operation of an on-line lottery system nationwide" and that it is actually the
respondent PCSO which will operate the lottery while the winning corporate bidders are merely
"lessors."
14
On 1 December 1993, KILOSBAYAN requested copies of all documents pertaining to the lottery
award from Executive Secretary Teofisto Guingona, Jr. In his answer of 17 December 1993, the
Executive Secretary informed KILOSBAYAN that the requested documents would be duly
transmitted before the end of the month. . However, on that same date, an agreement denominated
15
as "Contract of Lease" was finally executed by respondent PCSO and respondent PGMC. The 16
President, per the press statement issued by the Office of the President, approved it on 20
December 1993. 17
In view of their materiality and relevance, we quote the following salient provisions of the Contract of
Lease:
1. DEFINITIONS
The following words and terms shall have the following respective meanings:
1.1 Rental Fee — Amount to be paid by PCSO to the LESSOR as compensation for
the fulfillment of the obligations of the LESSOR under this Contract, including, but not
limited to the lease of the Facilities.
xxx xxx xxx
1.3 Facilities — All capital equipment, computers, terminals, software (including

source codes for the On-Line Lottery application software for the terminals,
telecommunications and central systems), technology, intellectual property rights,
telecommunications network, and furnishings and fixtures.
1.4 Maintenance and Other Costs — All costs and expenses relating to printing,
manpower, salaries and wages, advertising and promotion, maintenance, expansion
and replacement, security and insurance, and all other related expenses needed to
operate an On-Line Lottery System, which shall be for the account of the LESSOR.
All expenses relating to the setting-up, operation and maintenance of ticket sales
offices of dealers and retailers shall be borne by PCSO's dealers and retailers.
1.5 Development Plan — The detailed plan of all games, the marketing thereof,
number of players, value of winnings and the logistics required to introduce the
games, including the Master Games Plan as approved by PCSO, attached hereto as
Annex "A", modified as necessary by the provisions of this Contract.
xxx xxx xxx
1.8 Escrow Deposit — The proposal deposit in the sum of Three Hundred Million
Pesos (P300,000,000.00) submitted by the LESSOR to PCSO pursuant to the
requirements of the Request for Proposals.
2. SUBJECT MATTER OF THE LEASE
The LESSOR shall build, furnish and maintain at its own expense and risk the
Facilities for the On-Line Lottery System of PCSO in the Territory on an exclusive
basis. The LESSOR shall bear all Maintenance and Other Costs as defined herein.
xxx xxx xxx
3. RENTAL FEE
For and in consideration of the performance by the LESSOR of its obligations herein,
PCSO shall pay LESSOR a fixed Rental Fee equal to four point nine percent (4.9%)
of gross receipts from ticket sales, payable net of taxes required by law to be
withheld, on a semi-monthly basis. Goodwill, franchise and similar fees shall belong
to PCSO.
4. LEASE PERIOD
The period of the lease shall commence ninety (90) days from the date of effectivity
of this Contract and shall run for a period of eight (8) years thereafter, unless sooner
terminated in accordance with this Contract.
5. RIGHTS AND OBLIGATIONS OF PCSO AS OPERATOR OF THE ON-LINE

LOTTERY SYSTEM
PCSO shall be the sole and individual operator of the On-Line Lottery System.
Consequently:
5.1 PCSO shall have sole responsibility to decide whether to implement, fully or
partially, the Master Games Plan of the LESSOR. PCSO shall have the sole
responsibility to determine the time for introducing new games to the market. The
Master Games Plan included in Annex "A" hereof is hereby approved by PCSO.
5.2 PCSO shall have control over revenues and receipts of whatever nature from the
On-Line Lottery System. After paying the Rental Fee to the LESSOR, PCSO shall
have exclusive responsibility to determine the Revenue Allocation Plan; Provided,
that the same shall be consistent with the requirement of R.A. No. 1169, as
amended, which fixes a prize fund of fifty five percent (55%) on the average.
5.3 PCSO shall have exclusive control over the printing of tickets, including but not
limited to the design, text, and contents thereof.
5.4 PCSO shall have sole responsibility over the appointment of dealers or retailers
throughout the country. PCSO shall appoint the dealers and retailers in a timely
manner with due regard to the implementation timetable of the On-Line Lottery
System. Nothing herein shall preclude the LESSOR from recommending dealers or
retailers for appointment by PCSO, which shall act on said recommendation within
forty-eight (48) hours.
5.5 PCSO shall designate the necessary personnel to monitor and audit the daily
performance of the On-Line Lottery System. For this purpose, PCSO designees shall
be given, free of charge, suitable and adequate space, furniture and fixtures, in all
offices of the LESSOR, including but not limited to its headquarters, alternate site,
regional and area offices.
5.6 PCSO shall have the responsibility to resolve, and exclusive jurisdiction over, all
matters involving the operation of the On-Line Lottery System not otherwise provided
in this Contract.
5.7 PCSO shall promulgate procedural and coordinating rules governing all activities
relating to the On-Line Lottery System.
5.8 PCSO will be responsible for the payment of prize monies, commissions to
agents and dealers, and taxes and levies (if any) chargeable to the operator of the
On-Line Lottery System. The LESSOR will bear all other Maintenance and Other
Costs, except as provided in Section 1.4.
5.9 PCSO shall assist the LESSOR in the following:
5.9.1 Work permits for the LESSOR's staff;
5.9.2 Approvals for importation of the Facilities;
5.9.3 Approvals and consents for the On-Line Lottery System; and
5.9.4 Business and premises licenses for all offices of the LESSOR
and licenses for the telecommunications network.
5.10 In the event that PCSO shall pre-terminate this Contract or suspend the
operation of the On-Line Lottery System, in breach of this Contract and through no
fault of the LESSOR, PCSO shall promptly, and in any event not later than sixty (60)
days, reimburse the LESSOR the amount of its total investment cost associated with
the On-Line Lottery System, including but not limited to the cost of the Facilities, and
further compensate the LESSOR for loss of expected net profit after tax, computed
over the unexpired term of the lease.
6. DUTIES AND RESPONSIBILITIES OF THE LESSOR
The LESSOR is one of not more than three (3) lessors of similar facilities for the
nationwide On-Line Lottery System of PCSO. It is understood that the rights of the
LESSOR are primarily those of a lessor of the Facilities, and consequently, all rights
involving the business aspects of the use of the Facilities are within the jurisdiction of
PCSO. During the term of the lease, the LESSOR shall.
6.1 Maintain and preserve its corporate existence, rights and privileges, and conduct
its business in an orderly, efficient, and customary manner.
6.2 Maintain insurance coverage with insurers acceptable to PCSO on all Facilities.
6.3 Comply with all laws, statues, rules and regulations, orders and directives,
obligations and duties by which it is legally bound.
6.4 Duly pay and discharge all taxes, assessments and government charges now
and hereafter imposed of whatever nature that may be legally levied upon it.
6.5 Keep all the Facilities in fail safe condition and, if necessary, upgrade, replace
and improve the Facilities from time to time as new technology develops, in order to
make the On-Line Lottery System more cost-effective and/or competitive, and as
may be required by PCSO shall not impose such requirements unreasonably nor
arbitrarily.
6.6 Provide PCSO with management terminals which will allow real-time monitoring
of the On-Line Lottery System.
6.7 Upon effectivity of this Contract, commence the training of PCSO and other local
personnel and the transfer of technology and expertise, such that at the end of the
term of this Contract, PCSO will be able to effectively take-over the Facilities and
efficiently operate the On-Line Lottery System.
6.8 Undertake a positive advertising and promotions campaign for both institutional
and product lines without engaging in negative advertising against other lessors.
6.9 Bear all expenses and risks relating to the Facilities including, but not limited to,
Maintenance and Other Costs and:
xxx xxx xxx
6.10 Bear all risks if the revenues from ticket sales, on an annualized basis, are
insufficient to pay the entire prize money.
6.11 Be, and is hereby, authorized to collect and retain for its own account, a security
deposit from dealers and retailers, in an amount determined with the approval of
PCSO, in respect of equipment supplied by the LESSOR. PCSO's approval shall not
be unreasonably withheld.
xxx xxx xxx
6.12 Comply with procedural and coordinating rules issued by PCSO.
7. REPRESENTATIONS AND WARRANTIES
The LESSOR represents and warrants that:
7.1 The LESSOR is corporation duly organized and existing under the laws of the
Republic of the Philippines, at least sixty percent (60%) of the outstanding capital
stock of which is owned by Filipino shareholders. The minimum required Filipino
equity participation shall not be impaired through voluntary or involuntary transfer,
disposition, or sale of shares of stock by the present stockholders.
7.2 The LESSOR and its Affiliates have the full corporate and legal power and
authority to own and operate their properties and to carry on their business in the
place where such properties are now or may be conducted. . . .
7.3 The LESSOR has or has access to all the financing and funding requirements to
promptly and effectively carry out the terms of this Contract. . . .
7.4 The LESSOR has or has access to all the managerial and technical expertise to
promptly and effectively carry out the terms of this Contract. . . .
xxx xxx xxx
10. TELECOMMUNICATIONS NETWORK
The LESSOR shall establish a telecommunications network that will connect all
municipalities and cities in the Territory in accordance with, at the LESSOR's option,
either of the LESSOR's proposals (or a combinations of both such proposals)
attached hereto as Annex "B," and under the following PCSO schedule:
xxx xxx xxx
PCSO may, at its option, require the LESSOR to establish the telecommunications
network in accordance with the above Timetable in provinces where the LESSOR
has not yet installed terminals. Provided, that such provinces have existing nodes.
Once a municipality or city is serviced by land lines of a licensed public telephone
company, and such lines are connected to Metro Manila, then the obligation of the
LESSOR to connect such municipality or city through a telecommunications network
shall cease with respect to such municipality or city. The voice facility will cover the
four offices of the Office of the President, National Disaster Control Coordinating
Council, Philippine National Police and the National Bureau of Investigation, and
each city and municipality in the Territory except Metro Manila, and those cities and
municipalities which have easy telephone access from these four offices. Voice calls
from the four offices shall be transmitted via radio or VSAT to the remote
municipalities which will be connected to this voice facility through wired network or
by radio. The facility shall be designed to handle four private conversations at any
one time.
xxx xxx xxx
13. STOCK DISPERSAL PLAN
Within two (2) years from the effectivity of this Contract, the LESSOR shall cause
itself to be listed in the local stock exchange and offer at least twenty five percent
(25%) of its equity to the public.
14. NON-COMPETITION
The LESSOR shall not, directly or indirectly, undertake any activity or business in
competition with or adverse to the On-Line Lottery System of PCSO unless it obtains
the latter's prior written consent thereto.
15. HOLD HARMLESS CLAUSE
15.1 The LESSOR shall at all times protect and defend, at its cost and expense,
PCSO from and against any and all liabilities and claims for damages and/or suits for
or by reason of any deaths of, or any injury or injuries to any person or persons, or
damages to property of any kind whatsoever, caused by the LESSOR, its
subcontractors, its authorized agents or employees, from any cause or causes
whatsoever.
15.2 The LESSOR hereby covenants and agrees to indemnify and hold PCSO
harmless from all liabilities, charges, expenses (including reasonable counsel fees)
and costs on account of or by reason of any such death or deaths, injury or injuries,
liabilities, claims, suits or losses caused by the LESSOR's fault or negligence.
15.3 The LESSOR shall at all times protect and defend, at its own cost and expense,
its title to the facilities and PCSO's interest therein from and against any and all
claims for the duration of the Contract until transfer to PCSO of ownership of the
serviceable Facilities.
16. SECURITY
16.1 To ensure faithful compliance by the LESSOR with the terms of the Contract,
the LESSOR shall secure a Performance Bond from a reputable insurance company
or companies acceptable to PCSO.
16.2 The Performance Bond shall be in the initial amount of Three Hundred Million
Pesos (P300,000,000.00), to its U.S. dollar equivalent, and shall be renewed to cover
the duration of the Contract. However, the Performance Bond shall be reduced
proportionately to the percentage of unencumbered terminals installed; Provided,
that the Performance Bond shall in no case be less than One Hundred Fifty Million
Pesos (P150,000,000.00).
16.3 The LESSOR may at its option maintain its Escrow Deposit as the Performance
Bond. . . .
17. PENALTIES
17.1 Except as may be provided in Section 17.2, should the LESSOR fail to take
remedial measures within seven (7) days, and rectify the breach within thirty (30)
days, from written notice by PCSO of any wilfull or grossly negligent violation of the
material terms and conditions of this Contract, all unencumbered Facilities shall
automatically become the property of PCSO without consideration and without need
for further notice or demand by PCSO. The Performance Bond shall likewise be
forfeited in favor of PCSO.
17.2 Should the LESSOR fail to comply with the terms of the Timetables provided in
Section 9 and 10, it shall be subject to an initial Penalty of Twenty Thousand Pesos
(P20,000.00), per city or municipality per every month of delay; Provided, that the
Penalty shall increase, every ninety (90) days, by the amount of Twenty Thousand
Pesos (P20,000.00) per city or municipality per month, whilst shall failure to comply
persists. The penalty shall be deducted by PCSO from the rental fee.
xxx xxx xxx
20. OWNERSHIP OF THE FACILITIES
After expiration of the term of the lease as provided in Section 4, the Facilities
directly required for the On-Line Lottery System mentioned in Section 1.3 shall
automatically belong in full ownership to PCSO without any further consideration
other than the Rental Fees already paid during the effectivity of the lease.
21. TERMINATION OF THE LEASE
PCSO may terminate this Contract for any breach of the material provisions of this
Contract, including the following:
21.1 The LESSOR is insolvent or bankrupt or unable to pay its debts, stops or
suspends or threatens to stop or suspend payment of all or a material part of its
debts, or proposes or makes a general assignment or an arrangement or
compositions with or for the benefit of its creditors; or
21.2 An order is made or an effective resolution passed for the winding up or

dissolution of the LESSOR or when it ceases or threatens to cease to carry on all or
a material part of its operations or business; or
21.3 Any material statement, representation or warranty made or furnished by the

LESSOR proved to be materially false or misleading;
said termination to take effect upon receipt of written notice of

termination by the LESSOR and failure to take remedial action within
seven (7) days and cure or remedy the same within thirty (30) days
from notice.
Any suspension, cancellation or termination of this Contract shall not

relieve the LESSOR of any liability that may have already accrued
hereunder.
x x x x x x x x x
Considering the denial by the Office of the President of its protest and the statement of Assistant
Executive Secretary Renato Corona that "only a court injunction can stop Malacañang," and the
imminent implementation of the Contract of Lease in February 1994, KILOSBAYAN, with its co-
petitioners, filed on 28 January 1994 this petition.
In support of the petition, the petitioners claim that:
. . . X X THE OFFICE OF THE PRESIDENT, ACTING THROUGH

RESPONDENTS EXECUTIVE SECRETARY AND/OR ASSISTANT
EXECUTIVE SECRETARY FOR LEGAL AFFAIRS, AND THE PCSO
GRAVELY ABUSE[D] THEIR DISCRETION AND/OR FUNCTIONS
TANTAMOUNT TO LACK OF JURISDICTION AND/OR AUTHORITY
IN RESPECTIVELY: (A) APPROVING THE AWARD OF THE
CONTRACT TO, AND (B) ENTERING INTO THE SO-CALLED
"CONTRACT OF LEASE" WITH, RESPONDENT PGMC FOR THE
INSTALLATION, ESTABLISHMENT AND OPERATION OF THE ON-
LINE LOTTERY AND TELECOMMUNICATION SYSTEMS
REQUIRED AND/OR AUTHORIZED UNDER THE SAID
CONTRACT, CONSIDERING THAT:
a) Under Section 1 of the Charter of the PCSO, the PCSO is prohibited from holding
and conducting lotteries "in collaboration, association or joint venture with any
person, association, company or entity";
b) Under Act No. 3846 and established jurisprudence, a Congressional franchise is

required before any person may be allowed to establish and operate said
telecommunications system;
c) Under Section 11, Article XII of the Constitution, a less than 60% Filipino-owned
and/or controlled corporation, like the PGMC, is disqualified from operating a public
service, like the said telecommunications system; and
d) Respondent PGMC is not authorized by its charter and under the Foreign
Investment Act (R.A. No. 7042) to install, establish and operate the on-line lotto and
telecommunications systems. 18
Petitioners submit that the PCSO cannot validly enter into the assailed Contract of Lease with the
PGMC because it is an arrangement wherein the PCSO would hold and conduct the on-line lottery
system in "collaboration" or "association" with the PGMC, in violation of Section 1(B) of R.A. No.
1169, as amended by B.P. Blg. 42, which prohibits the PCSO from holding and conducting charity
sweepstakes races, lotteries, and other similar activities "in collaboration, association or joint venture
with any person, association, company or entity, foreign or domestic." Even granting arguendo that a
lease of facilities is not within the contemplation of "collaboration" or "association," an analysis,
however, of the Contract of Lease clearly shows that there is a "collaboration, association, or joint
venture between respondents PCSO and PGMC in the holding of the On-Line Lottery System," and
that there are terms and conditions of the Contract "showing that respondent PGMC is the actual
lotto operator and not respondent PCSO." 19
The petitioners also point out that paragraph 10 of the Contract of Lease requires or authorizes
PGMC to establish a telecommunications network that will connect all the municipalities and cities in
the territory. However, PGMC cannot do that because it has no franchise from Congress to
construct, install, establish, or operate the network pursuant to Section 1 of Act No. 3846, as
amended. Moreover, PGMC is a 75% foreign-owned or controlled corporation and cannot, therefore,
be granted a franchise for that purpose because of Section 11, Article XII of the 1987 Constitution.
Furthermore, since "the subscribed foreign capital" of the PGMC "comes to about 75%, as shown by
paragraph EIGHT of its Articles of Incorporation," it cannot lawfully enter into the contract in question
because all forms of gambling — and lottery is one of them — are included in the so-called foreign
investments negative list under the Foreign Investments Act (R.A. No. 7042) where only up to 40%
foreign capital is allowed.
20
Finally, the petitioners insist that the Articles of Incorporation of PGMC do not authorize it to
establish and operate an on-line lottery and telecommunications systems. 21
Accordingly, the petitioners pray that we issue a temporary restraining order and a writ of preliminary
injunction commanding the respondents or any person acting in their places or upon their
instructions to cease and desist from implementing the challenged Contract of Lease and, after
hearing the merits of the petition, that we render judgment declaring the Contract of Lease void and
without effect and making the injunction permanent. 22
We required the respondents to comment on the petition.
In its Comment filed on 1 March 1994, private respondent PGMC asserts that "(1) [it] is merely an
independent contractor for a piece of work, (i.e., the building and maintenance of a lottery system to
be used by PCSO in the operation of its lottery franchise); and (2) as such independent contractor,
PGMC is not a co-operator of the lottery franchise with PCSO, nor is PCSO sharing its franchise, 'in
collaboration, association or joint venture' with PGMC — as such statutory limitation is viewed from
the context, intent, and spirit of Republic Act 1169, as amended by Batas Pambansa 42." It further
claims that as an independent contractor for a piece of work, it is neither engaged in "gambling" nor
in "public service" relative to the telecommunications network, which the petitioners even consider as
an "indispensable requirement" of an on-line lottery system. Finally, it states that the execution and
implementation of the contract does not violate the Constitution and the laws; that the issue on the
"morality" of the lottery franchise granted to the PCSO is political and not judicial or legal, which
should be ventilated in another forum; and that the "petitioners do not appear to have the legal
standing or real interest in the subject contract and in obtaining the reliefs sought." 23
In their Comment filed by the Office of the Solicitor General, public respondents Executive Secretary
Teofisto Guingona, Jr., Assistant Executive Secretary Renato Corona, and the PCSO maintain that
the contract of lease in question does not violate Section 1 of R.A. No. 1169, as amended by B.P.
Blg. 42, and that the petitioner's interpretation of the phrase "in collaboration, association or joint
venture" in Section 1 is "much too narrow, strained and utterly devoid of logic" for it "ignores the
reality that PCSO, as a corporate entity, is vested with the basic and essential prerogative to enter
into all kinds of transactions or contracts as may be necessary for the attainment of its purposes and
objectives." What the PCSO charter "seeks to prohibit is that arrangement akin to a "joint venture" or
partnership where there is "community of interest in the business, sharing of profits and losses, and
a mutual right of control," a characteristic which does not obtain in a contract of lease." With respect
to the challenged Contract of Lease, the "role of PGMC is limited to that of a lessor of the facilities"
for the on-line lottery system; in "strict technical and legal sense," said contract "can be categorized
as a contract for a piece of work as defined in Articles 1467, 1713 and 1644 of the Civil Code."
They further claim that the establishment of the telecommunications system stipulated in the
Contract of Lease does not require a congressional franchise because PGMC will not operate a
public utility; moreover, PGMC's "establishment of a telecommunications system is not intended to
establish a telecommunications business," and it has been held that where the facilities are operated
"not for business purposes but for its own use," a legislative franchise is not required before a
certificate of public convenience can be granted. Even granting arguendo that PGMC is a public
24
utility, pursuant to Albano S.

Reyes, "it can establish a telecommunications system even without a legislative franchise because
25
not every public utility is required to secure a legislative franchise before it could establish, maintain,
and operate the service"; and, in any case, "PGMC's establishment of the telecommunications
system stipulated in its contract of lease with PCSO falls within the exceptions under Section 1 of
Act No. 3846 where a legislative franchise is not necessary for the establishment of radio stations."
They also argue that the contract does not violate the Foreign Investment Act of 1991; that the
Articles of Incorporation of PGMC authorize it to enter into the Contract of Lease; and that the issues
of "wisdom, morality and propriety of acts of the executive department are beyond the ambit of
judicial review."
Finally, the public respondents allege that the petitioners have no standing to maintain the instant
suit, citing our resolution in Valmonte vs. Philippine Charity Sweepstakes Office. 26
Several parties filed motions to intervene as petitioners in this case, but only the motion of
27
Senators Alberto Romulo, Arturo Tolentino, Francisco Tatad, Gloria Macapagal-Arroyo, Vicente
Sotto III, John Osmeña, Ramon Revilla, and Jose Lina was granted, and the respondents were
28
required to comment on their petition in intervention, which the public respondents and PGMC did.
In the meantime, the petitioners filed with the Securities and Exchange Commission on 29 March
1994 a petition against PGMC for the nullification of the latter's General Information Sheets. That
case, however, has no bearing in this petition.
On 11 April 1994, we heard the parties in oral arguments. Thereafter, we resolved to consider the
matter submitted for resolution and pending resolution of the major issues in this case, to issue a
temporary restraining order commanding the respondents or any person acting in their place or upon
their instructions to cease and desist from implementing the challenged Contract of Lease.
In the deliberation on this case on 26 April 1994, we resolved to consider only these issues: (a)
the locus standi of the petitioners, and (b) the legality and validity of the Contract of Lease in the light
of Section 1 of R.A. No. 1169, as amended by B.P. Blg. 42, which prohibits the PCSO from holding
and conducting lotteries "in collaboration, association or joint venture with any person, association,
company or entity, whether domestic or foreign." On the first issue, seven Justices voted to sustain
the locus standi of the petitioners, while six voted not to. On the second issue, the seven Justices
were of the opinion that the Contract of Lease violates the exception to Section 1(B) of R.A. No.
1169, as amended by B.P. Blg. 42, and is, therefore, invalid and contrary to law. The six Justices
stated that they wished to express no opinion thereon in view of their stand on the first issue. The
Chief Justice took no part because one of the Directors of the PCSO is his brother-in-law.
This case was then assigned to this ponente for the writing of the opinion of the Court.
The preliminary issue on the locus standi of the petitioners should, indeed, be resolved in their favor.
A party's standing before this Court is a procedural technicality which it may, in the exercise of its
discretion, set aside in view of the importance of the issues raised. In the landmark Emergency
Powers Cases, this Court brushed aside this technicality because "the transcendental importance
29
to the public of these cases demands that they be settled promptly and definitely, brushing aside, if
we must, technicalities of procedure. (Avelino vs. Cuenco, G.R. No. L-2821)." Insofar as taxpayers'
suits are concerned, this Court had declared that it "is not devoid of discretion as to whether or not it
should be entertained," or that it "enjoys an open discretion to entertain the same or not." In De
30 31
La Llana vs. Alba, this Court declared:

32
1. The argument as to the lack of standing of petitioners is easily resolved. As far as

Judge de la Llana is concerned, he certainly falls within the principle set forth in
Justice Laurel's opinion in People vs. Vera [65 Phil. 56 (1937)]. Thus: "The
unchallenged rule is that the person who impugns the validity of a statute must have
a personal and substantial interest in the case such that he has sustained, or will
sustain, direct injury as a result of its enforcement [Ibid, 89]. The other petitioners as
members of the bar and officers of the court cannot be considered as devoid of "any
personal and substantial interest" on the matter. There is relevance to this excerpt
from a separate opinion in Aquino, Jr. v. Commission on Elections [L-40004, January
31, 1975, 62 SCRA 275]: "Then there is the attack on the standing of petitioners, as
vindicating at most what they consider a public right and not protecting their rights as
individuals. This is to conjure the specter of the public right dogma as an inhibition to
parties intent on keeping public officials staying on the path of constitutionalism. As
was so well put by Jaffe; "The protection of private rights is an essential constituent
of public interest and, conversely, without a well-ordered state there could be no
enforcement of private rights. Private and public interests are, both in a substantive
and procedural sense, aspects of the totality of the legal order." Moreover, petitioners
have convincingly shown that in their capacity as taxpayers, their standing to sue has
been amply demonstrated. There would be a retreat from the liberal approach
followed in Pascual v. Secretary of Public Works, foreshadowed by the very decision
of People v. Vera where the doctrine was first fully discussed, if we act differently
now. I do not think we are prepared to take that step. Respondents, however, would
hard back to the American Supreme Court doctrine in Mellon v. Frothingham, with
their claim that what petitioners possess "is an interest which is shared in common by
other people and is comparatively so minute and indeterminate as to afford any basis
and assurance that the judicial process can act on it." That is to speak in the
language of a bygone era, even in the United States. For as Chief Justice Warren
clearly pointed out in the later case of Flast v. Cohen, the barrier thus set up if not
breached has definitely been lowered.
In Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs. Tan, reiterated in Basco vs.
33
Philippine Amusements and Gaming Corporation, this Court stated:

34
Objections to taxpayers' suits for lack of sufficient personality standing or interest

are, however, in the main procedural matters. Considering the importance to the
public of the cases at bar, and in keeping with the Court's duty, under the 1987
Constitution, to determine whether or not the other branches of government have
kept themselves within the limits of the Constitution and the laws and that they have
not abused the discretion given to them, this Court has brushed aside technicalities
of procedure and has taken cognizance of these petitions.
and in Association of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform, it 35
declared:
With particular regard to the requirement of proper party as applied in the cases
before us, we hold that the same is satisfied by the petitioners and intervenors
because each of them has sustained or is in danger of sustaining an immediate
injury as a result of the acts or measures complained of. [Ex ParteLevitt, 303 US
633]. And even if, strictly speaking, they are not covered by the definition, it is still
within the wide discretion of the Court to waive the requirement and so remove the
impediment to its addressing and resolving the serious constitutional questions
raised.
In the first Emergency Powers Cases, ordinary citizens and taxpayers were allowed
to question the constitutionality of several executive orders issued by President
Quirino although they were invoking only an indirect and general interest shared in
common with the public. The Court dismissed the objective that they were not proper
parties and ruled that the transcendental importance to the public of these cases
demands that they be settled promptly and definitely, brushing aside, if we must,
technicalities of procedure. We have since then applied this exception in many other
cases. (Emphasis supplied)
In Daza vs. Singson, this Court once more said:

36
. . . For another, we have early as in the Emergency Powers Cases that where
serious constitutional questions are involved, "the transcendental importance to the
public of these cases demands that they be settled promptly and definitely, brushing
aside, if we must, technicalities of procedure." The same policy has since then been
consistently followed by the Court, as in Gonzales vs. Commission on Elections [21
SCRA 774] . . .
The Federal Supreme Court of the United States of America has also expressed its discretionary
power to liberalize the rule on locus standi. In United States vs. Federal Power
Commission and Virginia Rea Association vs. Federal Power Commission, it held: 37
We hold that petitioners have standing. Differences of view, however, preclude a

single opinion of the Court as to both petitioners. It would not further clarification of
this complicated specialty of federal jurisdiction, the solution of whose problems is in
any event more or less determined by the specific circumstances of individual
situations, to set out the divergent grounds in support of standing in these cases.
In line with the liberal policy of this Court on locus standi, ordinary taxpayers, members of Congress,
and even association of planters, and non-profit civic organizations were allowed to initiate and
prosecute actions before this Court to question the constitutionality or validity of laws, acts,
decisions, rulings, or orders of various government agencies or instrumentalities. Among such cases
were those assailing the constitutionality of (a) R.A. No. 3836 insofar as it allows retirement gratuity
and commutation of vacation and sick leave to Senators and Representatives and to elective
officials of both Houses of Congress; (b) Executive Order No. 284, issued by President Corazon C.
38
Aquino on 25 July 1987, which allowed members of the cabinet, their undersecretaries, and
assistant secretaries to hold other government offices or positions; (c) the automatic appropriation
39
for debt service in the General Appropriations Act; (d) R.A. No. 7056 on the holding of
40
desynchronized elections; (d) R.A. No. 1869 (the charter of the Philippine Amusement and Gaming
41
Corporation) on the ground that it is contrary to morals, public policy, and order; and (f) R.A. No.
42
6975, establishing the Philippine National

Police.
43
Other cases where we have followed a liberal policy regarding locus standi include those attacking
the validity or legality of (a) an order allowing the importation of rice in the light of the prohibition
imposed by R.A. No. 3452; (b) P.D. Nos. 991 and 1033 insofar as they proposed amendments to
44
the Constitution and P.D. No. 1031 insofar as it directed the COMELEC to supervise, control, hold,
and conduct the referendum-plebiscite on 16 October 1976; (c) the bidding for the sale of the 3,179
45
square meters of land at Roppongi, Minato-ku, Tokyo, Japan; (d) the approval without hearing by
46
the Board of Investments of the amended application of the Bataan Petrochemical Corporation to
transfer the site of its plant from Bataan to Batangas and the validity of such transfer and the shift of
feedstock from naphtha only to naphtha and/or liquefied petroleum gas; (e) the decisions, orders,
47
rulings, and resolutions of the Executive Secretary, Secretary of Finance, Commissioner of Internal
Revenue, Commissioner of Customs, and the Fiscal Incentives Review Board exempting the
National Power Corporation from indirect tax and duties; (f) the orders of the Energy Regulatory
48
Board of 5 and 6 December 1990 on the ground that the hearings conducted on the second
provisional increase in oil prices did not allow the petitioner substantial cross-examination; (g)
49
Executive Order No. 478 which levied a special duty of P0.95 per liter or P151.05 per barrel of
imported crude oil and P1.00 per liter of imported oil products; (h) resolutions of the Commission
50
on Elections concerning the apportionment, by district, of the number of elective members

of Sanggunians; and (i) memorandum orders issued by a Mayor affecting the Chief of Police of
51
Pasay City.52
In the 1975 case of Aquino vs. Commission on Elections, this Court, despite its unequivocal ruling
53
that the petitioners therein had no personality to file the petition, resolved nevertheless to pass upon
the issues raised because of the far-reaching implications of the petition. We did no less in De Guia
vs. COMELEC where, although we declared that De Guia "does not appear to have locus standi, a
54
standing in law, a personal or substantial interest," we brushed aside the procedural infirmity
"considering the importance of the issue involved, concerning as it does the political exercise of
qualified voters affected by the apportionment, and petitioner alleging abuse of discretion and
violation of the Constitution by respondent."
We find the instant petition to be of transcendental importance to the public. The issues it raised are
of paramount public interest and of a category even higher than those involved in many of the
aforecited cases. The ramifications of such issues immeasurably affect the social, economic, and
moral well-being of the people even in the remotest barangays of the country and the counter-
productive and retrogressive effects of the envisioned on-line lottery system are as staggering as the
billions in pesos it is expected to raise. The legal standing then of the petitioners deserves
recognition and, in the exercise of its sound discretion, this Court hereby brushes aside the
procedural barrier which the respondents tried to take advantage of.
And now on the substantive issue.
Section 1 of R.A. No. 1169, as amending by B.P. Blg. 42, prohibits the PCSO from holding and
conducting lotteries "in collaboration, association or joint venture with any person, association,
company or entity, whether domestic or foreign." Section 1 provides:
Sec. 1. The Philippine Charity Sweepstakes Office. — The Philippine Charity

Sweepstakes Office, hereinafter designated the Office, shall be the principal
government agency for raising and providing for funds for health programs, medical
assistance and services and charities of national character, and as such shall have
the general powers conferred in section thirteen of Act Numbered One thousand four
hundred fifty-nine, as amended, and shall have the authority:
A. To hold and conduct charity sweepstakes races, lotteries and other

similar activities, in such frequency and manner, as shall be
determined, and subject to such rules and regulations as shall be
promulgated by the Board of Directors.
B. Subject to the approval of the Minister of Human Settlements, to

engage in health and welfare-related investments, programs, projects
and activities which may be profit-oriented, by itself or in
collaboration, association or joint venture with any person,
association, company or entity, whether domestic or foreign, except
for the activities mentioned in the preceding paragraph (A), for the
purpose of providing for permanent and continuing sources of funds
for health programs, including the expansion of existing ones,
medical assistance and services, and/or charitable grants: Provided,
That such investment will not compete with the private sector in areas
where investments are adequate as may be determined by the
National Economic and Development Authority. (emphasis supplied)
The language of the section is indisputably clear that with respect to its franchise or privilege "to hold
and conduct charity sweepstakes races, lotteries and other similar activities," the
PCSO cannot exercise it "in collaboration, association or joint venture" with any other party. This is
the unequivocal meaning and import of the phrase "except for the activities mentioned in the
preceding paragraph (A)," namely, "charity sweepstakes races, lotteries and other similar activities."
B.P. Blg. 42 originated from Parliamentary Bill No. 622, which was covered by Committee Report
No. 103 as reported out by the Committee on Socio-Economic Planning and Development of the
Interim Batasang Pambansa. The original text of paragraph B, Section 1 of Parliamentary Bill No.
622 reads as follows:
To engage in any and all investments and related profit-oriented projects or

programs and activities by itself or in collaboration, association or joint venture with
any person, association, company or entity, whether domestic or foreign, for the main
purpose of raising funds for health and medical assistance and services and
charitable grants. 55
During the period of committee amendments, the Committee on Socio-Economic Planning and
Development, through Assemblyman Ronaldo B. Zamora, introduced an amendment by substitution
to the said paragraph B such that, as amended, it should read as follows:
Subject to the approval of the Minister of Human Settlements, to engage in health-

oriented investments, programs, projects and activities which may be profit- oriented,
by itself or in collaboration, association, or joint venture with any person, association,
company or entity, whether domestic or foreign, for the purpose of providing for
permanent and continuing sources of funds for health programs, including the
expansion of existing ones, medical assistance and services and/or charitable
grants. 56
Before the motion of Assemblyman Zamora for the approval of the amendment could be acted upon,
Assemblyman Davide introduced an amendment to the amendment:
MR. DAVIDE.
Mr. Speaker.
THE SPEAKER.
The gentleman from Cebu is recognized.
MR. DAVIDE.
May I introduce an amendment to the committee

amendment? The amendment would be to insert after
"foreign" in the amendment just read the following:
EXCEPT FOR THE ACTIVITY IN LETTER (A)
ABOVE.
When it is joint venture or in collaboration with any
entity such collaboration or joint venture must not
include activity activity letter (a) which is the holding
and conducting of sweepstakes races, lotteries and
other similar acts.
MR. ZAMORA.
We accept the amendment, Mr. Speaker.
MR. DAVIDE.
Thank you, Mr. Speaker.
THE SPEAKER.
Is there any objection to the amendment? (Silence)

The amendment, as amended, is approved. 57
Further amendments to paragraph B were introduced and approved. When Assemblyman Zamora
read the final text of paragraph B as further amended, the earlier approved amendment of
Assemblyman Davide became "EXCEPT FOR THE ACTIVITIES MENTIONED IN PARAGRAPH
(A)"; and by virtue of the amendment introduced by Assemblyman Emmanuel Pelaez, the word
PRECEDING was inserted before PARAGRAPH. Assemblyman Pelaez introduced other
amendments. Thereafter, the new paragraph B was approved. 58
This is now paragraph B, Section 1 of R.A. No. 1169, as amended by B.P. Blg. 42.
No interpretation of the said provision to relax or circumvent the prohibition can be allowed since the
privilege to hold or conduct charity sweepstakes races, lotteries, or other similar activities is a
franchise granted by the legislature to the PCSO. It is a settled rule that "in all grants by the
government to individuals or corporations of rights, privileges and franchises, the words are to be
taken most strongly against the grantee .... [o]ne who claims a franchise or privilege in derogation of
the common rights of the public must prove his title thereto by a grant which is clearly and definitely
expressed, and he cannot enlarge it by equivocal or doubtful provisions or by probable inferences.
Whatever is not unequivocally granted is withheld. Nothing passes by mere implication." 59
In short then, by the exception explicitly made in paragraph B, Section 1 of its charter, the PCSO
cannot share its franchise with another by way of collaboration, association or joint venture. Neither
can it assign, transfer, or lease such franchise. It has been said that "the rights and privileges
conferred under a franchise may, without doubt, be assigned or transferred when the grant is to the
grantee and assigns, or is authorized by statute. On the other hand, the right of transfer or
assignment may be restricted by statute or the constitution, or be made subject to the approval of
the grantor or a governmental agency, such as a public utilities commission, exception that an
existing right of assignment cannot be impaired by subsequent legislation." 60
It may also be pointed out that the franchise granted to the PCSO to hold and conduct lotteries
allows it to hold and conduct a species of gambling. It is settled that "a statute which authorizes the
carrying on of a gambling activity or business should be strictly construed and every reasonable
doubt so resolved as to limit the powers and rights claimed under its authority." 61
Does the challenged Contract of Lease violate or contravene the exception in Section 1 of R.A. No.
1169, as amended by B.P. Blg. 42, which prohibits the PCSO from holding and conducting lotteries
"in collaboration, association or joint venture with" another?
We agree with the petitioners that it does, notwithstanding its denomination or designation as a
(Contract of Lease). We are neither convinced nor moved or fazed by the insistence and forceful
arguments of the PGMC that it does not because in reality it is only an independent contractor for a
piece of work, i.e., the building and maintenance of a lottery system to be used by the PCSO in the
operation of its lottery franchise. Whether the contract in question is one of lease or whether the
PGMC is merely an independent contractor should not be decided on the basis of the title or
designation of the contract but by the intent of the parties, which may be gathered from the
provisions of the contract itself. Animus hominis est anima scripti. The intention of the party is the
soul of the instrument. In order to give life or effect to an instrument, it is essential to look to the
intention of the individual who executed it. And, pursuant to Article 1371 of the Civil Code, "to
62
determine the intention of the contracting parties, their contemporaneous and subsequent acts shall
be principally considered." To put it more bluntly, no one should be deceived by the title or
designation of a contract.
A careful analysis and evaluation of the provisions of the contract and a consideration of the
contemporaneous acts of the PCSO and PGMC indubitably disclose that the contract is not in reality
a contract of lease under which the PGMC is merely an independent contractor for a piece of work,
but one where the statutorily proscribed collaboration or association, in the least, or joint venture, at
the most, exists between the contracting parties. Collaboration is defined as the acts of working
together in a joint project. Association means the act of a number of persons in uniting together for
63
some special purpose or business. Joint venture is defined as an association of persons or

64
companies jointly undertaking some commercial enterprise; generally all contribute assets and share
risks. It requires a community of interest in the performance of the subject matter, a right to direct
and govern the policy in connection therewith, and duty, which may be altered by agreement to
share both in profit and
losses.65
The contemporaneous acts of the PCSO and the PGMC reveal that the PCSO had neither funds of
its own nor the expertise to operate and manage an on-line lottery system, and that although it
wished to have the system, it would have it "at no expense or risks to the government." Because of
these serious constraints and unwillingness to bear expenses and assume risks, the PCSO was
candid enough to state in its RFP that it is seeking for "a suitable contractor which shall build, at its
own expense, all the facilities needed to operate and maintain" the system; exclusively bear "all
capital, operating expenses and expansion expenses and risks"; and submit "a comprehensive
nationwide lottery development plan . . . which will include the game, the marketing of the games,
and the logistics to introduce the game to all the cities and municipalities of the country within five (5)
years"; and that the operation of the on-line lottery system should be "at no expense or risk to the
government" — meaning itself, since it is a government-owned and controlled agency.
The facilities referred to means "all capital equipment, computers, terminals, software, nationwide
telecommunications network, ticket sales offices, furnishings and fixtures, printing costs, costs of
salaries and wages, advertising and promotions expenses, maintenance costs, expansion and
replacement costs, security and insurance, and all other related expenses needed to operate a
nationwide on-line lottery system."
In short, the only contribution the PCSO would have is its franchise or authority to operate the on-
line lottery system; with the rest, including the risks of the business, being borne by the proponent or
bidder. It could be for this reason that it warned that "the proponent must be able to stand to the acid
test of proving that it is an entity able to take on the role of responsible maintainer of the on-line
lottery system." The PCSO, however, makes it clear in its RFP that the proponent can propose a
period of the contract which shall not exceed fifteen years, during which time it is assured of a
"rental" which shall not exceed 12% of gross receipts. As admitted by the PGMC, upon learning of
the PCSO's decision, the Berjaya Group Berhad, with its affiliates, wanted to offer its services and
resources to the PCSO. Forthwith, it organized the PGMC as "a medium through which the technical
and management services required for the project would be offered and delivered to PCSO." 66
Undoubtedly, then, the Berjaya Group Berhad knew all along that in connection with an on-line
lottery system, the PCSO had nothing but its franchise, which it solemnly guaranteed it had in the
General Information of the RFP. Howsoever viewed then, from the very inception, the PCSO and
67
the PGMC mutually understood that any arrangement between them would necessarily leave to the
PGMC the technical, operations, and managementaspects of the on-line lottery system while the
PCSO would, primarily, provide the franchise. The words Gaming andManagement in the corporate
name of respondent Philippine Gaming Management Corporation could not have been conceived
just for euphemistic purposes. Of course, the RFP cannot substitute for the Contract of Lease which
was subsequently executed by the PCSO and the PGMC. Nevertheless, the Contract of Lease
incorporates their intention and understanding.
The so-called Contract of Lease is not, therefore, what it purports to be. Its denomination as such is
a crafty device, carefully conceived, to provide a built-in defense in the event that the agreement is
questioned as violative of the exception in Section 1 (B) of the PCSO's charter. The acuity or skill of
its draftsmen to accomplish that purpose easily manifests itself in the Contract of Lease. It is
outstanding for its careful and meticulous drafting designed to give an immediate impression that it is
a contract of lease. Yet, woven therein are provisions which negate its title and betray the true
intention of the parties to be in or to have a joint venture for a period of eight years in the operation
and maintenance of the on-line lottery system.
Consistent with the above observations on the RFP, the PCSO has only its franchise to offer, while
the PGMC represents and warrants that it has access to all managerial and technical expertise to
promptly and effectively carry out the terms of the contract. And, for a period of eight years, the
PGMC is under obligation to keep all the Facilitiesin safe condition and if necessary, upgrade,
replace, and improve them from time to time as new technology develops to make the on-line lottery
system more cost-effective and competitive; exclusively bear all costs and expenses relating to the
printing, manpower, salaries and wages, advertising and promotion, maintenance, expansion and
replacement, security and insurance, and all other related expenses needed to operate the on-line
lottery system; undertake a positive advertising and promotions campaign for both institutional and
product lines without engaging in negative advertising against other lessors; bear the salaries and
related costs of skilled and qualified personnel for administrative and technical operations; comply
with procedural and coordinating rulesissued by the PCSO; and to train PCSO and other local
personnel and to effect the transfer of technology and other expertise, such that at the end of the
term of the contract, the PCSO will be able to effectively take over the Facilities and efficiently
operate the on-line lottery system. The latter simply means that, indeed, the managers, technicians
or employees who shall operate the on-line lottery system are not managers, technicians or
employees of the PCSO, but of the PGMC and that it is only after the expiration of the contract that
the PCSO will operate the system. After eight years, the PCSO would automatically become the
owner of the Facilities without any other further consideration.
For these reasons, too, the PGMC has the initial prerogative to prepare the detailed plan of all
games and the marketing thereof, and determine the number of players, value of winnings, and the
logistics required to introduce the games, including the Master Games Plan. Of course, the PCSO
has the reserved authority to disapprove them. And, while the PCSO has the sole responsibility
68
over the appointment of dealers and retailers throughout the country, the PGMC may, nevertheless,
recommend for appointment dealers and retailers which shall be acted upon by the PCSO within
forty-eight hours and collect and retain, for its own account, a security deposit from dealers and
retailers in respect of equipment supplied by it.
This joint venture is further established by the following:
(a) Rent is defined in the lease contract as the amount to be paid to the PGMC as compensation for
the fulfillment of its obligations under the contract, including, but not limited to the lease of the
Facilities. However, this rent is not actually a fixed amount. Although it is stated to be 4.9% of gross
receipts from ticket sales, payable net of taxes required by law to be withheld, it may be drastically
reduced or, in extreme cases, nothing may be due or demandable at all because the PGMC binds
itself to "bear all risks if the revenue from the ticket sales, on an annualized basis, are insufficient to
pay the entire prize money." This risk-bearing provision is unusual in a lessor-lessee relationship, but
inherent in a joint venture.
(b) In the event of pre-termination of the contract by the PCSO, or its suspension of operation of the
on-line lottery system in breach of the contract and through no fault of the PGMC, the PCSO binds
itself "to promptly, and in any event not later than sixty (60) days, reimburse the Lessor the amount
of its total investment cost associated with the On-Line Lottery System, including but not limited to
the cost of the Facilities, and further compensate the LESSOR for loss of expected net profit after
tax, computed over the unexpired term of the lease." If the contract were indeed one of lease, the
payment of the expected profits or rentals for the unexpired portion of the term of the contract would
be enough.
(c) The PGMC cannot "directly or indirectly undertake any activity or business in competition with or
adverse to the On-Line Lottery System of PCSO unless it obtains the latter's prior written consent." If
the PGMC is engaged in the business of leasing equipment and technology for an on-line lottery
system, we fail to see any acceptable reason why it should allow a restriction on the pursuit of such
business.
(d) The PGMC shall provide the PCSO the audited Annual Report sent to its stockholders, and
within two years from the effectivity of the contract, cause itself to be listed in the local stock
exchange and offer at least 25% of its equity to the public. If the PGMC is merely a lessor, this
imposition is unreasonable and whimsical, and could only be tied up to the fact that the PGMC will
actually operate and manage the system; hence, increasing public participation in the corporation
would enhance public interest.
(e) The PGMC shall put up an Escrow Deposit of P300,000,000.00 pursuant to the requirements of
the RFP, which it may, at its option, maintain as its initial performance bond required to ensure its
faithful compliance with the terms of the contract.
(f) The PCSO shall designate the necessary personnel to monitor and audit the daily performance of
the on-line lottery system; and promulgate procedural and coordinating rules governing all activities
relating to the on-line lottery system. The first further confirms that it is the PGMC which will operate
the system and the PCSO may, for the protection of its interest, monitor and audit the daily
performance of the system. The second admits the coordinating and cooperative powers and
functions of the parties.
(g) The PCSO may validly terminate the contract if the PGMC becomes insolvent or bankrupt or is
unable to pay its debts, or if it stops or suspends or threatens to stop or suspend payment of all or a
material part of its debts.
All of the foregoing unmistakably confirm the indispensable role of the PGMC in the pursuit,
operation, conduct, and management of the On-Line Lottery System. They exhibit and demonstrate
the parties' indivisible community of interest in the conception, birth and growth of the on-line lottery,
and, above all, in its profits, with each having a right in the formulation and implementation of
policies related to the business and sharing, as well, in the losses — with the PGMC bearing the
greatest burden because of its assumption of expenses and risks, and the PCSO the least, because
of its confessed unwillingness to bear expenses and risks. In a manner of speaking, each is wed to
the other for better or for worse. In the final analysis, however, in the light of the PCSO's RFP and
the above highlighted provisions, as well as the "Hold Harmless Clause" of the Contract of Lease, it
is even safe to conclude that the actual lessor in this case is the PCSO and the subject matter
thereof is its franchise to hold and conduct lotteries since it is, in reality, the PGMC which operates
and manages the on-line lottery system for a period of eight years.
We thus declare that the challenged Contract of Lease violates the exception provided for in
paragraph B, Section 1 of R.A. No. 1169, as amended by B.P. Blg. 42, and is, therefore, invalid for
being contrary to law. This conclusion renders unnecessary further discussion on the other issues
raised by the petitioners.
WHEREFORE, the instant petition is hereby GRANTED and the challenged Contract of Lease
executed on 17 December 1993 by respondent Philippine Charity Sweepstakes Office (PCSO) and
respondent Philippine Gaming Management Corporation (PGMC) is hereby DECLARED contrary to
law and invalid.
The Temporary Restraining Order issued on 11 April 1994 is hereby MADE PERMANENT.
No pronouncement as to costs.
SO ORDERED.
Regalado, Romero and Bellosillo, JJ., concur.
Narvasa, C.J., took no part.
Separate Opinions
CRUZ, J., concurring:
I am happy to join Mr. Justice Hilario G. Davide, Jr. in his excellent ponencia. I will add the following
personal observations only for emphasis as it is not necessary to supplement his thorough
exposition.
The respondents take great pains to cite specific provisions of the contract to show that it is PCSO
that is actually operating the on-line lottery, but they have not succeeded in disproving the obvious,
to wit, that the document was intentionally so crafted to make it appear that the operation is not a
joint undertaking of PCSO and PGMC but a mere lease of services. It is a clever instrument, to be
sure, but we are, gratifyingly, not deluded. Lawyers have a special talent to disguise the real
intention of the parties in a contract to make it come ostensibly within the provisions of a law
although the real if furtive purpose is to violate it. That talent has been exercised in this case, but not
convincingly enough.
It should be quite clear, from the adroit way the contract has been drafted, that the primary objective
was to avoid the conclusion that PCSO will be operating a lottery "in association, collaboration or
joint venture with any person, association, company or entity," which is prohibited by Section 1 of
Rep. Act No. 1169 as amended by B.P. Blg. 42. Citing the self-serving provisions of the contract, the
respondents would have us believe that the contract is perfectly lawful because all it does is provide
for the lease to PCSO of the technical know-how and equipment of PGMC, with PCSO acting as "the
sole and individual operator" of the lottery. I am glad we are not succumbing to this sophistry.
Despite the artfulness of the contract (authorship of which was pointedly denied by both counsel for
the government and the private respondent during the oral argument on this case), a careful study
will reveal telling stipulations that it is PGMC and not PCSO that will actually be operating the lottery.
Thus, it is provided inter alia that PGMC shall furnish all capital equipment and other facilities
needed for the operation; bear all expenses relating to the operation, including those for the salaries
and wages of the administrative and technical personnel; undertake a positive advertising and
promotion campaign for public support of the lottery; establish a radio communications network
throughout the country as part of the operation; and assume all risks if the revenues from ticket sales
are insufficient to pay the entire prize money. Most significantly, to show that it is only after eight
years from the effectivity of the contract that PCSO will actually operate the lottery, Par. 6.7 of the
agreement provides that PGMC shall:
6.7. Upon effectivity of this Contract, commence the training of PCSO and other local
personnel and the transfer of technology and expertise, such that at the end of the
term of this Contract, PCSO will be able to effectively take-over the Facilities and
efficiently operate the On-Line Lottery System. (Emphasis supplied).
In the meantime, that is to say during the entire 8-year term of the contract, it will be PGMC that will
be operating the lottery. Only "at the end of the term of this Contract" will PCSO "be able to
effectively take-over the Facilities and efficiently operate the On-Line Lottery System."
Even on the assumption that it is PCSO that will be operating the lottery at the very start, the
authority granted to PGMC by the agreement will readily show that PCSO will not be acting alone, as
the respondents pretend. In fact, it cannot. PGMC is an indispensable co-worker because it has the
equipment and the technology and the management skills that PCSO does not have at this time for
the operation of the lottery, PCSO cannot deny that it needs the assistance of PGMC for this
purpose, which was its reason for entering into the contract in the first place.
And when PCSO does avail itself of such assistance, how will it be operating the lottery?
Undoubtedly, it will be doing so "in collaboration, association or joint venture" with PGMC, which, let
it be added, will not be serving as a mere "hired help" of PCSO subject to its control. PGMC will be
functioning independently in the discharge of its own assigned role as stipulated in detail under the
contract. PGMC is plainly a partner of PCSO in violation of law, no matter how PGMC's assistance is
called or the contract is denominated.
Even if it be conceded that the assistance partakes of a lease of services, the undeniable fact is that
PCSO would still be collaborating or cooperating with PGMC in the operation of the lottery. What is
even worse is that PCSO and PGMC may be actually engaged in a joint venture, considering that
PGMC does not collect the usual fixed rentals due an ordinary lessor but is entitled to a special
"Rental Fee," as the contract calls it, "equal to four point nine percent (4.9%) of gross receipts from
ticket sales."
The flexibility of this amount is significant. As may be expected, it will induce in PGMC an active
interest and participation in the success of PCSO that is not expected of an ordinary detached lessor
who gets to be paid his rentals — not a rental fee — whether the lessee's business prospers or not.
PGMC's share in the operation depends on its own performance and the effectiveness of its
collaboration with PCSO. Although the contract pretends otherwise, PGMC is a co-investor with
PCSO in what is practically, if not in a strictly legal sense, a joint venture.
Concerning the doctrine of locus standi, I cannot agree that out of the sixty million Filipinos affected
by the proposed lottery, not a single solitary citizen can question the agreement. Locus standi is not
such an absolute rule that it cannot admit of exceptions under certain conditions or circumstances
like those attending this transaction. As I remarked in my dissent in Guazon v. De Villa, 181 SCRA
623, "It is not only the owner of the burning house who has the right to call the firemen. Every one
has the right and responsibility to prevent the fire from spreading even if he lives in the other block."
What is especially galling is that the transaction in question would foist upon our people an
essentially immoral activity through the instrumentality of a foreign corporation, which naturally does
not have the same concern for our interests as we ourselves have. I am distressed that foreigners
should be allowed to exploit the weakness of some of us for instant gain without work, and with the
active collaboration and encouragement of our own government at that.
Feliciano, J., concurring
I agree with the conclusions reached by my distinguished brother in the Court Davide, Jr., J., both in
respect of the question of locus standi and in respect of the merits of this case, that is, the issues of
legality and constitutionality of the Contract of Lease entered into between the Philippine Charity
Sweepstakes Office (PCSO) and the Philippine Gaming Management Corporation (PGMC).
In this separate opinion, I propose to address only the question of locus standi. It is with some
hesitation that I do so, considering the extensive separate opinions on this question written by my
learned brothers Melo, Puno and Vitug, JJ. I agree with the great deal of what my brothers Melo,
Puno and Vitug say about locus standi in their separate opinions and there is no need to go over the
ground that I share with them. Because, however, I reach a different conclusion in respect of the
presence or absence of locus standi on the part of the petitioners in the case before the Court, there
is an internal need (a need internal to myself) to articulate the considerations which led me to that
conclusion.
There is no dispute that the doctrine of locus standi reflects an important constitutional principle, that
is, the principle of separation of powers which, among other things, mandates that each of the great
Departments of government is responsible for performance of its constitutionally allotted tasks.
Insofar as the Judicial Department is concerned, the exercise of judicial power and carrying out of
judicial functions commonly take place within the context of actual cases or controversies. This, in
turn, reflects the basic notion of judicial power as the power to resolve actual disputes and of the
traditional business of courts as the hearing and deciding of specific controversies brought before
them. In our own jurisdiction, and at least since the turn of the present century, judicial power has
always included the power of judicial review, understood as the authority of courts (more specifically
the Supreme Court) to assay contested legislative and executive acts in terms of their
constitutionality or legality. Thus, the general proposition has been that a petitioner who assails the
legal or constitutional quality of an executive or legislative act must be able to show that he
has locus standi. Otherwise, the petition becomes vulnerable to prompt dismissal by the court.
There is, upon the other hand, little substantive dispute that the possession of locus standi is not, in
1
each and every case, a rigid and absolute requirement for access to the courts. Certainly that is the
case where great issues of public law are at stake, issues which cannot be approached in the same
way that a court approaches a suit for the collection of a sum of money or a complaint for the
recovery of possession of a particular piece of land. The broad question is when, or in what types of
cases, the court should insist on a clear showing of locus standiunderstood as a direct and personal
interest in the subject matter of the case at bar, and when the court may or should relax that
apparently stringent requirement and proceed to deal with the legal or constitutional issues at stake
in a particular case.
I submit, with respect, that it is not enough for the Court simply to invoke "public interest" or even
"paramount considerations of national interest," and to say that the specific requirements of such
public interest can only be ascertained on a "case to case" basis. For one thing, such an approach is
not intellectually satisfying. For another, such an answer appears to come too close to saying
that locus standi exists whenever at least a majority of the Members of this Court participating in a
case feel that an appropriate case for judicial intervention has arisen.
This is not, however, to say that there is somewhere an over-arching juridical principle or theory,
waiting to be discovered, that permits a ready answer to the question of when, or in what types of
cases, the need to show locus standi may be relaxed in greater or lesser degree. To my knowledge,
no satisfactory principle or theory has been discovered and none has been crafted, whether in our
jurisdiction or in the United States. I have neither the competence nor the opportunity to try to craft
2
such principle or formula. It might, however, be useful to attempt to indicate the considerations of
principle which, in the present case, appear to me to require an affirmative answer to the question of
whether or not petitioners are properly regarded as imbued with the standing necessary to bring and
maintain the present petition.
Firstly, the character of the funds or other assets involved in the case is of major importance. In the
case presently before the Court, the funds involved are clearly public in nature. The funds to be
generated by the proposed lottery are to be raised from the population at large. Should the proposed
operation be as successful as its proponents project, those funds will come from well-nigh every
town and barrio of Luzon. The funds here involved are public in another very real sense: they will
belong to the PCSO, a government owned or controlled corporation and an instrumentality of the
government and are destined for utilization in social development projects which, at least in principle,
are designed to benefit the general public. My learned brothers Melo, Puno and Vitug, JJ. concede
that taxpayers' suits have been recognized as an exception to the traditional requirement of
recognized as an exception to the traditional requirement of locus standi. They insist, however, that
because the funds here involved will not have been generated by the exercise of the taxing power of
the Government, the present petition cannot be regarded as a taxpayer's suit and therefore, must be
dismissed by the Court. It is my respectful submission that that constitutes much too narrow a
conception of the taxpayer's suit and of the public policy that it embodies. It is also to overlook the
fact that tax monies, strictly so called, constitute only one (1) of the major categories of funds today
raised and used for public purposes. It is widely known that the principal sources of funding for
government operations today include, not just taxes and customs duties, but also revenues derived
from activities of the Philippine Amusement Gaming Corporation (PAGCOR), as well as the
proceeds of privatization of government owned or controlled corporations and other government
owned assets. The interest of a private citizen in seeing to it that public funds, from whatever source
they may have been derived, go only to the uses directed and permitted by law is as real and
personal and substantial as the interest of a private taxpayer in seeing to it that tax monies are not
intercepted on their way to the public treasury or otherwise diverted from uses prescribed or allowed
by law. It is also pertinent to note that the more successful the government is in raising revenues by
non-traditional methods such as PAGCOR operations and privatization measures, the lesser will be
the pressure upon the traditional sources of public revenues, i.e., the pocket books of individual
taxpayers and importers.
A second factor of high relevance is the presence of a clear case of disregard of a constitutional or
statutory prohibition by the public respondent agency or instrumentality of the government. A
showing that a constitutional or legal provision is patently being disregarded by the agency or
instrumentality whose act is being assailed, can scarcely be disregarded by court. The concept
of locus standi — which is part and parcel of the broader notion of ripeness of the case — "does not
operate independently and is not alone decisive. . . . [I]t is in substantial part a function of a judge's
estimate of the merits of the constitutional [or legal] issue." The notion of locus standi and the
3
judge's conclusions about the merits of the case, in other words, interact with each other. Where the
Court perceives a serious issue of violation of some constitutional or statutory limitation, it will be
much less difficult for the Court to find locus standi in the petitioner and to confront the legal or
constitutional issue. In the present case, the majority of the Court considers that a very substantial
showing has been made that the Contract of Lease between the PCSO and the PGMC flies in the
face of legal limitations.
A third consideration of importance in the present case is the lack of any other party with a more
direct and specific interest in raising the questions here being raised. Though a public bidding was
held, no losing or dissatisfied bidder has come before the Court. The Office of the Ombudsman has
not, to the knowledge of the Court, raised questions about the legality or constitutionality of the
Contract of Lease here involved. The National Government itself, through the Office of the Solicitor
General, is defending the PCSO Contract (though it had not participated in the drafting thereof). In a
situation like that here obtaining, the submission may be made that the institution, so well known in
corporation law and practice, of the corporate stockholders' derivative suit furnishes an appropriate
analogy and that on the basis of such an analogy, a taxpayer's derivative suit should be recognized
as available.
The wide range of impact of the Contract of Lease here assailed and of its implementation,
constitutes still another consideration of significance. In the case at bar, the agreement if
implemented will be practically nationwide in its scope and reach (the PCSO-PGMC Contract is
limited in its application to the Island of Luzon; but if the PCSO Contracts with the other two [2]
private "gaming management" corporations in respect of the Visayas and Mindanao are substantially
similar to PCSO's Contract with PGMC, then the Contract before us may be said to be national
indeed in its implications and consequences). Necessarily, the amounts of money expected to be
raised by the proposed activities of the PCSO and PGMC will be very substantial, probably in the
hundreds of millions of pesos. It is not easy to conceive of a contract with greater and more far-
reaching consequences, literally speaking, for the country than the Contract of Lease here involved.
Thus, the subject matter of the petition is not something that the Court may casually pass over as
unimportant and as not warranting the expenditure of significant judicial resources.
In the examination of the various features of this case, the above considerations have appeared to
me to be important and as pressing for acceptance and exercise of jurisdiction on the part of this
Court. It is with these considerations in mind that I vote to grant due course to the Petition and to
hold that the Contract of Lease between the PCSO and PGMC in its present form and content, and
given the present state of the law, is fatally defective.
My views against gambling are a matter of judicial record. In Basco v. PAGCOR, (G.R. No. 91649,
14 May 1991, 197 SCRA 52) I expressed these views in a separate opinion where I was joined by
that outstanding lady jurist, Mme. Justice A. Melencio-Herrera whose incisive approach to legal
problems is today missed in this Court. I reproduce here those views because they are highly
persuasive to the conclusions I reach in the present controversy:
I concur in the result of the learned decision penned by my brother Mr. Justice Paras.
This means that I agree with the decision insofar as it holds that the prohibition,
control, and regulation of the entire activity known as gambling properly pertain to
"state policy." It is, therefore, the political departments of government, namely, the
legislative and the executive that should decide on what government should do in the
entire area of gambling, and assume full responsibility to the people for such policy.
The courts, as the decision states, cannot inquire into the wisdom, morality or
expediency of policies adopted by the political departments of government in areas
which fall within their authority, except only when such policies pose a clear and
present danger to the life, liberty or property of the individual. This case does not
involve such a factual situation.
However, I hasten to make of record that I do not subscribe to gambling in any form.
It demeans the human personality, destroys self-confidence and eviscerates one's
self-respect, which in the long run will corrode whatever is left of the Filipino moral
character. Gambling has wrecked and will continue to wreck families and homes; it is
an antithesis to individual reliance and reliability as well as personal industry which
are the touchstones of real economic progress and national development.
Gambling is reprehensible whether maintained by government or privatized. The

revenues realized by the government out of "legalized" gambling will, in the long run,
be more than offset and negated by the irreparable damage to the people's moral
values.
Also, the moral standing of the government in its repeated avowals against "illegal
gambling" is fatally flawed and becomes untenable when it itself engages in the very
activity it seeks to eradicate.
One can go through the Court's decision today and mentally replace the activity
referred to therein as gambling, which is legal only because it is authorized by law
and run by the government, with the activity known as prostitution. Would prostitution
be any less reprehensible were it to be authorized by law, franchised, and
"regulated" by the government, in return for the substantial revenues it would yield
the government to carry out its laudable projects, such as infrastructure and social
amelioration? The question, I believe, answers itself. I submit that the sooner the
legislative department outlaws all forms of gambling, as a fundamental state policy,
and the sooner the executive implements such policy, the better it will be for the
nation.
We presently have the sweepstakes lotteries; we already have the PAGCOR's gambling casinos; the
Filipino people will soon, if plans do not miscarry, be initiated into an even more sophisticated and
encompassing nationwide gambling network known as the "on-line hi-tech lotto system." To be sure,
it is not wealth producing; it is not export oriented. It will draw from existing wealth in the hands of
Filipinos and transfer it into the coffers of the PCSO and its foreign partners at a price of further
debasement of the moral standards of the Filipino people, the bulk of whom are barely subsisting
below the poverty line.
1. It is said that petitioners have no locus standi to bring this suit even as they
1
challenge the legality and constitutionality of a contract of lease between the PCSO,
a government-owned corporation and the PGMC, a private corporation with
substantial (if not controlling) foreign composition and content. Such contract of lease
contains the terms and conditions under which an "on-line hi-tech lotto system" will
operate in the country.
As the ponente of the extended, unsigned en banc resolution in Valmonte v. PCSO, (G.R. No.

78716 and G.R. No. 79084, 22 September 1987), I would be the last to downgrade the rule, therein
reiterated, that in order to maintain a suit challenging the constitutionality and/or legality of a statute,
order or regulation or assailing a particular governmental action as done with grave abuse of
discretion or with lack of jurisdiction, the petitioner must show that he has a clear personal or legal
right that would be violated with the enforcement of the challenged statute, order or regulation or the
implementation of the questioned governmental action. But, in my considered view, this rule maybe
(and should be) relaxed when the issue involved or raised in the petition is of such paramount
national interest and importance as to dwarf the above procedural rule into a barren technicality. As
a unanimous Court en banc aptly put it in De Guia vs. COMELEC, G.R. No. 104712, 6 May 1992,
208 SCRA 420.
Before addressing the crux of the controversy, the Court observes that petitioner
does not allege that he is running for re-election, much less, that he is prejudiced by
the election, by district, in Parañaque. As such, he does not appear to have locus
standi, a standing in law, a personal or substantial interest. (Sanidad vs. COMELEC,
G.R. No. L-4640, October 12, 1976. 73 SCRA 333; Municipality of Malabang vs.
Benito, G.R. No. L-28113, March 28, 1969, 27 SCRA 533) He does not also allege
any legal right that has been violated by respondent. If for this alone, petitioner does
not appear to have any cause of action.
However, considering the importance of the issue involved, concerning as it does the
political exercise of qualified voters affected by the apportionment, and petitioner
alleging abuse of discretion and violation of the Constitution by respondent, We
resolved to brush aside the question of procedural infirmity, even as We perceive the
petition to be one of declaratory relief. We so held similarly through Mr. Justice
Edgardo L. Paras in Osmeña vs. Commission on Elections.
I view the present case as falling within the De Guia case doctrine. For, when the contract of lease in
question seeks to establish and operate a nationwide gambling network with substantial if not
controlling foreign participation, then the issue is of paramount national interest and importance as to
justify and warrant a relaxation of the above-mentioned procedural rule on locus standi.
2. The charter of the PCSO — Republic Act No. 1169 as amended by BP No. 42 —
insofar as relevant, reads:
Sec. 1. The Philippine Charity Sweepstakes Office. — The Philippine Charity

Sweepstakes Office, hereinafter designated the Office, shall be the principal
government agency for raising and providing for funds for health programs, medical
assistance and services and charities of national character, and as such shall have
the general powers conferred in section thirteen of Act Numbered One Thousand
Four Hundred Fifty-Nine, as amended, and shall have the authority:
A. To hold and conduct charity sweepstakes races, lotteries and other similar
activities, in such frequency and manner, as shall be determined, and subject to such
rules and regulations as shall be promulgated by the Board of Directors.
B. Subject to the approval of the Minister of Human Settlements, to engage in health

and welfare-related investments, programs, projects and activities which may be
profit-oriented, by itself or in collaboration, association or joint venture with any
person, association, company or entity, whether domestic or foreign, except for the
activities mentioned in the preceding paragraph (A), for the purpose of providing for
permanent and continuing sources of funds for health programs, including the
expansion of existing ones, medical assistance and services, and/or charitable
grants: Provided, That such investments will not compete with the private sector in
areas where investments are adequate as may be determined by the National
Economic and Development Authority.
It is at once clear from the foregoing legal provisions that, while the PCSO charter allows the PCSO
to itself engage in lotteries, it does not however permit the PCSO to undertake or engage in lotteries
in "collaboration, association or joint venture" with others. The palpable reason for this prohibition is,
that PCSO should not and cannot be made a vehicle for an otherwise prohibited foreign or domestic
entity to engage in lotteries (gambling activities) in the Philippines.
The core question then is whether the lease contract between PCSO and PGMC is a device
whereby PCSO will engage in lottery in collaboration, association or joint venture with another, i.e.
PGMC. I need not go here into the details and different specific features of the contract to show that
it is a joint venture between PCSO and PGMC. That has been taken care of in the opinion of Mr.
Justice Davide to which I fully subscribe.
On a slightly different plane and, perhaps simplified, I consider the agreement or arrangement
between the PCSO and PGMC a joint venture because each party to the contract contributes its
share in the enterprise or project. PGMC contributes its facilities, equipment and know-how
(expertise). PCSO contributes (aside from its charter) the market, directly or through dealers — and
this to me is most important — in the totality or mass of the Filipinogambling elements who will invest
in lotto tickets. PGMC will get its 4.9% of gross receipts (with assumption of certain risks in the
course of lotto operations); the residue of the whole exercise will go to PCSO. To any person with a
minimum of business know-how, this is a joint venture between PCSO and PGMC, plain and simple.
But assuming ex gratia argumenti that such arrangement between PCSO and PGMC is not a joint
venture between the two of them to install and operate an "on-line hi-tech lotto system" in the
country, it can hardly be denied that it is, at the very least, an association or collaboration between
PCSO and PGMC. For one cannot do without the other in the installation, operation and, most
importantly, marketing of the entire enterprise or project in this country.
Indeed, the contract of lease in question is a clear violation of Republic Act No. 1169 as amended by
BP No. 42 (the PCSO charter).
Having arrived at the conclusion that the contract of lease in question between the PCSO and
PGMC is illegal and, therefore, invalid, I find it unnecessary to dwell on the other issues raised in the
pleadings and arguments of the parties.
I, therefore, vote to give DUE COURSE to the petition and to declare the contract of lease in
question between PCSO and PGMC, for the reasons aforestated, of no force and effect.
MELO, J., dissenting:
I submit that the petition before the Court deserves no less than outright dismissal for the reason that
petitioners, as concerned citizens and as taxpayers and as members of Congress, do not possess
the necessary legal standing to assail the validity of the contract of lease entered into by the
Philippine Charity Sweepstakes Office and the Philippine Gaming Management Corporation relative
to the establishment and operation of an "On-line Hi-Tech Lottery System" in the country.
As announced in Lamb vs. Phipps (22 Phil. [1912], 559), "[J]udicial power in its nature, is the power
to hear and decide causes pending between parties who have the right to sue and be sued in the
courts of law and equity." Necessarily, this implies that a party must show a personal stake in the
outcome of the controversy or an injury to himself that can be addressed by a favorable decision so
as to warrant his invocation of the court's jurisdiction and to justify the court's remedial powers in his
behalf (Warth vs. Seldin, 422 U.S. 490; Guzman vs. Marrero, 180 U.S. 81; McMicken vs. United
States, 97 U.S. 204). Here, we have yet to see any of petitioners acquiring a personal stake in the
outcome of the controversy or being placed in a situation whereby injury may be sustained if the
contract of lease in question is implemented. It may be that the contract has somehow evoked public
interest which petitioners claim to represent. But the alleged public interest which they pretend to
represent is not only broad and encompassing but also strikingly and veritably indeterminate that
one cannot truly say whether a handful of the public, like herein petitioners, may lay a valid claim of
representation in behalf of the millions of citizens spread all over the land who may have just as
many varied reactions relative to the contract in question.
Any effort to infuse personality on petitioners by considering the present case as a "taxpayer's suit"
could not cure the lack of locus standi on the part of petitioners. As understood in this jurisdiction, a
"taxpayer's suit" refers to a case where the act complained of directly involves the illegal
disbursement of public funds derived from taxation (Pascual vs. Secretary of Public Works, 110 Phil.
[1960] 331; Maceda vs. Macaraig, 197 SCRA [1991]; Lozada vs. COMELEC, 120 SCRA [1983] 337;
Dumlao vs. COMELEC, 95 SCRA [1980] 392; Gonzales vs. Marcos, 65 SCRA [1975] 624). It cannot
be overstressed that no public fund raised by taxation is involved in this case. In fact, it is even
doubtful if the rentals which the PCSO will pay to the lessor for its operation of the lottery system
may be regarded as "public fund". The PCSO is not a revenue- collecting arm of the government.
Income or money realized by it from its operations will not and need not be turned over to the
National Treasury. Rather, this will constitute corporate funds which will remain with the corporation
to finance its various activities as authorized in its charter. And if ever some semblance of "public
character" may be said to attach to its earnings, it is simply because PCSO is a government-owned
or controlled entity and not a purely private enterprise.
It must be conceded though that a "taxpayer's suit" had been allowed in a number of instances in
this jurisdiction. For sure, after the trial was blazed by Pascual vs. Secretary of Public Works, supra,
several more followed. It is to be noted, however, that in those occasions where this Court allowed
such a suit, the case invariably involved either the constitutionality of a statute or the legality of the
disbursement of public funds through the enforcement of what was perceived to be an invalid or
unconstitutional statute or legislation (Pascual, supra; Philippine Constitution Association, Inc. vs.
Jimenez, 15 SCRA [1965] 479; Philippine Constitution Association, Inc. vs. Mathay, 18 SCRA [1966]
300; Tolentino vs. COMELEC, 41 SCRA [1971] 702; Pelaez vs. Auditor General, 15 SCRA [1965]
569; Iloilo Palay and Corn Planters Association vs. Feliciano, 13 SCRA [1965] 377).
The case before us is not a challenge to the validity of a statute or an attempt to restrain expenditure
of public funds pursuant to an alleged invalid congressional enactment. What petitioners ask us to
do is to nullify a simple contract of lease entered into by a government-owned corporation with a
private entity. That contract, as earlier pointed out, does not involve the disbursement of public funds
but of strictly corporate money. If every taxpayer, claiming to have interest in the contract, no matter
how remote, could come to this Court and seek nullification of said contract, the day may come
when the activities of government corporate entities will ground to a standstill on account of nuisance
suits filed against them by persons whose supposed interest in the contract is as remote and as
obscure as the interest of any man in the street. The dangers attendant thereto are not hard to
discern and this Court must not allow them to come to pass.
One final observation must be emphasized. When the petition at bench was filed, the Court decided
to hear the case on oral argument on the initial perception that a constitutional issue could be
involved. However, it now appears that no question of constitutional dimension is at stake as indeed
the majority barely touches on such an issue, concentrating as it does on its interpretation of the
contract between the Philippine Charity Sweepstakes Office and the Philippine Gaming
Management Corporation.
I, therefore, vote to dismiss the petition.
At the outset, let me state that my religious faith and family upbringing compel me to regard
gambling, regardless of its garb, with hostile eyes. Such antagonism tempts me to view the case at
bench as a struggle between good and evil, a fight between the forces of light against the forces of
darkness. I will not, however, yield to that temptation for we are not judges of the Old Testament
type who were not only arbiters of law but were also high priests of morality.
I will therefore strictly confine the peregrinations of my mind to the legal issues for resolution: (1)
whether or not the petitioners have the Locus standi to file the petition at bench; and (2) assuming
their locus standi, whether or not the Contract of Lease between PCSO and PGMC is null and void
considering: (a) section 1 of R.A. No. 1169, as amended by B.P. Blg. 42 (Charter of PCSO) which
prohibits PCSO from holding and conducting lotteries "in collaboration, association or joint venture
with any person, association, company or entity"; (b) Act No. 3836 which requires a congressional
franchise before any person or entity can establish and operate a telecommunication system; (c)
section 11, Art. XII of the Constitution, which requires that for a corporation to operate a public utility,
at least 60% of its capital must be owned by Filipino citizens; and (d) R.A. No. 7042, otherwise
known as the "Foreign Investments Act", which includes all forms of gambling in its "negative list."
While the legal issues abound, I deferentially submit that the threshold issue is the locus standi, or
standing to sue, of petitioners. The petition describes petitioner Kilosbayan, Inc., as a non-stock
corporation composed of "civic spirited citizens, pastors, priests, nuns, and lay leaders who are
committed to the cause of truth, justice, and national renewal." Petitioners Jovito R. Salonga, Cirilo
1
A. Rigos, Ernie Camba, Emilio C. Capulong, Jr., Jose Abcede, Christine Tan, Felipe L. Gozon,
Rafael G. Fernando, Raoul V. Victorino, Jose Cunanan, and Quintin S. Doromal joined the petition in
their capacity as trustees of Kilosbayan, Inc., and as taxpayers and concerned citizens. Petitioners
2
Freddie Webb and Wigberto Tañada joined the petition as senators, taxpayers and concerned
citizens. Petitioner Joker P. Arroyo joined the petition as a member of the House of Representative,
3
a taxpayer and a concerned citizen. 4
With due respect to the majority opinion, I wish to focus on the interstices of locus standi, a concept
described by Prof. Paul Freund as "among the most amorphous in the entire domain of public law."
The requirement of standing to sue inheres from the definition of judicial power. It is not merely a
technical rule of procedure which we are at liberty to disregard. Section 1, Article VIII of the
Constitution provides:
xxx xxx xxx
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government.
(Italics supplied)
The phrase "actual controversies involving rights which are legally demandable and enforceable"
has acquired a cultivated meaning given by courts. It spells out the requirements that must be
satisfied before one can come to court to litigate a constitutional issue. Our distinguished colleague,
Mr. Justice Isagani A. Cruz, gives a shorthand summary of these requirements when he states that
no constitutional question will be heard and decided by courts unless there is a showing of the
following: . . . (1) there must be an actual case or controversy; (2) the question of constitutionality
must be raised by the proper party; (3) the constitutional question must be raised at the earliest
possible opportunity; and (4) the decision of the constitutional question must be necessary to the
determination of the case itself.
5
The complexion of the rule on locus standi has been undergoing a change. Mr. Justice Cruz has
observed the continuing relaxation of the rule on
standing, thus:
6
xxx xxx xxx
A proper party is one who has sustained or is in immediate danger of sustaining an

injury as a result of the act complained of. Until and unless such actual or potential
injury is established, the complainant cannot have the legal personality to raise the
constitutional question.
In Tileson v. Ullmann, a physician questioned the constitutionality of a law prohibiting

the use of contraceptives, upon the ground that it might prove dangerous to the life or
health of some of his patients whose physical condition would not enable them to
bear the rigors of childbirth. The court dismissed the challenge, holding that the
patients of the physician and not the physician himself were the proper parties.
In Cuyegkeng v. Cruz, the petitioner challenged in a quo warranto proceeding the

title of the respondent who, he claimed, had been appointed to the board of medical
examiners in violation of the provisions of the Medical Act of 1959. The Supreme
Court dismissed the petition, holding that Cuyegkeng had not made a claim to the
position held by Cruz and therefore could not be regarded as a proper party who had
sustained an injury as a result of the questioned act.
In People v. Vera, it was held that the Government of the Philippines was a proper
party to challenge the constitutionality of the Probation Act because, more than any
other, it was the government itself that should be concerned over the validity of its
own laws.
In Ex Parte Levitt, the petitioner, an American taxpayer and member of the bar, filed
a motion for leave to question the qualifications of Justice Black who, he averred,
had been appointed to the U.S. Supreme Court in violation of the Constitution of the
United States. The Court dismissed the petition, holding that Levitt was not a proper
party since he was not claiming the position held by Justice Black.
The rule before was that an ordinary taxpayer did not have the proper party
personality to question the legality of an appropriation law since his interest in the
sum appropriated was not substantial enough. Thus, in Custodio v. Senate
President, a challenge by an ordinary taxpayer to the validity of a law granting back
pay to government officials, including members of Congress, during the period
corresponding to the Japanese Occupation was dismissed as having been
commenced by one who was not a proper party.
Since the first Emergency Powers Cases, however, the rule has been changed and it
is now permissible for an ordinary taxpayer, or a group of taxpayers, to raise the
question of the validity of an appropriation law. As the Supreme Court then put it.
"The transcendental importance to the public of these cases demands that they be
settled promptly and definitely, brushing aside, if we must, technicalities of
procedure."
In Tolentino v. Commission on Elections, it was held that a senator had the proper
party personality to seek the prohibition of a plebiscite for the ratification of a
proposed constitutional amendment. In PHILCONSA v. Jimenez, an organization of
taxpayers and citizens was held to be a proper party to question the constitutionality
of a law providing for special retirement benefits for members of the legislature.
In Sanidad v. Commission on Elections, the Supreme Court upheld the petitioners as

proper parties, thus —
As a preliminary resolution, We rule that the petitioners in L-44640

(Pablo C. Sanidad and Pablito V. Sanidad) possess locus standi to
challenge the constitutional premise of Presidential Decree Nos. 991,
1031, and 1033. It is now an ancient rule that the valid source of a
statute — Presidential Decrees are of such nature — may be
contested by one who will sustain a direct injury as a result of its
enforcement. At the instance of taxpayers, laws providing for the
disbursement of public funds may be enjoined, upon the theory that
the expenditure of public funds by an officer of the State for the
purpose of executing an unconstitutional act constitutes a
misapplication of such funds. The breadth of Presidential Decree No.
991 carries an appropriation of Five Million Pesos for the effective
implementation of its purposes. Presidential Decree No. 1031
appropriates the sum of Eight Million Pesos to carry out its provisions.
The interest of the aforenamed petitioners as taxpayers in the lawful
expenditure of these amounts of public money sufficiently clothes
them with that personality to litigate the validity of the Decrees
appropriating said funds. Moreover, as regard taxpayer's suits, this
Court enjoys that open discretion to entertain the same or not. For
the present case, We deem it sound to exercise that discretion
affirmatively so that the authority upon which the disputed Decrees
are predicated may be inquired into.
In Lozada v. Commission on Elections, however, the petitioners were held without

legal standing to demand the filling of vacancies in the legislature because they had
only "a generalized interest' shared with the rest of the citizenry."
Last July 30, 1993, we further relaxed the rule on standing in Oposa, et al. v. Hon. Fulgencio S.
Factoran, Jr., where we recognized the locus standi of minors representing themselves as well as
7
generations unborn to protect their constitutional right to a balanced and healthful ecology.
I am perfectly at peace with the drift of our decisions liberalizing the rule on locus standi. The once
stubborn disinclination to decide constitutional issues due to lack of locus standi is incompatible with
the expansion of judicial power mandated in section 1 of Article VIII of the Constitution, i.e., "to
determine whether or not there has been a grave abuse of discretion, amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government." As we held thru the
ground breaking ponencia of Mr. Justice Cruz in Daza v. Singson, this provision no longer
8
precludes the Court from resolving political questions in proper cases. But even perusing this
provision as a constitutional warrant for the court to enter the once forbidden political thicket, it is
clear that the requirement of locus standi has not been jettisoned by the Constitution for it still
commands courts in no uncertain terms to settle only "actual controversies involving rights which are
legally demandable and enforceable." Stated otherwise, courts are neither free to decide all kinds of
cases dumped into their laps nor are they free to open their doors to all parties or entities claiming a
grievance. The rationale for this constitutional requirement of locus standi is by no means trifle. It is
intended "to assure a vigorous adversary presentation of the case, and, perhaps more importantly to
warrant the judiciary's overruling the determination of a coordinate, democratically elected organ of
government." It thus goes to the very essence of representative democracies. As Mr. Justice Powell
9
carefully explained in U.S. v.

Richardson, viz:
10
Relaxation of standing requirements is directly related to the expansion of judicial

power. It seems to me inescapable that allowing unrestricted taxpayer or citizen
standing would significantly alter the allocation of power at the national level, with a
shift away from a democratic form of government. I also believe that repeated and
essentially head-on confrontations between the life-tenured branch and the
representative branches of government will not, in the long run, be beneficial to
either. The public confidence essential to the former and the vitality critical to the
latter may well erode if we do not exercise self- restraint in the utilization of our power
to negative the actions of the other branches. We should be ever mindful of the
contradictions that would arise if a democracy were to permit at large oversight of the
elected branches of government by a non-representative, and in large measure
insulated, judicial branch. Moreover, the argument that the Court should allow
unrestricted taxpayer or citizen standing underestimates the ability of the
representative branches of the Federal Government to respond to the citizen
pressure that has been responsible in large measure for the current drift toward
expanded standing. Indeed, taxpayer or citizen advocacy, given its potentially broad
base, is precisely the type of leverage that in a democracy ought to be employed
against the branches that were intended to be responsive to public attitudes about
the appropriate operation of government. "We must as judges recall that, as Mr.
Justice Holmes wisely observed, the other branches of Government are ultimate
guardians of the liberties and welfare of the people in quite as great a degree as the
courts."
Unrestrained standing in federal taxpayer or citizen suits would create a remarkably

illogical system of judicial supervision of the coordinate branches of the Federal
Government. Randolph's proposed Council of Revision, which was repeatedly
rejected by the Framers, at least had the virtue of being systematic; every law
passed by the legislature automatically would have been previewed by the judiciary
before the law could take effect. On the other hand, since the judiciary cannot select
the taxpayers or citizens who bring suit or the nature of the suits, the allowance of
public actions would produce uneven and sporadic review, the quality of which would
be influenced by the resources and skill of the particular plaintiff. And issues would
be presented in abstract form, contrary to the Court's recognition that "judicial review
is effective largely because it is not available simply at the behest of a partisan
faction, but is exercised only to remedy a particular, concrete injury." Sierra Club v.
Morton, 405 U.S. 727, 740-741, n. 16 (1972).
A lesser but not insignificant reason for screening the standing of persons who desire to litigate
constitutional issues is economic in character. Given the sparseness of our resources, the capacity
of courts to render efficient judicial service to our people is severely limited. For courts to
indiscriminately open their doors to all types of suits and suitors is for them to unduly overburden
their dockets, and ultimately render themselves ineffective dispensers of justice. To be sure, this is
an evil that clearly confronts our judiciary today.
Prescinding from these premises, and with great reluctance, I am not prepared to concede the
standing to sue of petitioners. On a personal level, they have not shown that elemental injury in fact
which will endow them with a standing to sue. It must be stressed that petitioners are in the main,
seeking the nullity not of a law but of a Contract of Lease. Not one of the petitioners is a party to the
Contract of Lease executed between PCSO and PGMC. None of the petitioners participated in the
bidding, and hence they are not losing bidders. They are complete strangers to the contract. They
stand neither to gain nor to lose economically by its enforcement. It seems to me unusual that an
unaffected third party to a contract could be allowed to question its validity. Petitioner Kilosbayan
cannot justify this officious interference on the ground of its commitment to "truth, justice and
national renewal." Such commitment to truth, justice and national renewal, however noble it may be,
cannot give Kilosbayan a roving commission to check the validity of contracts entered into by the
government and its agencies. Kilosbayan is not a private commission on audit.
Neither can I perceive how the other petitioners can be personally injured by the Contract of Lease
between PCSO and PGMC even if petitioner Salonga assails as unmitigated fraud the statistical
probability of winning the lotto as he compared it to the probability of being struck twice by lightning.
The reason is obvious: none of the petitioners will be exposed to this alleged fraud for all of them
profess to abjure playing the lotto. It is self-evident that lotto cannot physically or spiritually injure him
who does not indulge in it.
Petitioners also contend they have locus standi as taxpayers. But the case at bench does not involve
any expenditure of public money on the part of PCSO. In fact, paragraph 2 of the Contract of Lease
provides that it is PGMC that shall build, furnish, and maintain at its own expense and risk the
facilities for the On-Line Lottery System of PCSO and shall bear all maintenance and other costs.
Thus, PGMC alleged it has already spent P245M in equipment and fixtures and would be investing
close to P1 billion to supply adequately the technology and other requirements of PCSO. If no tax 11
money is being illegally deflected in the Contract of Lease between PCSO and PGMC, petitioners
have no standing to impugn its validity as taxpayers. Our ruling in Dumlao v. Comelec, settled this
12
issue well enough, viz:
However, the statutory provisions questioned in this case, namely, sec. 7, BP Blg.
51, and sections 4, 1, and 5 BP Blg. 52, do not directly involve the disbursement of
public funds. While, concededly, the elections to be held involve the expenditure of
public moneys, nowhere in their Petition do said petitioners allege that their tax
money is "being extracted and spent in violation of specific constitutional protections
against abuses of legislative power" (Flast v. Cohen, 392 U.S. 83 [1960]), or that
there is a misapplication of such funds by respondent COMELEC (see Pascual vs.
Secretary of Public Works, 110 Phil. 331 [1960]), or that public money is being
deflected to any improper purpose. Neither do petitioners seek to restrain respondent
from wasting public funds through the enforcement of an invalid or unconstitutional
law. (Philippine Constitution Association vs. Mathay, 18 SCRA 300 [1966]),
citing Philippine Constitution Association vs. Gimenez, 15 SCRA 479 [1965]).
Besides, the institution of a taxpayer's suit, per se, is no assurance of judicial review.
As held by this Court in Yan vs. Macapagal(43 SCRA 677 [1972]), speaking through
our present Chief Justice, this Court is vested with discretion as to whether or not a
taxpayer's suit should be entertained.
Next, petitioners plead their standing as "concerned citizens." As citizens, petitioners are pleading
that they be allowed to advocate the constitutional rights of other persons who are not before the
court and whose protection is allegedly their concern. A citizen qua citizen suit urges a greater
relaxation of the rule on locus standi. I feel no aversion to the further relaxation of the rule on
standing to accommodate what in other jurisdictions is known as an assertion of jus tertii in
constitutional litigation provided the claimant can demonstrate: (1) an injury in fact to himself, and (2)
the need to prevent the erosion of a preferred constitutional right of a third person. As stressed
before, the first requirement of injury in fact cannot be abandoned for it is an essential element for
the exercise of judicial power. Again, as stressed by Mr. Justice Powell, viz: 13
The revolution in standing doctrine that has occurred, particularly in the 12 years
since Baker v. Carr, supra, has not meant, however, that standing barriers have
disappeared altogether. As the Court noted in Sierra Club, "broadening the
categories of injury that may be alleged in support of standing is a different matter
from abandoning the requirement that the party seeking review must himself have
suffered an injury." 405 U.S., at 738 . . . Indeed, despite the diminution of standing
requirements in the last decade, the Court has not broken with the traditional
requirement that, in the absence of a specific statutory grant of the right of review, a
plaintiff must allege some particularized injury that sets him apart from the man on
the street.
I recognize that the Court's allegiance to a requirement of particularized injury has on

occasion required a reading of the concept that threatens to transform it beyond
recognition. E.G., Baker v. Carr, supra; Flast v. Cohen, supra. But despite such
occasional digressions, the requirement remains, and I think it does so for the
reasons outlined above. In recognition of those considerations, we should refuse to
go the last mile towards abolition of standing requirements that is implicit in
broadening the "precarious opening" for federal taxpayers created by Flast, see 392
U.S., at 116 (Mr. Justice Fortas, concurring) or in allowing a citizen qua citizen to
invoke the power of the federal courts to negative unconstitutional acts of the Federal
Government.
In sum, I believe we should limit the expansion of federal taxpayer and citizen
standing in the absence of specific statutory authorization to an outer boundary
drawn by the results in Flast and Baker v. Carr. I think we should face up to the fact
that all such suits are an effort "to employ a federal court as a forum in which to air . .
. generalized grievances about the conduct of government or the allocation of power
in the Federal System." Flast v. Cohen, 392 U.S., at 106. The Court should explicitly
reaffirm traditional prudential barriers against such public actions. My reasons for this
view are rooted in respect for democratic processes and in the conviction that "[t]he
powers of the federal judiciary will be adequate for the great burdens placed upon
them only if they are employed prudently, with recognition of the strengths as well as
the hazards that go with our kind of representative government." Id., at 131
The second requirement recognizes society's right in the protection of certain preferred rights in the
Constitution even when the rightholders are not before the court. The theory is that their dilution has
a substantial fall out detriment to the rights of others, hence the latter can vindicate them.
In the case at bench, it is difficult to see how petitioners can satisfy these two requirements to
maintain a jus tertiiclaim. They claim violation of two constitutional provisions, to wit:
Section 1, Article XIII. — The Congress shall give highest priority to the enactment of
measures that protect and enhance the right of all the people to human dignity,
reduce social, economic, and political inequalities, and remove cultural inequities by
equitably diffusing wealth and political power for the common good.
To this end, the State shall regulate the acquisition, ownership, use, and disposition
of property and its increments.
and
Section 11, Article XII. - No franchise, certificate, or any other form of authorization
for the operation of a public utility shall be granted except to citizens of the
Philippines or to corporations or associations organized under the laws of the
Philippines at least sixty per centum of whose capital is owned by such citizens, nor
shall such franchise, certificate, or authorizations be exclusive in character or for a
longer period than fifty years. Neither shall any such franchise or right be granted
except under the condition that it shall be subject to amendment, alteration, or repeal
by the Congress when the common good so requires. The State shall encourage
equity participation in public utilities by the general public. The participation of foreign
investors in the governing body of any public utility enterprise shall be limited to their
proportionate share in its capital, and all the executive and managing officers of such
corporation or association must be citizen of the Philippines.
Section 1, Article XIII of the Constitution cannot be the matrix of petitioners' jus tertii claim for it
expresses no more than a policy direction to the legislative in the discharge of its ordained duty — to
give highest priority to the enactment of measures that protect and enhance the right of all the
people to human dignity, reduce social, economic, and political inequalities and remove cultural
inequities by equitably diffusing wealth and political power for the common good. Whether the act of
the legislature in amending the charter of PCSO by giving it the authority to conduct lotto and
whether the Contract of Lease entered into between PCSO and PGMC are incongruent to the policy
direction of this constitutional provision is a highly debatable proposition and can be endlessly
argued. Respondents steadfastly insist that the operation of lotto will increase the revenue base of
PCSO and enable government to provide a wider range of social services to the people. They also
allege that the operation of high-tech lotto will eradicate illegal jueteng. Petitioners are scandalized
by this submission. They dismiss gambling as evilper se and castigate government for attempting to
correct a wrong by committing another wrong. In any event, the proper forum for this debate,
however cerebrally exciting it may be, is not this court but congress. So we held in PCSO v.
Inopiquez, to wit:
14
By bringing their suit in the lower court, the private respondents in G.R. No. 79084 do
not question the power of PCSO to conduct the Instant Sweepstakes game. Rather,
they assail the wisdom of embarking upon this project because of their fear of the
"pernicious repercussions" which may be brought about by the Instant Sweepstakes
Game which they have labelled as "the worst form of gambling" which thus "affects
the moral values" of the people.
The Court, as held in several cases, does not pass upon questions of wisdom,
justice, or expediency of legislation and executive acts. It is not the province of the
courts to supervise legislation or executive orders as to keep them within the bounds
of propriety, moral values and common sense. That is primarily and even exclusively
a concern of the political departments of the government; otherwise, there will be a
violation of the principle of separation of powers. (Italics supplied)
I am not also convinced that petitioners can justify their locus standi to advocate the rights of
hypothetical third parties not before the court by invoking the need to keep inviolate section 11,
Article XII of the Constitution which imposes a nationality requirement on operators of a public utility.
For even assuming arguendo that PGMC is a public utility, still, the records do not at the moment
bear out the claim of petitioners that PGMC is a foreign owned and controlled corporation. This
factual issue remains unsettled and is still the subject of litigation by the parties in the Securities and
Exchange Commission. We are not at liberty to anticipate the verdict on this contested factual issue.
But over and above this consideration, I respectfully submit that this constitutional provision does not
confer on third parties any right of a preferred status comparable to the Bill of Rights whose dilution
will justify petitioners to vindicate them in behalf of its rightholders. The legal right of hypothetical
third parties they profess to advocate is to my mind too impersonal, too unsubstantial, too indirect,
too amorphous to justify their access to this Court and the further lowering of the constitutional
barrier of locus standi.
Again, with regret, I do not agree that the distinguished status of some of the petitioners as
lawmakers gives them the appropriate locus standi. I cannot perceive how their constitutional rights
and prerogatives as legislators can be adversely affected by the contract in question. Their right to
enact laws for the general conduct of our society remains unimpaired and undiminished. Their15
status as legislators, notwithstanding, they have to demonstrate that the said contract has caused
them to suffer a personal, direct, and substantial injury in fact. They cannot simply advance a
generic grievance in common with the people in general.
I am not unaware of our ruling in De Guia v. Comelec, viz:

16
Before addressing the crux of the controversy, the Court observes that petitioner
does not allege that he is running for reelection, much less, that he is prejudiced by
the election, by district, in Parañaque. As such, he does not appear to have locus
standi, a standing in law, a personal or substantial interest. (Sanidad vs. COMELEC,
G.R. No. L-44640, October 12, 1976, 73 SCRA 333; Municipality of Malabang vs.
Benito, G.R. No. L-28113, March 28, 1969, 27 SCRA 533). He does not also allege
any legal right that has been violated by respondent. If for this alone, petitioner does
not appear to have any cause of action.
However, considering the importance of the issue involved, concerning as it does the
political exercise of qualified voters affected by the apportionment, and petitioner
alleging abuse of discretion and violation of the Constitution by respondent, We
resolved to brush aside the question of procedural infirmity, even as We perceive the
petition to be one of declaratory relief. We so held similarly through Mr.
Justice Edgardo L. Paras in Osmena vs. Commission on Elections.
It is my respectful submission, however, that we should re-examine de Guia. It treated the rule
on locus standi as a mere procedural rule. It is not a plain procedural rule but a constitutional
requirement derived from section 1, Article VIII of the Constitution which mandates courts of justice
to settle only "actual controversies involving rights which are legally demandable and enforceable."
The phrase has been construed since time immemorial to mean that a party in a constitutional
litigation must demonstrate a standing to sue. By downgrading the requirement on locus standi as a
procedural rule which can be discarded in the name of public interest, we are in effect amending the
Constitution by judicial fiat.
De Guia would also brush aside the rule on locus standi if a case raises an important issue. In this
regard, I join the learned observation of Mr. Justice Feliciano: "that it is not enough for the Court
simply to invoke 'public interest' or even 'paramount considerations of national interest,' and to say
that the specific requirements of such public interest can only be ascertained on a 'case to case'
basis. For one thing, such an approach is not intellectually satisfying. For another, such an answer
appears to come too close to saying that locus standi exists whenever at least a majority of the
Members of this Court participating in a case feel that an appropriate case for judicial intervention
has arisen."
I also submit that de Guia failed to perceive that the rule on locus standi has little to do with the issue
posed in a case, however, important it may be. As well pointed out in Flast v. Cohen: 17
The fundamental aspect of standing is that it focuses on the party seeking to get his
complaint before a federal court and not on the issues he wishes to have
adjudicated. The "gist of the question of standing" is whether the party seeking relief
has "alleged such a personal stake in the outcome of the controversy as to assure
that concrete adverseness which sharpens the presentation of issues upon which the
court so largely depends for illumination of difficult constitutional questions." Baker v.
Carr,369 U.S. 186, 204 (1962). In other words, when standing is placed in issue in a
case, the question is whether the person whose standing is challenged is a proper
party to request an adjudication of a particular issue and not whether the issue itself
is justiciable. Thus, a party may have standing in a particular case, but the federal
court may nevertheless decline to pass on the merits of the case because, for
example, it presents a political question. A proper party is demanded so that federal
courts will not be asked to decide "ill-defined controversies over constitutional
issues," United public Workers v. Mitchell, 330 U.S. 75, 90 (1947), or a case which is
of "a hypothetical or abstract character," Aetna Life Insurance Co. v. Haworth, 300
U.S. 227, 240 (1937).
It is plain to see that in de Guia, the court took an unorthodox posture, to say the least. It held there
was no proper party before it, and yet it resolved the issues posed by the petition. As there was no
proper party before the court, its decision is vulnerable to be criticized as an advisory opinion.
With due respect, the majority decision appears to have set a dangerous precedent by unduly
trivializing the rule on locus standi. By its decision, the majority has entertained a public action to
annul a private contract. In so doing, the majority may have given sixty (60) million Filipinos the
standing to assail contracts of government and its agencies. This is an invitation for chaos to visit our
law on contract, and certainly will not sit well with prospective foreign investors. Indeed, it is difficult
to tread the path of the majority on this significant issue. The majority granted locus standi to
petitioners because of lack of any other party with more direct and specific interest. But one has
standing because he has standing on his own and standing cannot be acquired because others with
standing have refused to come to court. The thesis is also floated that petitioners have standing as
they can be considered taxpayers with right to file derivative suit like a stockholder's derivative suit in
private corporations. The fact, however, is that PCSO is not a private but a quasi-public corporation.
Our law on private corporation categorically sanctions stockholder's derivative suit. In contrast, our
law on public corporation does not recognize this so-called taxpayer's derivative suit. Hence, the
idea of a taxpayer's derivative suit, while alluring, has no legal warrant.
Our brethren in the majority have also taken the unprecedented step of striking down a contrast at
the importunings of strangers thereto, but without justifying the interposition of judicial power on any
felt need to prevent violation of an important constitutional provision. The contract in question was
voided on the sole ground that it violated an ordinary statute, section 1 of R.A. 1169, as amended by
B.P. Blg. 42. If there is no provision of the Constitution that is involved in the case at bench, it
boggles the mind how the majority can invoke considerations of national interest to justify its
abandonment of the rule on locus standi. The volume of noise created by the case cannot magically
convert it to a case of paramount national importance. By its ruling, the majority has pushed the
Court in unchartered water bereft of any compass, and it may have foisted the false hope that it is
the repository of all remedies.
If I pay an unwavering reverence to the rule of locus standi, it is because I consider it as a

touchstone in maintaining the proper balance of power among the three branches of our
government. The survival of our democracy rests in a large measure on our ability to maintain this
delicate equipoise of powers. For this reason, I look at judicial review from a distinct prism. I see it
both as a power and a duty. It is a power because it enables the judiciary to check excesses of the
Executive and the Legislative. But, it is also a duty because its requirement of locus standi, among
others, Executive and the Legislative. But, it is also a duty because its requirement of locus standi,
among others, keeps the judiciary from overreaching the powers of the other branches of
government. By balancing this duality, we are able to breathe life to the principle of separation of
powers and prevent tyranny. To be sure, it is our eternal concern to prevent tyranny but that includes
tyranny by ourselves. The Constitution did not install a government by the judiciary, nay, not a
government by the unelected. In offering this submission, I reject the sublimal fear that an unyielding
insistence on the rule on locus standi will weaken the judiciary vis-a-vis the other branches of
government. The hindsight of history ought to tell us that it is not power per se that strengthens.
Power unused is preferable than power misused. We contribute to constitutionalism both by the use
of our power to decide and its non use. As well said, the cases we decide are as significant as the
cases we do not decide. Real power belongs to him who has power over power.
IN VIEW WHEREOF, and strictly on the ground of lack of locus standi on the part of petitioners, I
vote to DENY the petition.
VITUG, J., dissenting:
Judicial power encompasses both an authority and duty to resolve "actual controversies involving
rights which are legally demandable and enforceable" (Article VIII, Section 1, 1987 Constitution). As
early as the case of Lamb vs. Phipps, this Court ruled: "Judicial power, in its nature, is the power to
1
hear and decide causes pending between parties who have the right to sue in the courts of law and
equity." An essential part of, and corollary to, this principle is the locus standi of a party litigant,
2
referring to one who is directly affected by, and whose interest is immediate and substantial in, the
controversy. The rule requires that a party must show a personal stake in the outcome of the case or
an injury to himself that can be redressed by a favorable decision so as to warrant his invocation of
the court's jurisdiction and to justify the exercise of the court's remedial powers in his behalf. If it
3
were otherwise, the exercise of that power can easily become too unwieldy by its sheer magnitude
and scope to a point that may, in no small degree, adversely affect its intended essentiality, stability
and consequentiality.
Locus standi, nevertheless, admits of the so-called "taxpayer's suit." Taxpayer's suits are actions or
proceedings initiated by one or more taxpayers in their own behalf or, conjunctively, in
representation of others similarly situated for the purpose of declaring illegal or unauthorized certain
acts of public officials which are claimed to be injurious to their common interests as such taxpayers
(Cf. 71 Am Jur 2d., 179-180). The principle is predicated upon the theory that taxpayers are, in
equity, the cestui que trust of tax funds, and any illegal diminution thereof by public officials
constitutes a breach of trust even as it may result in an increased burden on taxpayers (Haddock vs.
Board of Public Education, 86 A 2d 157; Henderson vs. McCormick, 17 ALR 2d 470).
Justice Brandeis of the United States Supreme Court, in his concurring opinion in Ashwander vs.
Tennessee Valley Authority (297 U.S. 288), said:
. . . . The Court will not pass upon the validity of a statute upon complaint of one who
fails to show that he is injured by its operation. Tyler v. The Judges, 179 U.S.
405; Hendrick v. Maryland, 234 U.S. 610, 621. Among the many applications of this
rule, none is more striking than the denial of the right of challenge to one who lacks a
personal or property right. Thus, the challenge by a public official interested only in
the performance of his official duty will not be entertained. Columbus & Greenville
Ry. v. Miller, 283 U.S. 96, 99-100. In Fairchild v. Hughes, 258 U.S. 126, the Court
affirmed the dismissal of a suit brought by a citizen who sought to have the
Nineteenth Amendment declared unconstitutional. InMassachusetts v. Mellon, 262
U.S. 447, the challenge of the federal Maternity Act was not entertained although
made by the Commonwealth on behalf of all its citizens."
Justice Brandeis' view, shared by Justice Frankfurter in Joint Anti-Fascist Refugee Commission vs.
McGrath (351 U.S. 123), was adopted by the U.S. Supreme Court in Flast vs. Cohen (392 U.S. 83)
which held that it is only when a litigant is able to show such a personal stake in the controversy as
to assure a concrete adverseness in the issues submitted that legal standing can attach.
A "taxpayer's suit," enough to confer locus standi to a party, we have held before, is understood to
be a case where the act complained of directly involves the illegal disbursement of public
funds derived from taxation. It is not enough that the dispute concerns public funds. A contrary rule
4
could easily lead to a limitless application of the term "taxpayer's suit," already by itself a broad
concept, since a questioned act of government would almost so invariably entail, as a practical
matter, a financial burden of some kind.
To be sure, serious doubts have even been raised on the propriety and feasibility of unqualifiedly
recognizing the "taxpayer's suit" as an exception from the standard rule of requiring a party who
invokes the exercise of judicial power to have a real and personal interest or a direct injury in the
outcome of a controversy. This Court has heretofore spoken on the matter, at times even venturing
beyond the usual understanding of its applicability in the name of national or public interest. It is
remarkable, nevertheless, that the accepted connotation of locus standi has still managed to be the
rule, sanctioning, by way of exception, the so-called "taxpayer's suit" which courts accept on valid
and compelling reasons.
A provision which has been introduced by the 1987 Constitution is a definition, for the first time in our
fundamental law, of the term "judicial power," as such authority and duty of courts of justice "to settle
actual controversies involving rights which are legally demandable and enforceable and to determine
whether or not there has been a grave abuse of discretion, amounting to lack or excess of
jurisdiction, on the part of any branch or instrumentality of the Government" (Article VIII, Section 1,
Constitution). I take it that the provision has not been intended to unduly mutate, let alone to
disregard, the long established rules on locus standi. Neither has it been meant, I most respectfully
submit, to do away with the principle of separation of powers and its essential incidents such as by,
in effect, conferring omnipotence on, or allowing an intrusion by, the courts in respect to purely
political decisions, the exercise of which is explicitly vested elsewhere, and subordinate, to that of
their own, the will of either the Legislative Department or the Executive Department — both co-
equal, independent and coordinate branches, along with the Judiciary, in our system of government.
Again, if it were otherwise, there indeed would be truth to the charge, in the words of some
constitutionalists, that "judicial tyranny" has been institutionalized by the 1987 Constitution, an
apprehension which should, I submit, rather be held far from truth and reality.
In sum, while any act of government, be it executive in nature or legislative in character, may be
struck down and declared a nullity either because it contravenes an express provision of the
Constitution or because it is perceived and found to be attended by or the result of grave abuse of
discretion, amounting to lack or excess of jurisdiction, that issue, however, must first be raised in a
proper judicial controversy. The Court's authority to look into and grant relief in such cases would
necessitate locus standi on the part of party litigants. This requirement, in my considered view, is not
merely procedural or technical but goes into the essence of jurisdiction and the competence of
courts to take cognizance of justiciable disputes.
In Bugnay Construction and Development Corporation vs. Laron, this Court ruled:
5
. . . . Considering the importance to the public of a suit assailing the constitutionality

of a tax law, and in keeping with the Court's duty, specially explicated in the 1987
Constitution, to determine whether or not the other branches of the Government have
kept themselves within the limits of the Constitution and the laws and that they have
not abused the discretion given to them, the Supreme Court may brush aside
technicalities of procedure and take cognizance of the suit. (Citing Kapatiran vs. Tan,
G.R. No. 81311, June 30, 1988.)
However, for the above rule to apply, it is exigent that the taxpayer-plaintiff
sufficiently show that he would be benefited or injured by the judgment or entitled to
the avails of the suit as a real party in interest. (Citing Estate of George Litton vs.
Mendoza, G.R. No. 49120, June 30, 1988.) Before he can invoke the power of
judicial review, he must specifically prove that he has sufficient interest in preventing
the illegal expenditure of money raised by taxation (citing 11 Am. Jur. 761; Dumlao,
et al. vs. Commission on Elections, 95 SCRA 392) and that he will sustain a direct
injury as a result of the enforcement of the questioned statute or contract. (Citing
Sanidad, et al. vs. Commission on Elections, et al., 73 SCRA 333.) It is not sufficient
that he has merely a general interest common to all members of the public.
(Citing Ex Parte Levitt, 302 U.S. 633, cited in 15 SCRA 497, Annotation.)
As so well pointed out by Mr. Justice Camilo D. Quiason during the Court's deliberations, "due
respect and proper regard for the rule on locus standi would preclude the rendition of advisory
opinions and other forms of pronouncement on abstract issues, avoid an undue interference on
matters which are not justiciable in nature and spare the Court from getting itself involved in political
imbroglio."
The words of Senate President Edgardo J. Angara, carry wisdom; we quote:
The powers of the political branches of our government over economic policies is
rather clear: the Congress is to set in broad but definite strokes the legal framework
and structures for economic development, while the Executive provides the
implementing details for realizing the economic ends identified by Congress and
executes the same.
xxx xxx xxx

If each economic decision made by the political branches of government, particularly
by the executive, are fully open to re-examination by the judicial branch, then very
little, if any, reliance can be placed by private economic actors on those decisions.
Investors would always have to factor in possible costs arising from judicially-
determined changes affecting their immediate business, notwithstanding assurances
by executive authorities.
Judicial decisions are, in addition, inflexible and can never substitute for sound
decision-making at the level of those who are assigned to execute the laws of the
land. Since judicial power cannot be exercised unless an actual controversy is
brought before the courts for resolution, decisions cannot be properly modified
unless another appropriate controversy arises." (Sen. Edgardo J. Angara, "The
Supreme Court in Economic Policy Making," Policy Review — A Quarterly Journal of
Policy Studies, Vol. 1, No. 1, January-March 1994, published by the Senate Policy
Studies Group, pp. 2-3.)
A further set-back in entertaining the petition is that it unfortunately likewise strikes at factual issues.
The allegations to the effect that irregularities have been committed in the processing and evaluation
of the bids to favor respondent PGMC; that the Malacañang Special Review Committee did not
verify warranties embodied in the contract; that the operation of telecommunication facilities is
indispensable in the operation of the lottery system; the involvement of multi-national corporations in
the operation of the on-line "hi-tech" lottery system, and the like, require the submission of evidence.
This Court is not a trier of facts, and it cannot, at this time, resolve the above issues. Just recently,
the Court has noted petitioners' manifestation of its petition with the Securities and Exchange
Commission "for the nullification of the General Information Sheets of PGMC" in respect particularly
to the nationality holdings in the corporation. The doctrine of primary jurisdiction would not justify a
disregard of the jurisdiction of, nor would it permit us to now preempt, said Commission on the
matter.
Petitioners strongly assert, in an attempt to get the Court's concurrence in accepting the petition, that
since lottery is a game of chance, the "lotto" system would itself be a "crime against morals" defined
by Articles 195-199 of the Revised Penal Code.
6
Being immoral and a criminal offense under the Revised Penal Code, petitioners contend, any
special law authorizing gambling must, by all canons of statutory constructions, be interpreted strictly
against the grantee. Citing previous decisions of this Court, they maintain that lottery is gambling,
pure and simple, and that this Court has consistently condemned the immorality and illegality of
7
gambling to be a "national offense and not a minor transgression;" "that it is a social scourge which
8
must be stamped out;" and, "that it is pernicious to the body politic and detrimental to the nation and
9
its citizens."
10
I most certainly will not renounce this Court's above concerns. Nevertheless, the Court must
recognize the limitations of its own authority. Courts neither legislate nor ignore legal mandates.
Republic Act No. 1169, as amended, explicitly gives public respondent
PCSO the authority and power "to hold and conduct sweepstakes races, lotteries, and other similar
activities." In addition, it is authorized:
c. To undertake any other activity that will enhance its funds generation, operations
and funds management capabilities, subject to the same limitations provided for in
the preceding paragraph.
It shall have a Board of Directors, hereinafter designated the Board, composed of
five members who shall be appointed, and whose compensation and term of office
shall be fixed, by the President.
xxx xxx xxx
Sec.9. Powers and functions of the Board of Directors. — The Board of Directors of
the Office shall have the following powers and functions.
(a) To adopt or amend such rules and regulations to implement the provisions of this
Act.
xxx xxx xxx
(d) To promulgate rules and regulations for the operation of the Office and to do
such act or acts as may be necessary for the attainment of its purposes and
objectives. (Emphasis supplied).
In People vs. Dionisio, cited by the petitioners themselves, we remarked: "What evils should be
11
corrected as pernicious to the body politic, and how correction should be done, is a matter primarily
addressed to the discretion of the legislative department, not of the courts . . . ." In Valmonte vs.
PCSO, we also said:
12
The Court, as held in several cases, does not pass upon questions of wisdom, justice
or expediency of legislation and executive acts. It is not the province of the courts to
supervise legislation or executive orders as to keep them within the bounds of
propriety, moral values and common sense. That is primarily and even exclusively a
concern of the political departments of the government; otherwise, there will be a
violation of the principle of separation of powers.
The constraints on judicial power are clear. I feel, the Court must thus beg off, albeit not without
reluctance, from giving due course to the instant petition.
Accordingly, I vote for the dismissal of the petition.
KAPUNAN, J., dissenting:
I regret that I am unable to join my colleagues in the majority in spite of my own personal distaste for
gambling and other gaming operations. Such considerations aside, I feel there are compelling
reasons why the instant petition should be dismissed. I shall forthwith state the reasons why.
Petitioners anchor their principal objections against the contract entered into between the Philippine
Charity Sweepstakes Office (PCSO) and the PGMC on the ground that the contract entered into by
the PCSO with the PGMC violates the PCSO Charter (R.A. No. 1169 as amended by B.P. Blg 427,
specifically section 1 thereof which bars the said body from holding conducting lotteries "in
collaboration, association or joint venture with any person association, company or entity.").
However, a perusal of the petition reveals that the compelling reasons behind it, while based on
apparently legal questions involving the contract between the PCSO and the PGMC, are prompted
by the petitioners' moral objections against the whole idea of gambling operations operated by the
government through the PCSO. The whole point of the petition, in essence, is a fight between good
and evil, between the morality or amorality of lottery operations conducted on a wide scale involving
millions of individuals and affecting millions of lives. Their media of opposition are the above stated
defects in the said contract which they assail to be fatally defective. They come to this Court, as
taxpayers and civic spirted citizens, asserting a right of standing on a transcendental issue which
they assert to be of paramount public interest.
Moral or legal questions aside, I believe that there are unfortunately certain standards that have to
1
be followed in the exercise of this Court's awesome power of review before this Court could even
begin to assay the validity of the contract between the PCSO and the PGMC. This, in spite of the
apparent expansion of judicial power granted by Section 1 of Article VIII of the 1987 Constitution. It
is fundamental that such standards be complied with before this Court could even begin to explore
the substantive issues raised by any controversy brought before it, for no issue brought before this
court could possibly be so fundamental and paramount as to warrant a relaxation of the requisite
rules for judicial review developed by settled jurisprudence inorder to avoid entangling this court in
controversies which properly belong to the legislative or executive branches of our government. The
potential harm to our system of government, premised on the concept of separation of powers, by
the Court eager to exercise its powers and prerogatives at every turn, cannot be gainsaid. The
Constitution does not mandate this Court to wield the power of judicial review with excessive vigor
and alacrity in every area or at every turn, except in appropriate cases and controversies which meet
established requirements for constitutional adjudication. Article VIII Sec. 1 of the Constitution
notwithstanding, there are questions which I believe are still beyond the pale of judicial power.
Moreover, it is my considered opinion that the instant petition does not meet the requirements set by
this court for a valid exercise of judicial review.
Our Constitution expressly defines judicial power as including "the duty to settle actual cases and
controversies involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to a lack or excess of
jurisdiction on the part of any branch or instrumentality of the government." This constitutional
2
requirement for an actual case and controversy limits this Court's power of review to precisely those
suits between adversary litigants with real interests at stake thus preventing it from making all sorts
2
of hypothetical pronouncements on abstract, contingent and amorphous issues. The Court will
therefore not pass upon the validity of an act of government or a statute passed by a legislative body
without a requisite showing of injury. A personal stake is essential, which absence renders our
3
pronouncements gratuitous and certainly violative of the constitutional requirement for actual cases
and controversies.
The requirement for standing based on personal injury may of course be bypassed, as the
petitioners in this case attempt to do, by considering the case as a "taxpayer suit" which would
thereby clothe them with the personality they would lack under ordinary circumstances. However,
the act assailed by the petitioners on the whole involves the generation rather than disbursement of
public funds. In a line of cases starting from Pascual v. Secretary of Public Works "taxpayer suits"
4
have been understood to refer only to those cases where the act or statute assailed involves the
illegal or unconstitutional disbursement of public funds derived from taxation. The main premise
behind the "taxpayer suit" is that the pecuniary interest of the taxpayer is involved whenever there is
an illegal or wasteful use of public funds which grants them the right to question the appropriation or
disbursement on the basis of their contribution to government funds. Since it has not been alleged
5
that an illegal appropriation or disbursement of a fund derived from taxation would be made in the
instant case, I fail to see how the petitioners in this case would be able to satisfy the locus
standi requirement on the basis of a "taxpayer's suit". This alone should inhibit this Court from
proceeding with the case at bench. The interest alleged and the potential injury asserted are far too
general and hypothetical for us to rush into a judicial determination of what to me appears to be
judgment better left to executive branch of our government.
This brings me to one more important point: The idea that a norm of constitutional adjudication could
be lightly brushed aside on the mere supposition that an issue before the Court is of paramount
public concern does great harm to a democratic system which espouses a delicate balance between
three separate but co-equal branches of government. It is equally of paramount public concern,
certainly paramount to the survival of our democracy, that acts of the other branches of government
are accorded due respect by this Court. Such acts, done within their sphere of competence, have
been — and should always be — accorded with a presumption of regularity. When such acts are
assailed as illegal or unconstitutional, the burden falls upon those who assail these acts to prove that
they satisfy the essential norms of constitutional adjudication, because when we finally proceed to
declare an act of the executive or legislative branch of our government unconstitutional or illegal,
what we actually accomplish is the thwarting of the will of the elected representatives of the people
in the executive or legislative branches government.6 Notwithstanding Article VIII, Section 1 of the Constitution, since
the exercise of the power of judicial review by this Court is inherently antidemocratic, this Court should exercise a becoming modesty in
acting as a revisor of an act of the executive or legislative branch. The tendency of a frequent and easy resort to the function of judicial
review, particularly in areas of economic policy has become lamentably too common as to dwarf the political capacity of the people
expressed through their representatives in the policy making branches of government and to deaden their sense of moral responsibility. 7
This court has been accused, of late, of an officious tendency to delve into areas better left to the
political branches of government. This tendency, if exercised by a court running riot over the other
8
co-equal branches of government, poses a greater danger to our democratic system than the
perceived danger — real or imagined — of an executive branch espousing economic or social
policies of doubtful moral worth. Moreover economic policy decisions in the current milieu- including
the act challenged in the instant case-involve complex factors requiring flexibility and a wide range of
discretion on the part of our economic managers which this Court should respect because our power
of review, under the constitution, is a power to check, not to supplant those acts or decisions of the
elected representatives of the people.
Finally, the instant petition was brought to this Court on the assumption that the issue at bench
raises primarily constitutional issues. As it has ultimately turned out, the core foundation of the
petitioners' objections to the LOTTO operations was based on the validity of the contract between
the PCSO and the PGMC in the light of Section 1 of R.A. 1169 as amended by B.P. Blg. 427. It
might have been much more appropriate for the issue to have taken its normal course in the courts
below.
I vote to deny the petition.
EN BANC
G.R. No. L-34150 October 16, 1971
ARTURO M. TOLENTINO, petitioner,
vs.
COMMISSION ON ELECTIONS, and THE CHIEF ACCOUNTANT, THE AUDITOR, and THE
DISBURSING OFFICER OF THE 1971 CONSTITUTIONAL CONVENTION, respondents, RAUL S.
MANGLAPUS, JESUS G. BARRERA, PABLO S. TRILLANA III, VICTOR DE LA SERNA,
MARCELO B. FERNAN, JOSE Y. FERIA, LEONARDO SIGUION REYNA, VICTOR F. ORTEGA,
and JUAN V. BORRA, Intervenors.
Arturo M. Tolentino in his own behalf.

Ramon A. Gonzales for respondents Chief Accountant and Auditor of the 1971 Constitutional
Convention.
Emmanuel Pelaez, Jorge M. Juco and Tomas L. Echivarre for respondent Disbursing Officer of the
1971 Constitutional Convention.
Intervenors in their own behalf.
BARREDO, J.:
Petition for prohibition principally to restrain the respondent Commission on Elections "from
undertaking to hold a plebiscite on November 8, 1971," at which the proposed constitutional
amendment "reducing the voting age" in Section 1 of Article V of the Constitution of the Philippines
to eighteen years "shall be, submitted" for ratification by the people pursuant to Organic Resolution
No. 1 of the Constitutional Convention of 1971, and the subsequent implementing resolutions, by
declaring said resolutions to be without the force and effect of law in so far as they direct the holding
of such plebiscite and by also declaring the acts of the respondent Commission (COMELEC)
performed and to be done by it in obedience to the aforesaid Convention resolutions to be null and
void, for being violative of the Constitution of the Philippines.
As a preliminary step, since the petition named as respondent only the COMELEC, the Count
required that copies thereof be served on the Solicitor General and the Constitutional Convention,
through its President, for such action as they may deem proper to take. In due time, respondent
COMELEC filed its answer joining issues with petitioner. To further put things in proper order, and
considering that the fiscal officers of the Convention are indispensable parties in a proceeding of this
nature, since the acts sought to be enjoined involve the expenditure of funds appropriated by law for
the Convention, the Court also ordered that the Disbursing Officer, Chief Accountant and Auditor of
the Convention be made respondents. After the petition was so amended, the first appeared thru
Senator Emmanuel Pelaez and the last two thru Delegate Ramon Gonzales. All said respondents,
thru counsel, resist petitioner's action.
For reasons of orderliness and to avoid unnecessary duplication of arguments and even possible
confusion, and considering that with the principal parties being duly represented by able counsel,
their interests would be adequately protected already, the Court had to limit the number of
intervenors from the ranks of the delegates to the Convention who, more or less, have legal interest
in the success of the respondents, and so, only Delegates Raul S. Manglapus, Jesus G. Barrera,
Pablo S. Trillana III, Victor de la Serna, Marcelo B. Fernan, Jose Y. Feria, Leonardo Siguion Reyna,
Victor Ortega and Juan B. Borra, all distinguished lawyers in their own right, have been allowed to
intervene jointly. The Court feels that with such an array of brilliant and dedicated counsel, all
interests involved should be duly and amply represented and protected. At any rate, notwithstanding
that their corresponding motions for leave to intervene or to appear as amicus curiae 1 have been
denied, the pleadings filed by the other delegates and some private parties, the latter in
representation of their minor children allegedly to be affected by the result of this case with the
records and the Court acknowledges that they have not been without value as materials in the
extensive study that has been undertaken in this case.
The background facts are beyond dispute. The Constitutional Convention of 1971 came into being
by virtue of two resolutions of the Congress of the Philippines approved in its capacity as a
constituent assembly convened for the purpose of calling a convention to propose amendments to
the Constitution namely, Resolutions 2 and 4 of the joint sessions of Congress held on March 16,
1967 and June 17, 1969 respectively. The delegates to the said Convention were all elected under
and by virtue of said resolutions and the implementing legislation thereof, Republic Act 6132. The
pertinent portions of Resolution No 2 read as follows:
SECTION 1. There is hereby called a convention to propose amendments to the

Constitution of the Philippines, to be composed of two elective Delegates from each
representative district who shall have the same qualifications as those required of
Members of the House of Representatives.
xxx xxx xxx
SECTION 7. The amendments proposed by the Convention shall be valid and

considered part of the Constitution when approved by a majority of the votes cast in
an election at which they are submitted to the people for their ratification pursuant to
Article XV of the Constitution.
Resolution No. 4 merely modified the number of delegates to represent the different cities and
provinces fixed originally in Resolution No 2.
After the election of the delegates held on November 10, 1970, the Convention held its inaugural
session on June 1, 1971. Its preliminary labors of election of officers, organization of committees and
other preparatory works over, as its first formal proposal to amend the Constitution, its session which
began on September 27, 1971, or more accurately, at about 3:30 in the morning of September 28,
1971, the Convention approved Organic Resolution No. 1 reading thus: .
CC ORGANIC RESOLUTION NO. 1
A RESOLUTION AMENDING SECTION ONE OF ARTICLE V OF THE

CONSTITUTION OF THE PHILIPPINES SO AS TO LOWER THE VOTING AGE TO
18
BE IT RESOLVED as it is hereby resolved by the 1971 Constitutional Convention:
Section 1. Section One of Article V of the Constitution of the Philippines is amended

to as follows:
Section 1. Suffrage may be exercised by (male) citizens of the

Philippines not otherwise disqualified by law, who are (twenty-one)
EIGHTEEN years or over and are able to read and write, and who
shall have resided in the Philippines for one year and in the
municipality wherein they propose to vote for at least six months
preceding the election.
Section 2. This amendment shall be valid as part of the Constitution of the

Philippines when approved by a majority of the votes cast in a plebiscite to coincide
with the local elections in November 1971.
Section 3. This partial amendment, which refers only to the age qualification for the
exercise of suffrage shall be without prejudice to other amendments that will be
proposed in the future by the 1971 Constitutional Convention on other portions of the
amended Section or on other portions of the entire Constitution.
Section 4. The Convention hereby authorizes the use of the sum of P75,000.00 from
its savings or from its unexpended funds for the expense of the advanced plebiscite;
provided, however that should there be no savings or unexpended sums, the
Delegates waive P250.00 each or the equivalent of 2-1/2 days per diem.
By a letter dated September 28, 1971, President Diosdado Macapagal, called upon respondent
Comelec "to help the Convention implement (the above) resolution." The said letter reads:
September 28, 1971
The Commission on Elections Manila
Thru the Chairman
Gentlemen:
Last night the Constitutional Convention passed Resolution No. 1 quoted as follows:
xxx xxx xxx
(see above)
Pursuant to the provision of Section 14, Republic Act No. 6132 otherwise known as
the Constitutional Convention Act of 1971, may we call upon you to help the
Convention implement this resolution:
Sincerely,
(Sgd.) DIOSDADO P.
MACAPAGAL
DIOSDADO P.
MACAPAGAL
President
On September 30, 1971, COMELEC "RESOLVED to inform the Constitutional Convention that it will
hold the plebiscite on condition that:
(a) The Constitutional Convention will undertake the printing of separate official
ballots, election returns and tally sheets for the use of said plebiscite at its expense;
(b) The Constitutional Convention will adopt its own security measures for the
printing and shipment of said ballots and election forms; and
(c) Said official ballots and election forms will be delivered to the Commission in time
so that they could be distributed at the same time that the Commission will distribute
its official and sample ballots to be used in the elections on November 8, 1971.
What happened afterwards may best be stated by quoting from intervenors' Governors' statement of
the genesis of the above proposal:
The President of the Convention also issued an order forming an Ad Hoc Committee
to implement the Resolution.
This Committee issued implementing guidelines which were approved by the

President who then transmitted them to the Commission on Elections.
The Committee on Plebiscite and Ratification filed a report on the progress of the
implementation of the plebiscite in the afternoon of October 7,1971, enclosing copies
of the order, resolution and letters of transmittal above referred to (Copy of the report
is hereto attached as Annex 8-Memorandum).
RECESS RESOLUTION
In its plenary session in the evening of October 7, 1971, the Convention approved a
resolution authored by Delegate Antonio Olmedo of Davao Oriental, calling for a
recess of the Convention from November 1, 1971 to November 9, 1971 to permit the
delegates to campaign for the ratification of Organic Resolution No. 1. (Copies of the
resolution and the transcript of debate thereon are hereto attached as Annexes 9 and
9-A Memorandum, respectively).
RESOLUTION CONFIRMING IMPLEMENTATION
On October 12, 1971, the Convention passed Resolution No. 24 submitted by

Delegate Jose Ozamiz confirming the authority of the President of the Convention to
implement Organic Resolution No. 1, including the creation of the Ad Hoc Committee
ratifying all acts performed in connection with said implementation.
Upon these facts, the main thrust of the petition is that Organic Resolution No. 1 and the other
implementing resolutions thereof subsequently approved by the Convention have no force and effect
as laws in so far as they provide for the holding of a plebiscite co-incident with the elections of eight
senators and all city, provincial and municipal officials to be held on November 8, 1971, hence all of
Comelec's acts in obedience thereof and tending to carry out the holding of the plebiscite directed by
said resolutions are null and void, on the ground that the calling and holding of such a plebiscite is,
by the Constitution, a power lodged exclusively in Congress, as a legislative body, and may not be
exercised by the Convention, and that, under Section 1, Article XV of the Constitution, the proposed
amendment in question cannot be presented to the people for ratification separately from each and
all of the other amendments to be drafted and proposed by the Convention. On the other hand,
respondents and intervenors posit that the power to provide for, fix the date and lay down the details
of the plebiscite for the ratification of any amendment the Convention may deem proper to propose
is within the authority of the Convention as a necessary consequence and part of its power to
propose amendments and that this power includes that of submitting such amendments either
individually or jointly at such time and manner as the Convention may direct in discretion. The
Court's delicate task now is to decide which of these two poses is really in accord with the letter and
spirit of the Constitution.
As a preliminary and prejudicial matter, the intervenors raise the question of jurisdiction. They
contend that the issue before Us is a political question and that the Convention being legislative
body of the highest order is sovereign, and as such, its acts impugned by petitioner are beyond the
control of the Congress and the courts. In this connection, it is to be noted that none of the
respondent has joined intervenors in this posture. In fact, respondents Chief Accountant and Auditor
of the convention expressly concede the jurisdiction of this Court in their answer acknowledging that
the issue herein is a justifiable one.
Strangely, intervenors cite in support of this contention portions of the decision of this Court in the
case of Gonzales v. Comelec, 21 SCRA 774, wherein the members of the Court, despite their being
divided in their opinions as to the other matters therein involved, were precisely unanimous in
upholding its jurisdiction. Obviously, distinguished counsel have either failed to grasp the full impact
of the portions of Our decision they have quoted or would misapply them by taking them out of
context.
There should be no more doubt as to the position of this Court regarding its jurisdiction vis-a-vis the
constitutionality of the acts of the Congress, acting as a constituent assembly, and, for that matter,
those of a constitutional convention called for the purpose of proposing amendments to the
Constitution, which concededly is at par with the former. A simple reading of Our ruling in that very
case of Gonzales relied upon by intervenors should dispel any lingering misgivings as regards that
point. Succinctly but comprehensively, Chief Justice Concepcion held for the Court thus: .
As early as Angara vs. Electoral Commission (63 Phil. 139, 157), this Court —
speaking through one of the leading members of the Constitutional Convention and a
respected professor of Constitutional Law, Dr. Jose P. Laurel — declared that "the
judicial department is the only constitutional organ which can be called upon to
determine the proper allocation of powers between the several departments and
among the integral or constituent units thereof."
It is true that in Mabanag v. Lopez Vito (supra), this Court characterizing the issue
submitted thereto as a political one declined to pass upon the question whether or
not a given number of votes cast in Congress in favor of a proposed amendment to
the Constitution — which was being submitted to the people for ratification —
satisfied the three-fourths vote requirement of the fundamental law. The force of this
precedent has been weakened, however, by Suanes v. Chief Accountant of the
Senate (81 Phil. 818), Avelino v. Cuenco, (L-2851, March 4 & 14, 1949), Tañada v.
Cuenco, (L-10520, Feb. 28, 1957) and Macias v. Commission on Elections, (L-
18684, Sept. 14, 1961). In the first we held that the officers and employees of the
Senate Electoral Tribunal are under its supervision and control, not of that of the
Senate President, as claimed by the latter; in the second, this Court proceeded to
determine the number of Senators necessary for quorum in the Senate; in the third,
we nullified the election, by Senators belonging to the party having the largest
number of votes in said chamber, purporting to act, on behalf of the party having the
second largest number of votes therein of two (2) Senators belonging to the first
party, as members, for the second party, of the Senate Electoral Tribunal; and in the
fourth, we declared unconstitutional an act of Congress purporting to apportion the
representatives districts for the House of Representatives, upon the ground that the
apportionment had not been made as may be possible according to the number of
inhabitants of each province. Thus we rejected the theory, advanced in these four (4)
cases that the issues therein raised were political questions the determination of
which is beyond judicial review.
Indeed, the power to amend the Constitution or to propose amendments thereto is

not included in the general grant of legislative powers to Congress (Section 1, Art. VI,
Constitution of the Philippines). It is part of the inherent powers of the people — as
the repository sovereignty in a republican state, such as ours (Section 1, Art. 11,
Constitution of the Philippines) — to make, and, hence, to amend their own
Fundamental Law. Congress may propose amendments to the Constitution merely
because the same explicitly grants such power. (Section 1, Art. XV, Constitution of
the Philippines) Hence, when exercising the same, it is said that Senators and
members of the House of Representatives act, not as members of Congress, but as
component elements of a constituent assembly. When acting as such, the members
of Congress derive their authority from the Constitution, unlike the people, when
performing the same function, (Of amending the Constitution) for their authority
does not emanate from the Constitution — they are the very source of all powers of
government including the Constitution itself.
Since, when proposing, as a constituent assembly, amendments to the Constitution,

the members of Congress derive their authority from the Fundamental Law, it follows,
necessarily, that they do not have the final say on whether or not their acts are within
or beyond constitutional limits. Otherwise, they could brush aside and set the same
at naught, contrary to the basic tenet that ours is a government of laws, not of men,
and to the rigid nature of our Constitution. Such rigidity is stressed by the fact that the
Constitution expressly confers upon the Supreme Court, (And, inferentially, to lower
courts.) the power to declare a treaty unconstitutional. (Sec. 2(1), Art. VIII of the
Constitution), despite the eminently political character of treaty-making power.
In short, the issue whether or not a Resolution of Congress — acting as a constituent

assembly — violates the Constitution is essentially justiciable not political, and,
hence, subject to judicial review, and, to the extent that this view may be inconsistent
with the stand taken in Mabanag v. Lopez Vito, (supra) the latter should be deemed
modified accordingly. The Members of the Court are unanimous on this point.
No one can rightly claim that within the domain of its legitimate authority, the Convention is not
supreme. Nowhere in his petition and in his oral argument and memoranda does petitioner point
otherwise. Actually, what respondents and intervenors are seemingly reluctant to admit is that the
Constitutional Convention of 1971, as any other convention of the same nature, owes its existence
and derives all its authority and power from the existing Constitution of the Philippines. This
Convention has not been called by the people directly as in the case of a revolutionary convention
which drafts the first Constitution of an entirely new government born of either a war of liberation
from a mother country or of a revolution against an existing government or of a bloodless seizure of
power a la coup d'etat. As to such kind of conventions, it is absolutely true that the convention is
completely without restrain and omnipotent all wise, and it is as to such conventions that the remarks
of Delegate Manuel Roxas of the Constitutional Convention of 1934 quoted by Senator Pelaez refer.
No amount of rationalization can belie the fact that the current convention came into being only
because it was called by a resolution of a joint session of Congress acting as a constituent assembly
by authority of Section 1, Article XV of the present Constitution which provides:
ARTICLE XV — AMENDMENTS
SECTION 1. The Congress in joint session assembled, by a vote of three-fourths of

all the Members of the Senate and of the House of Representatives voting
separately, may propose amendments to this Constitution or call a convention for the
purpose. Such amendments shall be valid as part of this Constitution when approved
by a majority of the votes cast at an election at which the amendments are submitted
to the people for their ratification.
True it is that once convened, this Convention became endowed with extra ordinary powers
generally beyond the control of any department of the existing government, but the compass of such
powers can be co-extensive only with the purpose for which the convention was called and as it may
propose cannot have any effect as part of the Constitution until the same are duly ratified by the
people, it necessarily follows that the acts of convention, its officers and members are not immune
from attack on constitutional grounds. The present Constitution is in full force and effect in its entirety
and in everyone of its parts the existence of the Convention notwithstanding, and operates even
within the walls of that assembly. While it is indubitable that in its internal operation and the
performance of its task to propose amendments to the Constitution it is not subject to any degree of
restraint or control by any other authority than itself, it is equally beyond cavil that neither the
Convention nor any of its officers or members can rightfully deprive any person of life, liberty or
property without due process of law, deny to anyone in this country the equal protection of the laws
or the freedom of speech and of the press in disregard of the Bill of Rights of the existing
Constitution. Nor, for that matter, can such Convention validly pass any resolution providing for the
taking of private property without just compensation or for the imposition or exacting of any tax,
impost or assessment, or declare war or call the Congress to a special session, suspend the
privilege of the writ of habeas corpus, pardon a convict or render judgment in a controversy between
private individuals or between such individuals and the state, in violation of the distribution of powers
in the Constitution.
It being manifest that there are powers which the Convention may not and cannot validly assert,
much less exercise, in the light of the existing Constitution, the simple question arises, should an act
of the Convention be assailed by a citizen as being among those not granted to or inherent in it,
according to the existing Constitution, who can decide whether such a contention is correct or not? It
is of the very essence of the rule of law that somehow somewhere the Power and duty to resolve
such a grave constitutional question must be lodged on some authority, or we would have to confess
that the integrated system of government established by our founding fathers contains a wide
vacuum no intelligent man could ignore, which is naturally unworthy of their learning, experience and
craftsmanship in constitution-making.
We need not go far in search for the answer to the query We have posed. The very decision of Chief
Justice Concepcion in Gonzales, so much invoked by intervenors, reiterates and reinforces the
irrefutable logic and wealth of principle in the opinion written for a unanimous Court by Justice Laurel
in Angara vs. Electoral Commission, 63 Phil., 134, reading:
... (I)n the main, the Constitution has blocked out with deft strokes and in bold lines,
allotment of power to the executive, the legislative and the judicial departments of the
government. The overlapping and interlacing of functions and duties between the
several departments, however, sometimes makes it hard to say where the one
leaves off and the other begins. In times of social disquietude or political excitement,
the great landmark of the Constitution are apt to be forgotten or marred, if not entirely
obliterated. In cases of conflict, the judicial department is the only constitutional
organ which can be called upon to determine the proper allocation of powers
between the several departments and among the integral or constituent units thereof.
As any human production our Constitution is of course lacking perfection and

perfectibility, but as much as it was within the power of our people, acting through
their delegates to so provide, that instrument which is the expression of their
sovereignty however limited, has established a republican government intended to
operate and function as a harmonious whole, under a system of check and balances
and subject to specific limitations and restrictions provided in the said instrument.
The Constitution sets forth in no uncertain language the restrictions and limitations
upon governmental powers and agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution had not provided for a
mechanism by which to direct the course of government along constitutional
channels, for then the distribution of powers would be mere verbiage, the bill of rights
mere expressions of sentiment and the principles of good government mere political
apothegms. Certainly the limitations and restrictions embodied in our Constitution are
real as they should be in any living Constitution. In the United States where no
express constitutional grant is found in their constitution, the possession of this
moderating power of the courts, not to speak of its historical origin and development
there, has been set at rest by popular acquiescence for a period of more than one
and half centuries. In our case, this moderating power is granted, if not expressly, by
clear implication from section 2 of Article VIII of our Constitution.
The Constitution is a definition of the powers or government. Who is to determine the

nature, scope and extent of such powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when the judiciary mediates
to allocate constitutional boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the legislature, but
only asserts the solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and to establish for
the parties in an actual controversy the rights which that instrument secures and
guarantees to them. This is in truth all that is involved in what is termed "judicial
supremacy" which properly is the power of judicial review under the Constitution.
Even then, this power of judicial review is limited to actual cases and controversies to
be exercised after full opportunity of argument by the parties, and limited further to
the constitutional question raised or the very lis mota presented. Any attempt at
abstraction could only lead to dialectics and barren legal questions and to strike
conclusions unrelated to actualities. Narrowed as its functions is in this manner the
judiciary does not pass upon questions of wisdom, justice or expediency of
legislation. More than that, courts accord the presumption of constitutionality to
legislative enactments, not only because the legislature is presumed to abide by the
Constitution but also because the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people as expressed
through their representatives in the executive and legislative departments of the
government.
But much as we might postulate on the internal checks of power provided in our
Constitution, it ought not the less to be remembered that, in the language of James
Madison, the system itself is not "the chief palladium of constitutional liberty ... the
people who are authors of this blessing must also be its guardians ... their eyes must
be ever ready to mark, their voices to pronounce ... aggression on the authority of
their Constitution." In the last and ultimate analysis then, must the success of our
government in the unfolding years to come be tested in the crucible of Filipino minds
and hearts than in consultation rooms and court chambers.
In the case at bar, the National Assembly has by resolution (No. 8) of December 3,
1935, confirmed the election of the herein petitioner to the said body. On the other
hand, the Electoral Commission has by resolution adopted on December 9, 1935,
fixed said date as the last day for the filing of protests against the election, returns
and qualifications of members of the National Assembly; notwithstanding the
previous confirmations made by the National Assembly as aforesaid. If, as
contended by the petitioner, the resolution of the National Assembly has the effect of
cutting off the power of the Electoral Commission to entertain protests against the
election, returns and qualifications of members of the National Assembly, submitted
after December 3, 1935 then the resolution of the Electoral Commission of
December 9, 1935, is mere surplusage and had no effect. But, if, as contended by
the respondents, the Electoral Commission has the sole power of regulating its
proceedings to the exclusion of the National Assembly, then the resolution of
December 9, 1935, by which the Electoral Commission fixed said date as the last
day for filing protests against the election, returns and qualifications of members of
the National Assembly, should be upheld.
Here is then presented an actual controversy involving as it does a conflict of a grave

constitutional nature between the National Assembly on the one hand and the
Electoral Commission on the other. From the very nature of the republican
government established in our country in the light of American experience and of our
own, upon the judicial department is thrown the solemn and inescapable obligation of
interpreting the Constitution and defining constitutional boundaries. The Electoral
Commission as we shall have occasion to refer hereafter, is a constitutional organ,
created for a specific purpose, namely, to determine all contests relating to the
election, returns and qualifications of the members of the National Assembly.
Although the Electoral Commission may not be interfered with, when and while
acting within the limits of its authority, it does not follow that it is beyond the reach of
the constitutional mechanism adopted by the people and that it is not subject to
constitutional restriction. The Electoral Commission is not a separate department of
the government, and even if it were, conflicting claims of authority under the
fundamental law between departmental powers and agencies of the government are
necessarily determined by the judiciary in justiciable and appropriate cases.
Discarding the English type and other European types of constitutional government,
the framers of our Constitution adopted the American type where the written
constitution is interpreted and given effect by the judicial department. In some
countries which have declined to follow the American example, provisions have been
inserted in their constitutions prohibiting the courts from exercising the power to
interpret the fundamental law. This is taken as a recognition of what otherwise would
be the rule that in the absence of direct prohibition, courts are bound to assume what
is logically their function. For instance, the Constitution of Poland of 1921 expressly
provides that courts shall have no power to examine the validity of statutes (art. 81,
Chap. IV). The former Austrian Constitution contained a similar declaration. In
countries whose constitution are silent in this respect, courts have assumed this
power. This is true in Norway, Greece, Australia and South Africa. Whereas, in
Czechoslovakia (arts. 2 and 3, Preliminary Law to Constitutional Charter of the
Czechoslavak, Republic, February 29, 1920) and Spain (arts. 121-123, Title IX,
Constitution of the Republic of 1931) especial constitutional courts are established to
pass upon the validity of ordinary laws. In our case, the nature of the present
controversy shows the necessity of a final constitutional arbiter to determine the
conflict of authority between two agencies created by the Constitution. Were we to
decline to take cognizance of the controversy, who will determine the conflict? And if
the conflict were left undecided and undetermined, would not a void be thus created
in our constitutional system which may in the long run prove destructive of the entire
framework? To ask these questions is to answer them. Natura vacuum abhorret, so
must we avoid exhaustion in our constitutional system. Upon principle, reason, and
authority, we are clearly of the opinion that upon the admitted facts of the present
case, this court has jurisdiction over the Electoral Commission and the subject matter
of the present controversy for the purpose of determining the character, scope and
extent of the constitutional grant to the Electoral Commission as "the sole judge of all
contests relating to the election, returns and qualifications of the members of the
National Assembly." .
As the Chief Justice has made it clear in Gonzales, like Justice Laurel did in Angara, these
postulates just quoted do not apply only to conflicts of authority between the three existing regular
departments of the government but to all such conflicts between and among these departments, or,
between any of them, on the one hand, and any other constitutionally created independent body, like
the electoral tribunals in Congress, the Comelec and the Constituent assemblies constituted by the
House of Congress, on the other. We see no reason of logic or principle whatsoever, and none has
been convincingly shown to Us by any of the respondents and intervenors, why the same ruling
should not apply to the present Convention, even if it is an assembly of delegate elected directly by
the people, since at best, as already demonstrated, it has been convened by authority of and under
the terms of the present Constitution..
Accordingly, We are left with no alternative but to uphold the jurisdiction of the Court over the
present case. It goes without saying that We do this not because the Court is superior to the
Convention or that the Convention is subject to the control of the Court, but simply because both the
Convention and the Court are subject to the Constitution and the rule of law, and "upon principle,
reason and authority," per Justice Laurel, supra, it is within the power as it is the solemn duty of the
Court, under the existing Constitution to resolve the issues in which petitioner, respondents and
intervenors have joined in this case.
II
The issue of jurisdiction thus resolved, We come to the crux of the petition. Is it within the powers of
the Constitutional Convention of 1971 to order, on its own fiat, the holding of a plebiscite for the
ratification of the proposed amendment reducing to eighteen years the age for the exercise of
suffrage under Section 1 of Article V of the Constitution proposed in the Convention's Organic
Resolution No. 1 in the manner and form provided for in said resolution and the subsequent
implementing acts and resolution of the Convention?
At the threshold, the environmental circumstances of this case demand the most accurate and
unequivocal statement of the real issue which the Court is called upon to resolve. Petitioner has very
clearly stated that he is not against the constitutional extension of the right of suffrage to the
eighteen-year-olds, as a matter of fact, he has advocated or sponsored in Congress such a
proposal, and that, in truth, the herein petition is not intended by him to prevent that the proposed
amendment here involved be submitted to the people for ratification, his only purpose in filing the
petition being to comply with his sworn duty to prevent, Whenever he can, any violation of the
Constitution of the Philippines even if it is committed in the course of or in connection with the most
laudable undertaking. Indeed, as the Court sees it, the specific question raised in this case is limited
solely and only to the point of whether or not it is within the power of the Convention to call for a
plebiscite for the ratification by the people of the constitutional amendment proposed in the
abovequoted Organic Resolution No. 1, in the manner and form provided in said resolution as well
as in the subject question implementing actions and resolution of the Convention and its officers, at
this juncture of its proceedings, when as it is a matter of common knowledge and judicial notice, it is
not set to adjourn sine die, and is, in fact, still in the preliminary stages of considering other reforms
or amendments affecting other parts of the existing Constitution; and, indeed, Organic Resolution
No. 1 itself expressly provides, that the amendment therein proposed "shall be without prejudice to
other amendments that will be proposed in the future by the 1971 Constitutional Convention on other
portions of the amended section or on other portions of the entire Constitution." In other words,
nothing that the Court may say or do, in this case should be understood as reflecting, in any degree
or means the individual or collective stand of the members of the Court on the fundamental issue of
whether or not the eighteen-year-olds should be allowed to vote, simply because that issue is not
before Us now. There should be no doubt in the mind of anyone that, once the Court finds it
constitutionally permissible, it will not hesitate to do its part so that the said proposed amendment
may be presented to the people for their approval or rejection.
Withal, the Court rests securely in the conviction that the fire and enthusiasm of the youth have not
blinded them to the absolute necessity, under the fundamental principles of democracy to which the
Filipino people is committed, of adhering always to the rule of law. Surely, their idealism, sincerity
and purity of purpose cannot permit any other line of conduct or approach in respect of the problem
before Us. The Constitutional Convention of 1971 itself was born, in a great measure, because of
the pressure brought to bear upon the Congress of the Philippines by various elements of the
people, the youth in particular, in their incessant search for a peaceful and orderly means of bringing
about meaningful changes in the structure and bases of the existing social and governmental
institutions, including the provisions of the fundamental law related to the well-being and economic
security of the underprivileged classes of our people as well as those concerning the preservation
and protection of our natural resources and the national patrimony, as an alternative to violent and
chaotic ways of achieving such lofty ideals. In brief, leaving aside the excesses of enthusiasm which
at times have justifiably or unjustifiably marred the demonstrations in the streets, plazas and
campuses, the youth of the Philippines, in general, like the rest of the people, do not want confusion
and disorder, anarchy and violence; what they really want are law and order, peace and orderliness,
even in the pursuit of what they strongly and urgently feel must be done to change the present order
of things in this Republic of ours. It would be tragic and contrary to the plain compulsion of these
perspectives, if the Court were to allow itself in deciding this case to be carried astray by
considerations other than the imperatives of the rule of law and of the applicable provisions of the
Constitution. Needless to say, in a larger measure than when it binds other departments of the
government or any other official or entity, the Constitution imposes upon the Court the sacred duty to
give meaning and vigor to the Constitution, by interpreting and construing its provisions in
appropriate cases with the proper parties, and by striking down any act violative thereof. Here, as in
all other cases, We are resolved to discharge that duty.
During these twice when most anyone feels very strongly the urgent need for constitutional reforms,
to the point of being convinced that meaningful change is the only alternative to a violent revolution,
this Court would be the last to put any obstruction or impediment to the work of the Constitutional
Convention. If there are respectable sectors opining that it has not been called to supplant the
existing Constitution in its entirety, since its enabling provision, Article XV, from which the
Convention itself draws life expressly speaks only of amendments which shall form part of it, which
opinion is not without persuasive force both in principle and in logic, the seemingly prevailing view is
that only the collective judgment of its members as to what is warranted by the present condition of
things, as they see it, can limit the extent of the constitutional innovations the Convention may
propose, hence the complete substitution of the existing constitution is not beyond the ambit of the
Convention's authority. Desirable as it may be to resolve, this grave divergence of views, the Court
does not consider this case to be properly the one in which it should discharge its constitutional duty
in such premises. The issues raised by petitioner, even those among them in which respondents and
intervenors have joined in an apparent wish to have them squarely passed upon by the Court do not
necessarily impose upon Us the imperative obligation to express Our views thereon. The Court
considers it to be of the utmost importance that the Convention should be untrammelled and
unrestrained in the performance of its constitutionally as signed mission in the manner and form it
may conceive best, and so the Court may step in to clear up doubts as to the boundaries set down
by the Constitution only when and to the specific extent only that it would be necessary to do so to
avoid a constitutional crisis or a clearly demonstrable violation of the existing Charter. Withal, it is a
very familiar principle of constitutional law that constitutional questions are to be resolved by the
Supreme Court only when there is no alternative but to do it, and this rule is founded precisely on the
principle of respect that the Court must accord to the acts of the other coordinate departments of the
government, and certainly, the Constitutional Convention stands almost in a unique footing in that
regard.
In our discussion of the issue of jurisdiction, We have already made it clear that the Convention
came into being by a call of a joint session of Congress pursuant to Section I of Article XV of the
Constitution, already quoted earlier in this opinion. We reiterate also that as to matters not related to
its internal operation and the performance of its assigned mission to propose amendments to the
Constitution, the Convention and its officers and members are all subject to all the provisions of the
existing Constitution. Now We hold that even as to its latter task of proposing amendments to the
Constitution, it is subject to the provisions of Section I of Article XV. This must be so, because it is
plain to Us that the framers of the Constitution took care that the process of amending the same
should not be undertaken with the same ease and facility in changing an ordinary legislation.
Constitution making is the most valued power, second to none, of the people in a constitutional
democracy such as the one our founding fathers have chosen for this nation, and which we of the
succeeding generations generally cherish. And because the Constitution affects the lives, fortunes,
future and every other conceivable aspect of the lives of all the people within the country and those
subject to its sovereignty, every degree of care is taken in preparing and drafting it. A constitution
worthy of the people for which it is intended must not be prepared in haste without adequate
deliberation and study. It is obvious that correspondingly, any amendment of the Constitution is of no
less importance than the whole Constitution itself, and perforce must be conceived and prepared
with as much care and deliberation. From the very nature of things, the drafters of an original
constitution, as already observed earlier, operate without any limitations, restraints or inhibitions
save those that they may impose upon themselves. This is not necessarily true of subsequent
conventions called to amend the original constitution. Generally, the framers of the latter see to it
that their handiwork is not lightly treated and as easily mutilated or changed, not only for reasons
purely personal but more importantly, because written constitutions are supposed to be designed so
as to last for some time, if not for ages, or for, at least, as long as they can be adopted to the needs
and exigencies of the people, hence, they must be insulated against precipitate and hasty actions
motivated by more or less passing political moods or fancies. Thus, as a rule, the original
constitutions carry with them limitations and conditions, more or less stringent, made so by the
people themselves, in regard to the process of their amendment. And when such limitations or
conditions are so incorporated in the original constitution, it does not lie in the delegates of any
subsequent convention to claim that they may ignore and disregard such conditions because they
are as powerful and omnipotent as their original counterparts.
Nothing of what is here said is to be understood as curtailing in any degree the number and nature
and the scope and extent of the amendments the Convention may deem proper to propose. Nor
does the Court propose to pass on the issue extensively and brilliantly discussed by the parties as to
whether or not the power or duty to call a plebiscite for the ratification of the amendments to be
proposed by the Convention is exclusively legislative and as such may be exercised only by the
Congress or whether the said power can be exercised concurrently by the Convention with the
Congress. In the view the Court takes of present case, it does not perceive absolute necessity to
resolve that question, grave and important as it may be. Truth to tell, the lack of unanimity or even of
a consensus among the members of the Court in respect to this issue creates the need for more
study and deliberation, and as time is of the essence in this case, for obvious reasons, November 8,
1971, the date set by the Convention for the plebiscite it is calling, being nigh, We will refrain from
making any pronouncement or expressing Our views on this question until a more appropriate case
comes to Us. After all, the basis of this decision is as important and decisive as any can be.
The ultimate question, therefore boils down to this: Is there any limitation or condition in Section 1 of
Article XV of the Constitution which is violated by the act of the Convention of calling for a plebiscite
on the sole amendment contained in Organic Resolution No. 1? The Court holds that there is, and it
is the condition and limitation that all the amendments to be proposed by the same Convention must
be submitted to the people in a single "election" or plebiscite. It being indisputable that the
amendment now proposed to be submitted to a plebiscite is only the first amendment the
Convention propose We hold that the plebiscite being called for the purpose of submitting the same
for ratification of the people on November 8, 1971 is not authorized by Section 1 of Article XV of the
Constitution, hence all acts of the Convention and the respondent Comelec in that direction are null
and void.
We have arrived at this conclusion for the following reasons:
1. The language of the constitutional provision aforequoted is sufficiently clear. lt says distinctly that
either Congress sitting as a constituent assembly or a convention called for the purpose "may
propose amendments to this Constitution," thus placing no limit as to the number of amendments
that Congress or the Convention may propose. The same provision also as definitely provides that
"such amendments shall be valid as part of this Constitution when approved by a majority of the
votes cast at an election at which the amendments are submitted to the people for their ratification,"
thus leaving no room for doubt as to how many "elections" or plebiscites may be held to ratify any
amendment or amendments proposed by the same constituent assembly of Congress or convention,
and the provision unequivocably says "an election" which means only one.
(2) Very little reflection is needed for anyone to realize the wisdom and appropriateness of this
provision. As already stated, amending the Constitution is as serious and important an undertaking
as constitution making itself. Indeed, any amendment of the Constitution is as important as the
whole of it if only because the Constitution has to be an integrated and harmonious instrument, if it is
to be viable as the framework of the government it establishes, on the one hand, and adequately
formidable and reliable as the succinct but comprehensive articulation of the rights, liberties,
ideology, social ideals, and national and nationalistic policies and aspirations of the people, on the
other. lt is inconceivable how a constitution worthy of any country or people can have any part which
is out of tune with its other parts..
A constitution is the work of the people thru its drafters assembled by them for the purpose. Once
the original constitution is approved, the part that the people play in its amendment becomes harder,
for when a whole constitution is submitted to them, more or less they can assumed its harmony as
an integrated whole, and they can either accept or reject it in its entirety. At the very least, they can
examine it before casting their vote and determine for themselves from a study of the whole
document the merits and demerits of all or any of its parts and of the document as a whole. And so
also, when an amendment is submitted to them that is to form part of the existing constitution, in like
fashion they can study with deliberation the proposed amendment in relation to the whole existing
constitution and or any of its parts and thereby arrive at an intelligent judgment as to its acceptability.
This cannot happen in the case of the amendment in question. Prescinding already from the fact that
under Section 3 of the questioned resolution, it is evident that no fixed frame of reference is provided
the voter, as to what finally will be concomitant qualifications that will be required by the final draft of
the constitution to be formulated by the Convention of a voter to be able to enjoy the right of
suffrage, there are other considerations which make it impossible to vote intelligently on the
proposed amendment, although it may already be observed that under Section 3, if a voter would
favor the reduction of the voting age to eighteen under conditions he feels are needed under the
circumstances, and he does not see those conditions in the ballot nor is there any possible indication
whether they will ever be or not, because Congress has reserved those for future action, what kind
of judgment can he render on the proposal?
But the situation actually before Us is even worse. No one knows what changes in the fundamental
principles of the constitution the Convention will be minded to approve. To be more specific, we do
not have any means of foreseeing whether the right to vote would be of any significant value at all.
Who can say whether or not later on the Convention may decide to provide for varying types of
voters for each level of the political units it may divide the country into. The root of the difficulty in
other words, lies in that the Convention is precisely on the verge of introducing substantial changes,
if not radical ones, in almost every part and aspect of the existing social and political order enshrined
in the present Constitution. How can a voter in the proposed plebiscite intelligently determine the
effect of the reduction of the voting age upon the different institutions which the Convention may
establish and of which presently he is not given any idea?
We are certain no one can deny that in order that a plebiscite for the ratification of an amendment to
the Constitution may be validly held, it must provide the voter not only sufficient time but ample basis
for an intelligent appraisal of the nature of the amendment per se as well as its relation to the other
parts of the Constitution with which it has to form a harmonious whole. In the context of the present
state of things, where the Convention has hardly started considering the merits of hundreds, if not
thousands, of proposals to amend the existing Constitution, to present to the people any single
proposal or a few of them cannot comply with this requirement. We are of the opinion that the
present Constitution does not contemplate in Section 1 of Article XV a plebiscite or "election"
wherein the people are in the dark as to frame of reference they can base their judgment on. We
reject the rationalization that the present Constitution is a possible frame of reference, for the simple
reason that intervenors themselves are stating that the sole purpose of the proposed amendment is
to enable the eighteen year olds to take part in the election for the ratification of the Constitution to
be drafted by the Convention. In brief, under the proposed plebiscite, there can be, in the language
of Justice Sanchez, speaking for the six members of the Court in Gonzales, supra, "no proper
submission".
III
The Court has no desire at all to hamper and hamstring the noble work of the Constitutional
Convention. Much less does the Court want to pass judgment on the merits of the proposal to allow
these eighteen years old to vote. But like the Convention, the Court has its own duties to the people
under the Constitution which is to decide in appropriate cases with appropriate parties Whether or
not the mandates of the fundamental law are being complied with. In the best light God has given
Us, we are of the conviction that in providing for the questioned plebiscite before it has finished, and
separately from, the whole draft of the constitution it has been called to formulate, the Convention's
Organic Resolution No. 1 and all subsequent acts of the Convention implementing the same violate
the condition in Section 1, Article XV that there should only be one "election" or plebiscite for the
ratification of all the amendments the Convention may propose. We are not denying any right of the
people to vote on the proposed amendment; We are only holding that under Section 1, Article XV of
the Constitution, the same should be submitted to them not separately from but together with all the
other amendments to be proposed by this present Convention.
IN VIEW OF ALL THE FOREGOING, the petition herein is granted. Organic Resolution No. 1 of the
Constitutional Convention of 1971 and the implementing acts and resolutions of the Convention,
insofar as they provide for the holding of a plebiscite on November 8, 1971, as well as the resolution
of the respondent Comelec complying therewith (RR Resolution No. 695) are hereby declared null
and void. The respondents Comelec, Disbursing Officer, Chief Accountant and Auditor of the
Constitutional Convention are hereby enjoined from taking any action in compliance with the said
organic resolution. In view of the peculiar circumstances of this case, the Court declares this
decision immediately executory. No costs.
Concepcion, C.J., Teehankee, Villamor and Makasiar, JJ., concur.

Separate Opinions

MAKALINTAL, J., reserves his vote —
I reserve my vote. The resolution in question is voted down by a sufficient majority of the Court on
just one ground, which to be sure achieves the result from the legal and constitutional viewpoint. I
entertain grave doubts as to the validity of the premises postulated and conclusions reached in
support of the dispositive portion of the decision. However, considering the urgent nature of this
case, the lack of time to set down at length my opinion on the particular issue upon which the
decision is made to rest, and the fact that a dissent on the said issue would necessarily be
inconclusive unless the other issues raised in the petition are also considered and ruled upon — a
task that would be premature and pointless at this time — I limit myself to this reservation.
REYES, J.B.L., ZALDIVAR, CASTRO and MAKASIAR, JJ., concurring:
We concur in the main opinion penned by Mr. Justice Barredo in his usual inimitable, forthright and
vigorous style. Like him, we do not express our individual views on the wisdom of the proposed
constitutional amendment, which is not in issue here because it is a matter that properly and
exclusively addresses itself to the collective judgment of the people.
We must, however, articulate two additional objections of constitutional dimension which, although
they would seem to be superfluous because of the reach of the basic constitutional infirmity
discussed in extenso in the main opinion, nevertheless appear to us to be just as fundamental in
character and scope.
Assuming that the Constitutional Convention has power to propose piecemeal amendments and
submit each separately to the people for ratification, we are nonetheless persuaded that (1) that
there is no proper submission of title proposed amendment in question within the meaning and
intendment of Section 1 of Article XV of the Constitution, and (2) that the forthcoming election
is not the proper election envisioned by the same provision of the Constitution.
Mr. Justice C. V. Sanchez, in his dissent in Gonzales vs. Commission on

Elections and Philippine Constitution Association vs. Commission on Elections, expounded his
1 2
view, with which we essentially agree, on the minimum requirements that must be met in order that
there can be a proper submission to the people of a proposed constitutional amendment. This is
what he said:
... amendments must be fairly laid before the people for their blessing or spurning.
The people are not to be mere rubber stamps. They are not to vote blindly. They
must be afforded ample opportunity to mull over the original provisions, compare
them with the proposed amendments, and try to reach a conclusion as the dictates of
their conscience suggest, free from the incubus of extraneous or possibly insidious
influences. We believe the word "submitted" can only mean that the government,
within its maximum capabilities, should strain every effort to inform citizen of the
provisions to be amended, and the proposed amendments and the meaning, nature
and effects thereof. By this, we are not to be understood as saying that, if one citizen
or 100 citizens or 1,000 citizens cannot be reached, then there is no submission
within the meaning of the word as intended by the framers of the Constitution. What
the Constitution in effect directs is that the government, in submitting an amendment
for ratification, should put every instrumentality or agency within its structural
framework to enlighten the people, educate them with respect to their act of
ratification or rejection. For we have earlier stated, one thing is submission and
another is ratification. There must be fair submission, intelligent consent or rejection."
.
The second constitutional objection was given expression by one of the writers of this concurring
opinion, in the following words:
I find it impossible to believe that it was ever intended by its framers that such
amendment should be submitted and ratified by just "a majority of the votes cast at
an election at which the amendments are submitted to the people for their
ratification", if the concentration of the people's attention thereon is to be diverted by
other extraneous issues, such as the choice of local and national officials. The
framers of the Constitution, aware of the fundamental character thereof, and of the
need of giving it as much stability as is practicable, could have only meant that any
amendments thereto should be debated, considered and voted upon an election
wherein the people could devote undivided attention to the subject. 4
True it is that the question posed by the proposed amendment, "Do you or do you not want the 18-
year old to be allowed to vote?," would seem to be uncomplicated and innocuous. But it is one of
life's verities that things which appear to be simple may turn out not to be so simple after all.
A number of doubts or misgivings could conceivably and logically assail the average voter. Why
should the voting age be lowered at all, in the first place? Why should the new voting age be
precisely 18 years, and not 19 or 20? And why not 17? Or even 16 or 15? Is the 18-year old as
mature as the 21-year old so that there is no need of an educational qualification to entitle him to
vote? In this age of permissiveness and dissent, can the 18-year old be relied upon to vote with
judiciousness when the 21-year old, in the past elections, has not performed so well? If the proposed
amendment is voted down by the people, will the Constitutional Convention insist on the said
amendment? Why is there an unseemly haste on the part of the Constitutional Convention in having
this particular proposed amendment ratified at this particular time? Do some of the members of the
Convention have future political plans which they want to begin to subserve by the approval this year
of this amendment? If this amendment is approved, does it thereby mean that the 18-year old should
now also shoulder the moral and legal responsibilities of the 21-year old? Will he be required to
render compulsory military service under the colors? Will the age of contractual consent be reduced
to 18 years? If I vote against this amendment, will I not be unfair to my own child who will be 18
years old, come 1973? .
The above are just samplings from here, there and everywhere — from a domain (of searching
questions) the bounds of which are not immediately ascertainable. Surely, many more questions can
be added to the already long litany. And the answers cannot be had except as the questions are
debated fully, pondered upon purposefully, and accorded undivided attention.
Scanning the contemporary scene, we say that the people are not, and by election time will not be,
sufficiently informed of the meaning, nature and effects of the proposed constitutional amendment.
They have not been afforded ample time to deliberate thereon conscientiously. They have been and
are effectively distracted from a full and dispassionate consideration of the merits and demerits of
the proposed amendment by their traditional pervasive involvement in local elections and politics.
They cannot thus weigh in tranquility the need for and the wisdom of the proposed amendment.
Upon the above disquisition, it is our considered view that the intendment of the words, "at an
election at which the amendments are submitted to the people for their ratification," embodied in
Section 1 of Article XV of the Constitution, has not been met.
FERNANDO, J., concurring and dissenting:
There is much to be said for the opinion of the Court penned by Justice Barredo, characterized by
clarity and vigor, its manifestation of fealty to the rule of law couched in eloquent language, that
commands assent. As the Constitution occupies the topmost rank in the hierarchy of legal norms,
Congress and Constitutional Convention alike, no less than this Court, must bow to its supremacy.
Thereby constitutionalism asserts itself. With the view I entertain of what is allowable, if not indeed
required by the Constitution, my conformity does not extend as far as the acceptance of the
conclusion reached. The question presented is indeed novel, not being controlled by constitutional
prescription, definite and certain. Under the circumstances, with the express recognition in the
Constitution of the powers of the Constitutional Convention to propose amendments, I cannot
discern any objection to the validity of its action there being no legal impediment that would call for
its nullification. Such an approach all the more commends itself to me considering that what was
sought to be done is to refer the matter to the people in whom, according to our Constitution,
sovereignty resides. It is in that sense that, with due respect, I find myself unable to join my brethren.
I. It is understandable then why the decisive issue posed could not be resolved by reliance on,
implicit in the petition and the answer of intervenors, such concepts as legislative control of the
constitutional convention referred to by petitioner on the one hand or, on the other, the theory of
conventional sovereignty favored by intervenors. It is gratifying to note that during the oral argument
of petitioner and counsel for respondents and intervenors, there apparently was a retreat from such
extreme position, all parties, as should be the case, expressly avowing the primacy of the
Constitution, the applicable provision of which as interpreted by this Court, should be controlling on
both Congress and the Convention. It cannot be denied though that in at least one American state,
that is Pennsylvania, there were decisions announcing the doctrine that the powers to be exercised
by a constitutional convention are dependent on a legislative grant, in the absence of any authority
conferred directly by the fundamental law. The result is a convention that is subordinate to the
lawmaking body. Its field of competence is circumscribed. It has to look to the latter for the
delimitation of its permissible scope of activity. It is thus made subordinate to the legislature.
Nowhere has such a view been more vigorously expressed than in the Pennsylvania case of Wood's
Appeal. Its holding though finds no support under our constitutional provision.
1
It does not thereby follow that while free from legislative control, a constitutional convention may lay
claim to an attribute sovereign in character. The Constitution is quite explicit that it is to the people,
and to the people alone, in whom sovereignty resides. Such a prerogative is therefore withheld from
2
a convention. It is an agency entrusted with the responsibility of high import and significance it is
true; it is denied unlimited legal competence though. That is what sovereignty connotes. It has to
yield to the superior force of the Constitution. There can then be no basis for the exaggerated
pretension that it is an alter ego of the people. It is to be admitted that there are some American
state decisions, the most notable of which is Sproule v. Fredericks, a Mississippi case, that dates
3
back to 1892, that yield a different conclusion. The doctrine therein announced cannot bind us. Our
Constitution makes clear that the power of a constitutional convention is not sovereign. It is
appropriately termed constituent, limited as it is to the purpose of drafting a constitution or proposing
revision or amendments to one in existence, subject in either case to popular approval.
The view that commends itself for acceptance is that legislature and constitutional convention, alike
recognized by the Constitution, are coordinate, there being no superiority of one over the other.
Insofar as the constituent power of proposing amendments to the Constitution is concerned, a
constitutional convention enjoys a wide sphere of autonomy consistently with the Constitution which
can be the only source of valid restriction on its competence. It is true it is to the legislative body that
the call to a convention must proceed, but once convened, it cannot in any wise be interfered with,
much less controlled by Congress. A contrary conclusion would impair its usefulness for the delicate,
and paramount task assigned to it. A convention then is to be looked upon as if it were one of the
three coordinate departments which under the principle of separation of powers is supreme within its
field and has exclusive cognizance of matters properly subject to its jurisdiction. A succinct
statement of the appropriate principle that should govern the relationship between a constitutional
convention and a legislative body under American law is that found in Orfield's work. Thus: "The
earliest view seems to have been that a convention was absolute. The convention was sovereign
and subject to no restraint. On the other hand, Jameson, whose views have been most frequently
cited in decisions, viewed a convention as a body with strictly limited powers, and subject to the
restrictions imposed on it by the legislative call. A third and intermediate view is that urged by Dodd
— that a convention, though not sovereign, is a body independent of the legislature; it is bound by
the existing constitution, but not by the acts of the legislature, as to the extent of its constituent
power. This view has become increasingly prevalent in the state decisions." 4
2. It is to the Constitution, and to the Constitution alone then, as so vigorously stressed in the opinion
of the Court, that any limitation on the power the Constitutional, Convention must find its source. I
turn to its Article XV. It reads: "The Congress in joint session assembled, by a vote of three fourths of
all the Members of the Senate and of the House of Representatives voting separately, may propose
amendments to this Constitution or call a convention for that purpose. Such amendments shall be
valid as part of this Constitution when approved by a majority of the votes cast at an election at
which the amendments are submitted to the people for their ratification."
Clearly, insofar as amendments, including revision, are concerned, there are two steps, proposal
and thereafter ratification. Thus as to the former, two constituent bodies are provided for, the
Congress of the Philippines in the mode therein provided, and a constitutional convention that may
be called into being. Once assembled, a constitutional convention, like the Congress of the
Philippines, possesses in all its plenitude the constituent power. Inasmuch as Congress may
determine what amendments it would have the people ratify and thereafter take all the steps
necessary so that the approval or disapproval of the electorate may be obtained, the convention
likewise, to my mind, should be deemed possessed of all the necessary authority to assure that
whatever amendments it seeks to introduce would be submitted to the people at an election called
for that purpose. It would appear to me that to view the convention as being denied a prerogative
which is not withheld from Congress as a constituent body would be to place it in an inferior
category. Such a proposition I do not find acceptable. Congress and constitutional convention are
agencies for submitting proposals under the fundamental law. A power granted to one should not be
denied the other. No justification for such a drastic differentiation either in theory or practice exists.
Such a conclusion has for me the added reinforcement that to require ordinary legislation before the
convention could be enabled to have its proposals voted on by the people would be to place a power
in the legislative and executive branches that could, whether by act or omission, result in the
frustration of the amending process. I am the first to admit that such likelihood is remote, but if such
a risk even if minimal could be avoided, it should be, unless the compelling force of an applicable
constitutional provision requires otherwise. Considering that a constitutional convention is not
precluded from imposing additional restrictions on the powers of either the executive or legislative
branches, or, for that matter, the judiciary, it would appear to be the better policy to interpret Article
XV in such a way that would not sanction such restraint on the authority that must be recognized as
vested in a constitutional convention. There is nothing in such a view that to my mind would collide
with a reasonable interpretation of Article XV. It certainly is one way by which freed from pernicious
abstractions, it would be easier to accommodate a constitution to the needs of an unfolding future.
That is to facilitate its being responsive to the challenge that time inevitably brings in its wake.
From such an approach then, I am irresistibly led to the conclusion that the challenged resolution
was well within the power of the convention. That would be to brush aside the web of unreality spun
from a too-restrictive mode of appraising the legitimate scope of its competence. That would be, for
me, to give added vigor and life to the conferment of authority vested in it, attended by such grave
and awesome responsibility.
3. It becomes pertinent to inquire then whether the last sentence of Article XV providing that such
amendment shall be valid when submitted and thereafter approved by the majority of the votes cast
by the people at an election is a bar to the proposed submission. It is the conclusion arrived at by my
brethren that there is to be only one election and that therefore the petition must be sustained as
only when the convention has finished its work should all amendments proposed be submitted for
ratification. That is not for me, and I say this with respect, the appropriate interpretation. It is true that
the Constitution uses the word "election" in the singular, but that is not decisive. No undue reliance
should be accorded rules of grammar; they do not exert a compelling force in constitutional
interpretation. Meaning is to be sought not from specific language in the singular but from the mosaic
of significance derived from the total context. It could be, if it were not thus, self-defeating. Such a
mode of construction does not commend itself. The words used in the Constitution are not inert; they
derive vitality from the obvious purposes at which they are aimed. Petitioner's stress on linguistic
refinement, while not implausible does not, for me, carry the day.
It was likewise argued by petitioner that the proposed amendment is provisional and therefore is not
such as was contemplated in this article. I do not find such contention convincing. The fact that the
Constitutional Convention did seek to consult the wishes of the people by the proposed submission
of a tentative amendatory provision is an argument for its validity. It might be said of course that until
impressed with finality, an amendment is not to be passed upon by the electorate. There is
plausibility in such a view. A literal reading of the Constitution would support it. The spirit that informs
it though would not, for me, be satisfied. From its silence I deduce the inference that there is no
repugnancy to the fundamental law when the Constitutional Convention ascertains the popular will.
In that sense, the Constitution, to follow the phraseology of Thomas Reed Powel, is not silently silent
but silently vocal. What I deem the more important consideration is that while a public official, as an
agent, has to locate his source of authority in either Constitution or statute, the people, as the
principal, can only be limited in the exercise of their sovereign powers by the express terms of the
Constitution. A concept to the contrary would to my way of thinking be inconsistent with the
fundamental principle that it is in the people, and the people alone, that sovereignty resides.
4. The constitutional Convention having acted within the scope of its authority, an action to restrain
or prohibit respondent Commission on Elections from conducting the plebiscite does not lie. It should
not be lost sight of that the Commission on Elections in thus being charged with such a duty does
not act in its capacity as the constitutional agency to take charge of all laws relative to the conduct of
election. That is a purely executive function vested in it under Article X of the Constitution. It is not
5
precluded from assisting the Constitutional Convention if pursuant to its competence to amend the
fundamental law it seeks, as in this case, to submit a proposal, even if admittedly tentative, to the
electorate to ascertain its verdict. At any rate, it may be implied that under the 1971 Constitutional
Convention Act, it is not to turn a deaf ear to a summons from the Convention to aid it in the
legitimate discharge of its functions. 6
The aforesaid considerations, such as they are, but which for me have a force that I mind myself
unable to overcome, leave me no alternative but to dissent from my brethren, with due
acknowledgement of course that from their basic premises, the conclusion arrived at by them cannot
be characterized as in any wise bereft of a persuasive quality of a high order.

G.R. No. L-36142 March 31, 1973
JOSUE JAVELLANA, petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY
OF JUSTICE AND THE SECRETARY OF FINANCE, respondents.
G.R. No. L-36164 March 31, 1973
VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES, MANUEL CRUDO, ANTONIO U.

MIRANDA, EMILIO DE PERALTA AND LORENZO M. TAÑADA, petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE , THE SECRETARY OF
JUSTICE, THE SECRETARY OF LAND REFORM, THE SECRETARY OF NATIONAL DEFENSE,
THE AUDITOR GENERAL, THE BUDGET COMMISSIONER, THE CHAIRMAN OF
PRESIDENTIAL COMMISSION ON REORGANIZATION, THE TREASURER OF THE
PHILIPPINES, THE COMMISSION ON ELECTIONS AND THE COMMISSIONER OF CIVIL
SERVICE, respondents.
G.R. No. L-36165 March 31, 1973.
GERARDO ROXAS, AMBROSIO PADILLA, JOVITO R. SALONGA, SALVADOR H. LAUREL,

RAMON V. MITRA, JR. and EVA ESTRADA-KALAW, petitioners,
vs.
ALEJANDRO MELCHOR, in his capacity as Executive Secretary; JUAN PONCE ENRILE, in his
capacity as Secretary of National Defense; General ROMEO ESPINO, in his capacity as Chief
of Staff of the Armed Forces of the Philippines; TANCIO E. CASTAÑEDA, in his capacity as
Secretary General Services; Senator GIL J. PUYAT, in his capacity as President of the
Senate; and Senator JOSE ROY, his capacity, as President Pro Tempore of the of the
Senate, respondents.
G.R. No. L-36236 March 31, 1973
EDDIE B. MONTECLARO, [personally and in his capacity as President of the National Press
Club of the Philippines], petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF PUBLIC INFORMATION, THE AUDITOR
GENERAL, THE BUDGET COMMISSIONER & THE NATIONAL TREASURER, respondents.
G.R. No. L-36283 March 31, 1973
NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., LEONARDO ASODISEN, JR., and RAUL
M. GONZALEZ, petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, THE HONORABLE SECRETARY OF NATIONAL
DEFENSE, THE HONORABLE BUDGET COMMISSIONER, THE HONORABLE AUDITOR
GENERAL, respondents.
Ramon A. Gonzales for petitioner Josue Javellana.

Lorenzo M. Tañada and Associates for petitioners Vidal Tan, et al.
Tañada, Salonga, Ordoñez, Rodrigo, Sanidad, Roxas. Gonzales and Arroyo for petitioners Gerardo
Roxas, et al.
Joker P. Arroyo and Rogelio B. Padilla for petitioner Eddie Monteclaro.
Raul M. Gonzales and Associates for petitioners Napoleon V. Dilag, et al.
Arturo M. Tolentino for respondents Gil J. Puyat and Jose Roy.
Office of the Solicitor General Estelito P. Mendoza, Solicitor Vicente V. Mendoza and Solicitor
Reynato S. Puno for other respondents.
RESOLUTION
CONCEPCION, C.J.:
The above-entitled five (5) cases are a sequel of cases G.R. Nos. L-35925,
L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965 and
L-35979, decided on January 22, 1973, to which We will hereafter refer collectively as the plebiscite
cases.
Background of the Plebiscite Cases.
The factual setting thereof is set forth in the decision therein rendered, from which We quote:
On March 16, 1967, Congress of the Philippines passed Resolution No. 2, which was
amended by Resolution No. 4 of said body, adopted on June 17, 1969, calling a
Convention to propose amendments to the Constitution of the Philippines. Said
Resolution No. 2, as amended, was implemented by Republic Act No. 6132,
approved on August 24, 1970, pursuant to the provisions of which the election of
delegates to said Convention was held on November 10, 1970, and the 1971
Constitutional Convention began to perform its functions on June 1, 1971. While the
Convention was in session on September 21, 1972, the President issued
Proclamation No. 1081 placing the entire Philippines under Martial Law. On
November 29, 1972, the Convention approved its Proposed Constitution of the
Republic of the Philippines. The next day, November 30, 1972, the President of the
Philippines issued Presidential Decree No. 73, "submitting to the Filipino people for
ratification or rejection the Constitution of the Republic of the Philippines proposed by
the 1971 Constitutional Convention, and appropriating funds therefor," as well as
setting the plebiscite for said ratification or rejection of the Proposed Constitution on
January 15, 1973.
Soon after, or on December 7, 1972, Charito Planas filed, with this Court, Case G.R.
No. L-35925, against the Commission on Elections, the Treasurer of the Philippines
and the Auditor General, to enjoin said "respondents or their agents from
implementing Presidential Decree No. 73, in any manner, until further orders of the
Court," upon the grounds, inter alia, that said Presidential Decree "has no force and
effect as law because the calling ... of such plebiscite, the setting of guidelines for the
conduct of the same, the prescription of the ballots to be used and the question to be
answered by the voters, and the appropriation of public funds for the purpose, are, by
the Constitution, lodged exclusively in Congress ...," and "there is no proper
submission to the people of said Proposed Constitution set for January 15, 1973,
there being no freedom of speech, press and assembly, and there being no sufficient
time to inform the people of the contents thereof."
Substantially identical actions were filed, on December 8, 1972, by Pablo C. Sanidad

against the Commission on Elections (Case G.R. No. L- 35929) on December 11,
1972, by Gerardo Roxas, et al., against the Commission on Elections, the Director of
Printing, the National Treasurer and the Auditor General (Case G.R. L-35940), by
Eddie B. Monteclaro against the Commission on Elections and the Treasurer of the
Philippines (Case G.R. No. L-35941), and by Sedfrey Ordoñez, et al. against the
National Treasurer and the Commission on Elections (Case G.R. No. L-35942); on
December 12, 1972, by Vidal Tan, et al., against the Commission on Elections, the
Treasurer of the Philippines, the Auditor General and the Director of Printing (Case
G.R. No. L-35948) and by Jose W. Diokno and Benigno S. Aquino against the
Commission on Elections (Case G.R. No. L-35953); on December 14, 1972, by
Jacinto Jimenez against the Commission on Elections, the Auditor General, the
Treasurer of the Philippines and the Director of the Bureau of Printing (Case G.R.
No. L-35961), and by Raul M. Gonzales against the Commission on Elections, the
Budget Commissioner, the National Treasurer and the Auditor General (Case G.R.
No. L-35965); and on December 16, 1972, by Ernesto C. Hidalgo against the
Commission on Elections, the Secretary of Education, the National Treasurer and the
Auditor General (Case G.R. No. L-35979).
In all these cases, except the last (G.R. No. L-35979), the respondents were required
to file their answers "not later than 12:00 (o'clock) noon of Saturday, December 16,
1972." Said cases were, also, set for hearing and partly heard on Monday,
December 18, 1972, at 9:30 a.m. The hearing was continued on December 19, 1972.
By agreement of the parties, the aforementioned last case — G.R. No. L-35979 —
was, also, heard, jointly with the others, on December 19, 1972. At the conclusion of
the hearing, on that date, the parties in all of the aforementioned cases were given a
short period of time within which "to submit their notes on the points they desire to
stress." Said notes were filed on different dates, between December 21, 1972, and
January 4, 1973.
Meanwhile, or on December 17, 1972, the President had issued an order temporarily
suspending the effects of Proclamation No. 1081, for the purpose of free and open
debate on the Proposed Constitution. On December 23, the President announced
the postponement of the plebiscite for the ratification or rejection of the Proposed
Constitution. No formal action to this effect was taken until January 7, 1973, when
General Order No. 20 was issued, directing "that the plebiscite scheduled to be held
on January 15, 1978, be postponed until further notice." Said General Order No. 20,
moreover, "suspended in the meantime" the "order of December 17, 1972,
temporarily suspending the effects of Proclamation No. 1081 for purposes of free and
open debate on the proposed Constitution."
In view of these events relative to the postponement of the aforementioned

plebiscite, the Court deemed it fit to refrain, for the time being, from deciding the
aforementioned cases, for neither the date nor the conditions under which said
plebiscite would be held were known or announced officially. Then, again, Congress
was, pursuant to the 1935 Constitution, scheduled to meet in regular session on
January 22, 1973, and since the main objection to Presidential Decree No. 73 was
that the President does not have the legislative authority to call a plebiscite and
appropriate funds therefor, which Congress unquestionably could do, particularly in
view of the formal postponement of the plebiscite by the President — reportedly after
consultation with, among others, the leaders of Congress and the Commission on
Elections — the Court deemed it more imperative to defer its final action on these
cases.
"In the afternoon of January 12, 1973, the petitioners in Case G.R. No.
L-35948 filed an "urgent motion," praying that said case be decided "as soon as
possible, preferably not later than January 15, 1973." It was alleged in said
motion, inter alia:
"6. That the President subsequently announced the issuance of Presidential Decree
No. 86 organizing the so-called Citizens Assemblies, to be consulted on certain
public questions [Bulletin Today, January 1, 1973];
"7. That thereafter it was later announced that "the Assemblies will be asked if they
favor or oppose —
[1] The New Society;
[2] Reforms instituted under Martial Law;
[3] The holding of a plebiscite on the proposed new Constitution and

when (the tentative new dates given following the postponement of
the plebiscite from the original date of January 15 are February 19
and March 5);
[4] The opening of the regular session slated on January 22 in

accordance with the existing Constitution despite Martial Law."
[Bulletin Today, January 3, 1973.]
"8. That it was later reported that the following are to be the forms of the questions to
be asked to the Citizens Assemblies: —
[1] Do you approve of the New Society?
[2] Do you approve of the reform measures under martial law?
[3] Do you think that Congress should meet again in regular session?
[4] How soon would you like the plebiscite on the new Constitution to
be held? [Bulletin Today, January 5, 1973].
"9. That the voting by the so-called Citizens Assemblies was announced to take
place during the period from January 10 to January 15, 1973;
"10. That on January 10, 1973, it was reported that on more question would be
added to the four (4) question previously announced, and that the forms of the
question would be as follows: —
[1] Do you like the New Society?
[2] Do you like the reforms under martial law?
[3] Do you like Congress again to hold sessions?
[4] Do you like the plebiscite to be held later?
[5] Do you like the way President Marcos running the affairs of the
government? [Bulletin Today, January 10, 1973; emphasis an
additional question.]
"11. That on January 11, 1973, it was reported that six (6) more questions would be
submitted to the so-called Citizens Assemblies: —
[1] Do you approve of the citizens assemblies as the base of popular

government to decide issues of national interests?
[2] Do you approve of the new Constitution?
[3] Do you want a plebiscite to be called to ratify the new

Constitution?
[4] Do you want the elections to be held in November, 1973 in

accordance with the provisions of the 1935 Constitution?
[5] If the elections would not be held, when do you want the next
elections to be called?
[6] Do you want martial law to continue? [Bulletin Today, January 11,
1973; emphasis supplied]
"12. That according to reports, the returns with respect to the six (6) additional
questions quoted above will be on a form similar or identical to Annex "A" hereof;
"13. That attached to page 1 of Annex "A" is another page, which we marked as
Annex "A-1", and which reads: —
COMMENTS ON
QUESTION No. 1
In order to broaden the base of citizens' participation

in government.
QUESTION No. 2
But we do not want the Ad Interim Assembly to be convoked. Or if it
is to be convened at all, it should not be done so until after at least
seven (7) years from the approval of the New Constitution by the
Citizens Assemblies.
QUESTION No. 3
The vote of the Citizens Assemblies should already be considered

the plebiscite on the New Constitution.
If the Citizens Assemblies approve of the New Constitution, then the

new Constitution should be deemed ratified.
QUESTION No. 4
We are sick and tired of too frequent elections. We are fed up with
politics, of so many debates and so much expenses.
QUESTION No. 5
Probably a period of at least seven (7) years moratorium on elections

will be enough for stability to be established in the country, for
reforms to take root and normalcy to return.
QUESTION No. 6
We want President Marcos to continue with Martial Law. We want

him to exercise his powers with more authority. We want him to be
strong and firm so that he can accomplish all his reform programs
and establish normalcy in the country. If all other measures fail, we
want President Marcos to declare a revolutionary government along
the lines of the new Constitution without the ad interim Assembly."
"Attention is respectfully invited to the comments on "Question No. 3," which reads:
—
QUESTION No. 3
The vote of the Citizens Assemblies should be considered the

plebiscite on the New Constitution.

This, we are afraid, and therefore allege, is pregnant with ominous possibilities.
14. That, in the meantime, speaking on television and over the radio, on January 7,
1973, the President announced that the limited freedom of debate on the proposed
Constitution was being withdrawn and that the proclamation of martial law and the
orders and decrees issued thereunder would thenceforth strictly be enforced [Daily
Express, January 8, 1973];
15. That petitioners have reason to fear, and therefore state, that the question added
in the last list of questions to be asked to the Citizens Assemblies, namely: —
Do you approve of the

New Constitution? —
in relation to the question following it: —
Do you still want a plebiscite to be

called to ratify the new Constitution?"
—
would be an attempt to by-pass and short-circuit this Honorable Court before which
the question of the validity of the plebiscite on the proposed Constitution is now
pending;
"16. That petitioners have reason to fear, and therefore allege, that if an affirmative
answer to the two questions just referred to will be reported then this Honorable
Court and the entire nation will be confronted with a fait accompli which has been
attained in a highly unconstitutional and undemocratic manner;
"17. That the fait accompli would consist in the supposed expression of the people
approving the proposed Constitution;
"18. That, if such event would happen, then the case before this Honorable Court
could, to all intents and purposes, become moot because, petitioners fear, and they
therefore allege, that on the basis of such supposed expression of the will of the
people through the Citizens Assemblies, it would be announced that the proposed
Constitution, with all its defects, both congenital and otherwise, has been ratified;
"19. That, in such a situation the Philippines will be facing a real crisis and there is
likelihood of confusion if not chaos, because then, the people and their officials will
not know which Constitution is in force.
"20. That the crisis mentioned above can only be avoided if this Honorable Court will
immediately decide and announce its decision on the present petition;
"21. That with the withdrawal by the President of the limited freedom of discussion on
the proposed Constitution which was given to the people pursuant to Sec. 3 of
Presidential Decree No. 73, the opposition of respondents to petitioners' prayer at
the plebiscite be prohibited has now collapsed and that a free plebiscite can no
longer be held."
At about the same time, a similar prayer was made in a "manifestation" filed by the
petitioners in L-35949, "Gerardo Roxas, et al. v. Commission on Elections, et al.,"
and L-35942, "Sedfrey A. Ordoñez, et al. v. The National Treasurer, et al."
The next day, January 13, 1973, which was a Saturday, the Court issued a resolution
requiring the respondents in said three (3) cases to comment on said "urgent motion"
and "manifestation," "not later than Tuesday noon, January 16, 1973." Prior thereto,
or on January 15, 1973, shortly before noon, the petitioners in said Case G.R. No. L-
35948 riled a "supplemental motion for issuance of restraining order and inclusion of
additional respondents," praying —
"... that a restraining order be issued enjoining and restraining

respondent Commission on Elections, as well as the Department of
Local Governments and its head, Secretary Jose Roño; the
Department of Agrarian Reforms and its head, Secretary Conrado
Estrella; the National Ratification Coordinating Committee and its
Chairman, Guillermo de Vega; their deputies, subordinates and
substitutes, and all other officials and persons who may be assigned
such task, from collecting, certifying, and announcing and reporting to
the President or other officials concerned, the so-called Citizens'
Assemblies referendum results allegedly obtained when they were
supposed to have met during the period comprised between January
10 and January 15, 1973, on the two questions quoted in paragraph
1 of this Supplemental Urgent Motion."
In support of this prayer, it was alleged —
"3. That petitioners are now before this Honorable Court in order to ask further that
this Honorable Court issue a restraining order enjoining herein respondents,
particularly respondent Commission on Elections as well as the Department of Local
Governments and its head, Secretary Jose Roño; the Department of Agrarian
Reforms and its head, Secretary Conrado Estrella; the National Ratification
Coordinating Committee and its Chairman, Guillermo de Vega; and their deputies,
subordinates and/or substitutes, from collecting, certifying, announcing and reporting
to the President the supposed Citizens' Assemblies referendum results allegedly
obtained when they were supposed to have met during the period between January
10 and January 15, 1973, particularly on the two questions quoted in paragraph 1 of
this Supplemental Urgent Motion;
"4. That the proceedings of the so-called Citizens' Assemblies are illegal, null and
void particularly insofar as such proceedings are being made the basis of a
supposed consensus for the ratification of the proposed Constitution because: —
[a] The elections contemplated in the Constitution, Article XV, at

which the proposed constitutional amendments are to be submitted
for ratification, are elections at which only qualified and duly
registered voters are permitted to vote, whereas, the so called
Citizens' Assemblies were participated in by persons 15 years of age
and older, regardless of qualifications or lack thereof, as prescribed in
the Election Code;
[b] Elections or plebiscites for the ratification of constitutional

amendments contemplated in Article XV of the Constitution have
provisions for the secrecy of choice and of vote, which is one of the
safeguards of freedom of action, but votes in the Citizens' Assemblies
were open and were cast by raising hands;
[c] The Election Code makes ample provisions for free, orderly and
honest elections, and such provisions are a minimum requirement for
elections or plebiscites for the ratification of constitutional
amendments, but there were no similar provisions to guide and
regulate proceedings of the so called Citizens' Assemblies;
[d] It is seriously to be doubted that, for lack of material time, more

than a handful of the so called Citizens' Assemblies have been
actually formed, because the mechanics of their organization were
still being discussed a day or so before the day they were supposed
to begin functioning: —
"Provincial governors and city and municipal mayors

had been meeting with barrio captains and community
leaders since last Monday [January 8, 1973) to thresh
out the mechanics in the formation of the Citizens
Assemblies and the topics for discussion." [Bulletin
Today, January 10, 1973]
"It should be recalled that the Citizens' Assemblies were ordered formed only at the
beginning of the year [Daily Express, January 1, 1973], and considering the lack of
experience of the local organizers of said assemblies, as well as the absence of
sufficient guidelines for organization, it is too much to believe that such assemblies
could be organized at such a short notice.
"5. That for lack of material time, the appropriate amended petition to include the
additional officials and government agencies mentioned in paragraph 3 of this
Supplemental Urgent Motion could not be completed because, as noted in the
Urgent Motion of January 12, 1973, the submission of the proposed Constitution to
the Citizens' Assemblies was not made known to the public until January 11, 1973.
But be that as it may, the said additional officials and agencies may be properly
included in the petition at bar because: —
[a] The herein petitioners have prayed in their petition for the
annulment not only of Presidential Decree No. 73, but also of "any
similar decree, proclamation, order or instruction.
so that Presidential Decree No. 86, insofar at least as it attempts to submit the
proposed Constitution to a plebiscite by the so-called Citizens' Assemblies, is
properly in issue in this case, and those who enforce, implement, or carry out the
said Presidential Decree No. 86. and the instructions incidental thereto clearly fall
within the scope of this petition;
[b] In their petition, petitioners sought the issuance of a writ of

preliminary injunction restraining not only the respondents named in
the petition but also their "agents" from implementing not only
Presidential Decree No. 73, but also "any other similar decree, order,
instruction, or proclamation in relation to the holding of a plebiscite on
January 15, 1973 for the purpose of submitting to the Filipino people
for their ratification or rejection the 1972 Draft or proposed
Constitution approved by the Constitutional Convention on November
30, 1972"; and finally,
[c] Petitioners prayed for such other relief which may be just and
equitable. [p. 39, Petition].
"Therefore, viewing the case from all angles, the officials and government agencies
mentioned in paragraph 3 of this Supplemental Urgent Motion, can lawfully be
reached by the processes of this Honorable Court by reason of this petition,
considering, furthermore, that the Commission on Elections has under our laws the
power, among others, of: —
(a) Direct and immediate supervision and control over national,

provincial, city, municipal and municipal district officials required by
law to perform duties relative to the conduct of elections on matters
pertaining to the enforcement of the provisions of this Code ..."
[Election Code of 1971, Sec. 3].
"6. That unless the petition at bar is decided immediately and the Commission on
Elections, together with the officials and government agencies mentioned in
paragraph 3 of this Supplemental Urgent Motion are restrained or enjoined from
collecting, certifying, reporting or announcing to the President the results of the
alleged voting of the so-called Citizens' Assemblies, irreparable damage will be
caused to the Republic of the Philippines, the Filipino people, the cause of freedom
an democracy, and the petitioners herein because:
[a] After the result of the supposed voting on the questions mentioned
in paragraph 1 hereof shall have been announced, a conflict will arise
between those who maintain that the 1935 Constitution is still in
force, on the one hand, and those who will maintain that it has been
superseded by the proposed Constitution, on the other, thereby
creating confusion, if not chaos;
[b] Even the jurisdiction of this Court will be subject to serious attack
because the advocates of the theory that the proposed Constitution
has been ratified by reason of the announcement of the results of the
proceedings of the so-called Citizens' Assemblies will argue that,
General Order No. 3, which shall also be deemed ratified pursuant to
the Transitory Provisions of the proposed Constitution, has placed
Presidential Decree Nos. 73 and 86 beyond the reach and jurisdiction
of this Honorable Court."
On the same date — January 15, 1973 — the Court passed a resolution requiring the
respondents in said case G.R. No. L-35948 to file "file an answer to the said motion
not later than 4 P.M., Tuesday, January 16, 1973," and setting the motion for hearing
"on January 17, 1973, at 9:30 a.m." While the case was being heard, on the date last
mentioned, at noontime, the Secretary of Justice called on the writer of this opinion
and said that, upon instructions of the President, he (the Secretary of Justice) was
delivering to him (the writer) a copy of Proclamation No. 1102, which had just been
signed by the President. Thereupon, the writer returned to the Session Hall and
announced to the Court, the parties in G.R. No. L-35948 — inasmuch as the hearing
in connection therewith was still going on — and the public there present that the
President had, according to information conveyed by the Secretary of Justice, signed
said Proclamation No. 1102, earlier that morning. Thereupon, the writer read
Proclamation No. 1102 which is of the following tenor:
"BY THE PRESIDENT OF THE PHILIPPINES

"PROCLAMATION NO. 1102
"ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE

CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.
"WHEREAS, the Constitution proposed by the nineteen hundred seventy-one

Constitutional Convention is subject to ratification by the Filipino people;
"WHEREAS, Citizens Assemblies were created in barrios, in municipalities and in

districts/wards in chartered cities pursuant to Presidential Decree No. 86, dated
December 31, 1972, composed of all persons who are residents of the barrio, district
or ward for at least six months, fifteen years of age or over, citizens of the Philippines
and who are registered in the list of Citizen Assembly members kept by the barrio,
district or ward secretary;
"WHEREAS, the said Citizens Assemblies were established precisely to broaden the
base of citizen participation in the democratic process and to afford ample
opportunity for the citizenry to express their views on important national issues;
"WHEREAS, responding to the clamor of the people and pursuant to Presidential

Decree No. 86-A, dated January 5, 1973, the following questions were posed before
the Citizens Assemblies or Barangays: Do you approve of the New Constitution? Do
you still want a plebiscite to be called to ratify the new Constitution?
"WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty-
one (14,976,561) members of all the Barangays (Citizens Assemblies) voted for the
adoption of the proposed Constitution, as against seven hundred forty-three
thousand eight hundred sixty-nine (743,869) who voted for its rejection; while on the
question as to whether or not the people would still like a plebiscite to be called to
ratify the new Constitution, fourteen million two hundred ninety-eight thousand eight
hundred fourteen (14,298,814) answered that there was no need for a plebiscite and
that the vote of the Barangays (Citizens Assemblies) should be considered as a vote
in a plebiscite;
"WHEREAS, since the referendum results show that more than ninety-five (95) per
cent of the members of the Barangays (Citizens Assemblies) are in favor of the new
Constitution, the Katipunan ng Mga Barangay has strongly recommended that the
new Constitution should already be deemed ratified by the Filipino people;
"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by

virtue of the powers in me vested by the Constitution, do hereby certify and proclaim
that the Constitution proposed by the nineteen hundred and seventy-one (1971)
Constitutional Convention has been ratified by an overwhelming majority of all of the
votes cast by the members of all the Barangays (Citizens Assemblies) throughout the
Philippines, and has thereby come into effect.
"IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the
Republic of the Philippines to be affixed.
"Done in the City of Manila, this 17th day of January, in the year of Our Lord,
nineteen hundred and seventy-three.
(Sgd.)
FERDI
NAND
E.
MARC
OS
"Presid
ent of
the
Philippi
nes
"By the President:
"ALEJANDRO MELCHOR
"Executive Secretary"
Such is the background of the cases submitted determination. After admitting some
of the allegations made in the petition in L-35948 and denying the other allegations
thereof, respondents therein alleged in their answer thereto, by way affirmative
defenses: 1) that the "questions raised" in said petition "are political in character"; 2)
that "the Constitutional Convention acted freely and had plenary authority to propose
not only amendments but a Constitution which would supersede the present
Constitution"; 3) that "the President's call for a plebiscite and the appropriation of
funds for this purpose are valid"; 4) that "there is not an improper submission" and
"there can be a plebiscite under Martial Law"; and 5) that the "argument that the
Proposed Constitution is vague and incomplete, makes an unconstitutional
delegation of power, includes a referendum on the proclamation of Martial Law and
purports to exercise judicial power" is "not relevant and ... without merit." Identical
defenses were set up in the other cases under consideration.
Immediately after the hearing held on January 17, 1973, or since the afternoon of
that date, the Members of the Court have been deliberating on the aforementioned
cases and, after extensive discussions on the merits thereof, have deemed it best
that each Member write his own views thereon and that thereafter the Chief Justice
should state the result or the votes thus cast on the points in issue. Hence, the
individual views of my brethren in the Court are set forth in the opinions attached
hereto, except that, instead of writing their separate opinions, some Members have
preferred to merely concur in the opinion of one of our colleagues.
Then the writer of said decision expressed his own opinion on the issues involved therein, after
which he recapitulated the views of the Members of the Court, as follows:
1. There is unanimity on the justiciable nature of the issue on the legality of

Presidential Decree No. 73.
2. On the validity of the decree itself, Justices Makalintal, Castro, Fernando,

Teehankee, Esguerra and myself, or six (6) Members of the Court, are of the opinion
that the issue has become moot and academic, whereas Justices Barredo, Makasiar
and Antonio voted to uphold the validity of said Decree.
3. On the authority of the 1971 Constitutional Convention to pass the proposed
Constitution or to incorporate therein the provisions contested by the petitioners in L-
35948, Justices Makalintal, Castro, Teehankee and Esguerra opine that the issue
has become moot and academic. Justices Fernando, Barredo, Makasiar, Antonio
and myself have voted to uphold the authority of the Convention.
4. Justice Fernando, likewise, expressed the view that the 1971 Constitutional
Convention had authority to continue in the performance of its functions despite the
proclamation of Martial Law. In effect, Justices Barredo, Makasiar and Antonio hold
the same view.
5. On the question whether the proclamation of Martial Law affected the proper
submission of the proposed Constitution to a plebiscite, insofar as the freedom
essential therefor is concerned, Justice Fernando is of the opinion that there is a
repugnancy between the election contemplated under Art. XV of the 1935
Constitution and the existence of Martial Law, and would, therefore, grant the
petitions were they not moot and academic. Justices Barredo, Antonio and Esguerra
are of the opinion that issue involves questions of fact which cannot be
predetermined, and that Martial Law per se does not necessarily preclude the factual
possibility of adequate freedom, for the purposes contemplated.
6. On Presidential Proclamation No. 1102, the following views were expressed:
a. Justices Makalintal, Castro, Fernando, Teehankee, Makasiar,

Esguerra and myself are of the opinion that the question of validity of
said Proclamation has not been properly raised before the Court,
which, accordingly, should not pass upon such question.
b. Justice Barredo holds that the issue on the constitutionality of

Proclamation No. 1102 has been submitted to and should be
determined by the Court, and that the "purported ratification of the
Proposed Constitution ... based on the referendum among Citizens'
Assemblies falls short of being in strict conformity with the
requirements of Article XV of the 1935 Constitution," but that such
unfortunate drawback notwithstanding, "considering all other related
relevant circumstances, ... the new Constitution is legally
recognizable and should be recognized as legitimately in force."
c. Justice Zaldivar maintains unqualifiedly that the Proposed

Constitution has not been ratified in accordance with Article XV of the
1935 Constitution, and that, accordingly, it has no force and effect
whatsoever.
d. Justice Antonio feels "that the Court is not competent to act" on the
issue whether the Proposed Constitution has been ratified by the
people or not, "in the absence of any judicially discoverable and
manageable standards," since the issue "poses a question of fact.
7. On the question whether or not these cases should be dismissed, Justices

Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra voted in the affirmative,
for the reasons set forth in their respective opinions. Justices Fernando, Teehankee,
and the writer similarly voted, except as regards Case No. L-35948 as to which they
voted to grant to the petitioners therein a reasonable period of time within which to
file appropriate pleadings should they wish to contest the legality of Presidential
Proclamation No. 1102. Justice Zaldivar favors the granting of said period to the
petitioners in said Case No. L-35948 for the aforementioned purpose, but he
believes, in effect, that the Court should go farther and decide on the merits
everyone of the cases under consideration.
Accordingly, the Court — acting in conformity with the position taken by six (6) of its members, with 1
three (3) members dissenting, with respect to G.R. No. L-35948, only and another
2
member dissenting, as regards all of the cases dismissed the same, without special pronouncement
3
as to costs.
The Present Cases
Prior thereto, or on January 20, 1973, Josue Javellana filed Case G.R. No. L-36142 against the
Executive Secretary and the Secretaries of National Defense, Justice and Finance, to restrain said
respondents "and their subordinates or agents from implementing any of the provisions of the
propose Constitution not found in the present Constitution" — referring to that of 1935. The petition
therein, filed by Josue Javellana, as a "Filipino citizen, and a qualified and registered voter" and as
"a class suit, for himself, and in behalf of all citizens and voters similarly situated," was amended on
or about January 24, 1973. After reciting in substance the facts set forth in the decision in the
plebiscite cases, Javellana alleged that the President had announced "the immediate
implementation of the New Constitution, thru his Cabinet, respondents including," and that the latter
"are acting without, or in excess of jurisdiction in implementing the said proposed Constitution" upon
the ground: "that the President, as Commander-in-Chief of the Armed Forces of the Philippines, is
without authority to create the Citizens Assemblies"; that the same "are without power to approve the
proposed Constitution ..."; "that the President is without power to proclaim the ratification by the
Filipino people of the proposed Constitution"; and "that the election held to ratify the proposed
Constitution was not a free election, hence null and void."
Similar actions were filed, on January 23, 1973, by Vidal Tan, J. Antonio Araneta, Alejandro Roces,
Manuel Crudo, Antonio U. Miranda, Emilio de Peralta and Lorenzo M. Tañada, against the Executive
Secretary, the Secretaries of Finance, Justice, Land Reform, and National Defense, the Auditor
General, the Budget Commissioner, the Chairman of the Presidential Commission on
Reorganization, the Treasurer of the Philippines, the Commission on Elections and the
Commissioner of Civil Service on February 3, 1973, by Eddie Monteclaro, personally and as
4
President of the National Press Club of the Philippines, against the Executive Secretary, the
Secretary of Public Information, the Auditor General, the Budget Commissioner and the National
Treasurer and on February 12, 1973, by Napoleon V. Dilag, Alfredo Salapantan, Jr., Leonardo
5
Asodisen, Jr. and Raul M. Gonzales, against the Executive Secretary, the Secretary of National
6
Defense, the Budget Commissioner and the Auditor General.
Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio Padilla, Jovito R. Salonga, Salvador H.
Laurel, Ramon V. Mitra, Jr. and Eva Estrada-Kalaw, the first as "duly elected Senator and Minority
7
Floor Leader of the Senate," and others as "duly elected members" thereof, filed Case G.R. No. L-
36165, against the Executive Secretary, the Secretary National Defense, the Chief of Staff of the
Armed Forces of the Philippines, the Secretary of General Services, the President and the President
Pro Tempore of the Senate. In their petition — as amended on January 26, 1973 — petitioners
Gerardo Roxas, et al. allege, inter alia, that the term of office of three of the aforementioned
petitioners would expire on December 31, 1975, and that of the others on December 31, 1977; that
8 9
pursuant to our 1935 Constitution, "which is still in force Congress of the Philippines "must convene
for its 8th Session on Monday, January 22, 1973, at 10:00 A.M., which is regular customary hour of
its opening session"; that "on said day, from 10:00 A.M. up to the afternoon," said petitioner "along
with their other colleagues, were unlawfully prevented from using the Senate Session Hall, the same
having been closed by the authorities in physical possession and control the Legislative Building";
that "(a)t about 5:00 to 6:00 P.M. the said day, the premises of the entire Legislative Building were
ordered cleared by the same authorities, and no one was allowed to enter and have access to said
premises"; that "(r)espondent Senate President Gil J. Puyat and, in his absence, respondent
President Pro Tempore Jose Roy we asked by petitioning Senators to perform their duties under the
law and the Rules of the Senate, but unlawfully refrained and continue to refrain from doing so"; that
the petitioners ready and willing to perform their duties as duly elected members of the Senate of the
Philippines," but respondent Secretary of National Defense, Executive Secretary and Chief of Staff,
"through their agents and representatives, are preventing petitioners from performing their duties as
duly elected Senators of the Philippines"; that "the Senate premise in the Congress of the
Philippines Building ... are occupied by and are under the physical control of the elements military
organizations under the direction of said respondents"; that, as per "official reports, the Department
of General Services ... is now the civilian agency in custody of the premises of the Legislative
Building"; that respondents "have unlawfully excluded and prevented, and continue to so exclude
and prevent" the petitioners "from the performance of their sworn duties, invoking the alleged
approval of the 1972 (1973) Constitution of the Philippines by action of the so-called Citizens'
Assemblies on January 10, 1973 to January 15, 1973, as stated in and by virtue of Proclamation No.
1102 signed and issued by the President of the Philippines"; that "the alleged creation of the
Citizens' Assemblies as instrumentalities for the ratification of the Constitution of the Republic of the
Philippines" is inherently illegal and palpably unconstitutional; that respondents Senate President
and Senate President Pro Tempore "have unlawfully refrained and continue to refrain from and/or
unlawfully neglected and continue to neglect the performance of their duties and functions as such
officers under the law and the Rules of the Senate" quoted in the petition; that because of events
supervening the institution of the plebiscite cases, to which reference has been made in the
preceding pages, the Supreme Court dismissed said cases on January 22, 1973, by a majority vote,
upon the ground that the petitions therein had become moot and academic; that the alleged
ratification of the 1972 (1973) Constitution "is illegal, unconstitutional and void and ... can not have
superseded and revoked the 1935 Constitution," for the reasons specified in the petition as
amended; that, by acting as they did, the respondents and their "agents, representatives and
subordinates ...have excluded the petitioners from an office to which" they "are lawfully entitled"; that
"respondents Gil J. Puyat and Jose Roy have unlawfully refrained from convening the Senate for its
8th session, assuming general jurisdiction over the Session Hall and the premises of the Senate and
... continue such inaction up to this time and ... a writ of mandamus is warranted in order to compel
them to comply with the duties and functions specifically enjoined by law"; and that "against the
above mentioned unlawful acts of the respondents, the petitioners have no appeal nor other speedy
and adequate remedy in the ordinary course of law except by invoking the equitable remedies
of mandamus and prohibition with the provisional remedy of preliminary mandatory injunction."
Premised upon the foregoing allegations, said petitioners prayed that, "pending hearing on the
merits, a writ of preliminary mandatory injunction be issued ordering respondents Executive
Secretary, the Secretary of National Defense, the Chief of Staff of the Armed Forces of the
Philippines, and the ... Secretary of General Service, as well as all their agents, representatives and
subordinates to vacate the premises of the Senate of the Philippines and to deliver physical
possession of the same to the President of the Senate or his authorized representative"; and that
hearing, judgment be rendered declaring null and Proclamation No. 1102 ... and any order, decree,
proclamation having the same import and objective, issuing writs of prohibition and mandamus, as
prayed for against above-mentioned respondents, and making the writ injunction permanent; and
that a writ of mandamus be issued against the respondents Gil J. Puyat and Jose Roy directing them
to comply with their duties and functions as President and President Pro Tempore, respectively, of
the Senate of Philippines, as provided by law and the Rules of the Senate."
Required to comment on the above-mentioned petitions and/or amended petitions, respondents
filed, with the leave Court first had and obtained, a consolidated comment on said petitions and/or
amended petitions, alleging that the same ought to have been dismissed outright; controverting
petitioners' allegations concerning the alleged lack impairment of the freedom of the 1971
Constitution Convention to approve the proposed Constitution, its alleged lack of authority to
incorporate certain contested provisions thereof, the alleged lack of authority of the President to
create and establish Citizens' Assemblies "for the purpose submitting to them the matter of
ratification of the new Constitution," the alleged "improper or inadequate submiss of the proposed
constitution," the "procedure for ratification adopted ... through the Citizens Assemblies"; a
maintaining that: 1) "(t)he Court is without jurisdiction to act on these petitions"; 2) the questions
raised therein are "political in character and therefore nonjusticiable"; 3) "there substantial
compliance with Article XV of the 1 Constitution"; 4) "(t)he Constitution was properly submitted the
people in a free, orderly and honest election; 5) "Proclamation No. 1102, certifying the results of the
election, is conclusive upon the courts"; and 6) "(t)he amending process outlined in Article XV of the
1935 Constitution is not exclusive of other modes of amendment."
Respondents Puyat and Roy, in said Case G.R. No. L-36165, filed their separate comment therein,
alleging that "(t)he subject matter" of said case "is a highly political question which, under the
circumstances, this ...Court would not be in a position to act upon judicially," and that, in view of the
opinions expressed by three members of this Court in its decision in the plebiscite cases, in effect
upholding the validity of Proclamation No. 1102, "further proceedings in this case may only be an
academic exercise in futility."
On February 5, 1973, the Court issued a resolution requiring respondents in L-36236 to comment on
the petition therein not later than Saturday, February 10, 1973, and setting the case for hearing on
February 12, 1973, at 9:30 a.m. By resolution dated February 7, 1973, this Court resolved to
consider the comments of the respondents in cases G.R. Nos. L-36142, L-36164, and L-36165, as
motions to dismiss the petitions therein, and to set said cases for hearing on the same date and time
as L-36236. On that date, the parties in G.R. No. L-36283 agreed that the same be, likewise,
10
heard, as it was, in fact, heard jointly with the aforementioned cases G.R. Nos. L-36142, L-36164, L-
36165 and L-36236. The hearing, which began on February 12, 1973, shortly after 9:30 a.m., was
continued not only that afternoon, but, also, on February 13, 14, 15 and 16, morning and afternoon,
after which the parties were granted up to February 24, 1973, noon, within which to submit their
notes of oral arguments and additional arguments, as well as the documents required of them or
whose presentation was reserved by them. The same resolution granted the parties until March 1,
1973, to reply to the notes filed by their respective opponents. Counsel for the petitioners in G.R.
Nos. L-36164 and L-36165 filed their aforementioned notes on February 24, 1973, on which date the
Solicitor General sought an extension of time up to March 3, 1973, within which to file his notes,
which was granted, with the understanding that said notes shall include his reply to the notes already
filed by the petitioners in G.R. Nos. L-36164 a L-36165. Counsel for the petitioners, likewise, moved
and were granted an extension of time, to expire on March 10, 1973, within which to file, as they did,
their notes in reply to those submitted by the Solicitor General on March 3, 1973. On March 21,
1973, petitioners in L-36165 filed a "Manifestation a Supplemental Rejoinder," whereas the Office of
the Solicitor General submitted in all these cases a "Rejoinder Petitioners' Replies."
After deliberating on these cases, the members of the Court agreed that each would write his own
opinion and serve a copy thereof on his colleagues, and this they did. Subsequently, the Court
discussed said opinions and votes were cast thereon. Such individual opinions are appended hereto.
Accordingly, the writer will first express his person opinion on the issues before the Court. After the
exposition his aforesaid opinion, the writer will make, concurrently with his colleagues in the Court, a
resume of summary of the votes cast by them in these cases.
Writer's Personal Opinion
I.
Alleged academic futility of further proceedings in G.R. L-36165.
This defense or theory, set up by counsel for respondents Gil J. Puyat and Jose Roy in G.R. No. L-
36165, and, also, by the Solicitor General, is predicated upon the fact that, in Our decision in the
plebiscite cases, Mr. Justice Barredo had expressed the view that the 1935 Constitution had "pro
tanto passed into history" and "been legitimately supplanted by the Constitution now in force by
virtue of Proclamation No. 1102 ..."; that Mr. Justice Antonio did not feel "that this Court competent
to act" in said cases "in the absence of any judicially discoverable and manageable standards" and
because "the access to relevant information is insufficient to assure the correct determination of the
issue," apart from the circumstance that "the new constitution has been promulgated and great
interests have already arisen under it" and that the political organ of the Government has recognized
its provisions; whereas, Mr. Justice Esguerra had postulated that "(w)ithout any competent
evidence ... about the circumstances attending the holding" of the "referendum or plebiscite" thru the
Citizens' Assemblies, he "cannot say that it was not lawfully held" and that, accordingly,
he assumed "that what the proclamation (No. 1102) says on its face is true and until overcome by
satisfactory evidence" he could not "subscribe to the claim that such plebiscite was not held
accordingly"; and that he accepted "as a fait accompli that the Constitution adopted (by the 1971
Constitutional Convention) on November 30, 1972, has been duly ratified.
Counsel for respondents Gil J. Puyat and Jose Roy goes on to say that, under these circumstances,
"it seems remote or improbable that the necessary eight (8) votes under the 1935 Constitution, and
much less the ten (10) votes required by the 1972 (1973) Constitution, can be obtained for the relief
sought in the Amended Petition" in G.R. No.
L-36165.
I am unable to share this view. To begin with, Mr. Justice Barredo announced publicly, in open court,
during the hearing of these cases, that he was and is willing to be convinced that his aforementioned
opinion in the plebiscite cases should be reconsidered and changed. In effect, he thus declared that
he had an open mind in connection with the cases at bar, and that in deciding the same he would
not necessarily adhere to said opinion if the petitioners herein succeeded in convincing him that their
view should be sustained.
Secondly, counsel for the aforesaid respondents had apparently assumed that, under the 1935
Constitution, eight (8) votes are necessary to declare invalid the contested Proclamation No. 1102. I
do not believe that this assumption is borne out by any provision of said Constitution. Section 10 of
Article VIII thereof reads:
All cases involving the constitutionality of a treaty or law shall be heard and decided
by the Supreme Court in banc, and no treaty or law may be declared unconstitutional
without the concurrence of two thirds of all the members of the Court.
Pursuant to this section, the concurrence of two-thirds of all the Members of the Supreme Court is
required only to declare "treaty or law" unconstitutional. Construing said provision, in a resolution
dated September 16, 1949, then Chief Justice Moran, voicing the unanimous view of the Members
of this Court, postulated:
... There is nothing either in the Constitution or in the Judiciary Act requiring the vote
of eight Justices to nullify a rule or regulation or an executive order issued by the
President. It is very significant that in the previous drafts of section 10, Article VIII of
the Constitution, "executive order" and "regulation" were included among those that
required for their nullification the vote of two-thirds of all the members of the Court.
But "executive order" and "regulation" were later deleted from the final draft (Aruego,
The Framing of the Philippine Constitution, Vol. I, pp. 495, 496), and thus a mere
majority of six members of this Court is enough to nullify them. 11
The distinction is not without reasonable foundation. The two thirds vote (eight [8] votes)
requirement, indeed, was made to apply only to treaty and law, because, in these cases, the
participation of the two other departments of the government — the Executive and the Legislative —
is present, which circumstance is absent in the case of rules, regulations and executive orders.
Indeed, a law (statute) passed by Congress is subject to the approval or veto of the President,
whose disapproval cannot be overridden except by the vote of two-thirds (2/3) of all members of
each House of Congress. A treaty is entered into by the President with the concurrence of the
12
Senate, which is not required in the case of rules, regulations or executive orders which are
13
exclusive acts of the President. Hence, to nullify the same, a lesser number of votes is necessary in
the Supreme Court than that required to invalidate a law or treaty.
Although the foregoing refers to rules, regulations and executive orders issued by the President, the
dictum applies with equal force to executive proclamation, like said Proclamation No. 1102,
inasmuch as the authority to issue the same is governed by section 63 of the Revised Administrative
Code, which provides:
Administrative acts and commands of the (Governor-General) President of the

Philippines touching the organization or mode of operation of the Government or
rearranging or readjusting any of the districts, divisions, parts or ports of the
(Philippine Islands) Philippines and all acts and commands governing the general
performance of duties by public employees or disposing of issues of general concern
shall be made effective in executive orders.
Executive orders fixing the dates when specific laws, resolutions, or orders are to
have or cease to (have) effect and any information concerning matters of public
moment determined by law, resolution, or executive orders, may be promulgated in
an executive proclamation, with all the force of an executive order. 14
In fact, while executive order embody administrative acts or commands of the President, executive
proclamations are mainly informative and declaratory in character, and so does counsel for
respondents Gil J. Puyat and Jose Roy maintain in G.R. No.
L-36165. As consequence, an executive proclamation has no more than "the force of an executive
15
order," so that, for the Supreme Court to declare such proclamation unconstitutional, under the 1935
Constitution, the same number of votes needed to invalidate an executive order, rule or regulation —
namely, six (6) votes — would suffice.
As regards the applicability of the provisions of the proposed new Constitution, approved by the
1971 Constitutional Convention, in the determination of the question whether or not it is now in force,
it is obvious that such question depends upon whether or not the said new Constitution has been
ratified in accordance with the requirements of the 1935 Constitution, upon the authority of which
said Constitutional Convention was called and approved the proposed Constitution. It is well settled
that the matter of ratification of an amendment to the Constitution should be settled by applying the
provisions of the Constitution in force at the time of the alleged ratification, or the old Constitution. 16
II
Does the issue on the validity of Proclamation No. 1102 partake of the nature of a political, and,
hence, non-justiciable question?
The Solicitor General maintains in his comment the affirmative view and this is his main defense. In
support thereof, he alleges that "petitioners would have this Court declare as invalid the New
Constitution of the Republic" from which — he claims — "this Court now derives its authority"; that
"nearly 15 million of our body politic from the age of 15 years have mandated this Constitution to be
the New Constitution and the prospect of unsettling acts done in reliance on it caution against
interposition of the power of judicial review"; that "in the case of the New Constitution, the
government has been recognized in accordance with the New Constitution"; that "the country's
foreign relations are now being conducted in accordance with the new charter"; that "foreign
governments have taken note of it"; that the "plebiscite cases" are "not precedents for holding
questions regarding proposal and ratification justiciable"; and that "to abstain from judgment on the
ultimate issue of constitutionality is not to abdicate duty."
At the outset, it is obvious to me that We are not being asked to "declare" the new Constitution
invalid. What petitioners dispute is the theory that it has been validly ratified by the people, especially
that they have done so in accordance with Article XV of the 1935 Constitution. The petitioners
maintain that the conclusion reached by the Chief Executive in the dispositive portion of
Proclamation No. 1102 is not borne out by the whereases preceding the same, as the predicates
from which said conclusion was drawn; that the plebiscite or "election" required in said Article XV
has not been held; that the Chief Executive has no authority, under the 1935 Constitution, to
dispensewith said election or plebiscite; that the proceedings before the Citizens' Assemblies did not
constitute and may not be considered as such plebiscite; that the facts of record abundantly show
that the aforementioned Assemblies could not have been held throughout the Philippines from
January 10 to January 15, 1973; and that, in any event, the proceedings in said Assemblies are null
and void as an alleged ratification of the new Constitution proposed by the 1971 Constitutional
Convention, not only because of the circumstances under which said Assemblies had been created
and held, but, also, because persons disqualified to vote under Article V of the Constitution were
allowed to participate therein, because the provisions of our Election Code were not observed in said
Assemblies, because the same were not held under the supervision of the Commission on Elections,
in violation of section 2 of Article X of the 1935 Constitution, and because the existence of Martial
Law and General Order No. 20, withdrawing or suspending the limited freedom to discuss the merits
and demerits of said proposed Constitution, impaired the people's freedom in voting thereon,
particularly a viva voce, as it was done in many instances, as well as their ability to have a
reasonable knowledge of the contents of the document on which they were allegedly called upon to
express their views.
Referring now more specifically to the issue on whether the new Constitution proposed by the 1971
Constitutional Convention has been ratified in accordance with the provisions of Article XV of the
1935 Constitution is a political question or not, I do not hesitate to state that the answer must be in
the negative. Indeed, such is the position taken by this Court, 17 in an endless line of decisions, too
long to leave any room for possible doubt that said issue is inherently and essentially justiciable.
Such, also, has been the consistent position of the courts of the United States of America, whose
decisions have a persuasive effect in this jurisdiction, our constitutional system in the 1935
Constitution being patterned after that of the United States. Besides, no plausible reason has, to my
mind, been advanced to warrant a departure from said position, consistently with the form of
government established under said Constitution..
Thus, in the aforementioned plebiscite cases, We rejected the theory of the respondents therein
18
that the question whether Presidential Decree No. 73 calling a plebiscite to be held on January 15,
1973, for the ratification or rejection of the proposed new Constitution, was valid or not, was not a
proper subject of judicial inquiry because, they claimed, it partook of a political nature, and
We unanimously declared that the issue was a justiciable one. With identical unanimity, We
overruled the respondents' contention in the 1971 habeas corpus cases, questioning Our authority
19
to determine the constitutional sufficiency of the factual bases of the Presidential proclamation
suspending the privilege of the writ of habeas corpus on August 21, 1971, despite the opposite view
taken by this Court in Barcelona v. Baker and Montenegro v. Castañeda, insofar as it adhered to
20 21
the former case, which view We, accordingly, abandoned and refused to apply. For the same
reason, We did not apply and expressly modified, in Gonzales v. Commission on Elections, the 22
political-question theory adopted in Mabanag v. Lopez Vito. Hence, respondents herein urge Us to
23
reconsider the action thus taken by the Court and to revert to and follow the views expressed
in Barcelon v. Baker and Mabanag v. Lopez Vito. 24
The reasons adduced in support thereof are, however, substantially the same as those given in
support of the political-question theory advanced in said habeas corpus and plebiscite cases, which
were carefully considered by this Court and found by it to be legally unsound and constitutionally
untenable. As a consequence, Our decision in the aforementioned habeas corpus cases partakes of
the nature and effect of a stare decisis, which gained added weight by its virtual reiteration in the
plebiscite cases.
The reason why the issue under consideration and other issues of similar character are justiciable,
not political, is plain and simple. One of the principal bases of the non-justiciability of so-called
political questions is the principle of separation of powers — characteristic of the Presidential system
of government — the functions of which are classified or divided, by reason of their nature, into three
(3) categories, namely: 1) those involving the making of laws, which are allocated to the legislative
department; 2) those concerned mainly with the enforcement of such laws and of judicial decisions
applying and/or interpreting the same, which belong to the executive department; and 3) those
dealing with the settlement of disputes, controversies or conflicts involving rights, duties or
prerogatives that are legally demandable and enforceable, which are apportioned to courts of justice.
Within its own sphere — but only within such sphere — each department is supreme and
independent of the others, and each is devoid of authority, not only to encroach upon the powers or
field of action assigned to any of the other departments, but, also, to inquire into or pass upon the
advisability or wisdom of the acts performed, measures taken or decisions made by the other
departments — provided that such acts, measures or decisions are within the area allocated thereto
by the Constitution. 25
This principle of separation of powers under the presidential system goes hand in hand with the
system of checks and balances, under which each department is vested by the Fundamental Law
with some powers to forestall, restrain or arrest a possible or actual misuse or abuse of powers by
the other departments. Hence, the appointing power of the Executive, his pardoning power, his veto
power, his authority to call the Legislature or Congress to special sessions and even to prescribe or
limit the object or objects of legislation that may be taken up in such sessions, etc. Conversely,
Congress or an agency or arm thereof — such as the commission on Appointments — may approve
or disapprove some appointments made by the President. It, also, has the power of appropriation, to
"define, prescribe, and apportion the jurisdiction of the various courts," as well as that of
impeachment. Upon the other hand, under the judicial power vested by the Constitution, the
"Supreme Court and ... such inferior courts as may be established by law," may settle or decide with
finality, not only justiciable controversies between private individuals or entities, but, also, disputes or
conflicts between a private individual or entity, on the one hand, and an officer or branch of the
government, on the other, or between two (2) officers or branches of service, when the latter officer
or branch is charged with acting without jurisdiction or in excess thereof or in violation of law. And
so, when a power vested in said officer or branch of the government is absolute or unqualified, the
acts in the exercise of such power are said to be political in nature, and, consequently, non-
justiciable or beyond judicial review. Otherwise, courts of justice would be arrogating upon
themselves a power conferred by the Constitution upon another branch of the service to the
exclusion of the others. Hence, in Tañada v. Cuenco, this Court quoted with approval from In re
26
McConaughy, the following:

27
"At the threshold of the case we are met with the assertion that the questions
involved are political, and not judicial. If this is correct, the court has no jurisdiction as
the certificate of the state canvassing board would then be final, regardless of the
actual vote upon the amendment. The question thus raised is a fundamental one; but
it has been so often decided contrary to the view contended for by the Attorney
General that it would seem to be finally settled.
xxx xxx xxx
"... What is generally meant, when it is said that a question is political, and not
judicial, is that it is a matter which is to be exercised by the people in their primary
political capacity, or that it has been specifically delegated to some other department
or particular officer of the government, with discretionary power to act. See State vs.
Cunningham, 81 Wis. 497, N.W. 724, 15 L.R.A. 561; In re Gunn, 50 Kan. 155; 32
Pac. 470, 948, 19 L.R.A. 519; Green vs. Mills, 69 Fed. 852, 16 C.C.A. 516, 30 L.R.A.
90; Fletcher vs. Tuttle 151 Ill. 41, 37 N.E. 683, 25 L.R.A. 143, 42 Am. St. Rep. 220.
Thus the Legislature may in its discretion determine whether it will pass law or submit
a proposed constitutional amendment to the people. The courts have no judicial
control over such matters, not merely because they involve political questions, but
because they are matters which the people have by the Constitution delegated to the
Legislature. The Governor may exercise the powers delegated him, free from judicial
control, so long as he observes the laws act within the limits of the power conferred.
His discretionary acts cannot be controllable, not primarily because they are of a
politics nature, but because the Constitution and laws have placed the particular
matter under his control. But every officer under constitutional government must act
accordingly to law and subject its restrictions, and every departure therefrom or
disregard thereof must subject him to that restraining and controlling power of the
people, acting through the agency of the judiciary; for it must be remembered that
the people act through courts, as well as through the executive or the Legislature.
One department is just as representative as the other, and the judiciary is the
department which is charged with the special duty of determining the limitations
which the law places upon all official action. The recognition of this principle,
unknown except in Great Britain and America, is necessary, to "the end that the
government may be one of laws and not of men" — words which Webster said
were the greatest contained in any written constitutional document." (Emphasis
supplied.)
and, in an attempt to describe the nature of a political question in terms, it was hoped,
understandable to the laymen, We added that "... the term "political question" connotes, in legal
parlance, what it means in ordinary parlance, namely, a question of policy" in matters concerning the
government of a State, as a body politic. "In other words, in the language of Corpus Juris Secundum
(supra), it refers to "those questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the Legislature or executive branch of the government." It is concerned with issues
dependent upon the wisdom, not legality, of a particular measure."
Accordingly, when the grant of power is qualified, conditional or subject to limitations, the issue on
whether or not the prescribed qualifications or conditions have been met, or the limitations
respected, is justiciable or non-political, the crux of the problem being one of legality or validity of the
contested act, not its wisdom. Otherwise, said qualifications, conditions or limitations — particularly
those prescribed or imposed by the Constitution — would be set at naught. What is more, the judicial
inquiry into such issue and the settlement thereof are the main functions of courts of justice under
the Presidential form of government adopted in our 1935 Constitution, and the system of checks and
balances, one of its basic predicates. As a consequence, We have neither the authority nor the
discretion to decline passing upon said issue, but are under the ineluctable obligation — made
particularly more exacting and peremptory by our oath, as members of the highest Court of the land,
to support and defend the Constitution — to settle it. This explains why, in Miller v. Johnson, it was
28
held that courts have a "duty, rather than a power", to determine whether another branch of the
government has "kept within constitutional limits." Not satisfied with this postulate, the court went
farther and stressed that, if the Constitution provides how it may be amended — as it is in our 1935
Constitution — "then, unless the manner is followed, the judiciary as the interpreter of that
constitution, will declare the amendment invalid." In fact, this very Court — speaking through
29
Justice Laurel, an outstanding authority on Philippine Constitutional Law, as well as one of the highly
respected and foremost leaders of the Convention that drafted the 1935 Constitution — declared, as
early as July 15, 1936, that "(i)n times of social disquietude or political excitement, the great
landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of
conflict, the judicial department is the only constitutional organwhich can be called upon to
determine the proper allocation of powers between the several departments" of the government. 30
The Solicitor General has invoked Luther v. Borden in support of his stand that the issue under
31
consideration is non-justiciable in nature. Neither the factual background of that case nor the action
taken therein by the Federal Supreme Court has any similarity with or bearing on the cases under
consideration.
Luther v. Borden was an action for trespass filed by Luther with the Circuit Court of the United States
against Borden and others for having forcibly entered into Luther's house, in Rhode Island,
sometime in 1842. The defendants who were in the military service of said former colony of England,
alleged in their defense that they had acted in obedience to the commands of a superior officer,
because Luther and others were engaged in a conspiracy to overthrow the government by force and
the state had been placed by competent authority under Martial Law. Such authority was the charter
government of Rhode Island at the time of the Declaration of Independence, for — unlike other
states which adopted a new Constitution upon secession from England — Rhode Island retained its
form of government under a British Charter, making only such alterations, by acts of the Legislature,
as were necessary to adapt it to its subsequent condition as an independent state. It was under this
form of government when Rhode Island joined other American states in the Declaration of
Independence and, by subsequently ratifying the Constitution of the United States, became a
member of the Union. In 1843, it adopted a new Constitution.
Prior thereto, however, many citizens had become dissatisfied with the charter government.
Memorials addressed by them to the Legislature having failed to bring about the desired effect,
meetings were held and associations formed — by those who belonged to this segment of the
population — which eventually resulted in a convention called for the drafting of a new Constitution
to be submitted to the people for their adoption or rejection. The convention was not authorized by
any law of the existing government. The delegates to such convention framed a new Constitution
which was submitted to the people. Upon the return of the votes cast by them, the convention
declared that said Constitution had been adopted and ratified by a majority of the people and
became the paramount law and Constitution of Rhode Island.
The charter government, which was supported by a large number of citizens of the state, contested,
however, the validity of said proceedings. This notwithstanding, one Thomas W. Dorr, who had been
elected governor under the new Constitution of the rebels, prepared to assert authority by force of
arms, and many citizens assembled to support him. Thereupon, the charter government passed an
Act declaring the state under Martial Law and adopted measures to repel the threatened attack and
subdue the rebels. This was the state of affairs when the defendants, who were in the military
service of the charter government and were to arrest Luther, for engaging in the support of the rebel
government — which was never able to exercise any authority in the state — broke into his house.
Meanwhile, the charter government had taken measures to call its own convention to revise the
existing form of government. Eventually, a new constitution was drafted by a convention held under
the authority of the charter government, and thereafter was adopted and ratified by the people.
"(T)he times and places at which the votes were to be given, the persons who were to receive and
return them, and the qualifications of the voters having all been previously authorized and provided
for by law passed by the charter government," the latter formally surrendered all of its powers to the
new government, established under its authority, in May 1843, which had been in
operation uninterruptedly since then.
About a year before, or in May 1842, Dorr, at the head of a military force, had made an unsuccessful
attempt to take possession of the state arsenal in Providence, but he was repulsed, and, after an
"assemblage of some hundreds of armed men under his command at Chepatchet in the June
following, which dispersed upon approach of the troops of the old government, no further effort was
made to establish" his government. "... until the Constitution of 1843" — adopted under the auspices
of the charter government — "went into operation, the charter government continued to assert its
authority and exercise its powers and to enforce obedience throughout the state ... ."
Having offered to introduce evidence to prove that the constitution of the rebels had been ratified by
the majority of the people, which the Circuit Court rejected, apart from rendering judgment for the
defendants, the plaintiff took the case for review to the Federal Supreme Court which affirmed the
action of the Circuit Court, stating:
It is worthy of remark, however, when we are referring to the authority of State

decisions, that the trial of Thomas W. Dorr took place after the constitution of 1843
went into operation. The judges who decided that case held their authority under that
constitution and it is admitted on all hands that it was adopted by the people of the
State, and is the lawful and established government. It is the decision, therefore, of a
State court, whose judicial authority to decide upon the constitution and laws of
Rhode Island is not questioned by either party to this controversy, although the
government under which it acted was framed and adopted under the sanction and
laws of the charter government.
The point, then, raised here has been already decided by the courts of Rhode Island.
The question relates, altogether, to the constitution and laws of that State, and the
well settled rule in this court is, that the courts of the United States adopt and follow
the decisions of the State courts in questions which concern merely the constitution
and laws of the State.
Upon what ground could the Circuit Court of the United States which tried this case
have departed from this rule, and disregarded and overruled the decisions of the
courts of Rhode Island? Undoubtedly the courts of the United States have certain
powers under the Constitution and laws of the United States which do not belong to
the State courts. But the power of determining that a State government has been
lawfully established, which the courts of the State disown and repudiate, is not one of
them. Upon such a question the courts of the United States are bound to follow the
decisions of the State tribunals, and must therefore regard the charter government as
the lawful and established government during the time of this contest. 32
It is thus apparent that the context within which the case of Luther v. Borden was decided is basically
and fundamentally different from that of the cases at bar. To begin with, the case did not involve a
federal question, but one purely municipal in nature. Hence, the Federal Supreme Court was "bound
to follow the decisions of the State tribunals" of Rhode Island upholding the constitution adopted
under the authority of the charter government. Whatever else was said in that case constitutes,
therefore, an obiter dictum. Besides, no decision analogous to that rendered by the State Court of
Rhode Island exists in the cases at bar. Secondly, the states of the Union have a measure
of internal sovereignty upon which the Federal Government may not encroach, whereas ours is a
unitary form of government, under which our local governments derive their authority from the
national government. Again, unlike our 1935 Constitution, the charter or organic law of Rhode Island
contained no provision on the manner, procedure or conditions for its amendment.
Then, too, the case of Luther v. Borden hinged more on the question of recognition of government,
than on recognition of constitution, and there is a fundamental difference between these two (2)
types of recognition, the first being generally conceded to be a political question, whereas the nature
of the latter depends upon a number of factors, one of them being whether the new Constitution has
been adopted in the manner prescribed in the Constitution in force at the time of the purported
ratification of the former, which is essentially a justiciable question. There was, in Luther v. Borden,
a conflict between two (2) rival governments, antagonistic to each other, which is absent in the
present cases. Here, the Government established under the 1935 Constitution is the very same
government whose Executive Department has urged the adoption of the new or revised Constitution
proposed by the 1971 Constitutional Convention and now alleges that it has been ratified by the
people.
In short, the views expressed by the Federal Supreme Court in Luther v. Borden, decided in 1849,
on matters otherthan those referring to its power to review decisions of a state court concerning the
constitution and government of that state, not the Federal Constitution or Government, are
manifestly neither, controlling, nor even persuasive in the present cases, having as
the Federal Supreme Court admitted — no authority whatsoever to pass upon such matters or to
review decisions of said state court thereon. In fact, referring to that case, the Supreme Court of
Minnessota had the following to say:
Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always cited by those who assert that
the courts have no power to determine questions of a political character. It is
interesting historically, but it has not the slightest application to the case at bar. When
carefully analyzed, it appears that it merely determines that the federal courts will
accept as final and controlling a decision of the highest court of a state upon a
question of the construction of the Constitution of the state. ... .
33
Baker v. Carr, cited by respondents, involved an action to annul a Tennessee statute apportioning
34
the seats in the General Assembly among the counties of the State, upon the theory that the
legislation violated the equal protection clause. A district court dismissed the case upon the ground,
among others, that the issue was a political one, but, after a painstaking review of the jurisprudence
on the matter, the Federal Supreme Court reversed the appealed decision and held that said
issue was justiciable and non-political, inasmuch as:"... (d)eciding whether a matter has in any
measure been committed by the Constitution to another branch of government, or whether the action
of that branch exceeds whatever authority has been committed, is itself a delicate exercise in
constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the
Constitution ... ."
Similarly, in Powell v. McCormack, the same Court, speaking through then Chief Justice Warren,
35
reversed a decision of the Court of Appeals of New York affirming that of a Federal District Court,
dismissing Powell's action for a declaratory judgment declaring thereunder that he — whose
qualifications were uncontested — had been unlawfully excluded from the 90th Congress of the U.S.
Said dismissal was predicated upon the ground, inter alia, that the issue was political, but the
Federal Supreme Court held that it was clearly a justiciable one.
The Supreme Court of Minnessota undertook a careful review of American jurisprudence on the
matter. Owing to the lucidity of its appraisal thereof, We append the same to this opinion as Annex A
thereof.
After an, exhaustive analysis of the cases on this subject, the Court concluded:
The authorities are thus practically uniform in holding that whether a constitutional

amendment has been properly adopted according to the requirements of an existing
Constitution is a judicial question. There can be little doubt that the consensus of
judicial opinion is to the effect that it is the absolute dutyof the judiciary to determine
whether the Constitution has been amended in the manner required by the
Constitution, unless a special tribunal has been created to determine the question;
and even then many of the courts hold that the tribunal cannot be permitted to
illegally amend the organic law. ... .
36
In the light of the foregoing, and considering that Art. XV of our 1935 Constitution prescribes the
method or procedure for its amendment, it is clear to my mind that the question whether or not the
revised Constitution drafted by the 1971 Constitutional Convention has been ratified in accordance
with said Art. XV is a justiciable one and non-political in nature, and that it is not only subject to
judicial inquiry, but, also, that it is the Court's bounden duty to decide such question.
The Supreme Court of the United States has meaningfully postulated that "the courts cannot reject
as 'no law suit' " — because it allegedly involves a political question — "a bona fide controversy as to
whether some action denominated "political" exceeds constitutional authority." 37
III
Has the proposed new or revised Constitution been ratified conformably to said Art. XV of the 1935
Constitution?
Petitioners in L-36142 maintain the negative view, upon ground: 1) that the President "is without
authority to create the Citizens' Assemblies" through which, respondents maintain, the proposed
new Constitution has been ratified; that said Assemblies "are without power to approve the proposed
Constitution"; 3) that the President "is without power to proclaim the ratification by the Filipino people
of the proposed Constitution"; and 4) that "the election held (in the Citizens' Assemblies) to ratify the
proposed Constitution was not a free election, hence null and void."
Apart from substantially reiterating these grounds support of said negative view, the petitioners in L-
36164 contend: 1) that the President "has no power to call a plebiscite for the ratification or rejection"
of the proposed new Constitution or "to appropriate funds for the holding of the said plebiscite"; 2)
that the proposed new or revised Constitution "is vague and incomplete," as well as "contains
provisions which are beyond the powers of the 1971 Convention to enact," thereby rendering it "unfit
for ... submission the people;" 3) that "(t)he period of time between November 1972 when the 1972
draft was approved and January 11-15, 1973," when the Citizens' Assemblies supposedly ratified
said draft, "was too short, worse still, there was practically no time for the Citizens' Assemblies to
discuss the merits of the Constitution which the majority of them have not read a which they never
knew would be submitted to them ratification until they were asked the question — "do you approve
of the New Constitution?" during the said days of the voting"; and that "(t)here was altogether no
freedom discussion and no opportunity to concentrate on the matter submitted to them when the
1972 draft was supposedly submitted to the Citizens' Assemblies for ratification."
Petitioner in L-36236 added, as arguments in support of the negative view, that : 1) "(w)ith a
government-controlled press, there can never be a fair and proper submission of the proposed
Constitution to the people"; and 2) Proclamation No. 1102 is null and void "(i)nasmuch as the
ratification process" prescribed "in the 1935 Constitution was not followed."
Besides adopting substantially some of the grounds relied upon by the petitioners in the above-
mentioned cases, the petitioners in L-36283 argue that "(t)he creation of the Citizens' Assemblies as
the vehicle for the ratification of the Constitution was a deception upon the people since the
President announced the postponement of the January 15, 1973 plebiscite to either February 19 or
March 5, 1973." 38
The reasons adduced by the petitioners in L-36165 in favor of the negative view have already been
set forth earlier in this opinion. Hence, it is unnecessary to reproduce them here. So it is, with
respect to the positions taken in L-36165 by counsel for therein respondents Gil J. Puyat and Jose
Roy — although more will be said later about them — and by the Solicitor General, on behalf of the
other respondents in that case and the respondents in the other cases.
1. What is the procedure prescribed by the 1935 Constitution for its amendment?
Under section 1 of Art. XV of said Constitution, three (3) steps are essential, namely:
1. That the amendments to the Constitution be proposed either by Congress or by a convention

called for that purpose, "by a vote of three-fourths of all the Members of the Senate and the House of
Representatives voting separately," but "in joint session assembled";
2. That such amendments be "submitted to the people for their ratification" at an "election"; and
3. That such amendments be "approved by a majority of the votes cast" in said election.
Compliance with the first requirement is virtually conceded, although the petitioners in L-36164
question the authority of the 1971 Constitutional Convention to incorporate certain provisions into the
draft of the new or revised Constitution. The main issue in these five (5) cases hinges, therefore, on
whether or not the last two (2) requirements have been complied with.
2. Has the contested draft of the new or revised Constitution been submitted to the people for their
ratification conformably to Art. XV of the Constitution?
In this connection, other provisions of the 1935 Constitution concerning "elections" must, also, be
taken into account, namely, section I of Art. V and Art. X of said Constitution. The former reads:
Section 1. Suffrage may be exercised by male citizens of the Philippines not

otherwise disqualified by law, who are twenty-one years of age or over and are able
to read and write, and who shall have resided in the Philippines for one year and in
the municipality wherein they propose to vote for at least six months preceding the
election. The National Assembly shall extend the right of suffrage to women, if in a
plebiscite which shall be held for that purpose within two years after the adoption of
this Constitution, not less than three hundred thousand women possessing the
necessary qualifications shall vote affirmatively on the question.
Sections 1 and 2 of Art. X of the Constitution ordain in part:
Section 1. There shall be an independent Commission on Elections composed of a

Chairman and two other Members to be appointed by the President with the consent
of the Commission on Appointments, who shall hold office for a term of nine years
and may not be reappointed. ...
xxx xxx xxx
Sec. 2. The Commission on Elections shall have exclusive charge of the

enforcement and administration of all laws relative to the conduct of elections and
shall exercise all other functions which may be conferred upon it by law. It shall
decide, save those involving the right to vote, all administrative questions, affecting
elections, including the determination of the number and location of polling places,
and the appointment of election inspectors and of other election officials. All law
enforcement agencies and instrumentalities of the Government, when so required by
the Commission, shall act as its deputiesfor the purpose of insuring fee, orderly, and
honest elections. The decisions, orders, and rulings of the Commission shall be
subject to review by the Supreme Court.
xxx xxx xxx 39
a. Who may vote in a plebiscite under Art. V of the Constitution?
Petitioners maintain that section 1 of Art. V of the Constitution is a limitation upon the exercise of the
right of suffrage. They claim that no other persons than "citizens of the Philippines not otherwise
disqualified by law, who are twenty-one years of age or over and are able to read and write, and who
shall have resided in the Philippines for one year and in the municipality wherein they propose to
vote for at least six months preceding the election," may exercise the right of suffrage in the
Philippines. Upon the other hand, the Solicitor General contends that said provision
merely guarantees the right of suffrage to persons possessing the aforementioned qualifications and
none of the disqualifications, prescribed by law, and that said right may be vested by competent
authorities in persons lacking some or all of the aforementioned qualifications, and possessing some
of the aforesaid disqualifications. In support of this view, he invokes the permissive nature of the
language — "(s)uffrage may be exercised" — used in section 1 of Art. V of the Constitution, and the
provisions of the Revised Barrio Charter, Republic Act No. 3590, particularly sections 4 and 6
thereof, providing that citizens of the Philippines "eighteen years of age or over," who are registered
in the list of barrio assembly members, shall be members thereof and may participate as such in the
plebiscites prescribed in said Act.
I cannot accept the Solicitor General's theory. Art. V of the Constitution declares who may exercise
the right of suffrage, so that those lacking the qualifications therein prescribed may not exercise
such right. This view is borne out by the records of the Constitutional Convention that drafted the
1935 Constitution. Indeed, section 1 of Art. V of the 1935 Constitution was largely based on the
report of the committee on suffrage of the Convention that drafted said Constitution which report
was, in turn, "strongly influenced by the election laws then in force in the Philippines ... ." " Said
40
committee had recommended: 1) "That the right of suffrage should exercised only by male citizens
of the Philippines." 2) "That should be limited to those who could read and write." 3) "That the duty to
vote should be made obligatory." It appears that the first recommendation was discussed extensively
in the Convention, and that, by way of compromise, it was eventually agreed to include, in section 1
of Art. V of the Constitution, the second sentence thereof imposing upon the National Assembly
established by the original Constitution — instead of the bicameral Congress subsequently created
by amendment said Constitution — the duty to "extend the right of suffrage women, if in a plebiscite
to, be held for that purpose within two years after the adoption of this Constitution, not less than
three hundred thousand women possessing the necessary qualifications shall vote affirmatively on
the question." 41
The third recommendation on "compulsory" voting was, also debated upon rather extensively, after
which it was rejected by the Convention. This accounts, in my opinion, for the permissive language
42
used in the first sentence of said Art. V. Despite some debates on the age qualification —
amendment having been proposed to reduce the same to 18 or 20, which were rejected, and the
residence qualification, as well as the disqualifications to the exercise of the right of suffrage — the
second recommendation limiting the right of suffrage to those who could "read and write" was — in
the language of Dr. Jose M. Aruego, one of the Delegates to said Convention — "readily
approved in the Convention without any dissenting vote," although there was some debate on
whether the Fundamental Law should specify the language or dialect that the voter could read and
write, which was decided in the negative. 43
What is relevant to the issue before Us is the fact that the constitutional provision under
consideration was meant to be and is a grant or conferment of a right to persons possessing the
qualifications and none of the disqualifications therein mentioned, which in turn, constitute
a limitation of or restriction to said right, and cannot, accordingly, be dispensed with, except by
constitutional amendment. Obviously, every such constitutional grant or conferment of a right is
necessarily a negation of the authority of Congress or of any other branch of the Government to
deny said right to the subject of the grant — and, in this sense only, may the same partake of the
nature of a guarantee. But, this does not imply not even remotely, that the Fundamental Law allows
Congress or anybody else to vest in those lacking the qualifications and having the disqualifications
mentioned in the Constitution the right of suffrage.
At this juncture, it is noteworthy that the committee on suffrage responsible for the adoption of
section 1 of Art. V of the Constitution was "strongly influenced by the election laws then in force in
the Philippines." Our first Election Law was Act 1582, passed on January 9, 1907, which was partly
amended by Acts 1669, 1709, 1726 and 1768, and incorporated into the Administrative Code of
1916 — Act 2657 — as chapter 20 thereof, and then in the Administrative Code of 1917 — Act 2711
— as chapter 18 thereof, which, in turn, was amended by Act 3387, approved on December 3, 1927.
Sections 431 and 432 of said Code of 1917, prescribing, respectively, the qualifications for and
disqualifications from voting, are quoted below. In all of these legislative acts, the provisions
44
concerning the qualifications of voters partook of the nature of a grant or recognition of the right of
suffrage, and, hence, of a denial thereof to those who lacked the requisite qualification and
possessed any of the statutory disqualifications. In short, the history of section 1, Art. V of the
Constitution, shows beyond doubt than the same conferred — not guaranteed — the authority to
persons having the qualifications prescribed therein and none of disqualifications to be specified in
ordinary laws and, necessary implication, denied such right to those lacking any said qualifications,
or having any of the aforementioned disqualifications.
This view is further bolstered by the fact that the 1971 Constitutional Convention sought the
submission to a plebiscite of a "partial amendment" to said section 1 of Art. V of the 1935
Constitution, by reducing the voting age from twenty-one (21) years to eighteen (18) years, which,
however, did not materialize on account of the decision of this Court in Tolentino v. Commission on
Elections, granting the writs, of prohibition and injunction therein applied for, upon the ground that,
45
under the Constitution, all of the amendments adopted by the Convention should be submitted in "an
election" or a single election, not separately or in several or distinct elections, and that the proposed
amendment sought to be submitted to a plebiscite was not even a complete amendment, but a
"partial amendment" of said section 1, which could be amended further, after its ratification, had the
same taken place, so that the aforementioned partial amendment was, for legal purposes, no more
than a provisional or temporary amendment. Said partial amendment was predicated upon the
generally accepted contemporary construction that, under the 1935 Constitution, persons below
twenty-one (21) years of age could not exercise the right of suffrage, without a previous amendment
of the Constitution.
Upon the other hand, the question, whether 18-year-old members of barrio assemblies may vote in
barrio assembly plebiscites is, to say the least, a debatable one. Indeed, there seems to be a conflict
between the last paragraph of said section 6 of Rep. Act No. 3590, pursuant to which the "majority
46
vote of all the barrio assembly members" (which include all barrio residents 18 years of age or over,
duly registered in the list of barrio assembly members) is necessary for the approval, in an assembly
plebiscite, of "any budgetary, supplemental appropriations or special tax ordinances," whereas,
according to the paragraph preceding the penultimate one of said section, "(a)ll duly registered
47
barrio assembly members qualified to vote" — who, pursuant to section 10 of the same Act, must be
citizens "of the Philippines, twenty-one years of age or over, able to read and write," and residents
the barrio "during the six months immediately preceding election, duly registered in the list of voters"
and " otherwise disqualified ..." — just like the provisions of present and past election codes of the
Philippines and Art. V of the 1935 Constitution — "may vote in the plebiscite."
I believe, however, that the apparent conflict should resolved in favor of the 21-year-old members of
the assembly, not only because this interpretation is in accord with Art. V the Constitution, but, also,
because provisions of a Constitution — particularly of a written and rigid one, like ours generally
accorded a mandatory status — unless the intention to the contrary is manifest, which is not so as
regards said Art. V — for otherwise they would not have been considered sufficiently important to be
included in the Fundamental Law of the land. Besides, it would be illogical, if not absurd, believe
48
that Republic Act No. 3590 requires, for the most important measures for which it demands — in
addition to favorable action of the barrio council — the approval of barrio assembly through
a plebiscite, lesser qualifications than those prescribed in dealing with ordinary measures for which
such plebiscite need not be held.
It is similarly inconceivable that those who drafted the 1935 Constitution intended section 1 of Art. V
thereof to apply only to elections of public officers, not to plebiscites for the ratification of
amendments to the Fundamental Law or revision thereof, or of an entirely new Constitution, and
permit the legislature to require lesser qualifications for such ratification, notwithstanding the fact that
the object thereof much more important — if not fundamental, such as the basic changes introduced
in the draft of the revised Constitution adopted by the 1971 Constitutional Convention, which a
intended to be in force permanently, or, at least, for many decades, and to affect the way of life of
the nation — and, accordingly, demands greater experience and maturity on the part of the
electorate than that required for the election of public officers, whose average term ranges from 2
49
to 6 years.
It is admitted that persons 15 years of age or over, but below 21 years, regardless of whether or not
they possessed the other qualifications laid down in both the Constitution and the present Election
Code, and of whether or not they are disqualified under the provisions of said Constitution and
50
Code, or those of Republic Act No. 3590, have participated and voted in the Citizens' Assemblies
51 52
that have allegedly ratified the new or revised Constitution drafted by the 1971 Constitutional
Convention.
In fact, according to the latest official data, the total number of registered voters 21 years of age or
over in the entire Philippines, available in January 1973, was less than 12 million. Yet, Proclamation
No. 1102 states that 14,976,56 "members of all the Barangays (Citizens Assemblies) voted for the
adoption of the proposed Constitution, as against ... 743,869 who voted for its rejection," whereas,
on the question whether or not the people still wanted a plebiscite to be called to ratify the new
Constitution, "... 14,298,814 answered that there was no need for a plebiscite and that the vote of
the Barangays (Citizens Assemblies) should be considered as a vote in a plebiscite." In other words,
it is conceded that the number of people who allegedly voted at the Citizens' Assemblies for
exceeded the number of registered voters under the Election Code in force in January 1973.
It is thus clear that the proceedings held in such Citizens' Assemblies — and We have more to say
on this point in subsequent pages — were fundamentally irregular, in that persons lacking the
qualifications prescribed in section 1 of Art. V of the Constitution were allowed to vote in said
Assemblies. And, since there is no means by which the invalid votes of those less than 21 years of
age can be separated or segregated from those of the qualified voters, the proceedings in the
Citizens' Assemblies must be considered null and void. 53
It has been held that "(t)he power to reject an entire poll ... should be exercised ... in a case where it
is impossible to ascertain with reasonable certainty the true vote," as where "it is impossible to
separate the legal votes from the illegal or spurious ... ."
54
In Usman v. Commission on Elections, et al., We held:

55
Several circumstances, defying exact description and dependent mainly on the

factual milieu of the particular controversy, have the effect of destroying the integrity
and authenticity of disputed election returns and of avoiding their prima facie value
and character. If satisfactorily proven, although in a summary proceeding, such
circumstances as alleged by the affected or interested parties, stamp the election
returns with the indelible mark of falsity and irregularity, and, consequently, of
unreliability, and justify their exclusion from the canvass.
Then, too, the 1935 Constitution requires "a majority of the votes cast" for a proposed amendment to
the Fundamental Law to be "valid" as part thereof, and the term "votes cast" has a well-settled
meaning.
The term "votes cast" ... was held in Smith v. Renville County Commissioners, 65
N.W. 956, 64 Minn. 16, to have been used as an equivalent of "ballots cast." 56
The word "cast" is defined as "to deposit formally or officially."

57
It seems to us that a vote is cast when a ballot is deposited indicating a "choice." ...

The word "cast" means "deposit (a ballot) formally or officially ... .
... In simple words, we would define a "vote cast" as the exercise on a ballot of the
choice of the voter on the measure proposed. 58
In short, said Art. XV envisages — with the term "votes cast" — choices made on ballots — not
orally or by raising — by the persons taking part in plebiscites. This is but natural and logical, for,
since the early years of the American regime, we had adopted the Australian Ballot System, with its
major characteristics, namely, uniform official ballots prepared and furnished by the Government and
secrecy in the voting, with the advantage of keeping records that permit judicial inquiry, when
necessary, into the accuracy of the election returns. And the 1935 Constitution has been consistently
interpreted in all plebiscites for the ratification rejection of proposed amendments thereto, from 1935
to 1967. Hence, the viva voce voting in the Citizens' Assemblies was and is null and void ab initio.
b. How should the plebiscite be held? (COMELEC supervision indispensable; essential requisites)
Just as essential as compliance with said Art. V of the 19 Constitution is that of Art. X thereof,
particularly its sections 1 and 2. Indeed, section 1 provides that "(t)here shall be
an independent Commission on Elections ... ." The point to be stressed here is the term
"independent." Indeed, why was the term used?
In the absence of said constitutional provision as to the independence of the Commission, would it
have been depends upon either Congress or the Judiciary? The answer must be the negative,
because the functions of the Commission — "enforcement and administration" of election laws —
are neither legislative nor judicial in nature, and, hence, beyond the field allocated to either Congress
or courts of justice. Said functions are by their nature essentially executive, for which reason, the
Commission would be under the "control" of the President, pursuant to section 10, paragraph (1) of
Art. VII of the Constitution, if Art. X thereof did not explicitly declare that it (the Commission) is an
"independent" body. In other words, in amending the original 1935 Constitution, by inserting therein
said Art. X, on the Commission on Elections, the purpose was to make said
Commission independent principally of the Chief Executive.
And the reason therefor is, also, obvious. Prior to the creation of the Commission on Elections as a
constitutional organ, election laws in the Philippines were enforced by the then Department of the
Interior, through its Executive Bureau, one of the offices under the supervision and control of said
Department. The same — like other departments of the Executive Branch of the Government —
was, in turn, under the control of the Chief Executive, before the adoption of the 1935 Constitution,
and had been — until the abolition of said Department, sometime ago — under the control of the
President of the Philippines, since the effectivity of said Fundamental Law. Under the provisions
thereof, the Executive could so use his power of control over the Department of the Interior and its
Executive Bureau as to place the minority party at such a great, if not decisive, disadvantage, as to
deprive it, in effect, of the opportunity to defeat the political party in power, and, hence, to enable the
same to perpetuate itself therein. To forestall this possibility, the original 1935 Constitution was
amended by the establishment of the Commission on Elections as a constitutional body independent
primarily of the President of the Philippines.
The independence of the Commission was sought to be strengthened by the long term of office of its
members — nine (9) years, except those first appointed — the longest under the Constitution,
59
second only to that of the Auditor General ; by providing that they may not be removed from office
60
except by impeachment, placing them, in this respect, on the same plane as the President, the Vice-
President, the Justices of the Supreme Court and the Auditor General; that they may not be
reappointed; that their salaries, "shall be neither increased nor diminished during their term of office";
that the decisions the Commission "shall be subject to review by the Supreme Court" only ; that 61
"(n)o pardon, parole, or suspension sentence for the violation of any election law may be granted
without the favorable recommendation of the Commission" ; and, that its chairman and members
62
"shall not, during the continuance in office, engage in the practice of any profession or intervene,
directly or indirectly, in the management or control of any private enterprise which in anyway may
affected by the functions of their office; nor shall they, directly or indirectly, be financially interested in
any contract with the Government or any subdivision or instrumentality thereof." Thus, the framers
63
of the amendment to the original Constitution of 1935 endeavored to do everything possible protect
and insure the independence of each member of the Commission.
With respect to the functions thereof as a body, section 2 of said Art. X ordains that "(t)he
Commission on Elections shall have exclusive charge of the enforcement and administration all laws
relative to the conduct of elections," apart from such other "functions which may be conferred upon it
by law." It further provides that the Commission "shall decide, save those involving the right to
vote, all administrative question affecting elections, including the determination of the number and
location of polling places, and the appointment of election inspectors and of other election officials."
And, to forests possible conflicts or frictions between the Commission, on one hand, and the other
offices or agencies of the executive department, on the other, said section 2 postulates that "(a)ll law
enforcement agencies and instrumentalities of the Government, when so required by the
Commission, shall act as its deputies for the purpose of insuring free, orderly, and honest elections."
Not satisfied with this, it declares, in effect, that "(t)he decisions, orders, and ruling of the
Commission" shall not be subject to review, except by the Supreme Court.
In accordance with the letter and spirit of said Art. X of the Constitution, Rep. Act No. 6388,
otherwise known as the Election Code of 1971, implements the constitutional powers of the
Commission on Elections and grants additional powers thereto, some of which are enumerated in
sections 5 and 6 of said Act, quoted below. Moreover, said Act contains, inter alia, detailed
64
provisions regulating contributions and other (corrupt) practices; the establishment of election
precincts; the designation and arrangement of polling places, including voting booths, to protect the
secrecy of the ballot; formation of lists of voters, the identification and registration of voters, the
proceedings therefor, as well as for the inclusion in, or exclusion or cancellation from said list and
the publication thereof; the establishment of municipal, provincial and files of registered voters; the
composition and appointment of board of election inspectors; the particulars of the official ballots to
be used and the precautions to be taken to insure authenticity thereof; the procedure for the casting
of votes; the counting of votes by boards of inspectors; the rules for the appreciation of ballots and
the preparation and disposition of election returns; the constitution and operation of municipal,
provincials and national boards of canvassers; the presentation of the political parties and/or their
candidates in each election precinct; the proclamation of the results, including, in the case of election
of public officers, election contests; and the jurisdiction of courts of justice in cases of violation of the
provisions of said Election Code and the penalties for such violations.
Few laws may be found with such meticulous and elaborate set of provisions aimed at "insuring free,
orderly, and honest election," as envisaged in section 2 of Art. X of the Constitution. Yet, none of the
foregoing constitutional and statutory provisions was followed by the so-called Barangays or
Citizens' Assemblies. And no reasons have been given, or even sought to be given therefor. In
many, if not most, instances, the election were held a viva voce, thus depriving the electorate of the
right to vote secretly — one of the most, fundamental and critical features of our election laws from
time immemorial — particularly at a time when the same was of utmost importance, owing to
the existence of Martial Law.
In Glen v. Gnau, involving the casting of many votes, openly, without complying with the
65
requirements of the law pertinent thereto, it was held that the "election officers" involved "cannot be
too strongly condemned" therefor and that if they "could legally dispense with such requirement ...
they could with equal propriety dispense with all of them, including the one that the vote shall be by
secret ballot, or even by ballot
at all ... ."
Moreover, upon the formal presentation to the Executive of the proposed Constitution drafted by the
1971 Constitutional Convention, or on December 1, 1972, Presidential Decree No. 73 (on the validity
of which — which was contested in the plebiscite cases, as well as in the 1972 habeas
corpus cases — We need not, in the case of bar, express any opinion) was issued, calling a
66
plebiscite, to be held on January 15, 1973, at which the proposed Constitution would be submitted to
the people for ratification or rejection; directing the publication of said proposed Constitution; and
declaring, inter alia, that "(t)he provision of the Election Code of 1971, insofar as they are not
inconsistent" with said decree — excepting those "regarding right and obligations of political parties
and candidates" — "shall apply to the conduct of the plebiscite." Indeed, section 2 of said Election
Code of 1971 provides that "(a)ll elections of public officers except barrio officials and
plebiscites shall be conducted in the manner provided by this Code." General Order No. 20, dated
January 7, 1973, postponing until further notice, "the plebiscite scheduled to be held on January 15,
1973," said nothing about the procedure to be followed in plebiscite to take place at such notice, and
no other order or decree has been brought to Our attention, expressly or impliedly repealing the
provisions of Presidential Decree 73, insofar as said procedure is concerned.
Upon the other hand, said General Order No. 20 expressly suspended "the provisions of Section 3 of
Presidential Decree No. 73 insofar as they allow free public discussion of proposed Constitution ...
temporarily suspending effects of Proclamation No. 1081 for the purposes of free open dabate on
the proposed Constitution ... ." This specific mention of the portions of the decrees or orders or
instructions suspended by General Order No. 20 necessarily implies that all other portions of said
decrees, orders or instructions — and, hence, the provisions of Presidential Decree No. 73 outlining
the procedure to be followed in the plebiscite for ratification or rejection of the proposed Constitution
— remained in force, assuming that said Decree is valid.
It is claimed that by virtue of Presidential Decree No. 86-A — the text of which is quoted below —
67
the Executive declared, inter alia, that the collective views expressed in the Citizens' Assemblies
"shall be considered in the formulation of national policies or programs and, wherever practicable,
shall be translated into concrete and specific decision"; that such Citizens' Assemblies "shall
consider vital national issues ... like the holding of the plebiscite on the new Constitution ... and
others in the future, which shall serve as guide or basis for action or decision by the national
government"; and that the Citizens' Assemblies "shall conduct between January 10 and 15, 1973,
a referendum on important national issues, including those specified in paragraph 2 hereof, and
submit the results thereof to the Department of Local Governments and Community Development
immediately thereafter, ... ." As in Presidential Decree No. 86, this Decree No. 86-A does not and
cannot exclude the exercise of the constitutional supervisory power of the Commission on Elections
or its participation in the proceedings in said Assemblies, if the same had been intended to constitute
the "election" or Plebiscite required Art. V of the 1935 Constitution. The provision of Decree No. 86-A
directing the immediate submission of the result thereof to the Department of Local Governments
Community Development is not necessarily inconsistent with, and must be subordinate to the
constitutional power of the Commission on Elections to exercise its "exclusive authority over the
enforcement and administration of all laws to the conduct of elections," if the proceedings in the
Assemblies would partake of the nature of an "election" or plebiscite for the ratification or rejection of
the proposed Constitution.
We are told that Presidential Decree No. 86 was further amended by Presidential Decree No. 86-B,
dated 1973, ordering "that important national issues shall from time to time; be referred to the
Barangays (Citizens Assemblies) for resolution in accordance with Presidential Decree No. 86-A
dated January 5, 1973 and that the initial referendum include the matter of ratification of the
Constitution by the 1971 Constitutional Convention" and that "(t)he Secretary of the Department of
Local Governments and Community Development shall insure the implementation of this order." As
in the case of Presidential Decrees Nos. 86 and 86-A, the foregoing directives do not necessarily
exclude exercise of the powers vested by the 1935 Constitution in the Commission on Elections,
even if the Executive had the authority to repeal Art. X of our Fundamental Law — which he does
not possess. Copy of Presidential Decree No. 86-B is appended hereto as Annex B hereof.
The point is that, such of the Barrio Assemblies as were held took place without the intervention of
the Commission on Elections, and without complying with the provisions of the Election Code of
1971 or even of those of Presidential Decree No. 73. What is more, they were held under the
supervision of the very officers and agencies of the Executive Department sought to be
excluded therefrom by Art. X of the 1935 Constitution. Worse still, said officers and agencies of the
1935 Constitution would be favored thereby, owing to the practical indefinite extension of their
respective terms of office in consequence of section 9 of the Transitory Provisions, found in Art. XVII
of the proposed Constitution, without any elections therefor. And the procedure therein mostly
followed is such that there is no reasonable means of checking the accuracy of the returns files by
the officers who conducted said plebiscites. This is another patent violation of Art. of the Constitution
which can hardly be sanctioned. And, since the provisions of this article form part of
the fundamental scheme set forth in the 1935 Constitution, as amended, to insure the "free, orderly,
and honest" expression of the people's will, the aforementioned violation thereof renders null and
void the contested proceedings or alleged plebiscite in the Citizens' Assemblies, insofar as the same
are claimed to have ratified the revised Constitution proposed by the 1971 Constitutional
Convention. "... (a)ll the authorities agree that the legal definition of an election, as well as that which
is usually and ordinarily understood by the term, is a choosing or as election by those having a right
to participate (in the selection) of those who shall fill the offices, or of the adoption or rejection of any
public measure affecting the territory involved. 15 Cyc. 279; Lewis v. Boynton, 25 Colo. 486, 55 Pac.
732; Saunders v. Haynes, 13 Cal. 145; Seaman v. Baughman, 82 Iowa 216, 47 N.W. 1091, 11
L.R.A. 354; State v. Hirsh, 125 Ind. 207, 24 N.E. 1062, 9 L.R.A. 170; Bouvier's Law Dictionary. 68
IV
Has the proposed Constitution aforementioned

been approved by a majority of the people in
Citizens' Assemblies allegedly held
throughout the Philippines?
Respondents maintain the affirmative, relying upon Proclamation No. 1102, the validity of which is
precisely being contested by petitioners herein. Respondents claim that said proclamation is
"conclusive" upon this Court, or is, at least, entitled to full faith and credence, as an enrolled bill; that
the proposed Constitution has been, in fact, ratified, approved or adopted by the "overwhelming"
majority of the people; that Art. XV of the 1935 Constitution has thus been "substancially" complied
with; and that the Court refrain from passing upon the validity of Proclamation No. 1102, not only
because such question is political in nature, but, also, because should the Court invalidate the
proclamation, the former would, in effect, veto the action of the people in whom sovereignty resides
and from its power are derived.
The major flaw in this process of rationalization is that it assumes, as a fact, the very premise on
which it is predicated, and which, moreover, is contested by the petitioners. As the Supreme Court of
Minnessota has aptly put it —
... every officer under a constitutional government must act according to law and

subject to its restrictions, and every departure therefrom or disregard thereof must
subject him to the restraining and controlling of the people, acting through the
agency of the judiciary; for it must be remembered that the people act through courts,
as well as through the executive or the Legislature. One department is just as
representative as the other, and the judiciary is the department which is charged with
the special duty of determining the limitations which the law places upon all official
action. ... .
Accordingly, the issue boils downs to whether or not the Executive acted within the limits of his
authority when he certified in Proclamation No. 1102 "that the Constitution proposed by the nineteen
hundred and seventy-one (1971) Constitutional Convention has been ratified by an overwhelming
majority of all of the votes cast by the members of all the Barangays (Citizens Assemblies)
throughout the Philippines and has thereby come into effect."
In this connection, it is not claimed that the Chief Executive had personal knowledge of the data he
certified in said proclamation. Moreover, Art. X of the 1935 Constitution was precisely inserted to
place beyond the Executive the power to supervise or even exercise any authority whatsoever over
"all laws relative to the conduct of elections," and, hence, whether the elections are for the choice or
selection of public officers or for the ratification or rejection of any proposed amendment, or revision
of the Fundamental Law, since the proceedings for the latter are, also, referred to in said Art. XV as
"elections".
The Solicitor General stated, in his argument before this Court, that he had been informed that there
was in each municipality a municipal association of presidents of the citizens' assemblies for each
barrio of the municipality; that the president of each such municipal association formed part of a
provincial or city association of presidents of such municipal associations; that the president of each
one of these provincial or city associations in turn formed part of a National Association or
Federation of Presidents of such Provincial or City Associations; and that one Francisco Cruz from
Pasig, Rizal, as President of said National Association or Federation, reported to the President of the
Philippines, in the morning of January 17, 1973, the total result of the voting in the citizens'
assemblies all over the country from January 10 to January 15, 1973. The Solicitor General further
intimated that the said municipal associations had reported the results of the citizens' assemblies in
their respective municipalities to the corresponding Provincial Association, which, in turn, transmitted
the results of the voting in the to the Department of Local Governments and Community
Development, which tabulated the results of the voting in the citizens' assemblies throughout the
Philippines and then turned them over to Mr. Franciso Cruz, as President or acting President of the
National Association or Federation, whereupon Mr. Cruz, acting in a ceremonial capacity, reported
said results (tabulated by the Department of Governments and Community Development) to the
Chief Executive, who, accordingly, issued Proclamation No. 1102.
The record shows, however, that Mr. Cruz was not even a member of any barrio council since 1972,
so that he could possibly have been a member on January 17, 1973, of a municipal association
of presidents of barrio or ward citizens' assemblies, much less of a Provincial, City or National
Association or Federation of Presidents of any such provincial or city associations.
Secondly, at the conclusion of the hearing of these cases February 16, 1973, and in the resolution of
this Court of same date, the Solicitor General was asked to submit, together with his notes on his
oral argument, a true copy of aforementioned report of Mr. Cruz to the President and of
"(p)roclamation, decree, instruction, order, regulation or circular, if any, creating or directing or
authorizing creation, establishment or organization" of said municipal, provincial and national
associations, but neither a copy of alleged report to the President, nor a copy of any "(p)roclamation,
decree, instruction, order, regulation or circular," has been submitted to this Court. In the absence of
said report, "(p)roclamation, decree, instruction," etc., Proclamation No. 1102 is devoid of
any factual and legalfoundation. Hence, the conclusion set forth in the dispositive portion of said
Proclamation No. 1102, to the effect that the proposed new or revised Constitution had been ratified
by majority of the votes cast by the people, can not possibly have any legal effect or value.
The theory that said proclamation is "conclusive upon Court is clearly untenable. If it were, acts of
the Executive and those of Congress could not possibly be annulled or invalidated by courts of
justice. Yet, such is not the case. In fact, even a resolution of Congress declaring that a given person
has been elected President or Vice-President of the Philippines as provided in the Constitution, is
69
not conclusive upon the courts. It is no more than prima facie evidence of what is attested to by said
resolution. If assailed directly in appropriate proceedings, such as an election protest, if and when
70
authorized by law, as it is in the Philippines, the Court may receive evidence and declare, in
accordance therewith, who was duly elected to the office involved. If prior to the creation of the
71
Presidential Electoral Tribunal, no such protest could be filed, it was not because the resolution of
Congress declaring who had been elected President or Vice-President was conclusive upon courts
of justice, but because there was no law permitting the filing of such protest and declaring what court
or body would hear and decide the same. So, too, a declaration to the effect that a given
amendment to the Constitution or revised or new Constitution has been ratified by a majority of the
votes cast therefor, may be duly assailed in court and be the object of judicial inquiry,
in direct proceedings therefor — such as the cases at bar — and the issue raised therein may and
should be decided in accordance with the evidence presented.
The case of In re McConaughy is squarely in point. "As the Constitution stood from the
72
organization of the state" — of Minnessota — "all taxes were required to be raised under the system
known as the 'general property tax.' Dissatisfaction with the results of this method and the
development of more scientific and satisfactory methods of raising revenue induced the Legislature
to submit to the people an amendment to the Constitution which provided merely that taxes shall be
uniform upon the same class of subjects. This proposed amendment was submitted at the general
election held in November, 1906, and in due time it was certified by the state canvassing board and
proclaimed by the Governor as having been legally adopted. Acting upon the assumption that the
amendment had become a part of the Constitution, the Legislature enacted statutes providing for a
State Tax Commission and a mortgage registry tax, and the latter statute, upon the same theory,
was held constitutional" by said Court. "The district court found that the amendment had no in fact
been adopted, and on this appeal" the Supreme Court was "required to determine the correctness of
that conclusion."
Referring to the effect of the certification of the State Board of Canvassers created by the Legislature
and of theproclamation made by the Governor based thereon, the Court held: "It will be noted that
this board does no more than tabulate the reports received from the various county board and add
up and certify the results. State v. Mason, 45 Wash. 234, 88 Pac. 126, 9 L.R.A. (U.S.) 1221. It
is settled law that the decisions of election officers, and canvassing boards are not conclusive and
that the final decision must rest with the courts, unless the law declares that the decisions of the
board shall be final" — and there is no such law in the cases at bar. "... The correctness of the
conclusion of the state board rests upon the correctness of the returns made by the county boards
and it is inconceivable that it was intended that this statement of result should be final and
conclusive regardless of the actual facts. The proclamation of the Governor adds nothing in the way
of conclusiveness to the legal effect of the action of the canvassing board. Its purpose is to formally
notify the people of the state of the result of the voting as found by the canvassing board. James on
Const. Conv. (4th Ed.) sec. 523."
In Bott v. Wartz, the Court reviewed the statement of results of the election made by the
73
canvassing board, in order that the true results could be judicially determined. And so did the court
in Rice v. Palmer. 74
Inasmuch as Art. X of the 1935 Constitution places under the "exclusive" charge of the Commission
on Elections, "the enforcement and administration of all laws relative to the conduct of
elections," independently of the Executive, and there is not even a certification by the
Commission in support of the alleged results of the citizens' assemblies relied upon in Proclamation
No. 1102 — apart from the fact that on January 17, 1973 neither the alleged president of the
Federation of Provincial or City Barangays nor the Department of Local Governments had certified to
the President the alleged result of the citizens' assemblies all over the Philippines — it follows
necessarily that, from a constitutional and legal viewpoint, Proclamation No. 1102 is not even prima
facie evidence of the alleged ratification of the proposed Constitution.
Referring particularly to the cases before Us, it will be noted that, as pointed out in the discussion of
the preceding topic, the new or revised Constitution proposed by the 1971 Constitutional Convention
was not ratified in accordance with the provisions of the 1935 Constitution. In fact, it has not even
been, ratified in accordance with said proposed Constitution, the minimum age requirement therein
for the exercise of the right of suffrage being eighteen (18) years, apart from the fact that Art. VI of
the proposed Constitution requires "secret" voting, which was not observed in many, if not most,
Citizens' Assemblies. Besides, both the 1935 Constitution and the proposed Constitution require a
"majority of the votes cast" in an election or plebiscite called for the ratification of an amendment or
revision of the first Constitution or the effectivity of the proposed Constitution, and the phrase "votes
cast" has been construed to mean "votes made in writing not orally, as it was in many Citizens'
Assemblies. 75
Even counsel for Gil J. Puyat and Jose Roy, as respondents in L-36165, asserts openly that Art. XV
of the Constitution has not been complied with, and since the alleged substantial compliance with
the requirements thereof partakes of the nature of a defense set up by the other respondents in
these cases, the burden of proving such defense — which, if true, should be within their peculiar
knowledge — is clearly on such respondents. Accordingly, if despite the extensive notes and
documents submitted by the parties herein, the members of the Court do not know or are not
prepared to say whether or not the majority of the people or of those who took part in the Citizens'
Assemblies have assented to the proposed Constitution, the logical step would be to give due
course to these cases, require the respondents to file their answers, and the plaintiffs their reply,
and, thereafter, to receive the pertinent evidence and then proceed to the determination of the
issues raised thereby. Otherwise, we would be placing upon the petitioners the burden of disproving
a defense set up by the respondents, who have not so far established the truth of such defense.
Even more important, and decisive, than the foregoing is the circumstance that there is ample
reason to believe that many, if not most, of the people did not know that the Citizens' Assemblies
were, at the time they were held, plebiscites for the ratification or rejection of the proposed
Constitution. Hence, in Our decision in the plebiscite cases, We said, inter alia:
Meanwhile, or on December 17, 1972, the President had issued an order temporarily
suspending the effects of Proclamation No. 1081, for the purpose of free and open
debate on the Proposed Constitution. On December 23, the President announced
the postponement of the plebiscite for the ratification or rejection of the Proposed
Constitution. No formal action to this effect was taken until January 7, 1973, when
General Order No. 20 was issued, directing "that the plebiscite scheduled to be held
on January 15, 1973, be postponed until further notice." Said General Order No. 20,
moreover, "suspended in the meantime" the "order of December 17, 1972,
temporarily suspending the effects of Proclamation No. 1081 for purposes of free and
open debate on the proposed Constitution.
In view of these events relative to the postponement of the aforementioned

plebiscite, the Court deemed it fit to refrain, for the time being, from deciding the
aforementioned cases, for neither the date nor the conditions under which said
plebiscite would be held were known or announced officially. Then again, Congress
was, pursuant to the 1935 Constitution, scheduled to meet in regular session on
January 22, 1973, and since the main objection to Presidential Decree No. 73 was
that the President does not have the legislative authority to call a plebiscite and
appropriate funds therefor, which Congress unquestionably could do, particularly in
view of the formal postponement of the plebiscite by the President — reportedly after
consultation with, among others, the leaders of Congress and the Commission on
Elections — the Court deemed it more imperative to defer its final action on these
cases.
And, apparently, the parties in said cases entertained the same belief, for, on December 23, 1972 —
four (4) days after the last hearing of said cases — the President announced the postponement of
76
the plebiscite scheduled by Presidential Decree No. 73 to be held on January 15, 1973, after
consultation with the Commission on Elections and the leaders of Congress, owing to doubts on the
sufficiency of the time available to translate the proposed Constitution into some local dialects and to
comply with some pre-electoral requirements, as well as to afford the people a reasonable
opportunity to be posted on the contents and implications of said transcendental document. On
January 7, 1973, General Order No. 20 was issued formally, postponing said plebiscite "until further
notice." How can said postponement be reconciled with the theory that the proceedings in the
Citizens' Assemblies scheduled to be held from January 10 to January 15, 1973, were "plebiscites,"
in effect, accelerated, according to the theory of the Solicitor General, for the ratification of the
proposed Constitution? If said Assemblies were meant to be the plebiscites or elections envisaged in
Art. XV of the Constitution, what, then, was the "plebiscite" postponed by General Order No. 20?
Under these circumstances, it was only reasonable for the people who attended such assemblies to
believe that the same were not an "election" or plebiscite for the ratification or adoption of said
proposed Constitution.
And, this belief is further bolstered up by the questions propounded in the Citizens' Assemblies,
namely:
[1] Do you like the New Society?
[2] Do you like the reforms under martial law?
[3] Do you like Congress again to hold sessions?
[4] Do you like the plebiscite to be held later?
[5] Do you like the way President Marcos is running the affairs of the
government? [Bulletin Today, January 10, 1973; emphasis an additional question.]
[6] Do you approve of the citizens assemblies as the base of popular government to
decide issues of national interests?
[7] Do you approve of the new Constitution?
[8] Do you want a plebiscite to be called to ratify the new Constitution?
[9] Do you want the elections to be held in November, 1973 in accordance with the
provisions of the 1935 Constitution?
[10] If the elections would not be held, when do you want the next elections to be
called?
[11] Do you want martial law to continue? [Bulletin Today, January 11, 1973]
To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11 are not proper in a plebiscite for the
ratification of a proposed Constitution or of a proposed amendment thereto. Secondly, neither is the
language of question No. 7 — "Do you approve the new Constitution?" One approves "of" the act of
another which does not need such approval for the effectivity of said act, which the first person,
however, finds to be good, wise satisfactory. The approval of the majority of the votes cast in
plebiscite is, however, essential for an amendment to the Constitution to be valid as part thereof.
Thirdly, if the proceedings in the Citizens' Assemblies constituted a plebiscite question No. 8 would
have been unnecessary and improper, regardless of whether question No. 7 were answered
affirmatively or negatively. If the majority of the answers to question No. 7 were in the affirmative, the
proposed Constitution would have become effective and no other plebiscite could be held thereafter
in connection therewith, even if the majority of the answers to question No. 8 were, also, in the
affirmative. If the majority of the answers to question No. 7 were in the negative, neither may another
plebiscite be held, even if the majority of the answers to question No. 8 were in the affirmative. In
either case, not more than one plebiscite could be held for the ratification or rejection of the
proposed Constitution. In short, the insertion of said two (2) questions — apart from the other
questions adverted to above — indicates strongly that the proceedings therein did not partake of the
nature of a plebiscite or election for the ratification or rejection of the proposed Constitution.
Indeed, I can not, in good conscience, declare that the proposed Constitution has been approved or
adopted by the people in the citizens' assemblies all over the Philippines, when it is, to my mind, a
matter of judicial knowledge that there have been no such citizens' assemblies in many parts of
Manila and suburbs, not to say, also, in other parts of the Philippines. In a letter of Governor Efren B.
Pascual of Bataan, dated January 15, 1973, to the Chief Executive, the former reported:
... This report includes a resumee (sic) of the activities we undertook in effecting
the referendum on the eleven questions you wanted our people consulted on and the
Summary of Results thereof for each municipality and for the whole province.
xxx xxx xxx
... Our initial plans and preparations, however, dealt only on the original five
questions. Consequently, when we received an instruction on January 10 to
change the questions, we urgently suspended all scheduled Citizens Assembly
meetings on that day and called all Mayors, Chiefs of Offices and other government
officials to another conference to discuss with them the new set of guidelines and
materials to be used.
On January 11, ... another instruction from the top was received to include the
original five questions among those to be discussed and asked in the Citizens'
Assembly meetings. With this latest order, we again had to make modifications in our
instructions to all those managing and supervising the holding of the Citizens'
Assembly meetings throughout the province. ... Aside from the coordinators we had
from the Office of the Governor, the splendid cooperation and support extended by
almost all government officials and employees in the province, particularly of the
Department of Education, PC and PACD personnel, provided us with enough hands
to trouble shoot and implement sudden changes in the instructions anytime and
anywhere needed. ...
... As to our people, in general, their enthusiastic participation showed their

preference and readiness to accept this new method of government to
people consultation in shaping up government policies.
Thus, as late as January 10, 1973, the Bataan officials had to suspend "all scheduled Citizens'
Assembly meetings ..." and call all available officials "... to discuss with them the new set of
guidelines and materials to be used ... ." Then, "on January 11 ... another instruction from the top
was received to include the original five questions among those be discussed and asked in the
Citizens' Assembly meetings. With this latest order, we again had to make modifications in our
instructions to all those managing and supervising holding of the Citizens' Assembly meetings
throughout province. ... As to our people, in general, their enthusiastic participation showed their
preference and readiness to accept the new method of government to people consultation in
shaping up government policies."
This communication manifestly shows: 1) that, as late a January 11, 1973, the Bataan officials had
still to discuss — not put into operation — means and ways to carry out the changing instructions
from the top on how to organize the citizens' assemblies, what to do therein and even what
questions or topics to propound or touch in said assemblies; 2) that the assemblies would involve no
more than consultations or dialogues between people and government — not decisions be made by
the people; and 3) that said consultations were aimed only at "shaping up government policies" and,
hence could not, and did not, partake of the nature of a plebiscite for the ratification or rejection of a
proposed amendment of a new or revised Constitution for the latter does not entail the formulation of
a policy of the Government, but the making of decision by the people on the new way of life, as a
nation, they wish to have, once the proposed Constitution shall have been ratified.
If this was the situation in Bataan — one of the provinces nearest to Manila — as late as January 11,
1973, one can easily imagine the predicament of the local officials and people in the remote barrios
in northern and southern Luzon, in the Bicol region, in the Visayan Islands and Mindanao. In fact,
several members of the Court, including those of their immediate families and their household,
although duly registered voters in the area of Greater Manila, were not even notified that citizens'
assemblies would be held in the places where their respective residences were located. In the
Prohibition and Amendment case, attention was called to the "duty cast upon the court of taking
77
judicial cognizance of anything affecting the existence and validity of any law or portion of the
Constitution ... ." In line with its own pronouncement in another case, the Federal Supreme Court of
the United States stressed, in Baker v. Carr, that "a court is not at liberty to shut its eyes to
78
an obvious mistake, when the validity of the law depends upon the truth of what is declared."
In the light of the foregoing, I cannot see how the question under consideration can be answered or
resolved otherwise than in the negative.
Have the people acquiesced in the proposed Constitution?
It is urged that the present Government of the Philippines is now and has been run, since January
17, 1971, under the Constitution drafted by the 1971 Constitutional Convention; that the political
department of the Government has recognized said revised Constitution; that our foreign relations
are being conducted under such new or revised Constitution; that the Legislative Department has
recognized the same; and that the people, in general, have, by their acts or omissions, indicated
their conformity thereto.
As regards the so-called political organs of the Government, gather that respondents refer mainly to
the offices under the Executive Department. In a sense, the latter performs some functions which,
from a constitutional viewpoint, are politics in nature, such as in recognizing a new state or
government, in accepting diplomatic representatives accredited to our Government, and even in
devising administrative means and ways to better carry into effect. Acts of Congress which define
the goals or objectives thereof, but are either imprecise or silent on the particular measures to be
resorted to in order to achieve the said goals or delegate the power to do so, expressly or impliedly,
to the Executive. This, notwithstanding, the political organ of a government that purports to be
republican is essentially the Congress or Legislative Department. Whatever may be the functions
allocated to the Executive Department — specially under a written, rigid Constitution with a
republican system of Government like ours — the role of that Department is inherently, basically and
fundamentally executive in nature — to "take care that the laws be faithfully executed," in the
language of our 1935 Constitution. 79
Consequently, I am not prepared to concede that the acts the officers and offices of the Executive
Department, in line with Proclamation No. 1102, connote a recognition thereof o an acquiescence
thereto. Whether they recognized the proposed Constitution or acquiesce thereto or not is something
that cannot legally, much less necessarily or even normally, be deduced from their acts in
accordance therewith, because the are bound to obey and act in conformity with the orders of the
President, under whose "control" they are, pursuant to the 1935 Constitution. They have
absolutely no other choice, specially in view of Proclamation No. 1081 placing the Philippines under
Martial Law. Besides, by virtue of the very decrees, orders and instructions issued by the President
thereafter, he had assumed all powers of Government — although some question his authority to do
so — and, consequently, there is hardly anything he has done since the issuance of Proclamation
No. 1102, on January 17, 1973 — declaring that the Constitution proposed by the 1971
Constitutional Convention has been ratified by the overwhelming majority of the people — that he
could not do under the authority he claimed to have under Martial Law, since September 21, 1972,
except the power of supervision over inferior courts and its personnel, which said proposed
Constitution would place under the Supreme Court, and which the President has not ostensibly
exercised, except as to some minor routine matters, which the Department of Justice has continued
to handle, this Court having preferred to maintain the status quo in connection therewith pending
final determination of these cases, in which the effectivity of the aforementioned Constitution is
disputed.
Then, again, a given department of the Government cannot generally be said to have
"recognized" its own acts. Recognition normally connotes the acknowledgment by a party of the acts
of another. Accordingly, when a subordinate officer or office of the Government complies with the
commands of a superior officer or office, under whose supervision and control he or it is, the former
merely obeys the latter. Strictly speaking, and from a legal and constitutional viewpoint, there is no
act of recognition involved therein. Indeed, the lower officer or office, if he or it acted otherwise,
would just be guilty of insubordination.
Thus, for instance, the case of Taylor v. Commonwealth — cited by respondents herein in support
80
of the theory of the people's acquiescence — involved a constitution ordained in 1902 and
"proclaimed by a convention duly called by a direct vote of the people of the state to revise and
amend the Constitution of 1869. The result of the work of that Convention has been recognized,
accepted and acted upon as the only valid Constitution of the State" by —
1. The "Governor of the State in swearing fidelity to it and proclaiming it, as directed thereby";
2. The "Legislature in its formal official act adopting a joint resolution, July 15, 1902, recognizing the
Constitution ordained by the Convention ...";
3. The "individual oaths of its members to support it, and by its having been engaged for nearly a
year, in legislating under it and putting its provisions into
operation ...";
4. The "judiciary in taking the oath prescribed thereby to support it and by enforcing its
provisions ..."; and
5. The "people in their primary capacity by peacefully accepting it and acquiescing in it, by
registering as voters under it to the extent of thousands throughout the State, and by voting, under
its provisions, at a general election for their representatives in the Congress of the United States."
Note that the New Constitution of Virginia, drafted by a convention whose members were elected
directly by the people, was not submitted to the people for ratification or rejection thereof. But, it was
recognized, not by the convention itself, but by other sectors of the Government, namely, the
Governor; the Legislature — not merely by individual acts of its members, but by formal joint
resolution of its two (2) chambers; by the judiciary; and by the people, in the various ways specified
above. What is more, there was no martial law. In the present cases, none of the foregoing acts of
acquiescence was present. Worse still, there is martial law, the strict enforcement of which was
announced shortly before the alleged citizens' assemblies. To top it all, in the Taylor case, the
effectivity of the contested amendment was not contested judicially until about one (1) year after the
amendment had been put into operation in all branches of the Government, and complied with by
the people who participated in the elections held pursuant to the provisions of the new Constitution.
In the cases under consideration, the legality of Presidential Decree No. 73 calling a plebiscite to be
held on January 15, 1973, was impugned as early as December 7, 1972, or five (5)
weeks before the scheduled plebiscite, whereas the validity of Proclamation No. 1102 declaring on
January 17, 1973, that the proposed Constitution had been ratified — despite General Order No. 20,
issued on January 7, 1972, formally and officially suspending the plebiscite until further notice —
was impugned as early as January 20, 1973, when L-36142 was filed, or three (3) days after the
issuance of Proclamation No. 1102.
It is further alleged that a majority of the members of our House of Representatives and Senate have
acquiesced in the new or revised Constitution, by filing written statements opting to serve in the Ad
Interim Assembly established in the Transitory Provisions of said Constitution. Individual acts of
recognition by members of our legislature, as well as of other collegiate bodies under the
government, are invalid as acts of said legislature or bodies, unless its members have performed
said acts in session duly assembled, or unless the law provides otherwise, and there is no such law
in the Philippines. This is a well-established principle of Administrative Law and of the Law of Public
Officers, and no plausible reason has been adduced to warrant departure therefrom. 81
Indeed, if the members of Congress were generally agreeable to the proposed Constitution, why did
it become necessary to padlock its premises to prevent its meeting in session on January 22, 1973,
and thereafter as provided in the 1935 Constitution? It is true that, theoretically, the members of
Congress, if bent on discharging their functions under said Constitution, could have met in any other
place, the building in which they perform their duties being immaterial to the legality of their official
acts. The force of this argument is, however, offset or dissipated by the fact that, on or about
December 27, 1972, immediately after a conference between the Executive, on the one hand, and
members of Congress, on the other, some of whom expressed the wish to meet in session on
January 22, 1973, as provided in the 1935 Constitution, a Daily Express columnist (Primitivo Mijares)
attributed to Presidential Assistant Guillermo de Vega a statement to the effect that "'certain
members of the Senate appear to be missing the point in issue' when they reportedly insisted on
taking up first the question of convening Congress." The Daily Express of that date, likewise,
82
headlined, on its front page, a "Senatorial Plot Against 'Martial Law Government' Disclosed". Then,
in its issue of December 29, 1972, the same paper imputed to the Executive an appeal "to diverse
groups involved in a conspiracy to undermine" his powers" under martial law to desist from
provoking a constitutional crisis ... which may result in the exercise by me of authority I have not
exercised."
No matter how good the intention behind these statement may have been, the idea implied therein
was too clear an ominous for any member of Congress who thought of organizing, holding or taking
part in a session of Congress, not to get the impression that he could hardly do so without inviting or
risking the application of Martial Law to him. Under these conditions, I do not feel justified in holding
that the failure of the members of Congress to meet since January 22, 1973, was due to their
recognition, acquiescence in or conformity with the provisions of the aforementioned Constitution, or
its alleged ratification.
For the same reasons, especially because of Proclamation No. 1081, placing the entire Philippines
under Martial Law, neither am I prepared to declare that the people's inaction as regards
Proclamation No. 1102, and their compliance with a number of Presidential orders, decrees and/or
instructions — some or many of which have admittedly had salutary effects — issued subsequently
thereto amounts, constitutes or attests to a ratification, adoption or approval of said Proclamation
No. 1102. In the words of the Chief Executive, "martial law connotespower of the gun,
meant coercion by the military, and compulsion and intimidation." The failure to use the gun
83
against those who comply with the orders of the party wielding the weapon does not detract from the
intimidation that Martial Law necessarily connotes. It may reflect the good, reasonable and
wholesome attitude of the person who has the gun, either pointed at others, without pulling the
trigger, or merely kept in its holster, but not without warning that he may or would use it if he deemed
it necessary. Still, the intimidation is there, and inaction or obedience of the people, under these
conditions, is not necessarily an act of conformity or acquiescence. This is specially so when we
consider that the masses are, by and large, unfamiliar with the parliamentary system, the new form
of government introduced in the proposed Constitution, with the particularity that it is not even
identical to that existing in England and other parts of the world, and that even experienced lawyers
and social scientists find it difficult to grasp the full implications of some provisions incorporated
therein.
As regards the applicability to these cases of the "enrolled bill" rule, it is well to remember that the
same refers to a document certified to the President — for his action under the Constitution — by the
Senate President and the Speaker of the House of Representatives, and attested to by the
Secretary of the Senate and the Secretary of the House of Representatives, concerning legislative
measures approved by the two Houses of Congress. The argument of the Solicitor General is,
roughly, this: If the enrolled bill is entitled to full faith and credence and, to this extent, it is conclusive
upon the President and the judicial branch of the Government, why should Proclamation No. 1102
merit less consideration than in enrolled bill?
Before answering this question, I would like to ask the following: If, instead of being certified by the
aforementioned officers of Congress, the so-called enrolled bill were certified by, say, the President
of the Association of Sugar Planters and/or Millers of the Philippines, and the measure in question
were a proposed legislation concerning Sugar Plantations and Mills sponsored by said Association,
which even prepared the draft of said legislation, as well as lobbied actually for its approval, for
which reason the officers of the Association, particularly, its aforementioned president — whose
honesty and integrity are unquestionable — were present at the deliberations in Congress when the
same approved the proposed legislation, would the enrolled bill rule apply thereto? Surely, the
answer would have to be in the negative. Why? Simply, because said Association President has
absolutely no official authority to perform in connection therewith, and, hence, his certification is
legally, as good as non-existent.
Similarly, a certification, if any, of the Secretary of the Department of Local Governments and
Community Development about the tabulated results of the voting in the Citizens Assemblies
allegedly held all over the Philippines — and the records do not show that any such certification, to
the President of the Philippines or to the President Federation or National Association of presidents
of Provincial Associations of presidents of municipal association presidents of barrio or ward
assemblies of citizens — would not, legally and constitutionally, be worth the paper on which it is
written. Why? Because said Department Secretary is not the officer designated by law to
superintend plebiscites or elections held for the ratification or rejection of a proposed amendment or
revision of the Constitution and, hence, to tabulate the results thereof. Worse still, it is the
department which, according to Article X of the Constitution, should not and must not be all
participate in said plebiscite — if plebiscite there was.
After citing approvingly its ruling in United States v. Sandoval, the Highest Court of the United
84
States that courts "will not stand impotent before an obvious instance of a manifestly unauthorized
exercise of power." 85
I cannot honestly say, therefore, that the people impliedly or expressly indicated their conformity to
the proposed Constitution.
VI
Are the Parties entitled to any relief?
Before attempting to answer this question, a few words be said about the procedure followed in
these five (5) cases. In this connection, it should be noted that the Court has not decided whether or
not to give due course to the petitions herein or to require the respondents to answer thereto.
Instead, it has required the respondents to comment on the respective petitions — with three (3)
members of the voting to dismiss them outright — and then considers comments thus submitted by
the respondents as motions to dismiss, as well as set the same for hearing. This was due to the
transcendental nature of the main issue raised, the necessity of deciding the same with utmost
dispatch, and the main defense set up by respondents herein, namely, the alleged political nature of
said issue, placing the same, according to respondents, beyond the ambit of judicial inquiry and
determination. If this defense was sustained, the cases could readily be dismissed; but, owing to the
importance of the questions involved, a reasoned resolution was demanded by public interest. At the
same time, respondents had cautioned against a judicial inquiry into the merits of the issues posed
on account of the magnitude of the evil consequences, it was claimed, which would result from a
decision thereon, if adverse to the Government.
As a matter of fact, some of those issues had been raised in the plebiscite cases, which were
dismissed as moot and academic, owing to the issuance of Proclamation No. 1102 subsequently to
the filing of said cases, although before the rendition of judgment therein. Still one of the members of
the Court (Justice Zaldivar) was of the opinion that the aforementioned issues should be settled in
said cases, and he, accordingly, filed an opinion passing upon the merits thereof. On the other hand,
three (3) members of the Court — Justices Barredo, Antonio and Esguerra — filed separate opinions
favorable to the respondents in the plebiscite cases, Justice Barredo holding "that the 1935
Constitution has pro tanto passed into history and has been legitimately supplanted by the
Constitution in force by virtue of Proclamation 1102." When the petitions at bar were filed, the
86
same three (3) members of the Court, consequently, voted for the dismissal of said petitions. The
majority of the members of the Court did not share, however, either view, believing that the main
question that arose before the rendition of said judgment had not been sufficiently discussed and
argued as the nature and importance thereof demanded.
The parties in the cases at bar were accordingly given every possible opportunity to do so and to
elucidate on and discuss said question. Thus, apart from hearing the parties in oral argument for five
(5) consecutive days — morning and afternoon, or a total of exactly 26 hours and 31 minutes — the
respective counsel filed extensive notes on their or arguments, as well as on such additional
arguments as they wished to submit, and reply notes or memoranda, in addition to rejoinders
thereto, aside from a sizeable number of document in support of their respective contentions, or as
required by the Court. The arguments, oral and written, submitted have been so extensive and
exhaustive, and the documents filed in support thereof so numerous and bulky, that, for all intents
and purposes, the situation is as if — disregarding forms — the petitions had been given due course
and the cases had been submitted for decision.
Accordingly, the majority of the members of the Court believe that they should express their views
on the aforementioned issues as if the same were being decided on the merits, and they have done
so in their individual opinion attached hereto. Hence, the resume of the votes cast and the tenor of
the resolution, in the last pages hereof, despite the fact that technically the Court has not, as yet,
formally given due course to the petitions herein.
And, now, here are my views on the reliefs sought by the parties.
In L-36165, it is clear that we should not issue the writ of mandamus prayed for against Gil J. Puyat
and Jose Roy, President and President Pro Tempore respectively of the Senate, it being settled in
our jurisdiction, based upon the theory of separation of powers, that the judiciary will not issue such
writ to the head of a co-equal department, like the aforementioned officers of the Senate.
In all other respects and with regard to the other respondent in said case, as well as in cases L-
36142, L-36164, L-36236 and L-36283, my vote is that the petitions therein should be given due
course, there being more than prima facie showing that the proposed Constitution has not been
ratified in accordance with Article XV of the 1935 Constitution, either strictly, substantially, or has
been acquiesced in by the people or majority thereof; that said proposed Constitution is not in
force and effect; and that the 1935 Constitution is still the Fundamental Law of the Land, without
prejudice to the submission of said proposed Constitution to the people at a plebiscite for its
ratification or rejection in accordance with Articles V, X and XV of the 1935 Constitution and the
provisions of the Revised Election Code in force at the time of such plebiscite.
Perhaps others would feel that my position in these cases overlooks what they might consider to be
the demands of "judicial statesmanship," whatever may be the meaning of such phrase. I am aware
of this possibility, if not probability; but "judicial statesmanship," though consistent with Rule of
Law, cannot prevail over the latter. Among consistent ends or consistent values, there always is a
hierarchy, a rule of priority.
We must realize that the New Society has many achievements which would have been very difficult,
if not impossible, to accomplish under the old dispensation. But, in and for the judiciary,
statesmanship should not prevail over the Rule of Law. Indeed, the primacy of the law or of the Rule
of Law and faithful adherence thereto are basic, fundamental and essential parts of statesmanship
itself.
Resume of the Votes Cast and the Court's Resolution
As earlier stated, after the submittal by the members of the Court of their individual opinions and/or
concurrences as appended hereto, the writer will now make, with the concurrence of his colleagues,
a resume or summary of the votes cast by each of them.
It should be stated that by virtue of the various approaches and views expressed during the
deliberations, it was agreed to synthesize the basic issues at bar in broad general terms in five
questions for purposes of taking the votes. It was further agreed of course that each member of the
Court would expound in his individual opinion and/or concurrence his own approach to the stated
issues and deal with them and state (or not) his opinion thereon singly or jointly and with such
priority, qualifications and modifications as he may deem proper, as well as discuss thereon other
related issues which he may consider vital and relevant to the cases at bar.
The five questions thus agreed upon as reflecting the basic issues herein involved are the following:
1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and therefore non-
justiciable, question?
2. Has the Constitution proposed by the 1971 Constitutional Convention been ratified validly (with
substantial, if not strict, compliance) conformably to the applicable constitutional and statutory
provisions?
3. Has the aforementioned proposed Constitution acquiesced in (with or without valid ratification) by
the people?
4. Are petitioners entitled to relief? and
5. Is the aforementioned proposed Constitution in force?
The results of the voting, premised on the individual views expressed by the members of the Court in
their respect opinions and/or concurrences, are as follows:
1. On the first issue involving the political-question doctrine Justices Makalintal, Zaldivar, Castro,
Fernando, Teehankee and myself, or six (6) members of the Court, hold that the issue of the validity
of Proclamation No. 1102 presents a justiciable and non-political question. Justices Makalintal and
Castro did not vote squarely on this question, but, only inferentially, in their discussion of the second
question. Justice Barredo qualified his vote, stating that "inasmuch as it is claimed there has been
approval by the people, the Court may inquire into the question of whether or not there has actually
been such an approval, and, in the affirmative, the Court should keep hands-off out of respect to the
people's will, but, in negative, the Court may determine from both factual and legal angles whether or
not Article XV of the 1935 Constitution been complied with." Justices Makasiar, Antonio, Esguerra,
or three (3) members of the Court hold that the issue is political and "beyond the ambit of judicial
inquiry."
2. On the second question of validity of the ratification, Justices Makalintal, Zaldivar, Castro,
Fernando, Teehankee and myself, or six (6) members of the Court also hold that the Constitution
proposed by the 1971 Constitutional Convention was not validly ratified in accordance with Article
XV, section 1 of the 1935 Constitution, which provides only one way for ratification, i.e., "in an
election or plebiscite held in accordance with law and participated in only by qualified and duly
registered voters. 87
Justice Barredo qualified his vote, stating that "(A)s to whether or not the 1973 Constitution has been
validly ratified pursuant to Article XV, I still maintain that in the light of traditional concepts regarding
the meaning and intent of said Article, the referendum in the Citizens' Assemblies, specially in the
manner the votes therein were cast, reported and canvassed, falls short of the requirements thereof.
In view, however, of the fact that I have no means of refusing to recognize as a judge that factually
there was voting and that the majority of the votes were for considering as approved the 1973
Constitution without the necessity of the usual form of plebiscite followed in past ratifications, I am
constrained to hold that, in the political sense, if not in the orthodox legal sense, the people may be
deemed to have cast their favorable votes in the belief that in doing so they did the part required of
them by Article XV, hence, it may be said that in its political aspect, which is what counts most, after
all, said Article has been substantially complied with, and, in effect, the 1973 Constitution has been
constitutionally ratified."
Justices Makasiar, Antonio and Esguerra, or three (3) members of the Court hold that under their
view there has been in effect substantial compliance with the constitutional requirements for valid
ratification.
3. On the third question of acquiescence by the Filipino people in the aforementioned proposed
Constitution, no majority vote has been reached by the Court.
Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold that "the
people have already accepted the 1973 Constitution."
Two (2) members of the Court, namely, Justice Zaldivar and myself hold that there can be no free
expression, and there has even been no expression, by the people qualified to vote all over the
Philippines, of their acceptance or repudiation of the proposed Constitution under Martial Law.
Justice Fernando states that "(I)f it is conceded that the doctrine stated in some American decisions
to the effect that independently of the validity of the ratification, a new Constitution once accepted
acquiesced in by the people must be accorded recognition by the Court, I am not at this stage
prepared to state that such doctrine calls for application in view of the shortness of time that has
elapsed and the difficulty of ascertaining what is the mind of the people in the absence of the
freedom of debate that is a concomitant feature of martial law." 88
Three (3) members of the Court express their lack of knowledge and/or competence to rule on the
question. Justices Makalintal and Castro are joined by Justice Teehankee in their statement that
"Under a regime of martial law, with the free expression of opinions through the usual media vehicle
restricted, (they) have no means of knowing, to the point of judicial certainty, whether the people
have accepted the Constitution." 89
4. On the fourth question of relief, six (6) members of the Court, namely, Justices Makalintal, Castro,
Barredo, Makasiar, Antonio and Esguerra voted to DISMISS the petition. Justice Makalintal and
Castro so voted on the strength of their view that "(T)he effectivity of the said Constitution, in the final
analysis, is the basic and ultimate question posed by these cases to resolve which considerations
other than judicial, an therefore beyond the competence of this Court, are relevant and
90
unavoidable." 91
Four (4) members of the Court, namely, Justices Zaldivar, Fernando, Teehankee and myself voted
to deny respondents' motion to dismiss and to give due course to the petitions.
5. On the fifth question of whether the new Constitution of 1973 is in force:
Four (4) members of the Court, namely, Justices Barredo, Makasiar, Antonio and
Esguerra hold that it is in force by virtue of the people's acceptance thereof;
Four (4) members of the Court, namely, Justices Makalintal, Castro, Fernando and
Teehankee cast no vote thereon on the premise stated in their votes on the third
question that they could not state with judicial certainty whether the people have
accepted or not accepted the Constitution; and
Two (2) members of the Court, namely, Justice Zaldivar and myself voted that the
Constitution proposed by the 1971 Constitutional Convention is not in force;
with the result that there are not enough votes to declare that the new Constitution is not in force.
ACCORDINGLY, by virtue of the majority of six (6) votes of Justices Makalintal, Castro, Barredo,
Makasiar, Antonio and Esguerra with the four (4) dissenting votes of the Chief Justice and Justices
Zaldivar, Fernando and Teehankee, all the aforementioned cases are hereby dismissed. This being
the vote of the majority, there is no further judicial obstacle to the new Constitution being considered
in force and effect.
It is so ordered.
Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.
ANNEX A
PERTINENT PORTIONS
OF THE
MINNESSOTA SUPREME COURT
DECISION
ON THE CASE
IN RE McCONAUGHY
"(a) An examination of the decisions shows that the courts have almost uniformly exercised the
authority to determine the validity of the proposal, submission, or ratification of constitutional
amendments. It has been judicially determined whether a proposed amendment received the
constitutional majority of votes (Dayton v. St. Paul, 22 Minn. 400; Rice v. Palmer, 78 Ark. 432, 96
S.W. 396; Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251; State v. Foraker, 46 Ohio
St. 677, 23 N.E. 49l; 6 L.R.A. 422; Tecumseh National Bank V. Saunders, 51 Neb. 801, 71 N.W.
779; Green v. State Board, 5 Idaho, 130, 47 Pac. 259, 95 Am. St. Rep. 169; In re Denny, 156 Ind.
104, 59 N.E. 359, 51 L.R.A. 722; Knight v. Shelton [C.C.] 134 Fed. 423); whether a proposed
amendment is a single amendment, within the constitutional requirement that every amendment
must be separately submitted (State v. Powell, 77 Miss. 543, 27 South. 927; Gabbert v. Chicago,
etc., R. Co., 171 Mo. 84, 70 S.W. 891; State v. Timme, 54 Wis. 318, 11 N.W. 785; In re Denny, 156
Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Lobaugh v. Cook, 127 Iowa, 181, 102 N.W. 1121; People v.
Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34; State v. Board, 34 Mont. 426, 87 Pac. 450;
State v. Winnett [Neb.] 110 N.W. 1113, 10 L.R.A. [N.S.] 149); whether the failure to enter the
resolution of submission upon the legislative journals invalidates the amendment (Koehler v. Hill, 60
Iowa, 543,14 N.W. 738,15 N.W. 609; Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3; West v.
State, 50 Fla. 154, 39 South. 412; Durfee v. Harper, 22 Mont. 354, 56 Pac. 56; State v. Tufly, 19
Nev. 391, 12 Pac. 835, 3 Am. St. Rep. 895); whether the description of the amendment and the form
of the ballot are sufficient (Russell v. Croy, 164 M 69, 63 S.W. 849; State v. Winnett [ Neb.] 110 N.W.
1113, L.R.A. [N.S.] 149; Murphy Chair Co. v. Attorney General [Mich.] 112 N.W. 127); whether the
method of submission sufficient (Lovett v. Ferguson,, 10 S.D. 44, 71 N.W. 765; Russell v. Croy, 164
Mo. 69, 63 S.W. 849); whether the publication of the amendment or of a notice relative to it is
sufficient (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R.A. 568; Russell v. Croy, 164 Mo. 69, 63
S.W. 849); whether the submission may be well by resolution as by a legislative act approved by the
executive (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R. 568; Warfield vi Vandiver, 101 Md. 78,
60 Atl. 538; Edward Lesueur, 132 Mo. 410, 33 S.W. 1130, 31 L.R.A. 815; Hays v. Hays, 5 Idaho,
154, 47 Pac. 732; State v. Dahl, 6 N.D. 81, 6 N.W. 418, 34 L.R.A. 97); at what election the
amendment be submitted (People v. Curry, 130 Cal. 82, 62 Pac. 516).
In Rich v. Board of Canvassers, 100 Mich. 458, 59 N.W. 183, the court said: "It is contended that the
determination of the question whether an amendment to the Constitution has been carried involves
the exercise of political, and not judicial, power. If this be so, it follows that the promulgation of any
purported amendment by the executive or any executive department is final, and that the action
cannot be questioned by the judiciary; but, with reference to the conditions precedent to submitting a
proposed amendment to a vote of the people, it has been repeatedly held, by courts of the highest
respectability, that it is within the power of the judiciary to inquire into the question, even in a
collateral proceeding. ... It is to be noted that under section 1 of article 20 of the Constitution of the
state no amendment can become a part of the Constitution until ratified by a vote of the people. One
prerequisite is equally as essential as the other. The amendment must first receive the requisite
majority in the Legislature, and afterwards be adopted by the requisite vote. ... It is the fact of a
majority vote which makes the amendment a part of the Constitution."
"In considering the cases it is necessary to note whether in the particular case the court was called
upon to determine between rival governments, or whether the Legislature, or some board or official,
had legally performed the duty imposed by the Constitution or statutes. In re State v. McBride, 4 Mo.
303, 29 Am. Dec. 636, it was held that the General Assembly, under the power granted by the
Constitution, could change the Constitution only in the manner prescribed by it, and that it was the
duty of the court to determine whether all prerequisites had been complied with. In Collier v.
Frierson, 24 Ala. 100, it was held that a Constitution can be changes only by the people in
convention or in a mode described by the Constitution itself, and that if the latter mode is
adopted every requisite of the Constitution must be observed. 'It has been said," says the court, "that
certain acts are to be done, certain requisitions are to be observed, before a change can be effected;
but to what purpose are these acts required, or these requisitions enjoined, if the Legislature or any
other department of the government can dispense with them. To do so would be to violate the
instrument which they are sworn to support; and every principle of public law and sound
constitutional policy requires the court to pronounce against every amendment which is shown not to
have been made in accordance with the rules prescribed by the fundamental law.'
"In State v. Swift, 69 Ind. 505, it was said that: 'The people of a state may form
an original Constitution, or abrogate an old one and form a new one, at any time, without any
political restriction, except the Constitution of the United States, but if they undertake to add an
amendment, by the authority of legislation to a Constitution already in existence, they can do it only
by the method pointed out by the Constitution to which the amendment is added. The power to
amend a Constitution by legislative action does not confer the power to break it, any more than it
confers the power to legislate on any other subject contrary to its prohibitions.' So, in State v. Timme,
54 Wis. 318, 11 N.W. 785, it was held that no amendments can be made to the Constitution of the
state without a compliance with the provisions thereof, both in the passage of such amendment by
the Legislature and the manner of submitting it to the people. The courts have not all agreed as to
the strictness of compliance which should be required.
"In the Prohibition and Amendment Case, 24 Kan. 700, the court determined judicially whether an
amendment to the Constitution had been legally adopted. After approving the statement quoted
from Collier v. Frierson, supra, that 'we entertain no doubt that, to change the Constitution in an
other mode than by a convention, every requisite which is demanded by the instrument itself must
be observed, and the omission of any one is fatal to the amendment,' the court held that, 'as
substance of right is grander and more potent than methods of form,' there had been substantial
compliance with the constitutional requirement that a proposed amendment to the Constitution must
be entered at length on the legislative journal. It appears that the joint resolution making submission
simply provided that a proposition should be submitted to the electors at the general election of
1880. It did not declare that the machinery of the general election law should control, or that any
particular officers or board would receive, count, or canvass the votes cast. But the existing election
machinery was adequate, and the votes were received, counted, and canvassed, and the result
declared as fully as though it had been in terms so ordered. These methods had been followed in
the adoption of previous amendments, and was held that, conceding the irregularity of the
proceedings the Legislature and the doubtful scope of the provisions for the election, yet in view of
the very uncertainty of such provision the past legislative history of similar propositions,
the universal prior acquiescence in the same forms of procedure and the popular
and unchallenged acceptance of the legal pendency before the people of the question of the
amendment for decision, and in view of the duty cast upon the court taking judicial knowledge of
anything affecting the existence and validity of any law or portion of the Constitution, it must be
adjudged that the proposed amendment became part of the Constitution. The effect was to hold that
a provision of the Constitution requiring the proposed amendment to be entered in full on the
journals was directory, and not mandatory. This liberal view was approved in State v. Winnett (Neb.)
110 N. 1113, 10 L.R.A. (N.S.) 149, and People v. Sours, 31 Colo. 369, Pac. 167, 102 Am. St. Rep.
34. But it has not been universally accepted.
"In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3, the court, in commenting upon the Kansas
case said: 'The reasoning by which the learned court reached the conclusion it did is not based
on any sound legal principles, but contrary to them. Neither the argument nor the conclusion can
command our assent or approval. The argument is illogical, and based on premises which
are without any sound foundation, and rests merely on assumption.' See, also, the well-considered
case of Kadderly v. Portland, 44 Or. 118, 74 Pac. 710, 75 Pac. 222. All these cases concede the
jurisdiction of the court to determine whether, in submitting a proposed amendment to the people,
the Legislature legally observed the constitutional provisions as to the manner of procedure.
In Livermore v. Waite, 102 Cal. 113, 36 Pac. 424, 25 L.R.A. 312, the court, at the instance of a
citizen and a taxpayer, restrained the Secretary of State from taking steps to submit to the people a
proposed amendment to the Constitution agreed to by the Legislature on the ground that the
Legislature had not acted in conformity with the Constitution and that the proposed amendment was
of such a character that it could not properly become a part of the Constitution. The Supreme Court
of Colorado, in People v. Sours, supra, refused to exercise this authority.
"The entire question received elaborate consideration in Koehler v. Hill, 60 Iowa, 543, 14 N.W. 738,
15 N.W. 609. The amendment, which concededly had been adopted by the people, had not, before
its submission, been entered in full upon the legislative journals, as required by the Constitution, and
it was held that this was a material variance in both form and substance from the constitutional
requirements, and that the amendment did not, therefore, become a part of the Constitution. As to
the claim that the question was political, and not judicial, it was said that, while it is not competent for
courts to inquire into the validity of the Constitution and the form of government under which they
themselves exist, and from which they derive their powers, yet, where the existing Constitution
prescribes a method for its own amendment, an amendment thereto, to be valid, must be adopted in
strict conformity to that method; and it is the duty of the courts in a proper case, when an
amendment does not relate to their own power or functions, to inquire whether, in the adoption of
the amendment, the provisions of the existing Constitution have been observed, and, if not, to
declare the amendment invalid and of no force. This case was followed in State v. Brookhart, 113
Iowa, 250, 84 N.W. 1064.
"In University v. McIver, 72 N.C. 76, the question whether a proposed amendment to the Constitution
had been legally adopted was treated as a judicial question. By the Constitution a proposed
amendment was required to be approved by Legislatures before its submission to the people. In this
instance a bill was passed which contained 17 amendments. The next Legislature rejected 9 and
adopted 8 of the amendments, and submitted them to the people. The majority of the people voted
for their adoption; but it was contended that the Constitution contemplated and required that the
same bill and the same amendments, without change, should approved by both Legislatures, and
that it did not follow because the second Legislature adopted separately 8 out of 17 amendments
adopted by the first Legislature, it would have adopted the 17, or any of them, if they had been voted
upon the second in the form adopted by the first body. The substance of the contention was that
there had not been a concurrence of the twoLegislatures on the same amendments, according to the
letter and spirit of the Constitution. The court held that the power of the Legislature in submitting
amendments could not be distinguished from the powers of convention, and that, as the people had
spoken and ratified the amendments, they became a part of the Constitution.
"In Westinghausen v. People, 44 Mich. 265, 6 N.W. 641, it was held that prior to 1876 a proposed
amendment to Constitution could not be submitted to the people at any other than a general
election; but, as the amendment under consideration had been submitted after the Constitution been
changed, it had been legally submitted and adopted.
"In State v. Powell, 77 Miss. 543, 27 South. 927, the question whether an amendment to the
Constitution had been legally submitted and adopted by the people was held to be judicial,
and not political, in its nature. The amendment under consideration changed the Constitution by
providing for an elective, instead of an appointive, judiciary. It was contented that the amendments
had been improperly submitted and adopted by a majority of the qualified voters voting at election,
as required by the Constitution. The law did direct how the result of the election should be
determined. The Legislature by joint resolution recited that the election had been duly held
throughout the state, and, as it appeared from the returns made to the Secretary of State, that
21,169 votes were cast in favor of, and 8,643 votes against, the amendment, it resolved 'that said
amendment be, and hereby is, inserted into the Constitution of the state of Mississippi as a part of
the Constitution.' In fact, the amendment was not submitted in the manner prescribed by the
Constitution, and it did not receive a majority of all the qualified voters voting at the election. It was
argued that the rules prescribed by the Constitution "are all for the guidance of the Legislature, and
from the very nature of the thing the Legislature must be the exclusive judge of all questions to be
measured or determined by these rules. Whether the question be political, and certainly a legislative
one, or judicial, to be determined by the courts, this section of rules, not only of procedure, but of
final judgment as well, confides to the separate magistracy of the legislative department full power to
hear, consider, and adjudge that question. The Legislature puts the question to
the qualified electors. The qualified electors answer back to the Legislature. "If it shall appear" to the
Legislature that its question has been answered in the affirmative, the amendment is inserted and
made a part of the Constitution. The Governor and the courts have no authority to speak at any
stage of the proceedings between the sovereign and the Legislature, and when the matter is thus
concluded it is closed, and the judiciary is as powerless to interfere as the executive.' But it was held
that the question whether the proposition submitted to the voters constituted one, or more than one,
amendment, whether the submission was according to the requirements of the Constitution, and
whether the proposition was in fact adopted, were all judicial, and not political, questions. 'We do
not,' said Chief Justice Whitfield, 'seek a jurisdiction not imposed upon us by the Constitution. We
could not, if we would, escape the exercise of that jurisdiction which the Constitution has imposed
upon us. In the particular instance in which we are now acting, our duty to know what the
Constitution of the state is, and in accordance with our oaths to support and maintain it in its
integrity, imposed on us a most difficult and embarrassing duty, one which we have not sought, but
one which, like all others, must be discharged."
"In Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251, it was held that it was the duty of
the judicial department of the government to determine whether the legislative department or its
officers had observed the constitutional injunctions in attempting to amend the Constitution, and to
annul their acts if they had not done so. The case is an interesting and well-considered one. The
Constitution provided the manner in which proposed amendments should be submitted to the
people, but did not provide a method for canvassing the votes. The Legislature having agreed to
certain proposed amendments, passed an act for submitting the same to the people. This statute
provided for the transmission to the Secretary of State of certificate showing the result of the voting
throughout the state, and made it the duty of the Governor at the designated time summon four or
more Senators, who, with the Governor, should constitute a board of state canvassers to canvass
and estimate the votes for and against each amendment. This board was to determine and declare
which of the proposed amendments had been adopted and to deliver a statement of the results to
the Secretary of State, and "any proposed amendment, which by said certificate and determination
of the board of canvassers shall appear to have received in its favor the majority of all the votes cast
in the state for and against said proposed amendment, shall from the time of filing such certificate be
and become an amendment to and a part of the Constitution of the state; and it shall be the duty of
the Governor of the state forthwith, after such a determination, to issue a proclamation declaring
which of the said proposed amendments have been adopted by the people." This board was
required to file a statement of the result of the election, and the Governor to issue his proclamation
declaring that the amendment had been adopted and become a part of the Constitution. At the
instance of a taxpayer the Supreme Court allowed a writ of certiorari to remove into the court for
review the statement of the results of the election made by the canvassing board, in order that it
might be judicially determined whether on the facts shown in that statement the board had legally
determined that the proposed amendment had been adopted. The Supreme Court decided that the
concurrence of the board of state canvassers and the executive department of the government in
their respective official functions placed the subject-matter beyond the cognizance of the judicial
department of the state. The Court of Appeals, after a full review of the authorities, reversed this
decision, and held that the questions were of a judicial nature, and properly determinable by the
court on their merits. Mr. Justice Dixon, after stating the facts, said: 'It thus becomes manifest that
there was present in the Supreme Court, and is now pending in this court, every element tending to
maintain jurisdiction over the subject-matter, unless it be true, as insisted, that the judicial
department of the government has not the right to consider whether the legislative department and
its agencies have observed constitutional injunctions in attempting to amend the Constitution, and to
annul their acts in case that they have not done so. That such a proposition is not true seems to be
indicated by the whole history of jurisprudence in this country.' The court, after considering the case
on the merits, held that the proper conclusion had been drawn therefrom, and that the amendment in
question was legally submitted and adopted.
"The recent case of Rice v. Palmer, 78 Ark. 432, 96 S.W. 396, presented the identical question
which we have under consideration. In reference to the contention that the Constitution intended to
delegate to the Speaker of the House of Representatives the power to determine whether an
amendment had been adopted, and that the question was political, and not judicial, the court
observed: "The argument has often been made in similar cases to the courts, and it is found in many
dissenting opinions; but, with probably a few exceptions, it is not found in any prevailing opinion."
"In State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560, it was held that the constitutional
requirement of publication of a proposed constitutional provision for three months prior to the
election at which it is to be submitted to the people is mandatory and that noncompliance therewith
renders the adoption of an amendment of no effect."
ANNEX B
MALACAÑANG
MANILA
BY THE PRESIDENT OF THE PHILIPPINES
PRESIDENTIAL DECREE NO. 86-B
Defining Further the Role of Barangays (Citizens Assemblies)
WHEREAS, since their creation pursuant to Presidential Decree No. 86 dated December 31, 1972,
the Barangays (Citizens Assemblies) have petitioned the Office of the President to submit to them
for resolution important national issues;
WHEREAS, one of the questions persistently mention refers to the ratification of the Constitution
proposed by the 1971 Constitutional Convention;
WHEREAS, on the basis of the said petitions, it is evident that the people believe that the
submission of the proposed Constitution to the Citizens Assemblies or Barangays should taken as a
plebiscite in itself in view of the fact that freedom of debate has always been limited to the leadership
in political, economic and social fields, and that it is now necessary to bring this down to the level of
the people themselves through the Barangays or Citizens Assemblies;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the

powers in me vested by the Constitution, do hereby order that important national issues shall from
time to time be referred to the Barangays (Citizens Assemblies) for resolution in accordance with
Presidential Decree No. 86-A dated January 5, 1973 an that the initial referendum shall include the
matter of ratification of the Constitution proposed by the 1971 Constitutional Convention.
The Secretary of the Department of Local Government and Community Development shall insure
the implementation of this Order.
Done in the City of Manila, this 7th day of January in the year of Our Lord, nineteen hundred and
seventy-three.
(SGD.) FERDINAND
E. MARCOS
By the President:
(SGD.) ALEJANDRO MELCHOR

Executive Secretary
Separate Opinions

MAKALINTAL, J., concurring:
CASTRO, J., concurring:
The preliminary question before this Court was whether or not the petitioners had made out a
sufficient prima faciecase in their petitions to justify their being given due course. Considering on the
one hand the urgency of the matter and on the other hand its transcendental importance, which
suggested the need for hearing the side of the respondents before that preliminary question was
resolved, We required them to submit their comments on the petitions. After the comments were
filed We considered them as motions to dismiss so that they could be orally argued. As it turned out,
the hearing lasted five days, morning and afternoon, and could not have been more exhaustive if the
petitions had been given due course from the beginning.
The major thrust of the petitions is that the act of the Citizens Assemblies as certified and proclaimed
by the President on January 17, 1973 (Proclamation No. 1102) was not an act of ratification, let
alone a valid one, of the proposed Constitution, because it was not in accordance with the existing
Constitution (of 1935) and the Election Code of 1971. Other grounds are relied upon by the
petitioners in support of their basic proposition, but to our mind they are merely subordinate and
peripheral.
Article XV, Section 1, of the 1935 Constitution provides that amendments (proposed either by
Congress in joint session or by a Convention called by it for the purpose) "shall be valid part of this
Constitution when approved by a majority of votes cast at an election at which the amendments
submitted to the people for their ratification." At the time Constitution was approved by the
Constitutional Convention on February 8, 1935, and ratified in a plebiscite held on following May 14,
the word "election" had already a definite meaning in our law and jurisprudence. It was not a vague
and amorphous concept, but a procedure prescribed by statute ascertaining the people's choices
among candidates for public offices, or their will on important matters submitted to the pursuant to
law, for approval. It was in this sense that word was used by the framers in Article XV (also in
Articles VI and VII), and in accordance with such procedure that plebiscites were held to ratify the
very same Constitution in 1935 as well as the subsequent amendments thereto, thus: in 1939
(Ordinance appended to the Constitution); 1940 (establishment of a bicameral legislature; eligibility
of the President and the Vice President for re election; creation of the Commission of Elections);
1947 (Parity Amendment); and 1967 (increase in membership of the House of Representatives and
eligibility of members of Congress to run for the Constitutional Convention without forfeiture of their
offices).
The Election Code of 1971, in its Section 2, states that "all elections of public officers except barrio
officials andplebiscites shall be conducted in the manner provided by this Code." This is a statutory
requirement designed, as were the other election laws previously in force, to carry out the
constitutional mandate relative to the exercise of the right suffrage, and with specific reference to the
term "plebiscites," the provision of Article XV regarding ratification of constitutional amendments.
The manner of conducting elections and plebiscites provided by the Code is spelled out in other
sections thereof. Section 99 requires that qualified voters be registered in a permanent list, the
qualifications being those set forth in Article V, Section 1, of the 1935 Constitution on the basis of
age (21), literacy and residence. These qualifications are reiterated in Section 101 of the Election
Code. Section 102 enumerates the classes of persons disqualified to vote. Succeeding sections
prescribe the election paraphernalia to be used, the procedure for registering voters, the records, of
registration and the custody thereof, the description and printing of official ballots, the actual casting
of votes and their subsequent counting by the boards of inspectors, the rules for appreciation of
ballots, and then the canvass and proclamation of the results.
With specific reference to the ratification of the 1972 draft Constitution, several additional
circumstances should be considered:
(1) This draft was prepared and approved by a Convention which had been convened pursuant to
Resolution No. 2 passed by Congress on March 16, 1967, which provides:
Sec. 7. The amendments proposed by the Convention shall be valid and considered
part of the Constitution when approved by a majority of the votes cast in an
election at which they are submitted to the people for their ratification pursuant to
Article XV of the Constitution.
(2) Article XVII, Section 16, of the draft itself states:
Sec. 16. This Constitution shall take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite called for the purpose and, except as herein
provided, shall supersede the Constitution of nineteen hundred and thirty-five and all
amendments thereto.
The same procedure is prescribed in Article XVI, Section 2, for the ratification of any future
amendment to or revision of the said Constitution.
(3) After the draft Constitution was approved by the Constitutional Convention on November 30,
1972 the said body adopted Resolution No. 5843, proposing "to President Ferdinand E. Marcos that
a decree be issued calling aplebiscite for the ratification of the proposed New Constitution on such
appropriate date as he shall determine and providing for the necessary funds therefor." Pursuant to
said Resolution the President issued Decree No. 73 on the same day, calling a plebiscite to be held
on January 15, 1973, at which the proposed Constitution "shall be submitted to the people for
ratification or rejection." The Decree had eighteen (18) sections in all, prescribing in detail the
different steps to be taken to carry out the process of ratification, such as: (a) publication of the
proposed Constitution in English and Pilipino; (b) freedom of information and discussion; (c)
registration of voters: (d) appointment of boards of election inspectors and designation of watchers in
each precinct; (e) printing of official ballots; (f) manner of voting to insure freedom and secrecy
thereof; (g) canvass of plebiscite returns; and (h) in general, compliance with the provisions of the
Election Code of 1971, with the Commission on Elections exercising its constitutional and statutory
powers of supervision of the entire process.
There can hardly be any doubt that in everybody's view — from the framers of the 1935 Constitution
through all the Congresses since then to the 1971 Constitutional Convention — amendments to the
Constitution should be ratified in only one way, that is, in an election or plebiscite held in accordance
with law and participated in only by qualified and duly registered voters. Indeed, so concerned was
this Court with the importance and indispensability of complying with the mandate of the (1935)
Constitution in this respect that in the recent case of Tolentino vs. Commission on Elections, No. L-
34150, October 16, 1971 (41 SCRA 702), a resolution of the (1971) Constitutional Convention
submitting a proposed amendment for ratification to a plebiscite to be held in November 1971 was
declared null and void. The amendment sought to reduce the voting age from twenty-one to eighteen
years and was approved by the Convention for submission to a plebiscite ahead of and separately
from other amendments still being or to be considered by it, so as to enable the youth to be thus
enfranchised to participate in the plebiscite for the ratification of such other amendments later. This
Court held that such separate submission was violative of Article XV, Section 1, of the Constitution,
which contemplated that "all the amendments to be proposed by the same Convention must be
submitted to the people in a single "election" or plebiscite." * Thus a grammatical construction based on a singular,
instead of plural, rendition of the word "election" was considered a sufficient ground to rule out the plebiscite which had been called to ratify a
proposed amendment in accordance with the procedure and under all the safeguards provided in the Election Law.
In the cases now before Us what is at issue is not merely the ratification of just one amendment, as
in Tolentino vs. COMELEC, but the ratification of an entire charter setting up a new form of
government; and the issue has arisen not because of a disputed construction of one word or one
provision in the 1935 Constitution but because no election or plebiscite in accordance with that
Constitution and with the Election Code of 1971 was held for the purpose of such ratification.
The Citizens Assemblies which purportedly ratified the draft Constitution were created by
Presidential Decree No. 86 dated December 31, 1972, "to broaden the base of citizen participation in
the democratic process and to afford ample opportunities for the citizenry to express their views on
important national issues." The Assemblies "shall consist of all persons who are residents of the
barrio, district or ward for at least six months, fifteen years of age or over, citizens of the Philippines
and who are registered in the lists of Citizen Assembly members kept by the barrio, district or ward
secretary." By Presidential Decree No. 86-A, dated January 5, 1973, the Assemblies were convened
for a referendum between January 10 and 15, to "consider vital national issues now confronting the
country, like the holding of the plebiscite on the new Constitution, the continuation of martial rule, the
convening of Congress on January 22, 1973, and the holding of elections in November 1973."
On January 5, 1973 the newspapers came out with a list of four questions to be submitted to the
Citizens Assemblies, the fourth one being as follows: "How soon would you like plebiscite on the
new Constitution to be held?" It should be noted in this connection that the President had previously
announced that he had ordered the postponement of plebiscite which he had called for January 15,
1973 (Presidential Decree No. 73) for the ratification of the Constitution, and that he was considering
two new dates for the purpose — February 19 or March 5; that he had ordered that the registration
of voters (pursuant to Decree No. 73) be extended to accommodate new voters; and that copies of
the new Constitution would be distributed in eight dialects the people. (Bulletin Today, December 24,
1972.)
On January 10, 1973 it was reported that one more question would be added to the original four
which were to be submitted to the Citizens Assemblies. The question concerning plebiscite was
reworded as follows: "Do you like the plebiscite to be held later?" The implication, it may likewise be
noted, was that the Assemblies should express their views as to the plebiscite should be held, not as
to whether or not it should be held at all.
The next day, January 11, it was reported that six additional questions would be submitted, namely:
(1) Do you approve of the citizens assemblies as the base of popular government to
decide issues of national interest?
(2) Do you approve of the new Constitution?
(3) Do you want a plebiscite to be called to ratify the new Constitution?
(4) Do you want the elections to be held in November, 1973 accordance with the
(5) If the elections would not be held, when do you want the next elections to be
called?
(6) Do you want martial law to continue? [Bulletin Today, January 11, 1973;
emphasis supplied].
Appended to the six additional questions above quoted were the suggested answers, thus:
COMMENTS ON
QUESTION No. 1
In order to broaden the base of citizens' participation in government.
QUESTION No. 2
But we do not want the Ad Interim Assembly to be convoked. Or if it

is to be convened at all, it should not be done so until after at least
QUESTION No. 3


QUESTION No. 4
We are sick and tired of too frequent elections. We are fed up with
politics, of so many debates and so much expenses.
QUESTION No. 5
Probably a period of at least seven (7) years moratorium on elections

will be enough for stability to be established in the country, for
reforms to take root and normalcy to return.
QUESTION No. 6
We want President Marcos to continue with Martial Law. We want

him to exercise his powers with more authority. We want him to be
strong and firm so that he can accomplish all his reform program and
establish normalcy in the country. If all other measures fail, we want
President Marcos to declare a revolutionary government along the
lines of the new Constitution without the ad interim Assembly.
So it was that on January 11, 1973, the second day of the purported referendum, the suggestion
was broached, for the first time, that the plebiscite should be done away with and a favorable vote by
the Assemblies deemed equivalent ratification. This was done, not in the questionnaire itself, but in
the suggested answer to question No. 3. Strangely, however, it was not similarly suggested that an
unfavorable vote be considered as rejection.
There should be no serious dispute as to the fact that the manner in which the voting was conducted
in the Citizen Assemblies, assuming that such voting was held, was not within the intendment of
Article XV, Section 1, of the 1935 Constitution nor in accordance with the Election Code of 1971.
The referendum can by no means be considered as the plebiscite contemplated in Section 2 of said
Code and in Article XVII, Section 16, of the draft Constitution itself, or as the election intended by
Congress when it passed Resolution No. 2 on March 16, 1967 calling a Convention for the revision
of the 1935 Constitution. The Citizens Assemblies were not limited to qualified, let alone registered
voters, but included all citizens from the age of fifteen, and regardless of whether or not they were
illiterates, feeble-minded, or ex convicts * — these being the classes of persons expressly disqualified from voting by Section
102 of the Election Code. In short, the constitutional and statutory qualifications were not considered in the determination of who should
participate. No official ballots were used in the voting; it was done mostly by acclamation or open show of hands. Secrecy, which is one of
the essential features of the election process, was not therefore observed. No set of rules for counting the votes or of tabulating them and
reporting the figures was prescribed or followed. The Commission on Elections, which is the constitutional body charged with the
enforcement and administration of all laws relative to the conduct of elections, took no part at all, either by way of supervision or in the
assessment of the results.
It has been suggested that since according to Proclamation No. 1102 the overwhelming majority of
all the members of the Citizens Assemblies had voted for the adoption of the proposed Constitution
there was a substantial compliance with Article XV, Section 1, of the 1935 Constitution and with the
Election Code of 1971. The suggestion misses the point entirely. It is of the essence of a valid
exercise of the right of suffrage that not only must a majority or plurality of the voters carry the day
but that the same must be duly ascertained in accordance with the procedure prescribed by law. In
other words the very existence of such majority or plurality depends upon the manner of its
ascertainment, and to conclude that it exists even if it has not been ascertained according to law is
simply to beg the issue, or to assume the very fact to be established. Otherwise no election or
plebiscite could be questioned for non-compliance with the provisions of the Election Law as long as
it is certified that a majority of the citizens had voted favorably or adversely on whatever it was that
was submitted to them to vote upon.
However, a finding that the ratification of the draft Constitution by the Citizens Assemblies, as
certified by the President in Proclamation No. 1102, was not in accordance with the constitutional
and statutory procedure laid down for the purpose does not quite resolve the questions raised in
these cases. Such a finding, in our opinion, is on a matter which is essentially justiciable, that is,
within the power of this Court to inquire into. It imports nothing more than a simple reading and
application of the pertinent provisions of the 1935 Constitution, of the Election Code and of other
related laws and official acts. No question of wisdom or of policy is involved. But from this finding it
does not necessarily follow that this Court may justifiably declare that the Constitution has not
become effective, and for that reason give due course to these petitions or grant the writs herein
prayed for. The effectivity of the said Constitution, in the final analysis, is the basic and ultimate
question posed by these cases, to resolve which considerations other than judicial, and therefore
beyond the competence of this Court, are relevant and unavoidable.
Several theories have been advanced respectively by the parties. The petitioners lay stress on the
invalidity of the ratification process adopted by the Citizens Assemblies and on that premise would
have this Court grant the reliefs they seek. The respondents represented by the Solicitor General,
whose theory may be taken as the official position of the Government, challenge the jurisdiction of
this Court on the ground that the questions raised in the petitions are political and therefore non-
justiciable, and that in any case popular acquiescence in the new Constitution and the prospect of
unsettling acts done in reliance thereon should caution against interposition of the power of judicial
review. Respondents Gil J. Puyat and Jose Roy (in L-36165), in their respective capacities as
President and President Pro Tempore of the Senate of the Philippines, and through their counsel,
Senator Arturo Tolentino, likewise invoke the political question doctrine, but on a ground not
concurred in by the Solicitor General, namely, that approval of the 1973 Constitution by the people
was made under a revolutionary government, in the course of a successful political revolution, which
was converted by act of the people to the present de jure government under the 1973 Constitution."
Heretofore, constitutional disputes which have come before this Court for adjudication proceeded on
the assumption, conceded by all, that the Constitution was in full force and effect, with the power and
authority of the entire Government behind it; and the task of this Court was simply to determine
whether or not the particular act or statute that was being challenged contravened some rule or
mandate of that Constitution. The process employed was one of interpretation and synthesis. In the
cases at bar there is no such assumption: the Constitution (1935) has been derogated and its
continued existence as well as the validity of the act of derogation is issue. The legal problem posed
by the situation is aggravated by the fact that the political arms of the Government — the Executive
Departments and the two Houses of Congress — have accepted the new Constitution as effective:
the former by organizing themselves and discharging their functions under it, and the latter by not
convening on January 22, 1973 or at any time thereafter, as ordained by the 1935 Constitution, and
in the case of a majority of the members by expressing their option to serve in the Interim National
Assembly in accordance with Article XVIII, Section 2, of the 1973 Constitution. *
The theory advanced by Senator Tolentino, as counsel for respondents Puyat and Roy, may be taken up and restated at same length if only
because it would constitute, if sustained, the most convenient ground for the invocation of the political-question doctrine. In support of his
theory, Senator Tolentino contends that after President Marcos declared martial law on September 21, 1972 (Proclamation No. 1081) he
established a revolutionary government when he issued General Order No. 1 the next day, wherein he proclaimed "that I shall govern the
nation and direct the operation of the entire government, including all its agencies and instrumentalities, in my capacity, and shall exercise all
the powers and prerogatives appurtenant and incident to my position as such Commander-in-Chief of all the Armed Forces of the
Philippines." By this order, it is pointed out, the Commander-in-Chief of the Armed Forces assumed all the powers of government —
executive, legislative, and judicial; and thereafter proceeded to exercise such powers by a series of Orders and Decrees which amounted to
legislative enactments not justified under martial law and, in some instances, trenched upon the domain of the judiciary, by removing from its
jurisdiction certain classes of cases, such as "those involving the validity, legality, or constitutionality of Proclamation No. 1081, or of any
decree, order or act issued, promulgated or performed by me or by my duly designated representative pursuant thereto." (General Order No.
3 as amended by General Order No. 3-A, dated September 24, 1972.) The ratification by the Citizens Assemblies, it is averred, was the
culminating act of the revolution, which thereupon converted the government into a de jure one under the 1973 Constitution.
If indeed it be accepted that the Citizens Assemblies had ratified the 1973 Constitution and that such
ratification as well as the establishment of the government thereunder formed part of a revolution,
albeit peaceful, then the issue of whether or not that Constitution has become effective and, as
necessary corollary, whether or not the government legitimately functions under it instead of under
the 1935 Constitution, is political and therefore non-judicial in nature. Under such a postulate what
the people did in the Citizen Assemblies should be taken as an exercise of the ultimate sovereign
power. If they had risen up in arms and by force deposed the then existing government and set up a
new government in its place, there could not be the least doubt that their act would be political and
not subject to judicial review but only to the judgment of the same body politic act, in the context just
set forth, is based on realities. If a new government gains authority and dominance through force, it
can be effectively challenged only by a stronger force; judicial dictum can prevail against it. We do
not see that situation would be any different, as far as the doctrine of judicial review is concerned, if
no force had been resorted to and the people, in defiance of the existing Constitution but peacefully
because of the absence of any appreciable opposition, ordained a new Constitution and succeeded
in having the government operate under it. Against such a reality there can be no adequate judicial
relief; and so courts forbear to take cognizance of the question but leave it to be decided through
political means.
The logic of the political-question doctrine is illustrated in statement of the U.S. Supreme Court in a
case * relied upon, curiously enough, by the Solicitor General, who disagrees with the revolutionary government theory of Senator
Tolentino. The case involved the issue of which of two opposing governments struggling for supremacy in the State of Rhode Island was the
lawful one. The issue had previously come up in several other cases before the courts of the State, which uniformly held that the inquiry
belonged to the political power and not to the judicial. Commenting on the ruling thus arrived at, the U.S. Supreme Court said: "And if a State
court should enter upon the inquiry proposed in this case, and should come to the conclusion that the government under which it acted had
been put aside and displaced by an opposing government, it would cease to be a court, and incapable of pronouncing a judicial decision
upon the question it undertook to try. If it decides at all as a court, it necessarily affirms the existence and authority of the government under
which it is exercising judicial power." In other words, since the court would have no choice but to decide in one way alone in order to be able
to decide at all, the question could not be considered proper for judicial determination.
It should be noted that the above statement from Luther vs. Borden would be applicable in the cases
at bar only on the premise that the ratification of the Constitution was a revolutionary act and that the
government now functioning it is the product of such revolution. However, we are not prepared to
agree that the premise is justified.
In the first, place, with specific reference to the questioned ratification, several significant
circumstances may be noted. (1) The Citizens Assemblies were created, according to Presidential
Decree No. 86, "to broaden the base of citizen participation in the democratic process and to afford
ample opportunities for the citizenry to express their views on important national issues." (2) The
President announced, according to the Daily Express of January 2, 1973, that "the referendum will
be in the nature of a loose consultation with the people." (3) The question, as submitted to them on
the particular point at issue here, was "Do you a approve of the Constitution?" (4) President Marcos,
in proclaiming that the Constitution had been ratified, stated as follows: "(S)ince the referendum
results show that more than ninety-five (95) per cent of the members of the Barangays (Citizens
Assemblies) are in favor of the new Constitution, the Katipunan ng mga Barangay has strongly
recommended that the new Constitution should already be deemed ratified by the Filipino people."
(5) There was not enough time for the Citizens Assemblies to really familiarize themselves with the
Constitution, much less with the many other subjects that were submitted to them. In fact the
plebiscite planned for January 15, 1973 under Presidential Decree No. 73 had been postponed to an
indefinite date, the reasons for the postponement being, as attributed to the President in the
newspapers, that "there was little time to campaign for or against ratification" (Daily Express, Dec.
22, 1972); that he would base his decision (as to the date, of the plebiscite) on the compliance by
the Commission (on Elections) on the publication requirement of the new Charter and on the position
taken by national leaders" (Daily Express, Dec. 23, 1972); and that "the postponement would give us
more time to debate on the merits of the Charter." (Bulletin Today, Dec. 24, 1972.)
The circumstances above enumerated lead us to the conclusion that the Citizens Assemblies could
not have understood the referendum to be for the ratification of the Constitution, but only for the
expression of their views on a consultative basis. Indeed, if the expression of those views had been
intended as an act of ratification (or of rejection as a logical corollary) — there would have been no
need for the Katipunan ng mga Barangay to recommend that the Constitution should already be
deemed ratified, for recommendation imports recognition of some higher authority in whom the final
decision rests.
But then the President, pursuant to such recommendation, did proclaim that the Constitution had
been ratified and had come into effect. The more relevant consideration, therefore, as far as we can
see, should be as to what the President had in mind in convening the Citizens Assemblies,
submitting the Constitution to them and proclaiming that the favorable expression of their views was
an act of ratification. In this respect subjective factors, which defy judicial analysis and adjudication,
are necessarily involved.
In positing the problem within an identifiable frame of reference we find no need to consider whether
or not the regime established by President Marcos since he declared martial law and under which
the new Constitution was submitted to the Citizens Assemblies was a revolutionary one. The pivotal
question is rather whether or not the effectivity of the said Constitution by virtue of Presidential
Proclamation No. 1102, upon the recommendation of the Katipunan ng mga Barangay, was intended
to be definite and irrevocable, regardless of non-compliance with the pertinent constitutional and
statutory provisions prescribing the procedure for ratification. We must confess that after considering
all the available evidence and all the relevant circumstances we have found no reasonably reliable
answer to the question. On one hand we read, for instance, the following public statements of the
President:
Speaking about the proclamation of martial law, he said:
I reiterate what I have said in the past: there is no turning back for our people.
We have committed ourselves to this revolution. We have pledged to it our future,

our fortunes, our lives, our destiny. We have burned our bridges behind us. Let no
man misunderstand the strength of our resolution. (A Report to the Nation, Jan. 7,
1973.)
On the occasion of the signing of Proclamation No. 1102 on January 17, 1973, the President said
the following, among other things:
... We can, perhaps delimit the power of the people to speak on legal matters, on
justiciable matters, on matters that may come before the experts and interpreters of
the law. But we cannot disqualify the people from speaking on what we and the
people consider purely political matters especially those that affect the fundamental
law of the land.
... The political questions that were presented to the people are exactly those that
refer to the form of government which the people want ... The implications of
disregarding the people's will are too awesome to be even considered. For if any
power in government should even dare to disregard the people's will there would be
valid ground for revolt.
... Let it be known to everybody that the people have spoken and they will no longer
tolerate any attempt to undermine the stability of their Republic; they will rise up in
arms not in revolt against the Republic but in protection of the Republic which they
have installed. It is quite clear when the people say, we ratify the Constitution, that
they mean they will not discard, the Constitution.
On January 19, 1973 the Daily Express published statement of the President made the day before,
from which the following portion is quoted:
... the times are too grave and the stakes too high for us permit the customary
concessions to traditional democratic process to hold back our people's clear and
unequivocal resolve and mandate to meet and overcome the extraordinary
challenges presented by these extraordinary times.
On the same occasion of the signing of Proclamation No. 1102 the President made pointed
reference to "the demand of some of our citizens ... that when all other measures should fail, that the
President be directed to organize and establish a Revolutionary Government," but in the next breath
added: "... if we do ratify the Constitution, how can we speak of Revolutionary Government? They
cannot be compatible ..." "(I)t is my feeling," he said, "that the Citizens' Assemblies which submitted
this recommendation merely sought articulate their impatience with the status quo that has brought
about anarchy, confusion and misery to the masses ..." The only alternatives which the President
clearly implied by the foregoing statements were the ratification of the new Constitution and the
establishment of a revolutionary government, the latter being unnecessary, in his opinion, because
precisely the Constitution had been ratified. The third obvious alternative was entirely ruled out,
namely, a return to the 1935 Constitution, for it was the status quo under that Constitution that had
caused "anarchy, confusion and misery." The message seems clear: rather than return to
such status quo, he would heed the recommendation of the Citizens' Assemblies to establish a
revolutionary government, because that would be the only other way to carry out the reforms he had
envisioned and initiated — reforms which, in all fairness and honesty, must be given credit for the
improved quality of life in its many aspects, except only in the field of civil liberties.
If there is any significance, both explicit and implicit, and certainly unmistakable, in the foregoing
pronouncements, it is that the step taken in connection with the ratification of the Constitution was
meant to be irreversible, and that nothing anyone could say would make the least difference. And if
this is a correct and accurate assessment of the situation, then we would say that since it has been
brought about by political action and is now maintained by the government that is in undisputed
authority and dominance, the matter lies beyond the power of judicial review.
On the other hand, by avowals no less significant if not so emphatic in terms, President Marcos has
professed fealty to the Constitution. In "Today's Revolution: Democracy" he says:
I believe, therefore, in the necessity of Revolution as an instrument of individual and

social change ... but that in a democratic society, revolution is of necessity,
constitutional, peaceful, and legal.
In his TV address of September 23, 1972, President Marcos told the nation:
I have proclaimed martial law in accordance with the powers vested in the President
by the Constitution of the Philippines.
xxx xxx xxx
I repeat, this is not a military takeover of civil government functions. The Government
of the Republic of the Philippines which was established by our people in 1946
continues.
xxx xxx xxx
I assure you that I am utilizing this power vested in me by the Constitution to save

the Republic and reform our society...
I have had to use this constitutional power in order that we may not completely lose
the civil rights and freedom which we cherish...
... We are against the wall. We must now defend the Republic with the stronger
powers of the Constitution.
(Vital Documents, pp. 1-12; emphasis supplied).
In the report of an interview granted by the President to the Newsweek Magazine (published in the
issue of January 29, 1973), the following appears:
xxx xxx xxx
Q. Now that you have gotten off the constitutional track, won't you be
in serious trouble if you run into critical problems with your programs?
R. I have never gotten off the constitutional track. Everything I am

doing is in accordance with the 1935 Constitution. The only thing is
that instead of 18-year-olds voting, we have allowed 15-year-olds the
right to vote. But the 15-year-olds of today are high-school students, if
not graduates, and they are better informed than my contemporaries
at that age. On the matter of whether it is constitutional to proclaim
martial law, it is constitutional because the Constitution provides for it
in the event of invasion, insurrection, rebellion or immediate danger
thereof. We may quarrel about whether what we have gone through
is sufficient cause to proclaim martial law but at the very least there is
a danger of rebellion because so many of our soldiers have been
killed. You must remember this (martial law provision) was lifted from
the American legislation that was the fundamental law of our country.
xxx xxx xxx
In the light of this seeming ambivalence, the choice of what course of action to pursue belongs to the
President. We have earlier made reference to subjective factors on which this Court, to our mind, is
in no position to pass judgment. Among them is the President's own assessment of the will of the
people as expressed through the Citizens Assemblies and of the importance of the 1973
Constitution to the successful implementation of the social and economic reforms he has started or
envisioned. If he should decide that there is no turning back, that what the people recommended
through the Citizens Assemblies, as they were reported to him, demand that the action he took
pursuant thereto be final and irrevocable, then judicial review is out of the question.
In articulating our view that the procedure of ratification that was followed was not in accordance with
the 1935 Constitution and related statutes, we have discharged our sworn duty as we conceive it to
be. The President should now perhaps decide, if he has not already decided, whether adherence to
such procedure is weighty enough a consideration, if only to dispel any cloud of doubt that may now
and in the future shroud the nation's Charter.
In the deliberations of this Court one of the issues formulated for resolution is whether or not the new
Constitution, since its submission to the Citizens Assemblies, has found acceptance among the
people, such issue being related to the political question theory propounded by the respondents. We
have not tarried on the point at all since we find no reliable basis on which to form a judgment. Under
a regime of martial law, with the free expression of opinions through the usual media vehicles
restricted, we have no means of knowing, to the point of judicial certainty, whether the people have
accepted the Constitution. In any event, we do not find the issue decisive insofar as our vote in these
cases is concerned. To interpret the Constitution — that is judicial. That the Constitution should be
deemed in effect because of popular acquiescence — that is political, and therefore beyond the
domain of judicial review.
We therefore vote not to give due course to the instant petitions.
BARREDO, J., concurring:
As far as I am concerned, I regard the present petitions as no more than mere reiterations of the
Supplemental Petitions filed by Counsel Lorenzo M. Tañada on January 15, 1973 in the so called
Plebiscite Cases decided by this Court on January 22, 1978. Of course, there are amplifications of
some of the grounds previously alleged and in the course of the unprecedented five-day hearing that
was held from February 12 to 16 last, more extensive and illuminating arguments were heard by Us,
but, in my estimation, and with due recognition of the sincerety, brilliance and eloquence of
counsels, nothing more cogent and compelling than what had already been previously presented by
Counsel Tañada is before Us now. Accordingly, I cannot see any reason why I should change the
position I took in regard to the earlier cases. I reiterate, therefore, the vote I cast when these
petitions were initially considered by the Court; namely, to dismiss them.
In view, however, of the transcendental importance of the issues before the Court and the
significance to our people and in history of the individual stands of the members of the Court in
relation to said issues and to the final outcome of these cases, and considering that I reserved
before the filing of a more extended opinion, I will take this opportunity to explain further why I hold
that the 1973 Constitution is already in force, if only to clarify that apart from the people's right of
revolution to which I made pointed reference in my previous opinion, I can see now, after further
reflection, that the vote of the people in the referendum in the Citizens Assemblies held on January
10 to 15, 1973, upon the result of which Proclamation 1102 is based, may be viewed more
importantly as a political act than as a purely legal one with the result that such vote to consider the
1973 Constitution as ratified without the necessity of holding a plebiscite in the form followed in the
previous ratification plebiscites in 1935 of the Constitution itself, 1937 of women's suffrage, 1939 of
the amendments to the Ordinance Appended to the Constitution, 1940 of the re-election of the
President, the bicameral legislature and the Commission on Elections, 1947 of the parity
amendment and 1967, rejecting the proposed increase in the members of the House of
Representatives and eligibility of members of Congress to the Constitutional Convention, may be
deemed as a valid ratification substantially in compliance with the basic intent of Article XV of the
1935 Constitution. If indeed this explanation may be considered as a modification of my
rationalization then, I wish to emphasize that my position as to the fundamental issue regarding the
enforceability of the new Constitution is even firmer now than ever before. As I shall elucidate anon,
paramount considerations of national import have led me to the conviction that the best interests of
all concerned would be best served by the Supreme Court holding that the 1973 Constitution is now
in force, not necessarily as a consequence of the revolutionary concept previously suggested by me,
but upon the ground that as a political, more than as a legal, act of the people, the result of the
referendum may be construed as a compliance with the substantiality of Article XV of the 1935
Constitution.
The facts that gave rise to these proceedings are historical and well known. Generally, they may be
taken judicial notice of. They revolve around the purported ratification of the Constitution of 1973
declared in Proclamation 1102 issued by the President on January 17, 1973.
Pursuant to a joint resolution of the Congress sitting as a constituent assembly approved on March
16, 1967, delegates to a constitutional convention to propose amendments to the Constitution of
1935 were elected in accordance with the implementing law, Republic Act 6132, on November 10,
1970. Known as the Constitutional Convention of 1971, the assembly began its sessions on June 1,
1971. After encountering a lot of difficulties, due to bitter rivalries over important positions and
committees and an incomprehensible fear of overconcentrating powers in their officers, the
delegates went about their work in comparatively slow pace, and by the third quarter of 1972 had
finished deliberations and second-reading voting only on an insignificant number of proposals —
until September 21, 1972, when the President, not altogether unexpectedly, yet abruptly, issued
Proclamation 1081 declaring martial law throughout the country. An attempt was made to have the
Convention recessed until after the lifting of martial law, and not long after the motion of Delegate
Kalaw to such effect was turned down, the activities within the assembly shifted to high gear. As if
unmindful of the arrest and continued detention of several of its members, the convention gathered
swift momentum in its work, and on November 30, 1972, it approved by overwhelming vote the draft
of a complete constitution, instead of mere specific amendments of particular portions of the
Constitution of 1935. Needless to say, before martial law was declared, there was full and unlimited
coverage of the workings in the convention by the mass media. At the same time, public debates
and discussions on various aspects of proposed amendments were not uncommon.
Earlier, on November 22, 1972, the Convention had Resolution No. 5843 proposing "to President
Ferdinand Marcos that a decree be issued calling a plebiscite for ratification of the proposed new
Constitution on appropriate date as he shall determine and providing for necessary funds therefor."
Acting under this authority, December 1, 1972, the President issued Presidential Decree No. 73
submitting the draft constitution for ratification by the people at a plebiscite set for January 15, 1973.
This order contained provisions more or less similar to the plebiscite laws passed by Congress
relative to the past plebiscites held in connection with previous proposed amendments.
In connection with the plebiscite thus contemplated, General Order No. 17 was issued ordering and
enjoining the authorities to allow and encourage public and free discussions on proposed
constitution. Not only this, subsequently, under date of December 17, 1972, the President ordered
the suspension the effects of martial law and lifted the suspension of privilege of the writ of habeas
corpus insofar as activities connected with the ratification of the draft constitution were concerned.
These two orders were not, however, to last very long. On January 7, 1973, the President, invoking
information related to him that the area of public debate and discussion had opened by his previous
orders was being taken advantage of by subversive elements to defeat the purposes for which they
were issued and to foment public confusion, withdrew said orders and enjoined full and stricter
implementation of martial law.
In the meantime, the President had issued on December 3, 1972 Presidential Decree No. 86
creating Citizens Assemblies "so as to afford ample opportunities for the citizenry to express their
views on important national issues" and one of the questions presented to said assemblies was: "Do
you like the plebiscite on the proposed Constitution to be held later" So, the same order of January
7, 1973, General Order No. 20, the President ordered, "that the plebiscite scheduled to be held
January 15, 1973, be postponed until further notice".
In the meanwhile also, on January 5, 1973, the President issued Presidential Decree, No. 86-A
providing as follows:
PRESIDENTIAL DECREE NO. 86-A
STRENGTHENING AND DEFINING THE ROLE OF

BARANGAYS (CITIZENS ASSEMBLIES)
WHEREAS, on the basis of preliminary and initial reports from the field as gathered
from barangays (citizens assemblies) that have so far been established, the people
would like to decide for themselves questions or issues, both local and national,
affecting their day-to-day lives and their future;
WHEREAS, the barangays (citizens assemblies) would like themselves to be the

vehicle for expressing the views of the people on important national issues;
WHEREAS, such barangays (citizens assemblies) desire that they be given legal
status and due recognition as constituting the genuine, legitimate and valid
expression of the popular will; and
WHEREAS, the people would like the citizens assemblies to conduct immediately a
referendum on certain specified questions such as the ratification of the new
Constitution, continuance of martial law, the convening of Congress on January 22,
1973, and the elections in November 1973 pursuant to the 1935 Constitution.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by

virtue of the powers vested in me by the Constitution as Commander-in-Chief of all
Armed Forces of the Philippines, do hereby declare as part of the law of the land the
following:
1. The present barangays (citizens assemblies) are created under Presidential

Decree No. 86 dated December 31, 1972, shall constitute the base for citizen
participation in governmental affairs and their collective views shall be considered in
the formulation of national policies or programs and, wherever practicable, shall be
translated into concrete and specific decision;
2. Such barangays (citizens assemblies) shall consider vital national issues now
confronting the country, like the holding of the plebiscite on the new Constitution, the
continuation of martial rule, the convening of Congress on January 22, 1973, and the
holding of elections in November 1973, and others in the future, which shall serve as
guide or basis for action or decision by the national government;
3. The barangays (citizens assemblies) shall conduct between January 10 and 15,
1973, a referendum on important national issues, including those specified in
paragraph 2 hereof, and submit results thereof to the Department of Local
Governments Community Development immediately thereafter, pursuant to express
will of the people as reflected in the reports gathered from the many thousands of
barangays (citizens assemblies) throughout the country.
4. This Decree shall take effect immediately.
Done in the City of Manila, this 5th day of January, in the year of Our Lord, nineteen
hundred and seventy three.
And on January 7, 1973, this was followed by Presidential Decree No. 86-B reading thus:
PRESIDENTIAL DECREE NO. 86-B
DEFINING FURTHER THE ROLE OF BARANGAYS (CITIZENS

ASSEMBLIES)
WHEREAS, since their creation pursuant to Presidential Decree No. 86 dated

December 31, 1972, the Barangays (Citizens Assemblies) have petitioned the Office
of the President to submit them for resolution important national issues;
WHEREAS, one of the questions persistently mentioned refers to the ratification of

the Constitution proposed by the 1971 Constitutional Convention;
WHEREAS, on the basis of the said petitions, it is evident that the people believe
that the submission of the proposed Constitution to the Citizens Assemblies or
Barangays should be taken as a plebiscite in itself in view of the fact that freedom of
debate has always been limited to the leadership in political, economic and social
fields, and that it is now necessary to bring this down to the level of the people
themselves through the Barangays or Citizens Assemblies;
NOW THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by

virtue of the powers in me vested by the Constitution, do hereby order that important
national issues shall from time to time be referred to the Barangays (Citizens
Assemblies) for resolution in accordance with Presidential Decree No. 86-A dated
January 5, 1973 and that the initial referendum shall include the matter of ratification
of the Constitution proposed by the 1971 Constitutional Convention.
The Secretary of the Department of Local Governments and Community

Development shall insure the implementation of this Order.
Done in the City of Manila, this 7th day of January in the year of Our Lord, nineteen
hundred and seventy-three.
And so it was that by January 10, 1973, when the Citizens Assemblies thus created started the
referendum which was held from said date to January 15, 1973, the following questions were
submitted to them:
(1) Do you like the New Society?
(2) Do you like the reforms under martial law?
(3) Do you like Congress again to hold sessions?
(4) Do you like the plebiscite to be held later?
(5) Do you like the way President Marcos is running the affairs of the government?.
but on January 11, 1973, six questions were added as follows:
(1) Do you approve of the citizens assemblies as the base of popular government to
decide issues of national interests?
(2) Do you approve of the New Constitution?
(3) Do you want a plebiscite to be called to ratify the new Constitution?
(4) Do you want the elections to be held in November, 1973 in accordance with the
(5) If the elections would not be held, when do you want it to be called?
(6) Do you want martial law to continue?

It is not seriously denied that together with the question the voters were furnished "comments" on
the said questions more or less suggestive of the answer desired. It may assumed that the said
"comments" came from official sources, albeit specifically unidentified. As petitioners point out, the
most relevant of these "comments" were the following:
COMMENTS ON
xxx xxx xxx
QUESTION No. 2
But we do not want the Ad Interim Assembly to be convoke. Or if it is

to be convened at all, it should not be done so until after at least
QUESTION No. 3

If the Citizens Assemblies approve of the new Constitution then the

The Solicitor General claims, and there seems to be showing otherwise, that the results of the
referendum were determined in the following manner:
Thereafter, the results of the voting were collated and sent to the Department of
Local Governments. The transmission of the results was made by telegram,
telephone, the provincial government SSB System in each province connecting all
towns; the SSB communication of the PACD connecting most provinces; the
Department of Public Information Network System; the Weather Bureau
Communication System connecting all provincial capitals and the National Civil
Defense Network connecting all provincial capitals. The certificates of results were
then flown to Manila to confirm the previous figures received by the aforementioned
means of transmission. The certificates of results tallied with the previous figures
taken with the exception of few cases of clerical errors.
The Department adopted a system of regionalizing the receiving section of the

Citizens Assemblies operation at the Department wherein the identity of the barrio
and the province was immediately given to a staff in charge of each region. Every
afternoon at 2:00 o'clock, the 11 regions submitted the figures they received from the
field to the central committee to tabulate the returns. The last figures were tabulated
at 12 midnight of January 16, 1973 and early morning of January 17, 1973 and were
then communicated to the President by the Department of Local Governments.
The development culminated in the issuance by the President of Proclamation 1102 on January 17,
1973. Said proclamation reads:
PROCLAMATION NO. 1102 ANNOUNCING THE RATIFICATION BY THE FILIPINO
PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL
CONVENTION.
WHEREAS, the Constitution proposed by the nineteen hundred seventy-one

Constitutional Convention is subject to ratification by the Filipino people;
WHEREAS, Citizens Assemblies were created in barrios in municipalities and in

districts/wards in chartered cities pursuant to Presidential Decree No. 6, dated
December 31, 1972, composed of all persons who are residents of the barrio, district
or ward for at least six months, fifteen years of age or over, citizens of the Philippines
and who are registered in the list of Citizen Assembly members kept by the barrio,
district or ward secretary;
WHEREAS, the said Citizens Assemblies were establish precisely to broaden the
base of citizen participation in the democratic process and to afford ample
opportunity for the citizen to express their views on important national issues;
WHEREAS, responding to the clamor of the people an pursuant to Presidential

Decree No. 86-A, dated January 5, 1973, the following questions were posed before
Citizens' Assemblies or Barangays: Do you approve of the New Constitution? Do you
still want a plebiscite to be called to ratify the new Constitution?
WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty
one (14,976,561) members of all the Barangays (Citizens Assemblies) voted for the
adoption of the proposed Constitution, as against seven hundred forty-three
thousand eight hundred sixty nine (743,869) who voted for its rejection; while on the
question as to whether or not the people would still like a plebiscite to be called to
ratify the new Constitution fourteen million two hundred ninety-eight thousand eight
hundred fourteen (14,298,814) answered that there was no need for plebiscite and
that the vote of the Barangays (Citizens Assemblies) should be considered as a vote
in a plebiscite;
WHEREAS, since the referendum results show that more than ninety-five (95)
percent of the members of the Barangays (Citizen Assemblies) are in favor of the
New Constitution, the Katipunan ng Mga Barangay has strongly recommended that
the new Constitution should already be deemed ratified by the Filipino people;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by

virtue of the powers in me vested by the Constitution, do hereby certify and proclaim
that the Constitution proposed by the nineteen hundred and seventy-one (1971)
Constitutional Convention has been ratified by an overwhelmingly majority of all of
the votes cast by the members of all the Barangays (Citizens Assemblies) throughout
the Philippines, and has thereby come into effect.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the
Republic of the Philippines to be affixed.
Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen
hundred and seventy-three.
The first attempt to question the steps just enumerated taken by the President was in the so-called
Plebiscite Cases, ten in number, which were filed by different petitioners during the first half of
December 1972. Their common target then was Presidential Decree No. 73, but before the said
1
cases could be decided, the series of moves tending in effect to make them moot and academic
insofar as they referred exclusively to the said Presidential Decree began to take shape upon the
issuance of Presidential Decree No. 86-A, quoted above. And when Presidential Decree No. 86-B,
also above quoted, was issued and the six additional questions which were first publicized on
January 11, 1973 were known, together with the "comments", petitioners sensed that a new and
unorthodox procedure was being adopted to secure approval by the people of the new Constitution,
hence Counsel Tañada, not being satisfied with the fate of his urgent motion for early decision of the
above ten cases dated January 12, 1973, filed on January 15, 1973, his supplemental motion
seeking the prohibition against and injunction of the proceedings going on. Principal objective was to
prevent that the President be furnished the report of the results of the referendum and thereby
disable him from carrying out what petitioners were apprehensively foreseeing would be done — the
issuance of some kind of proclamation, order or decree, declaring that the new Constitution had
been ratified. Reacting swiftly, the Court resolved on the same day, January 15, which was Monday,
to consider the supplemental motion as a supplemental petition and to require the respondents to
answer the same the next Wednesday, January 17th, before the hour of the hearing of the petition
which set for 9:30 o'clock in the morning of that day. The details what happened that morning form
part of the recital of facts the decision rendered by this Court in the ten cases on January 22, 1973
and need not be repeated here. Suffice it to state no that before the hearing could be closed and
while Counsel Tañada was still insisting on his prayer for preliminary injunction or restraining order,
the Secretary of Justice arrived and personally handed to the Chief Justice a copy Proclamation
1102 which had been issued at about 11:00 o'clock that same morning. In other words, the valiant
and persistent efforts of petitioners and their counsels were overtaken by adverse developments,
and in the mind of the majority of the members of the Court, the cases had become academic. For
my part, I took the view that even on the basis of the supplemental petition and the answer thereto
filed by respondents, the Court could already decide on the fundamental issue of the validity
Proclamation 1102, as Justices Zaldivar, Antonio and Esguerra also believed, inasmuch as Counsel
Tañada's pleading and argument had anticipated its issuance, but the majority felt it was not ready to
resolve the matter, for lack, according them, of full ventilation, and so, the decision reserved
petitioners the filing of the "appropriate" cases, evidently, the present ones.
II
At the threshold, I find myself confronted by a matter which, although believed to be inconsequential
by my learned brethren, I strongly feel needs special attention. I refer to the point raised by Counsel
Arturo M. Tolentino for respondent Gil J. Puyat and Jose Roy, who have been sued as President
and President Pro Tempore of the Senate, to the effect that change in the composition of the
Supreme Court provided for the 1973 Constitution, from the 11-man tribunal under the 1935
Constitution to a 15-man Court, makes of these cases which were filed after January 17, 1973 the
date when Proclamation 1102 declared the new Constitution as ratified, political nature and beyond
our jurisdiction. The main consideration submitted in this connection is that inasmuch as the number
votes needed for a decision of this Court has been increased from six to eight in ordinary cases and
from eight to ten for the declaration of unconstitutionality of a treaty, executive agreement or law, the
2
Court would have to resolve first as a prejudicial question whether the Court is acting in these cases
as the 15-man or the 11-man Court, in which event, it would be faced with the dilemma that if it acts
either as the former or as the latter, it would be prejudging the very matter in issue one way or the
other, and, in effect, it would be choosing between two constitutions, which is a political
determination not within the Court's competence.
While I agree that the problem is at first blush rather involved, I do not share the view that the
premises laid down by counsel necessarily preclude this Court from taking a definite stand on
whether the Court is acting in these cases as the 15-Man or the 11-man Court. I feel very strongly
that the issue should not be ignored or dodged, if only to make the world know that the Supreme
Court of the Philippines is never incognizant of the capacity in which it is acting, much less lacking in
courage or wisdom to resolve an issue that relates directly to its own composition. What a disgrace it
would be to admit that this Supreme Court does not know, to use a common apt expression, whether
it is fish or fowl. Withal, scholars and researchers who might go over our records in the future will
inevitably examine minutely how each of us voted and upon what considerations we have
individually acted, and, indeed, doubts may arise as to whether or not, despite the general result we
might announce, there had been the requisite number of votes for a valid collegiate action.
For instance, it may be argued that the present cases do not involve an issue of unconstitutionality,
hence, if we are acting as the 11-man Court, only six votes would suffice to declare Proclamation
1102 ineffective, and if upon analysis of our respective opinions it should be inferable therefrom that
six of us have considered the matter before the Court as justiciable and at the same time have found
the procedure of ratification adopted in Presidential Decrees 86-A and 86-B and related orders of the
President as not being in conformity with Article XV of the old Constitution, a cloud would exist as to
efficacy of the dispositive portion of Our decision dismiss these cases, even if we have it understood
that by the vote of justices in favor of such dismissal, We intended to mean the implementation or
enforcement of the new Constitution now being done could continue.
Be that as it may, I am against leaving such an important point open to speculation. By nature I am
averse to ambiguity and equivocation and as a member of the Supreme Court, last thing I should
knowingly countenance is uncertainty as to the juridical significance of any decision of the Court
which is precisely being looked upon as the haven in which doubts are supposed to be
authoritatively dispelled. Besides, from very nature of things, one thing is indubitably beyond dispute
— we cannot act in both capacities of a 15-man and an 11-man Court at the same time, in like
manner that it is inconceivable that the 1935 and 1973 Constitution can be considered by Us both in
force. Our inescapable duty is to make a choice between them, according to what law and other
considerations inherent to our function dictate. I cannot bear the thought that someone may
someday say that the Supreme Court of the Philippines once decided a case without knowing the
basis of its author to act or that it was ever wanting in judicial courage to define the same.
Accordingly, with full consciousness of my limitations but compelled by my sense of duty and
propriety to straighten out this grave of issue touching on the capacity in which the Court acting in
these cases, I hold that we have no alternative but adopt in the present situation the orthodox rule
that when validity of an act or law is challenged as being repugnant constitutional mandate, the
same is allowed to have effect until the Supreme Court rules that it is unconstitutional. Stated
differently, We have to proceed on the assumption that the new Constitution is in force and that We
are acting in these cases as the 15-man Supreme Court provided for there Contrary to counsel's
contention, there is here no prejudgment for or against any of the two constitutions. The truth of
matter is simply that in the normal and logical conduct governmental activities, it is neither practical
nor wise to defer the course of any action until after the courts have ascertained their legality, not
only because if that were to be the rule, the functioning of government would correspondingly be
undesirably hesitative and cumbersome, but more importantly, because the courts must at the first
instance accord due respect to the acts of the other departments, as otherwise, the smooth running
of the government would have to depend entirely on the unanimity of opinions among all its
departments, which is hardly possible, unless it is assumed that only the judges have the exclusive
prerogative of making and enforcing the law, aside from being its sole interpreter, which is contrary
to all norms of juridical and political thinking. To my knowledge, there is yet no country in the world
that has recognized judicial supremacy as its basic governmental principle, no matter how desirable
we might believe the idea to be.
Indeed, it is not hard to visualize the difficulty if not absurdity of Our acting on the assumption that
this Court is still functioning under the 1935 Constitution. It is undeniable that the whole government,
including the provincial, municipal and barrio units and not excluding the lower courts up to the Court
of Appeals, is operating under the 1973 Constitution. Almost daily, presidential orders and decrees
of the most legislative character affecting practically every aspect of governmental and private
activity as well as the relations between the government and the citizenry are pouring out from
Malacañang under the authority of said Constitution. On the other hand, taxes are being exacted
and penalties in connection therewith are being imposed under said orders and decrees. Obligations
have been contracted and business and industrial plans have been and are being projected
pursuant to them. Displacements of public officials and employees in big numbers are going on in
obedience to them. For the ten justices of the Supreme Court to constitute an island of resistance in
the midst of these developments, which even unreasoning obstinacy cannot ignore, much less
impede, is unimaginable, let alone the absurd and complicated consequences such a position entails
in the internal workings within the judiciary amount its different components, what with the lower
courts considering such orders and decrees as forming part of the law of the land in making their
orders and decisions, whereas the Supreme Court is holding, as it were, their effectivity at bay if it is
not being indifferent to or ignoring them.
It is suggested that the President, being a man of law, committed to abide by the decision of the
Supreme Court, and if the Court feels that it cannot in the meantime consider the enforcement of the
new Constitution, he can wait for its decision. Accepting the truth of this assertion, it does
necessarily follow that by this attitude of the President, considers the Supreme Court as still
operating under the Constitution. Quite on the contrary, it is a fact that he has given instructions for
the payment of the justices in accordance with the rate fixed in the New Constitution. Not only that,
official alter ego, the Secretary of Justice, has been shoving this Court, since January 18, 1973, all
matters related to the administrative supervision of the lower courts which by the new charter has
been transferred from the Department of Justice to the Supreme Court, and as far as I know,
President has not countermanded the Secretary's steps in that direction. That, on the other hand, the
President has not augmented the justices of the Court to complete the prescribed number of fifteen
is, in my appraisal, of no consequence considering that with the presence of ten justices who are the
Court now, there is a working quorum, and the addition of new justices cannot in anyway affect the
voting on the constitutional questions now before Us because, while there sufficient justices to
declare by their unanimous vote illegality of Proclamation 1102, the votes of the justices to added
would only be committed to upholding the same, since they cannot by any standard be expected to
vote against legality of the very Constitution under which they would be appointed.
Moreover, what makes the premise of presumptive valid preferable and, even imperative, is that We
are dealing here with a whole constitution that radically modifies or alters only the form of our
government from presidential parliamentary but also other constitutionally institutions vitally affecting
all levels of society. It is, to mind, unrealistic to insist on that, fundamentally, the 1973 Constitution is
the same 1935 Constitution, with a few improvements. A cursory perusal of the former should
convince anyone that it is in essence a new one. While it does retain republicanism as the basic
governmental tenet, the institutional changes introduced thereby are rather radical and its social
orientation is decidedly more socialistic, just as its nationalistic features are somewhat different in
certain respects. One cannot but note that the change embraces practically every part of the old
charter, from its preamble down to its amending and effectivity clauses, involving as they do the
statement of general principles, the citizenship and suffrage qualifications, the articles on the form of
government, the judiciary provisions, the spelling out of the duties and responsibilities not only of
citizens but also of officers of the government and the provisions on the national economy as well as
the patrimony of the nation, not to mention the distinctive features of the general provisions. What is
more, the transitory provisions notably depart from traditional and orthodox views in that, in general,
the powers of government during the interim period are more or less concentrated in the President,
to the extent that the continuation or discontinuance of what is now practically a one-man-rule, is
even left to his discretion. Notably, the express ratification of all proclamations, orders, decrees and
acts previously issued or done by the President, obviously meant to encompass those issued during
martial law, is a commitment to the concept of martial law powers being implemented by President
Marcos, in defiance of traditional views and prevailing jurisprudence, to the effect that the
Executive's power of legislation during a regime of martial law is all inclusive and is not limited to the
matters demanded by military necessity. In other words, the new constitution unlike any other
constitution countenances the institution by the executive of reforms which normally is the exclusive
attribute of the legislature.
Withal, the best proofs that by its expressed and implied intent, the Constitution of 1973 is a new
one, are that (1) Section 16 of its Article XVII which provides that this constitution shall "supersede
the Constitution of nineteen hundred and thirty-five and all amendments thereto" and (2) its transitory
provisions expressly continue the effectivity of existing laws, offices and courts as well as the tenure
of all incumbent officials, not adversely affected by it, which would have been unnecessary if the old
constitution were being merely amended.
The new Constitution, in its Section 10, Article XVII, provides that "(T)he incumbent members of the
Judiciary (which include the Chief Justice and Associate Justices of Supreme Court) may continue in
office (under the constitution) until they reach the age of seventy years, etc." By virtue of the
presumptive validity of the new charter, all of form part of the 15-man-Court provided for therein
correspondingly, We have in legal contemplation, ceased in the meanwhile to be members of the 11-
man-Court in the 1935 Constitution. Should the Court finally decide that the Constitution is invalid,
then We would automatically revert to our positions in the 11-man- Court, otherwise, We would just
continue to be in our membership in the 15-man-Court, unless We feel We cannot in conscience
accept the legality of existence. On the other hand, if it is assumed that We are the 11-man-Court
and it happens that Our collective decision is in favor of the new constitution, it would be
problematical for any dissenting justice to consider himself as included automatically in the 15-man-
Court, since that would tantamount to accepting a position he does not honestly believe exists.
III
In brief, the main contention of the petitioners is that Proclamation 1102 is invalid because the
ratification of the 1973 Constitution it purports to declare as having taken place as a result of the
referendum above-referred to is ineffective since it cannot be said on the basis of the said
referendum that said Constitution has been "approved by a majority of the votes cast at an election"
in the manner prescribed by Article XV the Constitution of 1935. More specifically, they maintain that
the word "election" in the said Article has already acquired a definite accepted meaning out of the
consistent holding in the past of ratification plebiscites, and accordingly, no other form of ratification
can be considered contemplated by the framers of the Old Constitution than that which had been
followed 1935, 1937, 1939, 1940, 1946 and 1967, the last three or four which were held under the
supervision of the Commission on Elections. Furthermore, they emphatically deny the veracity of the
proclaimed results of the referendum because, according to them the referendum was a farce and its
results were manufactured or prefabricated, considering that Mr. Francisco Cruz, who is supposed to
have submitted the final report to the President, which served as basis for Proclamation 1102, had
no official authority to render the same, and it is inconceivable and humanly impossible for anyone to
have been able to gather, tabulate and canvass the 15 million votes allegedly reported within the
short period of time employed. Of course, they also contend that in any event, there was no proper
submission because martial law per se creates constructive duress which deprives the voters of the
complete freedom needed for the exercise of their right of choice and actually, there was neither
time nor opportunity for real debate before they voted.
On the other hand, the position of the Solicitor General as counsel for the respondents is that the
matter raised in the petitions is a political one which the courts are not supposed to inquire into, and,
anyway, there has been a substantial compliance with Article XV of the 1935 Constitution, inasmuch
as, disregarding unessential matters of form, the undeniable fact is that the voting in the referendum
resulted in the approval by the people of the New Constitution.
I need not dwell at length on these variant positions of the parties. In my separate opinion in the
Plebiscite Cases, I already made the observation that in view of the lack of solemnity and regularity
in the voting as well as in the manner of reporting and canvassing conducted in connection with the
referendum, I cannot say that Article XV of the Old Constitution has been complied with, albeit I held
that nonetheless, the Constitution of 1973 is already in force. In order, however, to make myself
clearer on some relevant points, I would like to add a few considerations to what I have already said
in the former cases.
In my opinion in those cases, the most important point I took into account was that in the face of the
Presidential certification through Proclamation 1102 itself that the New Constitution has been
approved by a majority of the people and having in mind facts of general knowledge which I have
judicial notice of, I am in no position to deny that the result of the referendum was as the President
had stated. I can believe that the figures referred to in the proclamation may not accurate, but I
cannot say in conscience that all of them are manufactured or prefabricated, simply because I saw
with own eyes that people did actually gather and listen discussions, if brief and inadequate for those
who are abreast of current events and general occurrences, and that they did vote. I believe I can
safely say that what I have seen have also been seen by many others throughout the country and
unless it can be assumed, which honestly, I do not believe to be possible, that in fact there were
actually no meetings held and no voting done in more places than those wherein there were such
meetings and votings, I am not prepared to discredit entirely the declaration that there was voting
and that the majority of the votes were in favor of the New Constitution. If in fact there were
substantially less than 14 million votes of approval, the real figure, in my estimate, could still be
significant enough and legally sufficient to serve as basis for a valid ratification.
It is contended, however, that the understanding was that the referendum among the Citizens
Assemblies was to be in the nature merely of a loose consultation and not an outright submission for
purposes of ratification. I can see that at the outset, when the first set of questions was released,
such may have been the idea. It must not be lost sight of, however, that if the newspaper reports are
to be believed, and I say this only because petitioners would consider the newspapers as the official
gazettes of the administration, the last set of six questions were included precisely because the
reaction to the idea of mere consultation was that the people wanted greater direct participation, thru
the Citizens Assemblies, in decision-making regarding matters of vital national interest. Thus,
looking at things more understandingly and realistically the two questions emphasized by counsel,
namely, (1) Do yo approve of the New Constitution? and (2) Do you want plebiscite to be called to
ratify the new Constitution? should be considered no longer as loose consultations but as direct
inquiries about the desire of the voters regarding the matters mentioned. Accordingly, I take it that if
the majority had expressed disapproval of the new Constitution, the logical consequence would have
been the complete abandonment of the idea of holding any plebiscite at all. On the other hand, it is
very plain to see that since the majority has already approved the new Constitution, a plebiscite
would be superfluous. Clear as these rationalizations may be, it must have been thought that if the
holding of a plebiscite was to be abandoned, there should be a direct and expressed desire of the
people to such effect in order to forestall as much as possible any serious controversy regarding the
non-holding of the plebiscite required by the letter of Section 16 of Article XVII, the effectivity clause,
of the new Constitution. Oddly enough, the "comments" accompanying the questions do strongly
suggest this view. And as it turned out, the majority found no necessity in holding a plebiscite.
In connection with the question, Do you approve of the New Constitution? capital is being made of
the point that as so framed, the thrust of the said question does not seek an answer of fact but of
opinion. It is argued that it would have been factual were it worded categorically thus — Do you
approve the New Constitution? The contention would have been weighty were it not unrealistic. I
remember distinctly that the observation regarding the construction of the subject question was not
originally made by any of the talented counsels for petitioners. It came from Mr. Justice Fred Ruiz
Castro whose mastery of the English language can rightly be the cause of envy of even professors
of English. None of the other members of the Court, as far as I can recall, ever noticed how the said
question is phrased, or if anyone of Us did, I am not aware that he gave it more than passing
attention. What I mean is that if neither any of the distinguished and learned counsels nor any
member of the Court understood the said question otherwise than calling for a factual answer
instead of a mere opinion, how could anyone expect the millions of unlettered members of the
Citizens Assemblies to have noticed the point brought out by Justice Castro? Truth to tell, I myself
did not realize the difference until Justice Castro gave it emphasis. Besides, reading the question in
the light of the accompanying "comment" corresponding to it in particular, I am certain that any one
who answered the same understood it in no other sense than a direct inquiry as to whether or not,
as a matter of fact, he approves the New Constitution, and naturally, affirmative answer must be
taken as a categorical vote of approval thereof, considering, particularly, that according to the
reported result of the referendum said answer was even coupled with the request that the President
defer the convening of the Interim National Assembly.
It is also contended that because of this reference in answer to that question to the deferment of the
convening of the interim assembly, the said answer is at best a conditional approval not proper nor
acceptable for purposes of ratification plebiscite. The contention has no basis. In interest of
accuracy, the additional answer proposed in pertinent "comment" reads as follows: "But we do not
want Ad Interim Assembly to be convoked etc." On the assumption that the actual answer, as
reported, was of similar tenor, it is not fair to ascribe to it the imposition of a condition. At most, the
intention is no more than a suggestion or a wish.
As regards said "comments", it must be considered that a martial law was declared, the
circumstances surrounding making of the Constitution acquired a different and more meaningful
aspect, namely, the formation of a new society. From the point of view of the President and on the
basis of intelligence reports available to him, the only way to meet situation created by the
subversive elements was to introduce immediately effective reforms calculated to redeem the people
from the depth of retrogression and stagnation caused by rampant graft and corruption in high
places, influence peddling, oligarchic political practices, private armies, anarchy, deteriorating
conditions of peace and order, the so inequalities widening the gap between the rich and the poor,
and many other deplorable long standing maladies crying for early relief and solution. Definitely, as
in the case of rebellious movement that threatened the Quirino Administration, the remedy was far
from using bullets alone. If a constitution was to be approved as an effective instrument towards the
eradication of such grave problems, it had to be approved without loss of time and sans the
cumbersome processes that, from the realistic viewpoint, have in the past obstructed rather than
hastened the progress of the people. Stated otherwise, in the context of actualities, the evident
objective in having a new constitution is to establish new directions in the pursuit of the national
aspirations and the carrying out of national policies. Only by bearing these considerations in mind
can the "comments" already referred to be properly appreciated. To others said "comments" may
appear as evidence of corruption of the will of those who attended the assemblies, but actually, they
may also be viewed in the same light as the sample ballots commonly resorted to in the elections of
officials, which no one can contend are per se means of coercion. Let us not forget that the times are
abnormal, and prolonged dialogue and exchange of ideas are not generally possible, nor practical,
considering the need for faster decisions and more resolute action. After all voting on a whole new
constitution is different from voting on one, two or three specific proposed amendments, the former
calls for nothing more than a collective view of all the provisions of the whole charter, for necessarily,
one has to take the good together with the bad in it. It is rare for anyone to reject a constitution only
because of a few specific objectionable features, no matter how substantial, considering the ever
present possibility that after all it may be cured by subsequent amendment. Accordingly, there was
need to indicate to the people the paths open to them in their quest for the betterment of their
conditions, and as long as it is not shown that those who did not agree to the suggestions in the
"comments" were actually compelled to vote against their will, I am not convinced that the existence
of said "comments" should make any appreciable difference in the court's appraisal of the result of
the referendum.
I must confess that the fact that the referendum was held during martial law detracts somehow from
the value that the referendum would otherwise have had. As I intimated, however, in my former
opinion, it is not fair to condemn and disregard the result of the referendum barely because of martial
law per se. For one thing, many of the objectionable features of martial law have not actually
materialized, if only because the implementation of martial law since its inception has been generally
characterized by restraint and consideration, thanks to the expressed wishes of the President that
the same be made "Philippine style", which means without the rigor that has attended it in other
lands and other times. Moreover, although the restrictions on the freedom of speech, the press and
movement during martial law do have their corresponding adverse effects on the area of information
which should be open to a voter, in its real sense what "chills" his freedom of choice and mars his
exercise of discretion is suspension of the privilege of the writ of habeas corpus. The reason is
simply that a man may freely and correctly vote even if the needed information he possesses as to
the candidates or issues being voted upon is more or less incomplete, but when he is subject to
arrest and detention without investigation and without being informed of the cause thereof, that is
something else which may actually cause him to cast a captive vote. Thus it is the suspension of the
writ of habeas corpus accompanying martial law that can cause possible restraint on the freedom
choice in an election held during martial law. It is a fact, however, borne by history and actual
experience, that in the Philippines, the suspension of the privilege of the writ habeas corpus has
never produced any chilling effect upon the voters, since it is known by all that only those who run
afoul the law, saving inconsequential instances, have any cause for apprehension in regard to the
conduct by them of the normal activities of life. And so it is recorded that in the elections 1951 and
1971, held while the privilege of writ of habeas corpus was under suspension, the Filipino voters
gave the then opposition parties overwhelming if not sweeping victories, in defiance of the respective
administrations that ordered the suspensions.
At this juncture, I think it is fit to make it clear that I am not trying to show that the result of the
referendum may considered as sufficient basis for declaring that the New Constitution has been
ratified in accordance with the amending clause of the 1935 Constitution. I reiterate that in point of
law, I find neither strict nor substantial compliance. The foregoing discussion is only to counter, if I
may, certain impression regarding the general conditions obtaining during and in relation to the
referendum which could have in one way or another affected the exercise of the freedom of choice
and the use of discretion by the members of the Citizens Assemblies, to the end that as far as the
same conditions may be relevant in my subsequent discussions of the acceptance by the people of
the New Constitution they may also be considered.
IV
It is my sincere conviction that the Constitution of 1973 has been accepted or adopted by the people.
And on this premise, my considered opinion is that the Court may no longer decide these cases on
the basis of purely legal considerations. Factors which are non-legal but nevertheless ponderous
and compelling cannot be ignored, for their relevancy is inherent in the issue itself to be resolved.
In my opinion in the Plebiscite Cases, I joined my colleagues in holding that the question of whether
or not there was proper submission under Presidential Decree No. 73 is justiciable, and I still hold
that the propriety of submission under any other law or in any other form is constitutionally a fit
subject for inquiry by the courts. The ruling in the decided cases relied upon by petitioners are to this
effect. In view, however, of the factual background of the cases at bar which include ratification itself,
it is necessary for me to point out that when it comes to ratification, I am persuaded that there should
be a boundary beyond which the competence of the courts no longer has any reason for being,
because the other side is exclusively political territory reserved for their own dominion by the people.
The main basis of my opinion in the previous cases was acceptance by the people. Others may feel
there is not enough indication of such acceptance in the record and in the circumstances the Court
can take judicial notice of. For my part, I consider it unnecessary to be strictly judicial in inquiring into
such fact. Being personally aware, as I have already stated, that the Citizens Assemblies did meet
and vote, if irregularly and crudely, it is not for me to resort, for the purposes of these cases, to
judicial tape and measure, to find out with absolute precision the veracity of the total number of votes
actually cast. After all, the claims that upon a comparison of conflicting reports, cases of excess
votes may be found, even if extrapolated will not, as far as I can figure out, suffice to overcome the
outcome officially announced. Rather than try to form a conclusion out of the raw evidence before Us
which the parties did not care to really complete, I feel safer by referring to the results announced in
the proclamation itself. Giving substantial allowances for possible error and downright manipulation,
it must not be overlooked that, after all, their having been accepted and adopted by the President,
based on official reports submitted to him in due course of performance of duty of appropriate
subordinate officials, elevated them to the category of an act of a coordinate department of the
government which under the principle separation of powers is clothed with presumptive correctness
or at least entitled to a high degree of acceptability, until overcome by better evidence, which in
these cases does not exist. In any event, considering that due to the unorthodoxy of the procedure
adopted and the difficulty of an accurate checking of all the figures, I am unable to conceive of any
manageable means of acquiring information upon which to predicate a denial, I have no alternative
but to rely on what has been officially declared. At this point, I would venture to express the feeling
that if it were not generally conceded that there has been sufficient showing of the acceptance in
question by this time, there would have been already demonstrative and significant indications of a
rather widespread, if not organized resistance in one form or another. Much as they are to be given
due recognition as magnificent manifestations of loyalty and devotion to principles, I cannot accord
to the filing of these cases as indicative enough of the general attitude of the people.
It is true that in the opinion I had the privilege of penning the Court in Tolentino vs. Comelec, 41
SCRA 702, I made strong and unequivocal pronouncements to the effect that any amendment to the
Constitution of 1935, to be valid, must appear to have been made in strict conformity with the
requirements of Article XV thereof. What is more, that decision asserted judicial competence to
inquire into the matter of compliance or non compliance as a justiciable matter. I still believe in the
correctness of those views and I would even add that I sincerely feel it reflects the spirit of the said
constitutional provision. Without trying to strain any point however, I, submit the following
considerations in the context of the peculiar circumstances of the cases now at bar, which are
entirely different from those in the backdrop of the Tolentino rulings I have referred to.
1. Consider that in the present case what is involved is not just an amendment of a particular
provision of an existing Constitution; here, it is, as I have discussed earlier above, an entirely new
Constitution that is being proposed. This important circumstance makes a great deal of difference.
No less than counsel Tolentino for herein respondents Puyat and Roy, who was himself the
petitioner in the case I have just referred to is, now inviting Our attention to the exact language of
Article XV and suggesting that the said Article may be strictly applied to proposed amendments but
may hardly govern the ratification of a new Constitution. It is particularly stressed that the Article
specifically refers to nothing else but "amendments to this Constitution" which if ratified "shall be
valid as part of this Constitution." Indeed, how can a whole new constitution be by any manner of
reasoning an amendment to any other constitution and how can it, if ratified, form part of such other
constitution? In fact, in the Tolentino case I already somehow hinted this point when I made
reference in the resolution denying the motion for reconsideration to the fact that Article XV must be
followed "as long as any amendment is formulated and submitted under the aegis of the present
Charter." Said resolution even added. "(T)his is not to say that the people may not, in the exercise of
their inherent revolutionary powers, amend the Constitution or promulgate an entirely new one
otherwise.".
It is not strange at all to think that the amending clause of a constitution should be confined in its
application only to proposed changes in any part of the same constitution itself, for the very fact that
a new constitution is being adopted implies a general intent to put aside the whole of the old one,
and what would be really incongrous is the idea that in such an eventuality, the new Constitution
would subject its going into effect to any provision of the constitution it is to supersede, to use the
language precisely of Section 6, Article XVII, the effectivity clause, of the New Constitution. My
understanding is that generally, constitutions are self-born, they very rarely, if at all, come into being,
by virtue of any provision of another constitution. 3 This must be the reason why every constitution
has its own effectivity clause, so that if, the Constitutional Convention had only anticipated the idea
of the referendum and provided for such a method to be used in the ratification of the New
Constitution, I would have had serious doubts as to whether Article XV could have had priority of
application.
2. When an entirely new constitution is proposed to supersede the existing one, we cannot but take
into consideration the forces and the circumstances dictating the replacement. From the very nature
of things, the proposal to ordain a new constitution must be viewed as the most eloquent expression
of a people's resolute determination to bring about a massive change of the existing order, a
meaningful transformation of the old society and a responsive reformation of the contemporary
institutions and principles. Accordingly, should any question arise as to its effectivity and there is
some reasonable indication that the new charter has already received in one way or another the
sanction of the people, I would hold that the better rule is for the courts to defer to the people's
judgment, so long as they are convinced of the fact of their approval, regardless of the form by which
it is expressed provided it be reasonably feasible and reliable. Otherwise stated, in such instances,
the courts should not bother about inquiring into compliance with technical requisites, and as a
matter of policy should consider the matter non-justiciable.
3. There is still another circumstance which I consider to be of great relevancy. I refer to the
ostensible reaction of the component elements, both collective and individual, of the Congress of the
Philippines. Neither the Senate nor the House of Representatives has been reported to have even
made any appreciable effort or attempt to convene as they were supposed to do under the
Constitution of 1935 on January 22, 1973 for the regular session. It must be assumed that being
composed of experienced, knowledgeable and courageous members, it would not have been difficult
for said parliamentary bodies to have conceived some ingenious way of giving evidence of their
determined adherence to the Constitution under which they were elected. Frankly, much as I admire
the efforts of the handful of senators who had their picture taken in front of the padlocked portals of
the Senate chamber, I do not feel warranted to accord such act as enough token of resistance. As
counsel Tolentino has informed the court, there was noting to stop the senators and the
congressmen to meet in any other convenient place and somehow officially organize themselves in
a way that can logically be considered as a session, even if nothing were done than to merely call
the roll and disperse. Counsel Tolentino even pointed out that if there were not enough members to
form a quorum, any smaller group could have ordered the arrest of the absent members. And with
particular relevance to the present cases, it was not constitutionally indispensable for the presiding
officers to issue any call to the members to convene, hence the present prayers for mandamus have
no legal and factual bases. And to top it all, quite to the contrary, the records of the Commission on
Elections show that at least 15 of 24 senators and over 95 out of less than 120 members of the
House of Representatives, have officially and in writing exercised the option given to them to join the
Interim National Assembly under the New Constitution, thereby manifesting their acceptance of the
new charter.
Now, having these facts in mind, and it being obvious that of the three great departments of the
government under the 1935 Constitution, two, the Executive and the Legislative, have already
accepted the New Constitution and recognized its enforceability and enforcement, I cannot see how
this Supreme Court can by judicial fiat hold back the political developments taking place and for the
sake of being the guardian of the Constitution and the defender of its integrity and supremacy make
its judicial power prevail against the decision of those who were duly chosen by the people to be
their authorized spokesmen and representatives. It is not alone the physical futility of such a gesture
that concerns me. More than that, there is the stark reality that the Senators and the Congressmen,
no less than the President, have taken the same oath of loyalty to the Constitution that we, the
Justices, have taken and they are, therefore, equally bound with Us to preserve and protect the
Constitution. If as the representatives of the people, they have already opted to accept the New
Constitution as the more effective instrument for fulfillment of the national destiny, I really wonder if
there is even any idealistic worth in our desperately clinging by Ourselves alone to Our sworn duty
vis-a-vis the 1935 Constitution. Conscious of the declared objectives of the new dispensation and
cognizant of the decisive steps being with the least loss of time, towards their accomplishment,
cannot but feel apprehensive that instead of serving the best interests of our people, which to me is
in reality the real meaning of our oath of office, the Court might be standing in the way of the very
thing our beloved country needs to retrieve its past glory and greatness. In other words, it is my
conviction that what these cases demand most of all is not a decision demonstrative of our legal
erudition and Solomonic wisdom but an all rounded judgment resulting from the consideration of all
relevant circumstances, principally the political, or, in brief, a decision more political than legal, which
a court can render only by deferring to the apparent judgment of the people and the announcement
thereof by the political departments of the government and declaring the matter non-justiciable.
4. Viewed from the strictly legal angle and in the light of judicial methods of ascertainment, I cannot
agree with the Solicitor General that in the legal sense, there has been at least substantial
compliance with Article XV of the 1935 Constitution, but what I can see is that in a political sense,
the answers to the referendum questions were not given by the people as legal conclusions. I take it
that when they answered that by their signified approval of the New Constitution, they do not
consider it necessary to hold a plebiscite, they could not have had in mind any intent to do what was
constitutionally improper. Basically accustomed to proceed along constitutional channels, they must
have acted in the honest conviction that what was being done was in conformity with prevailing
constitutional standards. We are not to assume that the sovereign people were indulging in a futile
exercise of their supreme political right to choose the fundamental charter by which their lives, their
liberties and their fortunes shall be safeguarded. In other words, we must perforce infer that they
meant their decision to count, and it behooves this Court to render judgment herein in that context. It
is my considered opinion that viewed understandingly and realistically, there is more than sufficient
ground to hold that, judged by such intent and, particularly, from the political standpoint, the
ratification of the 1973 Constitution declared in Proclamation 1102 complies substantially with Article
XV of the 1935 Charter, specially when it is considered that the most important element of the
ratification therein contemplated is not in the word "election", which conceivably can be in many
feasible and manageable forms but in the word "approved" which may be said to constitute the
substantiality of the whole article, so long as such approval is reasonably ascertained. In the last
analysis, therefore, it can be rightly said, even if only in a broad sense, that the ratification here in
question was constitutionally justified and justifiable.
5. Finally, if any doubt should still linger as to the legitimacy of the New Constitution on legal
grounds, the same should be dispelled by viewing the situation in the manner suggested by Counsel
Tolentino and by the writer of this opinion in his separate opinion, oft-referred to above, in the
Plebiscite Cases — that is, as an extra constitutional exercise by the people, under the leadership of
President Marcos, of their inalienable right to change their fundamental charter by any means they
may deem appropriate, the moment they are convinced that the existing one is no longer responsive
to their fundamental, political and social needs nor conducive to the timely attainment of their
national destiny. This is not only the teaching of the American Declaration of Independence but is
indeed, a truth that is self-evident. More, it should be regarded as implied in every constitution that
regardless of the language of its amending clause, once the people have given their sanction to a
new charter, the latter may be deemed as constitutionally permissible even from the point of view of
the preceding constitution. Those who may feel restrained to consider this view out of respect to the
import of Tolentino vs. Comelec, supra., would be well advised to bear in mind that the case was
decided in the context of submission, not accomplished ratification.
The language of the disputed amending clause of the 1935 Constitution should not be deemed as
the be all and end all the nation. More important than even the Constitution itself with all its excellent
features, are the people living under it — their happiness, their posterity and their national destiny.
There is nothing that cannot be sacrificed in the pursuit of these objectives, which constitute the
totality of the reasons for national existence. The sacred liberties and freedom enshrined in it and the
commitment and consecration thereof to the forms of democracy we have hitherto observed are
mere integral parts of this totality; they are less important by themselves.
What seems to me to be bothering many of our countrymen now is that by denying the present
petitions, the Court would be deemed as sanctioning, not only the deviations from traditional
democratic concepts and principles but also the qualified curtailment of individual liberties now being
practiced, and this would amount, it is feared, to a repudiation of our oath to support and defend the
Constitution of 1935. This is certainly something one must gravely ponder upon. When I consider,
however, that the President, the Vice President, the members of both Houses of Congress, not to
speak of all executive departments and bureaus under them as well as all the lower courts, including
the Court of Appeals have already accepted the New Constitution as an instrument of a meaningful
nationwide-all-level change in our government and society purported to make more realistic and
feasible, rather than idealistic and cumbersomely deliberative, the attainment of our national
aspirations, I am led to wonder whether or not we, as members of the Supreme Court are being true
to our duty to our people by refusing to follow suit and accept the realities of the moment, despite our
being convinced of the sincerity and laudableness of their objectives, only because we feel that by
the people's own act of ratifying the Constitution of 1935, they have so encased themselves within its
provisions and may, therefore, no longer take measures to redeem themselves from the situation
brought about by the deficiencies of the old order, unless they act in strict conformity therewith. I
cannot believe that any people can be so stifled and enchained. In any event, I consider it a God-
given attribute of the people to disengage themselves, if necessary, from any covenant that would
obstruct their taking what subsequently appears to them to be the better road to the promotion and
protection of their welfare. And once they have made their decision in that respect, whether
sophisticatedly or crudely, whether in legal form or otherwise, certainly, there can be no court or
power on earth that can reverse them.
I would not be human if I should be insensitive to the passionate and eloquent appeals of Counsels
Tañada and Salonga that these cases be decided on the basis of conscience. That is exactly what I
am doing. But if counsel mean that only by granting their petitions can this Court be worthily the
bulwark of the people's faith in the government, I cannot agree, albeit my admiration and respect are
all theirs for their zeal and tenacity, their industry and wisdom, their patriotism and devotion to
principle. Verily, they have brought out everything in the Filipino that these cases demand.
In times of national emergencies and crises, not arising from foreign invasion, we need not fear
playing opposite roles, as long as we are all animated by sincere love of country and aim exclusively
at the attainment of the national destiny. Our heroes of the past, Rizal, Bonifacio, Aguinaldo, Antonio
Luna, Mabini and so also with our patriots of the recent generations, Quezon, Osmeña, Roxas,
Laurel and Recto, to mention only some of them, had their differences of views — and they did not
hesitate to take diametrically opposing sides — that even reached tragic proportions, but all of them
are admired and venerated.
It is my faith that to act with absolute loyalty to our country and people is more important than loyalty
to any particular precept or provision of the Constitution or to the Constitution itself. My oath to abide
by the Constitution binds me to whatever course of action I feel sincerely is demanded by the
welfare and best interests of the people.
In this momentous juncture of our history, what is imperative is national unity. May God grant that
the controversies the events leading to these cases have entail will heal after the decision herein is
promulgated, so that all us Filipinos may forever join hands in the pursuit of our national destiny.
IN VIEW OF ALL THE FOREGOING, I vote to dismiss these petitions for mandamus and prohibition
without costs.
MAKASIAR, J., concurring:
Assuming, without conceding, that Article XV of the 1935 Constitution prescribes a procedure for the
ratification of constitutional amendments or of a new Constitution and that such procedure was no
complied with, the validity of Presidential Proclamation No. 1102 is a political, not a justiciable, issue;
for it is inseparably or inextricably link with and strikes at, because it is decisive of, the validity of
ratification and adoption of, as well as acquiescence of people in, the 1973 Constitution and the
legitimacy of the government organized and operating thereunder. And being political, it is beyond
the ambit of judicial inquiry, tested by the definition of a political question enunciated in Tañada, et.
al. vs. Cuenco, et al. (103 Phil. 1051), aside from the fact the this view will not do violence to rights
vested under the new Constitution, to international commitments forged pursuant thereto and to
decisions rendered by the judicial as well as quasi-judicial tribunals organized and functioning or
whose jurisdiction has been altered by the 1973 Constitution and the government established
thereunder, and will dissipate any confusion in the minds of the citizenry, who have been obeying
the mandates of the new Constitution, as well as exercising the rights and performing the obligations
defined by the new Constitution, and decrees and orders issued in implementation of the same and
cooperating with the administration in the renovation of our social, economic and political system as
re-structured by the 1973 Constitution and by the implementing decrees and orders (see Miller vs.
Johnson, 18 SW 522, 522-526, 1892).
In 1957, Mr. Chief Justice Roberto Concepcion, then Associate Justice, in behalf of the Court,
defined a political question as one which, under the Constitution, is "to be decided by the people in
their sovereign capacity, or in regard to which full discretionary authority had been delegated to the
Legislature or Executive branch of the government." (Tañada, et al. vs. Cuenco, et al., supra).
Article XV of the 1935 Constitution provides: "Such amendments shall be valid as part of this
Constitution when approved by a majority of the votes cast at an election at which the amendments
are submitted to the people for ratification." Under Article XV of the 1935 Constitution, the power to
propose constitutional amendments is vested in Congress or in a constitutional convention; while the
power to ratify or reject such proposed amendments or new Constitution is reserved by the
sovereign people. The nullification of Proclamation No. 1102 would inevitably render inoperative the
1973 Constitution, which is in fact the express prayer of the petitioners in G.R. No. L-36164.
Regardless of the modality of submission or ratification or adoption — even if it deviates from or
violates the procedure delineated therefore by the old Constitution — once the new Constitution is
ratified, adopted and/or acquiesced in by the people or ratified even by a body or agency not duly
authorized therefor but is subsequently adopted or recognized by the people and by the other official
organs and functionaries of the government established under such a new Constitution, this Court is
precluded from inquiring into the validity of such ratification, adoption or acquiescence and of the
consequent effectivity of the new Constitution. This is as it should be in a democracy, for the people
are the repository of all sovereign powers as well as the source of all governmental authority (Pole
vs. Gray, 104 SO 2nd 841 [1958]). This basic democratic concept is expressly restated in Section 1
of Article II of the Declaration of Principles of the 1935 and 1973 Constitutions, thus: "Sovereignty
resides in the people and all government authority emanates from them."
The legality of the submission is no longer relevant; because the ratification, adoption and/or
acquiescence by the people cures any infirmity in its submission or any other irregularities therein
which are deemed mandatory before submission as they are considered merely directory after such
ratification or adoption or acquiescence by the people. As Mr. Justice Brewer, then of the Kansas
State Supreme Court and later Associate Justice of the Federal Supreme Court, stated in re
Prohibitory Amendment Cases (24 Kansas 700 & 710 Reprint 499, 506): "The two important, vital
elements of the Legislature and a majority of the popular vote. Beyond these, other provisions are
mere machineries and forms. They may not be disregarded, because by them certainty as to the
essentials is secured. But they are not themselves the essentials." (Cited in Larken vs. Gronna, 285
NW 59, 61-64, 1939).
This was the ruling by the American Supreme Court in the 1939 case of Coleman vs. Miller (307
U.S. 433, 83 L.ed. 1385), where Chief Justice Hughes, speaking for the majority, stated that:
... Thus the political departments of the government dealt with the effect of both
previous rejection and attempted withdrawal and determined that both were
ineffectual in the presence of an actual ratification ... . This decision by the political
departments of the Government as to the validity of the adoption of the Fourteenth
amendment has been accepted.
We think that in accordance with this historic precedent the question of the efficacy of
ratifications by state legislatures, in the light of previous rejection or attempted
withdrawal, should be regarded as a political question pertaining to the political
departments, with the ultimate authority in the Congress in the exercise of its control
over the promulgation of the adoption of the amendment.
This view was likewise emphasized by Mr. Justice Black in his concurring opinion, in which Mr.
Justices Roberts, Frankfurter, and Douglas join, thus:
The Constitution grants Congress exclusive power to control submission of

constitutional amendments. Final determination by Congress that ratification by
three-fourths of the States has taken place "is conclusive upon the courts." In the
exercise of that power, Congress, of course, is governed by the Constitution.
However, whether submission, intervening procedure or Congressional
determination of ratification conforms to the commands of the Constitution, calls for
decisions by a "political department" of questions of a type which this Court has
frequently designated "political." And decision of a "political question" by the "political
department" to which the Constitution has committed it "conclusively binds the
judges, as well as all other officers, citizens and subjects of...government."
Proclamation under authority of Congress that an amendment has been ratified will
carry with it a solemn assurance by the Congress that ratification has taken place as
the Constitution commands. Upon this assurance a proclaimed amendment must be
accepted as a part of the Constitution, leaving to the judiciary its traditional authority
of interpretation. To the extent that the Court's opinion in the present case even
impliedly assumes a power to make judicial interpretation of the exclusive
constitutional authority of Congress over submission and ratification of amendments,
we are unable to agree... (American Constitutional Issues, by Pritchett, 1962 Ed., p.
44).
The doctrine in the aforesaid case of Coleman vs. Miller was adopted by Our Supreme Court in
toto in Mabanag vs. Lopez Vito (78 Phil. 1).
The ruling in the cases of Gonzales vs. Comelec, et al. (L-28224, Nov. 29, 1967, 21 SCRA 774)
and Tolentino vs. Comelec, et al. (L-34150, Oct. 16, 1971, 41 SCRA 702) on which petitioners place
great reliance — that the courts may review the propriety of a submission of a proposed
constitutional amendment before the ratification or adoption of such proposed amendment by the
sovereign people, hardly applies to the cases at bar; because the issue involved in the aforesaid
cases refers to only the propriety of the submission of a proposed constitutional amendment to the
people for ratification, unlike the present petitions, which challenge inevitably the validity of the 1973
Constitution after its ratification or adoption thru acquiescence by the sovereign people. As
heretofore stated, it is specious and pure sophistry to advance the reasoning that the present
petitions pray only for the nullification of the 1973 Constitution and the government operating
thereunder.
It should be stressed that even in the Gonzales case, supra, We held that:
Indeed, the power to amend the Constitution or to propose amendments thereto is

not included in the general grant of legislative powers to Congress. It is part of the
inherent powers of the people — as the repository of sovereignty in a republican
state, such as ours — to make, and hence, to amend their own Fundamental Law.
Congress may propose amendments to the same explicitly grants such power.
Hence, when exercising the same, it is said that Senators and Members of the
House of Representatives act, not as members, but as component elements of
a constituent assembly. When acting as such, the members of Congress derive their
authority from the Constitution, unlike the people, when performing the same
function, for their authority does not emanate from the Constitution — they are the
very source of all powers of government, including the Constitution itself. (21 SCRA
787)
We did not categorically and entirely overturn the doctrine in Mabanag vs. Lopez Vito (78 Phil. 1)
that both the proposal to amend and the ratification of such a constitutional amendment are political
in nature forming as they do the essential parts of one political scheme — the amending process.
WE merely stated therein that the force of the ruling in the said case of Mabanag vs. Lopez Vito has
been weakened by subsequent cases. Thus, We pronounced therein:
It is true that in Mabanag vs. Lopez Vito, this Court characterizing the issue
submitted thereto as a political one, declined to pass upon the question whether or
not a given number of votes cast in Congress in favor of a proposed amendment to
the Constitution — which was being submitted to the people for ratification —
satisfied the three fourths vote requirement of the fundamental law. The force of this
precedent has been weakened, however, by Suanes vs. Chief Accountant of the
Senate, Avelino vs. Cuenco, Tañada vs. Cuenco and Macias vs. Commission on
Elections. In the first, we held the officers and employees of the Senate Electoral
Tribunal are supervision and control, not of that of the Senate President, claimed by
the latter; in the second, this Court proceeded to determine the number of Senators
necessary for a quorum in the Senate; in the third we nullified the election, by
Senators belonging to the party having the largest number of votes in said chamber
purporting to act on behalf of the party having the second largest number of votes
therein, of two (2) Senators belonging to the first party, as members, for the second
party, of the Senate Electoral Tribunal; and in the fourth, we declared
unconstitutional an act of Congress purporting to apportion the representative
districts for the House of Representatives, upon the ground that the apportionment
had not been made as may be possible according to the number of inhabitants of
each province. Thus we rejected the theory advanced in these four (4) cases, that
the issues therein raised were political questions the determination of which is
beyond judicial review. (21 SCRA pp. 785-786);
for which reason We concluded
In short, the issue whether or not a resolution of Congress before acting as a

constituent assembly — violates the Constitution is essentially justiciable, not
political, and, hence, subject to judicial review, and to the extent that this view may
be inconsistent with the stand taken in Mabanag vs. Lopez Vito, the latter should be
deemed modified accordingly. (p. 787, emphasis supplied.)
In the Tolentino case, supra, We reiterated the foregoing statements (41 SCRA 703-714).
The inevitable consequence therefore is that the validity of the ratification or adoption of or
acquiescence by the people in the 1973 Constitution, remains a political issue removed from the
jurisdiction of this Court to review.
One more word about the Gonzales and Tolentino cases. Both primarily stressed on the impropriety
of the submission of a proposed constitutional amendment. Courts do not deal with propriety or
wisdom or absence of either of an official act or of a law. Judicial power concerns only with the
legality or illegality, constitutionality or unconstitutionality of an act: it inquires into the existence of
power or lack of it. Judicial wisdom is not to be pitted against the wisdom of the political department
of the government.
The classic example of an illegal submission that did not impair the validity of the ratification or
adoption of a new Constitution is the case of the Federal Constitution of the United States. It should
be recalled that the thirteen (13) original states of the American Union — which succeeded in
liberating themselves from England after the revolution which began on April 19, 1775 with the
skirmish at Lexington, Massachusetts and ended with the surrender of General Cornwallis at
Yorktown, Virginia, on October 19, 1781(Encyclopedia Brit., Vol. I, 1933 Ed., p. 776) — adopted their
Articles of Confederation and Perpetual Union, that was written from 1776 to 1777 and ratified on
March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed., p. 525). About six thereafter, the Congress of
the Confederation passed a resolution on February 21, 1787 calling for a Federal Constitutional
Convention "for the sole and express purpose of revising the articles of confederation ... ." (Appendix
I, Federalist, Modern Library ed., p. 577, emphasis supplied).
The Convention convened at Philadelphia on May 14, 1787. Article XIII of the Articles of
Confederation and Perpetual Union stated specifically:
The articles of this confederation shall be inviolably observed in every state, and the
union shall be perpetual; nor shall any alterations at any time hereafter be made in
any of them; unless such alteration be agreed to in a congress of the united states,
and be afterwards confirmed by the legislatures of every state. (See the Federalist,
Appendix II, Modern Library Ed., 1937, p. 584; emphasis supplied.)
But the foregoing requirements prescribed by the Articles of Confederation and Perpetual Union for
the alteration for the ratification of the Federal Constitution as drafted by the Philadelphia Convention
were not followed. Fearful the said Federal Constitution would not be ratified by the legislatures as
prescribed, the Philadelphia Convention adopted a resolution requesting the Congress of the
Confederation to pass a resolution providing that the Constitution should be submitted to elected
state conventions and if ratified by the conventions in nine (9) states, not necessarily in all thirteen
(13) states, the said Constitution shall take effect.
Thus, history Professor Edward Earle Mead of Princeton University recorded that:
It would have been a counsel of perfection to consign the new constitution to the
tender mercies of the legislatures of each and all of the 13 states. Experience clearly
indicated that ratification then would have had the same chance as the scriptural
camel passing through the eye of a needle. It was therefore determined to
recommend to Congress that the new Constitution be submitted to conventions in
the several states especially elected to pass upon it and that, furthermore, the new
government should go into effect if and when it should be ratified by nine of the
thirteen states ... . (The Federalist, Modern Library Ed., 1937, Introduction by Edward
Earle Mead, pp. viii-ix; emphasis supplied)
Historian Samuel Eliot Morison similarly recounted:
The Convention, anticipating that the influence of many state politicians would be
Antifederalist, provided for ratification of the Constitution by popularly elected
conventions in each state. Suspecting that Rhode Island, at least, would prove
recalcitrant, it declared that the Constitution would go into effect as soon as nine
states ratified. The convention method had the further advantage that judges,
ministers, and others ineligible to state legislatures, could be elected to a convention.
The nine-state provision was, of course, mildly revolutionary. But the Congress of the
Confederation, still sitting in New York to carry on federal government until relieved,
formally submitted the new constitution to the states and politely faded out before the
first presidential inauguration. (The Oxford History of the Am. People, by Samuel
Eliot Morison, 1965 ed., p. 312).
And so the American Constitution was ratified by nine (9) states on June 21, 1788 and by the last
four states on May 29, 1790 (12 C.J. p. 679 footnote, 16 C.J.S., 27. — by the state conventions and
not by all thirteen (13) state legislatures as required by Article XIII of the Articles of Confederation
and Perpetual Union aforequoted — and in spite of the fact that the Federal Constitution as
originally adopted suffers from two basic infirmities, namely, the absence of a bill of Rights and of a
provision affirming the power of judicial review.
The liberties of the American people were guaranteed by subsequent amendments to the Federal
Constitution. The doctrine of judicial review has become part of American constitutional law only by
virtue of a judicial pronouncement by Chief Justice Marshall in the case of Marbury vs.
Madison (1803, 1 Cranch 137).
Until this date, no challenge has been launched against the validity of the ratification of the American
Constitution, nor against the legitimacy of the government organized and functioning thereunder.
In the 1946 case of Wheeler vs. Board of Trustees (37 SE 2nd 322, 326-330), which enunciated the
principle that the validity of a new or revised Constitution does not depend on the method of its
submission or ratification by the people, but on the fact or fiat or approval or adoption or
acquiescence by the people which fact of ratification or adoption or acquiescence is all that is
essential, the Court cited precisely the case of the irregular revision and ratification by state
conventions of the Federal Constitution, thus:
No case identical in its facts with the case now under consideration has been called
to our attention, and we have found none. We think that the principle which we apply
in the instant case was very clearly applied in the creation of the constitution of the
United States. The convention created by a resolution of Congress had authority to
do one thing, and one only, to wit, amend the articles of confederation. This they did
not do, but submitted to the sovereign power, the people, a new constitution. In this
manner was the constitution of the United States submitted to the people and it
became operative as the organic law of this nation when it had been properly
adopted by the people.
Pomeroy's Constitutional Law, p. 55, discussing the convention that formulated the
constitution of the United States, has this to say: "The convention proceeded to do,
and did accomplish, what they were not authorized to do by a resolution of Congress
that called them together. That resolution plainly contemplated amendments to the
articles of confederation, to be submitted to and passed by the Congress, and
afterwards ratified by all the State legislatures, in the manner pointed out by the
existing organic law. But the convention soon became convinced that any
amendments were powerless to effect a cure; that the disease was too deeply
seated to be reached such tentative means. They saw that the system they were
called to improve must be totally abandoned, and that the national idea must be re-
established at the center of their political society. It was objected by some members,
that they had no power, no authority, to construct a new government. They had no
authority, if their decisions were to be final; and no authority whatsoever, under the
articles of confederation, to adopt the course they did. But they knew that their labors
were only to be suggestions; and that they as well as any private individuals, and any
private individuals as well as they, had a right to propose a plan of government to the
people for their adoption. They were, in fact, a mere assemblage of private citizens,
and their work had no more binding sanction than a constitution drafted by Mr.
Hamilton in his office would have had. The people, by their expressed will,
transformed this suggestion, this proposal, into an organic law, and the people might
have done the same with a constitution submitted to them by a single citizen."
xxx xxx xxx
... When the people adopt a completely revised or new constitution, the framing or
submission of the instrument is not what gives it binding force and effect. The fiat of
the people and only the fiat of the people, can breathe life into a constitution.
xxx xxx xxx

... We do not hesitate to say that a court is never justified in placing by implication a
limitation upon the sovereign. This would be an authorized exercise of sovereign
power by the court. In State v. Swift, 69 Ind. 505, 519, the Indiana Supreme Court
said: "The people of a State may form an original constitution, or abrogate an old one
and form a new one, at any time, without any political restriction except the
constitution of the United States; ... ." (37 SE 327-328, 329, emphasis supplied.)
In the 1903 case of Weston vs. Ryan, the Court held:
It remains to be said that if we felt at liberty to pass upon this question, and were
compelled to hold that the act of February 23, 1887, is unconstitutional and void, it
would not, in our opinion, by any means follow that the amendment is not a part of
our state Constitution. In the recent case of Taylor vs. Commonwealth (Va.) 44 S.E.
754, the Supreme Court of Virginia hold that their state Constitution of 1902, having
been acknowledged and accepted by the officers administering the state
government, and by the people, and being in force without opposition, must be
regarded as an existing Constitution irrespective of the question as to whether or not
the convention which promulgated it had authority so to do without submitting it to a
vote of the people. In Brittle v. People, 2 Neb. 198, is a similar holding as to certain
provisions of the Nebraska Constitution of 1886, which were added by the
Legislature at the requirement of Congress, though never submitted to the people for
their approval." (97 NW 349-350; emphasis supplied).
Against the decision in the Wheeler case, supra, confirming the validity of the ratification and
adoption of the American Constitution, in spite of the fact that such ratification was in clear violation
of the prescription on alteration and ratification of the Articles of Confederation and Perpetual Union,
petitioners in G.R. No. L-36165 dismissed this most significant historical fact by calling the Federal
Constitution of the United States as a revolutionary one, invoking the opinion expressed in Vol. 16,
Corpus Juris Secundum, p. 27, that it was a revolutionary constitution because it did not obey the
requirement that the Articles of Confederation and Perpetual Union can be amended only with the
consent of all thirteen (13) state legislatures. This opinion does not cite any decided case, but merely
refers to the footnotes on the brief historic account of the United States Constitution on p. 679 of Vol.
12, CJS. Petitioners, on p. 18 of their main Notes, refer US to pp. 270-316 of the Oxford History of
the American People, 1965 Ed. by Samuel Eliot Morison, who discusses the Articles of
Confederation and Perpetual Union in Chapter XVIII captioned "Revolutionary Constitution Making,
1775 1781" (pp. 270-281). In Chapter XX on "The Creative Period in Politics, 1785-1788," Professor
Morison delineates the genesis of the Federal Constitution, but does not refer to it even implicitly as
revolutionary constitution (pp. 297-316). However, the Federal Constitution may be considered
revolutionary from the view point of McIver if the term revolution is understood in "its wider sense to
embrace decisive changes in the character of government, even though they do not involve the
violent overthrow of an established order, ... ." (R.M. MacIver, The Web of Government, 1965 ed., p.
203).
It is rather ridiculous to refer to the American Constitution as a revolutionary constitution. The

Articles of Confederation and Perpetual Union that was in force from July 12, 1776 to 1788, forged
as it was during the war of independence was a revolutionary constitution of the thirteen (13) states.
In the existing Federal Constitution of the United States which was adopted seven (7) or nine (9)
years after the thirteen (13) states won their independence and long after popular support for the
government of the Confederation had stabilized was not a product of a revolution. The Federal
Constitution was a "creation of the brain and purpose of man" in an era of peace. It can only be
considered revolutionary in the sense that it is a radical departure from its predecessor, the Articles
of Confederation and Perpetual Union.
It is equally absurd to affirm that the present Federal Constitution of the United States is not the
successor to the Articles of Confederation and Perpetual Union. The fallacy of the statement is so
obvious that no further refutation is needed.
As heretofore stated, the issue as to the validity of Proclamation No. 1102 strikes at the validity and
enforceability of the 1973 Constitution and of the government established and operating thereunder.
Petitioners pray for a declaration that the 1973 Constitution is inoperative (L-36164). If Proclamation
No. 1102 is nullified, then there is no valid ratification of the 1973 Constitution and the inevitable
conclusion is that the government organized and functioning thereunder is not a legitimate
government.
That the issue of the legitimacy of a government is likewise political and not justiciable, had long
been decided as early as the 1849 case of Luther vs. Borden (7 How. 1, 12 L.ed., 581), affirmed in
the 1900 case of Taylor vs. Beckham (178 U.S. 548, 44 L.ed. 1187) and re-enunciated in 1912 in the
case of Pacific States Telephone and Telegraph Company vs. Oregon (223 U.S. 118, 133-151, 56
L.ed. 377-386). Because it reaffirmed the pronouncements in both Borden and Beckham cases, it is
sufficient for us to quote the decision in Pacific States Telephone and Telegraph Co., supra, penned
by Mr. Chief Justice White, who re-stated:
In view of the importance of the subject, the apparent misapprehension on one side
and seeming misconception on the other, suggested by the argument as to the full
significance of the previous doctrine, we do not content ourselves with a mere
citation of the cases, but state more at length than we otherwise would the issues
and the doctrine expounded in the leading and absolutely controlling case — Luther
v. Borden, 7 How. 1, 12 L.ed. 581.
xxx xxx xxx
... On this subject it was said (p. 38):
"For if this court is authorized to enter upon this inquiry, proposed by the plaintiff, and
it should be decided that the character government had no legal existence during the
period of time above mentioned, — if it had been annulled by the adoption of the
opposing government, — then the laws passed by its legislature during that time
were nullities; its taxes wrongfully collected, its salaries and compensations to its
officers illegally paid ; its public accounts improperly settled and the judgments and
sentences of its courts in civil and criminal cases null and void, and the officers who
carried their decisions into operation answerable as trespassers, if not in some
cases as criminals."
xxx xxx xxx
"The fourth section of the fourth article of the Constitution of the United States shall
guarantee to every state in the Union a republican form of government, and shall
protect each of them against invasion; and on the application of the Legislature or of
the Executive (when the legislature cannot be convened) against domestic violence.
"Under this article of the Constitution it rests with Congress to decide what
government is established one in a state. For, as the United State guarantee to each
state a republican government, Congress must necessarily decide what government
is established in the state before it can determine whether it is republican or not. And
when the senators and representatives of a state are admitted into the Councils of
the Union, the authority of the government under which they were appointed, as well
as its republican character, is recognized by the proper constitutional authority. And
its decision is binding on every other department of the government, and could not
be questioned in a judicial tribunal. It is true that the contest in this case did not last
long enough to bring the matter to this issue; and as no senators or representatives
were elected under the authority of the government of which Mr. Dorr was the head,
Congress was not called upon to decide the controversy. Yet the right to decide is
placed there and not in the courts."
xxx xxx xxx
... We do not stop to cite other cases which indirectly or incidentally refer to the
subject, but conclude by directing attention to the statement by the court, speaking
through Mr. Chief Justice Fuller, in Taylor vs. Beckham, 178 U.S. 548, 44 L.ed. 1187,
20 Sup. Ct. Rep. 890, 1009, where, after disposing of a contention made concerning
the 14th Amendment, and coming to consider a proposition which was necessary to
be decided concerning the nature and effect of the guaranty of S 4 of article 4, it was
said (p. 578):
"But it is said that the 14th Amendment must be read with S 4 of article 4, of the
Constitution, providing that the United States shall guarantee to every state in this
Union a republican form of government, and shall protect each of them against
invasion; and on application of the legislature, or the Executive (when the legislature
cannot be convened), against domestic violence."
xxx xxx xxx
"It was long ago settled that the enforcement of this guaranty belonged to the
political department. Luther v. Borden, 7 How. 1, 12 L.ed. 581. In that case it was
held that the question, which of the two opposing governments of Rhode Island,
namely, the charter government or the government established by a voluntary
convention, was the legitimate one, was a question for the determination of the
political department; and when that department had decided, the courts were bound
to take notice of the decision and follow it."
xxx xxx xxx
As the issues presented, in their very essence, are, and have long since by this
Court been, definitely determined to be political and governmental, and embraced
within the scope of the scope of the powers conferred upon Congress, and not,
therefore within the reach of judicial power, it follows that the case presented is not
within our jurisdiction, and the writ of error must therefore be, and it is, dismissed for
want of jurisdiction. (223 U.S. pp. 142-151; emphasis supplied).
Even a constitutional amendment that is only promulgated by the Constitutional Convention without
authority therefor and without submitting the same to the people for ratification, becomes valid, when
recognized, accepted and acted upon the by Chief of State and other government functionaries, as
well as by the people. In the 1903 case of Taylor vs. Commonwealth (44 SE 754-755), the Court
ruled:
The sole ground urged in support of the contention that Constitution proclaimed in
1902 is invalid is that it was ordained and promulgated by the convention without
being submitted for ratification or rejection by the people of the commonwealth.
The Constitution of 1902 was ordained and proclaimed by convention duly called by
direct vote of the people of the state to revise and amend the Constitution of 1869.
The result of the work that the convention has been recognized, accepted, and acted
upon as the only valid Constitution of the state by the Governor in swearing fidelity to
it and proclaiming it, as directed thereby; by the Legislature in its formal official act
adopting a joint resolution, July 15, 1902, recognizing the Constitution ordained by
the convention which assembled in the city of Richmond on the 12th day of June
1901, as the Constitution of Virginia; by the individual oaths of members to support it,
and by its having been engaged for nearly a year in legislating under it and putting its
provisions into operation but the judiciary in taking the oath prescribed thereby to
support and by enforcing its provisions; and by the people in their primary capacity
by peacefully accepting it and acquiescing in it, registering as voters under it to the
extent of thousands through the state, and by voting, under its provisions, at a
general election for their representatives in the Congress of the United States. (p.
755).
The Court in the Taylor case above-mentioned further said:
While constitutional procedure for adoption or proposal to amend the constitution

must be duly followed, without omitting any requisite steps, courts should uphold
amendment, unless satisfied that the Constitution was violated in submitting the
proposal. ... Substance more than form must be regarded in considering whether the
complete constitutional system for submitting the proposal to amend the constitution
was observed.
In the 1925 case of Taylor vs. King (130 A 407, 408 410), the Court stated:
There may be technical error in the manner in which a proposed amendment is

adopted, or in its advertisement, yet, if followed, unobjected to, by approval of the
electors, it becomes part of the Constitution. Legal complaints to the submission may
be made prior to taking the vote, but, if once sanctioned, the amendment is
embodied therein, and cannot be attacked, either directly or collaterally, because of
any mistake antecedent thereto. Even though it be submitted at an improper time, it
is effective for all purposes when accepted by the majority. Armstrong v. King, 281
Pa. 207, 126 A. 263. (130 A 409).
Even if the act of the Constitutional Convention is beyond its authority, such act becomes valid upon
ratification or adoption or acquiescence by the people. Thus, in the 1905 case of Ex
parte Birmingham and A.R. Company (42 SO pp. 118 & 123), the Alabama Supreme Court upheld
this principle and stated that: "The authorities are almost uniform that this ratification of an
unauthorized act by the people (and the people are the principal in this instance) renders the act
valid and binding."
It has likewise been held that it is not necessary that voters ratifying the new Constitution are
registered in the book of voters; it is enough that they are electors voting on the new Constitution.
(Bott vs. Wurts, 40 A 740 [1899]; 45 LRA 251, emphasis supplied).
In the 1956 case of Thomson vs. Peoples State Bank (75 NW 2nd 370, 375), the Supreme Court of
Wisconsin ruled that "irregularity in the procedure for the submission of the proposed constitutional
amendment will not defeat the ratification by the people."
Again, in the 1958 case of Swaim vs. Tuscaloosa County (103 SO 2nd 769), the Alabama Supreme
Court pronounced that "the irregularity in failing to publish the proposed constitutional amendment
once in each of the 4 calendar weeks next preceding the calendar week in which the election was
held or once in each of the 7-day periods immediately preceding the day of the election as required
by the Constitution, did not invalidate the amendment which was ratified by the people."
The same principle was reiterated in 1961 by the Mississippi Supreme Court in Barnes, et al. v.
Ladner (131) SO 2nd 45 462), where they admitted irregularities or illegalities committed in the
procedure for submission of the proposed constitutional amendment to the people for ratification
consisted of: "(a) the alleged failure of the county election commissioners of the several counties to
provide a sufficient number of ballot boxes 'secured by good and substantial locks,' as provided by
Section 3249, Code of 1942, Rec., to be used in the holding of the special election on the
constitutional amendment, and (b) the alleged failure of the State Election Commissioners to comply
with the requirements of Code Sections 3204 and 3205 in the appointment of election
commissioners in each of the 82 counties. The irregularities complained of, even if proved, were not
such irregularities would have invalidated the election." (Emphasis supplied; see also Sylvester vs.
Tindall, 8 SO 2nd 892; 154 Fla. 663).
Even prior to the election in November, 1970 of delegates of the Constitutional Convention and
during the deliberations of the Constitutional Convention from June 1, 1971 until martial law was
proclaimed on Sept. 21, 1972, the salient reforms contained in the 1973 Constitution which have
long been desired by the people, had been thoroughly discussed in the various committees of the
Constitutional Convention, on the floor of the Convention itself, in civic forums and in all the media of
information. Many of the decrees promulgated by the Chief Executive from Sept. 22, 1972 to Jan.
17, 1973 implement some of the reforms and had been ratified in Sec. 3(2) of Article XVII of the
1973 Constitution.
Petitioners cannot safely state that during martial law the majority of the people cannot freely vote for
these reforms and are not complying with the implementing decrees promulgated by the President.
Free election is not inevitably incompatible with martial law. We had free elections in 1951 and 1971
when the opposition won six out of eight senatorial seats despite the suspension of the privileges of
the writ of habeas corpus(see Lansang vs. Garcia, et al., Dec. 14, 1971, 42 SCRA 448), which
suspension implies constraint on individual freedom as the proclamation of martial law. In both
situations, there is no total blackout of human rights and civil liberties.
All the local governments, dominated either by Nacionalistas or Liberals, as well as officials of the
Legislative and Executive branches of the government elected and/or appointed under the 1935
Constitution have either recognized or are now functioning under the 1973 Constitution, aside from
the fact of its ratification by the sovereign people through the Citizens Assemblies. Ninety-five (95) of
a total of one hundred ten (110) members of the House of Representatives including the Speaker
and the Speaker Pro Tempore as well as about eleven (11) Congressmen who belong to the Liberal
Party and fifteen (15) of a total of twenty-four (24) senators including Liberal senators Edgar U.
Ilarde and John Osmeña opted to serve in the Interim Assembly, according to the certification of the
Commission on Elections dated February 19, 1973 (Annex Rejoinder-3 to Consolidated Rejoinder of
petitioners in L-36165). Only the five (5) petitioners in L-36165 close their eyes to a fait accompli. All
the other functionaries recognize the new government and are performing their duties and exercising
their powers under the 1973 Constitution, including the lower courts. The civil courts, military
tribunals and quasi-judicial bodies created by presidential decrees have decided some criminal, civil
and administrative cases pursuant to such decrees. The foreign ambassadors who were accredited
to the Republic of the Philippines before martial law continue to serve as such in our country; while
two new ambassadors have been accepted by the Philippines after the ratification of the 1973
Constitution on January 17, 1973. Copies of the 1973 Constitution had been furnished the United
Nations Organization and practically all the other countries with which the Philippines has diplomatic
relations. No adverse reaction from the United Nations or from the foreign states has been
manifested. On the contrary, our permanent delegate to the United Nations Organization and our
diplomatic representatives abroad appointed before martial law continue to remain in their posts and
are performing their functions as such under the 1973 Constitution.
Even the Commission on Elections is now implementing the provisions of the 1973 Constitution by
requiring all election registrars to register 18-year olds and above whether literates or not, who are
qualified electors under the 1973 Constitution (see pars. 1-A(c), (d), & (e) of Annex A to Notes of
respondents Puyat and Roy in L-36165).
In brief, it cannot be said that the people are ignoring the 1973 Constitution and the government
which is enforcing the same for over 10 weeks now With the petitioners herein, secessionists, rebels
and subversives as the only possible exceptions, the rest of the citizenry are complying with
decrees, orders and circulars issued by the incumbent President implementing the 1973
Constitution.
Of happy relevance on this point is the holding in Miller vs. Johnson 18 SW 522:
If a set of men, not selected by the people according to the forms of law, were to
formulate an instrument and declare it the constitution, it would undoubtedly be the
duty of the courts declare its work a nullity. This would be revolution, and this the
courts of the existing government must resist until they are overturned by power, and
a new government established. The convention, however, was the offspring of law.
The instrument which we are asked to declare invalid as a constitution has been
made and promulgated according to the forms of law. It is a matter of current history
that both the executive and legislative branches of the government have recognized
its validity as a constitution, and are now daily doing so. Is the question, therefore,
one of a judicial character? It is our undoubted duty, if a statute be unconstitutional to
so declare it; also, if a provision of the state constitution be in conflict with the federal
constitution, to hold the former invalid. But this is a very different case. It may be
said, however, that, for every violation of or non-compliance with the law, there
should be a remedy in the courts. This is not, however, always the case. For
instance, the power of a court as to the acts of the other departments of the
government is not an absolute one, but merely to determine whether they have kept
within constitutional limits, it is a duty rather than a power, The judiciary cannot
compel a co-equal department to perform a duty. It is responsible to the people; but if
it does act, then, when the question is properly presented, it is the duty of the court to
say whether it has conformed to the organic law. While the judiciary should protect
the rights of the people with great care and jealousy, because this is its duty, and
also because, in times of great popular excitement, it is usually their last resort, yet it
should at the same time be careful to overstep the proper bounds of its power, as
being perhaps equally dangerous; and especially where such momentous results
might follow as would be likely in this instance, if the power of the judiciary permitted,
and its duty required, the overthrow of the work of the convention.
After the American Revolution the state of Rhode Island retained its colonial
character as its constitution, and no law existed providing for the making of a new
one. In 1841 public meetings were held, resulting in the election of a convention to
form a new one, — to be submitted to a popular vote. The convention framed one,
submitted it to a vote, and declared it adopted. Elections were held for state officers,
who proceeded to organize a new government. The charter government did not
acquiesce in these proceedings, and finally declared the state under martial law. It
called another convention, which in 1843 formed a new constitution. Whether the
charter government, or the one established by the voluntary convention, was the
legitimate one, was uniformly held by the courts of the state not to be a judicial, but a
political question; and the political department having recognized the one, it was held
to be the duty of the judiciary to follow its decision. The supreme court of the United
States, in Luther v. Borden, 7 How. 1, while not expressly deciding the principle, as it
held the federal court, yet in the argument approves it, and in substance says that
where the political department has decided such a matter the judiciary should abide
by it.
Let us illustrate the difficulty of a court deciding the question: Suppose this court
were to hold that the convention, when it reassembled, had no power to make any
material amendment, and that such as were made are void by reason of the people
having theretofore approved the instrument. Then, next, this court must determine
what amendments were material; and we find the court, in effect, making a
constitution. This would be arrogating sovereignty to itself. Perhaps the members of
the court might differ as to what amendments are material, and the result would be
confusion and anarchy. One judge might say that all the amendments, material and
immaterial, were void; another, that the convention had then the implied power to
correct palpable errors, and then the court might differ as to what amendments are
material. If the instrument as ratified by the people could not be corrected or altered
at all, or if the court must determine what changes were material, then the
instrument, as passed upon by the people or as fixed by the court would be lacking a
promulgation by the convention; and, if this be essential, then the question would
arise, what constitution are we now living under, and what is the organic law of the
state? A suggestion of these matters shows what endless confusion and harm to the
state might and likely would arise. If, through error of opinion, the convention
exceeded its power, and the people are dissatisfied, they have ample remedy,
without the judiciary being asked to overstep the proper limits of its power. The
instrument provides for amendment and change. If a wrong has been done, it can, in
the proper way in which it should be remedied, is by the people acting as a body
politic. It is not a question of whether merely an amendment to a constitution, made
without calling a convention, has been adopted, as required by that constitution. If it
provides how it is to be done, then, unless the manner be followed, the judiciary, as
the interpreter of that constitution, will declare the amendment invalid. Koehler v. Hill,
60 Iowa, 543, 14 N.W. Rep. 738, and 15 N.W. Rep. 609; State v. Tuffy, 1 Nev. 391,
12 Pac. Rep. 835. But it is a case where a new constitution has been formed and
promulgated according to the forms of law. Great interests have already arisen under
it; important rights exist by virtue of it; persons have been convicted of the highest
crime known to the law, according to its provisions; the political power of the
government has in many ways recognized it; and, under such circumstances, it is
our duty to treat and regard it as a valid constitution, and now the organic law of our
commonwealth.
We need not consider the validity of the amendments made after the convention
reassembled. If the making of them was in excess of its powers, yet, as the entire
instrument has been recognized as valid in the manner suggested, it would be
equally an abuse of power by the judiciary and violative of the rights of the people, —
who can and properly should remedy the matter, if not to their liking, — if it were to
declare the instrument of a portion invalid, and bring confusion and anarchy upon the
state. (emphasis supplied).
If this Court inquires into the validity of Proclamation No. 1102 and consequently of the adoption of
the 1973 Constitution it would be exercising a veto power on the act of the sovereign people, of
whom this Court is merely an agent, which to say the least, would be anomalous. This Court cannot
dictate to our principal, the sovereign people, as to how the approval of the new Constitution should
be manifested or expressed. The sovereign people have spoken and we must abide by their
decision, regardless of our notion as to what is the proper method of giving assent to the new
Charter. In this respect, WE cannot presume to know better than the incumbent Chief Executive,
who, unlike the members of this Court, only last January 8, 1973, We affirmed in Osmeña vs.
Marcos (Pres. Election Contest No. 3, Jan. 8, 1973), was re-elected by the vote of over 5 million
electors in 1969 for another term of four years until noon of December 30, 1973 under the 1935
Constitution. This Court, not having a similar mandate by direct fiat from the sovereign people, to
execute the law and administer the affairs of government, must restrain its enthusiasm to sally forth
into the domain of political action expressly and exclusively reserved by the sovereign people
themselves.
The people in Article XV of the 1935 Constitution did not intend to tie their hands to a specific
procedure for popular ratification of their organic law. That would be incompatible with their
sovereign character of which We are reminded by Section 1, of Article II of both the 1935 and the
1973 Constitutions.
The opinion of Judge Thomas McIntire Cooley that the sovereign people cannot violate the
procedure for ratification which they themselves define in their Constitution, cannot apply to a unitary
state like the Republic of the Philippines. His opinion expressed in 1868 may apply to a Federal
State like the United States, in order to secure and preserve the existence of the Federal Republic of
the United States against any radical innovation initiated by the citizens of the fifty (50) different
states of the American Union, which states may be jealous of the powers of the Federal government
presently granted by the American Constitution. This dangerous possibility does not obtain in the
case of our Republic.
Then again, Judge Cooley advanced the aforesaid opinion in 1868 when he wrote his opus
"Constitutional Limitations." * (Vol. 6, Encyclopedia Brit., 1969 ed. pp. 445 446). It is possible that, were he live today, in a milieu
vastly different from 1868 to 1898, he might have altered his views on the matter.
Even if conclusiveness is to be denied to the truth of the declaration by the President in

Proclamation No. 1102 that the people through their Citizens' Assemblies had overwhelmingly
approved the new Constitution due regard to a separate, coordinate and co-equal branch of the
government demands adherence to the presumption of correctness of the President's declaration.
Such presumption is accorded under the law and jurisprudence to officials in the lower levels of the
Executive branch, there is no over-riding reason to deny the same to the Chief of State as head of
the Executive Branch. WE cannot reverse the rule on presumptions, without being presumptuous, in
the face of the certifications by the Office the Secretary of the Department of Local Government and
Community Development. (Annexes 1, to 1-E, Annexes 2 to 2-O to the compliance with
manifestation filed by the Solicitor General on behalf of the respondents public officers dated March
7, 1973). There is nothing in the records that contradicts, much less overthrow the results of the
referendum as certified. Much less are We justified in reversing the burden of proof — by shifting it
from the petitioners to the respondents. Under the rules on pleadings, the petitioners have the duty
to demonstrate by clear and convincing evidence their claim that the people did not ratify through the
Citizens' Assemblies nor adopt by acquiescence the 1973 Constitution. And have failed to do so.
No member of this Tribunal is justified in resolving the issues posed by the cases at bar on the basis
of reports relayed to him from private sources which could be biased and hearsay, aside from the
fact that such reports are not contained in the record. Proclamation No. 1102 is not just an ordinary
act of the Chief Executive. It is a well-nigh solemn declaration which announces the highest act of
the sovereign people — their imprimatur to the basic Charter that shall govern their lives hereafter —
may be for decades, if not for generations.
Petitioners decry that even 15-year olds, ex convicts and illiterates were allowed to vote in the
Citizens' Assemblies, despite their admission that the term "Filipino people" in the preamble as well
as "people" in Sections 1 and 5 of Article II of the 1935 Constitution and in Section 1(3) of Article III
of the Bill of Rights includes all Filipino citizens of all ages, of both sexes, whether literate or illiterate,
whether peaceful citizens, rebels, secessionists, convicts or ex-convicts. Without admitting that ex-
convicts voted in the referendum, about which no proof was even offered, these sectors of our
citizenry, whom petitioners seem to regard with contempt or decision and whom petitioners would
deny their sovereign right to pass upon the basic Charter that shall govern their lives and the lives of
their progenies, are entitled as much as the educated, the law abiding, and those who are 21 years
of age or above to express their conformity or non conformity to the proposed Constitution, because
their stake under the new Charter is not any less than the stake of the more fortunate among us. As
a matter of fact, these citizens, whose juridical personality or capacity to act is limited by age, civil
interdiction or ignorance deserve more solicitude from the State than the rest of the citizenry. In the
ultimate analysis, the inclusion of those from 15 years up to below 21 years old, the ex-convicts and
the ignorant, is more democratic as it broadens the base of democracy and therefore more faithful to
the express affirmation in Section 1 of Article II of the Declaration of Principles that "sovereignty
resides in the people and all government authority emanates from them."
Moreover, ex-convicts granted absolute pardon are qualified to vote. Not all ex-convicts are banned
from voting. Only those who had been sentenced to at least one year imprisonment are
disenfranchised but they recover their right of suffrage upon expiration of ten years after service of
sentence (Sec. 102, 1971 Rev. Elec. Code). Furthermore, ex-convicts and imbeciles constitute a
very negligible number in any locality or barrio, including the localities of petitioners.
Included likewise in the delegated authority of the President, is the prerogative to proclaim the
results of the plebiscite or the voting the Citizens' Assemblies. Petitioners deny the accuracy or
correctness of Proclamation No. 1102 that the 1973 Constitution was ratified by the overwhelming
vote of close to 15 million citizens because there was no official certification to the results of the
same from the Department of Local Governments. But there was such certification as per Annex 1 to
1-A to the Notes submitted by the Solicitor General counsel for respondents public officers. This
should suffice to dispose of this point. Even in the absence of such certification, in much the same
way that in passing law, Congress or the legislative body is presumed to be in possession of the
facts upon which such laws are predicated (Justice Fernando, The Power of Judicial Review, 1967
Ed., pp. 112-11 citing Lorenzo vs. Dir., etc., [1927] 50 Phil. 595 and O'Gonmore, et al: vs. Hartford,
etc., [1931] 282 U.S. 251), it should likewise be presumed that the President was in possession of
the fact upon which Proclamation No. 1102 was based. This presumption is further strengthened by
the fact that the Department of Local Governments, the Department National Defense and the
Philippine Constabulary as well the Bureau of Posts are all under the President, which offices as his
alter ego, are presumptively acting for and in behalf of the President and their acts are valid until
disapproved or reprobated by the President (Planas vs. Gil, 67 Phil. 62; Villen vs. Secretary of
Interior, 67 Phil. 451). To deny the truth or the proclamation of the President as to the overwhelming
majority vote in the Citizens' Assemblies in favor of the new Constitution, is to charge the President
with falsification, which is a most grievous accusation. Under the, rules of pleadings and evidence,
the petitioners have the burden of proof by preponderance of evidence in civil cases and by proof
beyond reasonable doubt in criminal prosecutions, where the accused is always presumed to be
innocent. Must this constitutional right be reversed simply because the petitioner all assert the
contrary? Is the rule of law they pretend invoke only valid as long as it favors them?
The presumption of regularity in the performance of official functions is accorded by the law and
jurisprudence to acts of public officers whose category in the official hierarchy is very much lower
than that of the Chief of State. What reason is there to withhold such a presumption in favor of the
President? Does the fact that the President belong to the party in power and that four (4) of the five
(5) senators who are petitioners in L-36165 belong to the opposition party, justify a discrimination
against the President in matters of this nature? Unsupported as their word is by any credible and
competent evidence under the rules of evidence, must the word of the petitioners prevail over that of
the Chief Executive, because they happen to be former senators and delegates to the Constitutional
Convention? More than any of the petitioners herein in all these cases, the incumbent President
realizes that he risks the wrath of his people being visited upon him and the adverse or hostile
verdict of history; because of the restrictions on the civil liberties of his people, inevitable
concomitants of martial law, which necessarily entail some degree of sacrifice on the part of the
citizenry. Until the contrary is established or demonstrated, herein petitioners should grant that the
Chief Executive is motivated by what is good for the security and stability of the country, for the
progress and happiness of the people. All the petitioners herein cannot stand on the proposition that
the rights under the 1935 Constitution are absolute and invulnerable to limitations that may be
needed for the purpose of bringing about the reforms for which the petitioners pretend to be
clamoring for and in behalf of the people. The five (5) petitioners in L-36165 and four (4) of the seven
(7) petitioners in L-36164 were all participants in the political drama of this country since 1946. They
are witness to the frustrations of well-meaning Presidents who wanted to effect the reforms,
especially for the benefit of the landless and the laboring class — how politics and political
bargaining had stymied the effectuation of such reforms thru legislation. The eight (8) petitioners in
L-36164 and L-36165 may not have participated in the systematic blocking of the desired reforms in
Congress or outside of it; but the question may be asked as to what exactly they did to support such
reforms. For the last seven (7) decades since the turn of the century, for the last thirty-five (35) years
since the establishment of the Commonwealth government in 1935 and for the last twenty seven
(27) years since the inauguration of the Republic on July 4, 1946, no tangible substantial reform had
been effected, funded and seriously implemented, despite the violent uprisings in the thirties, and
from 1946 to 1952, and the violent demonstrations of recent memory. Congress and the oligarchs
acted like ostriches, "burying their heads in timeless sand. "Now the hopes for the long-awaited
reforms to be within a year or to are brighter. It would seem therefore to the duty of everyone
including herein petitioners to give the present leadership the opportunity to institute and carry out
the needed reforms as provided for in the new or 1973 Constitution and thru the means prescribed in
that same Constitution.
As stated in Wheeler vs. Board of Trustees, "a court is never justified in placing by implication a
limitation upon the sovereign."
This Court in the Gonzales and Tolentino cases transcended its proper sphere and encroached
upon the province exclusively reserved to and by the sovereign people. This Court did not heed to
the principle that the courts are not the fountain of all remedies for all wrongs. WE cannot presume
that we alone can speak with wisdom as against the judgment of the people on the basic instrument
which affects their very lives. WE cannot determine what is good for the people or ought to be their
fundamental law. WE can only exercise the power delegated to Us by the sovereign people, to apply
and interpret the Constitution and the laws for the benefit of the people, not against them nor to
prejudice them. WE cannot perform an act inimical to the interest of Our principal, who at any time
may directly exercise their sovereign power ratifying a new Constitution in the manner convenient to
them.
It is pertinent to ask whether the present Supreme Court can function under the 1935 Constitution
without being a part of the government established pursuant thereto. Unlike in the Borden
case, supra, where there was at least another government claiming to be the legitimate organ of the
state of Rhode Island (although only on paper as it had no established organ except Dorr who
represented himself to be its head; in the cases at bar there is no other government distinct from and
maintaining a position against the existing government headed by the incumbent Chief Executive.
(See Taylor vs. Commonwealth, supra). There is not even a rebel government duly organized as
such even only for domestic purposes, let alone a rebel government engaged in international
negotiations. As heretofore stated, both the executive branch and the legislative branch established
under the 1935 Constitution had been supplanted by the government functioning under the 1973
Constitution as of January 17, 1973. The vice president elected under the 1935 Constitution does
not asset any claim to the leadership of the Republic of the Philippines. Can this Supreme Court
legally exist without being part of any government?
Brilliant counsel for petitioners in L-36165 has been quite extravagant in his appraisal of Chief
Justice Roger Brooke Taney whom he calls the "hero of the American Bar," because during the
American civil war he apparently had the courage to nullify the proclamation of President Lincoln
suspending the privileges of the writ of habeas corpus in Ex parte Merryman (Federal Case No.
9487 [1861]). But who exactly was Chief Justice Roger Brooke Taney? The Editorial Board of Vol.
21 of the Encyclopedia Brit., 1966 ed. (pp. 778-779, 1969 ed., pp. 654-657), briefly recounts that he
was born in 1777 in Calvert County, Maryland, of parents who were landed aristocrats as well as
slave owners. Inheriting the traditional conservatism of his parents who belonged to the landed
aristocracy, Taney became a lawyer in 1799, practiced law and was later appointed Attorney
General of Maryland. He also was a member of the Maryland state legislature for several terms. He
was a leader of the Federalist Party, which disintegrated after the war of 1812, compelling him to join
the Democratic Party of Andrew Jackson, also a slave owner and landed aristocrat, who later
appointed him first as Attorney General of the United States, then Secretary of the Treasury and in
1836 Chief Justice of the United States Supreme Court to succeed Chief Justice John Marshall, in
which position he continued for 28 years until he died on October 21, 1864. His death "went largely
unnoticed and unregretted." Because he himself was a slave owner and a landed aristocrat, Chief
Justice Taney sympathized with the Southern States and, even while Chief Justice, hoped that the
Southern States would be allowed to secede peacefully from the Union. That he had no sympathy
for the Negroes was revealed by his decision in Dred Scott vs. Sandford (19 How. 398 [1857]) where
he pronounced that the American Negro is not entitled to the rights of an American citizen and that
his status as a slave is determined by his returning to a slave state. One can therefore discern his
hostility towards President Lincoln when he decided Ex parte Merryman, which animosity to say the
least does no befit a judicial mind. Such a man could hardly be spoken of as a hero of the American
Bar, least of all of the American nation. The choice of heroes should not be expressed
indiscriminately just to embellish one's rhetoric.
Distinguished counsel in L-36165 appears to have committed another historical error, which may be
due to his rhetorical in the Encyclopedia Britannica (Vol. 9, 1969 ed., pp. 508-509) to this effect. On
the contrary, Encyclopedia Britannica (Vol. 17 Encyclopedia Brit., 1966 & 1969 eds., 732-733),
refers to Marshal Henri Philippe Petain as the genuine hero or "Savior of Verdun"; because he held
Verdun against the 1916 offensive of the German army at the cost of 350,000 of his French soldiers,
who were then demoralized and plotting mutiny. Certainly, the surviving members of the family of
Marshal Petain would not relish the error. And neither would the members of the clan of Marshal
Foch acknowledge the undeserved accolade, although Marshal Foch has a distinct place in history
on his own merits. The foregoing clarification is offered in the interest of true scholarship and
historical accuracy, so that the historians, researchers and students may not be led astray or be
confused by esteemed counsel's eloquence and mastery of the spoken and written word as well as
by his eminence as law professor, author of law books, political leader, and member of the newly
integrated Philippine Bar.
It is quite intriguing why the eminent counsel and co-petitioner in L-36164 did not address likewise
his challenge to the five (5) senators who are petitioners in L-36165 to also act as "heroes and
idealists," to defy the President by holding sessions by themselves alone in a hotel or in their houses
if they can muster a quorum or by causing the arrest of other senators to secure a quorum and
thereafter remove respondents Puyat and Roy (Avelino, et al. vs. Cuenco, et al. [1949] 83 Phil. 17),
if they believe most vehemently in the justice and correctness of their position that the 1973
Constitution has not been validly ratified, adopted or acquiesced in by the people since January 18,
1973 until the present. The proclaimed conviction of petitioners in L-36165 on this issue would have
a ring of credibility, if they proceeded first to hold a rump session outside the legislative building;
because it is not unreasonable to demand or to exact that he who exhorts others to be brave must
first demonstrate his own courage. Surely, they will not affirm that the mere filing of their petition in L-
36165 already made them "heroes and idealists." The challenge likewise seems to insinuate that the
members of this Court who disagree with petitioners' views are materialistic cowards or mercenary
fence-sitters. The Court need not be reminded of its solemn duty and how to perform it. WE refuse to
believe that petitioners and their learned as well as illustrious counsels, scholars and liberal thinkers
that they are, do not recognize the sincerity of those who entertain opinions that clash with their own.
Such an attitude does not sit well with the dictum that "We can differ without being difficult; we can
disagree without being disagreeable," which distinguished counsel in L-36165 is wont to quote.
WE reserve the right to prepare an extensive discussion of the other points raised by petitioners,
which We do not find now necessary to deal with in view of Our opinion on the main issue.
IN VIEW OF THE FOREGOING, ALL THE PETITIONS IN THESE FIVE CASES SHOULD BE

DISMISSED.
MAKASIAR, J., concurring:
Pursuant to Our reservation, We now discuss the other issues raised by the petitioners.
II
EVEN IF ISSUE IS JUSTICIABLE, PEOPLE'S RATIFICATION, ADOPTION OR ACQUIESCENCE

CREATES STRONG PRESUMPTION OF VALIDITY OF 1973 CONSTITUTION.
As intimated in the aforecited cases, even the courts, which affirm the proposition that the question
as to whether a constitutional amendment or the revised or new Constitution has been validly
submitted to the people for ratification in accordance with the procedure prescribed by the existing
Constitution, is a justiciable question, accord all presumption of validity to the constitutional
amendment or the revised or new Constitution after the government officials or the people have
adopted or ratified or acquiesced in the new Constitution or amendment, although there was an
illegal or irregular or no submission at all to the people. (Collier vs. Gray, 4th Dec. Dig. 935 [1934],
Hammond vs. Clark, 71 SE 482-483; People vs. Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep.
34; Thompson vs. Winneth, 78 Neb. 379, 110 NW 1113, 10 L.R.A. [N.S.] 149; State vs. Laylin, 69
Ohio St. Rep. 1, 68 NE 574; Weston vs. Ryan, 70 Neb. 211, 97 NW 347; Combs vs. State, 81 Ga.
780, 8 SE 318; Woodward vs. State, 103 Ga. 496, 30 SE 522; Corre vs. Cooney, 70 Mont. 355, 225
P 1007, 1009). As late as 1971, the courts stressed that the constitutional amendment or the new
Constitution should not be condemned "unless our judgment its nullity is manifest beyond
reasonable doubt" (1971 case of Moore vs. Shanahan, 486 Pac. 2d 506, 207 Kan. 1, 645; and the
1956 case of Tipton vs. Smith, et al., supra).
Mr. Justice Enrique M. Fernando, speaking for the Court, pronounced that the presumption of
constitutionality must persist in the absence of factual foundation of record to overthrow such
presumption (Ermita-Malate Hotel, etc. vs. City Mayor, L-24698, July 31, 1967, 20 SCRA 849).
III
CONSTITUTIONAL CONVENTION — CO-EQUAL WITH AND INDEPENDENT OF CONGRESS,

EXECUTIVE AND JUDICIARY.
The Constitutional Convention is co-ordinate and co-equal with, as well as independent of, the three
grand departments of the Government, namely, the legislative, the executive and the judicial. As a
fourth separate and distinct branch, to emphasize its independence, the Convention cannot be
dictated to by either of the other three departments as to the content as well as the form of the
Charter that it proposes. It enjoys the same immunity from interference or supervision by any of the
aforesaid branches of the Government in its proceedings, including the printing of its own journals
(Tañada and Fernando, Constitution of the Philippines, 1952 ed., Vol. I, pp. 8 9; Malcolm and Laurel,
Phil. Const. Law, p. 22; Frantz vs. Autry, 91 Pac. 193). Implicit in that independence, for the purpose
of maintaining the same unimpaired and in order that its work will not be frustrated, the Convention
has the power to fix the date for the plebiscite and to provide funds therefor. To deny the Convention
such prerogative, would leave it at the tender mercy of both legislative and executive branches of the
Government. An unsympathetic Congress would not be disposed to submit the proposed
Constitution drafted by the Constitutional Convention to the people for ratification, much less
appropriate the necessary funds therefor. That could have been the fate of the 1973 Constitution,
because the same abolished the Senate by creating a unicameral National Assembly to be presided
by a Prime Minister who wields both legislative and executive powers and is the actual Chief
Executive, for the President contemplated in the new Constitution exercises primarily ceremonial
prerogatives. The new Constitution likewise shortened abruptly the terms of the members of the
present Congress (whose terms end on December 31, 1973, 1975 and 1977) which provides that
the new Constitution shall take effect immediately upon its ratification (Sec. 16, Article XVII, 1973
Constitution). The fact that Section 2 of the same Article XVIII secures to the members of Congress
membership in the interim National Assembly as long as they opt to serve therein within thirty (30)
days after the ratification of the proposed Constitution, affords them little comfort; because the
convening of the interim National Assembly depends upon the incumbent President (under Sec. 3[1],
Art. XVII, 1973 Constitution). Under the foregoing circumstances, the members of Congress, who
were elected under the 1935 Constitution, would not be disposed to call a plebiscite and appropriate
funds therefor to enable the people to pass upon the 1973 Constitution, ratification of which means
their elimination from the political scene. They will not provide the means for their own liquidation.
Because the Constitutional Convention, by necessary implication as it is indispensable to its

independence and effectiveness, possesses the power to call a plebiscite and to appropriate funds
for the purpose, it inescapably must have the power to delegate the same to the President, who, in
estimation of the Convention can better determine appropriate time for such a referendum as well as
the amount necessary to effect the same; for which reason the Convention thru Resolution No. 29
approved on November 22, 1972, which superseded Resolution No. 5843 adopted on November 16,
1972, proposed to the President "that a decree be issued calling a plebiscite for the ratification of the
proposed new Constitution such appropriate date as he shall determine and providing for the
necessary funds therefor, ...," after stating in "whereas" clauses that the 1971 Constitutional
Convention expected to complete its work by the end of November, 1972 that the urgency of
instituting reforms rendered imperative the early approval of the new Constitution, and that the
national and local leaders desire that there be continuity in the immediate transition from the old to
the new Constitution.
If Congress can legally delegate to the Chief Executive or his subaltern the power to promulgate
subordinate rules and regulations to implement the law, this authority to delegate implementing rules
should not be denied to the Constitutional Convention, a co-equal body.
Apart from the delegation to the Chief Executive of the power to call a plebiscite and to appropriate
funds therefor by the Constitutional Convention thru its Resolution No. 29, the organization of the
Citizens' Assemblies for consultation on national issues, is comprehended within the ordinance-
making power of the President under Section 63 of the Revised Administrative Code, which
expressly confers on the Chief Executive the power to promulgate administrative acts and
commands touching on the organization or mode of operation of the government or re-arranging or
re-adjusting any district, division or part of the Philippines "or disposing of issues of general
concern ... ." (Emphasis supplied). Hence, as consultative bodies representing the localities
including the barrios, their creation by the President thru Presidential Decree No. 86 of December
31, 1972, cannot be successfully challenged.
The employment by the President of these Citizens' Assemblies for consultation on the 1973
Constitution or on whether there was further need of a plebiscite thereon, — both issues of national
concern — is still within the delegated authority reposed in him by the Constitutional Convention as
aforesaid.
It should be noted that Resolution No. 29, which superseded Resolution No. 5843, does not
prescribe that the plebiscite must be conducted by the Commission on Elections in accordance with
the provisions of the 1971 Revised Election Code. If that were the intention of the Constitutional
Convention in making the delegation, it could have easily included the necessary phrase for the
purpose, some such phrase like "to call a plebiscite to be supervised by the Commission on
Elections in accordance with the provisions of the 1971 Revised Election Code (or with existing
laws)." That the Constitutional Convention omitted such phrase, can only mean that it left to the
President the determination of the manner by which the plebiscite should be conducted, who shall
supervise the plebiscite, and who can participate in the plebiscite. The fact that said Resolution No.
29 expressly states "that copies of this resolution as approved in plenary session be transmitted to
the President of the Philippines and the Commission on Elections for implementation," did not in
effect designate the Commission on Elections as supervisor of the plebiscite. The copies of said
resolution that were transmitted to the Commission on Elections at best serve merely to notify the
Commission on Elections about said resolution, but not to direct said body to supervise the
plebiscite. The calling as well as conduct of the plebiscite was left to the discretion of the President,
who, because he is in possession of all the facts funnelled to him by his intelligence services, was in
the superior position to decide when the plebiscite shall be held, how it shall be conducted and who
shall oversee it.
It should be noted that in approving said Resolution No. 29, the Constitutional Convention itself
recognized the validity of, or validated Presidential Proclamation No. 1081 placing the entire country
under martial law by resolving to "propose to President Ferdinand E. Marcos that a decree be issued
calling a plebiscite ... ." The use of the term "decree" is significant for the basic orders regulating the
conduct of all inhabitants are issued in that form and nomenclature by the President as the
Commander in Chief and enforcer of martial law. Consequently, the issuance by the President of
Presidential Decree No. 73 on December 1, 1972 setting the plebiscite on January 15, 1973 and
appropriating funds therefor pursuant to said Resolution No. 29, is a valid exercise of such delegated
authority.
Such delegation, unlike the delegation by Congress of the rule-making power to the Chief Executive
or to any of his subalterns, does not need sufficient standards to circumscribe the exercise of the
power delegated, and is beyond the competence of this Court to nullify. But even if adequate criteria
should be required, the same are contained in the "Whereas" clauses of the Constitutional
Convention Resolution No. 29, thus:
WHEREAS, the 1971 Constitutional Convention is expected to complete its work of

drafting a proposed new Constitution for the Republic by the end of November, 1972;
WHEREAS, in view of the urgency of instituting reforms, the early approval of the
New Constitution has become imperative;
WHEREAS, it is the desire of the national and local leaders that there be continuity in
the immediate political transition from the old to the New Constitution;" (Annex "1" of
Answer, Res. No. 29, Constitutional Convention).
As Mr. Justice Fernando, with whom Messrs. Justices Barredo, Antonio and the writer concurred in
the Plebiscite Cases, stated:
... Once this work of drafting has been completed, it could itself direct the submission
to the people for ratification as contemplated in Article XV of the Constitution. Here it
did not do so. With Congress not being in session, could the President, by the decree
under question, call for such a plebiscite? Under such circumstances, a negative
answer certainly could result in the work of the Convention being rendered nugatory.
The view has been repeatedly expressed in many American state court decisions
that to avoid such undesirable consequence the task of submission becomes
ministerial, with the political branches devoid of any discretion as to the holding of an
election for that purpose. Nor is the appropriation by him of the amount necessary to
be considered as offensive to the Constitution. If it were done by him in his capacity
as President, such an objection would indeed have been formidable, not to say
insurmountable. If the appropriation were made in his capacity as agent of the
Convention to assure that there be submission to the people, then such an argument
loses force. The Convention itself could have done so. It is understandable why it
should be thus. If it were otherwise, then a legislative body, the appropriating arm of
the government, could conceivably make use of such authority to compel the
Convention to submit to its wishes, on pain of being rendered financially distraught.
The President then, if performing his role as its agent, could be held as not devoid of
such competence. (pp. 2-3, concurring opinion of J. Fernando in L-35925, etc.,
emphasis supplied).
IV
VAGUENESS OR AMBIGUITY DOES NOT INVALIDATE THE

1973 CONSTITUTION
(1) Petitions challenge the 1973 draft as vague and incomplete, and alluded to their arguments
during the hearings on December 18 and 19, 1972 on the Plebiscite Cases. But the inclusion of
questionable or ambiguous provisions does not affect the validity of the ratification or adoption of the
1973 Constitution itself (Pope vs. Gray, 104 SO, 2d 841; 7th Dec. pp. 212-219, 1956-1966).
Alexander Hamilton, one of the leading founders and defenders of the American Constitution,
answering the critics of the Federal Constitution, stated that: "I never expect to see a perfect work
from imperfect man. The result of the deliberations of all collective bodies must necessarily be a
compound, as well of the errors and prejudices as of the good sense and wisdom, of the individuals
of whom they are composed. The compacts which are to embrace thirteen distinct States in a
common bond of amity and union, must necessarily be a compromise of as many dissimilar interests
and inclinations. How can perfection spring from such materials?" (The Federalist, Modern Library
Ed., pp. xx-xxi).
(2) The 1973 Constitution is likewise impugned on the ground that it contains provisions which
are ultra vires or beyond the power of the Constitutional Convention to propose.
This objection relates to the wisdom of changing the form of government from Presidential to
Parliamentary and including such provisions as Section 3 of Article IV, Section 15 of Article XIV and
Sections 3(2) and 12 of Article XVII in the 1973 Constitution.
Article IV —
Sec. 3. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall not be violated, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined by the judge, or such other
responsible officer as may be authorized by law, after examination under oath or
affirmation of the complainant and the witnesses may produce, and particularly
describing the place to be searched, and the persons or things to be seized.
Article XIV —
Sec. 15. Any provision of paragraph one, Section fourteen, Article Eight and of this
Article notwithstanding, the Prime Minister may enter into international treaties or
agreements as the national welfare and interest may require." (Without the consent
of the National Assembly.)
Article XVII —
Sec. 3(2) All proclamations, orders, decrees, instructions, and acts promulgated,
issued, or done by the incumbent President shall be part of the law of the land, and
shall remain valid, legal, binding and effective even after lifting of martial law or the
ratification of this Constitution, unless modified, revoked, or superseded by
subsequent proclamations, orders, decrees, instructions, or other acts of the
incumbent President, or unless expressly and explicitly modified or repealed by the
regular National Assembly.
xxx xxx xxx
Sec. 12. All treaties, executive agreements, and contracts entered into by the
Government, or any subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations, are hereby recognized as legal, valid
and binding. When the national interest so requires, the incumbent President of the
Philippines or the interim Prime Minister may review all contracts, concessions,
permits, or other forms of privileges for the exploration, development, exploitation, or
utilization of natural resources entered into, granted, issued or acquired before the
ratification of this Constitution.
In the Plebiscite Cases (L-35925, L-35929, L-35940, L-35942, L-35948, L-35953, L-35961, L-35965,
& L-35979), Chief Justice Roberto Concepcion, concurred in by Justices Fernando, Barredo, Antonio
and the writer, overruled this objection, thus:
... Regardless of the wisdom and moral aspects of the contested

provisions of the proposed Constitution, it is my considered view that
the Convention was legally deemed fit to propose — save perhaps
what is or may be insistent with what is now known, particularly in
international law, as Jus Cogens — not only because the Convention
exercised sovereign powers delegated thereto by the people —
although insofar only as the determination of the proposals to be
made and formulated by said body is concerned — but also, because
said proposals cannot be valid as part of our Fundamental Law
unless and until "approved by the majority of the votes cast at an
election which" said proposals "are submitted to the people for their
ratification," as provided in Section 1 of Article XV of the 1935
Constitution. (Pp. 17-18, Decision in L-35925, etc.).
This Court likewise enunciated in Del Rosario vs. Comelec (L-32476, Oct. 20, 1970, 35 SCRA 367)
that the Constitutional Convention has the authority to "entirely overhaul the present Constitution and
propose an entirely new Constitution based on an ideology foreign to the democratic system ...;
because the same will be submitted to the people for ratification. Once ratified by the sovereign
people, there can be no debate about the validity of the new Constitution."
Mr. Justice Fernando, concurring in the same Plebiscite Cases, cited the foregoing pronouncement
in the Del Rosario case, supra, and added: "... it seems to me a sufficient answer that once
convened, the area open for deliberation to a constitutional convention ..., is practically limitless"
(citing Cf. Koehler vs. Hill, 14 NW 738, 60 Iowa 543 [1883]; Hatch Stoneman, 6 P 734, 66 Cal. 632
[1885]; MacMillan v. Blattner, 25 NW 245, 67 Iowa 287 [1895]; State v. Powell, 27 SO 297, 77 Miss.
543 [1900]; Hammond v. Clark, 71 SE 479, 136 Ga. 313 [1911]; Hamilton v. Vaughan, 179 NW 533,
212 Mich. 31 [1920]; State v. Smith, 138 NE 881, 105 Ohio St. 570 [1922]; Looney vs. Leeper, 292 P
365, 145 Okl. 202 [1930]; School District vs. City of Pontiac, 247 NW 474, 262 Mich. 338 [1933]).
Mr. Justice Barredo, in his concurring opinion in said Plebiscite Cases, expressed the view "that
when the people elected the delegates to the Convention and when the delegates themselves were
campaigning, such limitation of the scope of their function and objective was not in their minds."
1973 CONSTITUTION DULY ADOPTED AND

PROMULGATED.
Petitioners next claim that the 1971 Constitutional Convention adjourned on November 30, 1972
without officially promulgating the said Constitution in Filipino as required by Sections 3(1) of Article
XV on General Provisions of the 1973 Constitution. This claim is without merit because their Annex
"M" is the Filipino version of the 1973 Constitution, like the English version, contains the certification
by President Diosdado Macapagal of the Constitutional Convention, duly attested by its Secretary,
that the proposed Constitution, approved on second reading on the 27th day of November, 1972 and
on third reading in the Convention's 291st plenary session on November 29, 1972 and accordingly
signed on November 1972 by the delegates whose signatures are thereunder affixed. It should be
recalled that Constitutional Convention President Diosdado Macapagal was, as President of the
Republic 1962 to 1965, then the titular head of the Liberal Party to which four (4) of the petitioners in
L-36165 including their counsel, former Senator Jovito Salonga, belong. Are they repudiating and
disowning their former party leader and benefactor?
VI
ARTICLE XV OF 1935 CONSTITUTION DOES NOT

PRESCRIBE ANY PROCEDURE FOR RATIFICATION OF
1973 CONSTITUTION.
(1) Article XV of the 1935 Constitution simply provides that "such amendments shall be valid as part
of this Constitution when approved by a majority of the votes cast at an election at which the
amendments are submitted to the people for ratification."
But petitioners construe the aforesaid provision to read: "Such amendments shall be valid as part of
this Constitution when approved by a majority of the votes cast at an election called by Congress at
which the amendments are submitted for ratification by the qualified electors defined in Article V
hereof, supervised by the Commission on Elections in accordance with the existing election law and
after such amendments shall have been published in all the newspapers of general circulation for at
least four months prior to such election."
This position certainly imposes limitation on the sovereign people, who have the sole power of
ratification, which imposition by the Court is never justified (Wheeler vs. Board of Trustees, supra).
In effect, petitioners and their counsels are amending by a strained and tortured construction Article
XV of the 1935 Constitution. This is a clear case of usurpation of sovereign power they do not
possess — through some kind of escamotage. This Court should not commit such a grave error in
the guise of judicial interpretation.
In all the cases where the court held that illegal or irregular submission, due to absence of
substantial compliance with the procedure prescribed by the Constitution and/or the law, nullifies the
proposed amendment or the new Constitution, the procedure prescribed by the state Constitution is
so detailed that it specifies that the submission should be at a general or special election, or at the
election for members of the State legislature only or of all state officials only or of local officials only,
or of both state and local officials; fixes the date of the election or plebiscite limits the submission to
only electors or qualified electors; prescribes the publication of the proposed amendment or a new
Constitution for a specific period prior to the election or plebiscite; and designates the officer to
conduct the plebiscite, to canvass and to certify the results, including the form of the ballot which
should so state the substance of the proposed amendments to enable the voter to vote on each
amendment separately or authorizes expressly the Constitutional Convention or the legislature to
determine the procedure or certain details thereof. See the State Constitutions of Alabama [1901];
Arizona [1912]; Arkansas [1874]; Colorado [1976]; Connecticut [1818]; Florida [1887]; Georgia
[1945]; Illinois [1970]; Indiana [1851]; Iowa [1857]; Kansas [1861]; Kentucky [1891]; Louisiana
[1921]; Maryland [1867]; Massachusetts [1790]; Michigan [1909]; Minnesota [1857]; Mississippi
[1890]; and Missouri [1945]).
As typical examples:
Constitution of Alabama (1901):
Article XVIII. Mode of Amending the Constitution

Sec. 284. Legislative Proposals. Amendments may be proposed to this Constitution
by the legislature in the manner following: The proposed amendments shall be read
in the house in which they originate on three several days, and, if upon the third
reading, three-fifths of all the members elected to that house shall vote in favor
thereof, the proposed amendments shall be sent to the other house, in which they
shall likewise be read on three several days, and if upon the third reading, three-fifths
of all the members elected that house shall vote in favor of the proposed
amendments, the legislature shall order an election by the qualified electors of the
state upon such proposed amendments, to be held either at the general election next
succeeding the session of the legislature at which the amendments are proposed or
upon another day appointed by the legislature, not less than three months after the
final adjournment of the session of the legislature at which the amendments were
proposed. Notice of such election, together with the proposed amendments, shall be
given by proclamation of the governor, which shall be published in every county in
such manner as the legislature shall direct, for at least eight successive weeks next
preceding the day appointed for such election. On the day so appointed an election
shall be held for the vote of the qualified electors of the state upon the proposed
amendments. If such election be held on the day of the general election, the officers
of such general election shall open a poll for the vote of the qualified electors upon
the proposed amendments; if it be held on a day other than that of a general election,
officers for such election shall be appointed; and the election shall be held in all
things in accordance with the law governing general elections. In all elections upon
such proposed amendments, the votes cast thereat shall be canvassed, tabulated,
and returns thereof be made to the secretary of state, and counted, in the same
manner as in elections for representatives to the legislature; and if it shall thereupon
appear that a majority of the qualified electors who voted at such election upon the
proposed amendments voted in favor of the same, such amendments shall be valid
to all intents and purposes as parts of this Constitution. The result of such election
shall be made known by proclamation of the governor. Representation in the
legislature shall be based upon population, and such basis of representation shall not
be changed by constitutional amendments.
Sec. 285. Form of ballot for amendment. Upon the ballots used at all elections
provided for in section 284 of this Constitution, the substance or subject matter of
each proposed amendment shall be so printed that the nature thereof shall be clearly
indicated. Following each proposed amendment on the ballot shall be printed the
word "Yes" and immediately under that shall be printed the word "No". The choice of
the elector shall be indicated by a cross mark made by him or under his direction,
opposite the word expressing his desire, and no amendment shall be adopted unless
it receives the affirmative vote of a majority of all the qualified electors who vote at
such election.
Constitution of Arkansas (1874):
Article XIX. Miscellaneous Provisions.
Sec. 22. Constitutional amendments. Either branch of the General Assembly at a

regular session thereof may propose amendments to this Constitution, and, if the
same be agreed to by a majority of all the members, elected to each house, such
proposed amendments shall be entered on the journal with the yeas and nays, and
published in at least one newspaper in each county, where a newspaper is
published, for six months immediately preceding the next general election for
Senators and Representatives, at which time the same shall be submitted to the
electors of the State for approval or rejection, and if a majority of the electors voting
at such election adopt such amendments, the same shall become a part of this
Constitution; but no more than three amendments shall be proposed or submitted at
the same time. They shall be so submitted as to enable the electors to vote on each
amendment separately.
Constitution of Kansas (1861):
Article XIV. Amendments.
Sec. 1. Proposal of amendments; publications; elections. Propositions for the

amendment of this constitution may be made by either branch of the legislature; and
if two thirds of all the members elected to each house shall concur therein, such
proposed amendments, together with the yeas and nays, shall be entered on the
journal; and the secretary of state shall cause the same to be published in at least
one newspaper in each county of the state where a newspaper is published, for three
months preceding the next election for representatives, at which time, the same shall
be submitted to the electors, for their approval or rejection; and if a majority of the
electors voting on said amendments, at said election, shall adopt the amendments,
the same shall become a part of the constitution. When more than one amendment
shall be submitted at the same time, they shall be so submitted as to enable the
electors to vote on each amendments separately; and not more than three
propositions to amend shall be submitted at the same election.
Constitution of Maryland (1867):
Article XIV. Amendments to the Constitution.
Sec. 1. Proposal in general assembly; publication; submission to voters; governor's

proclamation. The General Assembly may propose Amendments to this Constitution;
provided that each Amendment shall be embraced in a separate bill, embodying the
Article or Section, as the same will stand when amended and passed by three fifths
of all the members elected to each of the two Houses, by yeas and nays, to be
entered on the Journals with the proposed Amendment. The bill or bills proposing
amendment or amendments shall be published by order of the Governor, in at least
two newspapers, in each County, where so many may be published, and where not
more than one may be published, then in the newspaper, and in three newspapers
published in the City of Baltimore, once a week for four weeks immediately preceding
the next ensuing general election, at which the proposed amendment or
amendments shall be submitted, in a form to be prescribed by the General
Assembly, to the qualified voters of the State for adoption or rejection. The votes cast
for and against said proposed amendment or amendments, severally, shall be
returned to the Governor, in the manner prescribed in other cases, and if it shall
appear to the Governor that a majority of the votes cast at said election on said
amendment or amendments, severally, were cast in favor thereof, the Governor
shall, by his proclamation, declare the said amendment or amendments having
received said majority of votes, to have been adopted by the people of Maryland as
part of the Constitution thereof, and henceforth said amendment or amendments
shall be part of the said Constitution. When two or more amendments shall be
submitted in the manner aforesaid, to the voters of this State at the same election,
they shall be so submitted as that each amendment shall be voted on separately.
Constitution of Missouri (1945):
Article XII. Amending the Constitution.
Sec. 2(b). Submission of amendments proposed by general assembly or by the

initiative. All amendments proposed by the general assembly or by the initiative shall
be submitted to the electors for their approval or rejection by official ballot title as
may be provided by law, on a separate ballot without party designation, at the next
general election, or at a special election called by the governor prior thereto, at which
he may submit any of the amendments. No such proposed amendment shall contain
more than one amended and revised article of this constitution, or one new article
which shall not contain more than one subject and matters properly connected
therewith. If possible, each proposed amendment shall be published once a week for
two consecutive weeks in two newspapers of different political faith in each county,
the last publication to be not more than thirty nor less than fifteen days next
preceding the election. If there be but one newspaper in any county, publication of
four consecutive weeks shall be made. If a majority of the votes cast thereon is in
favor of any amendment, the same shall take effect at the end of thirty days after the
election. More than one amendment at the same election shall be so submitted as to
enable the electors to vote on each amendment separately.
Article XV of the 1935 Constitution does not require a specific procedure, much less a detailed
procedure for submission or ratification. As heretofore stated, it does not specify what kind of
election at which the new Constitution shall be submitted; nor does it designate the Commission on
Elections to supervise the plebiscite. Neither does it limit the ratification to the qualified electors as
defined in Article V of the 1935 Constitution. Much less does it require the publication of the
proposed Constitution for any specific period before the plebiscite nor does it even insinuate that the
plebiscite should be supervised in accordance with the existing election law.
(2) As aforequoted, Article XV does not indicate the procedure for submission of the proposed
Constitution to the people for ratification. It does not make any reference to the Commission on
Elections as the body that shall supervise the plebiscite. And Article XV could not make any
reference to the Commission on Elections because the original 1935 Constitution as ratified on May
14, 1935 by the people did not contain Article X on the Commission on Elections, which article was
included therein pursuant to an amendment by that National Assembly proposed only about five (5)
years later — on April 11, 1940, ratified by the people on June 18, 1940 as approved by the
President of the United States on December 1940 (see Sumulong vs. Commission, 70 Phil. 703,
713, 715; Gonzales, Phil. Const. Law, 1966 ed., p. 13). So it cannot be said that the original framers
of the 1935 Constitution as ratified May 14, 1935 intended that a body known as the Commission on
Elections should be the one to supervise the plebiscite, because the Commission on Elections was
not in existence then as was created only by Commonwealth Act No. 607 approved on August 22,
1940 and amended by Commonwealth Act No. 657 approved on June 21, 1941 (see Tañada &
Carreon, Political Law of the Philippines, Vol. I, 1961 ed., pp. 475-476; Sumulong vs. Commission,
170 Phil. 703, 708-715; 73 Phil. 288, 290-300; Tañada & Fernando, Constitution of the Philippines,
1953 ed., Vol. I, p. 5, Vol. II,
pp. 11-19).
Because before August, 1940 the Commission on Election was not yet in existence, the former
Department of Interior (now Department of Local Governments and Community Development)
supervised the plebiscites on the 1937 amendment on woman's suffrage, the 1939 amendment to
the Ordinance appended to the 1935 Constitution (Tydings-Kocialkowski Act of the U.S. Congress)
and the three 1940 amendments on the establishment of a bicameral Congress, the re-election of
the President and the Vice-President, and the creation of the Commission on Elections (ratified on
June 18, 1940). The supervision of said plebiscites by the then Department of Interior was not
automatic, but by virtue of an express authorization in Commonwealth Act Nos. 34, 49 and 517.
If the National Assembly then intended that the Commission on Elections should also supervise the
plebiscite for ratification of constitutional amendments or revision, it should have likewise proposed
the corresponding amendment to Article XV by providing therein that the plebiscite on amendments
shall be supervised by the Commission on Elections.
3) If the framers of the 1935 Constitution and the people in ratifying the same on May 14, 1935
wanted that only the qualified voters under Article V of the 1935 Constitution should participate in the
referendum on any amendment or revision thereof, they could have provided the same in 1935 or in
the 1940 amendment by just adding a few words to Article XV by changing the last phrase to
"submitted for ratification to the qualified electors as defined in Article V hereof," or some such
similar phrases.
Then again, the term "people" in Article XV cannot be understood to exclusively refer to the qualified
electors under Article V of the 1935 Constitution because the said term "people" as used in several
provisions of the 1935 Constitution, does not have a uniform meaning. Thus in the preamble, the
term "Filipino people" refer, to all Filipino citizens of all ages of both sexes. In Section 1 of Article II
on the Declaration of Principles, the term "people" in whom sovereignty resides and from whom all
government authority emanates, can only refer also to Filipino citizens of all ages and of both sexes.
But in Section 5 of the same Article II on social justice, the term "people" comprehends not only
Filipino citizens but also all aliens residing in the country of all ages and of both sexes. Likewise, that
is the same connotation of the term "people" employed in Section 1(3) of Article III on the Bill of
Rights concerning searches and seizures.
When the 1935 Constitution wants to limit action or the exercise of a right to the electorate, it does
so expressly as the case of the election of senators and congressmen. Section 2 Article VI expressly
provides that the senators "shall be chosen at large by the qualified electors of the Philippines as
may provided by law." Section 5 of the same Article VI specifically provides that congressmen shall
"be elected by the qualified electors." The only provision that seems to sustain the theory of
petitioners that the term "people" in Article XV should refer to the qualified electors as defined in
Article V of the 1935 Constitution is the provision that the President and Vice-President shall be
elected "by direct vote of the people." (Sec. 2 of Art. VII of the 1935 Constitution). But this alone
cannot be conclusive as to such construction, because of explicit provisions of Sections 2 and 5 of
Article VI, which specifically prescribes that the senators and congressmen shall be elected by the
qualified electors.
As aforesaid, most of the constitutions of the various states of the United States, specifically
delineate in detail procedure of ratification of amendments to or revision of said Constitutions and
expressly require ratification by qualified electors, not by the generic term "people".
The proposal submitted to the Ozamis Committee on the Amending Process of the 1934-35
Constitutional Convention satisfied that the amendment shall be submitted to qualified election for
ratification. This proposal was not accepted indicating that the 1934-35 Constitutional Convention
did intend to limit the term "people" in Article XV of the 1935 Constitution to qualified electors only.
As above demonstrated, the 1934-35 Constitutional Convention limits the use of the term "qualified
electors" to elections of public officials. It did not want to tie the hands of succeeding future
constitutional conventions as to who should ratify the proposed amendment or revision.
(4) It is not exactly correct to opine that Article XV of 1935 Constitution on constitutional amendment
contemplates the automatic applicability of election laws to plebiscites on proposed constitutional
amendments or revision.
The very phraseology of the specific laws enacted by the National Assembly and later by Congress,
indicates that there is need of a statute expressly authorizing the application of the election laws to
plebiscites of this nature. Thus, Com. Act No. 34 on the woman's suffrage amendment enacted on
September 30, 1936, consists of 12 sections and, aside from providing that "there shall be held
a plebiscite on Friday, April 30, 1937, on the question of woman's suffrage ... and that said
amendment shall be published in the Official Gazette in English and Spanish for three consecutive
issues at least fifteen (15) days prior to said election, ... and shall be posted in a conspicuous place
in its municipal and provincial office building and in its polling place not later than April 22, 1937"
(Sec. 12, Com. Act No. 34), specifies that the provisions of the Election Law regarding, the holding
of a special election, insofar as said provisions are not in conflict with it, should apply to the said
plebiscite (Sec. 3, Com. Act No. 34)1; and, that the votes cast according to the returns of the board
of inspectors shall be counted by the National Assembly (Sec. 10, Com. Act No. 34).
The election laws then in force before 1938 were found in Sections 392-483 of the Revised
Administrative Code.
Sec. 1 of Com. Act No. 357, the previous Election Code enacted on August 22, 1938, makes it
expressly applicable to plebiscites. Yet the subsequent laws, namely, Com. Act Nos. 492 and 517
and Rep. Act No. 73 calling for the plebiscite on the constitutional amendments in 1939, 1940 and
1946, including the amendment creating the Commission on Elections, specifically provided that the
provisions of the existing election law shall apply to such plebiscites insofar as they are not
inconsistent with the aforesaid Com. Act Nos. 492 and 517, as well as Rep. Act No. 73. Thus —
Commonwealth Act No. 492, enacted on September 19, 1939, calling for a plebiscite on the
proposed amendments to the Constitution adopted by the National Assembly on September 15,
1939, consists of 8 sections and provides that the proposed amendments to the Constitution
adopted in Resolution No. 39 on September 15, 1939 "shall be submitted to the Filipino people for
approval or disapproval at a general election to be held throughout the Philippines on Tuesday,
October 24, 1939"; that the amendments to said Constitution proposed in "Res. No. 38, adopted on
the same date, shall be submitted at following election of local officials," (Sec. 1, Com. Act No. 492)
that the said amendments shall be published in English and Spanish in three consecutive issues of
the Official Gazette at least ten (10) days prior to the elections; that copies thereof shall be posted
not later than October 20, 1939 (Sec. 2, Com. Act 492); that the election shall be
conducted according to provisions of the Election Code insofar as the same may be applicable; that
within thirty (30) days after the election, Speaker of the National Assembly shall request the
President to call a special session of the Assembly for the purpose of canvassing the returns and
certify the results thereof (Sec. 6, Com. Act No. 492).
Commonwealth Act No. 517, consisting of 11 sections, was approved on April 25, 1940 and
provided, among others: that the plebiscite on the constitutional amendments providing bicameral
Congress, re-election of the President and Vice-President, and the creation of a Commission on
Elections shall be held at a general election on June 18, 1940 (Sec. 1); that said amendments shall
be published in three consecutive issues of the Official Gazette in English and Spanish at least 20
days prior to the election and posted in every local government office building and polling place not
later than May 18, 1940 (Sec. 2); that the election shall be conducted in conformity with the Election
Code insofar as the same may be applicable (Sec. 3) that copies of the returns shall be forwarded to
the Secretary of National Assembly and the Secretary of Interior (Sec. 7); that the National Assembly
shall canvass the returns to certify the results at a special session to be called by President (Sec. 8).
Republic Act No. 73 approved on October 21, 1946 calling for a plebiscite on the parity amendment
consists of 8 sections provides that the Amendment "shall be submitted to the people, for approval
or disapproval, at a general election which shall be held on March 11, 1947, in accordance with the
provisions of this Act" (Sec. 1, R.A. No. 73); that the said amendment shall be published in English
and Spanish in three consecutive issues of the Official Gazette at least 20 days prior to the election;
that copies of the same shall be posted in a conspicuous place and in every polling place not later
than February 11, 1947 (Section 2, R.A. No. 73); that the provisions of Com. Act No. 357 (Election
Code) and Com. Act No. 657 creating the Commission on Elections, shall apply to the election
insofar as they are not inconsistent with this Act (Sec. 3, R.A. No. 73); and that within 30 days after
the election, the Senate and House of Representatives shall hold a joint session to canvass the
returns and certify the results thereof (Section 6, R.A. No. 73).
From the foregoing provisions, it is patent that Article XV of the 1935 Constitution does not
contemplate nor envision the automatic application of the election law; and even at that, not all the
provisions of the election law were made applicable because the various laws aforecited contain
several provisions which are inconsistent with the provisions of the Revised Election Code (Com. Act
No. 357). Moreover, it should be noted that the period for the publication of the copies of the
proposed amendments was about 10 days, 15 days or 20 days, and for posting at least 4 days, 8
days or 30 days.
Republic Acts Nos. 180 and 6388 likewise expressly provide that the Election Code shall apply to
plebiscites (See. 2, R.A. No. 180, as amended, and Section 2, Rep. Act No. 6388).
If the Election Code ipso facto applies to plebiscites under Article XV of the 1935 Constitution, there
would be no need for Congress to expressly provide therefor in the election laws enacted after the
inauguration of the Commonwealth government under the 1935 Constitution.
(5) Article XV of the 1935 Constitution does not specify who can vote and how they shall vote. Unlike
the various State Constitutions of the American Union (with few exceptions), Article XV does not
state that only qualified electors can vote in the plebiscite. As above-intimated, most of the
Constitutions of the various states of the United States provide for very detailed amending process
and specify that only qualified electors can vote at such plebiscite or election.
Congress itself, in enacting Republic Act No. 3590, otherwise known as the Barrio Charter, which
was approved on June 17, 1967 and superseded Republic Act No. 2370, expanded the membership
of the barrio assembly to include citizens who are at least 18 years of age, whether literate or not,
provided they are also residents of the barrio for at least 6 months (Sec. 4, R.A. No. 3590).
Sec. 4. The barrio assembly. — The barrio assembly shall consist of all persons who
are residents of the barrio for at least six months, eighteen years of age or over,
citizens of the Republic of the Philippines and who are duly registered in the list of
barrio assembly members kept by the Barrio Secretary.
The barrio assembly shall meet at least once a year to hear the annual report of the
barrio council concerning the activities and finances of the barrio.
It shall meet also at the case of the barrio council or upon written petition of at least
One-Tenth of the members of the barrio assembly.
No meeting of the barrio assembly shall take place unless notice is given one week
prior to the meeting except in matters involving public safety or security in which case
notice within a reasonable time shall be sufficient. The barrio captain, or in his
absence, the councilman acting as barrio captain, or any assembly member selected
during the meeting, shall act as presiding officer at all meetings of the barrio
assembly. The barrio secretary or in his absence, any member designated by the
presiding officer to act as secretary shall discharge the duties of secretary of the
barrio assembly.
For the purpose of conducting business and taking any official action in the barrio
assembly, it is necessary that at least one-fifth of the members of the barrio
assembly be present to constitute a quorum. All actions shall require a majority vote
of these present at the meeting there being a quorum.
Sec. 5. Powers of the barrio assembly. — The powers of the barrio assembly shall
be as follows:
a. To recommend to the barrio council the adoption of measures for

the welfare of the barrio;
b. To decide on the holding of a plebiscite as provided for in Section

6 of this Act;
c. To act on budgetary and supplemental appropriations and special

tax ordinances submitted for its approval by the barrio council; and
d. To hear the annual report council concerning the activities and

finances of the assembly.
Sec. 6. Plebiscite. — A plebiscite may be held in the barrio when authorized by a

majority vote of the members present in the barrio assembly, there being a quorum,
or when called by at least four members of the barrio council; Provided, however,
That no plebiscite shall be held until after thirty days from its approval by either body,
and such plebiscite has been given the widest publicity in the barrio, stating the date,
time, and place thereof, the questions or issues to be decided, action to be taken by
the voters, and such other information relevant to the holding of the plebiscite.
All duly registered barrio assembly members qualified to vote may vote in the
plebiscite. Voting procedures may be made either in writing as in regular election,
and/or declaration by the voters to the board of election tellers. The board of election
tellers shall be the same board envisioned by section 8, paragraph 2 of this Act, in
case of vacancies in this body, the barrio council may fill the same.
A plebiscite may be called to decide on the recall of any member of the barrio
council. A plebiscite shall be called to approve any budgetary, supplemental
appropriations or special tax ordinances.
For taking action on any of the above enumerated measures, majority vote of all the
barrio assembly members registered in the list of barrio secretary is necessary.
xxx xxx xxx
Sec 10. Qualifications of voters and candidates. — Every citizen of the Philippines,
twenty-one years of age or over, able to read and write, who has been a resident of
the barrio during the six months immediately preceding the election, duly registered
in the list of voters kept by the barrio secretary, who is not otherwise
disqualified, may vote or be a candidate in the barrio elections.
The following persons shall not be qualified to vote:
a. Any person who has been sentenced by final judgment to suffer

one year or more of imprisonment, within two years after service of
his sentence;
b. Any person who has violated his allegiance to the Republic of the
Philippines; and
c. Insane or feeble-minded persons.
All these barrio assembly members, who are at least 18 years of age, although illiterate, may vote at
the plebiscite on the recall of any member of the barrio council or on a budgetary, supplemental
appropriation, or special ordinances, a valid action on which requires "a majority vote of all of the
barrio assembly members registered in the list of the barrio secretary" (par. 5, Sec. 6, R.A. No.
3590). Such plebiscite may be authorized by a majority vote of the members present in the barrio
assembly, there being a quorum (par. 1, Sec. 6).
However, in the case of election of barrio officials, only Filipino citizens, who are at least 21 years of
age, able to read and write, residents of the barrio during the 6 months immediately preceding the
election and duly registered in the list of voters kept by the barrio secretary, not otherwise
disqualified, may vote (Sec. 10, R.A. No. 3590).
Paragraph 2 of Section 6 likewise authorizes open voting as it provides that "voting procedures may
be made ... either in writing as in regular elections, and/or declaration by the voters to the board of
election tellers."
That said paragraph 2 of Section 6 provides that "all duly registered barrio assembly members
qualified to vote may vote in the plebiscite," cannot sustain the position of petitioners in G.R. No. L-
36165 that only those who are 21 years of age and above and who possess all other qualifications of
a voter under Section 10 of R.A. No. 3590, can vote on the plebiscites referred to in Section 6;
because paragraph 3 of Section 6 does not expressly limit the voting to those with the qualifications
under Section 10 as said Section 6 does not distinguish between those who are 21 or above on the
one hand and those 18 or above but below 21 on the other, and whether literate or not, to constitute
a quorum of the barrio assembly.
Consequently, on questions submitted for plebiscite, all the registered members of the barrio
assembly can vote as long as they are 18 years of age or above; and that only those who are 21
years of age or over and can read and write, can vote in the elections of barrio officials.
Otherwise there was no sense in extending membership in the barrio assembly to those who are at
least 18 years of age, whether literate or not. Republic Act No. 3590 could simply have restated
Section 4 of Republic Act No. 2370, the old Barrio Charter, which provided that only those who are
21 and above can be members of the barrio assembly.
Counsels Salonga and Tañada as well as all the petitioners in L-36165 and two of the petitioners in
L-36164 participated in the enactment of Republic Act No. 3590 and should have known the
intendment of Congress in expanding the membership of the barrio assembly to include all those 18
years of age and above, whether literate or not.
If Congress in the exercise of its ordinary legislative power, not as a constituent assembly, can
include 18-year olds as qualified electors for barrio plebiscites, this prerogative can also be
exercised by the Chief Executive as delegate of the Constitutional Convention in regard to the
plebiscite on the 1973 Constitution.
As heretofore stated, the statement by the President in Presidential Proclamation No. 1102 that the
1973 Constitution was overwhelmingly ratified by the people through the Citizens' Assemblies in a
referendum conducted from January 10 to 15, 1973, should be accorded the presumption of
correctness; because the same was based on the certification by the Secretary of the Department of
Local Government and Community Development who tabulated the results of the referendum all
over the country. The accuracy of such tabulation and certification by the said Department Secretary
should likewise be presumed; because it was done in the regular performance of his official
functions aside from the fact that the act of the Department Secretary, as an alter ego of the
President, is presumptively the act of the President himself unless the latter disapproves or
reprobates the same (Villena vs. Secretary of Interior, 67 Phil. 451 ). The truth of the certification by
the Department Secretary and the Chief Executive on the results of the referendum, is further
strengthened by the affidavits and certifications of Governor Isidro Rodriguez of Rizal, Mayor
Norberto S. Amoranto of Quezon City and Councilor Eduardo T. Parades of Quezon City.
The procedure for the ratification of the 1937 amendment on woman suffrage, the 1939 amendment
to the ordinance appended to the 1935 Constitution, the 1940 amendments establishing the
bicameral Congress, creating the Commission on Elections and providing for two consecutive terms
for the President, and the 1947 parity amendment, cannot be invoked; because those amendments
were proposed by the National Assembly as expressly authorized by Article V of the 1935
Constitution respecting woman suffrage and as a constituent assembly in all the other amendments
aforementioned and therefore as such, Congress had also the authority to prescribe the procedure
for the submission of the proposed amendments to the 1935 Constitution.
In the cases at bar, the 1973 Constitution was proposed by an independent Constitutional
Convention, which as heretofore discussed, has the equal power to prescribe the modality for the
submission of the 1973 Constitution to the people for ratification or delegate the same to the
President of the Republic.
The certification of Governor Isidro Rodriguez of Rizal and Mayor Norberto Amoranto could be
utilized as the basis for the extrapolation of the Citizens' Assemblies in all the other provinces, cities
and municipalities in all the other provinces, cities and municipalities, and the affirmative votes in the
Citizens' Assemblies resulting from such extrapolation would still constitute a majority of the total
votes cast in favor of the 1973 Constitution.
As claimed by petitioners in L-36165, against the certification of the Department of Local

Government and Community Development that in Rizal there were 1,126,000 Yes votes and
100,310 No votes, the certification of Governor Isidro Rodriguez of Rizal, shows only 614,157 Yes
votes against 292,530 No votes. In Cavite province, there were 249,882 Yes votes against 12,269
No votes as disclosed in Annex 1-A of respondents' Compliance (the certification by the Department
of Local Government and Community Development), while the alleged certification of Governor Lino
Bocalan of Cavite shows only 126,163 Yes votes and 5,577 No votes. If such a ratio is extended by
way of extrapolation to the other provinces, cities and towns of the country, the result would still be
an overwhelming vote in favor of the 1973 Constitution.
The alleged certification by Governor Lino Bocalan of Cavite, is not true; because in his duly
acknowledged certification dated March 16, 1973, he states that since the declaration of martial law
and up to the present time, he has been under house arrest in his residence in Urdaneta Village,
Makati, Rizal; that he never participated in the conduct of the Citizens' Assemblies on January 10 15,
1973 in the province of Cavite; that the acting chairman and coordinator of the Citizens' Assemblies
at that time was Vice-Governor Dominador Camerino; and that he was shown a letter for his
signature during the conduct of the Citizens' Assemblies, which he did not sign but which he referred
to Vice-Governor Camerino (Annex 1-Rejoinder of the Sol. Gen. dated March 20, 1973).
Mayor Pablo Cuneta likewise executed an affidavit dated March 16, 1973 stating that on January 15,
1973, he caused the preparation of a letter addressed to Secretary Jose Roño of the Department of
Local Government and Community Development showing the results of the referendum in Pasay
City; that on the same day, there were still in any Citizens' Assemblies holding referendum in Pasay
City, for which reason he did not send the aforesaid letter pending submittal of the other results from
the said Citizens' Assemblies; and that in the afternoon of January 15, 1973, he indorsed the
complete certificate of results on the referendum in Pasay City to the Office of the President (Annex
5-Rejoinder of Sol. Gen. dated March 20, 1973).
Pablo F. Samonte, Assistant City Treasurer and Officer in Charge of Pasay City also issued an
affidavit dated March 15, 1973 stating that a certain Atty. Delia Sutton of the Salonga Law Office
asked him for the results of the referendum; that he informed her that he had in his possession
unsigned copies of such results which may not be considered official as they had then no knowledge
whether the original thereof had been signed by the mayor; and that in spite of his advice that said
unsigned copies were not official, she requested him if she could give her the unofficial copies
thereof, which he gave in good faith (Annex C-Rejoinder to the Sol. Gen.).
There were 118,010 Yes votes as against 5,588 No votes in the Citizens' Assemblies of Quezon city
(Annex V to Petitioners' Notes in L-36165). The fact that a certain Mrs. Remedio Gutierrez, wife of
alleged barrio treasurer Faustino Gutierrez, of barrio South Triangle, Quezon City, states that "as far
as we know, there has been no Citizens' Assembly meeting in our Area, particularly in January of
this year," does not necessarily mean that there was no such meeting in said barrio; for she may not
have been notified thereof and as a result she was not able to attend said meeting. Much less can it
be a basis for the claim that there was no meeting at all in the other barrios of Quezon City. The
barrio captain or the secretary of the barrio assembly could have been a credible witness.
Councilor Eduardo T. Paredes, chairman of the Secretariat of Quezon City Ratification and
Coordinating Council, certified on March 12, 1973 that as such chairman he was in charge of the
compilation and tabulation of the results of the referendum among the Citizens' Assemblies in
Quezon City based on the results submitted to the Secretariat by the different Citizens' Assemblies;
but many results of the referendum were submitted direct to the national agencies having to do with
such activity and all of which he has no knowledge, participation and control (Annex 4 Rejoinder of
the Sol. Gen.).
Governor Isidro Rodriguez of Rizal issued a certification dated March 16, 1973 that he prepared a
letter to the President dated January 15, 1973 informing him of the results of the referendum in
Rizal, in compliance with the instruction of the National Secretariat to submit such letter 2 or 3 days
from January 10 to show the trend of voting in the Citizens' Assemblies; that the figures 614,157 and
292,530 mentioned in said letter were based on the certificates of results in his possession as of
January 14, 1973, which results were made the basis of the computation of the percentage of voting
trend in the province; that his letter was never intended to show the final or complete result in the
referendum in the province as said referendum was then still going on from January 14-17, 1973, for
which reason the said letter merely stated that it was only a "summary result"; and that after January
15, 1973, he sent to the National Secretariat all the certificates of results in 26 municipalities of Rizal
for final tabulation (Annex 3-Rejoinder of the Sol. Gen.; emphasis supplied).
Lydia M. Encarnacion, acting chief of the Records Section, Department of Local Government and
Community Development, issued a certificate dated March 16, 1973 that she was shown xerox
copies of unsigned letters allegedly coming from Governor Lino Bocalan dated January 15, 1973
and marked "Rejoinder Annex Cavite" addressed to the President of the Philippines through the
Secretary of the Department of Local Government and Community Development and another
unsigned letter reportedly from Mayor Pablo Cuneta dated January 15, 1973 and marked "Rejoinder
Annex Pasay City" addressed to the Secretary of the Department of Local Government and
Community Development; that both xerox copies of the unsigned letters contain figures showing the
results of the referendum of the Citizens' Assemblies in those areas; and that the said letters were
not received by her office and that her records do not show any such documents received by her
office (Annex 2-Rejoinder of the Sol. Gen.).
Thus it would seem that petitioners in L-36165 have attempted to deceive this Court by representing
said unsigned letters and/or certificates as duly signed and/or containing the complete returns of the
voting in the Citizens' Assemblies.
The observation We made with respect to the discrepancy between the number of Yes votes and No
votes contained in the summary report of Governor Rodriguez of Rizal as well as those contained in
the alleged report of Governor Lino Bocalan of Cavite who repudiated the same as not having been
signed by him for he was then under house arrest, on the one hand, and the number of votes
certified by the Department of Local Government and Community Development, on the other, to the
effect that even assuming the correctness of the figures insisted on by counsel for petitioners in L-
36165, if they were extrapolated and applied to the other provinces and cities of the country, the Yes
votes would still be overwhelmingly greater than the No votes, applies equally to the alleged
discrepancy between the figures contained in the certification of the Secretary of the Department of
Local Government and Community Development and the figures furnished to counsel for petitioners
in L-36165 concerning the referendum in Camarines Sur, Bataan and Negros Occidental.
The fact that the referendum in the municipality of Pasacao, Camarines Sur, shows that there were
more votes in favor of the plebiscite to be held later than those against, only serve to emphasize that
there was freedom of voting among the members of the Citizens' Assemblies all over the country
during the referendum from January 10 to 15, 1973 (Annex-6 Camarines Sur to Rejoinder of
Petitioners in L-36165). If there was no such freedom of choice, those who wanted a plebiscite
would not outnumber those against holding such plebiscite.
The letter of Governor Felix O. Alfelor, Sr. dated January 1973 confirms the "strong manifestation of
approval of the new Constitution by almost 97% by the members of the Citizens' Assemblies in
Camarines Sur" (Annex-Camarines Sur to Rejoinder of Petitioners in L-36165).
The report of Governor Efren B. Pascual of Bataan shows that the members of the Citizens'
Assemblies voted overwhelmingly in favor of the new Constitution despite the fact that the second
set of questions including the question "Do you approve of the new Constitution?" was received only
on January 10. Provincial Governor Pascual stated that "orderly conduct and favorable results of the
referendum" were due not only to the coordinated efforts and cooperation of all teachers and
government employees in the area but also to the enthusiastic participation by the people, showing
"their preference and readiness to accept this new method of government to people consultation in
shaping up government policies." (Annex-Bataan to Rejoinder of Petitioners in L-36165).
As heretofore stated, it is not necessary that voters ratifying the new Constitution are registered in
the book of voters; it is enough that they are electors voting on the new Constitution (Bott vs. Wurts,
40 A 740 [1898]; 43 A 744, 881 [1899]; 45 LRA 251). The fact that the number of actual voters in the
referendum in certain localities may exceed the number of voters actually registered for the 1971
elections, can only mean that the excess represents the qualified voters who are not yet registered
including those who are at least 15 years of age and the illiterates. Although ex-convicts may have
voted also in the referendum, some of them might have been granted absolute pardon or were
sentenced to less than one year imprisonment to qualify them to vote (Sec. 201, 1971 Rev. Election
Code). At any rate, the ex-convicts constitute a negligible number, discounting which would not tilt
the scale in favor of the negative votes.
Similarly, the fact that Mayor Marcial F. Samson of Caloocan City, who belongs to the Liberal Party,
stated in his letter dated March 13, 1973 that he does not "feel authorized by the proper authorities
to confirm or deny the data" concerning the number of participants, the Yes votes and No votes in
the referendum on the new Constitution among the members of the Citizens' Assemblies in
Caloocan City, does not necessarily give rise to the inference that Mayor Samson of Caloocan City
is being intimidated, having been recently released from detention; because in the same letter of
Mayor Samson, he suggested to counsel for petitioners in L-36165 that he can secure "the true and
legitimate results of the referendum" from the Office of the President (Annex Caloocan-B to
Rejoinder of Petitioners in L-36165). Why did not learned and eminent counsel heed such
suggestion?
Counsel for petitioners in L-36165, to sustain their position, relies heavily on the computation of the
estimated turnover in the Citizens' Assemblies referendum on January 10 to 15, 1973 by a certain
Professor Benjamin R. Salonga, of the Mapua Institute of Technology, ostensibly a close relative of
former Senator Jovito R. Salonga, eminent counsel for petitioners in L-36165 (Annex M-as
amended, to Consolidated Rejoinder of petitioners in L-36165 to the Notes of Arguments and
Memorandum of respondents). Professor Salonga is not a qualified statistician, which all the more
impairs his credibility. Director Tito A. Mijares of the Bureau of Census and Statistics, in his letter
dated March 16, 1973 address to the Secretary of the Department of Local Government and
Community Development, refutes the said computation of Professor Benjamin R. Salonga, thus:
1) I do not quite understand why (Problem 1) all qualified registered voters and the
15-20-year-old youths (1972) will have to be estimated in order to give a 101.9%
estimate of the percentage participation of the "15-20 year old plus total number of
qualified voters" which does not deem to answer the problem. This computation
apparently fails to account for some 5.6 million persons "21 years old and over" who
were not registered voters (COMELEC), but who might be qualified to participate at
the Citizen's Assembly.
2) The official population projection of this office (medium assumption) for "15 year
olds and over" as of January 1, 1973 is 22.506 million. If total number of participants
at the Citizens' Assembly Referendum held on January 10-15, 1973 was 16.702
million, participation rate will therefore be the ratio of the latter figure to the former
which gives 74.2%.
3) 1 cannot also understand c-2 "Solution to Problem 11." The "difference or implied
number of 15-20 year olds" of 5,039,906 would represent really not only all 15-year
olds and over who participated at the Citizens' Assembly but might not have been
registered voters at the time, assuming that all the 11,661,909 registered voted at
Citizens' Assembly. Hence, the "estimate percentage participation of 15-20 years
olds" of 105.6% does not seem to provide any meaningful information.
To obtain the participation rate of "15-20 years old" one must divide the number in
this age group, which was estimated to be 4.721 million as of January 1, 1973 by the
population of "15 years old and over" for the same period which was estimated to be
22.506 million, giving 21.0%.
In Problem III, it should be observed that registered voters also include names of
voters who are already dead. It cannot therefore be assumed that all of them
participated at the Citizens' Assembly. It can therefore be inferred that "a total
number of persons 15 and over unqualified/disqualified to vote" will be more than
10,548,197 and hence the "difference or implied number of registered voters that
participated" will be less than 6,153,618.
I have reservations on whether an "appropriate number of qualified voters that

supposedly voted" could be meaningfully estimated.
5) The last remark will therefore make the ratio (a) [Solution to Problem] more than
1.71 and that for (b), accordingly, will also be less than 36.8%." (Annex F Rejoinder).
From the foregoing analysis of the Director of Census and Statistics as of January 21, 1973, the
official population projection for 15-year olds and over is 22,506,000. If 16,702,000 voted in the
referendum, the participation ratio would be 74.2% of 22,506,000.
If the registered electors as of the election of November 8, 1971 numbered 11,661,909, the
difference between 16,702,000 who participated in the referendum and the registered electors of
11,661,909 for the November 8, 1971 elections, is 5,040,091, which may include not only the 15-
year olds and above but below 21 but also the qualified electors who were not registered before the
November 8, 1971 elections as well as illiterates who are 15 years old and above but below 21.
Moreover, in the last Presidential election in November, 1969, We found that the incumbent
President obtained over 5,000,000 votes as against about 3,000,000 votes for his rival LP Senator
Sergio Osmeña, Jr., garnering a majority of from about 896,498 to 1,436,118 (Osmeña, Jr. vs.
Marcos, Presidential Election Contest No. 3, Jan. 8, 1973).
The petitioners in all the cases at bar cannot state with justification that those who voted for the
incumbent President in 1969 did not vote in favor of the 1973 Constitution during the referendum
from January 10 to 15, 1973. It should also be stressed that many of the partisans of the President in
the 1969 Presidential elections, have several members in their families and relatives who are
qualified to participate in the referendum because they are 15 years or above including illiterates,
which fact should necessarily augment the number of votes who voted for the 1973 Constitution.
(6) It is also urged that martial law being the rule of force, is necessarily inconsistent with freedom of
choice, because the people fear to disagree with the President and Commander-in-Chief of the
Armed Forces of the Philippines and therefore cannot voice views opposite to or critical of the
position of the President on the 1973 Constitution and on the mode of its ratification.
It is also claimed or urged that there can be no free choice during martial law which inevitably
generates fear in the individual. Even without martial law, the penal, civil or administrative sanction
provided for the violation of ordinarily engenders fear in the individual which persuades the individual
to comply with or obey the law. But before martial law was proclaimed, many individuals fear such
sanctions of the law because of lack of effective equal enforcement or implementation thereof — in
brief, compartmentalized justice and extraneous pressures and influences frustrated the firm and just
enforcement of the laws. The fear that is generated by martial law is merely the fear of immediate
execution and swift enforcement of the law and therefore immediate infliction of the punishment or
sanction prescribed by the law whenever it is transgressed during the period of martial law. This is
not the fear that affects the voters' freedom of choice or freedom to vote for or against the 1973
Constitution. Those who cringe in fear are the criminals or the law violators. Surely, petitioners do
not come under such category.
(7) Petitioners likewise claim that open voting by viva voce or raising of hands violates the secrecy of
the ballot as by the election laws. But the 1935 Constitution does not require secret voting. We
search in vain for such guarantee or prescription in said organic law. The Commission on Elections
under the 1940 Amendment, embodied as Article X is merely mandated to insure "free, orderly and
honest election." Congress, under its plenary law-making authority, could have validly prescribed in
the election law open voting in the election of public officers, without trenching upon the Constitution.
Any objection to such a statute concerns its wisdom or propriety, not its legality or constitutionality.
Secret balloting was demanded by partisan strife in elections for elective officials. Partisanship
based on party or personal loyalties does not generally obtain in a plebiscite on proposed
constitutional amendments or on a new Constitution. We have seen even before and during martial
law that voting in meetings of government agencies or private organizations is usually done openly.
This is specially true in sessions of Congress, provincial boards, city councils, municipal boards and
barrio councils when voting on national or local issues, not on personalities.
Then again, open voting was not a universal phenomenon in the Citizens' Assemblies. It might have
been true in certain areas, but that does not necessarily mean that it was done throughout the
country.
The recent example of an open voting is the last election on March 3, 1973 of the National Press
Club officers who were elected by acclamation presided over by its former president, petitioner
Eduardo Monteclaro in L-36236 (see Bulletin Today, p. 8, March 3, 1973 issue). There can be no
more hardboiled group of persons than newspapermen, who cannot say that voting among them by
acclamation was characterized by fear among the members of the National Press Club.
Moreover, petitioners would not be willing to affirm that all the members of the citizenry of this
country are against the new Constitution. They will not deny that there are those who favor the
same, even among the 400,000 teachers among whom officers of the Department of Education
campaigned for the ratification of the new Constitution.
Not one of the petitioners can say that the common man — farmer, laborer, fisherman, lowly
employee, jeepney driver, taxi driver, bus driver, pedestrian, salesman, or salesgirl — does not want
the new Constitution, or the reforms provided for therein.
(8) Petitioners likewise claim that there was no sufficient publicity given to the new Constitution. This
is quite inaccurate; because even before the election in November, 1970 of delegates to the
Constitutional Convention, the proposed reforms were already discussed in various forums and
through the press as well as other media of information. Then after the Constitutional Convention
convened in June, 1971, specific reforms advanced by the delegates were discussed both in
committee hearings as well as in the tri-media — the press, radio and television. Printed materials
on the proposed reforms were circulated by their proponents. From June, 1971 to November 29,
1972, reforms were openly discussed and debated except for a few days after the proclamation of
martial law on September 21, 1972. From the time the Constitutional Convention reconvened in
October, 1972 until January 7, 1973, the provisions of the new Constitution were debated and
discussed in forums sponsored by private organizations universities and debated over the radio and
on television. The Philippines is a literate country, second only to Japan in the Far East, and more
literate perhaps than many of mid-western and southern states of the American Union and Spain.
Many residents in about 1,500 towns and 33,000 barrios of the country have radios. Even the
illiterates listened to radio broadcasts on and discussed the provisions of the 1973 Constitution.
As reported by the eminent and widely read columnist, Teodoro Valencia in his column in Bulletin
Today, March 4, 1973 issue, "Otto Lang, Hollywood producer director (Tora, Tora, Tora) went
around the country doing a 30-minute documentary on the Philippines for American television stated
that what impressed him most in his travel throughout the country was the general acceptance of the
New Society by the people which he saw in his 6-week travel from Aparri to Jolo."
The report of Frank Valeo (Bulletin Today, March 3 and 4, 1973 and Daily Express, March 3, and
Sunday Express, March 4), Secretary of the United States Senate, who conducted a personal
survey of the country as delegate of Senator Mike Mansfield, Chairman, Committee on US-
Philippine relations, states:
Martial law has paved the way for a re-ordering of the basic social structure of the
Philippines. President Marcos has been prompt and sure-footed in using the power
of presidential decree under martial law for this purpose. He has zeroed in on areas
which have been widely recognized as prime sources of the nation's
difficulties — land tenancy, official corruption, tax evasion and abuse of oligarchic
economic power. Clearly, he knows the targets. What is not yet certain is how
accurate have been his shots. Nevertheless, there is marked public support for his
leadership and tangible alternatives have not been forthcoming. That would suggest
that he may not be striking too far from the mark.
The United States business community in Manila seems to have been re-assured by
recent developments ... . (Emphasis supplied.)
Petitioners cannot safely assume that all the peaceful citizens of the country, who constitute the
majority of the population, do not like the reforms stipulated in the new Constitution, as well as the
decrees, orders and circulars issued to implement the same. It should be recalled, as hereinbefore
stated, that all these reforms were the subject of discussion both in the committee hearings and on
the floor of the Constitutional Convention, as well as in public forums sponsored by concerned
citizens or civic organizations at which Con-Con delegates as well as other knowledgeable
personages expounded their views thereon and in all the media of information before the
proclamation of martial law on September 21, 1972. This is the reason why the Constitutional
Convention, after spending close to P30 million during the period from June 1, 1971 to November
29, 1972, found it expedient to accelerate their proceedings in November, 1972 because all views
that could possibly be said on the proposed provisions of the 1973 Constitution were already
expressed and circulated. The 1973 Constitution may contain some unwise provisions. But this
objection to such unwise or vague provisions, as heretofore stated, refers to the wisdom of the
aforesaid provisions, which issue is not for this Court to decide; otherwise We will be substituting
Our judgment for the judgment of the Constitutional Convention and in effect acting as a constituent
assembly.
VI
PRESIDENT AS COMMANDER IN CHIEF EXERCISES

LEGISLATIVE POWERS DURING MARTIAL LAW.
The position of the respondent public officers that undermartial law, the President as Commander-in-
Chief is vested with legislative powers, is sustained by the ruling in the 1949 case of Kuroda vs.
Jalandoni, et al. (83 Phil. 171, 177-178) which reiterates the 1945 case of Yamashita vs. Styer (75
Phil. 563, 571-72). The trial of General Kuroda was after the surrender of Japan on October 2, 1945
(23 Encyc. Brit. 1969 ed., p. 799) and hence no more martial law in the Philippines.
... Consequently, in the promulgation and enforcement of Executive Order No. 68,
the President of the Philippines has acted in conformity with the generally accepted
principles and policies of international law which are part of our Constitution.
The promulgation of said executive order is an exercise by the President of his

powers as Commander in Chief of all our armed forces, as upheld by this Court in
the case of Yamashita vs. Styver (L-129, 42 Off. Gaz., 664) when we said —
"War is not ended simply because hostilities have ceased. After

cessation of armed hostilities, incidents of war may remain pending
which should be disposed of as in time of war. "An important incident
to a conduct of war is the adoption measures by the military
command not only to repel and defeat the enemies but to seize and
subject to disciplinary measures those enemies who in their attempt
to thwart or impede our military effort have violated the law of war."
(Ex parte Quirin, 317 U.S., 1; 63 Sup. Ct., 2.) Indeed, the power to
create a military commission for the trial and punishment of war
criminals is an aspect of waging war. And, in the language of a writer,
a military commission "has jurisdiction so long as the technical state
of war continues. This includes the period of an armistice, or military
occupation, up to the effective date of treaty of peace, and may
extend beyond, by treaty agreement." (Cowles, Trial of War Criminals
by Military Tribunals, American Bar Association Journal, June, 1944).
Consequently, the President as Commander-in-Chief is fully empowered to

consummate this unfinished aspect of war, namely the trial and punishment of war
criminals, through the issuance and enforcement of Executive Order No. 68. (83 Phil.
177-178; emphasis supplied).
Chief Justice Stone of the United States Supreme Court likewise appears to subscribe to this view,
when, in his concurring opinion in Duncan vs. Kahanamoku (327 U.S. 304 [1946]), he defined
martial law as "the exercise of the power which resides in the executive branch of the government to
preserve order and insure the public safety in times of emergency, when other branches of the
government are unable to function, or their functioning would itself threaten the public safety."
(Emphasis supplied). There is an implied recognition in the aforesaid definition of martial law that
even in places where the courts can function, such operation of the courts may be affected by
martial law should their "functioning ... threaten the public safety." It is possible that the courts, in
asserting their authority to pass upon questions which may adversely affect the conduct of the
punitive campaign against rebels, secessionists, dissidents as well as subversives, martial law may
restrict such judicial function until the danger to the security of the state and of the people shall have
been decimated.
The foregoing view appears to be shared by Rossiter when he stated:
Finally, this strong government, which in some instances might become an outright

dictatorship, can have no other purposes than the preservation of the independence
of the state, the maintenance of the existing constitutional order, and the defense of
the political and social liberties of the people. It is important to recognize the true and
limited ends of any practical application of the principle of constitutional dictatorship.
Perhaps the matter may be most clearly stated in this way: the government of a free
state is proceeding on its way and meeting the usual problems of peace and normal
times within the limiting framework of its established constitutional order. The
functions of government are parceled out among a number of mutually independent
offices and institutions; the power to exercise those functions is circumscribed by
well-established laws, customs, and constitutional prescriptions; and the people for
whom this government was instituted are in possession of a lengthy catalogue of
economic, political, and social rights which their leaders recognize as inherent and
inalienable. A severe crisis arises — the country is invaded by a hostile power, or a
dissident segment of the citizenry revolts, or the impact of a world-wide depression
threatens to bring the nation's economy in ruins. The government meets the crisis by
assuming more powers and respecting fewer rights. The result is a regime which can
act arbitrarily and even dictatorially in the swift adaption of measures designed to
save the state and its people from the destructive effects of the particular crisis. And
the narrow duty to be pursued by this strong government, this constitutional
dictatorship? Simply this and nothing more: to end the crisis and restore normal
times. The government assumes no power and abridges no right unless plainly
indispensable to that end; it extends no further in time than the attainment of that
end; and it makes no alteration in the political, social and economic structure of the
nation which cannot be eradicated with the restoration of normal times. In short, the
aim of constitutional dictatorship is the complete restoration of the status quo ante
bellum. This historical fact does not comport with philosophical theory, that there
never has been a perfect constitutional dictatorship, is an assertion that can be made
without fear of contradiction. But this is true of all institutions of government, and the
principle of constitutional dictatorship remains eternally valid no matter how often
and seriously it may have been violated in practice. (Constitutional Dictatorship, 1948
ed., by Clinton L. Rossiter, p. 7; emphasis supplied.)
Finally, Rossiter expressly recognizes that during martial law, the Chief Executive exercises
legislative power, whether of temporary or permanent character, thus:
The measures adopted in the prosecution of a constitutional dictatorship should

never be permanent in character or effect. Emergency powers are strictly conditioned
by their purpose and this purpose is the restoration of normal conditions. The actions
directed to this end should therefore be provisional. For example, measures of a
legislative nature which work a lasting change in the structure of the state or
constitute permanent derogations from existing law should not be adopted under an
emergency enabling act, at least not without the positively registered approval of the
legislature. Permanent laws, whether adopted in regular or irregular times, are for
parliaments to enact. By this same token, the decisions and sentences of
extraordinary courts should be reviewed by the regular courts after the termination of
the crisis.
But what if a radical act of permanent character, one working lasting changes in the
political and social fabric, is indispensable to the successful prosecution of the
particular constitutional dictatorship? The only answer can be: it must be resolutely
taken and openly acknowledged. President Lincoln found it necessary to proceed to
the revolutionary step of emancipation in aid of his conservative purpose of
preserving the Union; as a constitutional dictator he had a moral right to take this
radical action. Nevertheless, it is imperative that any action with such lasting effects
should eventually receive the positive approval of the people or of their
representatives in the legislature. (P. 303, emphasis supplied).
From the foregoing citations, under martial law occasioned by severe crisis generated by revolution,
insurrection or economic depression or dislocation, the government exercises more powers and
respects fewer rights in order "to end the crisis and restore normal times." The government can
assume additional powers indispensable to the attainment of that end — the complete restoration of
peace. In our particular case, eradication of the causes that incited rebellion and subversion as
secession, is the sine qua non to the complete restoration of normalcy. Exercise of legislative power
by the President as Commander in Chief, upon his proclamation of martial law, is justified because,
as he professes, it is directed towards the institution of radical reforms essential to the elimination of
the causes of rebellious, insurgent or subversive conspiracies and the consequent dismantling of the
rebellious, insurgent or subversive apparatus.
Hence, the issuance of Presidential Decree Nos. 86 and 86-A as well as Proclamation No. 1102 is
indispensable to the effectuation of the reforms within the shortest possible time to hasten the
restoration of normalcy.
"Must the government be too strong for the liberties of the people; or must it be too weak to maintain
its existence?" That was the dilemma that vexed President Lincoln during the American Civil War,
when without express authority in the Constitution and the laws of the United States, he suspended
one basic human freedom — the privilege of the writ of habeas corpus — in order to preserve with
permanence the American Union, the Federal Constitution of the United States and all the civil
liberties of the American people. This is the same dilemma that presently confronts the Chief
Executive of the Republic of the Philippines, who, more than the Courts and Congress, must, by
express constitutional mandate, secure the safety of our Republic and the rights as well as lives of
the people against open rebellion, insidious subversion secession. The Chief Executive announced
repeatedly that in choosing to proclaim martial law, the power expressly vested in him by the 1935
Constitution (Sec. 10[2], Art. VII, 1935 Constitution) to insure our national and individual survival in
peace and freedom, he is in effect waging a peaceful, democratic revolution from the center against
the violent revolution and subversion being mounted by the economic oligarchs of the extreme right,
who resist reforms to maintain their economic hegemony, and the communist rebels a Maoist
oriented secessionists of the extreme left who demand swift institution of reforms. In the exercise of
his constitutional and statutory powers, to save the state and to protect the citizenry against actual
and threatened assaults from insurgents, secessionists and subversives, doctrinaire concepts and
principles, no matter how revered they may be by jurisprudence and time, should not be regarded as
peremptory commands; otherwise the dead hand of the past will regulate and control the security
and happiness of the living present. A contrary view would be to deny the self-evident proposition
that constitutions and laws are mere instruments for the well-being, peace, security and prosperity of
the country and its citizenry. The law as a means of social control is not static but dynamic.
Paraphrasing Mr. Justice Frankfurter, the Constitution is neither a printed finality nor the
imprisonment of the past, but the enfolding of the future. In the vein of Mr. Justice Holmes, the
meaning of the words of the Constitution is not to be determined by merely opening a dictionary. Its
terms must be construed in the context of the realities in the life of a nation it is intended to serve.
Because experience may teach one generation to doubt the validity and efficacy of the concepts
embodied in the existing Constitution and persuade another generation to abandon them entirely,
heed should be paid to the wise counsel of some learned jurists that in the resolution of
constitutional questions — like those posed before Us — the blending of idealism and practical
wisdom or progressive legal realism should be applied (see Alexander M. Bickel, the Supreme Court
and the Idea of Progress, 1970 ed., pp. 19-21). To Justice Frankfurter, law is "a vital agency for
human betterment" and constitutional law "is applied politics using the word in its noble sense."
(Frankfurter, Law and Politics, 1939 ed., pp. 3 & 6; emphasis supplied). Justice Brandeis gave
utterance to the truth that "Our Constitution is not a straight jacket. It is a living organism. As such, it
is capable of growth — or expansion and adaptation to new conditions. Growth implies changes,
political, economic and social." (Brandeis Papers, Harvard Law School; emphasis supplied). Harvard
Professor Thomas Reed Powell emphasizes "practical wisdom," for "the logic of constitutional law is
the common sense of the Supreme Court." (Powell, the Validity of State Legislation, under the
Webb-Kenyon Law, 2 Southern Law Quarterly, pp. 112, 138-139, cited in Bickel's Opus, supra;
emphasis supplied).
The eternal paradox in this finite world of mortal and fallible men is that nothing is permanent except
change. Living organisms as well as man-made institutions are not immutable. Civilized men
organize themselves into a State only for the purpose of serving their supreme interest — their
welfare. To achieve such end, they created an agency known as the government. From the savage
era thru ancient times, the Middle Ages, the Dark Ages and the Renaissance to this era of
sophisticated electronics and nuclear weaponry, states and governments have mutated in their
search for the magic instrument for their well-being. It was trial and error then as it is still now.
Political philosophies and constitutional concepts, forms and kinds of government, had been
adopted, overturned, discarded, re-adopted or modified to suit the needs of a given society at a
particular given epoch. This is true of constitutions and laws because they are not "the infallible
instruments of a manifest destiny." No matter how we want the law to be stable, it cannot stand still.
As Mr. Justice Holmes aptly observed, every "constitution is an experiment as all life is an
experiment," (Abrahms vs. U.S., 250 US 616, 631) for "the life of the law is not logic, but
experience." In the pontifical tones of Mr. Justice Benjamin Nathan Cardozo, "so long as society is
inconstant, there can be no constancy in law," and "there will be change whether we will it or not." As
Justice Jose P. Laurel was wont to say, "We cannot, Canute-like, command the waves of progress
to halt."
Thus, political scientists and jurists no longer exalt with vehemence a "government that governs
least." Adherents there are to the poetic dictum of Alexander Pope: "For forms of government let
fools contest; whatever is best administered is best." (Poems of Pope, 1931 Cambridge ed., p. 750).
In between, the shades vary from direct democracy, representative democracy, welfare states,
socialist democracy, mitigated socialism, to outright communism which degenerated in some
countries into totalitarianism or authoritarianism.
Hence, even the scholar, who advances academic opinions unrelated to factual situations in the
seclusion of his ivory tower, must perforce submit to the inexorable law of change in his views,
concepts, methods and techniques when brought into the actual arena of conflict as a public
functionary — face to face with the practical problems of state, government and public
administration. And so it is that some learned jurists, in the resolution of constitutional issues that
immediately affect the lives, liberties and fortunes of the citizens and the nation, recommend the
blending of idealism with practical wisdom which legal thinkers prefer to identify as progressive legal
realism. The national leader, who wields the powers of government, must and has to innovate if he
must govern effectively to serve the supreme interests of the people. This is especially true in times
of great crises where the need for a leader with vision, imagination, capacity for decision and
courageous action is greater, to preserve the unity of people, to promote their well-being, and to
insure the safety and stability of the Republic. When the methods of rebellion and subversion have
become covert, subtle and insidious, there should be a recognition of the corresponding authority on
the part of the Commander-in-Chief of the Armed Forces to utilize all the available techniques to
suppress the peril to the security of the government and the State.
Over a century and a half ago, Thomas Jefferson, one of the founding fathers of the American
Constitution and former President of the United States, who personifies the progressive liberal,
spoke the truth when he said that some men "ascribe men of the preceding age a wisdom more than
human, and suppose what they did to be beyond amendment. ... But I know also, that laws and
institutions must go hand in hand with the progress of the human mind. As that becomes more
developed, more enlightened, as new discoveries are made, new truths disclosed and manners and
opinions change, with the change of circumstances, institutions must also advance, and keep pace
with the times." (Vol. 12, Encyclopedia Britanica, 1969 ed., p. 989).
The wisdom of the decision of the Chief Executive can only be judged in the perspective of history. It
cannot be adequately and fairly appraised within the present ambience, charged as it is with so
much tension and emotion, if not partisan passion. The analytical, objective historians will write the
final verdict in the same way that they pronounced judgment on President Abraham Lincoln who
suspended the privilege of the writ of habeas corpuswithout any constitutional or statutory authority
therefor and of President Franklin Delano Roosevelt who approved the proclamation of martial law in
1941 by the governor of Hawaii throughout the Hawaiian territory. President Lincoln not only
emancipated the Negro slaves in America, but also saved the Federal Republic of the United States
from disintegration by his suspension of the privilege of the writ of habeas corpus, which power the
American Constitution and Congress did not then expressly vest in him. No one can deny that the
successful defense and preservation of the territorial integrity of the United States was due in part, if
not to a great extent, to the proclamation of martial law over the territory of Hawaii — main bastion of
the outer periphery or the outpost of the American defense perimeter in the Pacific — which
protected the United States mainland not only from actual invasion but also from aerial or naval
bombardment by the enemy. Parenthetically, the impartial observer cannot accurately conclude that
the American Supreme Court acted with courage in its decision in the cases of Ex parte Milligan and
Duncan vs. Kahanamoku (filed on May 10, 1865 argued on March 5 to 13, 1866, decided on April 3,
1866, and opinion delivered on December 17, 1866) after the lifting of the proclamation suspending
the privilege of the writ of habeas corpus, long after the Civil War and the Second World ended
respectively on April 9 or 26, 18-65 (Vol. 1, Encyclopedia Britannica, 1969 ed., pp. 730, 742) and on
September 2, 1945 (Vol. 23, Encyclopedia Britannica, 1969 ed., p. 799). Was the delay on the part
of the American Supreme Court in deciding these cases against the position of the United States
President — in suspending the privilege of the writ of habeas corpus in one case and approving the
proclamation of martial law in the other — deliberate as an act of judicial statesmanship and
recognition on their part that an adverse court ruling during the period of such a grave crisis might
jeopardize the survival of the Federal Republic of the United States in its life-and-death struggle
against an organized and well armed rebellion within its own borders and against a formidable
enemy from without its territorial confines during the last global armageddon?
VIII
DOCTRINE OF SEPARATION OF POWERS PRECLUDES

MANDAMUS AGAINST SENATORS.
In G.R. No. L-36165, mandamus will not lie to compel respondents Gil Puyat and Jose Roy to
convene the Senate of the Philippines even on the assumption that the 1935 Constitution still
subsists; because pursuant to the doctrine of separation of powers under the 1935 Constitution, the
processes of this Court cannot legally reach a coordinate branch of the government or its head. This
is a problem that is addressed to the Senate itself for resolution; for it is purely an internal problem of
the Senate. If a majority of the senators can convene, they can elect a new Senate President and a
new Senate President Pro Tempore. But if they have no quorum, those present can order the arrest
of the absent members (Sec. 10[2], Art. VI, 1935 Constitution). If this fails, then there is no remedy
except an appeal to the people. The dictum ubi jus, ubi remedium, is not absolute and certainly does
not justify the invocation of the power of this Court to compel action on the part of a co-equal body or
its leadership. This was emphasized with sufficient clarity by this Court in the 1949 case of Avelino
vs. Cuenco (83 Phil. 17, 22,24), with which the distinguished counsels for the petitioners in L-36164
and L-36165 are familiar. We stress that the doctrine of separation of powers and the political nature
of the controversy such as this, preclude the interposition of the Judiciary to nullify an act of a
coordinate body or to command performance by the head of such a co-ordinate body of his
functions..
Mystifying is the posture taken by counsels for petitioners in referring to the political question
doctrine — almost in mockery — as a magic formula which should be disregarded by this Court,
forgetting that this magic formula constitutes an essential skein in the constitutional fabric of our
government, which, together with other basic constitutional precepts, conserves the unity of our
people, strengthens the structure of the government and assures the continued stability of the
country against the forces of division, if not of anarchy.
Moreover, if they have a quorum, the senators can meet anywhere. Validity of the acts of the Senate
does not depend on the place of session; for the Constitution does not designate the place of such a
meeting. Section 9 of Article VI imposes upon Congress to convene in regular session every year on
the 4th Monday of January, unless a different date is fixed by law, or on special session called by the
President. As former Senator Arturo Tolentino, counsel for respondents Puyat and Roy in L-36165,
stated, the duty to convene is addressed to all members of Congress, not merely to its presiding
officers. The fact that the doors of Congress are padlocked, will not prevent the senators —
especially the petitioners in L-36165 — if they are minded to do so, from meeting elsewhere — at
the Sunken Gardens, at the Luneta Independence Grandstand, in any of the big hotels or theaters,
in their own houses, or at the Araneta Coliseum, which is owned by the father-in-law of petitioner
Gerardo Roxas in L-36165.
However, a session by the Senate alone would be purely an exercise in futility, for it cannot validly
meet without the lower House (Sec. 10[5], Art. VI, 1935 Constitution). Hence, this petition by five
former senators for mandamus in L-36165 is useless.
And as pointed out by former Senator Arturo Tolentino, counsel for respondents Puyat and
Roy, mandamus will lie only if there is a law imposing on the respondents the duty to convene the
body. The rule imposing such a duty invoked by petitioners in L-36165 is purely an internal rule of
the Senate; it is not a law because it is not enacted by both Houses and approved by the President.
The Constitutional provision on the convening of Congress, is addressed to the individual members
of the legislative body (Sec. 9, Art. VI of 1935 Constitution).
IX
TO NULLIFY PROCLAMATION NO. 1102 AND 1973

CONSTITUTION REQUIRES EIGHT OR TEN VOTES OF
SUPREME COURT.
The petitioners in L-36164 and L-36236 specifically pray for a declaration that the alleged ratification
of the 1973 Constitution is null and void and that the said 1973 Constitution be declared
unenforceable and inoperative.
As heretofore stated, Proclamation No. 1102 is an enactment of the President as Commander-in-

Chief during martial law as directly delegated to him by Section 10(2) of Article VII of the 1935
Constitution.
A declaration that the 1973 Constitution is unenforceable and inoperative is practically deciding that
the same is unconstitutional. The proposed Constitution is an act of the Constitutional Convention,
which is co-equal and coordinate with as well as independent of either Congress or the Chief
Executive. Hence, its final act, the 1973 Constitution, must have the same category at the very least
as the act of Congress itself.
Consequently, the required vote to nullify Proclamation No. 1102 and the 1973 Constitution should
be eight (8) under Section 10 of Article VIII of the 1935 Constitution in relation to Section 9 of the
Judiciary Act or Republic Act No. 296, as amended, or should be ten (10) under Section 2(2) of
Article X of the 1973 Constitution. Should the required vote of eight (8) or ten (10), as the case may
be, for the declaration of invalidity or unconstitutionality be not achieved, the 1973 Constitution must
be deemed to be valid, in force and operative.
ARTICLE OF FAITH
WE yield to no man as devotees of human rights and civil liberties. Like Thomas Jefferson, We
swear "eternal hostility towards any form of tyranny over the mind of man" as well as towards bigotry
and intolerance, which are anathema to a free spirit. But human rights and civil liberties under a
democratic or republican state are never absolute and never immune to restrictions essential to the
common weal. A civilized society cannot long endure without peace and order, the maintenance of
which is the primary function of the government. Neither can civilized society survive without the
natural right to defend itself against all dangers that may destroy its life, whether in the form of
invasion from without or rebellion and subversion from within. This is the first law of nature and ranks
second to none in the hierarchy of all values, whether human or governmental. Every citizen, who
prides himself in being a member or a civilized society under an established government, impliedly
submits to certain constraints on his freedom for the general welfare and the preservation of the
State itself, even as he reserves to himself certain rights which constitute limitations on the powers
of government. But when there is an inevitable clash between an exertion of governmental authority
and the assertion of individual freedom, the exercise of which freedom imperils the State and the
civilized society to which the individual belongs, there can be no alternative but to submit to the
superior right of the government to defend and preserve the State. In the language of Mr. Justice
Holmes — often invoked by herein petitioners — "when it comes to a decision involving its (state life,
the ordinary rights of individuals must yield to what he (the President) deems the necessities of the
moment. Public danger warrants the substitution of executive process for judicial process. (See
Keely vs. Sanders, 99 U.S. 441, 446, 25 L ed. 327, 328). This was admitted with regard to killing
men in the actual clash of arms. And we think it is obvious, although it was disputed, that the same is
true of temporary detention to prevent apprehended harm." (Moyer vs. Peabody, 212 U.S. 77, 85, 53
L ed., 411, 417).
The rhetoric of freedom alone is not enough. It must be the rhetoric of freedom with order and
security for all, that should be the shibboleth; for freedom cannot be enjoyed in an environment of
disorder and anarchy.
The incumbent Chief Executive who was trying to gain the support for his reform program long
before September 21, 1972, realized almost too late that he was being deceived by his partymates
as well as by the opposition, who promised him cooperation, which promises were either offered as
a bargaining leverage to secure concessions from him or to delay the institution of the needed
reforms. The people have been victimized by such bargaining and dilly-dallying. To vert a terrifying
blood bath and the breakdown of the Republic, the incumbent President proclaimed martial law to
save the Republic from being overrun by communists, secessionists and rebels by effecting the
desired reforms in order to eradicate the evils that plague our society, which evils have been
employed by the communists, the rebels and secessionists to exhort the citizenry to rise against the
government. By eliminating the evils, the enemies of the Republic will be decimated. How many of
the petitioners and their counsels have been utilizing the rebels, secessionists and communists for
their own personal or political purposes and how many of them are being used in turn by the
aforesaid enemies of the State for their own purposes?
If the petitioners are sincere in their expression of concern for the greater mass of the populace,
more than for their own selves, they should be willing to give the incumbent Chief Executive a
chance to implement the desired reforms. The incumbent President assured the nation that he will
govern within the framework of the Constitution and if at any time, before normalcy is restored, the
people thru their Citizens' Assemblies, cease to believe in his leadership, he will step down
voluntarily from the Presidency. But if, as apprehended by the petitioners, he abuses and brutalizes
the people, then to the battlements we must go to man the ramparts against tyranny. This, it is
believed, he knows only too well; because he is aware that he who rides the tiger will eventually end
inside the tiger's stomach. He who toys with revolution will be swallowed by that same revolution.
History is replete with examples of libertarians who turned tyrants and were burned at stake or
beheaded or hanged or guillotined by the very people whom they at first championed and later
deceived. The most bloody of such mass executions by the wrath of a wronged people, was the
decapitation by guillotine of about 15,000 Frenchmen including the leaders of the French revolution,
like Robespierre, Danton, Desmoulins and Marat. He is fully cognizant of the lessons of history.
HENCE, THE DISMISSAL OF THESE FIVE CASES IS JUSTIFIED.
ESGUERRA, J., concurring:
These petitions seek to stop and prohibit the respondents Executive Officers from implementing the
Constitution signed on November 30, 1972; in L-36165, to compel respondents Gil Puyat and Jose
J. Roy, President and President Pro-Tempore, respectively, of the Senate under the 1935
Constitution, to convene the Senate in regular session which should have started on January 22,
1973; to nullify Proclamation No. 1102 of the President, issued on January 17, 1973, which declared
the ratification of the Constitution on November 30, 1972, by the Filipino people, through the
barangays or Citizens Assemblies established under Presidential Decree No. 86 issued on
December 31, 1972, which were empowered under Presidential Decree No. 86-A, issued on
January 5, 1973, to act in connection with the ratification of said Constitution.
Grounds for the petitions are as follows:
1. That the Constitutional Convention was not a free forum for the making of a Constitution after the
declaration of Martial Law on September 21, 1972.
2. The Convention was not empowered to incorporate certain provisions in the 1972 Constitution
because they are highly unwise and objectionable and the people were not sufficiently informed
about them.
3. The President had no authority to create and empower the Citizens' Assemblies to ratify the new
Constitution at the referendum conducted in connection therewith, as said assemblies were merely
for consultative purposes, and
4. The provisions of Article XV of the 1935 Constitution prescribing the manner of amending the
same were not duly observed.
The petitions were not given due course immediately but were referred to the Solicitor General as
counsel for the respondents for comment, with three members of the Court, including the
undersigned, voting to dismiss them outright. The comments were considered motions to dismiss
which were set for hearing and extensively argued. Thereafter both parties submitted their notes and
memoranda on their oral arguments.
I.
The issues raised for determination, on which the resolution of the Motion to Dismiss hinges, are as
follows:
1. Is the question presented political and, hence, beyond the competence of this Court to decide, or
is it justiciable and fit for judicial determination?
2. Was the new Constitution of November 30, 1972, ratified in accordance with the amending
process prescribed by Article XV of the 1935 Constitution?
3. Has the new Constitution been accepted and acquiesced in by the Filipino people?
4. Is the new Constitution actually in force and effect?
5. If the answers to questions Nos. 3 and 4 be in the affirmative, are petitioners entitled to the reliefs
prayed for?
II.
The pivotal question in these cases is whether the issue raised is highly political and, therefore, not
justiciable. I maintain that this Court should abstain from assuming jurisdiction, but, instead, as an
act of judicial statesmanship, should dismiss the petitions. In resolving whether or not the question
presented is political, joint discussion of issues Nos. 1, 3 and 4 is necessary so as to arrive at a
logical conclusion. For after the acceptance of a new Constitution and acquiescence therein by the
people by putting it into practical operation, any question regarding its validity should be foreclosed
and all debates on whether it was duly or lawfully ushered into existence as the organic law of the
state become political and not judicial in character.
The undisputed facts that led to the issuance of Proclamation No. 1102 and Presidential Decrees
Nos. 86 and 86-A are fully set forth in the majority and dissenting opinions in the Plebiscite cases
decided on January 22, 1973, and need not be repeated here.
Petitioners seek to set at naught Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A,
claiming that the ratification of the new Constitution pursuant to the said decrees is invalid and of no
effect. Presidential Decree No. 86 organized the barangays or Citizens Assemblies composed of all
citizens at least fifteen years of age, and through these assemblies the proposed 1972 Constitution
was submitted to the people for ratification. Proclamation No. 1102 of the President announced or
declared the result of the referendum or plebiscite conducted through the Citizens Assemblies, and
that 14,976,561 members thereof voted for the ratification of the new Constitution and 743,869 voted
against it. Petitioners assail these two acts of the President as unauthorized and devoid of legal
effect.
But looking through the veneer of judicial conformity with which the petitions have been adroitly
contrived, what is sought to be invalidated is the new Constitution itself — the very framework of the
present Government since January 17, 1973. The reason is obvious. The Presidential decrees set
up the means for the ratification and acceptance of the new Constitution and Proclamation No. 1102
simply announced the result of the referendum or plebiscite by the people through the Citizens
Assemblies. The Government under the new Constitution has been running on its tracks normally
and apparently without obstruction in the form of organized resistance capable of jeopardizing its
existence and disrupting its operation. Ultimately the issue is whether the new Constitution may be
set aside by this Court. But has it the power and authority to assume such a stupendous task when
the result of such invalidation would be to subject this nation to divisive controversies that may totally
destroy the social order which the Government under the new Constitution has been admirably
protecting and promoting under Martial Law? That the new Constitution has taken deep root and the
people are happy and contended with it is a living reality which the most articulate critics of the new
order cannot deny. 95 out of 108 members of the House of Representatives have opted to serve in
the interim National Assembly provided for under the new Constitution. 15 out of 24 Senators have
done likewise. The members of the Congress did not meet anymore last January 22, 1973, not
because they were really prevented from so doing but because of no serious effort on their parts to
assert their offices under the 1935 Constitution. In brief, the Legislative Department under the 1935
Constitution is a thing of the past. The Executive Department has been fully reorganized; the
appointments of key executive officers including those of the Armed Forces were extended and they
took an oath to support and defend the new Constitution. The courts, except the Supreme Court by
reason of these cases, have administered justice under the new constitution. All government offices
have dealt with the public and performed their functions according to the new Constitution and laws
promulgated thereunder.
If the real purpose of the petitions is to set aside the new Constitution, how can this Court justify its
assumption of jurisdiction when no power has ... conferred upon it the jurisdiction to declare the
Constitution or any part thereof null and void? It is the height of absurdity and impudence for a court
to wage open war against the organic act to which it owes its existence. The situation in which this
Court finds itself does not permit it to pass upon the question whether or not the new Constitution
has entered into force and has superseded the 1935 Constitution. If it declares that the present
Constitution has not been validly ratified, it has to uphold the 1935 Constitution as still the prevailing
organic law. The result would be too anomalous to describe, for then this Court would have to
declare that it is governed by one Constitution or the 1935 Constitution, and the legislative and
executive branches by another or the 1972 Constitution.
If it declares that the 1972 Constitution is now operative, how can it exercise judicial discretion in
these cases when it would have no other choice but to uphold the new Constitution as against any
other one? In the circumstances it would be bereft of judicial attributes as the matter would then be
not meet for judicial determination, but one addressed to the sovereign power of the people who
have already spoken and delivered their mandate by accepting the fundamental law on which the
government of this Republic is now functioning. To deny that the new Constitution has been
accepted and actually is in operation would be flying in the face of reason and pounding one's bare
head against a veritable stone wall or a heavily reinforced concrete, or simply "kicking the deadly
pricks" with one's bare foot in an effort to eliminate the lethal points.
When a Constitution has been in operation for sometime, even without popular ratification at that,
submission of the people thereto by the organization of the government provided therein and
observance of its prescriptions by public officers chosen thereunder, is indicative of approval. Courts
should be slow in nullifying a Constitution claimed to have been adopted not in accordance with
constitutional or statutory directives [Miller vs. Johnson, 92 Ky. 589; 189 S.W. 522; Taylor vs
Commonwealth, 101; Va. 829; 44 S.E. 754; Smith vs. Good, 34 F 204, 207; Wiston vs. Ryan, 70
Neb. 211; 97 N.W. 347].
In Miller vs. Johnson, supra, the Court said:

... But it is a case where a new constitution has been formed and promulgated
according to the forms of law. Great interests have already arisen under it; important
rights exist by virtue of it; persons have been convicted of the highest crimes known
to the law, according to its provisions; the political power of the government has in
many ways recognized it; and, under such circumstances, it is our duty to treat and
regard it as a valid constitution, and now the organic law of our state. We need not
consider the validity of the amendments made after the convention reassembled. If
the making of them was in excess of its power, yet as the entire instrument has been
recognized as valid in the manner suggested, it would be equally an abuse of power
by the judiciary, and violative of the rights of the people, — who can and properly
should remedy the matter, if not to their liking, — if it were to declare the instrument
or a portion invalid, and bring confusion and anarchy upon the state. (Emphasis
supplied)
In Smith vs. Good, supra, the Court said:
It is said that a state court is forbidden from entering upon such an inquiry when
applied to a new constitution, and not an amendment, because the judicial power
presupposes an established government, and if the authority of that government is
annulled and overthrown, the power of its courts is annulled with it; therefore, if a
state court should enter upon such an inquiry, come to the conclusion that the
government under which it acted had been displaced by an opposing government, it
would cease to be a court, and it would be incapable of pronouncing a judicial
decision upon the question before it; but, if it decides at all, it must necessarily affirm
the existence of the government under which it exercises its judicial powers.
(Emphasis supplied)
These rules are all traceable to Luther vs. Borden, 48 U.S (7 How.), 12 L. Ed. 581, 598 (1849) where
it was held:
Judicial power presupposes an established government capable of enacting laws

and enforcing their execution, and appointing judges to expound and administer
them. The acceptance of the judicial office is a recognition of the authority of
government from which it is derived. And if the authority of the government is
annulled and overthrown, the power of its courts and other officers is annulled with it.
And if a State court should enter upon the inquiry proposed in this case, and should
come to conclusion that the government under which it acted had been put aside and
displaced by an opposing government it would cease to be a court, and be incapable
of pronouncing a judicial decision upon the question it undertook to try. If it decides at
all as a court, it necessarily affirms the existence and authority of the government
under which it is exercising judicial power.
The foreign relations of the Republic of the Philippines have been normally conducted on the basis
of the new Constitution and no state with which we maintain diplomatic relations has withdrawn its
recognition of our government. (For particulars about executive acts done under the new
Constitution, see pages 22-25 of the Comments of the Solicitor General, dated February 3, 1973.)
Certainly the invalidation of Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A by
this Court would smack of plain political meddling which is described by the United States Supreme
Court as "entering a political thicket" in Colegrove vs. Green, 328 U.S. p. 549. At this juncture it
would be the part of wisdom for this Court to adopt the proper attitude towards political upheavals
and realize that the question before Us is political and not fit for judicial determination. For a political
question is one entrusted to the people for judgment in their sovereign capacity (Tañada vs. Cuenco,
G.R. No. L-10520, Feb. 28,1967; 100 Phil. 1101), or to a co-equal and coordinate branch of the
Government (Vera vs. Arellano, 77 Phil. 192; Mabanag vs. Lopez Vito, 78 Phil. 1; Alejandrino vs.
Quezon, 46 Phil. 35; Cabili vs. Francisco, G.R. No. 4638, May 8, 1931). A case involves a political
question when there would be "the impossibility of undertaking independent resolutions without
expressing a lack of respect due to coordinate branches of government", or when there is "the
potentiality of embarrassment from multifarious pronouncements by various departments on one
question."
To preserve the prestige and eminence that this Court has long enjoyed as the "ultimate organ of the
"Supreme Law of the Land" in that vast range of legal problems often strongly entangled in popular
feeling on which this Court must pronounce", let us harken to the following admonition of Justice
Frankfurter in his dissent in Baker vs. Carr, 369 U.S. 186; 82 S. Ct. 691; 7 L. Ed. 2d. 663:
The Court's authority — possessed neither of the purse nor the sword — ultimately
rests on sustained public confidence in its moral sanction. Such feeling must be
nourished by the Court's complete detachment, in fact and appearance, from political
entanglements and abstention from injecting itself into the clash of political forces in
political settlement. ..." (Emphasis supplied)
The people have accepted and submitted to a Constitution to replace the 1935 Constitution. The
new organic law is now in the plenitude of its efficacy and vigor. We are now living under its aegis
and protection and only the cynics will deny this. This Court should not in the least attempt to act as
a super-legislature or a super-board of canvassers and sow confusion and discord among our
people by pontificating there was no valid ratification of the new Constitution. The sober realization
of its proper role and delicate function and its consciousness of the limitations on its competence,
especially situations like this, are more in keeping with the preservation of our democratic tradition
than the blatant declamations of those who wish the Court to engage in their brand of activism and
would not mind plunging it into the whirlpool of passion and emotion in an effort to capture the
intoxicating applause of the multitude.
For all the foregoing, I vote to dismiss all petitions.
ZALDIVAR, J., concurring and dissenting:
In these five cases, the main issue to be resolved by Court is whether or not the Constitution
proposed by the Constitutional Convention of 1971 had been ratified in accordance with the
provisions of Article XV of the 1935 Constitution. In the plebiscite cases, which were decided by this
Court on January 22, 1973 , I held the view that this issue could be properly resolved by this Court,
1
and that it was in the public interest that this Court should declare then whether or not the proposed
Constitution had been validly ratified. The majority of this Court, however, was of the view that the
issue was not squarely raised in those cases, and so the Court, as a body, did make any categorical
pronouncement on the question of whether or not the Constitution proposed by the 1971 Convention
was validly ratified. I was the only one who expressed the opinion that the proposed Constitution
was not validly ratified and therefore "it should not be given force and effect."
The Court is now called upon to declare, and to inform the people of this country, whether or not that
proposed Constitution had been validly ratified and had come into effect.
The Solicitor General, however, contends that this Court has no jurisdiction to resolve the issue that
we have mentioned because that issue is a political question that cannot be decided by this Court.
This contention by the Solicitor General is untenable. A political question relates to "those questions
which under the Constitution are to be decided by the people in their sovereign capacity or in regard
to which full discretionary authority has been delegated to the legislative, or to the executive, branch
of the government. The courts have the power to determine whether the acts of the executive are
2
authorized by the Constitution and the laws whenever they are brought before the court in a judicial
proceeding. The judicial department of the government exercises a sort of controlling, or rather
restraining, power over the two other departments of the government. Each of the three
departments, within its proper constitutional sphere, acts independently of the other, and restraint is
only placed on one department when that sphere is actually transcended. While a court may not
restrain the executive from committing an unlawful act, it may, when the legality of such an act is
brought before it in a judicial proceeding, declare it to be void, the same as it may declare a law
enacted by the legislature to be unconstitutional. It is a settled doctrine that every officer under a
3
constitutional government must act according to law and subject to its restrictions, and every
departure therefrom, or disregard thereof, must subject him to the restraining and controlling power
of the people, acting through the agency of the judiciary. It must be remembered that the people act
through the courts, as well as through the executive or the legislature. One department is just as
representative as the other, and judiciary is the department which is charged with the special duty of
determining the limitations which the law places upon all official actions . In the case of Gonzales v.
4
Commission on Elections , this Court ruled that the issue as to whether or not a resolution of
5
Congress acting as a constituent assembly violates the Constitution is not a political question and is
therefore subject to judicial review. In the case of Avelino v. Cuenco , this Court held that the
6
exception to the rule that courts will not interfere with a political question affecting another
department is when such political question involves an issue as to the construction and interpretation
of the provision of the constitution. And so, it has been held that the question of whether a
constitution shall be amended or not is a political question which is not in the power of the court to
decide, but whether or not the constitution has been legally amended is a justiciable question. 7
My study on the subject of whether a question before the court is political or judicial, based on
decisions of the courts in the United States — where, after all, our constitutional system has been
patterned to a large extent — made me arrive at the considered view that it is in the power of this
Court, as the ultimate interpreter of the Constitution, to determine the validity of the proposal, the
submission, and the ratification of any change in the Constitution. Ratification or non-ratification of a
constitutional amendment is a vital element in the procedure to amend the constitution, and I believe
that the Court can inquire into, and decide on, the question of whether or not an amendment to the
constitution, as in the present cases, has been ratified in accordance with the requirements
prescribed in the Constitution that was amended. And so, in the cases now before Us, I believe that
the question of whether or not the Constitution proposed by the 1971 Constitutional Convention had
been validly ratified or not is a justiciable question.
The Chief Justice, in his opinion, has discussed lengthily the subject on whether or not, the cases,
before Us involve a political, or a judicial, question. I fully concur with his conclusion that the
question involved in these cases is justiciable.
On the question now of whether or not the Constitution proposed by the 1971 Constitutional
Convention has been validly ratified, I am reproducing herein pertinent portions of my dissenting
opinion in the plebiscite cases:
The ratification of the Constitution proposed by the 1971 Constitutional Convention

must be done in accordance with the provisions of Section 1, Article XV of the 1935
Constitution of the Philippines, which reads:
"Section 1. The Congress in joint session assembled by a vote of

three fourths of all the Members of the Senate and of the House of
Representatives voting separately, may propose amendments to the
Constitution or call a convention for that purpose. Such amendments
shall be valid as part of this Constitution when approved by a majority
of the votes cast at an election at which the amendments are
submitted to the people for their ratification."
It is in consonance with the abovequoted provision of the 1935 Constitution that on

March 16, 1967, the Congress of the Philippines Resolution No. 2 calling a
convention to propose amendments to the Constitution of the Philippines. Sec. 7 of
said Resolution No. 2 reads as follows:
"Section 7. The amendments proposed by the Convention shall be

valid and considered part of the Constitution when approved by a
majority of the votes cast in an election at which they are submitted to
the people for their ratification pursuant to Article XV of the
Constitution.
It follows that from the very resolution of the Congress of the Philippines which called
for the 1971 Constitutional Convention, there was a clear mandate that the
amendments proposed by the 1971 Convention, in order to be valid and considered
part of the Constitution, must be approved by majority of the votes cast in an election
at which they are submitted to the people for the ratification as provided in the
Constitution.
This Court, in the case of Tolentino vs. Commission Elections, L-35140, October 16,
1971 (41 SCRA 715), speaking through Mr. Justice Barredo, said:
"The Constitutional Convention of 1971, as any other convention of

the same nature, owes its existence and all its authority and power
from the existing Constitution of the Philippines. This Convention has
not been called by the people directly as in the case of a
revolutionary convention which drafts the first Constitution of an
entirely new government born of either a war of liberation from a
mother country or of revolution against an existing government or of a
bloodless seizure of power a la coup d'etat. As to such kind of
conventions, it is absolutely true that the convention is completely
without restraint and omnipotent all wise, and it as to such
conventions that the remarks of Delegate Manuel Roxas of the
Constitutional Convention of 1934 quoted by Senator Pelaez refer.
No amount of rationalization can belie the fact that the current
convention came into being only because it was called by a
resolution of a joint session of Congress acting as a constituent
assembly by authority of Section 1, Article XV of the present
Constitution ... ."
xxx xxx xxx
"As to matters not related to its internal operation and the

performance of its assigned mission to propose amendments to the
Constitution, the Convention and its officers and members are all
subject to all the provisions of the existing Constitution. Now we hold
that even as to its latter task of proposing amendments to the
Constitution, it is subject to the provisions of Section 1 of Article XV."
In Proclamation No. 1102, issued on January 17, 1973, the President of the
Philippines certified that as a result of the voting before the barangays (Citizens
Assemblies) 14,976,561 members of the barangays voted for the adoption of the
proposed Constitution, as against 743,869 who voted for its rejection, and on the
basis of the overwhelming majority of the votes cast by the members of all the
barangays throughout the Philippines, the President proclaimed that the Constitution
proposed by the 1971 Convention has been ratified and has thereby come into
effect.
It is very plain from the very wordings of Proclamation No. 1102 that the provisions of
Section 1 of Article XV of the Constitution of 1935 were not complied with. It is not
necessary that evidence be produced before this Court to show that no elections
were held in accordance with the provisions of the Election Code. Proclamation No.
1102 unequivocally states that the proposed Constitution of 1972 was voted upon by
the barangays. It is very clear, therefore, that the voting held in these barangays is
not the election contemplated in the provisions of Section 1, Article XV, of the 1935
Constitution. The election contemplated in said constitutional provision is an election
held in accordance with the provisions of the election law, where only the qualified
and registered voters of the country would cast their votes, where official ballots
prepared for the purpose are used, where the voters would prepare their ballots in
secret inside the voting booths in the polling places established in the different
election precincts throughout the country, where the election is conducted by election
inspectors duly appointed in accordance with the election law, where the votes are
canvassed and reported in a manner provided for in the election law. It was this kind
of election that was held on May 14, 1935, when the Constitution of 1935 was
ratified; on April 30, 1937, when the amendment to the Constitution providing for
Women's Suffrage was ratified; on June 18, 1940, when the 1940 Amendments to
the Constitution were ratified; on March 11, 1947 when the Parity Amendment to the
Constitution was ratified; and on November 14, 1967 when the amendments to the
Constitution to increase the number of Members of the House of Representatives
and to allow the Members of Congress to run in the elections for Delegates to the
Constitutional Convention of 1971 were rejected.
I cannot see any valid reason why the practice or procedure in the past, in
implementing the constitutional provision requiring the holding, of an election to ratify
or reject an amendment to the Constitution, has not been followed in the case of the
Constitution proposed by the 1971 Constitutional Convention.
It is my view that the President of the Philippines cannot by decree order the
ratification of the proposed 1972 Constitution thru a voting in the barangays and
make said result the basis for proclaiming the ratification of the proposed
constitution. It is very clear, to me, that Proclamation No. 1102 was issued in
complete disregard or in violation, of the provisions of Section 1 of Article X of the
1935 Constitution.
Proclamation No. 1102 mentions, furthermore, that on the question as to whether or

not the people would still like a plebiscite to be called to ratify the new Constitution,
14,298,814 members of the barangays answered that there was no need for a
plebiscite but that the vote of the barangays should be considered a vote in a
plebiscite. It would thus appear that the barangays assumed the power to determine
whether a plebiscite as ordained in the Constitution be held or not. Indeed, the
provision of Section 1, Article XV of the Constitution was completely disregarded.
The affirmative votes cast in the barangays are not the votes contemplated in
Section 1 of Article XV of the 1935 Constitution. The votes contemplated in said
constitutional provision are votes obtained through the election processes as
provided by law.
"An election is the embodiment of the popular will, the expression of

the sovereign power of the people. In common parlance, an election
is the act of casting and receiving the ballots, counting them, and
making the return." (Hontiveros vs. Altavas, 24 Phil. 632, 637).
"Election" implies a choice by an electoral body at the time and

substantially in the manner and with the safeguards provided by law
with respect to some question or issue. (Leffel v. Brown, Com. P1.,
159 N.E. 2d 807, 808 cited in 29 C.J.S. 13 at footnote 6.5).
"... the statutory method whereby qualified voters or electors pass on

various public matters submitted to them — the election of officers,
national, state, county, township — the passing on various other
questions submitted for their determination." (29 C.J.S. 13, citing
Iowa-Illinois Gas & Elec. Co. v. City of Bettendorf, 41 N.W. 2d 1, 5,
241 Iowa 358).
"Election" is expression of choice by voters of body politic. (Ginsburg

v. Giles, 72 S.W. 2d 438, 254 Ky. 720, in Words and Phrases,
Permanent Edition, p. 234).
"The right to vote may be exercised only on compliance with such

statutory requirements as have been set by the legislature." (People
ex rel. Rago v. Lipsky, 63 N.E. 2d 642, 327 III. App. 63; Rothfels v.
Southworth, 356 P. 2d 612, 11 Utah 2d 169 in 29 C.J.S. 38).
(Emphasis supplied).
In this connection I herein quote the pertinent provisions of the Election Code of
1971:
"Sec. 2. Applicability of this Act. — All elections of public officers except barrio
officials and plebiscites shall be conducted in the manner provided by this Code."
"Sec 99. Necessity of registration to be entitled to vote. — In order that a qualified

voter may vote in any regular or special election or in any plebiscite, he must be
registered in the permanent list of voters for the city, municipality or municipal district
in which he resides: Provided, that no person shall register more than once without
first applying for cancellation of his previous registration." (Emphasis supplied).
(Please see also Sections 100-102, Election Code of 1971, R.A. No. 6388)
It is stated in Proclamation No. 1102 that the voting was done by the members of
citizens assemblies who are 15 years of age or over. Under the provision of Section I
of Article V of the 1935 Constitution, the age requirement to be a qualified voter is 21
years or over.
But what is more noteworthy is the fact that the voting in the barangays, except in
very few instances, was done by the raising of hands by the persons indiscriminately
gathered to participate in the voting, where even children below 15 years of age were
included. This is a matter of common observation, or of common knowledge, which
the Court may take judicial notice of. To consider the votes in the barangays as
expressive of the popular will and use them as the basis in declaring whether a
Constitution is ratified or rejected is to resort to a voting by demonstrations, which is
would mean the rule of the crowd, which is only one degree higher than the rule by
the mob. Certainly, so important a question as to whether the Constitution, which is
the supreme law of the land, should be ratified or not, must not be decided by simply
gathering people and asking them to raise their hands in answer to the question of
whether the vote for or against a proposed Constitution. The election as provided by
law should be strictly observed in determining the will of the sovereign people in a
democracy. In our Republic, the will of the people must be expressed through the
ballot in a manner that is provided by law.
It is said that in a democracy, the will of the people is the supreme law. Indeed, the
people are sovereign, but the will of the people must be expressed in a manner as
the law and the demands a well-ordered society require. The rule of law must prevail
even over the apparent will of the majority of the people, if that will had not been
expressed, or obtained, in accordance with the law. Under the rule of law, public
questions must be decided in accordance with the Constitution and the law. This is
specially true in the case of adoption of a constitution or in the ratification of an
amendment to the Constitution.
The following citations are, to me, very relevant in the effort to determine whether the
proposed Constitution of 1972 had been validly ratified, or not:
"When it is said that "the people" have the right to alter or amend the
constitution, it must not be understood that term necessarily includes
all the inhabitants of the state. Since the question of the adoption or
rejection of a proposed new constitution or constitutional amendment
must be answered a vote, the determination of it rests with those
who, by existing constitution, are accorded the right of suffrage. But
the qualified electors must be understood in this, as in many other
cases, as representing those who have not the right to participate in
the ballot. If a constitution should be abrogated and a new one
adopted, by the whole mass of people in a state acting through
representatives not chosen by the "people" in political sense of the
term, but by the general body of the populace, the movement would
be extra-legal." (BIack's Constitutional Law, Second Edition, pp. 47-
48).
"The theory of our political system is that the ultimate sovereignty is

in the people, from whom springs all legitimate authority. The people
of the Union created a national constitution, and conferred upon it
powers of sovereignty on certain subjects, and the people of each
State created a State government, to exercise the remaining powers
of sovereignty so far as they were disposed to allow them to be
exercised at all. By the constitution which they establish, they not only
tie up the hands of their official agencies, but their own hands as well;
and neither the officers of the State, nor the whole people as an
aggregate body, are at liberty to take action in opposition to this
fundamental law." (Cooley's Constitutional Limitations, 8th Edition,
Vol. I, p. 81 cited in Graham v. Jones, 3 So. 2d. 761, 782).
"The theory that a favorable vote by the electorate, however

unanimous, on a proposal to amend a constitution, may cure, render
innocuous, all or any antecedent failures to observe commands of
that Constitution in respect of the formulation or submission of
proposed amendments thereto, does not prevail in Alabama, where
the doctrine of the stated theory was denied, in obvious effect, by the
pronouncement 60 years ago of broad, wholesome constitutional
principles in Collier v. Frierson, supra, as quoted in the original
opinion, ante. The people themselves are bound by the Constitution;
and, being so bound, are powerless, whatever their numbers, to
change or thwart its mandates, except through the peaceful means of
a constitutional convention, or of an amendment according to the
mode therein prescribed, or through the exertion of the original right
of revolution. "The Constitution may be set aside by revolution, but it
can only be amended in the way it provides," said Hobson, C.J., in
McCreary v. Speer, 156 Ky. 783, 791, 162 S.W. 99, 103. (Johnson
vs. Craft, et al., 87 So. 375, 385, 387, On Rehearing).
"The fact that a majority voted for the amendment, unless the vote
was taken as provided by the Constitution, is not sufficient to make a
change in that instrument. Whether a proposed amendment has been
legally adopted is a judicial question, for the court must uphold and
enforce the Constitution as written until it is amended in the way
which it provides for." Wood v. Tooker, 15 Mont. 8, 37 Pac 840, 25
L.R.A. 560; McConaughty v. State, 106 Minn. 409, 119 N.W.
408; Oakland Paving Company v. Hilton, 69 Cal. 499, 11 Pac.
3; Utter v. Mosely, 16 Idaho 274, 100 Pac. 1958, 133 Am. St. Rep.
94, 18 Ann. Cas. 723. (McCreary v. Speer, 162 S.W. 99, 104).
"Provisions of a constitution regulating its own amendment, ... are not

merely directory, but are mandatory; and a strict observance of every
substantial mandatory; and a strict observance of every substantial
requirement is essential to the validity of the proposed amendment.
These provisions are as binding on the people as on the legislature,
and the former are powerless by vote of acceptance to give legal
sanction to an amendment the submission of which was made in
disregard of the limitations contained in the constitution." (16 C.J.S.
35-36. cited in Graham v. Jones, 3 So. 2d 761, 782).
"It is said that chaos and confusion in the government affairs of the
State will result from the Court's action in declaring the proposed
constitutional amendment void. This statement is grossly and
manifestly inaccurate. If confusion and chaos should ensue, it will not
be due to the action of the Court but will be the result of the failure of
the drafters joint resolution to observe, follow and obey the plain
essential provisions of the Constitution. Furthermore, to say that, the
Court disregards its sworn duty to enforce the Constitution, chaos
and confusion will result, is an inherently weak argument in favor of
the alleged constitutionality of the proposed amendment. It is obvious
that, if the Court were to countenance the violations of the
sacramental provisions Constitution, those who would thereafter
desire to violate it disregard its clear mandatory provisions would
resort to the scheme of involving and confusing the affairs of the
State then simply tell the Court that it was powerless to exercise one
of its primary functions by rendering the proper decree to make the
Constitution effective." (Graham v. Jones, 3 So. 2d. 761, 793-794).
In our jurisprudence I find an instance where this Court did not allow the will of the
majority to prevail, because the requirements of the law were not complied with. In
the case of Monsale v. Nico, 83 Phil. 758, Monsale and Nico were both candidates
for the office of Municipal Mayor of Miagao, Iloilo, in the elections of November 11,
1947. Monsale had duly filed his certificate of candidacy before the expiration of the
period for the filing of the same. However, on October 10, 1947, after the period for
the filing of the certificate of candidacy, Monsale withdrew his certificate of
candidacy. But on November 7, 1947 Monsale attempted to revive his certificate of
candidacy by withdrawing the withdrawal of certificate of candidacy. The Commission
on Elections, November 8, 1947, ruled that Monsale could no longer be a candidate.
Monsale nevertheless proceeded with his candidacy. The boards of inspectors in
Miagao, however, did not count the votes cast for Monsale upon the ground that the
votes cast for him were stray votes, because he was considered as having no
certificate of candidacy. On the other hand, the boards of inspectors credited Nico
with 2,291 votes, and Nico was proclaimed elected. Monsale filed a protest against
the election of Nico in the Court of First Instance of Iloilo. In the count of the ballots
during the proceedings in the trial court, it appeared that Monsale had obtained 2,877
votes while Nico obtained 2,276 votes, or a margin of 601 votes in favor of Monsale.
The Court of First Instance of Iloilo decided the election protest in favor of Monsale.
Upon appeal by Nico, this Court reversed the decision of the lower court. This Court
declared that because Monsale withdrew his certificate of candidacy, his attempt to
revive it by withdrawing his withdrawal of his certificate of candidacy did not restore
the effectiveness of his certificate of candidacy, and this Court declared Nico the
winner in spite of the fact that Monsale had obtained more votes than he.
We have cited this Monsale case to show that the will of the majority of the voters
would not be given effect, as declared by this Court, if certain legal requirements
have not been complied with in order to render the votes valid and effective to decide
the result of an election.
And so, in the cases now before this Court, the fact that the voting in the citizens
assemblies (barangays) is not the election that is provided for in the 1935
Constitution for the ratification of the amendment to the Constitution, the affirmative
votes cast in those assemblies can not be made the basis for declaring the
ratification of the proposed 1972 Constitution, in spite of the fact that it was reported
that 14,976,561 members of the citizens assemblies voted for the adoption as
against 743,869 for the rejection, because the votes thus obtained were not in
accordance with the provisions of Section 1 of Article XV of the 1935 Constitution of
the Philippines. The rule of law mast be upheld.
My last observation: One of the valid grounds against the holding of the plebiscite on
January 15, 1973, as provided in Presidential Decree No. 73, is that there is no
freedom on the part of the people to exercise their right of choice because of the
existence of martial law in our country. The same ground holds true as regards to the
voting of the barangays on January 10 to 15, 1973. More so, because by General
Order No. 20, issued on January 7, 1973, the President of the Philippines ordered
"that the provisions of Section 3 of Presidential Decree No. 73 in so far as they allow
free public discussion of the proposed constitution, as well as my order of December
17, 1972 temporarily suspending the effects of Proclamation No. 1081 for the
purpose of free and open debate on the proposed constitution, be suspended in the
meantime." It is, therefore, my view that voting in the barangays on January 10, 1973
was not free, and so this is one added reason why the results of the voting in the
barangays should not be made the basis for proclamation of the ratification of the
proposed Constitution.
It is my view, therefore, that Proclamation No. 1102 repugnant to the 1935

Constitution, and so it is invalid, and should not be given effect. The Constitution of
1972 proposed by the 1971 Constitutional Convention should be considered as not
yet ratified by the people of this Republic, and so it should not be given force and
effect.
It is urged by the Solicitor General, however, that the voting in the citizens assemblies was a
substantial compliance with the provisions of Article XV of the 1935 Constitution. The Solicitor
General maintains that the primary thrust of the provision of Article XV of the 1935 Constitution is
that "to be valid, amendments must gain the approval of the majority recognition of the democratic
postulate that sovereign resides in the people." It is not disputed that in a democratic sovereignty
resides in the people. But the term "people" must be understood in its constitutional meaning, and
they are "those persons who are permitted by the Constitution to exercise the elective
franchise." Thus, in Section 2 of Article VII of the 1935 Constitution, it is provided that "the President
8
shall hold his office during a term of four years and, together with the Vice-President chosen for the
same term, shall be elected by direct vote of the people..." Certainly under that constitutional
provision, the "people" who elect directly the President and the Vice-President are no other than the
persons who, under the provisions of the same Constitution, are granted the right to vote. In like
manner the provision in Section 1 of Article II of the 1935 Constitution which says "Sovereignty
resides in the people and all government authority emanates from them", the "people" who exercise
the sovereign power are no other than the persons who have the right to vote under the Constitution.
In the case of Garchitorena vs. Crescini , this Court, speaking through Mr. Justice Johnson, said, "In
9
democracies, the people, combined, represent the sovereign power of the State. Their sovereign
authority is expressed through the ballot, of the qualified voters, in duly appointed elections held
from time to time, by means of which they choose their officials for definite fixed periods, and to
whom they entrust, for the time being, as their representatives, the exercise of the powers of
government." In the case of Moya v. Del Fierro, this Court, speaking through Mr. Justice Laurel,
10
said, "As long as popular government is an end to be achieved and safeguarded, suffrage, whatever
may be the modality and form devised, must continue to be the means by which the great reservoir
of power must be emptied into the receptacular agencies wrought by the people through their
Constitution in the interest of good government and the common weal. Republicanism, in so far as it
implies the adoption of a representative type of government, necessarily points to the enfranchised
citizen as a particle of popular sovereignty and as the ultimate source of the established authority."
And in the case of Abanil v. Justice of the Peace of Bacolod, this Court said: "In the scheme of our
11
present republican government, the people are allowed to have a voice therein through the
instrumentality of suffrage to be availed of by those possessing certain prescribed qualifications. The
people, in clothing a citizen with the elective franchise for the purpose of securing a consistent and
perpetual administration of the government they ordain, charge him with the performance of a duty in
the nature of a public trust, and in that respect constitute him a representative of the whole people.
This duty requires that the privilege thus bestowed exclusively for the benefit of the citizen or class of
citizens professing it, but in good faith and with an intelligent zeal for the general benefit and welfare
of the state. (U.S. v. Cruikshauk, 92 U.S. 588)..." There is no question, therefore, that when we talk
of sovereign people, what is meant are the people who act through the duly qualified and registered
voters who vote during an election that is held as provided in the Constitution or in the law.
The term "election" as used in Section 1 of Article XV of the 1935 Constitution should be construed
along with the term "election" as used in the Provisions of Section 4 of the Philippine Independence
Act of the Congress of the United States, popularly known as the Tydings-McDuffie Law (Public Act
No. 127). Said Section 4 of the Tydings-McDuffie Law provides as follows:
Section 4. After the President of the United States certified that the constitution
conforms with the provisions of this act, it shall be submitted to the people of the
Philippine Islands for their ratification or rejection at an election to he held within
months after the date of such certification, on a date to be fixed by the Philippine
Legislature at which election, the qualified voters of the Philippine Islands shall have
an opportunity to vote directly or against the proposed constitution and ordinances
append thereto. Such election shall be held in such manner as may prescribed by
the Philippine Legislature to which the return of the election shall be made. The
Philippine Legislature shall certify the result to the Governor-General of the Philippine
Islands, together with a statement of the votes cast, and a copy of said constitution
ordinances. If a majority of the votes cast shall be for the constitution, such vote shall
be deemed an expression of the will of the people of the Philippine Independence,
and the Governor-General shall, within thirty days after receipt of the certification
from the Philippine Legislature, issue a proclamation for the election of officers of the
government of the Commonwealth of the Philippine Islands provided for in the
Constitution...
It can safely be said, therefore, that when the framers of the 1935 Constitution used, the word
"election" in Section I Article XV of the 1935 Constitution they had no other idea in mind except the
elections that were periodically held in the Philippines for the choice of public officials prior to the
drafting of the 1935 Constitution, and also the "election" mentioned in the Independence Act at
which "the qualified voters of the Philippine Islands shall have an opportunity to vote directly for or
against the proposed constitution..." It is but logical to expect that the framers of the 1935
Constitution would provide a mode of ratifying an amendment to that Constitution similar to the mode
of ratifying the original Constitution itself.
It is clear therefore, that the ratification or any amendment to the 1935 Constitution could only be
done by holding an election, as the term "election" was understood, and practiced, when the 1935
Constitution as drafted. The alleged referendum in the citizens assemblies — participated in by
persons aged 15 years or more, regardless of whether they were qualified voters or not, voting by
raising their hands, and the results of the voting reported by the barrio or ward captain, to the
municipal mayor, who in turn submitted the report to the provincial Governor, and the latter
forwarding the reports to the Department of Local Governments, all without the intervention of the
Commission on Elections which is the constitutional body which has exclusive charge of the
enforcement and administration of all laws, relative to the conduct of elections — was not only a
non-substantial compliance with the provisions of Section 1 of Article XV of the 1935 Constitution but
a downright violation of said constitutional provision. It would be indulging in sophistry to maintain
that the voting in the citizens assemblies amounted to a substantial compliance with the
requirements prescribed in Section 1 of Article XV of the 1935 Constitution.
It is further contended by the Solicitor General, that even if the Constitution proposed by the 1971
Constitutional Convention was not ratified in accordance with the provisions of Section 1 of Article
XV of the 1935 Constitution, the fact is that after the President of the Philippines had issued
Proclamation No. 1102 declaring that the said proposed Constitution "has been ratified by
overwhelming majority of all the votes cast by the members of all the barangays (citizens
assemblies) throughout the Philippines and had thereby come into effect" the people have accepted
the new Constitution. What appears to me, however, is that practically it is only the officials and
employees under the executive department of the Government who have been performing their
duties apparently in observance of the provisions of the new Constitution. It could not be otherwise,
because the President of the Philippines, who is the head of the executive department, had
proclaimed that the new Constitution had come into effect, and his office had taken the steps to
implement the provisions of the new Constitution. True it is, that some 92 members of the House of
Representatives and 15 members of the Senate, of the Congress of the Philippines had expressed
their option to serve in the interim National Assembly that is provided for in Section 2 of Article XVII
of the proposed Constitution. It must be noted, however, that of the 15 senators who expressed their
option to serve in the interim National Assembly only one them took his oath of office; and of the 92
members of the House of Representatives who opted to serve in the interim National Assembly, only
22 took their oath of office. The fact that only one Senator out of 24, and only 22 Representative out
of 110, took their oath of office, is an indication that only a small portion of the members of Congress
had manifested the acceptance of the new Constitution. It is in the taking of the oath of office where
the affiant says that he swears to "support and defend the Constitution" that the acceptance of the
Constitution is made manifest. I agree with counsel petitioners in L-36165 (Gerardo Roxas, et al. v.
Alejandro Melchor, et al.) when he said that the members of Congress who opted to serve in the
interim National Assembly did only ex abundante cautela, or by way of a precaution, making sure,
that in the event the new Constitution becomes definitely effective and the interim National Assembly
convened, they can participate in legislative work in the capacity as duly elected representatives of
the people, which otherwise they could not do if they did not manifest their option to serve, and that
option had to be made within 30 day from January 17, 1973, the date when Proclamation No. 110
was issued. Of course, if the proposed Constitution does not become effective, they continue to be
members of Congress under the 1935 Constitution. Let it be considered that the members of the
House of Representatives were elected in 1969 to serve a term which will yet expire on December
31, 1973. Whereas, of the Senators who opted to serve in the interim National Assembly, the term of
some of them will yet expire on December 31, 1973, some on December 31, 1975, and the rest on
December 31, 1977. Let if be noted that 9 Senators did not opt to serve in the interim National
Assembly, and 18 members of the House of Representatives also did not opt to serve in the interim
National Assembly.
Neither can it be said that the people have accepted the new Constitution. I cannot, in conscience,
accept the reported affirmative votes in the citizens assemblies as a true and correct expression by
the people of their approval, or acceptance, of the proposed Constitution. I have my serious doubts
regarding the freedom of the people to express their views regarding the proposed Constitution
during the voting in the citizens assemblies, and I have also my serious doubts regarding the
truthfulness and accuracy of the reports of the voting in the citizens assemblies. This doubt has been
engendered in my mind after a careful examination and study of the records of these cases,
particularly with respect to the reports of the voting in the citizens assemblies. Perhaps, it may be
said that the people, or the inhabitants of this country, have acquiesced to the new Constitution, in
the sense that they have continued to live peacefully and orderly under the government that has
been existing since January 17, 1973 when it was proclaimed that the new Constitution came into
effect. But what could the people do? In the same way that the people have lived under martial law
since September 23, 1972, they also have to live under the government as it now exists, and as it
has existed since the declaration of martial law on September 21, 1972, regardless of what
Constitution is operative — whether it is the 1935 Constitution or the new Constitution. Indeed, there
is nothing that the people can do under the circumstances actually prevailing in our country today —
circumstances, known to all, and which I do not consider necessary to state in this opinion. I cannot
agree, therefore, with my worthy colleagues in the Court who hold the view that the people have
accepted the new Constitution, and that because the people have accepted it, the new Constitution
should be considered as in force, regardless of the fact that it was not ratified in accordance with the
provisions of Section 1 of Article XV of the 1935 Constitution.
It is my honest view that the Constitution proposed by the 1971 Constitutional Convention has not
come into effect. I do not say, however, that the proposed Constitution is invalid. To me, the validity
of the proposed Constitution is not in issue in the cases before Us. What the petitioners assail is not
the validity of the proposed Constitution but the validity of Presidential Proclamation No. 1102 which
declares the proposed Constitution as having been ratified and has come into effect. It being my
considered view that the ratification of the proposed Constitution, as proclaimed in Proclamation No.
1102, is not in accordance with the provisions of Section 1 of Article XV, of the 1935 Constitution, I
hold that Proclamation No. 1102 is invalid and should not be given force and effect. Their proposed
Constitution, therefore, should be considered as not yet validly ratified, and so it is not in force. The
proposed Constitution may still be submitted to a plebiscite in conformity with Section 1 of Article XV
of the 1935 Constitution. Incidentally, I must state that the Constitution is still in force, and this Court
is still functioning under the 1935 Constitution.
I sincerely believe that the proposed Constitution may still be submitted to the people in an election
or plebiscite held in accordance with the provisions of Section 1 of Article XV of the 1935
Constitution. In fact, as we have adverted to in this opinion, this was the mandate of Congress when,
on March 16, 1967, it passed Resolution No. 2 calling a convention to propose amendments to the
1935 Constitution. The Court may take judicial notice of the fact that the President of the Philippines
has reassured the nation that the government of our Republic since the declaration of martial law is
not a revolutionary government, and that he has been acting all the way in consonance with his
powers under the Constitution. The people of this Republic has reason to be happy because,
according to the President, we still have a constitutional government. It being my view that the 1935
Constitution is still in force, I believe Congress may still convene and pass a law calling for an
election at which the Constitution proposed by the 1971 Constitutional Convention will be submitted
to the people their ratification or rejection. A plebiscite called pursuant to Section 1 of Article XV of
the 1935 Constitution is an assurance to our people that we still have in our country the Rule of Law
and that the democratic system of government that has been implanted in our country by the
Americans, and which has become part of our social and political fabric, is still a reality.
The views that I have expressed in this opinion are inspired by a desire on my part to bring about
stability in democratic and constitutional system in our country. I feel that if this Court would give its
imprimatur to the ratification of the proposed Constitution, as announced in Proclamation No. 1102, it
being very clear that the provisions of Section 1 of Article XV of the 1935 Constitution had not been
complied with, We will be opening the gates for a similar disregard of the Constitution in the future.
What I mean is that if this Court now declares that a new Constitution is now in force because the
members of the citizens assemblies had approved the said new Constitution, although that approval
was not in accordance with the procedure and the requirements prescribed in the 1935 Constitution,
it can happen again in some future time that some amendments to the Constitution may be adopted,
even in a manner contrary to the existing Constitution and the law, and then said proposed
amendment is submitted to the people in any manner and what will matter is that a basis is claimed
that there was approval by the people. There will not be stability in our constitutional system, and
necessarily no stability in our government. As a member of this Court I only wish to contribute my
humble efforts to prevent the happening of such a situation in the future.
It appearing to me that the announced ratification of the proposed Constitution through the voting in
the citizens assemblies is a clear violation of the 1935 Constitution, what I say in this opinion is
simply an endeavor on my part to be true to my oath of office to defend and support the 1935
Constitution. I am inspired by what the great jurist and statesman, Jose P. Laurel, said:
Let our judges be as it were the vestal keepers of the purity and sanctity of our
Constitution, and the protection and vindication of popular rights will be safe and
secure in their reverential guardianship.
I only wish to help prevent, if I can, democracy and the liberties of our people from vanishing in our
land, because, as Justice George Sutherland of the U. S. Supreme Court said:
(t)he saddest epitaph which can be carved in memory of a vanished liberty is that it
was lost because its possessors failed to stretch forth a saving hand while yet there
was time.
I concur fully with the personal views expressed by the Chief Justice in the opinion that he has
written in these cases. Along with him, I vote to deny the motion to dismiss and give due course to
the petitions in these cases.
FERNANDO, J., dissenting:
No question more momentous, none impressed with such transcendental significance is likely to
confront this Court in the near or distant future as that posed by these petitions. For while the
specific substantive issue is the validity of Presidential Proclamation No. 1102, an adverse judgment
may be fraught with consequences that, to say the least, are far-reaching in its implications. As
stressed by respondents, "what petitioners really seek to invalidate is the new Constitution." Strict
1
accuracy would of course qualify such statement that what is in dispute, as noted in the opinion of
the Chief Justice, goes only as far as the validity of its ratification. It could very well be though that
the ultimate outcome is not confined within such limit, and this is not to deny that under its aegis,
there have been marked gains in the social and economic sphere, but given the premise of
continuity in a regime under a fundamental law, which itself explicitly recognizes the need for change
and the process for bringing it about, it seems to me that the more appropriate course is this Court
2
to give heed to the plea of petitioners that the most serious attention be paid to their submission that
the challenged executive act fails to meet the test of constitutionality. Under the circumstances, with
regret and with due respect for the opinion of my brethren, I must perforce dissent. It would follow
therefore that the legal position taken by the Chief Justice as set forth with his usual lucidity and
thoroughness has, on the whole, my concurrence, subject, of course, to reservations insofar as it
contains views and nuances to which I have in the past expressed doubts. Nonetheless, I feel that a
brief expression of the reasons for the stand I take would not be amiss.
In coping with its responsibility arising from the function of judicial review, this Court is not expected
to be an oracle given to utterances of eternal verities, but certainly it is more than just a keen but
passive observer of the contemporary scene. It is, by virtue of its role under the separation of powers
concept, involved not necessarily as a participant in the formation of government policy, but as an
arbiter of its legality. Even then, there is realism in what Lerner did say about the American Supreme
Court as "the focal point of a set of dynamic forces which [could play] havoc with the landmarks of
the American state and determine the power configuration of the day." That is why there is
3
this caveat. In the United States as here, the exercise of the power of judicial review is conditioned
on the necessity that the decision of a case or controversy before it so requires. To repeat, the
Justices of the highest tribunal are not, as Justice Frankfurter made clear, "architects of policy. They
can nullify the policy of others, they are incapable of fashioning their own solutions for social
problems." Nonetheless, as was stressed by Professors Black and Murphy, a Supreme Court by
4 5 6
the conclusion it reaches and the decision it renders does not merely check the coordinate
branches, but also by its approval stamps with legitimacy the action taken. Thus in affirming
constitutional supremacy, the political departments could seek the aid of the judiciary. For the assent
it gives to what has been done conduces to its support in a regime where the rule of law holds sway.
In discharging such a role, this Court must necessarily take in account not only what the exigent
needs of the present demand but what may lie ahead in the unexplored and unknown vistas of the
future. It must guard against the pitfall of lack of understanding of the dominant forces at work to
seek a better life for all, especially those suffering from the pangs of poverty and disease, by a blind
determination to adhere to the status quo. It would be tragic, and a clear case of its being recreant to
its trust, if the suspicion can with reason be entertained that its approach amounts merely to a
militant vigilantism that is violently opposed to any form of social change. It follows then that it does
not suffice that recourse be had only to what passes for scholarship in the law that could be marred
by inapplicable erudition and narrow legalism. Even with due recognition, such factors, however, I
cannot, for reasons to be set more lengthily and in the light of the opinion of the Chief Justice, reach
the same result as the majority of my brethren. For, in the last analysis, it is my firm conviction that
the institution of judicial review speaks too clearly for the point to be missed that official action, even
with due allowance made for the good faith that invariably inspires the step taken, has to face the
gauntlet of a court suit whenever there is a proper case with the appropriate parties.
1. Respondents are acting in the soundest constitutional tradition when, at the outset, they would
seek a dismissal of these petitions. For them, the question raised is political and thus beyond the
jurisdiction of this Court. Such an approach cannot be indicted for unorthodoxy. It is implicit in the
concept of the rule of law that rights belong to the people and the government possesses powers
only. Essentially then, unless such an authority may either be predicated on express or implied grant
in the Constitution or the statutes, an exercise thereof cannot survive an inquiry as to its validity.
Respondents through Solicitor-General Mendoza would deny our competence to proceed further. It
is their view, vigorously pressed and plausibly asserted, that since what is involved is not merely the
effectivity of an amendment but the actual coming into effect of a new constitution, the matter is not
justiciable. The immediate reaction is that such a contention is to be tested in the light of the
fundamental doctrine of separation of powers that it is not only the function but the solemn duty of
the judiciary to determine what the law is and to apply it in cases and controversies that call for
decision. Since the Constitution pre-eminently occupies the highest rung in the hierarchy of legal
7
norms, it is in the judiciary, ultimately this Tribunal, that such a responsibility is vested. With the 1935
Constitution containing, as above noted, an explicit article on the subject of amendments, it would
follow that the presumption to be indulged in is that the question of whether there has been
deference to its terms is for this Court to pass upon. What is more, the Gonzales, Tolentino and
8 9
Planas cases speak unequivocally to that effect. Nor is it a valid objection to this conclusion that
10
what was involved in those cases was the legality of the submission and not ratification, for from the
very language of the controlling article, the two vital steps are proposal and ratification, which as
pointed out in Dillon v. Gloss, "cannot be treated as unrelated acts, but as succeeding steps in a
11
single endeavor." Once an aspect thereof is viewed as judicial, there would be no justification for
12
considering the rest as devoid of that character. It would be for me then an indefensible retreat,
deriving no justification from circumstances of weight and gravity, if this Court were to accede to
what is sought by respondents and rule that the question before us is political.
On this point, it may not be inappropriate to refer to a separate opinion of mine in Lansang v.
Garcia. Thus: "The term has been made applicable to controversies clearly non-judicial and
13
therefore beyond its jurisdiction or to an issue involved in a case appropriately subject to its
cognizance, as to which there has been a prior legislative or executive determination to which
deference must be paid. It has likewise been employed loosely to characterize a suit where the party
proceeded against is the President or Congress, or any branch thereof. If to be delimited with
accuracy, "political questions" should refer to such as would under the Constitution be decided by
the people in their sovereign capacity or in regard to full discretionary authority is vested either in the
President or Congress. It is thus beyond the competence of the judiciary to pass upon. Unless
clearly falling within the formulation, the decision reached by the political branches whether in the
form of a congressional act or an executive order could be tested in court. Where private rights are
affected, the judiciary has no choice but to look into its validity. It is not to be lost sight of that such a
power comes into play if there be an appropriate proceeding that may be filed only after each
coordinate branch has acted. Even when the Presidency or Congress possesses plenary powers, its
improvident exercise or the abuse thereof, if shown, may give rise to a justiciable controversy. For
the constitutional grant of authority is usually unrestricted. There are limits to what may be done and
how it is to be accomplished. Necessarily then, the courts in the proper exercise of judicial review
could inquire into the question of whether or not either of the two coordinate branches has adhered
to what is laid down by the Constitution. The question thus posed is judicial rather than
political." The view entertained by Professor Dodd is not too dissimilar. For him such a term "is
14
employed to designate certain types of functions committed to the political organs of government
(the legislative and executive departments, or either of them) and not subject to judicial
investigation." After a thorough study of American judicial decisions, both federal and state, he
15
could conclude: "The field of judicial nonenforceability is important, but is not large when contrasted
with the whole body of written constitutional texts. The exceptions from judicial enforceability fall
primarily within the field of public or governmental interests." Nor was Professor Weston's
16
formulation any different. As was expressed by him: "Judicial questions, in what may be thought the
more useful sense, are those which the sovereign has set to be decided in the courts. Political
questions, similarly, are those which the sovereign has entrusted to the so-called political
departments of government or has reserved to be settled by its own extra-governmental
action." What appears undeniable then both from the standpoint of Philippine as well as American
17
decisions is the care and circumspection required before the conclusion is warranted that the matter
at issue is beyond judicial cognizance, a political question being raised.
2. The submission of respondents on this subject of political question, admittedly one of complexity
and importance, deserves to be pursued further. They would derive much aid and comfort from the
writings of both Professor Bickel of Yale and Professor Freund of Harvard, both of whom in turn
18 19
are unabashed admirers of Justice Brandeis. Whatever be the merit inherent in their lack of
enthusiasm for a more active and positive role that must be played by the United States Supreme
Court in constitutional litigation, it must be judged in the light of our own history. It cannot be denied
that from the well nigh four decades of constitutionalism in the Philippines, even discounting an
almost similar period of time dating from the inception of American sovereignty, there has sprung a
tradition of what has been aptly termed as judicial activism. Such an approach could be traced to the
valedictory address before the 1935 Constitutional Convention of Claro M. Recto. He spoke of the
trust reposed in the judiciary in these words: "It is one of the paradoxes of democracy that the people
at times place more confidence in instrumentalities of the State other than those directly chosen by
them for the exercise of their sovereignty." 20 It would thus appear that even then this Court was
expected not to assume an attitude of timidity and hesitancy when a constitutional question is posed.
There was the assumption of course that it would face up to such a task, without regard to political
considerations and with no thought except that of discharging its trust. Witness these words Justice
Laurel in an early landmark case, People v. Vera, decided in 1937: "If it is ever necessary for us to
21
make vehement affirmance during this formative period of political history, it is that we are
independent of the Executive no less than of the Legislative department of our government —
independent in the performance of our functions, undeterred by any consideration, free from politics,
indifferent to popularity, and unafraid of criticism in the accomplishment of our sworn duty as we see
it and as we understand it." The hope of course was that such assertion of independence
22
impartiality was not mere rhetoric. That is a matter more appropriately left to others to determine. It
suffices to stake that what elicits approval on the part of our people of a judiciary ever alert to inquire
into alleged breaches of the fundamental law is the realization that to do so is merely to do what is
expected of it and that thereby there is no invasion of spheres appropriately belonging to the political
branches. For it needs to be kept in kind always that it can act only when there is a suit with proper
parties before it, wherein rights appropriate for judicial enforcement are sought to be vindicated.
Then, too, it does not approach constitutional questions with dogmatism or apodictic certainty nor
view them from the shining cliffs of perfection. This is not to say though that it is satisfied with an
empiricism untroubled by the search for jural consistency and rational coherence. A balance has to
be struck. So juridical realism requires. Once allowance made that for all its care and circumspection
this Court manned by human beings fettered by fallibility, nonetheless earnestly and sincerely
striving to do right, the public acceptance of its vigorous pursuit of the task of assuring that the
Constitution be obeyed is easy to understand. It has not in the past shirked its responsibility to
ascertain whether there has been compliance with and fidelity to constitutional requirements. Such is
the teaching of a host of cases from Angara v. Electoral
Commission to Planas v. Commission on Elections. It should continue to exercise its jurisdiction,
23 24
even in the face of a plausible but not sufficiently persuasive insistence that the matter before it is
political.
Nor am I persuaded that the reading of the current drift in American legal scholarship by the
Solicitor-General and his equally able associates presents the whole picture. On the question of
judicial review, it is not a case of black and white; there are shaded areas. It goes too far, in my view,
if the perspective is one of dissatisfaction, with its overtones of distrust. This expression of
disapproval has not escaped Dean Rostow of Yale, who began one of his most celebrated legal
essays. The Democratic Character of Judicial Review, thus: "A theme of uneasiness, and even of
guilt, colors the literature about judicial review. Many of those who have talked, lectured, and written
about the Constitution have been troubled by a sense that judicial review is undemocratic." He25
went on to state: "Judicial review, they have urged, is an undemocratic shoot on an otherwise
respectable tree. It should be cut off, or at least kept pruned and
inconspicuous." His view was precisely the opposite. Thus: "The power of constitutional review, to
26
be exercised by some part of the government, is implicit in the conception of a written constitution
delegating limited powers. A written constitution would promote discord rather than order in society if
there were no accepted authority to construe it, at the least in case of conflicting action by different
branches of government or of constitutionally unauthorized governmental action against individuals.
The limitation and separation of powers, if they are to survive, require a procedure for independent
mediation and construction to reconcile the inevitable disputes over the boundaries of constitutional
power which arise in the process of government." More than that, he took pains to emphasize:
27
"Whether another method of enforcing the Constitution could have been devised, the short answer is
that no such method developed. The argument over the constitutionality of judicial review has long
since been settled by history. The power and duty of the Supreme Court to declare statutes or
executive action unconstitutional in appropriate cases is part of the living Constitution. 'The course of
constitutional history,' Mr. Justice Frankfurter recently remarked, 'has cast responsibilities upon the
Supreme Court which it would be "stultification" for it to evade.' " Nor is it only Dean Rostow who
28
could point Frankfurter, reputed to belong to the same school of thought opposed to judicial activism,
if not its leading advocate during his long stay in the United States Supreme Court, as one fully
cognizant of the stigma that attaches to a tribunal which neglects to meet the demands of judicial
review. There is a statement of similar importance from Professor Mason: "In Stein v. New
York Frankfurter remarked, somewhat self-consciously perhaps, that the 'duty of deference cannot
be allowed imperceptibly to slide into abdication.' " Professor Konefsky, like Dean Rostow, could
29
not accept characterization of judicial review as undemocratic. Thus his study of Holmes and
Brandeis, the following appears: "When it is said that judicial review is an undemocratic feature of
our political system, it ought also to be remembered that architects of that system did not equate
constitutional government with unbridled majority rule. Out of their concern for political stability and
security for private rights, ..., they designed a structure whose keystone was to consist of barriers to
the untrammeled exercise of power by any group. They perceived no contradiction between effective
government and constitutional checks. To James Madison, who may legitimately be regarded as the
philosopher of the Constitution, the scheme of mutual restraints was the best answer to what he
viewed as the chief problem in erecting a system of free representative government: 'In framing a
government which is to be administered by men over men, the great difficulty lies in this: you must
first enable the government to control the governed; and in the next place oblige it to control itself.'
"
30
There is thus an inevitability to the flowering of judicial review. Could it be that the tone of discontent
apparent in the writings of eminent authorities on the subject evince at the most fears that the
American Supreme Court might overstep the bounds allotted to the judiciary? It cannot be a denial of
the fitness of such competence being vested in judges and of their being called upon to fulfill such a
trust whenever appropriate to the decision of a case before them. That is why it has been correctly
maintained that notwithstanding the absence of any explicit provision in the fundamental law of the
United States Constitution, that distinguished American constitutional historian, Professor Corwin,
could rightfully state that judicial review "is simply incidental to the power of courts to interpret the
law, of which the Constitution is part, in connection with the decision of cases." This is not to deny
31
that there are those who would place the blame or the credit, depending upon one's predilection, on
Marshall's epochal opinion in Marbury v. Madison. Curtis belonged to that persuasion. As he put it:
32
"The problem was given no answer by the Constitution. A hole was left where the Court might drive
in the peg of judicial supremacy, if it could. And that is what John Marshall did." At any rate there
33
was something in the soil of American juristic thought resulting in this tree of judicial power so
precariously planted by Marshall striking deep roots and showing wonderful vitality and hardiness. It
now dominates the American legal scene. Through it, Chief Justice Hughes, before occupying that
exalted position, could state in a lecture: "We are under a Constitution, but the Constitution is what
the judges say it is ... ." The above statement is more than just an aphorism that lends itself to
34
inclusion in judicial anthologies or bar association speeches. It could and did provoke from Justice
Jackson, an exponent of the judicial restraint school of thought, this meaningful query: "The
Constitution nowhere provides that it shall be what the judges say it is. How, did it come about that
the statement not only could be but could become current as the most understandable
comprehensive summary of American Constitutional law?" It is no wonder that Professor Haines
35
could pithily and succinctly sum up the place of the highest American tribunal in the scheme of
things in this wise: "The Supreme Court of the United States has come to be regarded as the unique
feature of the American governmental system." Let me not be misunderstood. There is here no
36
attempt to close one's eyes to a discernible tendency on the part of some distinguished faculty minds
to look askance at what for them may be inadvisable extension of judicial authority. For such indeed
is the case as reflected in two leading cases of recent vintage, Baker v. Carr, decided in 1962
37
and Powell v. MacCormack, in 1969, both noted in the opinion of the Chief Justice. The former
38
disregarded the warning of Justice Frankfurter in Colegrove v. Green 39 about the American
Supreme Court declining jurisdiction on the question of apportionment as to do so would cut very
deep into the very being of Congress." For him, the judiciary "ought not to enter this political
40
thicket." Baker has since then been followed; it has spawned a host of cases. Powell, on the
41
question of the power of a legislative body to exclude from its ranks a person whose qualifications
are uncontested, for many the very staple of what is essentially political, certainly goes even further
than the authoritative Philippine decision of Vera v. Avelino, It does look then that even in the
42
United States, the plea for judicial self-restraint, even if given voice by those competent in the field of
constitutional law, has fallen on deaf ears. There is in the comments of respondents an excerpt from
Professor Freund quoting from one of his essays appearing in a volume published in 1968. It is not
without interest to note that in another paper, also included therein, he was less than assertive about
the necessity for self-restraint and apparently mindful of the claims of judicial activism. Thus: "First of
all, the Court has a responsibility to maintain the constitutional order, the distribution of public power,
and the limitations on that power." As for Professor Bickel, it has been said that as counsel for the
43
New York Times in the famous Vietnam papers case, he was less than insistent on the American
44
Supreme Court exercising judicial self-restraint. There are signs that the contending forces on such
question, for some an unequal contest, are now quiescent. The fervor that characterized the
expression of their respective points of view appears to have been minimized. Not that it is to be
expected that it will entirely disappear, considering how dearly cherished are, for each group, the
convictions, prejudices one might even say, entertained. At least what once was fitly characterized
as the booming guns of rhetoric, coming from both directions, have been muted. Of late, scholarly
disputations have been centered on the standards that should govern the exercise of the power of
judicial review. In his celebrated Holmes lecture in 1959 at the Harvard Law School, Professor
Wechsler advocated as basis for decision what he termed neutral principles of constitutional law. It 45
has brought forth a plethora of law review articles, the reaction ranging from guarded conformity to
caustic criticism. There was, to be sure, no clear call to a court in effect abandoning the
46
responsibility incumbent on it to keep governmental agencies within constitutional channels. The

matter has been put in temperate terms by Professor Frank thus: "When allowance has been made
for all factors, it nevertheless seems to me that the doctrine of political questions ought to be very
sharply confined to where the functional reasons justify it and that in a give involving its expansion
there should be careful consideration also of the social considerations which may militate against it.
The doctrine has a certain specious charm because of its nice intellectualism and because of the
fine deference it permits to expertise, to secret knowledge, and to the prerogatives of others. It
should not be allowed to grow as a merely intellectual plant." 47
It is difficult for me at least, not to be swayed by appraisal, coming from such impeccable sources of
the worth and significance of judicial review in the United States. I cannot resist the conclusion then
that the views advanced on this subject by distinguished counsel for petitioners, with Senators
Lorenzo M. Tañada and Jovito Salonga at the van, rather than the advocacy of the Solicitor-General,
possess the greater weight and carry persuasion. So much then for the invocation of the political
question principle as a bar to the exercise of our jurisdiction.
3. That brings me to the issue of the validity of the ratification. The crucial point that had to be met is
whether Proclamation No. 1102 manifests fidelity to the explicit terms of Article XV. There is, of
course, the view not offensive to reason that a sense of the realities should temper the rigidity of
devotion to the strict letter of the text to allow deference to its spirit to control. With due recognition of
its force in constitutional litigation, if my reading of the events and the process that led to such
48
proclamation, so clearly set forth in the opinion of the Chief Justice, is not inaccurate, then it cannot
be confidently asserted that there was such compliance. It would be to rely on conjectural
assumptions that did founder on the rock of the undisputed facts. Any other conclusion would, for
me, require an interpretation that borders on the strained. So it has to be if one does not lose sight of
how the article on amendments is phrased. A word, to paraphrase Justice Holmes may not be a
crystal, transparent and unchanged, but it is not, to borrow from Learned Hand, that eminent jurist, a
rubber band either. It would be unwarranted in my view then to assert that the requirements of the
1935 Constitution have been met. There are American decisions, and they are not few in number,
49
which require that there be obedience to the literal terms of the applicable provision. It is
understandable why it should be thus. If the Constitution is the supreme law, then its mandate must
be fulfilled. No evasion is tolerated. Submission to its commands can be shown only if each and
every word is given meaning rather than ignored or disregarded. This is not to deny that a
recognition conclusive effect attached to the electorate manifesting its will to vote affirmatively on the
amendments proposed poses an obstacle to the judiciary being insistent on the utmost regularity.
Briefly stated, substantial compliance is enough. A great many American State decisions may be
cited in support of such a doctrine. 50
Even if the assumption be indulged in that Article XV is not phrased in terms too clear to be misread,
so that this Court is called upon to give meaning and perspective to what could be considered words
of vague generality, pregnant with uncertainty, still whatever obscurity it possesses is illumined when
the light of the previous legislation is thrown on it. In the first Commonwealth Act, submitting to the
51
Filipino people for approval or disapproval certain amendments to the original ordinance appended
to the 1935 Constitution, it was made that the election for such purpose was to "be conducted in
conformity with the provisions of the Election Code insofar as the same may be applicable." Then 52
came the statute, calling for the plebiscite on the three 1940 amendments providing for the
53
plebiscite on the three 1930 amendments providing for a bicameral Congress or a Senate and a
House of Representatives to take the place of a unicameral National Assembly, reducing the term
54
of the President to four years but allowing his re-election with the limitation that he cannot serve
more than eight consecutive years, and creating an independent Commission on
55
Elections. Again, it was expressly provided that the election "shall be conducted in conformity with
56
the provisions of the Election Code in so far as the same may be applicable." The approval of the
57
present parity amendment was by virtue of a Republic Act which specifically made applicable the
58
then Election Code. There is a similar provision in the

59
legislation, which in cotemplation of the 1971 Constitutional Convention, saw to it that there be an
60
increase in the membership of the House of Representatives a maximum of one hundred eighty and
assured the eligibility of senators and representatives to become members of such constituent body
without forfeiting their seats, as proposed amendments to be voted on in the 1967 elections. That61
is the consistent course of interpretation followed by the legislative branch. It is most persuasive, if
not controlling. The restraints thus imposed would set limits to the Presidential action taken, even on
the assumption that either as an agent of the Constitutional Convention or under his martial law
prerogatives, he was not devoid of power to specify the mode of ratification. On two vital points, who
can vote and how they register their will, Article XV had been given a definitive construction. That is
why I fail to see sufficient justification for this Court affixing the imprimatur of its approval on the
mode employed for the ratification of the revised Constitution as reflected in Proclamation No. 1102.
4. Nor is the matter before us solely to be determined by the failure to comply with the requirements
of Article XV. Independently of the lack of validity of the ratification of the new Constitution, if it be
accepted by the people, in whom sovereignty resides according to the Constitution, then this Court
62
cannot refuse to yield assent to such a political decision of the utmost gravity, conclusive in its effect.
Such a fundamental principle is meaningless if it does not imply, to follow Laski, that the nation as a
whole constitutes the "single center of ultimate reference," necessarily the possessor of that "power
that is able to resolve disputes by saying the last word." If the origins of the democratic polity
63
enshrined in the 1935 Constitution with the declaration that the Philippines is a republican state
could be traced back to Athens and to Rome, it is no doubt true, as McIver pointed out, that only with
the recognition of the nation as the separate political unit in public law is there the juridical
recognition of the people composing it "as the source of political authority." From them, as Corwin
64
did stress, emanate "the highest possible embodiment of human will," which is supreme and must
65
be obeyed. To avoid any confusion and in the interest of clarity, it should be expressed in the
manner ordained by law. Even if such is not the case, however, once it is manifested, it is to be
accepted as final and authoritative. The government which is merely an agency to register its
commands has no choice but to submit. Its officials must act accordingly. No agency is exempt such
a duty, not even this Court. In that sense, the lack of regularity in the method employed to register its
wishes is fatal in its consequences. Once the fact of acceptance by people of a new fundamental law
is made evident, the judiciary is left with no choice but to accord it recognition. The obligation to
render it obeisance falls on the courts as well.
There are American State decisions that enunciate such a doctrine. While certainly not controlling,
they are not entirely bereft of persuasive significance. In Miller v. Johnson, decided in 1892, it was
66
set forth in the opinion of Chief Justice Holt that on May 3, 1890, an act was passed in Kentucky,
providing for the calling of a convention for the purpose of framing a new constitution and the
election of delegates. It provided that before any form of constitution made by them should become
operative, it should be submitted to the vote of the state and ratified by a majority of those voting.
The constitution then in force authorized the legislature, the preliminary steps having been taken, to
call a convention "for the purpose of readopting, amending, or changing" it contained no provision
giving the legislature the power to require a submission of its work to a vote of the people. The
convention met in September, 1890. By April, 1891, it completed a draft of a constitution, submitted
it to a popular vote, and then adjourned until September following. When the convention
reassembled, the delegates made numerous changes in instrument. As thus amended, it was
promulgated by the convention of September 28, 1891, as the new constitution. An action was
brought to challenge its validity. It failed in the lower court. In affirming such judgment dismissing the
action, Chief Justice Holt stated: "If a set of men, not selected by the people according to the forms
of law, were to formulate an instrument and declare it the constitution, it would undoubtedly be the
duty of the courts to declare its work a nullity. This would be revolution, and this the courts of the
existing government must resist until they are overturned by power, and a new government
established. The convention, however, was the offspring of law. The instrument which we are asked
to declare invalid as a constitution has been made and promulgated according to the forms of law. It
is a matter of current history that both the executive and legislative branches of the government have
recognized its validity as a constitution, and are now daily doing so. ... While the judiciary should
protect the rights of the people with great care and jealousy, because this is its duty, and also
because; in times of great popular excitement, it is usually their last resort, yet it should at the same
time be careful not to overstep the proper bounds of its power, as being perhaps equally dangerous;
and especially where such momentous results might follow as would be likely in this instance, if the
power of the judiciary permitted, and its duty requires, the overthrow of the work of the
convention." In Taylor v. Commonwealth, a 1903 decision, it was contended that the Virginia
67 68
Constitution reclaimed in 1902 is invalid as it was ordained and promulgated by the convention
without being submitted for ratification or rejection by the people. The Court rejected such a view. As
stated in the opinion of Justice Harrison: "The Constitution of 1902 was ordained and proclaimed by
a convention duly called by direct vote of the people of the state to revise and amend the
Constitution of 1869. The result of the work of the convention has been recognized, accepted, and
acted upon as the only valid Constitution of the state by the Governor in swearing fidelity to it and
proclaiming it, as directed thereby; by the Legislature in its formal official act adopting a joint
resolution, July 15, 1902, recognizing the Constitution ordained by the convention which assembled
in the city of Richmond on the 12th day of June, 1901, as the Constitution of Virginia; by the
individual oaths of members to support it, and by enforcing its provisions; and the people in their
primary capacity by peacefully accepting it and acquiescing in it, by registering as voters under it to
the extent of thousands throughout the state, and by voting, under its provisions, at a general
election for their representatives in the Congress of the United States. The Constitution having been
thus acknowledged and accepted by the office administering the government and by the people of
the state, and there being no government in existence under the Constitution of 1869 opposing or
denying its validity, we have no difficulty in holding that the Constitution in question, which went into
effect at noon on the 10th day of July, 1902, is the only rightful, valid, and existing Constitution of this
state, and that to it all the citizens of Virginia owe their obedience and loyal allegiance."
69
It cannot be plausibly asserted then that premises valid in law are lacking for the claim that the
revised Constitution has been accepted by the Filipino people. What is more, so it has been argued,
it is not merely a case of its being implied. Through the Citizens Assemblies, there was a plebiscite
with the result as indicated in Proclamation No. 1102. From the standpoint of respondents then, they
could allege that there was more than just mere acquiescence by the sovereign people. Its will was
thus expressed formally and unmistakably. It may be added that there was nothing inherently
objectionable in the informal method followed in ascertaining its preference. Nor is the fact that
Filipinos of both sexes above the age of fifteen were given the opportunity to vote to be deplored.
The greater the base of mass participation, the more there is fealty to the democratic concept. It
does logically follow likewise that such circumstances being conceded, then no justifiable question
may be raised. This Court is to respect what had thus received the people's sanction. That is not for
me though whole of it. Further scrutiny even then is not entirely foreclosed. There is still an aspect
that is judicial, an inquiry may be had as to whether such indeed was the result. This is no more than
what the courts do in election cases. There are other factors to bear in mind. The fact that the
President so certified is well-nigh conclusive. There is in addition the evidence flowing from the
conditions of peace and stability. There thus appears to be conformity to the existing order of things.
The daily course of events yields such a conclusion. What is more, the officials under the 1935
Constitution, including practically all Representatives and a majority of the Senators, have signified
their assent to it. The thought persists, however, that as yet sufficient time has not elapsed to be
really certain.
Nor is this all. There is for me an obstacle to the petitions being dismissed for such ascertainment of
popular will did take place during a period of martial law. It would have been different had there been
that freedom of debate with the least interference, thus allowing a free market of ideas. If it were
thus, it could be truly said that there was no barrier to liberty of choice. It would be a clear-cut
decision either way. One could be certain as to the fact of the acceptance of the new or of
adherence to the old. This is not to deny that votes are cast by individuals with their personal
concerns uppermost in mind, worried about their immediate needs and captive to their existing
moods. That is inherent in any human institution, much more so in a democratic polity. Nor is it open
to any valid objection because in the final analysis the state exists for the individuals who in their
collectivity compose it. Whatever be their views, they are entitled to respect. It is difficult for me,
however, at this stage to feel secure in the conviction that they did utilize the occasion afforded to
give expression to what was really in their hearts. This is not to imply that such doubt could not be
dispelled by evidence to the contrary. If the petitions be dismissed however, then such opportunity is
forever lost.
5. With the foregoing legal principles in mind, I find myself unable to join the ranks of my esteemed
brethren who vote for the dismissal of these petitions. I cannot yield an affirmative response to the
plea of respondents to consider the matter closed, the proceedings terminated once and for all. It is
not an easy decision to reach. It has occasioned deep thought and considerable soul-searching. For
there are countervailing considerations that exert a compulsion not easy to resist. It can be asserted
with truth, especially in the field of social and economic rights, that with the revised Constitution,
there is an auspicious beginning for further progress. Then too it could resolve what appeared to be
the deepening contradictions of political life, reducing at times governmental authority to near
impotence and imparting a sense of disillusionment in democratic processes. It is not too much to
say therefore that there had indeed been the revision of a fundamental law to vitalize the very values
out of which democracy grows. It is one which has all the earmarks of being responsive to the
dominant needs of the times. It represents an outlook cognizant of the tensions of a turbulent era
that is the present. That is why for some what was done represented an act of courage and faith,
coupled with the hope that the solution arrived at is a harbinger of a bright and rosy future.
It is such a comfort then that even if my appraisal of the situation had commanded a majority, there
is not, while these lawsuits are being further considered, the least interference, with the executive
department. The President in the discharge of all his functions is entitled to obedience. He remains
commander-in-chief with all the constitutional powers it implies. Public officials can go about their
accustomed tasks in accordance with the revised Constitution. They can pursue even the tenor of
their ways. They are free to act according to its tenets. That was so these past few weeks, even
petitions were filed. There was not at any time any thought of any restraining order. So it was before.
That is how things are expected to remain even if the motions to dismiss were not granted. It might
be asked though, suppose the petitions should prevail? What then? Even so, the decision of this
Court need not be executory right away. Such a disposition of a case before this Court is not novel.
That was how it was done in the Emergency Powers Act controversy. Once compliance is had with
70
the requirements of Article XV of the 1935 Constitution, to assure that the coming force of the
revised charter is free from any taint of infirmity, then all doubts are set at rest.
For some, to so view the question before us is to be caught in a web of unreality, to cherish illusions
that cannot stand the test of actuality. What is more, it may give the impression of reliance on what
may, for the practical man of affairs, be no more than gossamer distinctions and sterile refinements
unrelated to events. That may be so, but I find it impossible to transcend what for me are the
implications of traditional constitutionalism. This is not to assert that an occupant of the bench is
bound to apply with undeviating rigidity doctrines which may have served their day. He could at
times even look upon them as mere scribblings in the sands to be washed away by the advancing
tides of the present. The introduction of novel concepts may be carried only so far though. As
Cardozo put the matter: "The judge, even when he is free, is still not wholly free. He is not to
innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or
of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to
spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion
informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the
primordial necessity of order in the social life." Wide enough in all conscience is the field of discretion
that remains." Moreover what made it difficult for this Court to apply settled principles, which for me
71
have not lost their validity, is traceable to the fact that the revised Constitution was made to take
effect immediately upon ratification. If a period of time were allowed to elapse precisely to enable the
judicial power to be exercised, no complication would have arisen. Likewise, had there been only
one or two amendments, no such problem would be before us. That is why I do not see sufficient
justification for the orthodoxies of constitutional law not to operate.
Even with full realization then that the approach pursued is not all that it ought to have been and the
process of reasoning not without its shortcomings, the basic premises of a constitutional democracy,
as I understand them and as set forth in the preceding pages, compel me to vote the way I did.
TEEHANKEE, J., dissenting:
The masterly opinion of the Chief Justice wherein he painstakingly deals with the momentous issues
of the cases at bar in all their complexity commands my concurrence.
I would herein make an exposition of the fundamental reasons and considerations for my stand.
The unprecedented and precedent-setting issue submitted by petitioners for the Court's resolution is
the validity and constitutionality of Presidential Proclamation No. 1102 issued on January 17, 1973,
certifying and proclaiming that the Constitution proposed by the 1971 Constitutional Convention "has
been ratified by an overwhelming majority of all the votes cast by the members of all the Barangays
(Citizens Assemblies) throughout the Philippines, and has thereby come into effect."
More specifically, the issue submitted is whether the purported ratification of the proposed
Constitution by means of the Citizens Assemblies has substantially complied with the mandate of
Article XV of the existing Constitution of 1935 that duly proposed amendments thereto, in toto or
parts thereof, "shall be valid as part of this Constitution when approved by a majority of the votes
cast at an election at which the amendments are submitted to the peoplefor their ratification." 1
A necessary corollary issue is whether the purported ratification of the proposed Constitution as
signed on November 30, 1972 by the 1971 Constitutional Convention may be said also to have
substantially complied with its own mandate that "(T)his Constitution shall take immediately upon
its ratification by a majority of the votes cast in aplebiscite called for the purpose and except as
herein provided, shall supersede the Constitution of Nineteen hundred and thirty-five and all
amendments thereto." 2
Respondents contend that "(A)lthough apparently what is sought to be annulled is

Proclamation No. 1102, what petitioners really seek to invalidate is the new
Constitution", and their actions must be dismissed, because:
— "the Court may not inquire into the validity of the procedure for ratification" which
is "political in character" and that "what is sought to be invalidated is not an act of the
President but of the people;
— "(T)he fact of approval of the new Constitution by an overwhelming majority of the

votes cast as declared and certified in Proclamation No. 1102 is conclusive on the
courts;
— "Proclamation No. 1102 was issued by the President in the exercise of legislative
power under martial law. ... Alternatively, or contemporaneously, he did so as "agent"
of the Constitutional Convention;"
— "alleged defects, such as absence of secret voting, enfranchisement of persons

less than 21 years, non supervision (by) the Comelec are matters not required by
Article XV of the 1935 Constitution"; (sic)
— "after ratification, whatever defects there might have been in the procedure are
overcome and mooted (and muted) by the fact of ratification"; and
— "(A)ssuming finally that Article XV of the 1935 Constitution was not strictly
followed, the ratification of the new Constitution must nonetheless be respected. For
the procedure outlined in Article XV was not intended to be exclusive of other
procedures, especially one which contemplates popular and direct participation of the
citizenry ... ."
3
To test the validity of respondents' submittal that the Court, in annulling Proclamation No. 1102
would really be "invalidating the new Constitution", the terms and premises of the issues have to be
defined.
— Respondents themselves assert that "Proclamation No. 1102 ... is plainly

merely declaratory of the fact that the 1973 Constitution has been ratified and has
come into force. 4
— The measure of the fact of ratification is Article XV of the 1935 Constitution. This
has been consistently held by the Court in the Gonzales: and Tolentino cases.
5 6
— In the Tolentino case, this Court emphasized "that the provisions of Section 1 of

Article XV of the Constitution, dealing with the procedure or manner of amending the
fundamental law are binding upon the Convention and the other departments of the
government. It must be added that ... they are no less binding upon the people." 7
— In the same Tolentino case, this Court further proclaimed that "as long as any
amendment is formulated and submitted under the aegis of the present Charter, any
proposal for such amendment which is not in conformity with
the letter, spirit and intent of the Charter for effecting amendments, cannot receive
the sanction of this Court."8
— As continues to be held by a majority of this Court, proposed amendments to the

Constitution "should be ratified in only one way, that is, in an election or plebiscite
held in accordance with law and participated in only by qualified and duly registered
voters" and under the supervision of the Commission on Elections.
9 10
— Hence, if the Court declares Proclamation 1102 null and void because on its face,
the purported ratification of the proposed Constitution has not faithfully nor
substantially observed nor complied with the mandatory requirements of Article XV of
the (1935) Constitution, it would not be "invalidating" the proposed new Constitution
but would be simply declaring that the announced fact of ratification thereof by
means of the Citizens Assemblies referendums does not pass the constitutional
test and that the proposed new Constitution has not constitutionally come into
existence.
— Since Proclamation 1102 is acknowledged by respondent to be "plainly merely

declaratory" of the disputed fact of ratification, they cannot assume the very fact to
be established and beg the issue by citing the self-same declaration as proof of the
purported ratification therein declared.
What complicates the cases at bar is the fact that the proposed 1972 Constitution was enforced as
having immediately taken effect upon the issuance on January 17, 1973 of Proclamation 1102 and
the question of whether "confusion and disorder in government affairs would (not) result" from a
judicial declaration of nullity of the purported ratification is raised by the Solicitor-General on behalf
of respondents.
A comparable precedent of great crisis proportions is found in the Emergency Powers

cases, wherein the Court in its Resolution of September 16, 1949 after judgment was
11
initially not obtained on August 26, 1949 for lack of the required six (6) votes, finally declared in
effect that the pre-war emergency powers delegated by Congress to the President, under
Commonwealth Act 671 in pursuance of Article VI, section 26 of the Constitution, had ceased and
became inoperative at the latest in May, 1946 when Congress met in its first regular session on May
25, 1946.
Then Chief Justice Manuel V. Moran recited the great interests and important rights that had arisen
under executive orders "issued in good faith and with the best of intentions by three successive
Presidents, and some of them may have already produced extensive effects on the life of the nation"
— in the same manner as may have arisen under the bona fide acts of the President now in the
honest belief that the 1972 Constitution had been validly ratified by means of the Citizens
Assemblies referendums — and indicated the proper course and solution therefor, which were duly
abided by and confusion and disorder as well as harm to public interest and innocent parties thereby
avoided as follows:
Upon the other hand, while I believe that the emergency powers had ceased in June
1945, I am not prepared to hold that all executive orders issued thereafter under
Commonwealth Act No. 671, are per se null and void. It must be borne in mind that
these executive orders had been issued in good faith and with the best of intentions
by three successive Presidents, and some of them may have already produced
extensive effects in the life of the nation. We have, for instance, Executive Order No.
73, issued on November 12, 1945, appropriating the sum of P6,750,000 for public
works; Executive Order No. 86, issued on January 7, 1946, amending a previous
order regarding the organization of the Supreme Court; Executive Order No. 89,
issued on January 1, 1946, reorganizing Courts of First Instance; Executive Order
No. 184, issued on November 19, 1948, controlling rice and palay to combat hunger;
and other executive orders appropriating funds for other purposes. The
consequences of a blanket nullification of all these executive orders will be
unquestionably serious and harmful. And I hold that before nullifying them, other
important circumstances should be inquired into, as for instance, whether or not they
have been ratified by Congress expressly or impliedly, whether their purposes have
already been accomplished entirely or partially, and in the last instance, to what
extent; acquiescence of litigants; de facto officers; acts and contracts of parties
acting in good faith; etc. It is my opinion that each executive order must be viewed in
the light of its peculiar circumstances, and, if necessary and possible, nullifying it,
precautionary measures should be taken to avoid harm to public interest and
innocent parties. 12
Initially, then Chief Justice Moran voted with a majority of the Court to grant the Araneta and
Guerrero petitions holding null and void the executive orders on rentals and export control but to
defer judgment on the Rodriguez and Barredo petitions for judicial declarations of nullity of the
executive orders appropriating the 1949-1950 fiscal year budget for the government and P6 million
for the holding of the 1949 national elections. After rehearsing, he further voted to also declare null
and void the last two executive orders appropriating funds for the 1949 budget and elections,
completing the "sufficient majority" of six against four dissenting justices "to pronounce a valid
judgment on that matter." 13
Then Chief Justice Moran, who penned the Court's majority resolution, explained his vote for
annulment despite the great difficulties and possible "harmful consequences" in the following
passage, which bears re-reading:
However, now that the holding of a special session of Congress for the purpose of
remedying the nullity of the executive orders in question appears remote and
uncertain, I am compelled to, and do hereby, give my unqualified concurrence in the
decision penned by Mr. Justice Tuason declaring that these two executive orders
were issued without authority of law.
While in voting for a temporary deferment of the judgment I was moved by the belief
that positive compliance with the Constitution by the other branches of the
Government, which is our prime concern in all these cases, would be effected, and
indefinite deferment will produce the opposite result because it would legitimize a
prolonged or permanent evasion of our organic law. Executive orders which are, in
our opinion, repugnant to the Constitution, would be given permanent life, opening
the way or practices which may undermine our constitutional structure.
The harmful consequences which, as I envisioned in my concurring opinion, would

come to pass should the said executive orders be immediately declared null and void
are still real. They have not disappeared by reason of the fact that a special session
of Congress is not now forthcoming. However, the remedy now lies in the hands of
the Chief Executive and of Congress, for the Constitution vests in the former the
power to call a special session should the need for one arise, and in the latter, the
power to pass a valid appropriations act.
That Congress may again fail to pass a valid appropriations act is a remote
possibility, for under the circumstances it fully realizes its great responsibility of
saving the nation from breaking down; and furthermore, the President in the exercise
of his constitutional powers may, if he so desires, compel Congress to remain in
special session till it approves the legislative measures most needed by the country.
Democracy is on trial in the Philippines, and surely it will emerge victorious as a

permanent way of life in this country, if each of the great branches of the
Government, within its own allocated sphere, complies with its own constitutional
duty, uncompromisingly and regardless of difficulties.
Our Republic is still young, and the vital principles underlying its organic structure
should be maintained firm and strong, hard as the best of steel, so as to insure its
growth and development along solid lines of a stable and vigorous democracy. 14
The late Justice Pedro Tuason who penned the initial majority judgment (declaring null and void the
rental and export control executive orders) likewise observed that "(T)he truth is that under our
concept of constitutional government, in times of extreme perils more than in normal circumstances
'the various branches, executive, legislative, and judicial,' given the ability to act, are called upon 'to
perform the duties discharge the responsibilities committed to respectively.' " 15
It should be duly acknowledged that the Court's task of discharging its duty and responsibility has
been considerably lightened by the President's public manifestation of adherence to constitutional
processes and of working within the proper constitutional framework as per his press conference of
January 20,1973, wherein he stated that "(T)he Supreme Court is the final arbiter of the Constitution.
It can and will probably determine the validity of this Constitution. I did not want to talk about this
because actually there is a case pending before the Supreme Court. But suffice it to say that I
recognize the power of the Supreme Court. With respect to appointments, the matter falls under a
general provision which authorizes the Prime Minister to appoint additional members to the Supreme
Court. Until the matter of the new Constitution is decided, I have no intention of utilizing that
power." 16
Thus, it is that as in an analogous situation wherein the state Supreme Court of Mississippi held that
the questions of whether the submission of the proposed constitutional amendment of the State
Constitution providing for an elective, instead of an appointive, judiciary and whether the proposition
was in fact adopted, were justifiable and not political questions, we may echo the words therein of
Chief Justice Whitfield that "(W)e do not seek a jurisdiction not imposed upon us by the Constitution.
We could not, if we would, escape the exercise of that jurisdiction which the Constitution has
imposed upon us. In the particular instance in which we are now acting, our duty to know what the
Constitution of the state is, and in accordance with our oaths to support and maintain it in its
integrity, imposed on us a most difficult and embarrassing duty, one which we have not sought, but
one which, like all others, must be discharged." 17
In confronting the issues at bar, then, with due regard for my colleagues' contrary views, we are
faced with the hard choice of maintaining a firm and strict — perhaps, even rigid — stand that the
Constitution is a "superior paramount law, unchangeable by ordinary means" save in the particular
mode and manner prescribed therein by the people, who, in Cooley's words, so "tied up (not only)
the hands of their official agencies, but their own hands as well" in the exercise of their sovereign
18
will or a liberal and flexible stand that would consider compliance with the constitutional article on the
amending process as merely directory rather than mandatory.
The first choice of a strict stand, as applied to the cases at bar, signifies that the Constitution may be
amended in toto or otherwise exclusively "by approval by a majority of the votes cast an election at
which the amendments are submitted to the people for their ratification", participated
19
in only by qualified and duly registered voters twenty-one years of age or over and 20
duly supervised by the Commission on Elections, in accordance with the cited mandatory
21
constitutional requirements.
The alternative choice of a liberal stand would permit a disregard of said requirements on the theory
urged by respondents that "the procedure outlined in Article XV was not intended to be exclusive of
other procedures especially one which contemplates popular and direct participation of the
citizenry", that the constitutional age and literacy requirements and other statutory safeguards for
22
ascertaining the will of the majority of the people may likewise be changed as "suggested, if not
prescribed, by the people (through the Citizens Assemblies) themselves", and that the Comelec is
23
constitutionally "mandated to oversee ... elections (of public officers) and not plebiscites." 24
To paraphrase U.S. Chief Justice John Marshall who first declared in the historic 1803 case
of Marbury vs. Madison the U.S. Supreme Court's power of judicial review and to declare void laws
25
repugnant to the Constitution, there is no middle ground between these two alternatives. As Marshall
expounded it: "(T)he Constitution is either a superior paramount law, unchangeable by ordinary
means, or it is on a level with ordinary legislative acts, and, like other acts, alterable when the
legislature shall please to alter it. If the former part of the alternative be true, then a legislative act,
contrary to the Constitution, is not law; if the latter part be true, then written constitutions are absurd
attempts on the part of a people, to limit a power, in its own nature, illimitable."
As was to be restated by Justice Jose P. Laurel a century and a third later in the 1936 landmark
case of Angara vs. Electoral Commission, "(T)he Constitution sets forth in no uncertain language
26
the restrictions and limitations upon governmental powers and agencies. If these restrictions and
limitations are transcended it would be inconceivable if the Constitution had not provided for a
mechanism by which to direct the course of government along constitutional channels, for then the
distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and
the principles of good government mere political apothegms. Certainly, the limitations of good
government and restrictions embodied in our Constitution are real as they should be in any living
Constitution."
Justice Laurel pointed out that in contrast to the United States Constitution, the Philippine
Constitution as "a definition of the powers of government" placed upon the judiciary the great burden
of "determining the nature, scope and extent of such powers" and stressed that "when the judiciary
mediates to allocate constitutional boundaries, it does not assert any superiority over the other
departments ... but only asserts the solemn and sacred obligation entrusted to it by the Constitution
to determine conflicting claims of authority under the Constitution and to establish for the parties in
an actual controversy the rights which the instrument secures and guarantees to them."
II
Marshall was to utter much later in the equally historic 1819 case of McCulloch vs. Maryland the 27
"climactic phrase," "we must never forget that it is a constitution we are expounding," — termed by
28
Justice Frankfurter as "the single most important utterance in the literature of constitutional law —
most important because most comprehensive and comprehending." This enduring concept to my
29
mind permeated to this Court's exposition and rationale in the hallmark case of Tolentino, wherein
we rejected the contentions on the Convention's behalf "that the issue ... is a political question and
that the Convention being a legislative body of the highest order is sovereign, and as such, its acts
impugned by petitioner are beyond the control of Congress and the Courts." 30
This Court therein made its unequivocal choice of strictly requiring faithful (which really includes

substantial) compliance with the mandatory requirements of the amending process.
1. In denying reconsideration of our judgment of October 16, 1971 prohibiting the submittal in an
advance election of 1971 Constitutional Convention's Organic Resolution No. 1 proposing to amend
Article V, section 1 of the Constitution by lowering the voting age to 18 years (vice 21 years) 30a
"without prejudice to other amendments that will be proposed in the future ... on other portions of the
amended section", this Court stated that "the constitutional provision in question (as proposed)
presents no doubt which may be resolved in favor of respondents and intervenors. We do not
believe such doubt can exist only because it is urged that the end sought to be achieved is to
be desired. Paraphrasing no less than the President of Constitutional Convention of 1934, Claro M.
Recto, let those who would put aside, invoking grounds at best controversial, any mandate of the
fundamental law purportedly in order to attain some laudable objective bear in mind that someday
somehow others with purportedly more laudable objectives may take advantage of the precedent
and continue the destruction of the Constitution, making those who laid down the precedent of
justifying deviations from the requirements of the Constitution the victims of their own folly." 31
2. This Court held in Tolentino that:
... as to matters not related to its internal operation and the performance of its
assigned mission to propose amendments to the Constitution, the Convention and its
officers and members are all subject to all the provisions of the existing Constitution.
Now We hold that even as to its latter task of proposing amendments to the
Constitution, it is subject to the provisions of Section 1 of Article XV. This must be so,
because it is plain to Us that the framers of the Constitution took care that the
process of amending the same should not be undertaken with the
same ease and facility in changing an ordinary legislation. Constitution making is the
most valued power, second to none, of the people in a constitutional democracy such
as the one our founding fathers have chosen for this nation, and which we of the
succeeding generations generally cherish. And because the Constitution affects
the lives, fortunes,future and every other conceivable aspect of the lives of all the
people within the country and those subject to its sovereignty, every degree of care is
taken in preparing and drafting it. A constitution worthy of the people for deliberation
and study. It is obvious that correspondingly, any amendment of the Constitution is of
no less importance than the whole Constitution itself, and perforce must be
conceived and prepared with as much care and deliberation. From the very nature of
things, the drafters of an original constitution, as already observed earlier, operate
without any limitations, restraints or inhibitions save those that they may impose
upon themselves. This is not necessarily true of subsequent conventions called to
amend the original constitution. Generally, the framers of the latter see to it that their
handiwork is not lightly treated and as easily mutilated or changed, not only for
reasons purely personal but more importantly, because written constitutions are
supposed to be designed so as to last for some time, if not for ages, or for, at least,
as long as they can be adopted to the needs and exigencies of the people, hence,
they must be insulated against precipitate and hasty actions motivated by more or
less passing political moods or fancies. Thus, as a rule, the original constitutions
carry with them limitations and conditions, more or less stringent, made so by the
people themselves, in regard to the process of their amendment. And when such
limitations or conditions are so incorporated in the original constitution, it does not lie
in the delegates of any subsequent convention to claim that they may ignore and
disregard such conditions because they are powerful and omnipotent as their original
counterparts. 32
3. This Court in Tolentino likewise formally adopted the doctrine of proper submission first advanced
in Gonzales vs. Comelec , thus:
33
We are certain no one can deny that in order that a plebiscite for the ratification of an
amendment to the Constitution may be validly held, it must provide the voter not
only sufficient time but ample basisfor an intelligent appraisal of the nature of
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 hardly started considering the merits of hundreds, if not
thousands, proposals to amend the existing Constitution, to present to people any
single proposal or a few of them cannot comply with this requirement. We are of the
opinion that the present Constitution does not contemplate in Section 1 of Article XV
a plebiscite or "election" wherein the people are in the dark as to frame of reference
they can base their judgment on. We reject the rationalization that the present
Constitution is a possible frame of reference, for the simple reason that intervenors
themselves are stating the sole purpose of the proposed amendment is to enable the
eighteen year olds to take part in the election for the ratification of the Constitution to
be drafted by the Convention. In brief, under the proposed plebiscite, there can be, in
the language of Justice Sanchez, speaking for the six members of the Court in
Gonzales, supra, 'no proper submission.' " 34
4. Four other members of the Court in a separate concurrence in Tolentino, expressed their
35
"essential agreement" with Justice Sanchez' separate opinion in Gonzales on the need for "fair
submission (and) intelligent rejection" as "minimum requirements that must be met in order that
there can be a proper submission to the people of a proposed constitutional amendment" thus:
... amendments must be fairly laid before the people for their blessing or spurning.
The people are not to be mere rubber stamps. They are not to vote blindly. They
must be afforded ample opportunity to mull over the original provisions, compare
them with the proposed amendments, and try to reach a conclusion as the dictates of
their conscience suggest, free from the incubus of extraneous or possibly insidious
influences. We believe the word "submitted" can only mean that the government,
within its maximum capabilities, should strain every effort to inform every citizen of
the provisions to be amended, and the proposed amendments and the meaning,
nature and effects thereof. By this, we are not to be understood as saying that, if one
citizen or 100 citizens or 1,000 citizens cannot be reached, then there is no
submission within the meaning of the word as intended by the framers of the
Constitution. What the Constitution in effect directs is that the government, in
submitting an amendment for ratification, should put every instrumentality or agency
within its structural framework to enlighten the people, educate them with respect to
their act of ratification or rejection. For as we have earlier stated, one thing is
submission and another is ratification. There must be fair submission, intelligent
consent or rejection. 36
They stressed further the need for undivided attention, sufficient information and full debate,
conformably to the intendment of Article XV, section 1 of the Constitution, in this wise:
A number of doubts or misgivings could conceivably and logically assail the average
voter. Why should the voting age be lowered at all, in the first place? Why should the
new voting age be precisely 18 years, and not 19 or 20? And why not 17? Or even
16 or 15? Is the 18-year old as mature as the 21-year old, so that there is no need of
an educational qualification to entitle him to vote? In this age of permissiveness and
dissent, can the 18-year old be relied upon to vote with judiciousness when the 21-
year old, in the past elections, has not performed so well? If the proposed
amendment is voted down by the people, will the Constitutional Convention insist on
the said amendment? Why is there an unseemly haste on the part of the
Constitutional Convention in having this particular proposed amendment ratified at
this particular time? Do some of the members of the Convention have future political
plans which they want to begin to subserve by the approval this year of this
amendment? If this amendment is approved, does it thereby mean that the 18-year
old should not also shoulder the moral and legal responsibilities of the 21-year old?
Will he be required to compulsory military service under the colors? Will the
contractual consent be reduced to 18 years? If I vote against the amendment, will I
not be unfair to my own child who will be 18 years old, come 1973?
The above are just samplings from here, there and everywhere — from a domain (of
searching questions) the bounds of which are not immediately ascertainable. Surely,
many more questions can be added to the already long litany. And the answers
cannot except as the questions are debated fully, pondered upon purposefully, and
accorded undivided attention.
Scanning the contemporary scene, we say that the people are not, and by election
time will not be, sufficiently informed of the meaning, nature and effects of the
proposed constitutional amendment. They have not been afforded ample time to
deliberate thereon conscientiously. They have been and are effectively distracted
from a full and dispassionate consideration of the merits and demerits of the
proposed amendment by their traditional pervasive involvement in local elections and
politics. They cannot thus weigh in tranquility the need for and the wisdom proposed
amendment. 37
5. This Court therein dismissed the plea of disregarding mandatory requirements of the amending
process "in favor of allowing the sovereign people to express their decision on the proposed
amendments" as "anachronistic in the real constitutionalism and repugnant to the essence of the
rule of law," in the following terms:
... The preamble of the Constitution says that the Constitution has been ordained by
the 'Filipino people, imploring the aid of Divine Providence.' Section 1 of Article XV is
nothing than a part of the Constitution thus ordained by the people. Hence, in
construing said section, We must read it as if thepeople had said, 'This Constitution
may be amended, but it is our will that the amendment must
beproposed and submitted to Us for ratification only in the manner herein
provided.' ... Accordingly, the real issue here cannot be whether or not the amending
process delineated by the present Constitution may be disregarded in favor of
allowing the sovereign people to express their decision on the proposed
amendments, if only because it is evident that the very idea of departing from the
fundamental law is anachronistic in the realm of constitutionalism and repugnant to
the essence of the rule of law; rather, it is whether or not the provisional nature of the
proposed amendment and the manner of its submission to the people for ratification
or rejection conform with the mandate of the people themselves in such regard, as
expressed in, the Constitution itself.
38
6. This Court, in not heeding the popular clamor, thus stated its position: "(I)t would be tragic and
contrary to the plain compulsion of these perspectives, if the Court were to allow itself in deciding
this case to be carried astray by considerations other than the imperatives of the rule of law and of
the applicable provisions of the Constitution. Needless to say, in a larger measure than when it binds
other departments of the government or any other official or entity, the Constitution imposes upon
the Court the sacred duty to give meaning and vigor to the Constitution, by interpreting and
construing its provisions in appropriate cases with the proper parties and by striking down any act
violative thereof. Here, as in all other cases, We are resolved to discharge that duty. 39
7. The Chief Justice, in his separate opinion in Tolentino concurring with this Court's denial of the
motion for reconsideration, succinctly restated this Court's position on the fundamentals, as follows:
— On the premature submission of a partial amendment proposal, with a "temporary

provisional or tentative character": — "... a partial amendment would deprive the
voters of the context which is usually necessary for them to make a reasonably
intelligent appraisal of the issue submitted for their ratification or rejection. ... Then,
too, the submission to a plebiscite of a partial amendment, without a definite frame of
reference, is fraught with possibilities which may jeopardize the social fabric. For one
thing, it opens the door to wild speculations. It offers ample opportunities for
overzealous leaders and members of opposing political camps to unduly exaggerate
the pros and cons of the partial amendment proposed. In short, it is apt to
breed false hopes and create wrong impressions. As a consequence, it is bound to
unduly strain the people's faith in the soundness and validity of democratic
processes and institutions.
— On the plea to allow submission to the sovereign people of the "fragmentary and
incomplete" proposal, although inconsistent with the letter and spirit of the
Constitution: "The view, has, also, advanced that the foregoing considerations are
not decisive on the issue before Us, inasmuch as thepeople are sovereign, and the
partial amendment involved in this case is being submitted to them. The issue before
Us is whether or not said partial amendment may be validly submitted to the people
for ratification "in a plebiscite coincide with the local elections in November 1971,"
and this particular issue will not be submitted to the people. What is more, the
Constitution does not permit its submission to the people. The question sought to be
settled in the scheduled plebiscite is whether or not the people are in favor of the
reduction of the voting age.
— On a "political" rather than "legalistic" approach: "Is this approach to the problem
too "legalistic?" This term has possible connotations. It may mean strict adherence to
the law, which in the case at bar is the Supreme Law of the land. On point, suffice it
to say that, in compliance with the specific man of such Supreme Law, the members
of the Supreme Court taken the requisite "oath to support and defend the
Constitution." ... Then, again, the term "legalistic" may be used to suggest inversely
that the somewhat strained interpretation of the Constitution being urged upon this
Court be tolerated or, at least, overlooked, upon the theory that the partial
amendment on voting age is badly needed and reflects the will of the people,
specially the youth. This course of action favors, in effect, adoption of apolitical
approach, inasmuch as the advisability of the amendment and an appraisal of the
people's feeling thereon political matters. In fact, apart from the obvious message of
the mass media, and, at times, of the pulpit, the Court has been literally bombarded
with scores of handwritten letters, almost all of which bear the penmanship and the
signature of girls, as well as letterhead of some sectarian educational institutions,
generally stating that the writer is 18 years of age and urging that she or he be
allowed to vote. Thus, the pressure of public opinion has brought to bear heavily
upon the Court for a reconsideration of its decision in the case at bar.
As above stated, however, the wisdom of the amendment and the popularity thereof

are political questions beyond our province. In fact, respondents and the intervenors
originally maintained that We have no jurisdiction to entertain the petition herein,
upon the ground that the issue therein raised is a political one. Aside from the
absence of authority to pass upon political question, it is obviously improper and
unwise for the bench to develop into such questions owing to the danger of getting
involved in politics, more likely of a partisan nature, and, hence, of impairing the
image and the usefulness of courts of justice as objective and impartial arbiters of
justiciable controversies.
Then, too, the suggested course of action, if adopted, would constitute a grievous
disservice to the people and the very Convention itself. Indeed, the latter and the
Constitution it is in the process of drafting stand essentially for the Rule of Law.
However, as the Supreme Law of the land, a Constitution would not be worthy of its
name, and the Convention called upon to draft it would be engaged in a futile
undertaking, if we did not exact faithful adherence to the fundamental tenets set
forth in the Constitution and compliance with its provisions were not obligatory. If we,
in effect, approved, consented to or even overlooked a circumvention of said tenets
and provisions, because of the good intention with which Resolution No. 1 is
animated, the Court would thereby become the Judge of the good or bad
intentions of the Convention and thus be involved in a question essentially political in
nature.
This is confirmed by the plea made in the motions for reconsideration in favor of the
exercise of judicial statesmanship in deciding the present case. Indeed, "politics" is
the word commonly used to epitomize compromise, even with principles, for the sake
of political expediency or the advancement of the bid for power of a given political
party. Upon the other hand, statesmanship is the expression usually availed of to
refer to high politics or politics on the highest level. In any event, politics, political
approach, political expediency and statesmanship are generally associated, and
often identified, with the dictum that "the end justifies the means." I earnestly hope
that the administration of justice in this country and the Supreme Court, in particular,
will adhere to or approve or indorse such dictum." 40
Tolentino, he pointed out that although "(M)ovants' submittal that "(T)he primary purpose for the
submission of the proposed amendment lowering the voting age to the plebiscite on November 8,
1971 is to enable the youth 18 to 20 years who comprise more than three (3) million of our
population to participate in the ratification of the new Constitution in so far as "to allow young people
who would be governed by the Constitution to be given a say on what kind of Constitution they will
have" is a laudable end, ... those urging the vitality and importance of the proposed constitutional
amendment and its approval ahead of the complete and final draft of the Constitution must seek a
valid solution to achieve it in a manner sanctioned by the amendatory process ordained by our
people in the present Constitution" — so that there may be "submitted, not piece-meal, but by way
41
of complete and final amendments as an integrated whole (integrated either with the subsisting
Constitution or with the new proposed Constitution)..."
9. The universal validity of the vital constitutional precepts and principles above-enunciated can
hardly be gainsaid. I fail to see the attempted distinction of restricting their application to proposals
for amendments of particular provisions of the Constitution and not to so-called entirely new
Constitutions. Amendments to an existing Constitution presumably may be only of certain parts or in
toto, and in the latter case would rise to an entirely new Constitution. Where this Court held
in Tolentino that "any amendment of the Constitution is of no less importance than the whole
Constitution itself and perforce must be conceived and prepared with as much care and
deliberation", it would appeal that the reverse would equally be true; which is to say, that the
adoption of a whole new Constitution would be of no less importance than any particular amendment
and therefore the necessary care and deliberation as well as the mandatory restrictions and
safeguards in the amending process ordained by the people themselves so that "they (may)
be insulated against precipitate and hasty actions motivated by more or less passing political moods
or fancies" must necessarily equally apply thereto.
III
1. To restate the basic premises, the people provided in Article XV of the Constitution for the
amending process only"by approval by a majority of the votes cast at an election at which the (duly
proposed) amendments are submitted to the people for their ratification."
The people ordained in Article V, section 1 that only those thereby enfranchised and granted the
right of suffrage may speak the "will of the body politic", viz, qualified literate voters twenty one
years of age or over with one year's residence in the municipality where they have registered.
The people, not as yet satisfied, further provided by amendment duly approved in 1940 in
accordance with Article XV, for the creation of an independent Commission on Elections with
"exclusive charge" for the purpose of "insuring free, orderly and honest elections" and ascertaining
the true will of the electorate — and more, as ruled by this Court in Tolentino, in the case of
proposed constitutional amendments, insuring proper submission to the electorate of such
proposals. 42
2. A Massachussets case with a constitutional system and provisions analogous to ours, best
43
defined the uses of the term "people" as a body politic and "people" in the political sense who are
synonymous with the qualified voters granted the right to vote by the existing Constitution and who
therefore are "the sole organs through which the will of the body politic can be expressed."
It was pointed out therein that "(T)he word 'people' may have somewhat varying significations
dependent upon the connection in which it is used. In some connections in the Constitution it is
confined to citizens and means the same as citizens. It excludes aliens. It includes men, women and
children. It comprehends not only the sane, competent, law-abiding and educated, but also those
who are wholly or in part dependents and charges upon society by reason of immaturity, mental or
moral deficiency or lack of the common essentials of education. All these persons are secured
fundamental guarantees of the Constitution in life, liberty and property and the pursuit of happiness,
except as these may be limited for the protection of society."
In the sense of "body politic (as) formed by voluntary association of individuals" governed by a
constitution and common laws in a "social compact ... for the common good" and in another sense of
"people" in a "practical sense" for "political purposes" it was therein fittingly stated that in this sense,
"people" comprises many who, by reason of want of years, of capacity or of the educational
requirements of Article 20 of the amendments of the Constitution, can have no voice in any
government and who yet are entitled to all the immunities and protection established by the
Constitution. 'People' in this aspect is coextensive with the body politic. But it is obvious that 'people'
cannot be used with this broad meaning of political signification. The 'people' in this connection
means that part of the entire body of inhabitants who under the Constitution are intrusted with the
exercise of the sovereign power and the conduct of government. The 'people' in the Constitution in a
practical sense means those who under the existing Constitution possess the right to exercise the
elective franchise and who, while that instrument remains in force unchanged, will be the sole
organs through which the will of the body politic can be expressed. 'People' for political
purposes must be considered synonymous with qualified voters.' "
As was also ruled by the U.S. Supreme Court, "... While the people are thus the source of political
power, their governments, national and state, have been limited by constitutions, and they have
themselves thereby set bounds to their own power, as against the sudden impulse of mere
majorities." 44
From the text of Article XV of our Constitution, requiring approval of amendment proposals "by a
majority of the votes cast at an election at which the amendments are submitted to the people for
their ratification", it seems obvious as above-stated that "people" as therein used must be
considered synonymous with "qualified voters" as enfranchised under Article V, section 1 of the
Constitution — since only "people" who are qualified voters can exercise the right of suffrage and
cast their votes.
3. Sound constitutional policy and the sheer necessity of adequate safeguards as ordained by the
Constitution and implementing statutes to ascertain and record the will of the people in free, orderly
and honest elections supervised by the Comelec make it imperative that there be strict adherence to
the constitutional requirements laid down for the process of amending in toto or in part the supreme
law of the land.
Even at barrio level 45 the Revised Barrio Charter fixes certain safeguards for the holding of barrio
plebiscites thus: "SEC. 6. Plebiscite. — A plebiscite may be held in the barrio when authorized by a
majority vote of the members present in the barrio assembly, there being a quorum, or when called
by at least four members of the barrio council: Provided, however, That no plebiscite shall be held
until after thirty days from its approval by either body, and such plebiscite has been given the widest
publicity in the barrio, stating the date, time and place thereof, the questions or issues to be decided,
action to be taken by the voters, and such other information relevant to the holding of the
plebiscite." 46
As to voting at such barrio plebiscites, the Charter further requires that "(A)ll duly registered barrio
assembly members qualified to vote may vote in the plebiscite. Voting procedures may be made
either in writing as in regular elections, and/or declaration by the voters to the board of election
tellers." 47
The subjects of the barrio plebiscites are likewise delimited thus: "A plebiscite may be called to
decide on the recall of any member of the barrio council. A plebiscite shall be called to approve any
budgetary, supplemental appropriations or special tax ordinances" and the required majority vote is
specified: "(F)or taking action on any of the above enumerated measures, majority vote of all the
barrio assembly members registered in the list of the barrio secretary is necessary." 48
The qualifications for voters in such barrio plebiscites and elections of barrio officials comply with
49
the suffrage qualifications of Article V, section 1 of the Constitution and provide that "(S)EC.
10. Qualifications of Voters and Candidates. — Every citizen of the Philippines, twenty one years of
age or over, able to read and write, who has been a resident of the barrio during the six months
immediately preceding the election, duly registered in the list of voters by the barrio secretary, who is
not otherwise disqualified, may vote or be a candidate in the barrio elections." 50
IV
1. Since it appears on the face of Proclamation 1102 that the mandatory requirements under the
above-cited constitutional articles have not been complied with and that no election or plebiscite for
ratification as therein provided as well as in section 16 of Article XVII of the proposed Constitution
itself has been called or held, there cannot be said to have been a valid ratification.
51
2. Petitioners raised serious questions as to the veracity and genuineness of the reports or
certificates of results purportedly showing unaccountable discrepancies in seven figures in just five
provinces between the reports as certified by the Department of Local Governments and the
52
reports as directly submitted by the provincial and city executives, which latter reports respondents
disclaimed inter alia as not final and complete or as not signed; whether the reported votes of
53
approval of the proposed Constitution conditioned upon the non-convening of the interim National
Assembly provided in Article XVII, section 1 thereof, may be considered as valid; the allegedly
54
huge and uniform votes reported; and many others.
3. These questions only serve to justify and show the basic validity of the universal principle
governing written constitutions that proposed amendments thereto or in replacement thereof may be
ratified only in the particular mode or manner prescribed therein by the people. Under Article XV,
section 1 of our Constitution, amendments thereto may be ratified only in the one way therein
provided, i.e. in an election or plebiscite held in accordance with law and duly supervised by the
Commission on Elections, and which is participated in only by qualified and duly registered voters. In
this manner, the safeguards provided by the election code generally assure the true ascertainment
of the results of the vote and interested parties would have an opportunity to thresh out properly
before the Comelec all such questions in pre-proclamation proceedings.
4. At any rate, unless respondents seriously intend to question the very statements and
pronouncements in Proclamation 1102 itself which shows on its face, as already stated, that the
mandatory amending process required by the (1935) Constitution was not observed, the cases at
bar need not reach the stage of answering the host of questions, raised by petitioners against the
procedure observed by the Citizens Assemblies and the reported referendum results — since the
purported ratification is rendered nugatory by virtue of such non-observance.
5. Finally, as to respondents' argument that the President issued Proclamation 1102 "as "agent" of
the Constitutional Convention" under Resolution No. 5844 approved on November 22, 1973, and
55
"as agent of the Convention the President could devise other forms of plebiscite to determine the will
of the majority vis-a-vis the ratification of the proposed Constitution."
56
The minutes of November 22, 1972, of the Convention, however, do not at all support this
contention. On the contrary, the said minutes fully show that the Convention's proposal and "agency"
was that the President issue a decree precisely calling a plebiscite for the ratification of the
proposed new Constitution on an appropriate date, under the charge of the Comelec, and with a
reasonable period for an information campaign, as follows:
12. Upon recognition by the Chair, Delegate Duavit moved for the approval of the
resolution, the resolution portion of which read as follows:
"RESOLVED, AS IT IS HEREBY RESOLVED, that the 1971

Constitutional Convention propose to President Ferdinand E. Marcos
that a decree be issued calling a plebiscite for the ratification of the
proposed New Constitution on such appropriate date as he shall
determine and providing for the necessary funds therefor, and that
copies of this resolution as approved in plenary session be
transmitted to the President of the Philippines and the Commission
on Elections for implementation."
He suggested that in view of the expected approval of the final draft of the new
Constitution by the end of November 1972 according to the Convention's timetable, it
would be necessary to lay the groundwork for the appropriate agencies of the
government to undertake the necessary preparation for the plebiscite.
xxx xxx xxx
12.2 Interpellating, Delegate Pimentel (V.) contended that the resolution was
unnecessary because section 15, Article XVII on the Transitory Provision, which had
already been approved on second and third readings, provided that the new
constitution should be ratified in a plebiscite called for the purpose by the incumbent
President. Delegate Duavit replied that the provision referred to did not include
the appropriation of funds for the plebiscite and that, moreover, the resolution was
intended to serve formal notice to the President and the Commission on Elections to
initiate the necessary preparations.
xxx xxx xxx
12.4 Interpellating, Delegate Madarang suggested that a reasonable period for an

information campaign was necessary in order to properly apprise the people of the
implications and significance of the new charter. Delegate Duavit agreed, adding that
this was precisely why the resolution was modified to give the President the
discretion to choose the most appropriate date for the plebiscite.
12.5 Delegate Laggui asked whether a formal communication to the President

informing him of the adoption of the new Constitution would not suffice considering
that under Section 15 of the Transitory Provisions, the President would be duty-
bound to call a plebiscite for its ratification. Delegate Duavit replied in the negative,
adding that the resolution was necessary to serve notice to the proper authorities
to prepare everything necessary for the plebiscite.
12.6 In reply to Delegate Britanico, Delegate Duavit stated that the mechanics for the
holding of theplebiscite would be laid down by the Commission on Elections in
coordination with the President.
12.7 Delegate Catan inquired if such mechanics for the plebiscite could include a
partial lifting of martial law in order to allow the people to assemble peaceably to
discuss the new Constitution. Delegate Duavit suggested that the Committee on
Plebiscite and Ratification could coordinate with the COMELEC on the matter.
12.8 Delegate Guzman moved for the previous question. The Chair declared that
there was one more interpellant and that a prior reservation had been made for the
presentation of such a motion.
1.8a Delegate Guzman withdrew his motion.
12.9 Delegate Astilla suggested in his interpellation that there was actually no need
for such a resolution in view of the provision of section 15, Article XVII on the
Transitory Provisions. Delegate Duavit disagreed, pointing out that the said provision
did not provide for the funds necessary for the purpose.
13. Delegate Ozamiz then moved to close the debate and proceed to the period of
amendment.
13.1 Floor Leader Montejo stated that there were no reservations to amend the
resolution.
13.2 Delegate Ozamiz then moved for the previous question. Submitted to a vote,
the motion was approved.
Upon request of the Chair, Delegate Duavit restated the resolution for voting.
14.1. Delegate Ordoñez moved for nominal voting. Submitted to a vote, the motion
was lost.
14.2. Thereupon, the Chair submitted the resolution to a vote. It was approved by a
show of hands. 57
I, therefore, vote to deny respondents' motion to dismiss and to give due course to the petitions.
Promul
gated:
June 4,
1973 *
ANTONIO, J., concurring:
In conformity with my reservation, I shall discuss the grounds for my concurrence.
It is my view that to preserve the independence of the State, the maintenance of the existing
constitutional order and the defense of the political and social liberties of the people, in times of a
grave emergency, when the legislative branch of the government is unable to function or its
functioning would itself threaten the public safety, the Chief Executive may promulgate measures
legislative in character, for the successful prosecution of such objectives. For the "President's power
as Commander- in-chief has been transformed from a simple power of military command to a vast
reservoir of indeterminate powers in time of emergency. ... In other words, the principal canons of
constitutional interpretation are ... set aside so far as concerns both the scope of the national power
and the capacity of the President to gather unto himself all constitutionally available powers in order
the more effectively to focus them upon the task of the hour." (Corwin, The President: Office &
Powers, pp. 317, 318, [1948]).
1. The proclamation of martial rule, ushered the commencement of a crisis government in this
country. In terms of power, crisis government in a constitutional democracy entails the concentration
of governmental power. "The more complete the separation of powers in a constitutional system, the
more difficult, and yet the more necessary" according to Rossiter, "will be their fusion in time of
crisis... The power of the state in crisis must not only be concentrated and expanded, it must be
freed from the normal system of constitutional and legal limitations. One of the basic features of
emergency powers is the release of the government from the paralysis of constitutional restraints"
(Rossiter, Constitutional Dictatorship, p. 290).
It is clearly recognized that in moments of peril the effective action of the government is channeled
through the person of the Chief Executive. "Energy in the executive," according to Hamilton, "is
essential to the protection of the community against foreign attacks ... to the protection of property
against those irregular and high-handed combinations which sometimes interrupt the ordinary
course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction,
and of anarchy." (The Federalist, Number 70). "The entire strength of the nation", said Justice
Brewer in the Debs case (158 U.S. 564; 39 L. ed. 1092), "may be used to enforce in any part of the
land the full and free exercise of all national powers and the security of all rights entrusted by the
constitution to its care." The marshalling and employment of the "strength of the nation" are matters
for the discretion of the Chief Executive. The President's powers in time of emergency defy precise
definition since their extent and limitations are largely dependent upon conditions and
circumstances.
2. The power of the President to act decisively in a crisis has been grounded on the broad
conferment upon the Presidency of the Executive power, with the added specific grant of power
under the "Commander-in-Chief" clause of the constitution. The contours of such powers have been
shaped more by a long line of historical precedents of Presidential action in times of crisis, rather
than judicial interpretation. Lincoln wedded his powers under the "commander-in-chief" clause with
his duty "to take care that the laws be faithfully executed," to justify the series of extraordinary
measures which he took — the calling of volunteers for military service, the augmentation of the
regular army and navy, the payment of two million dollars from unappropriated funds in the Treasury
to persons unauthorized to receive it, the closing of the Post Office to "treasonable correspondence",
the blockade of southern ports, the suspension of the writ of habeas corpus, the arrest and detention
of persons "who were represented to him" as being engaged in or contemplating "treasonable
practices" — all this for the most part without the least statutory authorization. Those actions were
justified by the imperatives of his logic, that the President may, in an emergency thought by him to
require it, partially suspend the constitution. Thus his famous question: "Are all laws but one to be
unexecuted, and the Government itself go to pieces lest that one be violated?" The actions of
Lincoln "assert for the President", according to Corwin, "an initiative of indefinite scope and
legislative in effect in meeting the domestic aspects of a war emergency." (Corwin, The President:
Office & Powers, p. 280 [1948]). The facts of the civil war have shown conclusively that in meeting
the domestic problems as a consequence of a great war, an indefinite power must be attributed to
the President to take emergency measures. The concept of "emergency" under which the Chief
Executive exercised extraordinary powers underwent correlative enlargement during the first and
second World Wars. From its narrow concept as an "emergency" in time of war during the Civil War
and World War I, the concept has been expanded in World War II to include the "emergency"
preceding the war and even after it. "The Second World War" observed Corwin and Koenig, was the
First World War writ large, and the quasi-legislative powers of Franklin Roosevelt as "Commander-
in-Chief in wartime"... burgeoned correspondingly. The precedents were there to be sure, most of
them from the First World War, but they proliferated amazingly. What is more, Roosevelt took his
first step toward war some fifteen months before our entrance into shooting war. This step occurred
in September, 1940, when he handed over fifty so-called overage destroyers to Great Britain. The
truth is, they were not overage, but had been recently reconditioned and recommissioned. ...
Actually, what President Roosevelt did was to take over for the nonce Congress's power to dispose
of property of the United States (Article IV, Section 3) and to repeal at least two statutes." (Corwin &
Koenig, The Presidency Today, New York University Press, 1956; sf Corwin, The President: Office
and Powers, 1948.)
The creation of public offices is a power confided by the constitution to Congress. And yet President
Wilson, during World War I on the basis of his powers under the "Commander-in-Chief" clause
created "offices" which were copied in lavish scale by President Roosevelt in World War II. In April
1942, thirty-five "executive agencies" were purely of Presidential creation. On June 7, 1941 on the
basis of his powers as "Commander-in-Chief", he issued an executive order seizing the North
American Aviation plant of Inglewood, California, where production stopped as a consequence of a
strike. This was justified by the government as the exercise of presidential power growing out of the
"duty constitutionally and inherently resting upon the President to exert his civil and military as well
as his moral authority to keep the defense efforts of the United States a going concern" as well as
"to obtain supplies for which Congress has appropriated money, and which it has directed the
President to obtain." On a similar justification, other plants and industries were taken over by the
government. It is true that in Youngstown Sheet & Tube vs. Sawyer (343 U.S. 579; 72 S. Ct. 863; 96
L. Ed. 1153, [1952]), the Supreme Court of the United States did not sustain the claims that the
President could, as the Nation's Chief Executive and Commander-in-Chief of the armed forces,
validly order the seizure of most of the country's steel mills. The Court however did not face the
naked question of the President's power to seize steel plants in the absence of any congressional
enactment or expressions of policy. The majority of the Court found that this legislative occupation of
the field made untenable the President's claim of authority to seize the plants as an exercise of
inherent executive power or as Commander-in-Chief. Justice Clark, in his concurrence to the main
opinion of the Court, explicitly asserted that the President does possess, in the absence of restrictive
legislation, a residual or resultant power above or in consequence of his granted powers, to deal with
emergencies that he regards as threatening the national security. The same view was shared with
vague qualification by Justices Frankfurter and Jackson, two of the concurring Justices. The three
dissenting Justices, speaking through Chief Justice Vinson, apparently went further by quoting with
approval a passage extracted from the brief of the government in the case of United States vs.
Midwest Oil Co., (236 U.S. 459 59 L. Ed. 673, 35 S. Ct. 309) where the court sustained the power of
the President to order withdrawals from the public domain not only without Congressional sanction
but even contrary to Congressional statutes.
It is evident therefore that the Steel Seizure Case, cannot be invoked as an authority to support the
view that the President in times of a grave crisis does not possess a residual power above or in
consequence of his granted powers, to deal with emergencies that he regards as threatening the
national security. The lesson of the Steel Seizure case, according to Corwin and Koenig,
"Unquestionably ... tends to supplement presidential emergency power to adopt temporary remedial
legislation when Congress has been, in the judgment of the President, unduly remiss in taking
cognizance of and acting on a given situation." (Corwin and Koenig, The Presidency Today, New
York University Press, 1956).
The accumulation of precedents has thus built up the presidential power under emergency
conditions to "dimensions of executive prerogative as described by John Locke, of a power to wit, to
fill needed gaps in the law, or even to supersede it so far as may be requisite to realize the
fundamental law of nature and government, namely, that as much as may be all the members of
society are to be preserved." (Corwin and Koenig, The Presidency Today).
In the light of the accumulated precedents, how could it be reasonably argued therefore, that the
President had no power to issue Presidential Decree Nos. 86 and 86-A as well as Proclamation No.
1102, since these measures were considered indispensable to effect the desired reforms at the
shortest time possible and hasten the restoration of normalcy? It is unavailing for petitioners to
contend that we are not faced by an actual "shooting war" for today's concept of the emergency
which justified the exercise of those powers has of necessity been expanded to meet the exigencies
of new dangers and crisis that directly threaten the nation's continued and constitutional existence.
For as Corwin observed: "... today the concept of 'war' as a special type of emergency warranting
the realization of constitutional limitations tends to spread, as it were, in both directions, so that there
is not only "the war before the war," but the 'war after the war.' Indeed, in the economic crisis from
which the New Deal may be said to have issued, the nation was confronted in the opinion of the late
President with an 'emergency greater than war'; and in sustaining certain of the New Deal measures
the Court invoked the justification of 'emergency.' In the final result constitutional practices of
wartime have moulded the Constitution to greater or less extent for peacetime as well, seem likely to
do so still more pronouncedly under fresh conditions of crisis." (Corwin, Ibid. p. 318.)
The same view was expressed by Rossiter thus:

The second crisis is rebellion, when the authority of a constitutional government is
resisted openly by large numbers of citizens who are engaged in violent insurrection
against enforcement of its laws or are bent on capturing it illegally or destroying it
altogether. The third crisis, one recognized particularly in modern times as
sanctioning emergency action by constitutional governments, is economic
depression. The economic troubles which plagued all the countries of the world in the
early thirties involved governmental methods of an unquestionably dictatorial
character in many democracies. It was thereby acknowledged that an economic
existence as a war or a rebellion. And these are not the only cases which have
justified extraordinary governmental action in nations like the United States. Fire,
flood, drought, earthquake, riots, great strikes have all been dealt with by unusual
and of dictatorial methods. Wars are not won by debating societies, rebellions are not
suppressed by judicial injunctions, reemployment of twelve million jobless citizens
will not be effected through a scrupulous regard for the tenets of free enterprise,
hardships caused by the eruptions of nature cannot be mitigated letting nature take
its course. The Civil War, the depression of 1933 and the recent global conflict were
not and could not have been successfully resolved by governments similar to those
of James Buchanan, William Howard Taft, or Calvin Coolidge. (Rossiter,
Constitutional Dictatorship — Crisis of Government in the Modern Democracies, p. 6
[1948).
II
We are next confronted with the insistence of Petitioners that the referendum in question not having
been done inaccordance with the provisions of existing election laws, which only qualified voters
who are allowed to participate, under the supervision of the Commission on Elections, the new
Constitution, should therefore be a nullity. Such an argument is predicated upon an assumption, that
Article XV of the 1935 Constitution provides the method for the revision of the constitution, and
automatically apply in the final approval of such proposed new Constitution the provisions of the
election law and those of Article V and X of the old Constitution. We search in vain for any provision
in the old charter specifically providing for such procedure in the case of a total revision or a rewriting
of the whole constitution.
1. There is clearly a distinction between revision and amendment of an existing constitution.

Revision may involve a rewriting of the whole constitution. The act of amending a constitution, on the
other hand, envisages a change of only specific provisions. The intention of an act to amend is not
the change of the entire constitution but only the improvement of specific parts of the existing
constitution of the addition of provisions deemed essential as a consequence of new constitutions or
the elimination of parts already considered obsolete or unresponsive to the needs of the times. The1
1973 Constitution is not a mere amendment to the 1935 Constitution. It is a completely new

fundamental charter embodying new political, social and economic concepts.
According to an eminent authority on Political Law, "The Constitution of the Philippines and that of
the United States expressly provide merely for methods of amendment. They are silent on the
subject of revision. But this is not a fatal omission. There is nothing that can legally prevent a
convention from actually revising the Constitution of the Philippines or of the United States even
were such conventions called merely for the purpose of proposing and submitting amendments to
the people. For in the final analysis, it is the approval of the people that gives validity to any proposal
of amendment or revision." (Sinco, Philippine Political Law, p. 49).
Since the 1935 Constitution does not specifically provide for the method or procedure for
the revision or for the approval of a new constitution, should it now be held, that the people have
placed such restrictions on themselves that they are not disabled from exercising their right as the
ultimate source of political power from changing the old constitution which, in their view, was not
responsive to their needs and in adopting a new charter of government to enable them to rid
themselves from the shackles of traditional norms and to pursue with new dynamism the realization
of their true longings and aspirations, except in the manner and form provided by Congress for
previous plebiscites? Was not the expansion of the base of political participation, by the inclusion of
the youth in the process of ratification who after all constitute the preponderant majority more in
accord with the spirit and philosophy of the constitution that political power is inherent in the people
collectively? As clearly expounded by Justice Makasiar, in his opinion, in all the cases cited where
the Courts held that the submission of the proposed amendment was illegal due to the absence of
substantial compliance with the procedure prescribed by the constitution, the procedure prescribed
by the state Constitution, is so detailed, that specified the manner in which such submission shall be
made, the persons qualified to vote for the same, the date of election and other definite standards,
from which the court could safely ascertain whether or not the submission was in accordance with
the Constitution. Thus the case of In re McConaughy (119 N.E. 408) relied upon in one of the
dissenting opinions involved in the application of the provisions of the state Constitution of
Minnesota which clearly prescribed in detail the procedure under which the Constitution may be
amended or revised. This is not true with our Constitution. In the case of revision there are no
2
"standards meet for judicial judgment." 3
The framers of our Constitution were free to provide in the Constitution the method or procedure for
the revision or rewriting of the entire constitution, and if such was their intention, they could and
should have so provided. Precedents were not wanting. The constitutions of the various states of the
American Union did provide for procedures for their amendment and methods for their revision. 4
Certainly We cannot, under the guise of interpretation, modify, revise, amend, remodel or rewrite the
1935 Charter. To declare what the law is, or has been, is a judicial power, but to declare what the
law shall be is not within Our judicial competence and authority.
Upon the other hand, since our fundamental charter has not provided the method or procedure for
the revision or complete change of the Constitution, it is evident that the people have reserved such
power in themselves. They decided to exercise it not through their legislature, but through a
Convention expressly chosen for that purpose. The Convention as an independent and sovereign
body has drafted not an amendment but a completely new Constitution, which decided to submit to
the people for approval, not through an act of Congress, but by means of decrees to be promulgated
by the President. In view of the inability of Congress to act, it was within the constitutional powers of
the President, either as agent of the Constitutional Convention, or under his authority under martial
law, to promulgate the necessary measures for the ratification of the proposed new Constitution. The
adoption the new Charter was considered as a necessary basis for all the reforms set in motion
under the new society, to root out the causes of unrest. The imperatives of the emergency
underscored the urgency of its adoption. The people in accepting such procedure and in voting
overwhelmingly for the approval of the new Constitution have, in effect, ratified the method and
procedure taken. "When the people adopt completely revised or new constitution," said the Court in
Wheeler v. Board of Trustees (37 SE 2nd 322, 326-330), "the framing or submission of the
instrument is not what gives it binding force and effect. The fiat of the people, and only the fiat of the
people, can breathe life into a constitution."
This has to be so because, in our political system, all political power is inherent in the people and
free governments are founded on their authority and instituted for their benefit. Thus Section 1 of
Article II of the 1935 Constitution declares that: "Sovereignty resides in the people and all
government authority emanate from them." Evidently the term people refers to the
entire citizenry and not merely to the electorate, for the latter is only a fraction of the people and is
only an organ of government for the election of government officials.
III
The more compelling question, however is: Has this Court the authority to nullify an entire
Constitution that is already effective as it has been accepted and acquiesced in by the people as
shown by their compliance with the decree promulgated thereunder, their cooperation in its
implementation, and is now maintained by the Government that is in undisputed authority and
dominance?
Of course it is argued that acquiescence by the people can be deduced from their acts of conformity,
because under a regime of martial law the people are bound to obey and act in conformity with the
orders of the President, and has absolutely no other choice. The flaw of this argument lies in its
application of a mere theoretical assumption based on the experiences of other nations on an
entirely different factual setting. Such an assumption flounders on the rock of reality. It is true that as
a general rule martial law is the use of military forces to perform the functions of civil government.
Some courts have viewed it as a military regime which can be imposed in emergency situations. In
other words, martial rule exists when the military rises superior to the civil power in the exercise of
some or all the functions of government. Such is not the case in this country. The government
functions thru its civilian officials. The supremacy of the civil over the military authority is manifest.
Except for the imposition of curfew hours and other restrictions required for the security of the State,
the people are free to pursue their ordinary concerns.
In short, the existing regime in this Country, does not contain the oppressive features, generally
associated with a regime of Martial law in other countries. "Upon the other hand the masses of our
people have accepted it, because of its manifold blessings. The once downtrodden rice tenant has at
long last been emancipated — a consummation devoutly wished by every Philippine President since
the 1930's. The laborer now holds his head high because his rights are amply protected and
respected." * A new sense of discipline has swiftly spread beyond the corridors of government into the social order. Responding to the
challenges of the New Society, the people have turned in half a million loose firearms, paid their taxes on undeclared goods and income in
unprecedented numbers and amount, lent their labors in massive cooperation — in land reform, in the repair of dikes, irrigation ditches,
roads and bridges, in reforestation, in the physical transformation of the environment to make ours a cleaner and greener land. "The entire
country is turning into one vast garden growing food for the body, for thought and for the soul." * More important the common man has at
long last been freed from the incubus of fear.
"Martial law has paved the way for a re-ordering of the basic social structure of the Philippines"
reported Frank Valeo to the United States Senate. "President Marcos has been prompt and sure-
footed in using the power of presidential decree under martial law for this purpose. He has zeroed in
on areas which have been widely recognized as prime sources of the nation's difficulties — land
tenancy, official corruption, tax evasion and abuse of oligarchic economic power. Clearly he knows
his targets ... there is marked public support for his leadership..." (Bulletin Today, March 3 and 4,
1973)..
In a similar vein, C.L. Sulzberger, a foreign affairs columnist wrote, in the April 11 issue of The New
York Times:
During his first Presidential term (1965-1969), Mr. Marcos was discouraged by the
failure of legislators to approve urgently needed reforms. He found his second term
further frustrated by spread riots, a Maoist uprising in Luzon and a much more
serious Moslem insurrection in the southern islands from Mindanao across the Sulu
archipelago to the frontier regions of Malaysia and Indonesia. Manila claims this war
is Maoist-coordinated.
Mr. Marcos has now in effect taken all the reins of power and makes no promise as
to when he will relinquish them. But, while fettering a free press, terminating
Congress and locking up some opponents (many of whom were later amnestied), he
has hauled the Philippines out of stagnation.
Sharecropping is being ended as more than three million acres of arable land are
redistributed with state funds. New roads have been started. The educational system
is undergoing revision, a corruption is diminished. In non-communist Asia it is
virtually impossible to wholly end it and this disagreeable phenomenon still reaches
very high.
Mr. Marcos, an imaginative, gifted man, hopes to reshape society by creating an

agrarian middle-class to replace the archaic sharecropper-absentee landlord
relationship. He is even pushing for a birth control program with the tacit acceptance
of the Catholic Church. He has started labor reforms and increased wages. (Daily
Express, April 15, 1973)
As explained in this writer's opinion of April 24, 1973 on the "Constancia" and "Manifestation" of
counsel for petitioners:
The new Constitution is considered effective "if the norms created in conformity with it are by and
large applied and obeyed. As soon as the old Constitution loses its effectiveness and the new
Constitution has become effective, the acts that appear with the subjective meaning of creating or
applying legal norms are no longer interpreted by presupposing the old basic norm, but by
presupposing the new one. The statutes issued under the old Constitution and not taken over are no
longer regarded as valid, and the organs authorized by the old Constitution no longer competent."
(Kelsen, Pure Theory of Law, [1967].)
The essentially political nature of the question is at once made manifest by understanding that in the
final analysis, what is assailed is not merely the validity of Proclamation No. 1102 of the President,
which is merely declaratory of the fact of approval or ratification, but the legitimacy of the
government. It is addressed more to the framework and political character of this Government which
now functions under the new Charter. It seeks to nullify a Constitution that is already effective.
In such a situation, We do not see how the question posed by petitioners could be judicially decided.
"Judicial power presupposes an established government capable of enacting laws and enforcing
their execution, and of appointing judges to expound and administer them. If it decides at all as a
court, it necessarily affirms the existence and authority of the government under which it is
exercising judicial power." (Luther v. Borden, 48 U.S. [7 How.] 1, 12 L. Ed. 598.)
In other words, where a complete change in the fundamental law has been effected through political
action, the Court whose existence is affected by such change is, in the words of Mr. Melville Fuller
Weston, "precluded from passing upon the fact of change by a logical difficulty which is not to be
surmounted." Such change in the organic law relates to the existence of a prior point in the Court's
5
"chain of title" to its authority and "does not relate merely to a question of the horizontal distribution
of powers." It involves in essence a matter which "the sovereign has entrusted to the so-called
6
political departments of government or has reserved to be settled by its own extra governmental
action."
7
The non-judicial character of such a question has been recognized in American law. "From its
earliest opinions this Court has consistently recognized," said Justice Frankfurter, in his illuminating
dissent in Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d. 633, 722, 726, 727), "a class of controversies
which do not lend themselves to judicial standards and judicial remedies. To classify the various
instances as "political questions" is rather a form of stating this conclusion than revealing of
analysis ... The crux of the matter is that courts are not fit instruments of decision where what is
essentially at stake is the composition of those large contests of policy traditionally fought out in non-
judicial forums, by which governments and the actions of governments are made and unmade."
The diversity of views contained in the opinions of the members of this Court, in the cases at bar,
cannot be a case on "right" or "wrong" views of the Constitution. It is one of attitudes and values. For
there is scarcely any principle, authority or interpretation which has not been countered by the
opposite. At bottom, it is the degree of one's faith — in the nation's leadership and in the maturity of
judgment of our people.
IN VIEW OF THE FOREGOING, the dismissal of these five cases, and the
conclusion of this Court in its judgment of March question becomes wholly moot
except for this consideration, that, when the judges as individuals or as a body of
individuals come to decide which king or which constitution they will support and
assert to represent, it may often be good judgment for them to follow the lead of the
men who as a practical matter are likely to be looked to by the people as more
representative of themselves and conversely are likely to be more directly in touch
with popular sentiment. If, however, the judges hold too strong views of their own to
be able to take this course, they may follow their own leads at their own hazard. No
question of law is involved. (Political Questions, 38 Harvard Law Review [1924-25],
pp. 305-309.)
31, 1973 are fully justified.
Barredo, Makasiar and Esguerra, JJ., concur.
APPENDIX TO OPINION
(G.R. Nos. L-36142, 36164, 36165, 36236 & 36283)
PROVISIONS OF STATE CONSTITUTIONS SPECIFICALLY

PROVIDING FOR AMENDMENT AND REVISION @
1. Alaska (1959) — Art. XIII. Amendment and Revision.
Sec. 1. Amendments. Amendments to this constitution may be proposed by a two-thirds vote of each
house of the legislature. The secretary of state shall prepare a ballot title and proposition
summarizing each proposed amendment, and shall place them on the ballot for the next statewide
election. If a majority of the votes cast on the proposition favor the amendment, it becomes effective
thirty days after the certification of the election returns by the secretary of state.
Sec. 2. Convention. The legislature may call constitutional conventions at any time.
Sec. 3. Call by referendum. If during any ten-year period a constitutional convention has not been
held, the secretary of state shall place on the ballot for the next general election the question: "Shall
there be a Constitutional Convention?" If a majority of the votes cast on the question are in the
negative, the question need not be placed on the ballot until the end of the next ten-year period. If a
majority of the votes cast on the question are in the affirmative, delegates to the convention shall be
chosen at the next regular statewide election, unless the legislature provides for the election of the
election delegates at a special election. The secretary of state shall issue the call for the convention.
Unless other provisions have been made by law, the call shall conform as nearly as possible to the
act calling the Alaska Constitutional Convention of 1955, including, but not limited to, number of
members, districts, election and certification of delegates, and submission and ratification
of revisions and ordinances. ... .
Sec. 4. Powers. Constitutional conventions shall have plenary power to amend or revise the
constitution, subject only to ratification by the people. No call for a constitutional convention shall
limit these powers of the convention.
2. California (1879) — Art. XVIII. Amending and Revising the Constitution.
Sec. 1. Constitutional amendments. Any amendment or amendments to this Constitution may be

proposed in the Senate or Assembly, and if two-thirds of all the members elected to each of the
houses shall vote in favor thereof, such proposed amendment or amendments shall be entered in
their Journals, with the yeas and nays taken thereon; and it shall be the duty of the Legislature to
submit such proposed amendment or amendments to the people in such manner, and at such time,
and after such publication as may be deemed expedient. Should more amendments than one be
submitted at the same election they shall be so prepared and distinguished, by numbers or
otherwise, that each can be voted on separately. If the people shall approve and ratify such
amendment or amendments, or any of them, by a majority of the qualified electors voting thereon
such amendment or amendments shall become a part of this constitution.
Sec. 2. Constitutional convention. Whenever two-thirds of the members elected to each branch of
the Legislature shall deem it necessary to revise this Constitution, they shall recommend to the
electors to vote at the next general for or against a Convention for that purpose, and if a majority of
the electors voting at such election on the proposition for a Convention shall vote in favor thereof,
the Legislature shall, at its next session, provide by law for calling the same. The Convention shall
consist of a number of delegates not to exceed that of both branches of the Legislature, who shall be
chosen in the same manner, and have the same qualifications, as Members of the Legislature. The
delegates so elected shall meet within three months after their election at such place as the
Legislature may direct. At a special election to be provided for by law, the Constitution that may be
agreed upon by such Convention shall be submitted to the people for their ratification or rejection, in
such manner as the Convention may determine. The returns of such election shall, in such manner
as the Convention shall direct, be certified to the Executive of the State, who shall call to his
assistance the Controller, Treasurer, and Secretary of State, and compare the returns so certified to
him; and it shall be the duty of the Executive to declare, by his proclamation, such Constitution, as
may have been ratified by a majority of all the votes cast at such special election, to be the
Constitution of the State of California.
3. Colorado (1876) — Art. XIX. Amendments.
Sec. 1. Constitutional convention; how called. The general assembly may at any time be a vote of
two-thirds of the members elected to each house, recommend to the electors of the state, to vote at
the next general election for or against a convention to revise, alter and amend this constitution; and
if a majority of those voting on the question shall declare in favor of such convention, the general
assembly shall, at the next session, provide for the calling thereof. The number of members of the
convention shall be twice that of the senate and they shall be elected in the same manner, at the
same places, and in the same districts. The general assembly shall, in the act calling the convention,
designate the day, hour and place of its meeting; fix the pay of its members and officers, and provide
for the payment of the same, together with the necessary expenses of the convention. Before
proceeding, the members shall take an oath to support the constitution of the United States, and of
the state of Colorado, and to faithfully discharge their duties as members of the convention. The
qualifications of members shall be the same as of members of the senate; and vacancies occurring
shall be filled in the manner provided for filling vacancies in the general assembly.
Said convention shall meet within three months after such election and prepare such revisions,
alterations or amendments to the constitution as may be deemed necessary; which shall be
submitted to the electors for their ratification or rejection at an election appointed by the convention
for that purpose, not less than two nor more than six months after adjournment thereof; and unless
so submitted and approved by a majority of the electors voting at the election, no such revision,
alteration or amendment shall take effect.
Sec. 2. Amendments to constitution; how adopted. Any amendment or amendments to this

constitution may be proposed in either house of the general assembly, and if the same shall be
voted for by two-thirds of all the members elected to each house, such proposed amendment or
amendments, together with the ayes and noes of each house hereon, shall be entered in full on their
respective journals; the proposed amendment or amendments shall be published with the laws of
that session of the general assembly, and the secretary of state shall also cause the said
amendment or amendments to be published in full in not more than one newspaper of general
circulation in each county, for four successive weeks previous to the next general election for
members of the general assembly; and at said election the said amendment or amendments shall be
submitted to the qualified electors of the state for their approval or rejection, and such as are
approved by a majority of those voting thereon shall become part of this constitution.
Provided, that if more than one amendment be submitted at any general election, each of said
amendments shall be voted upon separately and votes thereon cast shall be separately counted the
same as though but one amendment was submitted. But the general assembly shall have no power
to propose amendments to more than six articles of this constitution at the same session.
4. Delaware (1897) — Art. XVI. Amendments and Conventions.
Sec. 1. Proposal of constitutional amendments in general assembly; procedure. Any amendment or

amendments to this Constitution may be proposed in the Senate or House of Representatives; and if
the same shall be agreed to by two-thirds of all the members elected to each House, such proposed
amendment or amendments shall be entered on their journals, with the yeas and nays taken
thereon, and the Secretary of State shall cause such proposed amendment or amendments to be
published three months before the next general election in at least three newspapers in each County
in which such newspaper shall be published; and if in the General Assembly next after the said
election such proposed amendment or amendments shall upon yea and nay vote be agreed to by
two-thirds of all the members elected to each House, the same shall thereupon become part of the
Constitution.
Sec. 2. Constitutional conventions; procedure; compensation of delegates; quorum; powers and

duties; vacancies. The General Assembly by a two-thirds vote of all the members elected to each
House may from time to time provide for the submission to the qualified electors of the State at the
general election next thereafter the question, "Shall there be a Convention to revise the Constitution
and amend the same?;" and upon such submission, if a majority of those voting on said question
shall decide in favor of a Convention for such purpose, the General Assembly at its next session
shall provide for the election of delegates to such convention at the next general election. Such
Convention shall be composed of forty-one delegates, one of whom shall be chosen from each
Representative District by the qualified electors thereof, and two of whom shall be chosen from New
Castle County, two from Kent County and two from Sussex County by the qualified electors thereof
respectively. The delegates so chosen shall convene at the Capital of the State on the first Tuesday
in September next after their election. Every delegate shall receive for his services such
compensation as shall be provided by law. A majority of the Convention shall constitute a quorum for
the transaction of business. The Convention shall have the power to appoint such officers,
employees and assistants as it may be deem necessary, and fix their compensation, and provide for
the printing of its documents, journals, debates and proceedings. The Convention shall determine
the rules of its proceedings, and be the judge of the elections, returns and qualifications of its
members. Whenever there shall be a vacancy in the office of delegate from any district or county by
reason of failure to elect, ineligibility, death, resignation or otherwise, a writ of election to fill such
vacancy shall be issued by the Governor, and such vacancy shall be filled by the qualified electors of
such district or county.
5. Florida (1887) — Art. XVII. Amendments.
Sec. 1. Method of amending constitution. Either branch of the Legislature, at any regular session, or
at any special or extra-ordinary session thereof called for such purpose either in the governor's
original call or any amendment thereof, may propose the revision or amendment of any portion or
portions of this Constitution. Any such revision or amendment may relate to one subject or any
number of subjects, but no amendment shall consist of more than one revised article of the
Constitution.
If the proposed revision or amendment is agreed to by three-fifths of the members elected to each
house, it shall be entered upon their respective journals with the yeas and nays and published in one
newspaper in each county where a newspaper is published for two times, one publication to be
made not earlier than ten weeks and the other not later than six weeks, immediately preceding the
election at which the same is to be voted upon, and thereupon submitted to the electors of the State
for approval or rejection at the next general election, provided, however, that
such revision or amendment may be submitted for approval or rejection in a special election under
the conditions described in and in the manner provided by Section 3 of Article XVII of the
Constitution. If a majority of the electors voting upon the amendment adopt such amendment the
same shall become a part of this Constitution.
Sec. 2. Method of revising constitution. If at any time the Legislature, by a vote of two-thirds of all the
members of both Houses, shall determine that a revision of this Constitution is necessary, such
determination shall be entered upon their respective Journals, with yea's and nay's thereon. Notice
of said action shall be published weekly in one newspaper in every county in which a newspaper is
published, for three months preceding the next general election of Representatives, and in those
countries where no newspaper is published, notice shall be given by posting at the several polling
precincts in such counties for six weeks next preceding said election. The electors at said election
may vote for or against the revision in question. If a majority of the electors so voting be in favor of
revision, the Legislature chosen at such election shall provide by law for a Convention to revise the
Constitution, said Convention to be held within six months after the passage of such law. The
Convention shall consist of a number equal to the membership of the House of Representatives, and
shall be apportioned among the several counties in the same manner as members of said House.
6. Idaho (1890) — Art. XIX. Amendments.
Sec. 1. How amendments may be proposed. Any amendment or amendments to this Constitution
may be proposed in either branch of the legislature, and if the same shall be agreed to by two-thirds
of all the members of each of the two houses, voting separately, such proposed amendment or
amendments shall, with the yeas and nays thereon, be entered on their journals, and it shall be the
duty of the legislature to submit such amendment or amendments to the electors of the state at the
next general election, and cause the same to be published without delay for at least six consecutive
weeks, prior to said election, in not less than one newspaper of the general circulation published in
each county; and if a majority of the electors shall ratify the same, such amendment or amendments
shall become a part of this Constitution.
Sec. 3. Revision or amendments by convention. Whenever two-thirds of the members elected to

each branch of the legislature shall deem it necessary to call a convention to revise or amend this
Constitution, they shall recommend to the electors to vote at the next general election, for or against
a convention, and if a majority of all the electors voting at said election shall have voted for a
convention, the legislature shall at the next session provide by law for calling the same; and such
convention shall consist of a number of members, not less than double the number of the most
numerous branch of the legislature.
7. Iowa (1857) — Art. X. Amendments to the Constitution.
Sec. 3. Convention. At the general election to be held in the year one thousand eight hundred and
seventy, and in each tenth year thereafter, and also at such times as the General Assembly may, by
law, provide, the question, "Shall there be a Convention to revise the Constitution, and amend the
same?" shall be decided by the electors qualified to vote for members of the General Assembly; and
in case a majority of the electors so qualified, voting at such election, for and against such
proposition, shall decide in favor of a Convention for such purpose, the General Assembly, at its next
session, shall provide by law for the election of delegates to such Convention.
8. Michigan (1909) — Art. XVII. Amendments and Revision.
Sec. 1. Amendments to constitution; proposal by legislature; submission to electors. Any

amendment or amendments to this constitution may be proposed in the senate or house of
representatives. If the same shall be agreed to by 2/3 of the members elected to each house,
such amendment or amendments shall be entered on the journals, respectively, with the yeas and
nays taken thereon; and the same shall be submitted to the electors at the next spring or autumn
election thereafter, as the legislature shall direct; and, if a majority of the electors qualified to vote for
members of the legislature voting thereon shall ratify and approve such amendment or amendments,
the same shall become part of the constitution.
Sec. 4. General revision; convention; procedure. At the Biennial Spring Election to be held in the
year 1961, in each sixteenth year thereafter and at such times as may be provided by law, the
question of a General Revision of the Constitution shall be submitted to the Electors qualified to vote
for members of the Legislature. In case a majority of the Electors voting on the question shall decide
in favor of a Convention for such purpose, at an Election to be held not later than four months after
the Proposal shall have been certified as approved, the Electors of each House of Representatives
District as then organized shall Elect One Delegate for each Electors of each Senatorial District as
then organized shall Elect One Delegate for each State Senator to which the District is entitled. The
Delegates so elected shall convene at the Capital City on the First Tuesday in October next
succeeding such election, and shall continue their sessions until the business of the convention shall
be completed. A majority of the delegates elected shall constitute a quorum for the transaction of
business. ... No proposed constitution or amendment adopted by such convention shall be
submitted to the electors for approval as hereinafter provided unless by the assent of a majority of all
the delegates elected to the convention, the yeas and nays being entered on the journal. Any
proposed constitution or amendments adopted by such convention shall be submitted to
the qualified electors in the manner provided by such convention on the first Monday in April
following the final adjournment of the convention; but, in case an interval of at least 90 days shall not
intervene between such final adjournment and the date of such election. Upon the approval of such
constitution or amendments by a majority of the qualified electors voting thereon such constitution or
amendments shall take effect on the first day of January following the approval thereof.
9. Minnesota (1857) — Art. XIV. Amendments to the Constitution.
Sec. 1. Amendments to constitution; majority vote of electors voting makes amendment valid.
Whenever a majority of both houses of the legislature shall deem it necessary to alter or amend this
Constitution, they may proposed such alterations or amendments, which proposed amendments
shall be published with the laws which have been passed at the same session, and said
amendments shall be submitted to the people for their approval or rejection at any general election,
and if it shall appear, in a manner to be provided by law, that a majority of all the electors voting at
said election shall have voted for and ratified such alterations or amendments, the same shall be
valid to all intents and purposes as a part of this Constitution. If two or more alterations
or amendments shall be submitted at the same time, it shall be so regulated that the voters shall
vote for or against each separately.
Sec. 2. Revision of constitution. Whenever two-thirds of the members elected to each branch of the
legislature shall think it necessary to call a convention to revise this Constitution, they shall
recommend to the electors to vote at the next general election for members of the legislature, for or
against a convention; and if a majority of all the electors voting at said election shall have voted for a
convention, the legislature shall, at their next session, provide by law for calling the same. The
convention shall consist of as many members as the House of Representatives, who shall be
chosen in the same manner, and shall meet within three months after their election for the purpose
aforesaid.
Sec. 3. Submission to people of revised constitution drafted at convention. Any convention called to
revise this constitution shall submit any revision thereof by said convention to the people of the State
of Minnesota for their approval or rejection at the next general election held not less than 90 days
after the adoption of such revision, and, if it shall appear in the manner provided by law that three-
fifths of all the electors voting on the question shall have voted for and ratified such revision, the
same shall constitute a new constitution of the State of Minnesota. Without such submission and
ratification, said revision shall be of no force or effect. Section 9 of Article IV of the Constitution shall
not apply to election to the convention.
10. Nevada (1864) — Art. 16. Amendments.
Sec. 1. Constitutional amendments; procedure. Any amendment or amendments to this Constitution

may be proposed in the Senate or Assembly; and if the same shall be agreed to by a Majority of all
the members elected to each of the two houses, such proposed amendment or amendments shall
be entered on their respective journals, with the Yeas and Nays taken thereon, and referred to the
Legislature then next to be chosen, and shall be published for three months next preceding the time
of making such choice. And if in the Legislature next chosen as aforesaid, such proposed
amendment or amendments shall be agreed to by a majority of all the members elected to each
house, then it shall be the duty of the Legislature to submit such proposed amendment or
amendments to the people, in such manner and at such time as the Legislature shall prescribe; and
if the people shall approve and ratify such amendment or amendments by a majority of the electors
qualified to vote for members of the Legislature voting thereon, such amendment or amendments
shall become a part of the Constitution.
Sec. 2. Convention for revision of constitution; procedure. If at any time the Legislature by a vote of
two-thirds of the Members elected to each house, shall determine that it is necessary to cause a
revision of this entire Constitution they shall recommend to the electors at the next election for
Members of the Legislature, to vote for or against a convention, and if it shall appear that a majority
of the electors voting at such election, shall have voted in favor of calling a Convention, the
Legislature shall, at its next session provide by law for calling a Convention to be holden within six
months after the passage of such law, and such Convention shall consist of a number of Members
not less that of both branches of the legislature. In determining what is a majority of the electors
voting such election, reference shall be had to the highest number of vote cast at such election for
the candidates of any office or on any question.
11. New Hamspire (1784) —
Art. 99. Revision of constitution provided for. It shall be the duty of the selectmen, and assessors, of
the several towns and places in this state, in warning the first annual meetings for the choice of
senators, after the expiration of seven years from the adoption of this constitution, as amended, to
insert expressly in the warrant this purpose, among the others for the meeting, to wit, to take the
sense of the qualified voters on the subject of a revision of the constitution; and, the meeting being
warned accordingly, and not otherwise, the moderator shall take the sense of the qualified voters
present as to the necessity of a revision; and a return of the number of votes for and against such
necessity, shall be made by the clerk sealed up, and directed to the general court at their then next
session; and if, it shall appear to the general court by such return, that the sense of the people of the
state has taken, and that, in the opinion of the majority of the qualified voters in the state, present
and voting at said meetings, there is a necessity for a revision of the constitution, it shall be the duty
of the general court to call a convention for that purpose, otherwise the general court shall direct the
sense of the people to be taken, and then proceed in the manner before mentioned. The delegates
to be chosen in the same manner, and proportioned, as the representatives to the general court;
provided that no alterations shall be made in this constitution, before the same shall be laid before
the towns and unincorporated places, and approved by two thirds of the qualified voters present and
voting on the subject.
12. Oklahoma (1907) — Art. XXIV. Constitutional Amendments.
Sec. 1. Amendments proposed by legislature; a submission to vote.

Any amendment or amendments to this Constitution may be proposed in either branch of the
Legislature, and if the same shall be agreed to by a majority of all the members elected to each of
the two houses, such proposed amendment or amendments shall, with yeas and nays thereon, be
entered in their journals and referred by the Secretary of State to the people for their approval or
rejection, at the next regular general election, except when the Legislature, by a two-thirds vote of
each house, shall order a special election for that purpose. If a majority of all the electors voting at
such election shall vote in favor of any amendment thereto, it shall thereby become a part of this
Constitution.
If two or more amendments are proposed they shall be submitted in such manner that electors may
vote for or against them separately.
No proposal for the amendment or alteration of this Constitution which is submitted to the voters
shall embrace more than one general subject and the voters shall vote separately for or against
each proposal submitted; provided, however, that in the submission of proposals for
the amendment of this Constitution by articles, which embrace one general subject, each proposed
article shall be deemed a single proposals or proposition
Sec. 2. Constitutional convention to propose amendments or new constitution. No convention shall

be called by the Legislature to propose alterations, revisions, or amendments to this Constitution, or
to propose a new Constitution, unless the law providing for such convention shall first be approved
by the people on a referendum vote at a regular or special election, and any amendments,
alterations, revisions, or new Constitution, proposed by such convention, shall be submitted to the
electors of the State at a general or special election and be approved by a majority of the electors
voting thereon, before the same shall become effective Provided, That the question of such
proposed convention shall be submitted to the people at least once in every twenty years.
13. Oregon (1859) — Art. XVII. Amendments and Revisions.
Sec. 1. Method of amending constitution. Any amendment or amendments to this Constitution may
be proposed in either branch of the legislative assembly, and if the same shall be agreed to by a
majority of all the members elected to each of the two houses, such proposed amendment or
amendments shall, with the yeas and nays thereon, be entered in their journals and referred by the
secretary of state to the people for their approval or rejection, at the next regular election, except
when the legislative assembly shall order a special election for that purpose. If a majority of the
electors voting on any such amendment shall vote in favor thereof, it shall thereby become a part of
this Constitution. The votes for and against such amendment, or amendments, severally, whether
proposed by the legislative assembly or by initiative petition, shall be canvassed by the secretary of
state in the presence of the governor, and if it shall appear to the governor that the majority of the
votes cast at said election on said amendment, or amendments, severally, are cast in favor thereof,
it shall be his duty forthwith after such canvass, by his proclamation, to declare the said amendment,
or amendments, severally, having received said majority of votes to have been adopted by the
people of Oregon as part of the Constitution thereof, and the same shall be in effect as a part of the
Constitution from the date of such proclamation. When two or more amendments shall be submitted
in the manner aforesaid to the voters of this state at the same election, they shall be so submitted
that each amendment shall be voted on separately. No convention shall be called to amend or
propose amendments to this Constitution, or to propose a new Constitution, unless the law providing
for such convention shall first be approved by the people on a referendum vote at a regular general
election. This article shall not be construed to impair the right of the people to amend this
Constitution by vote upon an initiative petition therefor.
Sec. 2. Method of revising constitution. (1) In addition to the power to amend this Constitution
granted by section 1, Article IV, and section 1 of this Article, a revision of all or part of this
Constitution may be proposed in either house of the Legislative Assembly and, if the proposed
revision is agreed to by at least two-thirds of all the members of each house, the proposed revision
shall, with the yeas and nays thereon, be entered in their journals and referred by the Secretary of
State to the people for their approval or rejection, notwithstanding section 1, Article IV of this
Constitution, at the next regular state-wide primary election, except when the Legislative Assembly
orders a special election for that purpose. A proposed revision may deal with more than one subject
and shall be voted upon as one question. The votes for and against the proposed revision shall be
canvassed by the Secretary of State in the presence of the Governor and, if it appears to the
Governor that the majority of the votes cast in the election on the proposed revision are in favor of
the proposed revision, he shall, promptly following the canvass, declare, by his proclamation, that
the proposed revision has received a majority of votes and has been adopted by the people as the
Constitution of the State of Oregon, as the case may be. The revision shall be in effect as the
Constitution or as a part of this Constitution from the date of such proclamation.
14. Utah (1896) — Art. 23. Amendments.
Sec. 1. Amendments; method of proposal and approval. Any amendments to his Constitution may
be proposed in either house of the Legislature, and if two-thirds of all the members elected of the
two houses, shall vote in favor thereof, such proposed amendment or amendments shall be entered
on their respective journals with the yeas and nays taken thereon; and the Legislature shall cause
the same to be published in at least one newspaper in every county of the State, where a newspaper
is published, for two months immediately preceding the next general election, at which time the said
amendment or amendments shall be submitted to the electors of the State, for their approval or
rejection, and if a majority of the electors voting thereon shall approve the same, such amendment
or amendments shall become part of this Constitution. If two or more amendments are proposed,
they shall be so submitted as to enable the electors to vote on each of them separately.
Sec. 2. Revision of the Constitution by convention. Whenever two-thirds of the members, elected to
each branch of the Legislature, shall deem it necessary to call a convention to revise or amend this
Constitution, they shall recommend to the electors to vote at the next general election, for or against
a convention, and, if a majority of all the electors, voting at such election, shall vote for a convention.
The Legislature, at its next session, shall provide by law for calling the same. The convention shall
consist of not less than the number of members in both branches of the Legislature.
15. Wyoming (1890) — Art. XX. Amendments.
Sec. 1. Procedure for amendments. Any amendment or amendments to this Constitution may be

proposed in either branch of the legislature, and, if the same shall be agreed to by two-thirds of all
the members of the two houses, voting separately, such proposed amendment or amendments
shall, with the yeas and nays thereon, be entered on their journals, and it shall be the duty of the
legislature to submit such amendment or amendments to the electors of the state at the next general
election, in at least one newspaper of general circulation, published in each county, and if a majority
of the electors shall ratify the same, such amendment or amendments shall become a part of this
constitution.
Sec. 2. How voted for. If two or more amendments are proposed, they shall be submitted in such
manner that the electors shall vote for or against each of them separately.
Sec. 3. Constitutional convention; provision for. Whenever two-thirds of the members elected to
each branch of the legislature shall deem it necessary to call a convention to revise or amend this
constitution, they shall recommend to the electors to vote at the next general election for or against a
convention, and if a majority of all the electors voting at such election shall have voted for a
convention, the legislature shall at the next session provide by a law for calling the same; and such
convention shall consist of a number of members, not less than double that of the most numerous
branch of the legislature.
Sec. 4. New constitution. Any constitution adopted by such convention shall have no validity until it
has been submitted to and adopted by the people.
G.R. No. L-44640 October 12, 1976
PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner,

vs.
HONORABLE COMMISSION ON ELECTIONS and HONORABLE NATIONAL
TREASURER, respondents.
G.R. No. L-44684. October 12,1976
VICENTE M. GUZMAN, petitioner,
vs.
COMMISSION ELECTIONS, respondent.
G.R. No. L-44714. October 12,1976

RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO SALAPANTAN, petitioners,
vs.
HONORABLE COMMISSION ON SELECTIONS and HONORABLE NATIONAL
TREASURER, respondents.
MARTIN, J,:
The capital question raised in these prohibition suits with preliminary injunction relates to the power
of the incumbent President of the Philippines to propose amendments to the present Constitution in
the absence of the interim National Assembly which has not been convened.
On September 2, 1976, President Ferdinand E. Marcos issued Presidential Decree No. 991 calling
for a national referendum on October 16, 1976 for the Citizens Assemblies ("barangays") to resolve,
among other things, the issues of martial law, the I . assembly, its replacement, the powers of such
replacement, the period of its existence, the length of the period for tile exercise by the President of
his present powers.1
Twenty days after or on September 22, 1976, the President issued another related decree,
Presidential Decree No. 1031, amending the previous Presidential Decree No. 991, by declaring the
provisions of presidential Decree No. 229 providing for the manner of voting and canvass of votes in
"barangays" (Citizens Assemblies) applicable to the national referendum-plebiscite of October 16,
1976. Quite relevantly, Presidential Decree No. 1031 repealed Section 4, of Presidential Decree No.
991, the full text of which (Section 4) is quoted in the footnote below.
2
On the same date of September 22, 1976, the President issued Presidential Decree No. 1033,
stating the questions to be submitted to the people in the referendum-plebiscite on October 16,
1976. The Decree recites in its "whereas" clauses that the people's continued opposition to the
convening of the National Assembly evinces their desire to have such body abolished and replaced
thru a constitutional amendment, providing for a legislative body, which will be submitted directly to
the people in the referendum-plebiscite of October 16.
The questions ask, to wit:
(1) Do you want martial law to be continued?
(2) Whether or not you want martial law to be continued, do you approve the following amendments
to the Constitution? For the purpose of the second question, the referendum shall have the effect of
a plebiscite within the contemplation of Section 2 of Article XVI of the Constitution.
PROPOSED AMENDMENTS:
1. There shall be, in lieu of the interim National Assembly, an interim Batasang Pambansa. Members
of the interim Batasang Pambansa which shall not be more than 120, unless otherwise provided by
law, shall include the incumbent President of the Philippines, representatives elected from the
different regions of the nation, those who shall not be less than eighteen years of age elected by
their respective sectors, and those chosen by the incumbent President from the members of the
Cabinet. Regional representatives shall be apportioned among the regions in accordance with the
number of their respective inhabitants and on the basis of a uniform and progressive ratio while the
sectors shall be determined by law. The number of representatives from each region or sector and
the, manner of their election shall be prescribed and regulated by law.
2. The interim Batasang Pambansa shall have the same powers and its members shall have the
same functions, responsibilities, rights, privileges, and disqualifications as the interim National
Assembly and the regular National Assembly and the members thereof. However, it shall not
exercise the power provided in Article VIII, Section 14(l) of the Constitution.
3. The incumbent President of the Philippines shall, within 30 days from the election and selection of
the members, convene the interim Batasang Pambansa and preside over its sessions until the
Speaker shall have been elected. The incumbent President of the Philippines shall be the Prime
Minister and he shall continue to exercise all his powers even after the interim Batasang Pambansa
is organized and ready to discharge its functions and likewise he shall continue to exercise his
powers and prerogatives under the nineteen hundred and thirty five. Constitution and the powers
vested in the President and the Prime Minister under this Constitution.
4. The President (Prime Minister) and his Cabinet shall exercise all the powers and functions, and
discharge the responsibilities of the regular President (Prime Minister) and his Cabinet, and shall be
subject only to such disqualifications as the President (Prime Minister) may prescribe. The President
(Prime Minister) if he so desires may appoint a Deputy Prime Minister or as many Deputy Prime
Ministers as he may deem necessary.
5. The incumbent President shall continue to exercise legislative powers until martial law shall have
been lifted.
6. Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a
threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular National
Assembly fails or is unable to act adequately on any matter for any reason that in his judgment
requires immediate action, he may, in order to meet the exigency, issue the necessary decrees,
orders or letters of instructions, which shall form part of the law of the land.
7. The barangays and sanggunians shall continue as presently constituted but their functions,
powers, and composition may be altered by law.
Referenda conducted thru the barangays and under the Supervision of the Commission on Elections
may be called at any time the government deems it necessary to ascertain the will of the people
regarding any important matter whether of national or local interest.
8. All provisions of this Constitution not inconsistent with any of these amendments shall continue in
full force and effect.
9. These amendments shall take effect after the incumbent President shall have proclaimed that
they have been ratified by I majority of the votes cast in the referendum-plebiscite."
The Commission on Elections was vested with the exclusive supervision and control of the October
1976 National Referendum-Plebiscite.
On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD, father and son,
commenced L-44640 for Prohibition with Preliminary Injunction seeking to enjoin the Commission on
Elections from holding and conducting the Referendum Plebiscite on October 16; to declare without
force and effect Presidential Decree Nos. 991 and 1033, insofar as they propose amendments to the
Constitution, as well as Presidential Decree No. 1031, insofar as it directs the Commission on
Elections to supervise, control, hold, and conduct the Referendum-Plebiscite scheduled on October
16, 1976.
Petitioners contend that under the 1935 and 1973 Constitutions there is no grant to the incumbent
President to exercise the constituent power to propose amendments to the new Constitution. As a
consequence, the Referendum-Plebiscite on October 16 has no constitutional or legal basis.
On October 5, 1976, the Solicitor General filed the comment for respondent Commission on
Elections, The Solicitor General principally maintains that petitioners have no standing to sue; the
issue raised is political in nature, beyond judicial cognizance of this Court; at this state of the
transition period, only the incumbent President has the authority to exercise constituent power; the
referendum-plebiscite is a step towards normalization.
On September 30, 1976, another action for Prohibition with Preliminary Injunction, docketed as L-
44684, was instituted by VICENTE M. GUZMAN, a delegate to the 1971 Constitutional Convention,
asserting that the power to propose amendments to, or revision of the Constitution during the
transition period is expressly conferred on the interim National Assembly under Section 16, Article
XVII of the Constitution.3
Still another petition for Prohibition with Preliminary Injunction was filed on October 5, 1976 by RAUL
M. GONZALES, his son RAUL, JR., and ALFREDO SALAPANTAN, docketed as L- 44714, to
restrain the implementation of Presidential Decrees relative to the forthcoming Referendum-
Plebiscite of October 16.
These last petitioners argue that even granting him legislative powers under Martial Law, the
incumbent President cannot act as a constituent assembly to propose amendments to the
Constitution; a referendum-plebiscite is untenable under the Constitutions of 1935 and 1973; the
submission of the proposed amendments in such a short period of time for deliberation renders the
plebiscite a nullity; to lift Martial Law, the President need not consult the people via referendum; and
allowing 15-.year olds to vote would amount to an amendment of the Constitution, which confines
the right of suffrage to those citizens of the Philippines 18 years of age and above.
We find the petitions in the three entitled cases to be devoid of merit.
Justiciability of question raised.
1. As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo C. Sanidad and Pablito
V. Sanidad) possess locus standi to challenge the constitutional premise of Presidential Decree Nos.
991, 1031, and 1033. It is now an ancient rule that the valid source of a stature Presidential Decrees
are of such nature-may be contested by one who will sustain a direct injuries as a in result of its
enforcement. At the instance of taxpayers, laws providing for the disbursement of public funds may
be enjoined, upon the theory that the expenditure of public funds by an officer of the State for the
purpose of executing an unconstitutional act constitutes a misapplication of such funds. 4 The
breadth of Presidential Decree No. 991 carries all appropriation of Five Million Pesos for the effective
implementation of its purposes. 5 Presidential Decree No. 1031 appropriates the sum of Eight Million
Pesos to carry out its provisions. 6 The interest of the aforenamed petitioners as taxpayers in the
lawful expenditure of these amounts of public money sufficiently clothes them with that personality to
litigate the validity of the Decrees appropriating said funds. Moreover, as regards taxpayer's suits,
this Court enjoys that open discretion to entertain the same or not. 7 For the present case, We deem
it sound to exercise that discretion affirmatively so that the authority upon which the disputed
Decrees are predicated may be inquired into.
2. The Solicitor General would consider the question at bar as a pure political one, lying outside the
domain of judicial review. We disagree. The amending process both as to proposal and ratification,
raises a judicial question. 8This is especially true in cases where the power of the Presidency to initiate the of normally exercised
by the legislature, is seriously doubted. Under the terms of the 1973 Constitution, the power to propose amendments o the constitution
resides in the interim National Assembly in the period of transition (See. 15, Transitory provisions). After that period, and the regular National
Assembly in its active session, the power to propose amendments becomes ipso facto the prerogative of the regular National Assembly
(Sec. 1, pars. 1 and 2 of Art. XVI, 1973 constitution). The normal course has not been followed. Rather than calling the National Assembly to
constitute itself into a constituent assembly the incumbent President undertook the proposal of amendments and submitted the proposed
amendments thru Presidential Decree 1033 to the people in a Referendum-Plebiscite on October 16. Unavoidably, the regularity regularity of
the procedure for amendments, written in lambent words in the very Constitution sought to be amended, raises a contestable issue. The
implementing Presidential Decree Nos. 991, 1031, and 1033, which commonly purport to have the force and effect of legislation are assailed
as invalid, thus the issue of the validity of said Decrees is plainly a justiciable one, within the competence of this Court to pass upon. Section
2 (2), Article X of the new Constitution provides: "All cases involving the constitutionality of a treaty, executive agreement, or law may shall
be heard and decided by the Supreme Court en banc and no treaty, executive agreement, or law may be declared unconstitutional without
the concurrence of at least ten Members. ..." The Supreme Court has the last word in the construction not only of treaties and statutes, but
also of the Constitution itself The amending, like all other powers organized in the Constitution, is in form a delegated and hence a limited
power, so that the Supreme Court is vested with that authorities to determine whether that power has been discharged within its limits.
Political questions are neatly associated with the wisdom, of the legality of a particular act. Where
the vortex of the controversy refers to the legality or validity of the contested act, that matter is
definitely justiciable or non-political. What is in the heels of the Court is not the wisdom of the act of
the incumbent President in proposing amendments to the Constitution, but his constitutional
authority to perform such act or to assume the power of a constituent assembly. Whether the
amending process confers on the President that power to propose amendments is therefore a
downright justiciable question. Should the contrary be found, the actuation of the President would
merely be a brutum fulmen. If the Constitution provides how it may be amended, the judiciary as the
interpreter of that Constitution, can declare whether the procedure followed or the authority assumed
was valid or not. 10
We cannot accept the view of the Solicitor General, in pursuing his theory of non-justiciability, that
the question of the President's authority to propose amendments and the regularity of the procedure
adopted for submission of the proposal to the people ultimately lie in the judgment of the A clear
Descartes fallacy of vicious circle. Is it not that the people themselves, by their sovereign act,
provided for the authority and procedure for the amending process when they ratified the present
Constitution in 1973? Whether, therefore, the constitutional provision has been followed or not is the
proper subject of inquiry, not by the people themselves of course who exercise no power of judicial
but by the Supreme Court in whom the people themselves vested that power, a power which
includes the competence to determine whether the constitutional norms for amendments have been
observed or not. And, this inquiry must be done a prior not a posterior i.e., before the submission to
and ratification by the people.
Indeed, the precedents evolved by the Court or, prior constitutional cases underline the preference
of the Court's majority to treat such issue of Presidential role in the amending process as one of non-
political impression. In the Plebiscite Cases, the contention of the Solicitor General that the issue
11
on the legality of Presidential Decree No. 73 "submitting to the Pilipino people (on January 15, 1973)
for ratification or rejection the Constitution of the Republic of the Philippines proposed by the 1971
Constitutional Convention and appropriating fund s therefore "is a political one, was rejected and the
Court unanimously considered the issue as justiciable in nature. Subsequently in the Ratification
Cases involving the issue of whether or not the validity of Presidential Proclamation No. 1102.
12
announcing the Ratification by the Filipino people of the constitution proposed by the 1971
Constitutional Convention," partakes of the nature of a political question, the affirmative stand of' the
Solicitor General was dismissed, the Court ruled that the question raised is justiciable. Chief Justice
Concepcion, expressing the majority view, said, Thus, in the aforementioned plebiscite cases, We
rejected the theory of the respondents therein that the question whether Presidential Decree No. 73
calling a plebiscite to be held on January 15, 1973, for the ratification or rejection of the proposed
new Constitution, was valid or not, was not a proper subject of judicial inquiry because, they claimed,
it partook of a political nature, and We unanimously declared that the issue was a justiciable one.
With Identical unanimity. We overruled the respondent's contention in the 1971 habeas corpus
cases, questioning Our authority to determine the constitutional sufficiency of the factual bases of
the Presidential proclamation suspending the privilege of the writ of habeas corpus on August 21,
1971, despite the opposite view taken by this Court in Barcelon vs. Baker and Montenegro vs.
Castaneda, insofar as it adhered to the former case, which view We, accordingly, abandoned and
refused to apply. For the same reason, We did not apply and expressly modified, in Gonzales vs.
Commission on Elections, the political-question theory adopted in Mabanag vs. Lopez Vito." The 13
return to Barcelon vs. Baker and Mabanag vs. Lopez Vito, urged by the Solicitor General, was
decisively refused by the Court. Chief Justice Concepcion continued: "The reasons adduced in
support thereof are, however, substantially the same as those given in support on the political
question theory advanced in said habeas corpus and plebiscite cases, which were carefully
considered by this Court and found by it to be legally unsound and constitutionally untenable. As a
consequence. Our decisions in the aforementioned habeas corpus cases partakes of the nature and
effect of a stare decisis which gained added weight by its virtual reiteration."
II
The amending process as laid out
in the new Constitution.
1. Article XVI of the 1973 Constitution on Amendments ordains:
SECTION 1. (1) Any amendment to, or revision of, this Constitution may be proposed
by the National Assembly upon a vote of three-fourths of all its Members, or by a
constitutional convention. (2) The National Assembly may, by a vote of two-thirds of
all its Members, call a constitutional convention or, by a majority vote of all its
Members, submit the question of calling such a convention to the electorate in an
election.
SECTION 2. Any amendment to, or revision of, this Constitution shall be valid when
ratified by a majority of the votes cast in a plebiscite which shall be held not later than
three months after the approval of such amendment or revision.
In the present period of transition, the interim National Assembly instituted in the Transitory
Provisions is conferred with that amending power. Section 15 of the Transitory Provisions reads:
SECTION 15. The interim National Assembly, upon special call by the interim Prime
Minister, may, by a majority vote of all its Members, propose amendments to this
Constitution. Such amendments shall take effect when ratified in accordance with
Article Sixteen hereof.
There are, therefore, two periods contemplated in the constitutional life of the nation, i.e., period of
normalcy and period of transition. In times of normally, the amending process may be initiated by the
proposals of the (1) regular National Assembly upon a vote of three-fourths of all its members; or (2)
by a Constitutional Convention called by a vote of two-thirds of all the Members of the National
Assembly. However the calling of a Constitutional Convention may be submitted to the electorate in
an election voted upon by a majority vote of all the members of the National Assembly. In times of
transition, amendments may be proposed by a majority vote of all the Members of the National
Assembly upon special call by the interim Prime Minister,.
2. This Court in Aquino v. COMELEC," had already settled that the incumbent President is vested
with that prerogative of discretion as to when he shall initially convene the interim National
Assembly. Speaking for the majority opinion in that case, Justice Makasiar said: "The Constitutional
Convention intended to leave to the President the determination of the time when he shall initially
convene the interim National Assembly, consistent with the prevailing conditions of peace and order
in the country." Concurring, Justice Fernandez, himself a member of that Constitutional Convention,
revealed: "(W)hen the Delegates to the Constitutional Convention voted on the Transitory
Provisions, they were aware of the fact that under the same, the incumbent President was given the
discretion as to when he could convene the interim National Assembly; it was so stated plainly by
the sponsor, Delegate Yaneza; as a matter of fact, the proposal that it be convened 'immediately',
made by Delegate Pimentel (V) was rejected. The President's decision to defer the convening of the
interim National Assembly soon found support from the people themselves. In the plebiscite of
January 10-15, 1973, at which the ratification of the 1973 Constitution was submitted, the people
voted against the convening of the interim National Assembly. In the referendum of July 24, 1973,
the Citizens Assemblies ("bagangays") reiterated their sovereign will to withhold the convening of the
interim National Assembly. Again, in the referendum of February 27, 1975, the proposed question of
whether the interim National Assembly shall be initially convened was eliminated, because some of
the members of Congress and delegates of the Constitutional Convention, who were deemed
automatically members of the I interim National Assembly, were against its inclusion since in that
referendum of January, 1973, the people had already resolved against it.
3. In sensu strictiore, when the legislative arm of the state undertakes the proposals of amendment
to a Constitution, that body is not in the usual function of lawmaking. lt is not legislating when
engaged in the amending process.16 Rather, it is exercising a peculiar power bestowed upon it by
the fundamental charter itself. In the Philippines, that power is provided for in Article XVI of the 1973
Constitution (for the regular National Assembly) or in Section 15 of the Transitory Provisions (for the
National Assembly). While ordinarily it is the business of the legislating body to legislate for the
nation by virtue of constitutional conferment amending of the Constitution is not legislative in
character. In political science a distinction is made between constitutional content of an organic
character and that of a legislative character'. The distinction, however, is one of policy, not of
law. Such being the case, approval of the President of any proposed amendment is a
17
misnomer The prerogative of the President to approve or disapprove applies only to the ordinary
18
cases of legislation. The President has nothing to do with proposition or adoption of amendments to
the Constitution.
19
III
Concentration of Powers
in the President during
crisis government.
1. In general, the governmental powers in crisis government the Philippines is a crisis government
today are more or less concentrated in the President. According to Rossiter, "(t)he concentration of
20
government power in a democracy faced by an emergency is a corrective to the crisis inefficiencies

inherent in the doctrine of the separation of powers. In most free states it has generally been
regarded as imperative that the total power of the government be parceled out among three mutually
independent branches executive, legislature, and judiciary. It is believed to be destructive of
constitutionalism if any one branch should exercise any two or more types of power, and certainly a
total disregard of the separation of powers is, as Madison wrote in the Federalist, No. 47, 'the very
definition of tyranny.' In normal times the separation of powers forms a distinct obstruction to
arbitrary governmental action. By this same token, in abnormal times it may form an insurmountable
barrier to a decisive emergency action in behalf of the state and its independent existence. There
are moments in the life of any government when all powers must work together in unanimity of
purpose and action, even if this means the temporary union of executive, legislative, and judicial
power in the hands of one man. The more complete the separation of powers in a constitutional
system, the more difficult and yet the more necessary will be their fusion in time of crisis. This is
evident in a comparison of the crisis potentialities of the cabinet and presidential systems of
government. In the former the all-important harmony of legislature and executive is taken for
granted; in the latter it is neither guaranteed nor to be to confidently expected. As a result, cabinet is
more easily established and more trustworthy than presidential dictatorship. The power of the state
in crisis must not only be concentrated and expanded; it must also be freed from the normal system
of constitutional and legal limitations. John Locke, on the other hand, claims for the executive in its
21
own right a broad discretion capable even of setting aside the ordinary laws in the meeting of special
exigencies for which the legislative power had not provided. The rationale behind such broad
22
emergency powers of the Executive is the release of the government from "the paralysis of
constitutional restrains" so that the crisis may be ended and normal times restored.
2. The presidential exercise of legislative powers in time of martial law is now a conceded valid at.
That sun clear authority of the President is saddled on Section 3 (pars. 1 and 2) of the Transitory
Provisions, thus:23
The incumbent President of the Philippines shall initially convene the interim National
Assembly and shall preside over its sessions until the interim Speaker shall have
been elected. He shall continue to exercise his powers and prerogatives under the
nineteen hundred and thirty-five Constitution and the powers vested in the President
and the Prime Minister under this Constitution until the calls upon the interim National
Assembly to elect the interim President and the interim Prime Minister, who shall
then exercise their respective powers vested by this Constitution.
All proclamations, orders, decrees, instructions, and acts promulgated, issued, or

done by the incumbent President shall be part of the law of the land, and shall
remain valid, binding, and effective even after lifting of martial law or the ratification of
this Constitution, unless modified, revoked, or superseded by subsequent
proclamations, orders, decrees, instructions, or other acts of the incumbent
President, or unless expressly and explicitly modified or repealed by the regular
National Assembly.
"It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention delegate, "that the
Constitutional Convention, while giving to the President the discretion when to call the interim
National Assembly to session, and knowing that it may not be convened soon, would create a
vacuum in the exercise of legislative powers. Otherwise, with no one to exercise the lawmaking
powers, there would be paralyzation of the entire governmental machinery." Paraphrasing
24
Rossiter, this is an extremely important factor in any constitutional dictatorship which extends over a
period of time. The separation of executive and legislature ordained in the Constitution presents a
distinct obstruction to efficient crisis government. The steady increase in executive power is not too
much a cause for as the steady increase in the magnitude and complexity of the problems the
President has been called upon by the Filipino people to solve in their behalf, which involve
rebellion, subversion, secession, recession, inflation, and economic crisis-a crisis greater than war.
In short, while conventional constitutional law just confines the President's power as Commander-in-
Chief to the direction of the operation of the national forces, yet the facts of our political, social, and
economic disturbances had convincingly shown that in meeting the same, indefinite power should be
attributed to tile President to take emergency measures 25
IV
Authority of the incumbent
President t to propose
amendments to the Constitution.
1. As earlier pointed out, the power to legislate is constitutionally consigned to the interim National
Assembly during the transition period. However, the initial convening of that Assembly is a matter
fully addressed to the judgment of the incumbent President. And, in the exercise of that judgment,
the President opted to defer convening of that body in utter recognition of the people's preference.
Likewise, in the period of transition, the power to propose amendments to the Constitution lies in the
interim National Assembly upon special call by the President (See. 15 of the Transitory Provisions).
Again, harking to the dictates of the sovereign will, the President decided not to call the interim
National Assembly. Would it then be within the bounds of the Constitution and of law for the
President to assume that constituent power of the interim Assembly vis-a-vis his assumption of that
body's legislative functions? The answer is yes. If the President has been legitimately discharging
the legislative functions of the interim Assembly, there is no reason why he cannot validly discharge
the function of that Assembly to propose amendments to the Constitution, which is but adjunct,
although peculiar, to its gross legislative power. This, of course, is not to say that the President has
converted his office into a constituent assembly of that nature normally constituted by the legislature.
Rather, with the interim National Assembly not convened and only the Presidency and the Supreme
Court in operation, the urges of absolute necessity render it imperative upon the President to act as
agent for and in behalf of the people to propose amendments to the Constitution. Parenthetically, by
its very constitution, the Supreme Court possesses no capacity to propose amendments without
constitutional infractions. For the President to shy away from that actuality and decline to undertake
the amending process would leave the governmental machineries at a stalemate or create in the
powers of the State a destructive vacuum, thereby impeding the objective of a crisis government "to
end the crisis and restore normal times." In these parlous times, that Presidential initiative to reduce
into concrete forms the constant voices of the people reigns supreme. After all, constituent
assemblies or constitutional conventions, like the President now, are mere agents of the people .26
2. The President's action is not a unilateral move. As early as the referendums of January 1973 and
February 1975, the people had already rejected the calling of the interim National Assembly. The
Lupong Tagapagpaganap of the Katipunan ng mga Sanggunian, the Pambansang Katipunan ng
mga Barangay, and the Pambansang Katipunan ng mga Barangay, representing 42,000 barangays,
about the same number of Kabataang Barangay organizations, Sanggunians in 1,458 municipalities,
72 provinces, 3 sub-provinces, and 60 cities had informed the President that the prevailing sentiment
of the people is for the abolition of the interim National Assembly. Other issues concerned the lifting
of martial law and amendments to the Constitution .27 The national organizations of Sangguniang Bayan presently
proposed to settle the issues of martial law, the interim Assembly, its replacement, the period of its existence, the length of the period for the
exercise by the President of its present powers in a referendum to be held on October 16 .28 The Batasang Bayan (legislative council)
created under Presidential Decree 995 of September 10, 1976, composed of 19 cabinet members, 9 officials with cabinet rank, 91 members
of the Lupong Tagapagpaganap (executive committee) of the Katipunan ng mga Sangguniang Bayan voted in session to submit directly to
the people in a plebiscite on October 16, the previously quoted proposed amendments to the Constitution, including the issue of martial
law .29 Similarly, the "barangays" and the "sanggunians" endorsed to the President the submission of the proposed amendments to the
people on October 16. All the foregoing led the President to initiate the proposal of amendments to the Constitution and the subsequent
issuance of Presidential Decree No, 1033 on September 22, 1976 submitting the questions (proposed amendments) to the people in the
National Referendum-Plebiscite on October 16.
The People is Sovereign

1. Unlike in a federal state, the location of sovereignty in a unitary state is easily seen. In the
Philippines, a republican and unitary state, sovereignty "resides in the people and all government
authority emanates from them .30 In its fourth meaning, Savigny would treat people as "that particular organized assembly of
individuals in which, according to the Constitution, the highest power exists." 31 This is the concept of popular sovereignty. It means that the
constitutional legislator, namely the people, is sovereign 32 In consequence, the people may thus write into the Constitution their convictions
on any subject they choose in the absence of express constitutional prohibition. 33 This is because, as Holmes said, the Constitution "is an
experiment, as all life is all experiment."34 "The necessities of orderly government," wrote Rottschaefer, "do not require that one generation
should be permitted to permanently fetter all future generations." A constitution is based, therefore, upon a self-limiting decision of the people
when they adopt it. 35
2. The October 16 referendum-plebiscite is a resounding call to the people to exercise their

sovereign power as constitutional legislator. The proposed amendments, as earlier discussed,
proceed not from the thinking of a single man. Rather, they are the collated thoughts of the
sovereign will reduced only into enabling forms by the authority who can presently exercise the
powers of the government. In equal vein, the submission of those proposed amendments and the
question of martial law in a referendum-plebiscite expresses but the option of the people themselves
implemented only by the authority of the President. Indeed, it may well be said that the amending
process is a sovereign act, although the authority to initiate the same and the procedure to be
followed reside somehow in a particular body.
VI
Referendum-Plebiscite not
rendered nugatory by the
participation of the 15-year olds.
1. October 16 is in parts a referendum and a plebiscite. The question - (1) Do you want martial law to
be continued? - is a referendum question, wherein the 15-year olds may participate. This was
prompted by the desire of the Government to reach the larger mas of the people so that their true
pulse may be felt to guide the President in pursuing his program for a New Order. For the
succeeding question on the proposed amendments, only those of voting age of 18 years may
participate. This is the plebiscite aspect, as contemplated in Section 2, Article XVI of the new
Constitution. On this second question, it would only be the votes of those 18 years old and above
36
which will have valid bearing on the results. The fact that the voting populace are simultaneously
asked to answer the referendum question and the plebiscite question does not infirm the
referendum-plebiscite. There is nothing objectionable in consulting the people on a given issue,
which is of current one and submitting to them for ratification of proposed constitutional
amendments. The fear of commingled votes (15-year olds and 18-year olds above) is readily
dispelled by the provision of two ballot boxes for every barangay center, one containing the ballots of
voters fifteen years of age and under eighteen, and another containing the ballots of voters eighteen
years of age and above. The ballots in the ballot box for voters fifteen years of age and under
37
eighteen shall be counted ahead of the ballots of voters eighteen years and above contained in
another ballot box. And, the results of the referendum-plebiscite shall be separately prepared for the
age groupings, i.e., ballots contained in each of the two boxes. 38
2. It is apt to distinguish here between a "referendum" and a "plebiscite." A "referendum" is merely

consultative in character. It is simply a means of assessing public reaction to the given issues
submitted to the people foe their consideration, the calling of which is derived from or within the
totality of the executive power of the President. It is participated in by all citizens from the age of
39
fifteen, regardless of whether or not they are illiterates, feeble-minded, or ex- convicts . A 40
"plebiscite," on the other hand, involves the constituent act of those "citizens of the Philippines not
otherwise disqualified by law, who are eighteen years of age or over, and who shall have resided in
the Philippines for at least one year and in the place wherein they propose to vote for at least six
months preceding the election Literacy, property or any other substantive requirement is not
imposed. It is generally associated with the amending process of the Constitution, more particularly,
the ratification aspect.
VII
1. There appeals to be no valid basis for the claim that the regime of martial law stultifies in main the
freedom to dissent. That speaks of a bygone fear. The martial law regime which, in the observation
of Justice Fernando, is impressed with a mild character recorded no State imposition for a muffled
41
voice. To be sure, there are restraints of the individual liberty, but on certain grounds no total
suppression of that liberty is aimed at. The for the referendum-plebiscite on October 16 recognizes
all the embracing freedoms of expression and assembly The President himself had announced that
he would not countenance any suppression of dissenting views on the issues, as he is not interested
in winning a "yes" or "no" vote, but on the genuine sentiment of the people on the issues at
hand. Thus, the dissenters soon found their way to the public forums, voicing out loud and clear
42
their adverse views on the proposed amendments and even (in the valid ratification of the 1973
Constitution, which is already a settled matter. Even government employees have been held by the
43
Civil Service Commission free to participate in public discussion and even campaign for their stand
on the referendum-plebiscite issues. 44
VIII
Time for deliberation
is not short.
1. The period from September 21 to October 16 or a period of 3 weeks is not too short for free
debates or discussions on the referendum-plebiscite issues. The questions are not new. They are
the issues of the day. The people have been living with them since the proclamation of martial law
four years ago. The referendums of 1973 and 1975 carried the same issue of martial law. That
notwithstanding, the contested brief period for discussion is not without counterparts in previous
plebiscites for constitutional amendments. Justice Makasiar, in the Referendum Case, recalls:
"Under the old Society, 15 days were allotted for the publication in three consecutive issues of the
Official Gazette of the women's suffrage amendment to the Constitution before the scheduled
plebiscite on April 30, 1937 (Com. Act No. 34). The constitutional amendment to append as
ordinance the complicated Tydings-Kocialskowski was published in only three consecutive issues of
the Official Gazette for 10 days prior to the scheduled plebiscite (Com. Act 492). For the 1940
Constitutional amendments providing for the bicameral Congress, the reelection of the President and
Vice President, and the creation of the Commission on Elections, 20 days of publication in three
consecutive issues of the Official Gazette was fixed (Com Act No. 517). And the Parity Amendment,
an involved constitutional amendment affecting the economy as well as the independence of the
Republic was publicized in three consecutive issues of the Official Gazette for 20 days prior to the
plebiscite (Rep. Act No. 73)."45
2. It is worthy to note that Article XVI of the Constitution makes no provision as to the specific date
when the plebiscite shall be held, but simply states that it "shall be held not later than three months
after the approval of such amendment or revision." In Coleman v. Miller, the United States
46
Supreme court held that this matter of submission involves "an appraisal of a great variety of
relevant conditions, political, social and economic," which "are essentially political and not
justiciable." The constituent body or in the instant cases, the President, may fix the time within which
the people may act. This is because proposal and ratification are not treated as unrelated acts, but
as succeeding steps in a single endeavor, the natural inference being that they are not to be widely
separated in time; second, it is only when there is deemed to be a necessity therefor that
amendments are to be proposed, the reasonable implication being that when proposed, they are to
be considered and disposed of presently, and third, ratification is but the expression of the
approbation of the people, hence, it must be done contemporaneously. In the words of Jameson,
47
"(a)n alteration of the Constitution proposed today has relation to the sentiment and the felt needs of
today, and that, if not ratified early while that sentiment may fairly be supposed to exist. it ought to be
regarded as waived, and not again to be voted upon, unless a second time proposed by proper body
IN RESUME
The three issues are
1. Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and 1033 political or
justiciable?
2. During the present stage of the transition period, and under, the environmental circumstances
now obtaining, does the President possess power to propose amendments to the Constitution as
well as set up the required machinery and prescribe the procedure for the ratification of his
proposals by the people?
3. Is the submission to the people of the proposed amendments within the time frame allowed
therefor a sufficient and proper submission?
Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices Enrique M. Fernando,
Claudio Teehankee, Antonio P. Barredo, Cecilia Munoz Palma, Hermogenes Concepcion Jr. and
Ruperto G. Martin are of the view that the question posed is justiciable, while Associate Justices
Felix V. Makasiar, Felix Q. Antonio and Ramon C. Aquino hold the view that the question is political.
Upon the second issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio,
Aquino, Concepcion Jr. and Martin voted in the affirmative, while Associate Justices Teehankee and
Munoz Palma voted in the negative. Associate Justice Fernando, conformably to his concurring and
dissenting opinion in Aquino vs. Enrile (59 SCRA 183), specifically dissents from the proposition that
there is concentration of powers in the Executive during periods of crisis, thus raising serious doubts
as to the power of the President to propose amendments.
Upon the third issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Aquino,
Concepcion Jr. and Martin are of the view that there is a sufficient and proper submission of the
proposed amendments for ratification by the people. Associate Justices Barredo and Makasiar
expressed the hope, however that the period of time may be extended. Associate Justices
Fernando, Makasiar and Antonio are of the view that the question is political and therefore beyond
the competence and cognizance of this Court, Associate Justice Fernando adheres to his
concurrence in the opinion of Chief Justice Concepcion in Gonzales vs. COMELEC (21 SCRA
774).Associate Justices Teehankee and MUNOZ Palma hold that prescinding from the President's
lack of authority to exercise the constituent power to propose the amendments, etc., as above
stated, there is no fair and proper submission with sufficient information and time to assure intelligent
consent or rejection under the standards set by this Court in the controlling cases of Gonzales,
supra, and Tolentino vs. COMELEC (41 SCRA 702).
Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino, Concepcion Jr.
and Martin voted to dismiss the three petitions at bar. For reasons as expressed in his separate
opinion, Associate Justice Fernando concurs in the result. Associate Justices Teehankee and
Munoz Palma voted to grant the petitions.
ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are hereby dismissed. This
decision is immediately executory.
SO ORDERED.
Aquino, J, in the result.
Separate Opinions
CASTRO, C.J.:, concurring:
From the challenge as formulated in the three petitions at bar and the grounds advanced be the
Solicitor General in opposition thereto, as well as the arguments adduced by the counsels of the
parties at the hearing had on October 7 and 8, 1976, three vital issues readily project themselves as
the centers of controversy, namely:
(1) Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and 1033 political
or justiciable?
(2) During the present stage of the transition period, and under the environmental circumstances
now obtaining, does the President possess power to propose amendments to the Constitution as
well as set up the required machineries and prescribe the procedure for the ratification of his
proposals by the people?
(3) Is the submission to the people of the proposed amendments within the time frame allowed
therefor a sufficient and proper, submission"
First Issue
The threshold question is not at all one of first impression Specifically on the matter of proposals to
amend the Constitution, this Court, in Mabanag vs. Lopez Vito (78 Phil. 1), inceptively announced
the dictum that-
Proposal to amend the Constitution is a highly political function performed by the

Congress in its sovereign legislative capacity and committed to its charges by the
Constitution itself. The exercise of this power is even independent of any intervention
by the Chief Executive. If on grounds of expediency scrupulous attention of the
judiciary be needed to safeguard public interest, there is less reason for judicial
inquiry into the validity of a proposal than into that of a ratification.
In time, however, the validity of the said pronouncement was eroded. In the assessment of the Court
itself-
The force of this precedent has been weakened, however, by Suanes vs. Chief Accountant of the
Senate (81 Phil. 818), Avelino vs. Cuenco (L-2581, March 4 and 14, 1949), Tanada vs. Cuenco (L-
10520, February 28, 1957), and Macias vs. Commission on Elections (L-18684, September 14,
1961).
x x x x x x x x x
In short, the issue whether or not a Resolution of Congress-acting as a constituent assembly-

violates the Constitution is essentially justiciable, not political, and, hence, subject to judicial review,
and, to the extent this view may be inconsistent with the stand taken in Mabanag vs. Lopez Vito the
latter should be deemed modified accordingly. The Members of the Court are unanimous on this
point." (Gonzales vs. Commission on Elections, et al, L-28196, November 9, 1967, 21 SCRA 774,
786-787).
The abandonment of the Mabanag vs. Lopez Vito doctrine appears to have been completed when,
in Javellana vs. Secretary, et al. (L-36142, March 3l, 1973, 50 SCRA 30), six members of the Court
concurred in the view that the question of whether the 1973 Constitution was ratified in accordance
with the provisions of Article XV (Amendments) of the 1935 Constitution is inherently and essentially
justiciable.
As elucidated therein, with extensive quotations from Tanada vs. Cuenco (103 Phil. 1051)-
... the term 'political question' connotes, in legal parlance, what it means in ordinarily
parlance, namely, a question of policy in matters concerning the government of a
State, as a body politic. In other words, in the language of Corpus Juris Secundum
(supra), it refers to 'those questions which, under the Constitution, are to be decided
by the people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the Legislature or executive branch of the
government.' It is concerned with issues dependent upon the wisdom, not legality, of
a particular measure.'
Accordingly, when the grant of power is qualified, conditional or subject to limitations, the issue on
whether or not the prescribed qualifications or conditions have been met, or the limitations
respected, is justiciable or non-political, the crux of the problem being one of legality or validity of the
contested act, not its wisdom. Otherwise, said qualifications, conditions or limitations - particularly
those prescribed or imposed by the Constitution - would be set at naught." (Javellana vs. Executive
Secretary, supra).
So it is in the situation here presented. The basic issue is the constitutional validity of the presidential
acts of proposing amendments to the Constitution and of calling a referendum-plebiscite for the
ratification of the proposals made. Evidently, the question does not concern itself with the wisdom of
the exercise of the authority claimed or of the specific amendments proposed. Instead the inquiry vel
non is focused solely on the existence of the said power in the President - a question purely of
legality determinable thru interpretation and construction of the letter and spirit of the Constitution by
the Court as the final arbiter in the delineation of constitutional boundaries and the allocation of
constitutional powers.
For the Court to shun cognizance of the challenge herein presented, especially in these parlous
years, would be to abdicate its constitutional powers, shirk its constitutional responsibility, and deny
the people their ultimate recourse for judicial determination.
I have thus no hesitancy in concluding that the question here presented is well within the periphery
of judicial inquiry.
II
Second Issue
The main question stands on a different footing; it appears unprecedented both here and elsewhere.
Its solution, I believe, can be found and unraveled only by a critical assessment of the existing legal
order in the light of the prevailing political and factual milieu.
To be sure, there is an impressive array of consistent jurisprudence on the proposition that, normally
or under normal conditions, a Constitution may be amended only in accord with the procedure set
forth therein. Hence, if there be any such prescription for the amendatory process as invariable there
is because one of the essential parts of a Constitution is the so-called "constitution of sovereignty"
which comprises the provision or provisions on the modes in accordance with which formal changes
in the fundamental law may be effected the same would ordinarily be the controlling criterion for the
validity of the amendments sought.
Unfortunately, however, during the present transition period of our political development, no express
provision is extant in the Constitution regarding the agency or agent by whom and the procedure by
which amendments thereto may be proposed and ratified fact overlooked by those who challenge
the validity of the presidential acts in the premises. This is so because there are at least two
distinctly in the transition from the old system of government under the 1935 Constitution to the new
one established by the 1973 Constitution.
The first stage comprises the period from the effectivity of the Constitution on January 17, 1973 to
the time the National Assembly is convened by the incumbent President and the interim President
and the interim Prime Minister are chosen Article XVII, Sections 1 and 3[1]. The existence of this
stage as an obvious fact of the nation's political life was recognized by the Court in Aquino vs.
Commission on Elections, et al. (L-40004, January 31, 1975, 62 SCRA 275), when it rejected the
claim that, under the 1973 Constitution, the President was in duty bound to convene the interim
National Assembly soon after the Constitution took effect.
The second stage embraces the period from the date the interim National Assembly is convened to
the date the Government described in Articles VII to IX of the Constitution is inaugurated, following
the election of the members of the regular National Assembly (Article XVII, Section 1) and the
election of the regular President and Prime Minister,. This is as it should be because it is recognized
that the President has been accorded the discretion to determine when he shall initially convene the
interim National Assembly, and his decision to defer the convocation thereof has found
overwhelming support by the sovereign people in two previous referenda, therein giving reality to an
interregnum between the effectivity of the Constitution and the initial convocation of the interim
National Assembly, which interregnum, as aforesaid, constitutes the first stage in the transition
period.
Against this factual backdrop, it is readily discernible that neither of the two sets of provisions
embodied in the Constitution on the amendatory process applied during the said first stage. Thus,
Section 15, Article XVII (Transitory Provisions) provides-
"Sec. 15. The interim National Assembly, upon special call by the interim Prime Minister, may, by a
majority vote of all its Members, propose amendments to this Constitution. Such amendments shall
take effect when ratified in accordance with Article Sixteen hereof."
Patently, the reference to the "interim National Assembly" and the "interim Prime Minister" limits the
application thereof to the second stage of the transition period, i.e.,., after the interim? National
Assembly shall have been convened and the interim Prime Minister shall have been chosen.
Upon the other hand, the provisions of Article XVI (Amendments), to wit-
SECTION 1. (1) Any amendment to, or revision of, this Constitution may be proposed
by the National Assembly upon a vote of three-fourths of all its Members, or by a
constitutional convention.
(2) The National Assembly may, by a vote of two-thirds of all its Members, call a
constitutional convention or, by a majority vote of all its Members, submit the
question of ceiling such a convention to the electorate in an election.
SEC. 2. Any amendment to, or revision of, this Constitution shall be valid when
ratified by a majority of the votes cast in a plebiscite which shall be held not later than
three months after the approval of such amendment or revision.
unequivocally contemplate amendments after the regular Government shall have become fully
operative, referring as they do to the National Assembly which will come into being only at that time.
In the face of this constitutional hiatus, we are confronted with the dilemma whether amendments to
the Constitution may be effected during the aforesaid first stage and, if in the affirmative, by whom
and in what manner such amendments may be proposed and ratified.
Susceptibility to change is one of the hallmarks of an Ideal Constitution. Not being a mere
declaration of the traditions of a nation but more the embodiment of a people's hopes and
aspirations, its strictures are not unalterable. They are, instead, dynamic precepts intended to keep
in stride with and attuned to the living social organism they seek to fashion and govern. If it is
conceded that "the political or philosophical aphorism of one generation is doubted by the next and
entirely discarded by the third," then a Constitution must be able to adjust to the changing needs and
demands of society so that the latter may survive, progress and endure. On these verities, there can
be no debate.
During the first stage of the transition period in which the Government is at present - which is
understandably the most critical - the need for change may be most pressing and imperative, and to
disavow the existence of the right to amend the Constitution would be sheer political heresy. Such
view would deny the people a mechanism for effecting peaceful change, and belie the organic
conception of the Constitution by depriving it of its means of growth. Such a result obviously could
not have been intended by the framers of the fundamental law.
It seems, however, that the happenstance that the first period would come to pass before the
convocation of the interim National Assembly was not anticipated, hence, the omission of an express
mandate to govern the said situation in so far as amendments are concerned. But such omission
through inadvertence should not, because it cannot, negate the sovereign power of the people to
amend the fundamental charter that governs their lives and their future and perhaps even the very
survival of the nation.
Upon the other hand, it is clear from the afore-quoted provisions on the amendatory process that the
intent was, instead, to provide a simpler and more expeditious mode of amending the Constitution
during the transition period. For, while under Article XVI thereof, proposals for amendment may be
made directly by the regular National Assembly by a vote of at least three-fourths of all its members,
under Section 15 of Article XVII, a bare majority vote of all the members of the National Assembly
would suffice for the purpose. The relaxation and the disparity in the vote requirement are revealing.
The can only signify a recognition of the need to facilitate the adoption of amendments during the
second stage of the transition period so that the interim National Assembly will be able, in a manner
of speaking, to iron out the kinks in the new Constitution, remove imperfections therein, and provide
for changed or changing circumstances before the establishment of the regular Government. In this
contest, therefore, it is inutile speculation to assume that the Constitution was intended to render
impotent or ar the effectuation of needful change at an even more critical period - the first stage.
With greater reason, therefore, must the right and power to amend the Constitution during the first
stage of te transition period be upheld, albeit within its express and implied constraints.
Neither can it be successfully argued, in the same context and in the present posture, that the
Constitution may be amended during the said first stage only by convening the interim National
Assembly. That is to say and require that he said stage must first be brought to an end before any
amendment may be proposed and ratified. Settled jurisprudence does not square with such a
proposition. As aptly noted in Aquino vs. Commission on Elections, et al., supra, the framers of the
Constitution set no deadline for the convening of the interim National Assembly because they could
not have foreseen how long the crises which impelled the proclamation and justify the continued
state of martial law would last. Indeed, the framers committed to the sound judgment is not subject
to judicial review, save possibly to determine whether arbitrariness has infected such exercise;
absent such a taint, the matter is solely in the keeping of the President. To thus content that only by
convening the interim National Assembly may the Constitution be amended at this time would
effectively override the judgement vested in the President, even in default of any he has acted
arbitrarily or gravely abuse his discretion. Furthermore, to sustain such a contention would not only
negate the mandate so resoundingly expressed by the people in two national referenda against the
immediate convening of the interim National Assembly, but as well deride their overwhelming
approval of the manner in which the President has exercised the legislative power to issue
proclamations, orders, decrees and instructions having the stature and force of law.
Given the constitutional stalemate or impasse spawned by these supervening developments, the
logical query that compels itself for resolution is: By whom, then, may proposals for the amendment
of the Constitution be made and in what manner may said proposals be ratified by the people?
It is conventional wisdom that, conceptually, the constituent power is not to be confuse with
legislative power in general because the prerogative to propose amendments to the Constitution is
not in any sense embraced within the ambit of ordinary law-making. Hence, there is much to
recommend the proposition that, in default of an express grant thereof, the legislature - traditionally
the delegated repository thereof - may not claim it under a general grant of legislative authority. In
the same vein, neither would it be altogether unassailable to say that because by constitutional
tradition and express allocation the constituent power under the Constitution is locate in the law-
making agency and at this stage of the transition period the law-making authority is firmly recognized
as being lodged in the President, the said constituent power should now logically be in the hands of
te President who may thus exercise it in place of the interim National Assembly. Instead,, as pointed
out in Gonzales vs. Commission on Elections, et al., supra, the power to amend the Constitution or
to propose amendments thereto
... is part of the inherent powers of the people - as the repository of sovereignty in a
republican state, such as ours - t o make, and, hence, to amend their own
Fundamental Law.
As such, it is undoubtedly a power that only the sovereign people, either directly by themselves or
through their chosen delegate, can wield. Since it has been shown that the people, inadvertently or
otherwise, have not delegated that power to inadvertently or otherwise, have not delegated that
power to any instrumentality during the current stage of our hegira from crisis to normalcy, it follows
of necessity that the same remains with them for them to exercise in the manner they see fit and
through the agency they choose. And, even if it were conceded that - as it is reputedly the rule in
some jurisdictions - a delegation of the constituent authority amounts to a complete divestiture from
the people of the power delegated which they may not thereafter unilaterally reclaim from the
delegate, there would be no violence donde to such rule, assuming it to be applicable here,
inasmuch as that power, under the environmental circumstance adverted to, has not been delegated
to anyone in the first place. The constituent power during the first stage of the transition period
belongs to and remains with the people, and accordingly may be exercised by them - how and when
- at their pleasure.
At this juncture, a flashback to the recent and contemporary political ferment in the country proves
revelatory. The people, shocked and revolted by the "obvious immorality" of the unabashed manner
by which the delegates to the Constitutional Convention virtually legislated themselves into office as
ipso facto members of the interim National Assembly by the mere fiat of voting for the transitory
provisions of the Constitution. and the stark reality that the unwieldy political monstrosity that the
interim Assembly portended to be would have proven to be a veritable drain on the meager financial
resources of a nation struggling for survival, have unequivocally put their foot down, as it were, on
the convocation thereof. But this patently salutary decision of the people proved to be double-edged.
It likewise bound the political machinery of the Government in a virtual straight-jacket and consigned
the political evolution of the nation into a state of suspended animation. Faced with the ensuing
dilemma, the people understandably agitated for a solution. Through consultations in the barangays
and sanggunian assemblies, the instrumentalities through which the people's voice is articulated in
the unique system of participatory democracy in the country today, the underpinnings for the
hastening of the return to constitutional normalcy quickly evolved into an overwhelming sentiment to
amend the Constitution in order to replace the discredited interim National Assembly with what the
people believe will be an appropriate agency to eventually take over the law-making power and thus
pave the way for the early lifting of martial rule. In pursuit of this sentiment, and to translate its
constraints into concrete action, the Pambansang Katipunan ng Barangay, the Pambansang
Katipunan ng mga Kabataang Barangay, the Lupong Tagapagpaganap of the Katipunan ng mga
Barangay, the Pambansang Katipunan ng mga Kabataang Barangay the Lupong Tagapagpaganap
of the Katipunan ng mga Sanggunian, and finally the Batasang Bayan, to a man and as one voice,
have come forward with definitive proposals for the amendment of the Constitution, and, choosing
the President the only political arm of the State at this time through which that decision could be
implemented and the end in view attained as their spokesman, proposed the amendments under
challenge in the cases at bar.
In the light of this milieu and its imperatives, one thing is inescapable: the proposals now submitted
to the people for their ratification in the forthcoming referendum-plebiscite are factually not of the
President; they are directly those of the people themselves speaking thru their authorized
instrumentalities. The President merely formalized the said proposals in Presidential Decree No.
1033. It being conceded in all quarters that sovereignty resides in the people and it having been
demonstrated that their constituent power to amend the Constitution has not been delegated by
them to any instrumentality of the Government during the present stage of the transition period of
our political development, the conclusion is ineluctable that their exertion of that residuary power
cannot be vulnerable to any constitutional challenge as being ultra vires. Accordingly, without
venturing to rule on whether or not the President is vested with constituent power as it does not
appear necessary to do so in the premises the proposals here challenged, being acts of the
sovereign people no less, cannot be said to be afflicted with unconstitutionality. A fortiori, the
concomitant authority to call a plebiscite and to appropriate funds therefor is even less vulnerable
not only because the President, in exercising said authority has acted as a mere alter ego of the
people who made the proposals, but likewise because the said authority is legislative in nature
rather than constituent.
III
Third Issue
Little need be said of the claimed insufficiency and impropriety of the submission of the proposed
amendments for ratification from the standpoint of time. The thesis cannot be disputed that a fair
submission presupposes an adequate time lapse to enable the people to be sufficiently enlightened
on the merits or demerits of the amendments presented for their ratification or rejection. However,
circumstances there are which unmistakably demonstrated that the is met. Even if the proposal
appear to have been formalized only upon the promulgation of Presidential Decree No. 1033 on
September 22, 1976, they are actually the crystallization of sentiments that for so long have
preoccupied the minds of the people and their authorized representatives, from the very lowest level
of the political hierarchy. Hence, unlike proposals emanating from a legislative body, the same
cannot but be said to have been mulled over, pondered upon, debated, discussed and sufficiently
understood by the great masses of the nation long before they ripened into formal proposals.
Besides. it is a fact of which judicial notice may well be taken that in the not so distant past when the
1973 Constitution was submitted to the people for ratification, an all-out campaign, in which all the
delegates of the Constitutional Convention reportedly participated, was launched to acquaint the
people with the ramifications and working of the new system of government sought to be
inaugurated thereunder. It may thus well be assumed that the people in general have since
acquired, in the least, a working knowledge of the entirety of the Constitution. The changes now
proposed the most substantial of which being merely the replacement of the interim National
assembly with another legislative arm for the Government during the transition period until the
regular National Assembly shall have been constituted do not appear to be of such complexity as to
require considerable time to be brought home to the full understanding of the people. And, in fact,
the massive and wide-ranging informational and educational campaign to this end has been and still
is in full swing, with all the media the barangay, the civic and sectoral groups, and even the religious
all over the land in acting and often enthusiastic if not frenetic involvement.
Indeed, when the people cast their votes on October 16, a negative vote could very well mean an
understanding of the proposals which they reject; while an affirmative vote could equally be
indicative Of such understanding and/or an abiding credence in the fidelity with which the President
has kept the trust they have confided to him as President and administrator of martial rule
IV
Conclusion
It is thus my considered view that no question viable for this court to pass judgment upon is posed.
Accordingly, I vote for the outright dismissal of the three petitions at bar.
FERNANDO, J., concurring and dissenting:
These three petitions, the latest in a series of cases starting from Planas v. Commission on Elections
continuing with the epochal resolution in Javellana v. Executive Secretary and followed successively
in three crucial decisions, Aquino v. Ponce Enrile Aquino v. Commission on Elections, and Aquino v
Military Commission, manifest to the same degree the delicate and awesome character of the
5
function of judicial review. While previous rulings supply guidance and enlightenment, care is to be
taken to avoid doctrinaire rigidity unmindful of altered circumstances and the urgencies of the times.
It is inappropriate to resolve the complex problems of a critical period without full awareness of the
consequences that flow from whatever decision is reached. Jural norms must be read in the context
of social facts, There is need therefore of adjusting inherited principles to new needs. For law, much
more so constitutional law, is simultaneously a reflection of and a force in the society that it controls.
No quality then can be more desirable in constitutional adjudication than that intellectual and
imaginative insight which goes into the heart of the matter. The judiciary must survey things as they
are in the light of what they must become It must inquire into the specific problem posed not only in
terms of the teaching of the past but also of the emerging political and legal theory, especially so
under a leadership notable for its innovative approach to social problems and the vigor of its
implementation. This, on the one side. It must equally be borne in mind through that this Court must
be conscious of the risk inherent in its being considered as a mere subservient instrument of
government policy however admittedly salutary or desirable. There is still the need to demonstrate
that the conclusion reached by it in cases appropriate for its determination has support in the law
that must be applied. To my mind that was the norm followed, the conclusion reached being that the
three petitions be dismissed. I am in agreement. It is with regret however that based on my reading
of past decisions, both Philippine and American, and more specifically my concurring opinion in
Aquino v. Ponce Enrile, I must dissent from the proposition set forth in the able and scholarly opinion
of Justice Martin that there is concentration of power in the President during a crisis government.
Consequently, I cannot see my way clear to accepting the view that the authority to propose
amendments is not open to question. At the very least, serious doubts could be entertained on the
matter.
1. With due respect then, I have to dissociate myself from my brethren who would rule that
governmental powers in a crisis government, following Rossiter, "are more or less concentrated in
the President." Adherence to my concurring and dissenting opinion in Aquino v. Ponce Enrile leaves
me no choice.
It must be stated at the outset that with the sufficiency of doctrines supplied by our past decisions to
point the way to what I did consider the appropriate response to the basic issue raised in the Aquino
and the other habeas corpus petitions resolved jointly, it was only in the latter portion of my opinion
that reference was made to United States Supreme Court pronouncements on martial law, at the
most persuasive in character and rather few in number "due no doubt to the, absence in the
American Constitution of any provision concerning it." 7 It was understandable then that it was only after the landmark
Ex parte Milligan case, that commentators like Cooley in 1868 and Watson in 1910 paid attention, minimal by that, to the subject." It was next
set forth that in the works on American constitutional law published in this century specially after the leading cases of cases Sterling v.
Constant in and Duncan v. Kahanamoku, "there was a fuller treatment of the question of martial law While it is the formulation of Willoughby
that for me is most acceptable, my opinion did take note that another commentator, Burdick, came out earlier with a similar appraisal.10 Thus:
"So called martial law, except in occupied territory of an enemy is merely the calling in of the aid of military forces by the executive, who is
charged with the enforcement of the law, with or without special authorization by the legislature. Such declaration of martial law does not
suspend the civil law, though it may interfere with the exercise of one's ordinary rights. The right to call out the military forces to maintain
order and enforce the law is simply part of the Police power, It is only justified when it reasonably appears necessary, and only justifies such
acts as reasonably appear necessarily to meet the exigency, including the arrest, or in extreme cases the. killing of those who create the
disorder or oppose the authorities. When the exigency is over the members of the military forces are criminally and civilly habit for acts done
beyond the scope of reasonable necessity. When honestly and reasonably coping with a situation of insurrection or riot a member of the
military forces cannot be made liable for his acts, and persons reasonably arrested under such circumstances will not, during the insurrection
or riot, be free by writ of habeas corpus." 11 When the opinion cited Willoughby's concept of martial law, stress was laid on his being "Partial
to the claims of liberty."12 This is evident in the explicit statement from his work quoted by me: "There is, then, strictly speaking, no such
thing in American law as a declaration of martial law whereby military law is substituted for civil law. So-called declarations of martial law are,
indeed, often made but their legal effect goes no further than to warn citizens that the military powers have been called upon by the
executive to assist him in the maintenance of law and order, and that, while the emergency lasts, they must, upon pain of arrest and
punishment not commit any acts which will in any way render more difficult the restoration of order and the enforcement of law. Some of the
authorities stating substantially this doctrine are quoted in the footnote below Nor did I stop there. The words of Willis were likewise cited:
"Martial law proper, that is, military law in case of insurrection, riots, and invasions, is not a substitute for the civil law, but is rather an aid to
the execution of civil law. Declarations of martial law go no further than to warn citizens that the executive has called upon the military power
to assist him in the maintenance of law and order. While martial law is in force, no new powers are given to the executive and no civil rights
of the individual, other than the writ of habeas corpus, are suspended. The relations between the citizen and his stature unchanged."14
The conclusion reached by me as to the state of American federal law on the question of martial law
was expressed thus: 4'1 It is readily evident that even when Milligan supplied the only authoritative
doctrine, Burdick and Willoughby did not ignore the primacy of civil liberties. Willis wrote after
Sterling. It would indeed be surprising if his opinion were otherwise. After Duncan, such an approach
becomes even more strongly fortified. Schwartz, whose treatise is the latest to be published, has this
summary of what he considers the present state of American law: 'The Milligan and Duncan cases
show plainly that martial law is the public law of necessity. Necessities alone calls it forth, necessity
justifies its exercise; and necessities measures the extended degree to which it may be It is, the high
Court has affirmed, an unbending rule of law that the exercise of military power, where the rights of
the citizen are concerned, may, never be pushed beyond what the exigency requires. If martial law
rule survive the necessities on which alone it rests, for even a single minute it becomes a mere
exercise of lawless violence.' Further: Sterling v. Constantin is of basic importance. Before it, a
number of decisions, including one the highest Court, went or on the theory that the executive had a
free hand in taking martial law measures. Under them, it has been widely supposed that in
proclamation was so far conclusive that any action taken under it was immune from judicial scrutiny.
Sterling v. Constantin definitely discredits these earlier decisions and the doctrine of conclusiveness
derived from them. Under Sterling v. Constantin, where martial law measures impinge upon personal
or property rights-normally beyond the scope of military power, whose intervention is lawful only
because an abnormal Actuation has made it necessary the executive's ipse dixit is not of itself
conclusive of the necessity.'" 15
There was likewise an effort on my part to show what for me is the legal effect of martial law being
expressly provided for in the Constitution rather than being solely predicated on the common law
power based on the urgent need for it because of compelling circumstances incident to the state of
actual clash of arms: "It is not to be lost sight of that the basis for the declaration of martial law in the
Philippines is not mere necessity but an explicit constitutional provision. On the other hand, Milligan,
which furnished the foundation for Sterling and Duncan had its roots in the English common law.
There is pertinence therefore in ascertaining its significance under that system. According to the
noted English author, Dicey: 'Martial law,' in the proper sense of that term, , in which - it means the
suspension of ordinary law and the temporary government of a country or parts of it be military
tribunals, is unknown to the law of England. We have nothing equivalent to what is called in France
the "Declaration of the State of Siege," under which the authority ordinarily vested in the civil power
for the maintenance of order and police passes entirely to the army (autorite militaire). This is an
unmistakable proof of the permanent supremacy of the law under our constitution. There was this
qualification: 'Martial law is sometimes employed as a name for the common law right of the Crown
and its servants to repel force by force in the case of invasion, insurrection, riot, or generally of any
violent resistance to the law. This right, or power, is essential to the very existence of orderly
government, and is most assuredly recognized in the most ample manner by the law of England. It is
a power which has in itself no special connection with the existence of an armed force. The Crown
has the right to put down breaches of the peace. Every subject, whether a civilian or a soldier,
whether what is called a servant of the government,' such for example as a policeman, or a person
in no way connected with the administration, not only has the right, but is, as a matter of legal duty,
bound to assist in putting down breaches of the peace. No doubt policemen or soldiers are the
persons who, as being specially employed in the maintenance of order, are most generally called
upon to suppress a riot, but it is clear that all loyal subjects are bound to take their part in the
suppression of riots."16
Commitment to such an approach results in my inability to subscribe to the belief that martial law in
terms of what is provided both in the 1935 and the present Constitution, affords sufficient justification
for the concentration of powers in the Executive during periods of crisis. The better view, considering
the juristic theory on which our fundamental law rests is that expressed by Justice Black in Duncan
v. Kahanamoku: "Legislatures and courts are not merely cherished American institutions; they are
indispensable to our government. If there has been no observance of such a cardinal concept at
17
the present, it is due to the fact that before the former Congress could meet in regular session anew,
the present Constitution was adopted, abolishing it and providing for an interim National Assembly,
which has not been convened. So I did view the matter.
18
2. Nor did I ignore Rossiter in my Aquino v. Ponce Enrile opinion. Reference was made to the first
chapter on his work on Constitutional Dictatorship where he spoke of martial rule as "a device
designed for use in the crisis of invasion or rebellion. It may be most precisely defined as an
extension of military government to the civilian population, the substitution of the will of a military
commander for the will of the people's elected government." Since, for me at least, the Rossiter
19
characterization of martial law has in it more of the common law connotation, less than duly mindful
of the jural effects of its inclusion in the Constitution itself as a legitimate device for coping with
emergency conditions in times of grave danger, but always subject to attendant limitations in
accordance with the fundamental postulate of a charter's supremacy, I felt justified in concluding:
"Happily for the Philippines, the declaration of martial law lends itself to the interpretation that the
Burdick, Willoughby, Willis, Schwartz formulations paying due regard to the primacy of liberty
possess relevance. lt cannot be said that the martial rule concept of Rossiter, latitudinarian in scope,
has been adopted, even on the assumption that it can be reconciled with our Constitution. What is
undeniable is that President Marcos has repeatedly maintained that Proclamation No. 1081 was
precisely based on the Constitution and that the validity of acts taken there under could be passed
upon by the Supreme court. For me that is quite reassuring, persuaded as I am likewise that the
week- of Rossiter is opposed to the fundamental concept of our polity, which puts a premium on
freedom." 20
3. Candor and accuracy compel the admission that such a conclusion his to be qualified. For in the
opinion of the Court in the aforecited Aquino v. Commission on Elections, penned by Justice
Makasiar, the proposition was expressly affirmed "that as Commander-in-Chief and enforcer or
administrator of martial law, the incumbent President of the Philippines can reclamations, orders and
decrees during the period Martial Law essential to the security and preservation of the Republic, to
the defense of the political and social liberties of the people and to the institution of reforms to
prevent the resurgence of rebellion or insurrection or secession or the threat thereof as well as to
meet the impact of a worldwide recession, inflation or economic crisis which presently threatens all
nations including highly developed countries." To that extent, Rossiter's view mainly relied upon,
21
now possesses Juristic significant in this jurisdiction. What, for me at least, gives caused for concern
is that with the opinion of the Court this intrusion of what I would consider an alien element in the
limited concept of martial law as set forth in the Constitution would be allowed further incursion into
the corpus of the law, with the invocation of the view expressed in the last chapter of his work
approving tile "concentration of governmental power in a democracy [as] a corrective to the crisis
inefficiencies inherent in the doctrine of the separation of powers." It is to the credit of the late
22
Professor Rossiter as an objective scholar that in the very same last chapter, just three pages later,
he touched explicitly on the undesirable aspect of a constitutional dictatorship. Thus: "Constitutional
Dictatorship is a dangerous thing. A declaration of martial law or the passage of an enabling act is a
step which must always be feared and sometimes bitterly resisted, for it is at once an admission of
the incapacity of democratic institutions to defend the order within which they function and a too
conscious employment of powers and methods long ago outlawed as destructive of constitutional
government. Executive legislation, state control of popular liberties, military courts, and arbitrary
executive action were governmental features attacked by the men who fought for freedom not
because they were inefficient or unsuccessful, but because they were dangerous and oppressive.
The reinstitution of any of these features is a perilous matter, a step to be taken only when the
dangers to a free state will be greater if the dictatorial institution is not adopted."
23
4. It is by virtue of such considerations that I find myself unable to share the view of those of my
brethren who would accord recognition to the Rossiter concept of concentration of governmental
power in the Executive during periods of crisis. This is not to lose sight of the undeniable fact that in
this country through the zeal, vigor, and energy lavished on projects conducive to the general
welfare, considerable progress has been achieved under martial rule. A fair summary may be found
in a recent address of the First Lady before the delegates to the 1976 international Monetary Fund-
World Bank Joint Annual Meeting: "The wonder is that so much has been done in so brief a time.
Since September 1972, when President Marcos established the crisis government, peace and order
have been restored in a country once avoided as one of the most unsafe in the world. We have
liberated millions of Filipino farmers from the bondage of tenancy, in the most vigorous and
extensive implementation of agrarian reform." Further, she said: "A dynamic economy has replaced
24
a stagnant order, and its rewards are distributed among the many, not hoarded by a few. Our foreign
policy, once confined by fear and suspicion to a narrow alley of self-imposed isolation, now travels
the broad expressways of friendship and constructive interaction with the whole world, these in a
new spirit of confidence and self-reliance. And finally, forced to work out our own salvation, the
Filipino has re-discovered the well-springs of his strength and resilience As Filipinos, we have found
our true Identity. And having broken our crisis of Identity, we are no longer apologetic and
afraid. "25 The very Idea of a crisis, however, signifies a transitory, certainly not a permanent, state of things. President Marcos
accordingly has not been hesitant in giving utterance to his conviction that full implementation of the modified parliamentary system under
the present Constitution should not be further delayed. The full restoration of civilian rule can thus be expected. That is more in accord with
the imperatives of a constitutional order. It should not go unnoticed either that the President has referred to the present regime as one of
"constitutional authoritarianism." That has a less objectionable ring, authority being more Identified with the Idea of law, as based on right,
the very antithesis of naked force, which to the popular mind is associated with dictatorship, even if referred to as "constitutional."
For me likewise, that equally eminent scholar Corwin, also invoked in the opinion of the Court, while
no doubt a partisan of d strong Presidency, was not averse to constitutional restraints even during
periods of crisis. So I would interpret this excerpt from the fourth edition of his classic treatise on the
Presidency: "A regime of martial law may be compendiously, if not altogether accurately, defined as
one in which the ordinary law, as administered by the ordinary courts, is superseded for the time
being by the will of a military commander. It follows that, when martial law is instituted under national
authority, it rests ultimately on the will of the President of the United States in his capacity as
Commander-in-Chief. It should be added at once, nevertheless, that the subject is one in which the
record of actual practice fails often to support the niceties of theory. Thus, the employment of the
military arm in the enforcement of the civil law does not invariably, or even usually, involve martial
law in the strict sense, for, as was noted in the preceding section, soldiers are often placed simply at
the disposal and direction of the civil authorities as a kind of supplementary police, or posse
comitatus on the other hand be reason of the discretion that the civil authorities themselves are apt
to vest in the military in any emergency requiring its assistance, the line between such an
employment of the military and a regime of martial law is frequently any but a hard and fast one. And
partly because of these ambiguities the conception itself of martial law today bifurcates into two
conceptions, one of which shades off into military government and the other into the situation just
described, in which the civil authority remains theoretically in control although dependent on military
aid. Finally, there is the situation that obtained throughout the North during the Civil War, when the
privilege of the writ of habeas corpus was suspended as to certain classes of suspects, although
other characteristics of martial law were generally absent." 26
It is by virtue of the above considerations that, with due respect to the opinion of my brethren, I
cannot yield assent to the Rossiter view of concentration of governmental powers in the Executive
during martial law.
5 There is necessity then, for me at least, that the specific question raised in all three petitions be
squarely faced. It is to the credit of the opinion of the Court that it did so. The basic issue posed
concerns the boundaries of the power of the President during this period of martial law, more
precisely whether it covers proposing amendments to the Constitution. There is the further
qualification if the stand of respondents be taken into account that the interim National Assembly has
not been convened and is not likely to be called into session in deference to the wishes of the people
as expressed in three previous referenda. It is the ruling of the majority that the answer be in the
affirmative, such authority being well within the area of presidential competence. Again I find myself
unable to join readily in that conviction. It does seem to me that the metes and bounds of the
executive domain, while still recognizable, do appear blurred. This is not to assert that there is
absolutely no basis for such a conclusion, sustained as it is by a liberal construction of the principle
that underlies Aquino v. Commission on Elections as to the validity of the exercise of the legislative
prerogative by the President as long as the interim National Assembly is not For me, the stage of
certitude has not been reached. I cannot simply ignore the vigorous plea of petitioners that there is a
constitutional deficiency consisting in the absence of any constituent power on the part of the
President, the express provision of the Constitution conferring it on the by team National
Assembly. The learned advocacy reflected in the pleadings as well as the oral discourse of Solicitor
27
General Estelito P. Mendoza 21 failed to erase the grave doubts in my mind that the Aquino doctrine
as to the possession of legislative competence by the President during this period of transition with
the interim lawmaking body not called into session be thus expanded. The majority of my brethren
took that step. I am not prepared to go that far. I will explain why.
The way for me, is beset with obstacles. In the first place, such an approach would lose sight of the
distinction between matters legislative and constituent. That is implicit in the treatise on the 1935
Constitution by Justices Malcolm and Laurel In their casebook published the same year, one of the
four decisions on the subject of constitutional amendments is Ellingham v. Dye 31 which
categorically distinguished between constituent and legislative powers. Dean Sinco, a well-known
authority on the subject, was quite explicit. Thus: "If there had been no express provision in the
Constitution granting Congress the power to propose amendments, it would be outside its authority
to assume that power. Congress may not claim it under the general grant of legislative power for
such grant does not carry with it the right 'to erect the state, institute the form of its government,'
which is considered a function inherent in the people. Congressional lawmaking authority is limited
to the power of approving the laws 'of civil conduct relating to the details and particulars of the
government instituted,' the government established by the people."12 If that distinction be preserved,
then for me the aforecited Aquino decision does not reach the heart of the matter. Nor is this all. In
the main opinion of Justice Makasiar as well as that of the then Justice, now Chief Justice, Castro,
support for the ruling that the President cannot be deemed as devoid of legislative power during this
transition stage is supplied by implications from explicit constitutional provisions. That is not the
13
case with the power to propose amendments. It is solely the interim National Assembly that is
mentioned. That is the barrier that for me is well-nigh insurmountable. If I limit myself to entertaining
doubts rather than registering a dissent on this point, it is solely because of the consideration,
possessed of weight and significance, that there may be indeed in this far-from-quiescent and static
period a need for al. amendments. I do not feel confident therefore that a negative vote on my part
would be warranted. What would justify the step taken by the President, even if no complete
acceptance be accorded to the view that he was a mere conduit of the barangays on this matter, is
that as noted in both qualified concurrences by Justices Teehankee and Munoz Palma in Aquino, as
far as the legislative and appropriately powers are concerned, is the necessity that unless such
authority be recognized, there may be paralyzation of governmental activities, While not squarely
applicable, such an approach has, to my mind, a persuasive quality as far as the power to propose
amendments is concerned.
Thus I would confine myself to the expression of serious doubts on the question rather than a
dissent.
6. The constitutional issue posed as thus viewed leaves me free to concur in the result that the
petitions be dismissed. That is to accord respect to the principle that judicial review goes no further
than to checking clear infractions of the fundamental law, except in the field of human rights where a
much greater vigilance is required, That is to make of the Constitution a pathway to rather than a
barrier against a desirable objective. -As shown by my concurring and dissenting opinion in
Tolentino Commission on Elections '34 a pre-martial law decision, the fundamental postulate that
sovereignty resides in the people exerts a compelling force requiring the judiciary to refrain as much
as possible from denying the people the opportunity to make known their wishes on matters of the
utmost import for the life of the nation, Constitutional amendments fall in that category. I am fortified
in that conviction by the teaching of persuasive American decisions There is reinforcement to such a
conclusion from retired Chief Justice Concepcion's concurring and dissenting opinion in Aytona v.
Castillo,17 Which I consider applicable to the present situation. These are his words: "It is well
settled that the granting of writs of prohibition and mandamus is ordinarily within the sound discretion
of the courts, to be exercised on equitable principles, and that said writs should be issued when the
right to the relief is clear * * by As he noted in his ponencia in the later case of Gonzales v.
Hechanova,19 an action for prohibition, while petitioner was sustained in his stand, no injunction was
issued. This was evident in the dispositive portion where judgment was rendered "declaring that
respondent Executive Secretary had and has no power to authorize the importation in question; that
he exceeded his jurisdiction in granting said authority; that said importation is not sanctioned by law
and is contrary to its provisions; and that, for lack of the requisite majority, the injunction prayed for
must be and is, accordingly, denied." With the illumination thus supplied, it does not necessarily
40
follow that even a dissent on my part would necessarily compel that I vote for the relief prayed for.
Certainly this is not to belittle in any way the action taken by petitioners in filing these suits. That, for
me, is commendable. It attests to their belief in the rule of law. Even if their contention as to lack of
presidential power be accepted in their entirety, however, there is still discretion that may be
exercised on the matter, prohibition being an equitable remedy. There are, for me, potent
considerations that argue against acceding to the plea. With the prospect of the interim National
Assembly being convened being dim, if not non- existent, if only because of the results in three
previous referenda, there would be no constitutional agency other than the Executive who could
propose amendments, which, as noted. may urgently press for adoption. Of even greater weight, to
my mind, is the pronouncement by the President that the plebiscite is intended not only to solve a
constitutional anomaly with the country devoid of a legislative body but also to provide. the
machinery be which the termination of martial law could be hastened. That is a consummation
devoutly to be wished. That does militate strongly against the stand of petitioners. The obstruction
they would pose may be fraught with pernicious consequences. It may not be amiss to refer anew to
what I deem the cardinal character of the jural postulate explicitly affirmed in both the 1935 and the
present Constitutions that sovereignty resides in the people. So I made clear in Tolentino v.
Commission on Elections and thereafter in my dissent in Javellana v. The Executive Secretary" and
my concurrence in Aquino v. Commission on Elections. 42 The destiny of the country lies in their
keeping. The role of leadership is not to be minimized. It is crucial it is of the essence. Nonetheless,
it is their will, if given expression in a manner sanctioned by law and with due care that there be no
mistake in its appraisal, that should be controlling. There is all the more reason then to encourage
their participation in the power process. That is to make the regime truly democratic. Constitutional
orthodoxy requires, however, that the fundamental law be followed. So I would interpret
Laski, Corwin, Lerner, , Bryn-Jones, and McIver.47
43 44 45 46
7. There is reassurance in the thought that this Court has affirmed its commitment to the principle
that the amending process gives rise to a justiciable rather than a political question. So, it has been
since the leading case of Gonzales v. Commission on Election S. It has since then been followed in
48
Tolentino v. Commission on Elections Planas v. Commission on Elections," and lastly, in Javellana

49
v. The Executive Secretary This Court did not heed the vigorous plea of the Solicitor General to
resurrect the political question doctrine announced in Mabanag v. Lopez Vito. This is not to deny
52
that the federal rule in the United States as set forth in the leading case of Coleman v.
Miller , a 1939 decision, and relatively recent State court decisions, supply ammunition to such a
53
contention., That may be the case in the United States, but certainly not in this jurisdiction.
51
Philippine constitutional tradition is to the contrary. It can trace its origin to these words in the
valedictory address before the 1934-35 Constitutional Convention by the illustrious Claro M. Recto:
"It is one of the paradoxes a democracy that the people of times place more confidence in
instrumentalities of the State other than those directly chosen by them for the exercise of their
sovereignty It can be said with truth, therefore, that there has invariably been a judicial predisposition
to activism rather than self-restraint. The thinking all these years has been that it goes to the heart of
constitutionalism. It may be said that this Court has shunned the role of a mere interpreter; it did
exercise at times creative power. It has to that extent participated in the molding of policy, It has
always recognized that in the large and undefined field of constitutional law, adjudication partakes of
the quality of statecraft. The assumption has been that just because it cannot by itself guarantee the
formation, much less the perpetuation of democratic values or, realistically, it cannot prevail against
the pressure of political forces if they are bent in other directions. it does not follow that it should not
contribute its thinking to the extent that it can. It has been asked, it will continue to be asked, to
decide momentous questions at each critical stage of this nation's life.
There must be, however, this caveat. Judicial activism gives rise to difficulties in an era of
transformation and change. A society in flux calls for dynamism in "he law, which must be
responsive to the social forces at work. It cannot remain static. It must be sensitive to life. This Court
then must avoid the rigidity of legal Ideas. It must resist the temptation of allowing in the wasteland
of meaningless abstractions. It must face stubborn reality. It has to have a feel for the complexities of
the times. This is not to discount the risk that it may be swept too far and too fast in the surge of
novel concepts. The past too is entitled to a hearing; it cannot just be summarily ignored. History still
has its uses. It is not for this Court to renounce the virtue of systematic jural consistency. It cannot
simply yield to the sovereign sway of the accomplished fact. It must be deaf to the dissonant
dialectic of what appears to be a splintered society. It should strive to be a factor for unity under a
rule of law. There must be, on its part, awareness of the truth that a new juridical age born before its
appointed time may be the cause of unprecedented travail that may not end at birth. It is by virtue of
such considerations that I did strive for a confluence of principle and practicality. I must confess that
I did approach the matter with some misgivings and certainly without any illusion of omniscience. I
am comforted by the thought that immortality does not inhere in judicial opinions. 8. 1 am thus led by
my studies on the subject of constitutional law and, much more so, by previous judicial opinions to
concur in the dismissal of the petitions. If I gave expression to byes not currently fashionable, it is
solely due to deeply-ingrained beliefs. Certainly, I am the first to recognize the worth of' the social
and economic reforms so needed by the troubled present that have been introduced and
implemented. There is no thought then of minimizing, much less of refusing to concede, the
considerable progress that has been made and the benefits that have been achieved under this
Administration. Again, to reiterate one of my cherished convictions, I certainly approve of the
adherence to the fundamental principle of popular sovereignty which, to be meaningful however,
requires both freedom in its manifestation and accuracy in ascertaining what it wills. Then, too, it is
fitting and proper that a distinction was made between two aspects of the coming poll, the
referendum and the plebiscite. It is only the latter that is impressed with authoritative force. So the
Constitution requires. Lastly, there should be, as I did mention in my concurrence in Aquino v.
Commission on Elections,56 full respect for free speech and press, free assembly and free
association. There should be no thought of branding the opposition as the enemy and the
expression of its views as anathema, Dissent, it is fortunate to note, has been encouraged. It has not
been Identified with disloyalty. That ought to be the case, and not solely due to presidential decrees.
Constructive criticism is to be welcomed not so much because of the right to be heard but because
there may be something worth hearing. That is to ensure a true ferment of Ideas, an interplay of
knowledgeable minds. There are though well- defined limits, One may not advocate disorder in the
name of protest, much less preach rebellion under the cloak of dissent.. What I mean to stress is
that except on a showing of clear and present danger, there must be respect for the traditional
liberties that make a society truly free.
TEEHANKEE, J., dissenting:
1. On the merits: I dissent from the majority's dismissal of the petitions for lack of merit and vote to
grant the petitions for the following reasons and considerations: . It is undisputed that neither the
1
1935 Constitution nor the 1973 Constitution grants to the incumbent President the constituent power
to propose and approve amendments to the Constitution to be submitted to the people for ratification
in a plebiscite. The 1935 Constitution expressly vests the constituent power in Congress, be a three-
fourths vote of all its members, to propose amendments or call a constitutional convention for the
purpose The 1973 Constitution expressly vests the constituent power in the regular National
Assembly to propose amendments (by a three-fourths vote of all its members) or "call a
constitutional convention" (by a two-thirds vote of all its members) or "submit the question of calling
such convention to the electorate in an election" (by a majority vote of all its members ) .2
The transitory provisions of the 1973 Constitution expressing vest the constituent power during the
period of transition in the interim National Assembly "upon special call be the Prime Minister (the
incumbent President 3)... by a majority ore of all its members (to) propose amendments."
Since the Constitution provides for the organization of the essential departments of government,
defines and delimits the powers of each and prescribes the manner of the exercise of such powers,
and the constituent power has not been granted to but has been withheld from the President or
Prime Minister, it follows that the President's questioned decrease proposing and submitting
constitutional amendments directly to the people (without the intervention of the interim National
Assembly in whom the power is expressly vested) are devoid of constitutional and legal basis.
2. The doctrine in the leading case of Tolentino vs. Comelec is controlling in the case at bar In
therein declaring null and void the acts of the 1971 Constitutional Convention and of the Comelec in
calling a plebiscite with the general elections scheduled for November 8, 1971 for the purpose of
submitting for the people's ratification an advance amendment reducing the voting age from 21 years
to 18 years, and issuing writs of prohibition and injunction against the holding of the plebiscite, this
Court speaking through Mr. Justice Barredo ruled that --The Constitutional provisions on
amendments "dealing with the procedure or manner of amending the fundamental law are binding
upon the Convention and the other departments of the government, (land) are no less binding upon
the people
As long as an amendment is formulated and submitted under the aegis of the

present Charter, any proposal for such amendment which is not in conformity with
the letter, spirit and intent of the Charter for effecting amendments, cannot receive
the sanction of this Court ;
8
The real issue here cannot be whether or not the amending process delineated by the present
Constitution may be disregarded in favor of allowing the sovereign people to express their decision
on the proposed amendments, if only because it is evident that the very Idea of departing from the
fundamental law is anachronistic in the realm of constitutionalism and repugnant to the essence of
the rule of law,"; 9 and
-Accordingly barred the plebiscite as improper and premature, since "the provisional nature of the
proposed amendments and the manner of its submission to the people for ratification or rejection"
did not "conform with the mandate of the people themselves in such regard, as expressed in the
Constitution itself', 10 i.e. the mandatory requirements of the amending process as set forth in the
Article on Amendments.
3. Applying the above rulings of Tolentino to the case at bar, mutatis, mutandis, it is clear that where
the proposed amendments are violative of the Constitutional mandate on the amending process not
merely for being a "partial amendment" of a "temporary or provisional character" (as in Tolentino) but
more so for not being proposed and approved by the department vested by the Constitution with the
constituent power to do so, and hence transgressing the substantive provision that it is only the
interim National Assembly, upon special call of the interim Prime Minister, bu a majority vote of all its
members that may propose the amendments, the Court must declare the amendments proposals
null and void.
4. This is so because the Constitution is a "superior paramount law, unchangeable by ordinary

means" 11 but only by the particular mode and manner prescribed therein by the people. As
stressed by Cooley, "by the Constitution which they establish, (the people) not only tie up the hands
of their official agencies but their own hands as well; and neither the officers of the State, nor the
whole people as an aggregate body, are at liberty to take action in opposition to this fundamental
law."
12
The vesting of the constituent power to propose amendments in the legislative body (the regular
National Assembly) or the interim National Assembly during the transition period) or in a
constitutional convention called for the purpose is in accordance with universal practice. "From the
very necessity of the case" Cooley points out "amendments to an existing constitution, or entire
revisions of it, must be prepared and matured by some body of representatives chosen for the
purpose. It is obviously impossible for the whole people to meet, prepare, and discuss the proposed
alterations, and there seems to be no feasible mode by which an expression of their will can be
obtained, except by asking it upon the single point of assent or disapproval." This body of
representatives vested with the constituent - power "submits the result of their deliberations" and
"puts in proper form the questions of amendment upon which the people are to pass"-for ratification
or rejection.
13
5. The Court in Tolentino thus rejected the argument "that the end sought to be achieved is to be
desired" and in denying reconsideration in paraphrase of the late Claro M. Recto declared that "let
those who would put aside, invoking grounds at best controversial, any mandate of the fundamental
purportedly in order to attain some laudable objective bear in mind that someday somehow others
with purportedly more laudable objectives may take advantage of the precedent and continue the
destruction of the Constitution, making those who laid down the precedent of justifying deviations
from the requirements of the Constitution the victims of their own folly."
This same apprehension was echoed by now retired Justice Calixto O. Zaldivar in his dissenting
opinion in the Ratification cases that "we will be opening the gates for a similar disregard to the
14
Constitution in the future. What I mean is that if this Court now declares that a new Constitution is
now in force because the members of the citizens assemblies had approved said new Constitution,
although that approval was not in accordance with the procedure and the requirements prescribed in
the 1935 Constitution, it can happen again in some future time that some amendments to the
Constitution may be adopted, even in a manner contrary to the existing Constitution and the law, and
then said proposed amendments is submitted to the people in any manner and what will matter is
that a basis is claimed that there was approval by the people. There will not be stability in our
constitutional system, and necessarily no stability in our government."
6. It is not legally tenable for the majority, without overruling the controlling precedent of Tolentino
(and without mustering the required majority vote to so overrule) to accept the proposed;
amendments as valid notwithstanding their being "not in conformity with the letter, spirit and intent of
the provision of the Charter for effecting amendments" on the reasoning that "If the President has
been legitimately discharging the legislative functions of the interim National Assembly, there is no
reason why he cannot validly discharge the functions."15
In the earlier leading case of Gonzales vs. Comelec , this Court speaking through now retired Chief
16
Justice Roberto Concepcion, pointer out that "Indeed, the power to Congress" or to the National
17
Assembly.18 Where it not for the express grant in the Transitory Provisions of the constituent power to the interim National Assembly,
the interim National Assembly could not claim the power under the general grant of legislative power during the transition period.
The majority's ruling in the Referendum cases that the Transitory Provision in section 3(2)
19
recognized the existence of the authority to legislate in favor of the incumbent President during the
period of martial law manifestly cannot be stretched to encompass the constituent power as
expressly vested in the interim National Assembly in derogation of the allotment of powers defined in
the Constitution.
Paraphrasing Cooley on the non-delegation of legislative power as one of the settled maxims of
constitutional law, the contituent power has been lodged by the sovereign power of the people with
20
the interim National Assembly during the transition period and there it must remain as the sole
constitutional agency until the Constitution itself is changed.
As was aptly stated by Justice Jose P. Laurel in the 1936 landmak case of Angara vs. Electoral
Commissioner , "(T)he Constitution sets forth in no uncertain language and restrictions and
21
limitations upon governmental powers and agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution had not provided for a mechanism by which
to direct the course of government along constitutional channels, for then the distribution of powers
sentiment, and the principles of good government mere political apothegms. Certainly, the limitations
and restrictions embodied in our Constitution are real as they should be in any living Constitution".
7. Neither is the justification of "constitutional impasses" tenable. The sentiment of the people
against the convening of the interim National Assembly and to have no elections for "at least seven
(7) years" Concededly could not ament the Constitution insofar as the interim National Assembly is
concerned (since it admittendly came into existence "immediately" upon the proclamation of
ratification of the 1973 Constitution), much less remove the constituent power from said interim
National Assembly.
As stressed in the writer's separate opinion in the Referendum cases , "(W)hile it has been 22
advanced that the decision to defer the initial convocation of the interim National Assembly was
supported by the results of the referendum in January, 1973 when the people voted against the
convening of the interim National Assembly for at least seven years, such sentiment cannot be given
any legal force and effect in the light of the State's admission at the hearing that such referendums
are merely consultative and cannot amend the Constitution or Provisions which call for the
'immediate existence' and 'initial convening of the interim National Assembly to 'give priority to
measures for the orderly transition from the presidential to the parliamentary system' and the other
urgent measures enumerated in section 5 thereof".
While the people reportedly expressed their mandate against the convening of the interim National
Assembly to dischange its legislative tasks during the period of transition under martial law, they
certainly had no opportunity and did not express themselves against convening the interim National
Assembly to discharge the constituent power to propose amendments likewise vested in it by the
people's mandate in the Constitution.
In point of fact, when the holding of the October 16, 1976 referendum was first announced, the
newspapers reported that among the seven questions proposed by the sanggunian and barangay
national executive committies for the referendum was the convening of the interim National
Assembly. 23
It was further reported that the proposals which were termed tentative "will be discussed and studied
by (the President), the members of the cabinet, and the security council" and that the barangays felt,
notwithstanding the previous referenda on the convening of the interim National Assembly that "it is
time to again ask the people's opinion of this matter "24
8. If proposals for constitutional amendments are now deemed necessary to be discussed and
adopted for submittal to the people, strict adherence with the mandatory requirements of the
amending process as provided in the Constitution must be complied with. This means, under the
teaching of Tolentino that the proposed amendments must validly come from the constitutional
agency vested with the constituent power to do so, namely, the interim National Assembly, and not
from the executive power as vested in the Prime Minister (the incumbent President) with the
assistance of the Cabinet from whom such power has been withheld.
25
It will not do to contend that these proposals represent the voice of the people for as was aptly
stated by Cooley "Me voice of the people, acting in their sovereign capacity, can be of legal force
only when expressed at the times and under the conditions which they themselves have prescribed
and pointed out by the Constitution. ... ."26
The same argument was put forward and rejected by this Court in Tolentino which rejected the
contention that the "Convention being a legislative body of the highest order (and directly elected by
the people to speak their voice) is sovereign, in as such, its acts impugned by petitioner are beyond
the control of Congress and the Courts" and ruled that the constitutional article on the amending
process" is nothing more than a part of the Constitution thus ordained by the people. Hence, in
continuing said section, We must read it as if the people said, "The Constitution may be amended,
but it is our will that the amendment must be proposed and submitted to Us for ratification only in the
manner herein provided'". 27
This Court therein stressed that "This must be so, because it is plain to Us that the framers of the
Constitution took care that the process of amending the same should not be undertaken with the
same ease and facility in changing an ordinary legislation. Constitution making is the most valued
power, second to none, of the people in a constitutional democracy such as the one our founding
fathers have chosen for this nation, and which we of the succeeding generations generally cherish.
And because the Constitution affects the lives, fortunes, future and every other conceivable aspect
of the lives of all the people within the country and those subject to its sovereignity, ever constitution
worthy of the people for which it is intended must not be prepared in haste without adequate
deliberation and study. It is obvious that correspondingly, any amendment of the Constitution is of no
less importance than the whole Constitution itself, and perforce must be conceived and prepared
with as much care and deliberation;" and that "written constitutions are supposed to be designed so
as to last for some time, if not for ages, or for, at least, as long as they can be adopted to the needs
and exigencies of the people, hence, they must be insulated against precipitate and hasty actions
motivated by more or less passing political moods or fancies. Thus, as a rule, the original
constitutions carry with them limitations and conditions, more or less stringent, made so by the
people themselves, in regard to the process of their amendment." 28
9. The convening of the interim National Assembly to exercise the constituent power to proposed
amendments is the only way to fulfill the express mandate of the Constitution.
As Mr. Justice Fernando emphasized for this Court in Mutuc vs. Comelec in the setting as in of a
29
Comelec resolution banning the use of political taped jingles by candidates for Constitutional
Convention delegates int he special 1970 elections, "the concept of the Constitution as the
fundamental law, setting forth the criterion for the validity of any public act whether proceeding from
the highest official or the lowest functionary, is a postulate of our system of government. That is to
amnifst fealty to the rule of law, with priority accorded to that which occupies the topmost rung in the
legal heirarchy. The three departments of government in the discharge of the functions with which it
is entrusted have no choice but to yield obedience to its commands. Whatever limits it imposes must
be observed. Congress in the enactment of statutes must ever be on guart lest the restrictions on its
authority, whether substantive or formal, be transcended. The Presidency in the execution of the
laws cannot ignore of disregard what it ordains. In its task of applying the law to the facts as found in
deciding cases, the judiciary is called upon the maintain inviolate what is decreed by the
fundamental law."
This is but to give meaning to the plan and clear mandate of section 15 of the Transitory Provisions
(which allows of no other interpretation) that during the stage of transition the interim National
Assembly alone exercises the constituent power to propose amendments, upon special call therefor.
This is reinforced by the fact that the cited section does not grant to the regular National Assembly of
calling a constitutional convention, thus expressing the will of the Convention (and presumably of the
people upon ratification) that if ever the need to propose amendments arose during the limited
period of transition, the interim National Assembly alone would discharge the task and no
constitutional convention could be call for the purpose.
As to the alleged costs involved in convening the interim National Assembly to propose
amendments, among them its own abolition, (P24 million annually in salaries alone for its 400
members at P600,000.00 per annum per member, assuming that its deliberations could last for one
year), suffice it to recall this Court's pronouncement in Tolentino (in reflecting a similar argument on
the costs of holding a plebiscite separately from the general elections for elective officials) that "it is a
matter of public knowledge that bigger amounts have been spent or thrown to waste for many lesser
objectives. ... Surely, the amount of seventeen million pesos or even more is not too much a price to
pay for fealty and loyalty to the Constitution ... " and that "while the financial costs of a separate
30
plebiscite may be high, it can never be as much as the dangers involved in disregarding clear
mandate of the Constitution, no matter how laudable the objective" and "no consideration of financial
costs shall deter Us from adherence to the requirements of the Constitution".11
10. The imposition of martial law (and "the problems of rebellion, subversion, secession, recession,
inflation and economic crisis a crisis greater than war") cited by the majority opinion as justifying
32
the concentration of powers in the President, and the recognition now of his exercising the
constituent power to propose amendments to the Fundamental Law "as agent for and in behalf of
the people" has no constitutional basis.
33
In the post-war Emergency Powers *, former Chief Justice Ricardo Paras reaffirmed for the Court
33
the principle that emergency in itself cannot and should not create power. In our democracy the
hope and survival of the nation lie in the wisdom and unselfish patriotism of all officials and in their
faithful 'Adherence to the Constitution".
The martial law clause of the 1973 Constitution found in Article IX, section , as stressed by the
12
writer in his separate opinion in the Referendum Cases,14 "is a verbatim reproduction of Article VII,
section 10 (2) of the 1935 Constitution and provides for the imposition of martial law only 'in case of
invasion, resurrection or rebellion, or imminent danger thereof, when the public safety requires it and
hence the use of the legislative power or more accurately 'military power' under martial rule is limited
to such necessary measures as will safeguard the Republic and suppress the rebellion (or
invasion)". 35
11. Article XVII, section 3 (2) of the 1973 Constitution which has been held by the majority in the
Referendum Cases to be the recognition or warrant for the exercise of legislative power by the
President during the period of martial law is but a transitory provision. Together with the martial law
clause, they constitute but two provisions which are not to be considered in isolation from the
Constitution but as mere integral parts thereof which must be harmonized consistently with the entire
Constitution.
As Cooley restated the rule: "effect is to be given, if possible, to the whole instrument, and to every
section and clause. If different portions seem to conflict, the courts must harmonize them, if
practicable, and must lean in favor of a construction which will render every word operative, rather
than one which may make some words Idle and nugatory.
This rule is applicable with special force to written constitutions, in which the people
will be presumed to have expressed themselves in careful and measured terms,
corresponding with the immense importance of the powers delegated, leaving as little
as possible to implication. It is scarcelly conceivable that a case can arise where a
court would bye justified in declaring any portion of a written constitution nugatory
because of ambiguity. One part may qualify another so as to restrict its operation, or
apply it otherwise than the natural construction would require if it stood by itself; but
one part is not to be allowed to defeat another, if by any reasonable construction the
two can be made to stand together. 36
The transcendental constituent power to propose and approve amendments to the Constitution as
well as set up the machinery and prescribe the procedure for the ratification of his proposals has
been withheld from the President (Prime Minister) as sole repository of the Executive Power,
presumably in view of the immense powers already vested in him by the Constitution but just as
importantly, because by the very nature of the constituent power, such amendments proposals have
to be prepared, deliberated and matured by a deliberative assembly of representatives such as the
interim National Assembly and hence may not be antithetically entrusted to one man.
Former Chief Justice Roberto Concepcion had observed before the elevation of the l971
Constitutional Convention that the records of past plebiscites show that the constitutional agency
vested with the exercise of the constituent power (Congress or the Constitutional Convention) really
determined the amendments to the Constitution since the proposals were invariably ratified by the
people thus: "although the people have the reserved power to ratify or reject the action taken by
37
the Convention, such power is not, in view of the circumstances attending its exercise, as effective
as one might otherwise think: that, despite the requisite ratification by the people, the actual contents
of our fundamental law will really be determined by the Convention; that, accordingly the people
should exercise the greatest possible degree of circumspection in the election of delegates
thereto ... "
38
12. Martial law concededly does not abrogate the Constitution nor obliterate its constitutional
boundaries and allocation of powers among the Executive, Legislative and Judicial Departments. 39
It has thus been aptly observed that "Martial law is an emergency regime, authorized by and subject
to the Constitution. Its basic premise is to preserve and to maintain the Republic against the dangers
that threaten it. Such premise imposes constraints and limitations. For the martial law regime fulfills
the constitutional purpose only if, by reason of martial law measures, the Republic is preserved. If by
reason of such measures the Republic is so transformed that it is changed in its nature and
becomes a State other than republican, then martial law is a failure; worse, martial law would have
become the enemy of the Republic rather than its defender and preserver." 40
II. On the question of the Court's jurisdiction to pass upon the constitutionality of the questioned
presidential decrees: let it be underscored that the Court has long set at rest the question.
The trail was blazed for the Court since the benchmark case of Angara vs. Electoral Commission
when Justice Jose P. Laurel echoed U.S. Chief Justice Marshall's "climactic phrase" that "we must
never forget that it is a Constitution we are expounding" and declared the Court's "solemn and
sacred" constitutional obligation of judicial review and laid down the doctrine that the Philippine
Constitution as "a definition of the powers of government" placed upon the judiciary the great burden
of "determining the nature, scope and extent of such powers" and stressed that "when the judiciary
mediates to allocate constitutional boundaries, it does not assert any superiority over the other
departments . . . but only asserts the solemn and sacred obliteration entrusted to it by the
Constitution to determine conflicting claims of authority under the Constitution and to establish for
the parties in an actual controversy the rights which the instrument secures and guarantees to
them".
At the same time, the Court likewise adhered to the constitutional tenet that political questions, i.e.
questions which are intended by the Constitutional and relevant laws to be conclusively determined
by the "political", i.e. branches of government (namely, the Executive and the Legislative) are
outside the Court's jurisdiction.
41
Thus, in Gonzales, (by a unanimous Court) and in Tolentino (by the required constitutional
42 43
majority), the Court has since consistently ruled that when proposing and approving amendments to
the Constitution, the members of Congress. acting as a constituent assembly or the members of the
Constitutional Convention elected directly for the purpose by not have the final say on whether or not
their acts are within or beyond constitutional limits. Otherwise, they could brush aside and set the
same at naught, contrary to the basic tenet that outs is it government of lawsom not of men, and to
the rigid nature of our Constitution. Such rigidity is stressed by the fact that, the Constitution
expressly confers upon the Supreme Court, the power to declare a treaty unconstitutional, despite
the eminently political character of treaty-making power". 44
As amplified by former Chief Justice Concepcion in Javellana vs Executive Secretary (by a majority
45
vote), "when the grant of power is qualified, conditional or subject to limitations. the issue on whether
or not the prescribed qualifications or conditions have been met, or the limitations by expected, is
justiciable or non-political, the crux of the problem being one of legality or validity of the contested
act, not its wisdom Otherwise, said qualifications, conditions and limitations-particularly those
prescribed or imposed by the Constitution would be set at naught".
The fact that the proposed amendments are to be submitted to the people for ratification by no
means makes the question political and non- justiciable since as stressed even in Javellana the
issue of validity of the President's proclamation of ratification of the Constitution presented a
justiciable and non-political question
Stated otherwise, the question of whether the Legislative acting as a constituent assembly or the
Constitutional Convention called fol- the purpose, in proposing amendments to the people for
ratification followed the constitutional procedure and on the amending process is perforce a
justiciable question and does not raise a political question of police or wisdom of the proposed
amendments, which if Submitted, are reserved for the people's decision.
The substantive question presented in the case at bar of whether the President may legally exercise
the constituent power vested in the interim National Assembly (which has not been granted to his
office) and propose constitutional amendments is preeminently a justiciable issue.
Justice Laurel in Angara had duly enjoined that "in times of social disquietude or political excitement,
the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In
cases of conflict, the judicial department is the only constitutional organ which can be called upon to
determine the proper allocation of powers between the several departments and among the integral
or constituent units thereof".
To follow the easy way out by disclaiming jurisdiction over the issue as a political question would be
judicial abdication.
III. On the question of whether there is a sufficient and proper submittal of the proposed
amendments to the people: Prescinding from the writer's view of the nullity of the questioned decree
of lack of authority on the President's part to excercise the constituent power, I hold that the doctrine
of fair and proper submission first enunciated by a simple majority of by Justices in Gonzales and
subsequently officially adopted by the required constitutional two-thirds majority of the Court in is
controlling in the case at bar.
1. There cannot be said to be fair and proper submission of the proposed amendments. As ruled by
this Court in Tolentino where "the proposed amendment in question is expressly saddled with
reservations which naturally impair, in great measures, its very essence as a proposed constitutional
amendment" and where "the way the proposal is worded, read together with the reservations tacked
to it by the Convention thru Section 3 of the questioned resolution, it is too much of a speculation to
assume what exactly the amendment would really amount lo in the end. All in all, as already pointed
out in our discussion of movants' first ground, if this kind of amendment is allowed, the Philippines
will appear before the world to be in the absurd position of being the only country with a constitution
containing a provision so ephemeral no one knows until when it will bet actually in force", there can
be no proper submission.
In Tolentino a solitary amendment reducing the voting age to 18 years was struck down by this Court
which ruled that "in order that a plebiscite for the ratification of an amendment to the Constitution
may be validly held, it must provide the voter not only sufficient time but ample basis for an intelligent
appraisal of the nature of the amendment per se as well as its relation to the other parts of the
Constitution with which it has to form a harmonious whole," and that there was no proper
Submission wherein the people are in the dark as to frame of reference they can base their
judgment on
2. The now Chief Justice and Mr. Justice Makasiar with two other members 46 graphically pointed
out in their joint separate opinion that the solitary question "would seem to be uncomplicated and
innocuous. But it is one of life's verities that things which appear to be simple may turn out not to be
so simple after all".
47
They further expressed "essential agreement" with Mr. Justice Conrado V. Sanchez' separate
opinion in Gonzales "on the minimum requirements that must be met in order that there can be a
proper submission to the people of a proposed constitutional amendment" which reads thus:
... we take the view that the words 'submitted to the people for their ratification', if
construed in the light of the nature of the Constitution a fundamental charter that is
legislation direct from the people, an expression of their sovereign will - is that it can
only be amended by the people expressing themselves according to the procedure
ordained by the Constitution. Therefore, amendments must be fairly laid before the
people for their blessing or spurning. The people are not to be mere rubber stamps.
They are not to vote blindly. They must be afforded ample opportunity to mull over
the original provisions, compare them with the proposed amendments, and try to
reach a conclusion as the dictates of their conscience suggest, free from the incubus
of extraneous or possibly insidious influences. We believe the word submitted' can
only mean that the government, within its maximum capabilities, should strain every
effort to inform every citizen of the provisions to be amended, and the proposed
amendments and the meaning, nature and effects thereof. By this, we are not to be
understood as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be
reached, then there is no submission within the meaning of the word as intended by
the framers of the Constitution. What the Constitution in effect directs is that the
government, in submitting an amendment for ratification, should put every
instrumentality or agency within its structural framework to enlighten the people,
educate them with respect to their act of ratification or rejection. For, as we have
earlier stated, one thing is submission and another is ratification. There must be fair
submission, intelligent. consent or rejection. If with all these safeguards the people
still approve the amendment no matter how prejudicial it is to them, then so be it. For
the people decree their own fate. 48
Justice Sanchez therein ended the passage with an apt citation that " ... " The great men who
builded the structure of our state in this respect had the mental vision of a good Constitution voiced
by Judge Cooley, who has said 'A good Constitution should be beyond the reach of temporary
excitement and. popular caprice or passion. It is needed for stability and steadiness; it must yield to
the thought of the people; not to the whim of the people, or the thought evolved in excitement or hot
blood, but the sober second thought, which alone, if the government is to be safe, can be allowed
efficiency. xxx xxx xxx Changes in government are to be feared unless the benefit is certain. As
Montaign says: All great mutations shake and disorder state. Good does not necessarily succeed
evil ;another evil may succeed and a worse'." 49
Justice Sanchez thus stated the rule that has been adopted by the Court in Tolentino that there is no
proper submission "if the people are not sufficiently affirmed of the amendments to be voted upon, to
conscientiously deliberate thereon, to express their will in a genuine manner. ... .."
50
3. From the complex and complicated proposed amendments set forth in the challenged decree and
the plethora of confused and confusing clarifications reported in the daily newspapers, it is manifest
that there is no proper submission of the proposed amendments. Nine (9) proposed constitutional
amendments were officially proposed and made known as per Presidential Decree No. 1033 dated,
September 22, 1976 for submittal at the "referendum-plebiscite" called for this coming Saturday,
October 16, 1976 wherein the 15-year and under 18-year- olds are enjoined to vote notwithstanding
their lack of qualification under Article VI of the Constitution. Former Senator Arturo Tolentino, an
acknowledged parliamentarian of the highest order, was reported by the newspapers last October 3
to have observed that "there is no urgency in approving the proposed amendments to the
Constitution and suggested that the question regarding charter changes be modified instead of
asking the people to vote on hurriedly prepared amendments". He further pointed out that "apart
from lacking the parliamentary style in the body of the Constitution, they do not indicate what
particular provisions are being repealed or amended". 52
As of this writing, October 11, 1976, the paper today reported his seven-page analysis questioning
among others the proposed granting of dual legislative powers to both the President and the
Batasang Pambansa and remarking that "This dual legislative authority can give rise to confusion
and serious constitutional questions".53
Aside from the inadequacy of the limited time given for the people's consideration of the proposed
amendments, there can be no proper submission because the proposed amendments are not in
proper form and violate the cardinal rule of amendments of written constitutions that the specific
provisions of the Constitution being repealed or amended as well as how the specific provisions as
amended would read, should be clearly stated in careful and measured terms. There can be no
proper submission because the vagueness and ambiguity of the proposals do not sufficiently inform
the people of the amendments for, conscientious deliberation and intelligent consent or rejection.
4. While the press and the Solicitor General at the hearing have stated that the principal thrust of the
proposals is to substitute the interim National Assembly with an interim Batasang Pambansa, a
serious study thereof in detail would lead to the conclusion that the whole context of the 1973
Constitution proper would be affected and grave amendments and modifications thereof -would
apparently be made, among others, as follows:
Under Amendment No. 1, the qualification age of members of the interim Batasang Pambansa is
reduced to 18 years;
Under Amendment No. 2, the treaty-concurring power of the Legislature is withheld from the interim
Batasang Pambansa;
Under Amendment No 3, not withstanding the convening of the interim Batasang Pambansa within
30 days from the election and selection of the members (for which there is no fixed date) the
incumbent President apparently becomes a regular President and Prime Minister (not ad interim);
Under Amendment No. 4, the disqualifications imposed on members of the Cabinet in the
Constitution such as the prohibition against the holding of more than one office in the government
including government-owned or -controlled corporations would appear to be eliminated, if not
prescribed by the President;
Under Amendment No. 5, the President shall continue to exercise legislative powers until martial law
is lifted;
Under Amendment No. 6, there is a duality of legislative authority given the President and the interim
Batasang Pambansa as well as the regular National Assembly, as pointed out by Senator Tolentino,
with the President continuing to exercise legislative powers in case of "grave emergency or a threat
or imminence thereof" (without definition of terms) or when said Assemblies "fail or are unable to act
adequately on any matter for any reason that in his judgment requires immediate action", thus
radically affecting provisions of the Constitution governing the said departments;
Under Amendment No. 7, the barangays and Sanggunians would apparently be constitutionalized,
although their functions, power and composition may be altered by law. Referendums (which are not
authorized in the present 1973 Constitution) would also be constitutionalized, giving rise to the
possibility fraught with grave consequences, as acknowledged at the hearing, that amendments to
the Constitution may thereafter be effected by referendum, rather than by the rigid and strict
amending process provided presently in Article XVI of the Constitution;
Under Amendment No. 8, there is a general statement in general that the unspecified provisions of
the Constitution "not inconsistent with any of these amendments" shall continue in full force and
effect; and Under Amendment No. 9. the incumbent President is authorized to proclaim the
ratification of the amendments by the majority of votes cast. It has likewise been stressed by the
officials concerned that the proposed amendments come in a package and may not be voted upon
separately but on an "all or nothing" basis.
5. Whether the people can normally express their will in a genuine manner and with due
circumspection on the proposed amendments amidst the constraints of martial law is yet another
question. That a period of free debate and discussion has to be declared of itself shows the
limitations on free debate and discussion. The facilities for free debate and discussion over the mass
media, print and otherwise are wanting. The President himself is reported to have observed the
timidity of the media under martial law and to have directed the press to air the views of the
opposition.54
Indeed, the voice of the studentry as reflected in the editorial of the Philippine Collegian issue of
September 23, 1976 comes as a welcome and refreshing model of conscientious deliberation, as
our youth analyzes the issues "which will affect generations yet to come" and urge the people to mull
over the pros and cons very carefully", as follows:
THE REFERENDUM ISSUES
On October 16, the people may be asked to decide on two important national issues
- the creation of a new legislative body and the lifting of martial law.
On the first issue, it is almost sure that the interim National Assembly will not be
convened, primarily because of its membership. Majority of the members of the
defunct Congress, who are mandated by the Constitution to become members of the
interim National Assembly, have gained so widespread a notoriety that the mere
mention of Congress conjures the image of a den of thieves who are out to fool the
people most of the time. Among the three branches of government, it was the most
discredited. In fact, upon the declaration of martial law, some people were heard to
mutter that a 'regime that has finally put an end to such congressional shenanigans
could not be all that bad'.
A substitute legislative body is contemplated to help the President in promulgating

laws, and perhaps minimize the issuance of ill-drafted decrees which necessitate
constant amendments. But care should be taken that this new legislative body would
not become a mere rubber stamp akin to those of other totalitarian countries. It
should be given real powers, otherwise we will just have another nebulous creation
having the form but lacking the substance. Already the President has expressed the
desire that among the powers he would like to have with regard to the proposed
legislative body is that of abolishing it in case 'there is a need to do so'. As to what
would occasion such a need, only the President himself can determine. This would
afford the Chief Executive almost total power over the legislature, for he could always
offer the members thereof a carrot and a stick.
On the matter of lifting martial law the people have expressed ambivalent attitudes.
Some of them, remembering the turmoil that prevailed before the declaration of
martial law, have expressed the fear that its lifting might precipitate the revival of the
abuses of the past, and provide an occasion for evil elements to resurface with their
usual tricks. Others say that it is about time martial law was lifted since the peace
and order situation has already stabilized and the economy seems to have been
parked up.
The regime of martial law has been with us for four years now. No doubt, martial law
has initially secured some reforms for the country The people were quite willing to
participate in the new experiment, thrilled by the novelty of it all. After the euphoria,
however, the people seem to have gone back to the old ways, with the exception that
some of our freedoms were taken away, and an authoritarian regime established.
We must bear in mind that martial law was envisioned only to cope with an existing
national crisis, It was not meant to be availed of for a long period of time, otherwise it
would undermine our adherence to a democratic form of government. In the words of
the Constitution. martial law shall only be declared in times of 'rebellion, insurrection,.
invasion, or imminent danger thereof, when the public safety requires it'. Since we no
longer suffer from internal disturbances of a gargantuan scale, it is about time we
seriously rethink the 'necessity' of prolonging the martial law regime. If we justify the
continuance of martial by economic or other reasons other than the foregoing
constitutional grounds, then our faith in the Constitution might be questioned. Even
without martial law,. the incumbent Chief Executive still holds vast powers under the
constitution. After all, the gains of the New Society can be secured without sacrificing
the freedom of our people. If the converse is true, then we might have to conclude
that the Filipinos deserve a dictatorial form of government. The referendum results
will show whether the people themselves have adopted this sad conclusion.
The response of the people to the foregoing issues will affect generations yet to
come, so they should mull over the pros and cons very carefully."
6. This opinion by written in the same spirit as the President's exhortations on the first anniversary of
proclamation of the 1973 Constitution that we "let the Constitution remain firm and stable" so that it
may "guide the people", and that we "remain steadfast on the rule of law and the Constitution" as he
recalled his rejection of the "exercise (of) power that can be Identified merely with a revolutionary
government" that makes its own law, thus:
. . . Whoever he may be and whatever position he may happen to have, whether in

government or outside government, it is absolutely necessary now that we look
solemnly and perceptively into the Constitution and try to discover for ourselves what
our role is in the successful implementation of that Constitution. With this thought,
therefore, we can agree on one thing and that is: Let all of us age, let all of us then
pass away as a pace in the development of our country. but let the Constitution
remain firm and stable and let institutions grow in strength from day to day, from
achievement to achievement, and so long as that Constitution stands, whoever may
the man in power be, whatever may his purpose be, that Constitution will guide the
people and no man, however, powerful he may be, will dare to destroy and wreck the
foundation of such a Constitution.
These are the reasons why I personally, having proclaimed martial law, having been
often induced to exercise power that can be Identified merely with a revolutionary
government, have remained steadfast or the rule of law and the Constitution. * 54
IV. A final word on the Court's resolution of October 5, 1976 which in reply to the Comelec query
allowed by a vote of 7 to 3, judges of all courts, after office hours, "to accept invitations to act as
resource speakers under Section 5 of Presidential Decree No. 991, as amended, as well as to take
sides in discussions and debates on the referendum-plebiscite questions under Section 7 of the
same Decree." 55
The writer with Mr. Justice Makasiar and Madame Justice Munoz Palma had dissented from the
majority resolution, with all due respect, on the ground that the non-participation of judges in such
public discussions and debates on the referendum-plebiscite questions would preserve the
traditional non-involvement of the judiciary in public discussions of controversial issues. This is
essential for the maintenance and enhancement of the people's faith and confidence in the judiciary.
The questions of the validity of the scheduled referendum- plebiscite and of whether there is proper
submission of the proposed amendments were precisely subjudice by virtue of the cases at bar.
The lifting of the traditional inhibition of judges from public discussion and debate might blemish the
image and independence of the judiciary. Aside from the fact that the fixing of a time limit for the
acceptance of their courtesy resignations to avoid an indefinite state of insecurity of their tenure in
office still spends litigants and their relatives and friends as well as a good sector of the public would
be hesitant to air views contrary to that of the.
Judge. Justices Makasiar and Munoz Palma who share these views have agreed that we make them
of record here, since we understand that the permission given in the resolution is nevertheless
addressed to the personal decision and conscience of each judge, and these views may he of some
guidance to them.
BARREDO, J.,: concurring:
While I am in full agreement with the majority of my brethren that the herein petitions should be
dismissed, as in fact I vote for their dismissal, I deem it imperative that I should state separately the
considerations that have impelled me to do so.
Perhaps, it is best that I should start by trying to disabuse the minds of those who have doubts as to
whether or not I should have taken part in the consideration and resolution of these cases. Indeed, it
would not be befitting my position in this Highest Tribunal of the land for me to leave unmentioned
the circumstances which have given cause, I presume, for others to feel apprehensive that my
participation in these proceedings might detract from that degree of faith in the impartiality that the
Court's judgment herein should ordinarily command. In a way, it can be said, of course, that I am the
one most responsible for such a rather problematical situation, and it is precisely for this reason that
I have decided to begin this opinion with a discussion of why I have not inhibited myself, trusting
most confidently that what I have to say will be taken in the same spirit of good faith, sincerity and
purity of purpose in which I am resolved to offer the same.
Plain honesty dictates that I should make of record here the pertinent contents of the official report of
the Executive Committee of the Katipunan ng mga Sanggunian submitted to the Katipunan itself
about the proceedings held on August 14, 1976. It is stated in that public document that:
THE ISSUE WITH REGARDS To THE CONVENING OF A LEGISLATIVE body

came out when the President express his desire to share his powers with other
people.
Aware of this, a five-man Committee members of the Philippine Constitution Association

(PHILCONSA) headed by Supreme Court Justice Antonio Barredo proposed on July 28, the
establishment of 'Sangguniang Pambansa' or 'Batasang Pambansa' which would help the President
in the performance of his legislative functions. The proposed new body will take the place of the
interim National Assembly which is considered not practical to convene at this time considering the
constitution of its membership.
Upon learning the proposal of Justice Barredo, the country's 42,000 barangay assemblies on August
1 suggested that the people be consulted on a proposal to create a new legislative body to replace
the interim assembly provided for by the Constitution. The suggestion of the barangay units was
made through their national association, Pambansang Katipunan ng mga Barangay headed by Mrs.
Nora Z. Patines. She said that the people have shown in at least six instances including in the two
past referenda that they are against the convening of the interim National Assembly. She also said
that since the people had ruled out the calling of such assembly and that they have once proposed
that the President create instead the Sangguniang Pambansa or a legislative advisory body, then
the proposal to create a new legislative must necessarily be referred to the people.
The federation of Kabataang Barangay, also numbering 42,000 units like their elder counterparts in
the Katipunan ng mga Barangay also asserted their own right to be heard on whatever plans are
afoot to convene a new legislative body.
On August 6, a meeting of the national directorate of PKB was held to discuss matters pertaining to
the stand of the PKB with regards to the convening of a new legislative body. The stand of the PKB
is to create a legislative advisory council in place of the old assembly. Two days after, August 8, the
Kabataang Barangay held a symposium and made a stand which is the creation of a body with full
legislative powers.
A nationwide clamor for the holding of meeting in their respective localities to discuss more
intellegently the proposal to create a new legislative body was made by various urban and rural
Sangguniang Bayans.
Numerous requests made by some members coming from 75 provincial and 61 city SB assemblies,
were forwarded to the Department of Local Government and Community Development (DLGCD).
On August 7, Local Government Secretary, Jose A. Rono granted the request by convening the 91
member National Executive Committee of the Pambansang Katipunan ng mga Sanggunian on
August 14 which was held at Session Hall, Quezon City. Invited also to participate were 13 Regional
Federation Presidents each coming from the PKB and the PKKB
Actually, the extent of my active participation in the events and deliberations that have culminated in
the holding of the proposed referendum- plebiscite on October 16, 1976, which petitioners are here
seeking to enjoin, has been more substantial and meaningful than the above report imparts. Most
importantly, aside from being probably the first person to publicly articulate the need for the creation
of an interim legislative body to take the place of. the interim National Assembly provided for in the
Transitory Provisions of the Constitution, as suggested in the above report, I might say that I was the
one most vehement and persistent in publicly advocating and urging the authorities concerned to
directly submit to the people in a plebiscite whatever amendments of the Constitution might be
considered necessary for the establishment of such substitute interim legislature. In the
aforementioned session of the Executive Committee of the Katipunan, I discourse on the
indispensability of a new interim legislative body as the initial step towards the early lifting of martial
law and on the fundamental considerations why in our present situation a constitutional convention
would be superfluous in amending the Constitution.
Moreover, it is a matter of public knowledge that in a speech I delivered at the Coral Ballroom of the
Hilton Hotel in the evening of August 17, 1976, I denounced in no uncertain terms the plan to call a
constitutional convention. I reiterated the same views on September 7, 1976 at the initial conference
called by the Comelec in the course of the information and educational campaign it was enjoined to
conduct on the subject. And looking back at the subsequent developments up to September 22,
1976, when the Batasang Bayan approved and the President signed the now impugned Presidential
Decree No. 1033, it is but human for me to want to believe that to a certain extent my strong
criticisms and resolute stand against any other alternative procedure of amending the Constitution
for the purpose intended had borne fruit.
I must hasten to add at this point, however, that in a larger sense, the initiative for all I have done,
was not altogether mine alone. The truth of the matter is that throughout the four years of this martial
law government, it has always been my faith, as a result of casual and occasional exchanges of
thought with President Marcos, that when the appropriate time does come, the President would
somehow make it known that in his judgment, the situation has already so improved as to permit the
implementation, if gradual, of the constitutionally envisioned evolution of our government from its
present state to a parliamentary one. Naturally, this would inevitably involve the establishment of a
legislative body to replace the abortive interim National Assembly. I have kept tract of all the public
and private pronouncements of the President, and it was the result of my reading thereof that
furnished the immediate basis for my virtually precipitating, in one way or another, the materialization
of the forthcoming referendum-plebiscite. In other words, in the final analysis, it was the President's
own attitude on the matter that made it opportune for me to articulate my own feelings and Ideas as
to how the nation can move meaningfully towards normalization and to publicly raise the issues that
have been ventilated by the parties in the instant cases.
I would not be human, if I did not consider myself privileged in having been afforded by Divine
Providence the opportunity to contribute a modest share in the formulation of the steps that should
lead ultimately to the lifting of martial law in our country. Indeed, I am certain every true Filipino is
anxiously looking forward to that eventuality. And if for having voiced the sentiments of our people,
where others would have preferred to be comfortably silent, and if for having made public what every
Filipino must have been feeling in his heart all these years, I should be singled out as entertaining
such preconceived opinions regarding the issues before the Court in the cases at bar as to preclude
me from taking part in their disposition, I can only say that I do not believe there is any other Filipino
in and out of the Court today who is not equally situated as I am .
The matters that concern the Court in the instant petitions do not involve merely the individual
interests of any single person or group of persons. Besides, the stakes in these cases affect
everyone commonly, not individually. The current of history that has passed through the whole
country in the wake of martial law has swept all of us, sparing none, and the problem of national
survival and of restoring democratic institutions and Ideals is seeking solution in the minds of all of
us. That I have preferred to discuss publicly my own thoughts on the matter cannot mean that my
colleagues in the Court have been indifferent and apathetic about it, for they too are Filipinos.
Articulated or not, all of us must have our own preconceived Ideas and notions in respect to the
situation that confronts the country. To be sure, our votes and opinions in the- major political cases
in the recent past should more or less indicate our respective basic positions relevant to the issues
now before Us. Certainly, contending counsels cannot be entirely in the dark in this regard. I feel that
it must have been precisely because of such awareness that despite my known public participation
in the discussion of the questions herein involved, none of the parties have sought my inhibition or
disqualification.
Actually, although it may be difficult for others to believe it, I have never allowed my preconceptions
and personal inclinations to affect the objectivity needed in the resolution of any judicial question
before the Court. I feel I have always been able to appreciate, fully consider and duly weigh
arguments and points raised by all counsels, even when they conflict with my previous views. I am
never beyond being convinced by good and substantial ratiocination. Nothing has delighted me more
than to discover that somebody else has thought of more weighty arguments refuting my own,
regardless of what or whose interests are at stake. I would not have accepted my position in the
Court had I felt I would not be able to be above my personal prejudices. To my mind, it is not that a
judge has preconceptions that counts, it is his capacity and readiness to absorb contrary views that
are indispensable for justice to prevail. That suspicions of prejudgment may likely arise is
unavoidable; but I have always maintained that whatever improper factors might influence a judge
will unavoidably always appear on the face of the decision. In any event, is there better guarantee of
justice when the preconceptions of a judge are concealed?
Withal, in point of law, I belong to the school of thought that regards members of the Supreme Court
as not covered by the general rules relative to disqualification and inhibition of judges in cases
before them. If I have in practice actually refrained from participating in some cases, it has not been
because of any legal ground founded on said rules, but for purely personal reasons, specially
because, anyway, my vote would not have altered the results therein.
It is my considered opinion that unlike in the cases of judges in the lower courts, the Constitution
does not envisage compulsory disqualification or inhibition in any case by any member of the
Supreme Court. The Charter establishes a Supreme Court "composed of a Chief Justice and
fourteen Associate Justices", with the particular qualifications therein set forth and to be appointed in
the manner therein provided. Nowhere in the Constitution is there any indication that the legislature
may designate by law instances wherein any of the justices should not or may not take part in the
resolution of any case, much less who should take his place. Members of the Supreme Court are
definite constitutional officers; it is not within the power of the lawmaking body to replace them even
temporarily for any reason. To put it the other way, nobody who has not been duly appointed as a
member of the Supreme Court can sit in it at any time or for any reason. The Judicial power is
vested in the Supreme Court composed as the Constitution ordains - that power cannot be exercised
by a Supreme Court constituted otherwise. And so, when as in the instant where, if any of the
member of Court is to abstain from taking part, there would be no quorum - and no court to render
the decision - it is the includible duty of all the incumbent justices to participate in the proceedings
and to cast their votes, considering that for the reasons stated above, the provisions of Section 9 of
the Judiciary Act do not appear to conform with the concept of the office of Justice of the Supreme
Court contemplated in the Constitution.
The very nature of the office of Justice of the Supreme Court as the tribunal of last resort and
bulwark of the rights and liberties of all the people demands that only one of dependable and
trustworthy probity should occupy the same. Absolute integrity, mental and otherwise, must be by
everyone who is appointed thereto. The moral character of every member of the Court must be
assumed to be such that in no case whatsoever. regardless of the issues and the parties involved,
may it be feared that anyone's life, liberty or property, much less the national interests, would ever
be in jeopardy of being unjustly and improperly subjected to any kind of judicial sanction. In sum,
every Justice of the Supreme Court is expected to be capable of rising above himself in every case
and of having full control of his emotions and prejudices, such that with the legal training and
experience he must of necessity be adequately equipped with, it would be indubitable that his
judgment cannot be but objectively impartial, Indeed, even the appointing power, to whom the
Justices owe their positions, should never hope to be unduly favored by any action of the Supreme
Court. All appointments to the Court are based on these considerations, hence the ordinary rules on
inhibition and disqualification do not have to be applied to its members.
With the preliminary matter of my individual circumstances out of the way, I shall now address
myself to the grave issues submitted for Our resolution.
-I-
In regard to the first issue as to whether the questions posed in the petitions herein are political or
justiciable, suffice it for me to reiterate the fundamental position I took in the Martial Law cases, thus
1
As We enter the extremely delicate task of resolving the grave issues thus thrust
upon Us. We are immediately encountered by absolute verities to guide Us all the
way. The first and most important of them is that the Constitution (Unless expressly
stated otherwise, all references to the Constitution in this discussion are to both the
1935 and 1973 charters, since, after all, the pertinent provisions are practically
Identical in both is the supreme law of the land. This means among other things that
all the powers of the government and of all its officials from the President down to the
lowest emanate from it. None of them may exercise any power unless it can be
traced thereto either textually or by natural and logical implication. "The second is
that it is settled that the Judiciary provisions of the Constitution point to the Supreme
Court as the ultimate arbiter of all conflicts as to what the Constitution or any part
thereof means. While the other Departments may adopt their own construction
thereof, when such construction is challenged by the proper party in an appropriate
case wherein a decision would be impossible without determining the correct
construction, the Supreme Court's word on the matter controls.
xxx xxx xxx
xxx xxx xxx
The fifth is that in the same manner that the Executive power conferred upon the
Executive by the Constitution is complete, total and unlimited, so also, the judicial
power vested in the Supreme Court and the inferior courts, is the very whole of that
power, without any limitation or qualification.
xxx xxx xxx
xxx xxx xxx
From these incontrovertible postulates, it results, first of all, that the main question
before Us is not in reality one of jurisdiction, for there can be no conceivable
controversy, especially one involving a conflict as to the correct construction of the
Constitution, that is not contemplated to be within the judicial authority of the courts
to hear and decide. The judicial power of the courts being unlimited and unqualified,
it extends over all situations that call for the as certainment and protection of the
rights of any party allegedly violated, even when the alleged violator is the highest
official of the land or the government itself. It is, therefore, evidence that the Court's
jurisdiction to take cognizance of and to decide the instant petitions on their merits is
beyond challenge.
In this connection, however, it must be borne in mind that in the form of government
envisaged by the framers of the Constitution and adopted by our people, the Court's
indisputable and plenary authority to decide does not necessarily impose upon it the
duty to interpose its fiat as the only means of settling the conflicting claims of the
parties before it. It is ingrained in the distribution of powers in the fundamental law
that hand in hand with the vesting of the judicial power upon the Court, the
Constitution has coevally conferred upon it the discretion to determine, in
consideration of the constitutional prerogatives granted to the other Departments,
when to refrain from imposing judicial solutions and instead defer to the judgment of
the latter. It is in the very nature of republican governments that certain matters are
left in the residual power of the people themselves to resolve, either directly at the
polls or thru their elected representatives in the political Departments of the
government. And these reserved matters are easily distinguishable by their very
nature, when one studiously considers the basic functions and responsibilities
entrusted by the charter to each of the great Departments of the government. To cite
an obvious example, the protection, defense and preservation of the state against
internal or external aggression threatening its very existence is far from being within
the ambit of judicial responsibility. The distinct role then of the Supreme Court of
being the final arbiter in the determination of constitutional controversies does not
have to be asserted in such contemplated situations, thereby to give way to the
ultimate prerogative of the people articulated thru suffrage or thru the acts of their
political representatives they have elected for the purpose.
Indeed, these fundamental considerations are the ones that lie at the base of what is known in
American constitutional law as the political question doctrine, which in that jurisdiction is
unquestionably deemed to be part and parcel of the rule of law, exactly like its apparently more
attractive or popular opposite, judicial activism, which is the fullest exertion of judicial power, upon
the theory that unless the courts intervene injustice might prevail. It has been invoked and applied by
this Court in varied forms and mode of projection in several momentous instances in the past,
(Barcelona vs. Baker, 5 Phil. 87; Severino vs. Governor-General, 16 Phil. 366; Abueva vs. Wood, 45
Phil. 612; Alejandrino vs. Quezon, 46 Phil. 85; Vera vs. Avelino, 77 Phil. 192; Mabanag vs. Lopez
Vito, 78 Phil. 1; Cabin vs. Francisco, 88 Phil. 654; Montenegro vs. Castaneda, 91 Phil. 882, Santos
vs. Yatco, 55 O.G. 8641 [Minute Resolution of Nov. 6, 19591 Osmena vs. Pendatun, Oct. 28, 1960.)
and it is the main support of the stand of the Solicitor General on the issue of jurisdiction in the cases
at bar. It is also referred to as the doctrine of judicial self-restraint or abstention. But as the
nomenclatures themselves imply, activism and self- restraint are both subjective attitudes, not
inherent imperatives. The choice of alternatives in any particular eventuality is naturally dictated by
what in the Court's considered opinion is what the Constitution envisions should be by in order to
accomplish the objectives of government and of nationhood. And perhaps it may be added here to
avoid confusion of concepts, that We are not losing sight of the traditional approach based on the
doctrine of separation of powers. In truth, We perceive that even under such mode of rationalization,
the existence of power is secondary, respect for the acts of a co-ordinate, co-equal and independent
Department being the general rule, particularly when the issue is not encroachment of delimited
areas of functions but alleged abuse of a Department's own basic prerogatives. (59 SCRA, pp. 379-
383.)
Applying the foregoing considerations to the cases at bar, I hold that the Court has jurisdiction to
pass on the merits of the various claims of petitioners. At the same time, however, I maintain that the
basic nature of the issues herein raised requires that the Court should exercise its constitutionally
endowed prerogative to refrain from exerting its judicial authority in the premises.
Stripped of incidental aspects, the constitutional problem that confronts Us stems from the absence
of any clear and definite express provision in the Charter applicable to the factual milieu herein
involved. The primary issue is, to whom, under the circumstances, does the authority to propose
amendments to the Constitution property belong? To say, in the light of Section 15 of Article XVII of
the Charter, that that faculty lies in the interim National Assembly is to beg the main question.
Indeed, there could be no occasion for doubt or debate, if it could ' only be assumed that the interim
National Assembly envisaged in Sections 1 and 2 of the same Article XVII may be convoked. But
precisely, the fundamental issue We are called upon to decide is whether or not it is still
constitutionally possible to convene that body. And relative to that question, the inquiry centers on
whether or not the political developments since the ratification of the Constitution indicate that the
people have in effect enjoined the convening of the interim National Assembly altogether. On this
score, it is my assessment that the results of the referenda of January 10-15, 1973, July 27-28, 1973
and February 27, 1975 clearly show that the great majority of our people, for reasons plainly obvious
to anyone who would consider the composition of that Assembly, what with its more than 400
members automatically voted into it by the Constitutional Convention together with its own members,
are against its being convoked at all.
Whether or not such a manifest determination of the sentiments of the people should be given effect
without a formal amendment of the Constitution is something that constitutional scholars may
endlessly debate on. What cannot be disputed, however, is that the government and the nation have
acquiesced to, it and have actually operated on the basis thereof. Proclamation 1103 which, on the
predicate that the overwhelming majority of the people desire that the interim Assembly be not
convened, has ordained the suspension of its convocation, has not been assailed either judicially or
otherwise since the date of its promulgation on January 17, 1973.
In these premises, it is consequently the task of the Court to determine what, under these
circumstances, is the constitutional relevance of the interim National Assembly to any proposal to
amend the Constitution at this time. It is my considered opinion that in resolving that question, the
Court must have to grapple with the problem of what to do with the will of the people, which although
manifested in a manner not explicitly provided for in the Constitution, was nevertheless official, and
reliable, and what is more important clear and unmistakable, despite the known existence of well-
meaning, if insufficiently substantial dissent. Such being the situation, I hold that it is not proper for
the Court to interpose its judicial authority against the evident decision of the people and should
leave it to the political department of the government to devise the ways and means of resolving the
resulting problem of how to amend the Constitution, so long as in choosing the same, the ultimate
constituent power is left to be exercised by the people themselves in a well- ordered plebiscite as
required by the fundamental law.
-2-
Assuming We have to inquire into the merits of the issue relative to the constitutional authority
behind the projected amendment of the Charter in the manner provided in Presidential Decree 1033,
I hold that in the peculiar situation in which the government is today, it is not incompatible with the
Constitution for the President to propose the subject amendments for ratification by the people in a
formal plebiscite under the supervision of the Commission on Elections. On the contrary, in the
absence of any express prohibition in the letter of the Charter, the Presidential Decree in question is
entirely consistent with the spirit and the principles underlying the Constitution. The correctness of
this conclusion should become even more patent, when one considers the political developments
that the people have brought about since the ratification of the Constitution on January 17,1973.
I consider it apropos at this juncture to repeat my own words in a speech I delivered on the occasion
of the celebration of Law Day on September 18, 1975 before the members of the Philippine
Constitution Association and their guests:
To fully comprehend the constitutional situation in the Philippines today, one has to
bear in mind that, as I have mentioned earlier, the martial law proclaimed under the
1935 Constitution overtook the drafting of the new charter by the Constitutional
Convention of 1971. It was inevitable, therefore, that the delegates had to take into
account not only the developments under it but, most of all, its declared objectives
and what the President, as its administrator, was doing to achieve them. In this
connection, it is worthy of mention that an attempt to adjourn the convention was
roundly voted down to signify the determination of the delegates to finish earliest
their work, thereby to accomplish the mission entrusted to them by the people to
introduce meaningful reforms in our government and society. Indeed, the constituent
labors gained rapid tempo, but in the process, the delegates were to realize that the
reforms they were formulating could be best implemented if the martial law powers of
the President were to be allowed to subsist even after the ratification of the
Constitution they were approving. This denouement was unusual. Ordinarily, a
constitution born out of a crisis is supposed to provide all the needed cures and can,
therefore, be immediately in full force and effect after ratification. Not so, with our
1973 Constitution, Yes, according to the Supreme Court, 'there is no more judicial
obstacle to the new Constitution being considered in force and effect', but in truth, it
is not yet so in full. Let me explain.
To begin with, in analyzing the new Constitution, we must be careful to distinguish between the body
or main part thereof and its transitory provisions. It is imperative to do so because the transitory
provisions of our Constitution are extraordinary in the sense that obviously they have been designed
to provide not only for the transition of our government from the presidential form under the past
charter to a parliamentary one as envisaged in the new fundamental law, but also to institutionalize,
according to the President, the reforms introduced thru the exercise of his martial law powers. Stated
differently, the transitory provisions, as it has turned out, has in effect established a transition
government, not, I am sure, perceived by many. It is a government that is neither presidential nor
parliamentary. It is headed, of course, by President Marcos who not on retains all his powers under
the 1935 Constitution but enjoys as well those of the President and the Prime Minister under the new
Constitution. Most importantly, he can and does legislate alone. But to be more accurate, I should
say that he legislates alone in spite of the existence of the interim National Assembly unequivocally
ordained by the Constitution, for the simple reason that he has suspended the convening of said
assembly by issuing Proclamation No. 1103 purportedly 'in deference to the sovereign will of the
Filipino people' expressed in the January 10-15, 1973 referendum.
Thus, we have here the unique case of a qualified ratification. The whole Constitution was submitted
for approval or disapproval of the people, and after the votes were counted and the affirmative
majority known, we were told that the resulting ratification was subject to the condition that the
interim National Assembly evidently established in the Constitution as the distinctive and
indispensable element of a parliamentary form of government should nevertheless be not convened
and that no elections should be held for about seven years, with the consequence that we have now
a parliamentary government without a parliament and a republic without any regular election of its
officials. And as you can see, this phenomenon came into being not by virtue of the Constitution but
of the direct mandate of the sovereign people expressed in a referendum. In other words, in an
unprecedented extra-constitutional way, we have established, wittingly or unwittingly, a direct
democracy through the Citizens Assemblies created by Presidential Decree No. 86, which later on
have been transformed into barangays, a system of government proclaimed by the President as 'a
real achievement in participatory democracy.' What I am trying to say, my friends, is that as I
perceive it, what is now known as constitutional authoritarianism means, in the final analysis, that the
fundamental source of authority of our existing government may not be necessarily found within the
four corners of the Constitution but rather in the results of periodic referendums conducted by the
Commission on Elections in a manner well known to all of us This, as I see it, is perhaps what the
President means by saying that under the new Constitution he has extra-ordinary powers
independently of martial law - powers sanctioned directly by the people which may not even be read
in the language of the Constitution. in brief, when we talk of the rule of law nowadays, our frame of
reference should not necessarily be the Constitution but the outcome of referendums called from
time to time by the President. The sooner we imbibe this vital concept the more intelligent will our
perspective be in giving our support and loyalty to the existing government. What is more, the
clearer will it be that except for the fact that all the powers of government are being exercised by the
President, we - do not in reality have a dictatorship but an experimental type of direct democracy."
In the foregoing disquisition, I purposely made no mention of the referendum of February 27, 1975. It
is important to note, relative to the main issue now before Us, that it was originally planned to ask
the people in that referendum whether or not they would like the interim National Assembly to
convene, but the Comelec to whom the task of preparing the questions was assigned was prevailed
upon not to include any -such question anymore, precisely because it was the prevalent view even
among the delegates to the Convention as well as the members of the old Congress concerned that
that matter had already been finally resolved in the previous referenda of January and July 1973 in
the sense that. the Assembly should not be convened comparable to res adjudicata.
It is my position that as a result of the political developments since January 17, 1973 the transitory
provisions envisioning the convening of the interim National Assembly have been rendered legally
inoperative. There is no doubt in my mind that for the President to convoke the interim National
Assembly as such would be to disregard the will of the people - something no head of a democratic
republican state like ours should do. And I find it simply logical that the reasons that motivated the
people to enjoin the convening of the Assembly - the unusually large and unmanageable number of
its members and the controversial morality of its automatic composition consisting of all the
incumbent elective national executive and legislative officials under the Old Constitution who would
agree to join it and the delegates themselves to the Convention who had voted in favor of the
Transitory Provisions - apply not only to the Assembly as an ordinary legislature but perhaps more to
its being a constituent body. And to be more realistic, it is but natural to conclude that since the
people are against politicians in the old order having anything to do with the formulation of national
policies, there must be more reasons for them to frown on said politicians taking part in amendment
of the fundamental law, specially because the particular amendment herein involved calls for the
abolition of the interim National Assembly to which they belong and its substitution by the Batasang
Pambansa.
It is argued that in law, the qualified or conditional ratification of a constitution is not contemplated. I
disagree. It is inconsistent with the plenary power of the people to give or withhold their assent to a
proposed Constitution to maintain that they can do so only wholly. I cannot imagine any sound
principle that can be invoked to support the theory that the proposing authority can limit the power of
ratification of the people. As long as there are reliable means by which only partial approval can be
manifested, no cogent reason exists why the sovereign people may not do so. True it is that no
proposed Constitution can be perfect and it may therefore be taken with the good and the bad in it,
but when there are feasible ways by which it can be determined which portions of it, the people
disapprove. it would be stretching technicality beyond its purported office to render the final authority
- the people impotent to act according to what they deem best suitable to their interests.
In any event, I feel it would be of no consequence to debate at length regarding the legal feasibility
of qualified ratification. Proclamation 1103 categorically declares that:
WHEREAS, fourteen million nine hundred seventy six thousand five hundred sixty-
one (14,976.561) members of all the Barangays voted for the adoption of the
proposed Constitution, as against seven hundred forty-three thousand eight hundred
sixty-nine (743,869) who voted for its rejection; but a majority of those who approved
the new Constitution conditioned their votes on the demand that the interim National
Assembly provided in its Transitory Provisions should not be convened.
and in consequence, the President has acted accordingly by not convening the Assembly. The
above factual premises of Proclamation 1103 is not disputed by petitioners. Actually, it is binding on
the Court, the same being a political act of a coordinate department of the government not properly
assailed as arbitrary or whimsical. At this point, it must be emphasized in relation to the contention
that a referendum is only consultative, that Proclamation 1103, taken together with Proclamation
1102 which proclaimed the ratification of the Constitution, must be accorded the same legal
significance as the latter proclamation, as indeed it is part and parcel if the Act of ratification of the
Constitution, hence not only persuasive but mandatory. In the face of the incontrovertible fact that
the sovereign people have voted against the convening of the interim National Assembly, and faced
with the problem of amending the Constitution in order precisely to implement the people's rejection
of that Assembly, the problem of constitutional dimension that confronts Us, is how can any such
amendment be proposed for ratification by the people?
To start with, it may not be supposed that just because the office or body designed by the
constitutional convention to perform the constituent function of formulating proposed amendments
has been rendered inoperative by the people themselves, the people have thereby foreclosed the
possibility of amending the Constitution no matter how desirable or necessary this might be. In this
connection, I submit that by the very nature of the office of the Presidency in the prevailing scheme
of government we have - it being the only political department of the government in existence - it is
consistent with basic principles of constitutionalism to acknowledge the President's authority to
perform the constituent function, there being no other entity or body lodged with the prerogative to
exercise such function.
There is another consideration that leads to the same conclusion. It is conceded by petitioners that
with the non-convening of the interim Assembly, the legislative authority has perforce fallen into the
hands of the President, if only to avoid a complete paralysis of law-making and resulting anarchy
and chaos. It is likewise conceded that the provisions of Section 3 (2) of Article XVII invest the
President with legislative power for the duration of the transition period. From these premises, it is
safe to conclude that in effect the President has been substituted by the people themselves in place
of the interim Assembly. Such being the case, the President should be deemed as having been
granted also the cognate prerogative of proposing amendments to the Constitution. In other words,
the force of necessity and the cognate nature of the act justify that the department exercising the
legislative faculty be the one to likewise perform the constituent function that was attached to the
body rendered impotent by the people's mandate. Incidentally, I reject most vehemently the
proposition that the President may propose amendments to the Constitution in the exercise of his
martial law powers. Under any standards, such a suggestion cannot be reconciled with the Ideal that
a Constitution is the free act of the people.
It was suggested during the oral, argument that instead of extending his legislative powers by
proposing the amendment to create a new legislative body, the President should issue a decree
providing for the necessary apportionment of the seats in the Regular National Assembly and call for
an election of the members thereof and thus effect the immediate normalization of the parliamentary
government envisaged in the Constitution. While indeed procedurally feasible, the suggestion
overlooks the imperative need recognized by the constitutional convention as may be inferred from
the obvious purpose of the transitory provisions, for a period of preparation and acquaintance by all
concerned with the unfamiliar distinctive features and practices of the parliamentary system.
Accustomed as we are to the presidential system, the Convention has seen to it that there should be
an interim parliament under the present leadership, which will take the corresponding measures to
effectuate the efficient and smooth transition from the present system to the new one. I do not
believe this pattern set by the convention should be abandoned.
The alternative of calling a constitutional convention has also been mentioned. But, in the first place,
when it is considered that whereas, under Section 1 (1) and (2) of Article XVI, the regular National
Assembly may call a Constitutional Convention or submit such a call for approval of the people,
Section 15 of Article XVII, in reference to interim National Assembly, does not grant said body the
prerogative of calling a convention, one can readily appreciate that the spirit of the Constitution does
not countenance or favor the calling of a convention during the transition, if only because such a
procedure would be time consuming, cumbersome and expensive. And when it is further noted that
the requirement as to the number of votes needed for a proposal is only a majority, whereas it is
three-fourths in respect to regular Assembly, and, relating this point to the provision of Section 2 of
Article XVI to the effect that all ratification plebiscites must be held "not later than three months after
the approval" of the proposed amendment by the proposing authority, the adoption of the most
simple manner of amending the charter, as that provided for in the assailed Presidential Decree
1033 suggests itself as the one most in accord with the intent of the fundamental law.
There is nothing strange in adopting steps not directly based on the letter of the Constitution for the
purpose of amending or changing the same. To cite but one important precedent, as explained by
Mr. Justice Makasiar in his concurring opinion in Javellana 2, the present Constitution of the United
States was neither proposed nor ratified in the manner ordained by the original charter of that
country, the Articles of Confederation and Perpetual Union.
In brief. if the convening and operation of the interim National Assembly has been effectuated
through a referendum-plebiscite in January, 1973, and ratified expressly and impliedly in two
subsequent referenda, those of July, 1973 and February, 1975, why may not a duly held plebiscite
suffice for the purpose of creating a substitute for that Assembly? It should be borne in mind that
after all, as indicated in the whereas of the impugned Presidential Decree, actually, the proposed
amendments were initiated by the barangays and sanggunian members. In other words, in
submitting the amendments for ratification, the President is merely acting as the conduit thru whom a
substantial portion of the people, represented in the Katipunan ng Mga Sanggunian, Barangay at
Kabataang Barangay, seek the approval of the people as a whole of the amendments in question. If
all these mean that the sovereign people have arrogated unto themselves the functions relative to
the amendment to the Constitution, I would regard myself as totally devoid of legal standing to
question it, having in mind that the most fundamental tenet on which our whole political structure
rests is that "sovereignty resides in the people and all government authority emanates from them."
In the light of the foregoing considerations, I hold that Presidential Decree No. 1033 does not infringe
the Constitution, if only because the specific provision it is supposed to infringe does not exist in
legal contemplation since it was coevally made inoperative when the people ratified the Constitution
on January 17, 1973. I am fully convinced that there is nothing in the procedure of amendment
contained in said decree that is inconsistent with the fundamental principles of constitutionalism. On
the contrary, I find that the Decree, in issue conforms admirably with the underlying tenet of our
government - the sovereignty and plenary power of the people.
On the issue of whether or not October 16, 1976 is too proximate to enable the people to sufficiently
comprehend the issues and intelligently vote in the referendum and plebiscite set by Presidential
Decree 1033, all I can say is that while perhaps my other colleagues are right in holding that the
period given to the people is adequate, I would leave it to the President to consider whether or not it
would be wiser to extend the same. Just to avoid adverse comments later I wish the President
orders a postponement. But whether such postponement is ordered or not, date of the referendum-
plebiscite anywhere from October 16, 1976 to any other later date, would be of no vital import.
In conclusion, I vote to dismiss all the three petitions before Us.
MAKASIAR, J., concurring and dissenting:
Since the validity or effectivity of the proposed amendments is to be decided ultimately by the people
in their sovereign capacity, the question is political as the term is defined in Tanada, et al. vs.
Cuenco, et al. (103 Phil. 1051), which is a bar to any judicial inquiry, for the reasons stated in Our
opinion in Javellana, et al. vs. Executive Secretary, et al. (L-36142); Tan, et al. vs. Executive
Secretary, et al. (L,36164); Roxas, et al. vs Executive Secretary, et al. (L-36165); Monteclaro, etc., et
al. vs' Executive Secretary, et al. (@36236); and Ditag et al. vs. Executive Secretary, et al. (L-W283,
March 31, 1973, 50 SCRA 30, 204-283). The procedure for amendment is not important Ratification
by the people is all that is indispensable to validate an amendment. Once ratified, the method of
making the proposal and the period for submission become relevant.
The contrary view negates the very essence of a republican democracy - that the people are
sovereign - and renders meaningless the emphatic declaration in the very first provision of Article II
of the 1973 Constitution that the Philippines is a republican state, sovereignty resides in the people
and all government authority emanates from them. It is axiomatic that sovereignty is illimitable The
representatives cannot dictate to the sovereign people. They may guide them; but they cannot
supplant their judgment, Such an opposite view likewise distrusts the wisdom of the people as much
as it despises their intelligence. It evinces a presumptuous pretension to intellectual superiority.
There are thousands upon thousands among the citizenry, who are not in the public service, who are
more learned and better skilled than many of their elected representatives.
Moreover, WE already ruled in Aquino, et al. vs- Comelec, et al. (L 40004, Jan. 31, 1975, 62 SCRA
275, 298-302) that the President as enforcer or administrator of martial rule during the period of
martial law can legislate; and that he has the discretion as to when the convene the interim National
Assembly depending on prevailing conditions of peace and order. In view of the fact that the interim
National Assembly has not been convoked in obedience to the desire of the people clearly
expressed in the 1973 referenda, the President therefore remains the lone law-making authority
while martial law subsists. Consequently, he can also exercise the power of the interim National
Assembly to propose amendments to the New Constitution (Sec. 15,,Art. XVII If, as conceded by
petitioner Vicente Guzman (L-44684), former delegate to the 1971 Constitutional Convention which
drafted the 1973 Constitution. the President, during the period of martial law, can call a constitutional
convention for the purpose, admittedly a constituent power, it stands to reason that the President
can likewise legally propose amendments to the fundamental law.
ANTONIO, J., concurring:
At the threshold, it is necessary to clarify what is a "political question". It must be noted that this
device has been utilized by the judiciary "to avoid determining questions it is ill equipped to
determine or that could be settled in any event only with the effective support of the political
branches." According to Weston, judges, whether "personal representatives of a truly sovereign
1
king, or taking their seats as the creatures of a largely popular sovereignty speaking through a
written constitution, derive their power by a delegation, which clearly or obscurely as the case may
be, deliminates and delimits their delegated jurisdiction.* * * Judicial questions * * * are those which
the sovereign has set to be decided in the courts. Political questions, similarly, are those which the
sovereign has entrusted to the so-called political departments of government or has reserved to be
settled by its own extra-government or has reserved to be settled by its own extra-governmental
action." Reflecting a similar concept, this Court has defined a "political question" as a "matter which
2
is to be exercised by the people in their primary political capacity or that has been specifically
delegated to some other department or particular officer of the government, with discretionary power
to act." In other words, it refers to those questions which, under the Constitution, are to be decided
3
by the people in their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of government. 4
In determining whether an issue falls within the political question category, the absence of
satisfactory creterion for a judicial determination or the appropriateness of attributing finality to the
action of the political departments of government is a dominant consideration. This was explained by
Justice Brennan in Baker v. Carr, thus :
5
Prominent on the surface of any case held to involve political question is found a
textually demonstrable constitutional lack of judicially discoverrable and manageable
standards for resolving it; or the impossibility of deciding without an initial policy
determination of a kind clearly for non-judicial discretion; or the impossibility of a
court's undertaking independent resolution without expressing lack of the respect
due coordinate branches of government; or an unusual need for unquestioning
adherence to a political decision already made; or the potentiality of embarrassment
from from multifarious pronouncements by various departments on one question. . . .
To decide whether a matter has in a measure been committed by the Constitution to another branch
of government or retained be the people to be decided by them in their sovereign capacity, or
whether that branch exceeds whatever authority has been committed, is indeed a delicate exercise
in constitutional interpretation.
In Coleman v. Miller, the United States Supreme Court held that the efficacy of the ratification by
6
state legislatures of a constitutional amendment is a political question. On the question of whether

the State Legislature could constitutionally relative an amendment, after the same had been
previously rejected by it, it was held that the ultimate authority over the question was in Congress in
the exercise of its control over the promulgation of the adoption of the amendment. And in
connection with the second question of whether the amendment has lost its, vitality through the
lapse of time, the Court held that the question was likewise political, involving "as it does ... an
appraisal of a great variety of relevant conditions, political, social and economic, which can hardly be
said to be within the appropriate range of evidence receivable in a court of justice and as to which it
would be an extravagant extension of juridical authority to assert judicial notice as the basis of
deciding a controversy with respect to the validity of an amendment actually ratified. On the other
hand, these conditions are appropriate for the consideration of the political departments of the
Government. The questions they involve are essentially political and not justiciable." '
In their concurring opinions, Justices Black, Roberts, Frankfurter and Douglas stressed that:
The Constitution grants Congress exclusive power to control submission off

constitutional amendments. Final determination by Congress their ratification by
three-fourths of the States has taken place 'is conclusive upon the courts.' In the
exercise of that power, Congress, of course, is governed by the Constitution.
However, A whether submission, intervening procedure for Congressional
determination of ratification conforms to the commands of the Constitution, call for
decisions by apolitical department of questions of a t@ which this Court has
frequently designated 'political.' And decision of a 'political question' by the political
department' to which the Constitution has committed it 'conclusively binds the judges,
as well as all other officers, citizens and subjects of ... government. Proclamation
under authority of Congress that an amendment has been ratified will carry with it a
solemn assurance by the Congress that ratification has taken place as the
Constitution commands. Upon this assurance a proclaimed amendment must be
accepted as a part of the Constitution, learning to the judiciary its traditional authority
of interpretation. To the extent that the Court's opinion in the present case even by
implieding assumes a power to make judicial interpretation of the exclusive
constitutional authority of Congress over submission and by ratification of
amendments, we are unable to agree.
Relying on this doctrine enunciated in Coleman v. Miller supra this Court, in Mabanag v. Lopez
Vitol, speaking through Mr. Justice Pedro Tuason, ruled that the process of constitutional
7
amendment, involving proposal and ratification, is a political question. In the Mabang case, the
petitioners sought to prevent the enforcement of a resolution of Congress proposing the "Parity
Amendment" to the Philippine Constitution on the ground that it had not been approved by the three-
fourths vote of all the members of each house as required be Article XV of the 1935 Constitution. It
was claimed that three (3) Senators and eight (8) members of the House of Representatives had
been suspended and that their membership was not considered in the determination of the three-
fourths %- ore In dismissing the petition on the ground that the question of the validity of the
proposal was political, the Court stated:
"If ratification of an amendment is a political question, a proposal which leads to ratification has to be
a political question. The question to steps complement each other in a scheme intended to achieve a
single objective. It is to be noted that amendatory process as provided in Section I of Article XV of
the Philippine Constitution 'consists of (only) two distinct parts: proposal and ratification.' There is no
logic in attaching political character to one and withholding that character from the other. Proposal to
amend the Constitution is a highly political function performed by the Congress in its sovereign
legislative capacity and committed to its charge by the Constitution itself. ..." (At pages 4-5, Italics
supplied.)
It is true that in Gonzales v. Comelec, this Court held that "the issue whether or not a Resolution of
8
Congress, acting as a constituent assembly - violates the Constitution is essentially justiciable, not
political, and hence, subject to judicial review." What was involved in Gonzales, however, was not a
proposed What was involved in Gonzales, however, was not a proposed amendment to the
Constitution but an act of Congress, submitting proposed amendments to the Constitution. Similarly,
9
in Tolentino v. Commission an Elections, 10 what was involved was not the validity of the proposal to
lower the voting age but rather that of the resolution of the Constitutional Convention submitting the
proposal for ratification. The question was whether piecemeal amendments to the Constitution could
submitted to the people for approval or rejection.
II
Here, the point has been stressed that the President is acting as agent for and in behalf of the
people in proposing the amendment. there can be no question that in the referendums of January,
1973 and in the subsequent referendums the people had clearly and categorically rejected the
calling of the interim National Assembly. As stated in the main opinion, the Lupang Tagapagpaganap
of the Katipunan ng mga Sanggunian, the Pambansang Katipunan ng mga Barangay, representing
42,000 barangays, the Kabataang Barangay organizations and the various sectoral groups had
proposed the replacement of the interim National Assembly. These barangays and the Sanggunian
assemblies are effective instrumentalities through which the desires of the people are articulated and
expressed. The Batasang Bayan (Legislative Council), composed of nineteen (19) cabinet members
and nine (9) officials with cabinet rank, and ninety-one (91) members of the Lupang
Tagapagpaganap (Executive Committee) of the Katipunan ng mga Sangguniang Bayani voted in
their special session to submit directly to the people in a plebiscite on October 16, 1976 the afore-
mentioned constitutional amendments. Through the Pambansang Katipunan by Barangay and the
Pampurok ng Katipunan Sangguniang Bayan, the people have expressed their desire not only to
abolish the interim National Assembly, but to replace it with a more representative body acceptable
to them in order to effect the desirable constitutional changes necessary to hasten the political
evolution of the government towards the parliamentary system, while at the same time ensuring that
the gains of the New Society, which are vital to the welfare of the people, shall be safeguarded. The
proposed constitutional amendments, therefore, represent a consensus of the people.
It would be futile to insist that the intemi National Assembly should have been convened to propose
those amendments pursuant to Section 15 of Article XVII of the Constitution. This Court, in the case
of Aquino v. Commission or Elections, took judicial notice of the fact that in the referendum of
11
January, 1973, a majority of those who approved the new Constitution conditioned their votes on the
demand that the interim National Assembly provided in the Transitory Provisions should not be and
the President "in deference to the sovereign will of the Filipino people" declared that the convening
of said body shall be suspended. As this Court observed in the Aquino case:
12
His decision to defer the initial convocation of the byiitttit National Assembly was
supported by the sovereign people at the by referendum in January, 1973 when the
people voted to postpone the convening of the interim National Assembly until after
at least seven (7) years from the approval of the new Constitution. And the reason
why the same question was eliminated from the questions to be submitted at the
referendum on February 27, 1975, is that even some members of the Congress and
delegates of the Constitutional Convention, who are already byjso ofitto members of
the intetini National Assembly are against such inclusion; because the issue was
already bycciled in the January, 1973 referendum by the sovereign people indicating
thereby their disenchantment with any Assembly as the former Congress failed to
institutionalize the reforms they demanded and wasted public funds through endless
debates without relieving the suffering of the general mass of citizenry (p. 302.) The
action of the President in suspending the convening of the interim National Assembly
has met the overwhelming approval of the people in subsequent referenda.
Since it was the action by the people that gave binding force and effect to the new Constitution, then
it must be accepted as a necessary consequence that their objection against the immediate
convening of the interim National Assembly must be respected as a positive mandate of the
sovereign.
In the Philippines, which is a unitary state, sovereignty "resides in the people and all government
authority emanates from them."13 The term "People" as sovereign is comprehensive in its context.
The people, as sovereign creator of all political reality, is not merely the enfranchised citizens but the
political unity of the people. 14 It connotes, therefore, a people which exists not only in the urgent
present but in the continuum of history. The assumption that the opinion of The People as voters can
be treated as the expression of the interests of the People as a historic community was, to the
distinguished American journalist and public philosopher, Walter Lipunan, unwarranted.
Because of the discrepancy between The People as Voters and the People as the
corporate nation, the voters have no title to consider themselves the proprietors of
the commonwealth and to claim that their interests are Identical to the public interest.
A prevailing plurality of the voters are not The People. The claim that they are is a
bogus title invoked to justify the usurpation of the executive power by representative
assemblies and the intimidation of public men by demagogue politicians. In fact
demagoguery can be described as the sleight of hand by which a faction of The
People as voters are invested with the authority of The People. That is why so many
crimes are committed in the People's name 15
In Gonzales v. Comelec, supra, the Court clearly emphasized that the power to propose
amendments or to amend the Constitution is part of the inherent power of the people as the
repository of sovereignty in a republican state. While Congress may propose amendments to the
Constitution, it acts pursuant to authority granted to it by the people through the Constitution. Both
the power to propose and the authority to approve, therefore, inhere in the people as the bearer of
the Constitution making power.
Absent an interim National Assembly upon whom the people, through the Constitution, have
delegated the authority to exercise constituent powers, it follows from necessity that either the
people should exercise that power themselves or through any other instrumentality they may
choose. For Law, like Nature, abhors a vacuum (natural vacuum abhorret).
The question then is whether the President has authority to act for the people in submitting such
proposals for ratification at the plebiscite of October 16. The political character of the question is,
therefore, particularly manifest, considering that ultimately it is the people who will decide whether
the President has such authority. It certainly involves a matter which is to be exercised by the people
in their sovereign capacity, hence, it is essentially political, not judicial.
While it is true that the constituent power is not to be confuse with legislative power in general
because the prerogative to propose amendments is not embraced within the context of ordinary
lawmaking, it must be noted that the proposals to be submitted for ratification in the forthcoming
referendum are, in the final analysis, actually not of the President but directly of the people
themselves, speaking through their authorized instrumentalities.
As the Chief Justice aptly stated in his concurring opinion in this case:
... The President merely formalized the said proposals in Presidential Decree No.
1033. It being conceded in all quarters that sovereignty resides in the people and it
having been demonstrated that their constituent power to amend the Constitution has
not been delegated by them to any instrumentality of the Government during the
present stage of the transition period of our political development, the conclusion is
ineluctable that their exertion of that residuary power cannot be vulnerable to any
constitutional challenge as beingultravires. Accordingly, without venturing to rule on
whether or not the President is vested with constituent power - as it does not appear
necessary to do so in the premises - the proposals here challenged, being acts of the
sovereign people no less, cannot be said to be afflicted with unconstitutionality. A
fortiori, the concomitant authority to call a plebiscite and to appropriate funds therefor
is even less vulnerable not only because the President, in exercising said authority,
has acted as a mere ofiffet byf of the people who made the proposals, but likewise
because the said authority is legislative in nature rather than constituent.
This is but a recognition that the People of the Philippines have the inherent, sole
and exclusive right of regulating their own government, and of altering or abolishing
their Constitution whenever it may be necessary to their safety or happiness. There
appears to be no justification, under the existing, circumstances, for a Court to create
by implication a limitation on - the sovereign power of the people. As has been
clearly explained in a previous case:
There is nothing in the nature of the submission which should cause the free
exercise of it to be obstructed, or that could render it dangerous to the stability of the
government; because the measure derives all its vital force from the action of the
people at the ballot box, and there can never be danger in submitting in an
established form to a free people, the proposition whether they will change their
fundamental law The means provided for the exercise of their Sovereign right of
changing their constitution should receive such a construction as not to trammel the
exercise of the right. Difficulties and embarrassments in its exercise are in derogation
of the right of free government, which is inherent in the people; and the best security
against tumult and revolution is the free and unobstructed privilege to the people of
the State to change their constitution in the mode prescribed by the instrument.
III
The paramount consideration that impelled Us to arrive at the foregoing opinion is the necessity of
ensuring popular control over the constituent power. "If the people are to control the constituent
power - the power to make and change the fundamental law of the State," observed Wheeler," "the
process of Constitutional change must not be based too heavily upon existing agencies of
government." Indeed, the basic premise of republicanism is that the ordinary citizen, the common
man. can be trusted to determine his political destiny. Therefore, it is time that the people should be
accorded the fullest opportunity to decide the laws that shall provide for their governance. For in the
ultimate analysis, the success of the national endeavor shall depend on the vision, discipline and I
by ininess of the moqqqtai will of every Filipino.
IN VIEW OF THE FOREGOING CONSIDERATIONS, We vote to dismiss the petitions.
Aquino, J., concur.
MUNOZ PALMA, J., dissenting:
I concur fully with the remarkably frank (so characteristic of him) dissenting opinion of my
distinguished colleague, Justice Claudio Teehankee. If I am writing this brief statement it is only to
unburden myself of some thoughts which trouble my mind and leave my conscience with no rest nor
peace.
Generally, one who dissents from a majority view of the Court takes a lonely and at times precarious
road, the burden byeing lightened only by the thought that in this grave task of administering justice,
when matters of conscience are at issue, one must be prepared to espouse and embrace a rightful
cause however unpopular it may be.
1. That sovereignty resides in the people and all government authority emanates from them is a
fundamental, basic principle of government which cannot be disputed, but when the people have
opted to govern themselves under the mantle of a written Constitution, each and every citizen, from
the highest to the lowliest, has the sacred duty to respect and obey the Character they have so
ordained.
By the Constitution which they establish, they not only tie up he hands of their official
agencies, but their own hands as well; and neither the officers of the state, nor the
whole people as an aggregate body, are at liberty to take action in opposition to this
fundamental law. (Cooley's Constitutional Limitations, 7th Ed. p. 56, Italics Our).
The afore-quoted passage from the eminent jurist and author Judge Cooley although based on
declarations of law of more than a century ago, lays down a principle which to my mind is one of the
enduring cornerstones of the Rule of Law. it is a principle with which I have been familiar as a
student of law under the tutelage of revered Professors, Dr. Vicente G. Sinco and Justice Jose P.
Laurel, and which I pray will prevail at all times to ensure the existence of a free, stable, and civilized
society.
The Filipino people,. wanting to ensure to themselves a democratic republican form of government,
have promulgated a Constitution whereby the power to govern themselves has been entrusted to
and distributed among three branches of government; they have also mandated in clear and
unmistakable terms the method by which provisions in their fundamental Charter may be amended
or revised. Having done so, the people are bound by these constitutional limitations. For while there
is no surrender or abdication of the people's ultimate authority to amend, revise, or adopt a new
Constitution, sound reason demands that they keep themselves within the procedural bounds of the
existing fundamental law. The right of the people to amend or change their Constitution if and when
the need arises is not to be denied, but we assert that absent a revolutionary state or condition in the
country the change must be accomplished through the ordinary, regular and legitimate processes
provided for in the Constitution.'
I cannot subscribe therefore to the view taken by the Solicitor General that the people, being
sovereign, have the authority to amend the Constitution even in a manner different from and contrary
to that expressly provided for in that instrument, and that the amendatory process is intended more
as a limitation of a power rather than a grant of power to a particular agency and it should not be
construed as limiting the ultimate sovereign will of the people to decide on amendments to the
Constitution .2 Such a view will seriously undermine the very existence of a constitutional
government and will permit anarchy and/or mob rule to set afoot and prevail. Was it the Greek
philosopher Plato who warned that the rule of the mob is a prelude to the rule of the tyrant?
I would use the following excerpt from Bernas, S.J. 'The 1973 Philippine Constitution, Notes and
Cases" as relevant to my point:
. . . the amendatory provisions are called a 'constitution of sovereighty' because they

define the constitutional meaning of 'sovereignty of the people.' Popular sovereignty,
as embodied in the Philippine Constitution, is not extreme popular sovereignty. As
one American writer put it:
A constitution like the American one serves as a basic check upon the popular will at
any given time. It is the distinctive function of such written document to classify
certain things as legal fundamentals; these fundamentals may not be changed
except by the slow and cumbersome process of amendment. The people themselves
have decided, in constitutional convention assembled, to limit themselves ana future
generations in the exercise of the sovereign power which they would otherwise
possess. And it is precisely such limitation that enables those subject to
governmental authority to appeal from the people drunk to the people sober in time
of excitement and hysteria. The Constitution, in the neat phrase of the Iowa court, is
the protector of the people against injury by the .people. *
Truly, what need is there for providing in the Constitution a process by which the fundamental law
may be amended if, after all, the people by themselves can set the same at naught even in times of
peace when civil authority reigns supreme? To go along with the respondents' theory in this regard is
to render written Constitutions useless or mere "ropes of sand allowing for a government of men
instead of one of laws. For it cannot be discounted that a situation may arise where the people are
heralded to action at a point of a gun or by the fiery eloquence of a demagogue, and where passion
overpowers reason, and mass action overthrows legal processes. History has recorded such
instances, and I can think of no better example than that of Jesus Christ of Judea who was followed
and loved by the people while curing the sick, making the lame walk and the blind see, but shortly
was condemned by the same people turned into fanatic rabble crying out "Crucify Him, Crucify Him"
upon being incited into action by chief priests and elders of Jerusalem. Yes, to quote once more
from Judge Cooley:
A good Constitution should be beyond the reason of temporary excitement and

popular caprice or passion. It is needed for stability and steadiness; it must yield to
the thought of the people; not to the whim of the people, or the thought evolved in
excitement or hot blood, but the sober second thought, which alone, if the
government is to be sale can be allowed efficiency. .... Changes in government are to
be feared unless the benefit is certain." (quoted in Ellingham v. Dye, 99 N.E. 1, 15,)3
Crawford v. Gilchrist 64 Fla. 41., 59., So. 963, Ann. Cas. 1914B, 916; State v. Hall, 159 N.W., 281;
Opinion of Marshall, J. in State ex. rel. Poster v. Marcus, 152 N.W., 419;
From Kochier v. Hill, Vol. 15, N.W., 609, we quote:
xxx xxx xxx
It has been said that changes in the constitution may be introduced in disregard of its
provisions; that if the majority of the people desire a change the majority must be
respected, no matter how the change may be effected; and that the change, if
revolution, is peaceful resolution. ...
We fear that the advocates of this new doctrine, in a zeal to accomplish an end which
the majority of the people desire, have looked at but one phase of the question, and
have not fully considered the terrible consequences which would almost certainly
follow a recognition of the doctrine for which they contend. It may be that the
incorporation of this amendment in the constitution, even if the constitution has to be
broken to accomplish it, would not of itself produce any serious results. But if it
should be done by sanctioning the doctrine contended for, a precedent would be set
which would plague the state for all future time. A Banquo's ghost would arise at our
incantation which would not down at our bidding.
xxx xxx xxx
We ought to ponder long before we adopt a doctrine so fraught with danger to

republican institutions. ...
x x x x x x x x x
Appellants' counsel cite and rely upon section 2, art. 1, of the constitution of the staff This section is
a portion of the bill of rights, and is as follows: 'All political power is inherent in the people.
Government is instituted for the protection, security, and benefit of of the people; and they have the
right at all times to alter or reform the same, whenever the public good may require.' Abstractly
considered, there can bye no doubt of the correctness of the propositions embraced in this suction.
These principles are older than constitutions and older than governments. The people did not derive
the rights referred to by on the constitution. and, in their nature, thee are such that the people cannot
surrender them ... .
2. Presidential Decrees Nos. 991 and 1033 which call for a national referendum-plebiscite on
October 16, 1976 for the purpose, among other things, of amending certain provisions of the 1973
Constitution are null and void as they contravene the express provisions on the amending process of
the 1973 Constitution laid down in Article XVI, Section 1 (1) and Article XVII, Section 15, more
particularly the latter which applies during the present transition period. The Opinion of Justice
Teehankee discusses in detail this particular matter.
I would just wish to stress the point that although at present there is no by tterint National Assembly
which may propose amendments to the Constitution, the existence of a so-called "vacuum" or
"hiatus" does not justify a transgression of the constitutional provisions on the manner of amending
the fundamental law. We cannot cure one infirmity - the existence of a "vacuum" caused by the non-
convening of the interim National Assembly - with another infirmity, that is, doing violence to the
Charter.
All great mutations shake and disorder a state. Good does not necessarily succeed
evil; another evil may succeed and a worse. (Am. Law Rev. 1889, p. 311., quoted in
Ellingham v. Dye, supra, p. 15)
Respondents contend that the calling of the referendum-plebiscite for the purpose indicated is a step
necessary to restore the state of normalcy in the country. To my mind, the only possible measure
that will lead our country and people to a condition of normalcy is the lifting or ending of the state of
martial law. If I am constrained to make this statement it is because so much stress was given during
the hearings of these cases on this particular point, leaving one with the impression that for
petitioners to contest the holding of the October 16 referendum-plebiscite is for them to assume a
position of blocking or installing the lifting of martial law, which I believe is unfair to the petitioners.
Frankly, I cannot see the connection between the two. My esteemed colleagues should pardon me
therefore if I had ventured to state that the simple solution to the simple solution to the present
dilemma is the lifting of martial law and the implementation of the constitutional provisions which will
usher in the parliamentary form of government ordained in the Constitution, which, as proclaimed in
Proclamation 1102, the people themselves have ratified.
If the people have indeed ratified the 1973 Constitution, then they are bound by their act and cannot
escape from the pretended unfavorable consequences thereof, the only y being to set in motion the
constitutional machinery by which the supposed desired amendments may properly be adopted and
submitted to the electorate for ratification. Constitutional processes are to be observed strictly, if we
have to maintain and preserve the system of government decreed under the fundamental Charter.
As said by Justice Enrique Fernando in Mutuc vs. Commission on Elections
... The concept of the Constitution as the fundamental law, setting forth the criterion
for the validity of any public act whether proceeding from the highest official or the
lowest funcitonary, is a postulate of our system of government. That is to manifest
fealty to the rule of law, with priority accorded to that which occupies the topmost
rung in the legal hierarchy. ... (36 SCRA, 228, 234, italics Ours)
A contrary view would lead to disastrous consequences for, in the words of Chief Justice Cox of the
Supreme Court of Indiana in Ellingham v. Dye, (supra, p. 7) liberty and popular sovereignty are not
meant to give rein to passion or thoughtless impulse but to allow the exercise of power by the people
for the general good by tistlercoitaitt restraints of law. . The true question before Us is is one of
3
power. Does the incumbent President of the Philippines possess constituent powers? Again, the
negative answer is explained in detail in the dissenting opinion of Justice Teehankee.
Respondents would justify the incumbent President's exercise of constituent powers on theory that
he is vested with legislative powers as held by this Court in Benigno S. Aquino, Jr., et al. vs.
Commission on Elections, et al., L-40004, January 31, 1975. 1 wish to stress that although in my
separate opinion in said case I agreed that Section 3 (2) of the Transitory provisions grants to the
incumbent President legislative powers, I qualified my statement as follows:
.... As to, whether, or not, this unlimited legislative qqqjwwel of the President
continues by exist even after the ratification of the Constitution is a matter which I am
not ready to concede at the moment, and which at any rate I believe is not essential
in resolving this Petition for reasons to be given later. Nonetheless, I hold the view
that the President is empowered to issue proclamations, orders, decrees, etc. to
carry out and implement the objectives of the proclamation of martial law be it under
the 1935 or 1973 Constitution, and for the orderly and efficient functioning of the
government, its instrumentalities, and agencies. This grant of legislative power is
necessary to fill up a vacuum during the transition period when the interim National
Assembly is not yet convened and functioning, for otherwise, there will be a
disruption of official functions resulting in a collapse of the government and of the
existing social order. (62 SCRA, pp. 275,347)
I believe it is not disputed that legislative power is essentially different from constituent power; one
does not encompass the other unless so specified in the Charter, and the 1973 Constitution contains
provisions in this regard. This is well-explained in Justice Teehankee's Opinion. The state of
necessity brought about by the current political situation, invoked by the respondents, provides no
source of power to propose amendments to the existing Constitution. Must we "bend the Constitution
to suit the law of the hour or cure its defects "by inflicting upon it a wound which nothing can heal
commit one assault after the other "until all respect for the fundamental law is lost and the powers of
government are just what those in authority please to call them?'" Or can we now ignore what this
5
Court, speaking through Justice Barredo, said in Tolentino vs. Comelec:
... let those who would put aside, invoking grounds at best controversial, any
mandate of the fundamental law purportedly by order to attain some laudable
objective bear in mind that someday somehow others with purportedly more laudable
objectives may take advantages of the precedent in continue the destruction of the
Constitution, making those who laid down the precedent of justifying deviations from
the requirements of the Constitution the victims of their own folly. 6
Respondents emphatically assert that the final word is the people's word and that ultimately it is in
the hands of the people where the final decision rests. (Comment, pp. 18, 19, 22) Granting in gratia
argument that it is so, let it be an expression of the will of the people a normal political situation and
not under the aegis of martial rule for as I have stated in Aquino vs. Comelec, et al., supra, a
referendum (and now a plebiscite) held under a regime of martial law can be of no far reaching
significance because it is being accomplished under an atmosphere or climate of fear as it entails a
wide area of curtailment and infringement of individual rights, such as, human liberty, property rights,
rights of free expression and assembly, protection against unreasonable searches and seizures,
liberty of abode and of travel, and so on.
4. The other issues such as the sufficiency and proper submission of the proposed amendments for
ratification by the people are expounded in Justice Teehankee's Opinion. I wish to stress indeed that
it is incorrect to state that the thrust of the proposed amendments is the abolition of the interim
National Assembly and its substitution with an "interim Batasang Pambansa their in by in Proposed
amendment No. 6 will permit or allow the concentration of power in one man - the Executive - Prime
Minister or President or whatever you may call him - for it gives him expressly (which the 1973
Constitution or the 1935 Constitution does not) legislative powers even during the existence of the
appropriate legislative body, dependent solely on the executive's judgment on the existence of a
grave emergency or a threat or imminence thereof **
I must be forgiven if, not concerned with the present, I am haunted however by what can happen in
the future, when we shall all be gone. Verily, this is a matter of grave concern which necessitates
full, mature, sober deliberation of the people but which they can do only in a climate of freedom
without the restraints of martial law. I close, remembering what Claro M. Recto, President of the
Constitutional Convention which drafted the 1935 Philippine Constitution, once said: .
... Nor is it enough that our people possess a written constitution in order that their
government may be called constitutional. To be deserving of this name, and to drive
away all lanirer of anarchy as well as of dictatorship whether by one man or a few, it
is necessary that both the government authorities and the people faithfully observe
and obey the constitution, and that the citizens be duly conversant not only with their
rights but also with their duties...
7
Jose P. Laurel who served his people as Justice of the Supreme Court of this country gave this
reminder; the grave and perilous task of halting transgressions and vindicating cherished rights is
reposed mainly oil the Judiciary and therefore let the Courts be the vestal keepers of the purity and
sanctity of our Constitution.' On the basis of the foregoing, I vote to declare Presidential Decrees
Nos. 991 and 1033 unconstitutional and enjoin the implementation thereof.
CONCEPCION JR., J., concurring:
I vote for the dismissal of the petitions.
1. The issue is not political and therefore justiciable.
The term "political question", as this Court has previously defined, refers to those questions which,
under the constitution, are to be decided by the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated to the Legislature or executive branch of the
Government. It is concerned with the issues dependent upon the wisdom, not legality, of a particular
measure. 1
Here, the question raised is whether the President has authority to propose to the people
amendments to the Constitution which the petitioners claim is vested solely upon the National
Assembly, the constitutional convention called for the purpose, and the by the National Assembly.
This is not a political question since it involves the determination of conflicting claims of authority
under the constitution.
In Gonzales vs. Comelec, 2 this Court, resolving the issue of whether or not a Resolution of
Congress, acting as a constituent assembly, violates the Constitution, ruled that the question is
essentially justiciable, not political, and hence, subject to judicial review.
In Tolentino vs. Comelec 3 this Court finally dispelled all doubts as to its position regarding its
jurisdiction vis-a-vis the constitutionality of the acts of Congress, acting as a constituent assembly,
as well as those of a constitutional convention called for the purpose of proposing amendments to
the constitution. Insofar as observance of constitutional provisions on the procedure for amending
the constitution is concerned, the issue is cognizable by this Court under its powers of judicial
review.
2. As to the merits, a brief backdrop of the decision to hold the referendum-plebiscite will help
resolve the issue. It is to be noted that under the 1973 Constitution, an interim National Assembly
was organized to bring about an orderly transition from the presidential to the parliamentary system
of government.' The people, however, probably distrustful of the members who are old time
politicians and constitutional delegates who had voted themselves by to membership in the interim
National Assembly, voted against the convening of the said interim assembly for at least seven
years thus creating a political stalemate and a consequent delay' in the transformation of the
government into the parliamentary system. To resolve the impasse, the President, at the instance of
the barangays and sanggunian assemblies through their duly authorized instrumentalities who
recommended a study of the feasibility of abolishing and replacing the by interim National Assembly
with another interim body truly representative of the people in a reformed society, issued Presidential
Decree No. 991, on September 2, 1976, calling for a national referendum on October -16, 1976 to
ascertain the wishes of the people as to the ways and means that may be available to attain the
objective; providing for a period of educational and information campaign on the issues; and
establishing the mechanics and manner for holding thereof. But the people, through their barangays,
addressed resolutions to the Batasang Bayan, expressing their desire to have the constitution
amended, thus prompting the President to issue Presidential Decree No. 1033, stating the questions
to @ submitted to the people in the referendum-plebiscite on October 16,1976.
As will be seen, the authority to amend the Constitution was removed from the interim National
Assembly and transferred to the seat of sovereignty itself. Since the Constitution emanates from the
people who are the repository of all political powers, their authority to amend the Constitution
through the means they have adopted, aside from those mentioned in the Constitution, cannot be
gainsaid. Not much reflection is also needed to show that the President did not exercise his martial
law legislative powers when he proposed the amendments to the Constitution. He was merely acting
as an instrument to carry out the will of the people. Neither could he convene the interim National
Assembly, as suggested by the petitioners, without doing violence to the people's will expressed
overwhelmingly when they decided against convening the interim assembly for at least seven years.
3. The period granted to the people to consider the proposed amendments is reasonably long and
enough to afford intelligent discussion of the issues to be voted upon. PD 991 has required the
barangays to hold assemblies or meetings to discuss and debate on the referendum questions,
which in fact they have been doing. Considering that the proposed amendments came from the
representatives of the people themselves, the people must have already formed a decision by this
time on what stand to take on the proposed amendments come the day for the plebiscite. Besides,
the Constitution itself requires the holding of a plebiscite for the ratification of an amendment not
later than three (3) months after the approval of such amendment or revision but without setting a
definite period within which such plebiscite shall not be held. From this I can only conclude that the
framers of the Constitution desired that only a short period shall elapse from the approval of such
amendment or resolution to its ratification by the people.

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G.R. No.

160261 November 10, 2003

ERNESTO B. FRANCISCO, JR., petitioner,

G.R. No. 160262 November 10, 2003

SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND HENEDINA RAZON-

G.R. No. 160263 November 10, 2003

ARTURO M. DE CASTRO AND SOLEDAD M. CAGAMPANG, petitioners,

G.R. No. 160277 November 10, 2003

G.R. No. 160292 November 10, 2003

G.R. No. 160295 November 10, 2003

SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M. GONZALES, petitioners,

G.R. No. 160310 November 10, 2003

LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR, MELVIN MATIBAG, RAMON

G.R. No. 160318 November 10, 2003

PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners,

G.R. No. 160342 November 10, 2003

G.R. No. 160343 November 10, 2003

INTEGRATED BAR OF THE PHILIPPINES, petitioner,

G.R. No. 160360 November 10, 2003

G.R. No. 160365 November 10, 2003

G.R. No. 160370 November 10, 2003

FR. RANHILIO CALLANGAN AQUINO, petitioner,

G.R. No. 160392 November 10, 2003

VENICIO S. FLORES AND HECTOR L. HOFILEÑA, petitioners,

G.R. No. 160397 November 10, 2003

IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST CHIEF JUSTICE HILARIO G.

G.R. No. 160403 November 10, 2003

PHILIPPINE BAR ASSOCIATION, petitioner,

G.R. No. 160405 November 10, 2003

DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY CHAPTER, MANUEL M.

Article XI of our present 1987 Constitution provides:

SECTION 3. (1) The House of Representatives shall have the exclusive power to initiate all

(5) No impeachment proceedings shall be initiated against the same official more than once

11TH CONGRESS RULES 12TH CONGRESS NEW RULES

INITIATING IMPEACHMENT BAR AGAINST INITIATION OF

In cases where a verified

RULE V Section 17. Bar Against

On July 22, 2002, the House of Representatives adopted a Resolution,2 sponsored by

On June 2, 2003, former President Joseph E. Estrada filed an impeachment complaint4 (first

On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino,

In discussing these issues, the following may be taken up:

a) locus standi of petitioners;

d) House's "exclusive" power to initiate all cases of impeachment;

e) Senate's "sole" power to try and decide all cases of impeachment;

f) constitutionality of the House Rules on Impeachment vis-a-vis Section 3(5) of

g) judicial restraint (Italics in the original)

The Constitution is a definition of the powers of government. Who is to determine the

As indicated in Angara v. Electoral Commission,31 judicial review is indeed an integral component of

The separation of powers is a fundamental principle in our system of government. It

I suppose nobody can question it.

Fellow Members of this Commission, this is actually a product of our experience during

A foolproof yardstick in constitutional construction is the intention underlying the provision

x x x [T]he members of the Constitutional Convention could not have dedicated a

It is a well-established rule in constitutional construction that no one provision of the

While it is permissible in this jurisdiction to consult the debates and proceedings of the

It is in the context of the foregoing backdrop of constitutional refinement and jurisprudential

Briefly stated, it is the position of respondents Speaker De Venecia et. al. that impeachment is a

The cases of Romulo v. Yniguez58 and Alejandrino v. Quezon,59 cited by respondents in support of