Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-32432 September 11, 1970

MANUEL B. IMBONG, petitioner,
vs.
JAIME FERRER, as Chairman of the Comelec, LINO M. PATAJO and CESAR MILAFLOR, as
members thereof, respondents.

G.R. No. L-32443 September 11, 1970

IN THE MATTER OF A PETITION FOR DECLARATORY JUDGMENT REGARDING THE

VALIDITY OF R.A. No. 6132, OTHERWISE KNOWN AS THE CONSTITUTIONAL CONVENTION
ACT OF 1970. RAUL M. GONZALES, petitioner,
vs.
COMELEC, respondent.

Manuel B. Imbong in his own behalf.

Raul M. Gonzales in his own behalf.

Office of the Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General Ricardo L.
Pronove, Jr., and Solicitors Raul I. Goco, Bernardo P. Pardo, Rosalio A. de Leon, Vicente A. Torres
and Guillermo C. Nakar for respondents.

Lorenzo Tañada, Arturo Tolentino, Jovito Salonga and Emmanuel Pelaez as amici curiae.

MAKASIAR, J.:

These two separate but related petitions for declaratory relief were filed pursuant to Sec. 19 of R.A.
No. 6132 by petitioners Manuel B. Imbong and Raul M. Gonzales, both members of the Bar,
taxpayers and interested in running as candidates for delegates to the Constitutional Convention.
Both impugn the constitutionality of R.A. No. 6132, claiming during the oral argument that it
prejudices their rights as such candidates. After the Solicitor General had filed answers in behalf the
respondents, hearings were held at which the petitioners and the amici curiae, namely Senator
Lorenzo Tañada, Senator Arturo Tolentino, Senator Jovito Salonga, and Senator Emmanuel Pelaez
argued orally.

It will be recalled that on March 16, 1967, Congress, acting as a Constituent Assembly pursuant to
Art. XV of the Constitution, passed Resolution No. 2 which among others called for a Constitutional
Convention to propose constitutional amendments to be composed of two delegates from each
representative district who shall have the same qualifications as those of Congressmen, to be
elected on the second Tuesday of November, 1970 in accordance with the Revised Election Code.
After the adoption of said Res. No. 2 in 1967 but before the November elections of that year,
Congress, acting as a legislative body, enacted Republic Act No. 4914 implementing the aforesaid
Resolution No. 2 and practically restating in toto the provisions of said Resolution No. 2.

On June 17, 1969, Congress, also acting as a Constituent Assembly, passed Resolution No. 4
amending the aforesaid Resolution No. 2 of March 16, 1967 by providing that the convention "shall
be composed of 320 delegates apportioned among the existing representative districts according to
the number of their respective inhabitants: Provided, that a representative district shall be entitled to
at least two delegates, who shall have the same qualifications as those required of members of the
House of Representatives,"  "and that any other details relating to the specific apportionment of
1

delegates, election of delegates to, and the holding of, the Constitutional Convention shall be
embodied in an implementing legislation: Provided, that it shall not be inconsistent with the
provisions of this Resolution." 2

On August 24, 1970, Congress, acting as a legislative body, enacted Republic Act No. 6132,
implementing Resolutions Nos. 2 and 4, and expressly repealing R.A. No.
4914.3

Petitioner Raul M. Gonzales assails the validity of the entire law as well as the particular provisions
embodied in Sections 2, 4, 5, and par. 1 of 8(a). Petitioner Manuel B. Imbong impugns the
constitutionality of only par. I of Sec. 8(a) of said R.A. No. 6132 practically on the same grounds
advanced by petitioner Gonzales.

The validity of Sec. 4 of R.A. No. 6132, which considers, all public officers and employees, whether
elective or appointive, including members of the Armed Forces of the Philippines, as well as officers
and employees of corporations or enterprises of the government, as resigned from the date of the
filing of their certificates of candidacy, was recently sustained by this Court, on the grounds, inter
alia, that the same is merely an application of and in consonance with the prohibition in Sec. 2 of Art.
XII of the Constitution and that it does not constitute a denial of due process or of the equal
protection of the law. Likewise, the constitutionality of paragraph 2 of Sec. 8(a) of R.A. No. 6132 was
upheld. 4

II

Without first considering the validity of its specific provisions, we sustain the constitutionality of the
enactment of R.A. No. 6132 by Congress acting as a legislative body in the exercise of its broad law-
making authority, and not as a Constituent Assembly, because —

1. Congress, when acting as a Constituent Assembly pursuant to Art. XV of the

Constitution, has full and plenary authority to propose Constitutional amendments or
to call a convention for the purpose, by a three-fourths vote of each House in joint
session assembled but voting separately. Resolutions Nos. 2 and 4 calling for a
constitutional convention were passed by the required three-fourths vote.

2. The grant to Congress as a Constituent Assembly of such plenary authority to call

a constitutional convention includes, by virtue of the doctrine of necessary
implication, all other powers essential to the effective exercise of the principal power
granted, such as the power to fix the qualifications, number, apportionment, and
compensation of the delegates as well as appropriation of funds to meet the
expenses for the election of delegates and for the operation of the Constitutional
 Convention itself, as well as all other implementing details indispensable to a fruitful
convention. Resolutions Nos. 2 and 4 already embody the above-mentioned details,
except the appropriation of funds.

3. While the authority to call a constitutional convention is vested by the present

Constitution solely and exclusively in Congress acting as a Constituent Assembly,
the power to enact the implementing details, which are now contained in Resolutions
Nos. 2 and 4 as well as in R.A. No. 6132, does not exclusively pertain to Congress
acting as a Constituent Assembly. Such implementing details are matters within the
competence of Congress in the exercise of its comprehensive legislative power,
which power encompasses all matters not expressly or by necessary implication
withdrawn or removed by the Constitution from the ambit of legislative action. And as
lone as such statutory details do not clash with any specific provision of the
constitution, they are valid.

4. Consequently, when Congress, acting as a Constituent Assembly, omits to provide

for such implementing details after calling a constitutional convention, Congress,
acting as a legislative body, can enact the necessary implementing legislation to fill in
the gaps, which authority is expressly recognized in Sec. 8 of Res No. 2 as amended
by Res. No. 4.

5. The fact that a bill providing for such implementing details may be vetoed by the
President is no argument against conceding such power in Congress as a legislative
body nor present any difficulty; for it is not irremediable as Congress can override the
Presidential veto or Congress can reconvene as a Constituent Assembly and adopt a
resolution prescribing the required implementing details.

III

Petitioner Raul M. Gonzales asserts that Sec. 2 on the apportionment of delegates is not in
accordance with proportional representation and therefore violates the Constitution and the intent of
the law itself, without pinpointing any specific provision of the Constitution with which it collides.

Unlike in the apportionment of representative districts, the Constitution does not expressly or
impliedly require such apportionment of delegates to the convention on the basis of population in
each congressional district. Congress, sitting as a Constituent Assembly, may constitutionally
allocate one delegate for, each congressional district or for each province, for reasons of economy
and to avoid having an unwieldy convention. If the framers of the present Constitution wanted the
apportionment of delegates to the convention to be based on the number of inhabitants in each
representative district, they would have done so in so many words as they did in relation to the
apportionment of the representative districts.5

The apportionment provided for in Sec. 2 of R.A. No. 6132 cannot possibly conflict with its own intent
expressed therein; for it merely obeyed and implemented the intent of Congress acting as a
Constituent Assembly expressed in Sec. 1 of Res. No. 4, which provides that the 320 delegates
should be apportioned among the existing representative districts according to the number of their
respective inhabitants, but fixing a minimum of at least two delegates for a representative district.
The presumption is that the factual predicate, the latest available official population census, for such
apportionment was presented to Congress, which, accordingly employed a formula for the
necessary computation to effect the desired proportional representation.
The records of the proceedings on Senate Bill No. 77 sponsored by Senator Pelaez which is now
R.A. No. 6132, submitted to this Tribunal by the amici curiae, show that it based its apportionment of
the delegates on the 1970 official preliminary population census taken by the Bureau of Census and
Statistics from May 6 to June 30, 1976; and that Congress adopted the formula to effect a
reasonable apportionment of delegates. The Director of the Bureau of Census and Statistics himself,
in a letter to Senator Pelaez dated July 30, 1970, stated that "on the basis of the preliminary count of
the population, we have computed the distribution of delegates to the Constitutional Convention
based on Senate Bill 77 (p. 2 lines 5 to 32 and p. 3 line 12) which is a fair and an equitable method
of distributing the delegates pursuant to the provisions of the joint Resolution of both Houses No. 2,
as amended. Upon your request at the session of the Senate-House Conference Committee
meeting last night, we are submitting herewith the results of the computation on the basis of the
above-stated method."

Even if such latest census were a preliminary census, the same could still be a valid basis for such
apportionment.  The fact that the lone and small congressional district of Batanes, may be over-
6

represented, because it is allotted two delegates by R.A. No. 6132 despite the fact that it has a
population very much less than several other congressional districts, each of which is also allotted
only two delegates, and therefore under-represented, vis-a-vis Batanes alone, does not vitiate the
apportionment as not effecting proportional representation. Absolute proportional apportionment is
not required and is not possible when based on the number of inhabitants, for the population census
cannot be accurate nor complete, dependent as it is on the diligence of the census takers,
aggravated by the constant movement of population, as well as daily death and birth. It is enough
that the basis employed is reasonable and the resulting apportionment is substantially proportional.
Resolution No. 4 fixed a minimum of two delegates for a congressional district.

While there may be other formulas for a reasonable apportionment considering the evidence
submitted to Congress by the Bureau of Census and Statistics, we are not prepared to rule that the
computation formula adopted by, Congress for proportional representation as, directed in Res. No. 4
is unreasonable and that the apportionment provided in R.A. No. 6132 does not constitute a
substantially proportional representation.

In the Macias case, relied on by petitioner Gonzales, the apportionment law, which was nullified as
unconstitutional, granted more representatives to a province with less population than the provinces
with more inhabitants. Such is not the case here, where under Sec. 2 of R.A. No. 6132 Batanes is
allotted only two delegates, which number is equal to the number of delegates accorded other
provinces with more population. The present petitions therefore do not present facts which fit the
mould of the doctrine in the case of Macias et al. vs. Comelec, supra.

The impossibility of absolute proportional representation is recognized by the Constitution itself when
it directs that the apportionment of congressional districts among the various provinces shall be "as
nearly as may be according to their respective inhabitants, but each province shall have at least one
member" (Sec. 5, Art. VI, Phil. Const., emphasis supplied). The employment of the phrase "as nearly
as may be according to their respective inhabitants" emphasizes the fact that the human mind can
only approximate a reasonable apportionment but cannot effect an absolutely proportional
representation with mathematical precision or exactitude.

IV

Sec. 5 of R.A. 6132 is attacked on the ground that it is an undue deprivation of liberty without due
process of law and denies the equal protection of the laws. Said Sec. 5 disqualifies any elected
delegate from running "for any public office in any election" or from assuming "any appointive office
or position in any branch of the government government until after the final adjournment of the
Constitutional Convention."

That the citizen does not have any inherent nor natural right to a public office, is axiomatic under our
constitutional system. The State through its Constitution or legislative body, can create an office and
define the qualifications and disqualifications therefor as well as impose inhibitions on a public
officer. Consequently, only those with qualifications and who do not fall under any constitutional or
statutory inhibition can be validly elected or appointed to a public office. The obvious reason for the
questioned inhibition, is to immunize the delegates from the perverting influence of self-interest,
party interest or vested interest and to insure that he dedicates all his time to performing solely in the
interest of the nation his high and well nigh sacred function of formulating the supreme law of the
land, which may endure for generations and which cannot easily be changed like an ordinary statute.
With the disqualification embodied in Sec. 5, the delegate will not utilize his position as a bargaining
leverage for concessions in the form of an elective or appointive office as long as the convention has
not finally adjourned. The appointing authority may, by his appointing power, entice votes for his own
proposals. Not love for self, but love for country must always motivate his actuations as delegate;
otherwise the several provisions of the new Constitution may only satisfy individual or special
interests, subversive of the welfare of the general citizenry. It should be stressed that the
disqualification is not permanent but only temporary only to continue until the final adjournment of
the convention which may not extend beyond one year. The convention that framed the present
Constitution finished its task in approximately seven months — from July 30, 1934 to February 8,
1935.

As admitted by petitioner Gonzales, this inhibition finds analogy in the constitutional provision
prohibiting a member of Congress, during the time for which he was elected, from being appointed to
any civil office which may have been created or the emolument whereof shall have been increased
while he was a member of the Congress. (Sec. 16, Art. VI, Phil. Constitution.)

As observed by the Solicitor General in his Answer, the overriding objective of the challenged
disqualification, temporary in nature, is to compel the elected delegates to serve in full their term as
such and to devote all their time to the convention, pursuant to their representation and commitment
to the people; otherwise, his seat in the convention will be vacant and his constituents will be
deprived of a voice in the convention. The inhibition is likewise "designed to prevent popular political
figures from controlling elections or positions. Also it is a brake on the appointing power, to curtail
the latter's desire to 'raid' the convention of "talents" or attempt to control the convention." (p. 10,
Answer in L-32443.)

Thus the challenged disqualification prescribed in Sec. 5 of R.A. No. 6132 is a valid limitation on the
right to public office pursuant to state police power as it is reasonable and not arbitrary.

The discrimination under Sec. 5 against delegates to the Constitutional Convention is likewise
constitutional; for it is based on a substantial distinction which makes for real differences, is germane
to the purposes of the law, and applies to all members of the same class.  The function of a delegate
7

is more far-reaching and its effect more enduring than that of any ordinary legislator or any other
public officer. A delegate shapes the fundamental law of the land which delineates the essential
nature of the government, its basic organization and powers, defines the liberties of the people, and
controls all other laws. Unlike ordinary statutes, constitutional amendments cannot be changed in
one or two years. No other public officer possesses such a power, not even the members of
Congress unless they themselves, propose constitutional amendments when acting as a Constituent
Assembly pursuant to Art. XV of the Constitution. The classification, therefore, is neither whimsical
nor repugnant to the sense of justice of the community.
As heretofore intimated, the inhibition is relevant to the object of the law, which is to insure that the
proposed amendments are meaningful to the masses of our people and not designed for the
enhancement of selfishness, greed, corruption, or injustice.

Lastly, the disqualification applies to all the delegates to the convention who will be elected on the
second Tuesday of November, 1970.

Paragraph 1, Sec. 8(a) of R.A. No. 6132 is impugned by both petitioners as violative of the
constitutional guarantees of due process, equal protection of the laws, freedom of expressions,
freedom of assembly and freedom of association.

This Court ruled last year that the guarantees of due process, equal protection of the laws, peaceful
assembly, free expression, and the right of association are neither absolute nor illimitable rights; they
are always subject to the pervasive and dormant police power of the State and may be lawfully
abridged to serve appropriate and important public interests. 8

In said Gonzalez vs. Comelec case the Court applied the clear and present danger test to determine
whether a statute which trenches upon the aforesaid Constitutional guarantees, is a legitimate
exercise of police power. 9

Paragraph 1 of Sec. 8(a), R.A. No. 6132 prohibits:

1. any candidate for delegate to the convention

(a) from representing, or

(b) allowing himself to be represented as being a candidate of any

political party or any other organization; and

2. any political party, political group, political committee, civic, religious, professional
or other organizations or organized group of whatever nature from

(a) intervening in the nomination of any such candidate or in the filing

of his certificate, or

(b) from giving aid or support directly or indirectly, material or

otherwise, favorable to or against his campaign for election.

The ban against all political parties or organized groups of whatever nature contained in par. 1 of
Sec. 8(a), is confined to party or organization support or assistance, whether material, moral,
emotional or otherwise. The very Sec. 8(a) in its provisos permits the candidate to utilize in his
campaign the help of the members of his family within the fourth civil degree of consanguinity or
affinity, and a campaign staff composed of not more than one for every ten precincts in his district. It
allows the full exercise of his freedom of expression and his right to peaceful assembly, because he
cannot be denied any permit to hold a public meeting on the pretext that the provision of said section
may or will be violated. The right of a member of any political party or association to support him or
oppose his opponent is preserved as long as such member acts individually. The very party or
organization to which he may belong or which may be in sympathy with his cause or program of
reforms, is guaranteed the right to disseminate information about, or to arouse public interest in, or
to advocate for constitutional reforms, programs, policies or constitutional proposals for
amendments.

It is therefore patent that the restriction contained in Sec. 8(a) is so narrow that the basic
constitutional rights themselves remain substantially intact and inviolate. And it is therefore a valid
infringement of the aforesaid constitutional guarantees invoked by petitioners.

In the aforesaid case of Gonzales vs. Comelec, supra, this Court unanimously sustained the validity
of the limitation on the period for nomination of candidates in Sec. 50-A of R.A. No. 4880, thus:

The prohibition of too early nomination of candidates presents a question that is not
too formidable in character. According to the act: "It shall be unlawful for any political
party, political committee, or political group to nominate candidates for any elective
public office voted for at large earlier than one hundred and fifty days immediately
preceding an election, and for any other elective public office earlier than ninety days
immediately preceding an election.

The right of association is affected. Political parties have less freedom as to the time
during which they may nominate candidates; the curtailment is not such, however, as
to render meaningless such a basic right. Their scope of legitimate activities, save
this one, is not unduly narrowed. Neither is there infringement of their freedom to
assemble. They can do so, but not for such a purpose. We sustain its validity. We do
so unanimously.  10

In said Gonzales vs. Comelec case, this Court likewise held that the period for the conduct of an
election campaign or partisan political activity may be limited without offending the aforementioned
constitutional guarantees as the same is designed also to prevent a "clear and present danger of a
substantive evil, the debasement of the electoral process."  11

Even if the partisan activity consists of (a) forming organizations, associations, clubs, committees or
other group of persons for the purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against a party or candidate; (b) holding political conventions, caucuses,
conferences, meetings, rallies, parades or other similar assemblies for the purpose of soliciting votes
and/or undertaking any campaign or propaganda for or against any candidate or party; and (c)
giving, soliciting, or receiving contributions for election campaign either directly or indirectly, (Sec.
50-B, pars. (a), (b), and (c), R.A. 4880), the abridgment was still affirmed as constitutional by six
members of this Court, which could not "ignore ... the legislative declaration that its enactment was
in response to a serious substantive evil affecting the electoral process, not merely in danger of
happening, but actually in existence, and likely to continue unless curbed or remedied. To assert
otherwise would be to close one's eyes to the reality of the situation."  ;
12

Likewise, because four members dissented, this Court in said case of Gonzales vs. Comelec, supra,
failed to muster the required eight votes to declare as unconstitutional the limitation on the period for
(a) making speeches, announcements or commentaries or holding interviews for or against the
election of any party or candidate for public office; (b) publishing or distributing campaign literature or
materials; and (e) directly or indirectly soliciting votes and/or undertaking any campaign or
propaganda for or against any candidate or party specified in Sec. 50-B, pars. (c), (d) & (e) of R.A.
4880. 13

The debasement of the electoral process as a substantive evil exists today and is one of the major
compelling interests that moved Congress into prescribing the total ban contained in par. 1 of Sec.
8(a) of R.A. No. 6132, to justify such ban. In the said Gonzales vs. Comelec case, this Court gave
"due recognition to the legislative concern to cleanse, and if possible, render spotless, the electoral
process,"   impressed as it was by the explanation made by the author of R.A. No. 4880, Sen.
14

Lorenzo Tañada, who appeared as amicus curiae, "that such provisions were deemed by the
legislative body to be part and parcel of the necessary and appropriate response not merely to a
clear and present danger but to the actual existence of a grave and substantive evil of excessive
partisanship, dishonesty and corruption as well as violence that of late has marred election
campaigns and partisan political activities in this country. He did invite our attention likewise to the
well-settled doctrine that in the choice of remedies for an admitted malady requiring governmental
action, on the legislature primarily rests the responsibility. Nor should the cure prescribed by it,
unless clearly repugnant to fundamental rights, be ignored or disregarded."  15

But aside from the clear and imminent danger of the debasement of the electoral process, as
conceded by Senator Pelaez, the basic motivation, according to Senate Majority Floor Leader
Senator Arturo Tolentino, the sponsor of the Puyat-Tolentino amendment embodied in par. 1 of Sec.
8(a) of R.A. No. 6132, is to assure the candidates equal protection of the laws by according them
equality of chances.   The primary purpose of the prohibition then is also to avert the clear and
16

present danger of another substantive evil, the denial of the equal protection of the laws. The
candidates must depend on their individual merits and not on the support of political parties or
organizations. Senator Tolentino and Senator Salonga emphasized that under this provision, the
poor candidate has an even chance as against the rich candidate. We are not prepared to disagree
with them, because such a conclusion, predicated as it is on empirical logic, finds support in our
recent political history and experience. Both Senators stressed that the independent candidate who
wins in the election against a candidate of the major political parties, is a rare phenomenon in this
country and the victory of an independent candidate mainly rests on his ability to match the
resources, financial and otherwise, of the political parties or organizations supporting his opponent.
This position is further strengthened by the principle that the guarantee of social justice under Sec.
V, Art. II of the Constitution, includes the guarantee of equal opportunity, equality of political rights,
and equality before the law enunciated by Mr. Justice Tuazon in the case Guido vs. Rural Progress
Administration. 17

While it may be true that a party's support of a candidate is not wrong per se it is equally true that
Congress in the exercise of its broad law-making authority can declare certain acts as mala prohibita
when justified by the exigencies of the times. One such act is the party or organization support
proscribed in Sec. 8(a),which ban is a valid limitation on the freedom of association as well as
expression, for the reasons aforestated.

Senator Tolentino emphasized that "equality of chances may be better attained by banning all
organization support."  18

The questioned par. 1 of Sec. 8 (a) likewise can easily pass the balancing-of-interest test.  19

In the apt words of the Solicitor General:

It is to be noted that right now the nation is on the threshold of rewriting its
Constitution in a hopeful endeavor to find a solution to the grave economic, social
and political problems besetting the country. Instead of directly proposing the
amendments Congress has chosen to call a Constitutional Convention which shall
have the task of fashioning a document that shall embody the aspirations and ideals
of the people. Because what is to be amended is the fundamental law of the land, it
is indispensable that the Constitutional Convention be composed of delegates truly
representative of the people's will. Public welfare demands that the delegates should
speak for the entire nation, and their voices be not those of a particular segment of
 the citizenry, or of a particular class or group of people, be they religious, political,
civic or professional in character. Senator Pelaez, Chairman of the Senate
Committee on Codes and Constitutional Amendments, eloquently stated that "the
function of a constitution is not to represent anyone in interest or set of interests, not
to favor one group at the expense or disadvantage of the candidates — but to
encompass all the interests that exist within our society and to blend them into one
harmonious and balanced whole. For the constitutional system means, not the
predominance of interests, but the harmonious balancing thereof."

So that the purpose for calling the Constitutional Convention will not be deflated or
frustrated, it is necessary that the delegatee thereto be independent, beholden to no
one but to God, country and conscience.

xxx xxx xxx

The evil therefore, which the law seeks to prevent lies in the election of delegates
who, because they have been chosen with the aid and resources of organizations,
cannot be expected to be sufficiently representative of the people. Such delegates
could very well be the spokesmen of narrow political, religious or economic interest
and not of the great majority of the people.  20

We likewise concur with the Solicitor General that the equal protection of the laws is not unduly
subverted in par. I of Sec. 8(a); because it does not create any hostile discrimination against any
party or group nor does it confer undue favor or privilege on an individual as heretofore stated. The
discrimination applies to all organizations, whether political parties or social, civic, religious, or
professional associations. The ban is germane to the objectives of the law, which are to avert the
debasement of the electoral process, and to attain real equality of chances among individual
candidates and thereby make real the guarantee of equal protection of the laws.

The political parties and the other organized groups have built-in advantages because of their
machinery and other facilities, which, the individual candidate who is without any organization
support, does not have. The fact that the other civic of religious organizations cannot have a
campaign machinery as efficient as that of a political party, does not vary the situation; because it
still has that much built-in advantage as against the individual candidate without similar support.
Moreover, these civic religious and professional organization may band together to support common
candidates, who advocates the reforms that these organizations champion and believe are
imperative. This is admitted by petitioner Gonzales thru the letter of Senator Ganzon dated August
17, 1970 attached to his petition as Annex "D", wherein the Senator stated that his own "Timawa"
group had agreed with the Liberal Party in Iloilo to support petitioner Gonzales and two others as
their candidates for the convention, which organized support is nullified by the questioned ban,
Senator Ganzon stressed that "without the group moving and working in joint collective effort" they
cannot "exercise effective control and supervision over our
leaders — the Women's League, the area commanders, etc."; but with their joining with the LP's they
"could have presented a solid front with very bright chances of capturing all seats."

The civic associations other than political parties cannot with reason insist that they should be
exempted from the ban; because then by such exemption they would be free to utilize the facilities of
the campaign machineries which they are denying to the political parties. Whenever all organization
engages in a political activity, as in this campaign for election of delegates to the Constitutional
Convention, to that extent it partakes of the nature of a political organization. This, despite the fact
that the Constitution and by laws of such civic, religious, or professional associations usually prohibit
the association from engaging in partisan political activity or supporting any candidate for an elective
office. Hence, they must likewise respect the ban.

The freedom of association also implies the liberty not to associate or join with others or join any
existing organization. A person may run independently on his own merits without need of catering to
a political party or any other association for support. And he, as much as the candidate whose
candidacy does not evoke sympathy from any political party or organized group, must be afforded
equal chances. As emphasized by Senators Tolentino and Salonga, this ban is to assure equal
chances to a candidate with talent and imbued with patriotism as well as nobility of purpose, so that
the country can utilize their services if elected.

Impressed as We are by the eloquent and masterly exposition of Senator Tañada for the invalidation
of par. 1 of Sec. 8(a) of R.A. No. 6132, demonstrating once again his deep concern for the
preservation of our civil liberties enshrined in the Bill of Rights, We are not persuaded to entertain
the belief that the challenged ban transcends the limits of constitutional invasion of such cherished
immunities.

WHEREFORE, the prayers in both petitions are hereby denied and R.A. No. 6132 including Secs. 2,
4, 5, and 8(a), paragraph 1, thereof, cannot be declared unconstitutional. Without costs.

Reyes, J.B.L., Dizon and Castro, JJ., concur.

Makalintal, J., concurs in the result.

Teehankee, J., is on leave.

Separate Opinions

FERNANDO, J., concurring and dissenting:

The opinion of Justice Makasiar speaking for the Court, comprehensive in scope, persuasive in
character and lucid in expression, has much to recommend it. On the whole, I concur. I find difficulty,
however, in accepting the conclusion that there is no basis for the challenge hurled against the
validity of this provision: "No candidate for delegate to the Convention shall represent or allow
himself to be represented as being a candidate of any political party or any other organization, and
no political party, political group, political committee, civic, religious, professional, or other
organization or organized group of whatever nature shall intervene in the nomination of any such
candidate or in the filing of his certificate of candidacy or give aid or support directly or indirectly,
material or otherwise, favorable to or against his campaign for election: ..."  It is with regret then that I
1

dissent from that portion of the decision.

1. I find it difficult to reconcile the decision reached insofar as the aforesaid ban on political parties
and civic, professional and other organizations is concerned with the explicit provision that the
freedom to form associations or societies for purposes not contrary to law shall not be abridged.  The
2

right of an individual to join others of a like persuasion to pursue common objectives and to engage
in activities is embraced within if not actually encouraged by the regime of liberty ordained by the
Constitution. This particular freedom has an indigenous cast, its origin being traceable to the Malolos
Constitution.

In the United States, in the absence of an explicit provision of such character, it is the view of Justice
Douglas, in a 1963 article, that it is primarily the First Amendment of her Constitution, which
safeguards freedom of speech and of the press, of assembly and of petition "that provides
[associations] with the protection they need if they are to remain viable and continue to contribute to
our Free Society."  Such is indeed the case, for five years earlier the American Supreme Court had
3

already declared: "It is beyond debate that freedom to engage in association for the advancement of
beliefs and ideas is an inseparable aspect of the "liberty" [embraced in] freedom of speech." 4

Not long after, in 1965, Justice Douglas as; spokesman for the American Supreme Court could
elaborate further on the scope of the right of association as including "the right to express one's
attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means,
Association in that context is a form of expression of opinion; and while it is not extremely included in
the First Amendment its existence is necessary in making the express guarantees fully
meaningful."  Thus is further vitalized freedom of expression which, for Justice Laurel, is at once the
5

instrument" and the guarantee and the bright consummate flower of all liberty"  and, for Justice
6

Cardozo, "the matrix, the indispensable condition of nearly every other form of freedom." 7

2. It is in the light of the above fundamental postulates that I find merit in the plea of petitioners to
annul the challenged provision. There is much to be said for the point emphatically stressed by
Senator Lorenzo M. Tañada, as amicus curiae, to the effect that there is nothing unlawful in a
candidate for delegate to the Convention representing or allowing himself to be represented as such
of any political party or any other organization as well as of such political party, political group,
political committee, civic, religious, professional or other organization or organized group intervening
in his nomination, in the filing of his certificate of candidacy, or giving aid or support, directly or
indirectly, material or otherwise, favorable to or against his campaign for election as such delegate. I
find the conclusion inescapabe therefore, that what the constitutional provisions in question allow,
more specifically the right to form associations, is prohibited. The infirmity of the ban is thus apparent
on its face.

There is, to my mind, another avenue of approach that leads to the same conclusion. The final
proviso in the same section of the Act forbids any construction that would in any wise "impair or
abridge the freedom of civic, political, religious, professional, trade organizations or organized
groups of whatever nature to disseminate information about, or arouse public interest in, the
forthcoming Constitutional Convention, or to advocate constitutional reforms, programs, policies or
proposals for amendment of the present Constitution, and no prohibition contained herein shall limit
or curtail the right of their members, as long as they act individually, to support or oppose any
candidate for delegate to the Constitutional Convention."  It is regrettable that such an explicit
8

recognition of what cannot be forbidden consistently with the constitutional guarantees of freedom of
expression and freedom of association falls short of according full respect to what is thus
commanded, by the fundamental law, as they are precluded by the very same Act from giving aid or
support precisely to the very individuals who can carry out whatever constitutional reforms,
programs, policies or proposals for amendment they might advocate. As thus viewed, the conviction
I entertain as to its lack of validity is further strengthened and fortified.

3. It would be a different matter, of course, if there is a clear and present danger of a substantive evil
that would justify a limitation on such cherished freedoms. Reference has been made to Gonzales v.
Commission on Elections.  As repression is permissible only when the danger of substantive evil is
9

present is explained by Justice Branders thus: ... the evil apprehended is to imminent that it may
befall before there is opportunity for full discussion. If there be time to expose through discussion the
falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is
more speech, not enforced silence. For him the apprehended evil must be "relatively serious." For
"[prohibition] of free speech and assembly is a measure so stringent that it would be inappropriate as
the means for averting a relatively trivial harm to society." Justice Black would go further. He would
require that the substantive evil be "extremely serious." Only thus may there be a realization of the
ideal envisioned by Cardozo: "There shall be no compromise of the freedom to think one's thoughts
and speak them, except at those extreme borders where thought merges into action." It received its
original formulation from Holmes. Thus: "The question in every case is whether the words used in
such circumstances are of such a nature as to create a clear and present danger that they will bring
about the substantive evils that Congress has a right to prevent. It is a question of proximity and
degree." "   The majority of the Court would find the existence of a clear and present danger of
10

debasing the electoral process. With due respect, I find myself unable to share such a view.

The assumption would, appear to be that there is a clear and present danger of a grave substantive
evil of partisanship running riot unless political parties are thus restrained. There would be a sacrifice
then of the national interest involved. The Convention might not be able to live up to the high hopes
entertained for an improvement of the fundamental law. It would appear though that what prompted
such a ban is to assure that the present majority party would not continue to play its dominant role in
the political life of the nation. The thought is entertained that otherwise, we will not have a
Convention truly responsive to the needs of the hour and of the future insofar as they may be
anticipated.

To my mind, this is to lose sight of the fact that in the national elections of 1946, 1953, 1961 and
1965, the presidency was won by the opposition candidate. Moreover, in national elections for
senators alone, that of 1951, to mention only one instance, saw a complete sweep of the field by the
then minority party. It would be unjustifiable, so I am led to believe to assume that inevitably the
prevailing dominant political party would continue its ascendancy in the coming Convention.

Then, too, the result of the plebiscite in the two proposed amendments in 1967 indicate
unmistakably that the people can, if so minded, make their wishes prevail. There is thus no
assurance that the mere identification with party labels would automatically insure the success of a
candidacy. Even if it be assumed that to guard against the evils of party spirit carried to excess, such
a ban is called for, still no such danger is presented by allowing civil, professional or any other
organization or organized group of whatever nature to field its own candidates or give aid or support,
directly or indirectly material or otherwise, to anyone running for the Convention. From such a
source, no such misgivings or apprehension need arise. Nor it the fear that organizations could
hastily be assembled or put up to camouflage their true colors as satellites of the political parties be
valid. The electorate can see through such schemes and can emphatically register its reaction.
There is, moreover, the further safeguard that whatever work the Convention may propose is
ultimately subject to popular ratification.

For me then the danger of a substantive evil is neither clear nor present. What causes me grave
concern is that to guard against such undesirable eventuality, which may not even come to pass, a
flagrant disregard of what the Constitution ordains is minimized. A desirable end cannot be coerced
by unconstitutional means.

4. It is not easy to yield assent to the proposition that on a matter so essentially political as the
amendment or revision of an existing Constitution, political parties or political groups are to be
denied the opportunity of launching the candidacy of their choice. Well has it been said by Chief
Justice Hughes: "The greater the importance of safeguarding the community from incitements to the
overthrow of our institutions by force and violence, the more imperative is the need to preserve
inviolate the constitutional rights of free speech, free press and free assembly in order to maintain
the opportunity for free political discussion, to the end that government may be responsive to the will
of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the
security of the Republic, the very foundation of constitutional government."   It is to carry this
11

essential process one step farther to recognize and to implement the right of every political party or
group to select the candidates who, by their election, could translate into actuality their hopes for the
fundamental law that the times demand. Moreover, is it not in keeping with the rights to intellectual
freedom so sedulously safeguarded by the Constitution to remove all obstacles to organized civic
groups making their influence felt in the task of constitution framing, the result of which has
momentuous implications for the nation? What is decisive of this aspect of the matter is not the
character of the association or organized group as such but the essentially political activity thus
carried out.

This is not to deny the wide latitude as to the choice of means vested in Congress to attain a
desirable goal. Nor can it be successfully argued that the judiciary should display reluctance in
extending sympathy and understanding to such legislative determination. This is merely to stress
that however worthwhile the objective, the Constitution must still be paid deference. Moreover, it
may not be altogether unrealistic to consider the practical effects of the ban as thus worded as not
lacking in effectivity insofar as civic, religious, professional or other organizations or organized group
is concerned, but not necessarily so in the case of political party, political group or political
committee. There is the commendable admission by Senator Tolentino, appearing as amicus curiae,
that the political leaders of stature, in their individual capacity, could continue to assert their
influence. It could very well happen, then, in not a few cases, assuming the strength of political
parties, that a candidate thus favored is sure of emerging the victor. What is thus sought to be
accomplished to guard against the evil of party spirit prevailing could very well be doomed to futility.
The high hopes entertained by the articulate and vocal groups of young people, intellectuals and
workers, may not be realized. The result would be that this unorthodox and novel provision could
assume the character of a tease, an illusion like a munificent bequest in a pauper's will.

If such an appraisal is not unjustifiably tinged with pessimism, then, to my mind, a radical approach
to a problem possibly tainted with constitutional infirmity cannot hurdle the judicial test as to its
validity. It is one thing to encourage a fresh and untried solution to a problem of gravity when the
probability of its success may be assumed. It is an entirely different matter to cut down the exercise
of what otherwise are undeniable constitutional rights, when as in this case, the outcome might belie
expectations. Considering the well-settled principle that even though the governmental process be
legitimate and substantial, they cannot be pursued by means that broadly stifle fundamental
personal liberties, if the end can be narrowly achieved, I am far from being persuaded that to
preclude political parties or other groups or associations from lending aid and support to the
candidates of men in whom they can repose their trust is consistent with the constitutional rights of
freedom of association and freedom of expression. Here, the danger of overbreadth, so clear and
manifest as to be offensive to constitutional standards, magnified by the probability that the result
would be the failure and not success of the statutory scheme, cautions against the affixing of the
imprimatur of judicial approval to the challenged provision.

5. Necessarily then, from this mode of viewing the matter, it would follow that the holding of this
Court in Gonzales v. Comelec   does not compel the conclusion reached by the majority sustaining
12

the validity of this challenged provision. What survived the test of constitutional validity in that case,
with the Court unanimous in its opinion, is the prohibition for any political party, political committee or
political group to nominate candidates for any elective public office voted for at large earlier than 150
days immediately preceding election and for any other public office earlier than 90 days immediately
preceding such election.   A corollary to the above limitation, the provision making it unlawful for any
13
person, whether or not a voter or candidate, or for any group or association of persons, whether or
not a political party or political committee, to engage in an election campaign or partisan political
activity except during the above periods successfully hurdled, the constitutional test, although the
restrictions as to the making of speeches, announcements or commentaries or holding interviews for
or against the election of any party or candidate for public office or the publishing or distributing of
campaign literature or materials or the solicitation or undertaking any campaign or propaganda for or
against any candidate or party, directly or indirectly, survived by the narrow margin of one vote, four
members of this Court unable to discern any constitutional infirmity as against the free speech
guarantee, thus resulting in failing to muster the necessary two-thirds majority for a declaration of
invalidity. Insofar as election campaign or partisan political activity would limit or restrict the
formation, of organizations, associations, clubs, committees or other groups of persons for the
purpose of soliciting votes or undertaking any campaign or propaganda for or against a party or
candidate or, the giving, soliciting, or receiving a contribution for election campaign purposes, either
directly or indirectly as well as the holding of political conventions, caucuses, conferences, meetings,
rallies, parades or other similar assemblies, with a similar and in view, only five members of this
Court, a minority thereof voted, for their unconstitutionality. What emerges clearly, then, is that
definite acts short of preventing the political parties from the choice of their candidates and thereafter
working for them in effect were considered by this Court as not violative of the constitutional
freedoms of speech, of press, of assembly and of association.

The challenged provision in these two petitions, however, goes much farther. Political parties or any
other organization or organized group are precluded from selecting and supporting candidates for
delegates to the Constitutional Convention. To my mind, this is to enter a forbidden domain,
Congress trespassing on a field hitherto rightfully assumed to be within the sphere of liberty. Thus, I
am unable to conclude that our previous decision in Gonzales v. Commission on Elections which
already was indicative of the cautious and hesitant judicial approach to lending its approval to what
otherwise are invasions of vital constitutional safeguards to freedoms of belief, of expression, and of
association lends support to the decision reached by the majority insofar as this challenged provision
is concerned.

Hence my inability to subscribe in its entirety to the opinion of the Court. I am authorized to state that
the Chief Justice is in agreement with the views herein expressed.

Concepcion, C.J., Villamor and Zaldivar, JJ., concur.

BARREDO, J., concurring and dissenting:

Without prejudice to a more extended opinion, I vote, in concurrence with the majority, to sustain the
validity of the provisions of Republic Act 6132 impugned by petitioners in these cases, except
Section 4 and the portion of Section 8(a) referring to political parties. As regards Section 4, I reiterate
my separate opinion in the cases of Subido and others. (G.R. Nos. L-32436 and L-32439) With
respect to Section 8(a), I hold that the considerations which take the restraint on the freedoms of
association, assembly and speech involved in the ban on political parties to nominate and support
their own candidates, reasonable and within the limits of the Constitution do not obtain when it
comes to civic or non-political organizations. As I see it, the said ban, insofar as civic or non-political
organizations are concerned, is a deceptive device to preserve the built-in advantages of political
parties while at the same time crippling completely the other kinds of associations. The only way to
accomplish the purported objective of the law of equalizing the forces that will campaign in behalf of
the candidates to the constitutional convention is to maintain said ban only as against political
parties, for after all, only the activities and manners of operation of these parties and/or some of their
members have made necessary the imposition thereof. Under the resulting set up embodied in the
provision in question, the individual candidates who have never had any political party connections
or very little of it would be at an obvious disadvantage unless they are allowed to seek and use the
aid of civic organizations. Neither the elaborate provisions of Republic Act 6132 regarding methods
of campaign nor its other provisions intended to minimize the participation of political parties in the
electorate processes of voting, counting of the votes and canvassing of the results can overcome the
advantages of candidates more or less connected with political parties, particularly the major and
established ones, as long as the right to form other associations and the right of these associations
to campaign for their candidates are denied considering particularly the shortness of the time that is
left between now and election day.

The issues involved in the coming elections are grave and fundamental ones that are bound to affect
the lives, rights and liberties of all the people of this country most effectively, pervasively and
permanently. The only insurance of the people against political parties which may be inclined
towards the Establishment and the status quo is to organize themselves to gain much needed
strength and effectivity. To deny them this right is to stifle the people's only opportunity for change.

It is axiomatic that issues, no matter how valid, if not related to particular candidates in an organized
way, similarly as in the use of platforms by political parties, cannot have any chance of support and
final adoption. Both men and issues are important, but unrelated to each other, each of them alone
is insignificant, and the only way to relate them is by organization. Precisely because the issues in
this election of candidates are of paramount importance second to none, it is imperative that all of
the freedoms enshrined in the constitution should have the ampliest recognition for those who are
minded to actively battle for them and any attempt to curtail them would endanger the very purposes
for which a new constitutional convention has been conceived.

Consistently with my separate opinion in the case of Gonzales and Cabigao vs. Comelec, G.R. No.
L-27833, April 18, 1969 and for the reasons therein stated, I maintain that the right of suffrage which
is the cornerstone of any democracy like ours is meaningless when the right to campaign in any
election therein is unreasonably and unnecessarily curtailed, restrained or hampered, as is being
done under the statute in dispute.

It is, of course, understood that this opinion is based on my considered view, contrary to that of the
majority, that as Section 8(a) stands and taking into account its genesis, the ban against political
parties is separable from that against other associations within the contemplation of Section 21 of
the Act which expressly refers to the separability of the application thereof to any "persons, groups
or circumstances."

I reserve my right to expand this explanation of my vote in the next few days.

# Separate Opinions

FERNANDO, J., concurring and dissenting:

The opinion of Justice Makasiar speaking for the Court, comprehensive in scope, persuasive in
character and lucid in expression, has much to recommend it. On the whole, I concur. I find difficulty,
however, in accepting the conclusion that there is no basis for the challenge hurled against the
validity of this provision: "No candidate for delegate to the Convention shall represent or allow
himself to be represented as being a candidate of any political party or any other organization, and
no political party, political group, political committee, civic, religious, professional, or other
organization or organized group of whatever nature shall intervene in the nomination of any such
candidate or in the filing of his certificate of candidacy or give aid or support directly or indirectly,
material or otherwise, favorable to or against his campaign for election: ..."  It is with regret then that I
1

dissent from that portion of the decision.

1. I find it difficult to reconcile the decision reached insofar as the aforesaid ban on political parties
and civic, professional and other organizations is concerned with the explicit provision that the
freedom to form associations or societies for purposes not contrary to law shall not be abridged.  The 2

right of an individual to join others of a like persuasion to pursue common objectives and to engage
in activities is embraced within if not actually encouraged by the regime of liberty ordained by the
Constitution. This particular freedom has an indigenous cast, its origin being traceable to the Malolos
Constitution.

In the United States, in the absence of an explicit provision of such character, it is the view of Justice
Douglas, in a 1963 article, that it is primarily the First Amendment of her Constitution, which
safeguards freedom of speech and of the press, of assembly and of petition "that provides
[associations] with the protection they need if they are to remain viable and continue to contribute to
our Free Society."  Such is indeed the case, for five years earlier the American Supreme Court had
3

already declared: "It is beyond debate that freedom to engage in association for the advancement of
beliefs and ideas is an inseparable aspect of the "liberty" [embraced in] freedom of speech." 4

Not long after, in 1965, Justice Douglas as; spokesman for the American Supreme Court could
elaborate further on the scope of the right of association as including "the right to express one's
attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means,
Association in that context is a form of expression of opinion; and while it is not extremely included in
the First Amendment its existence is necessary in making the express guarantees fully
meaningful."  Thus is further vitalized freedom of expression which, for Justice Laurel, is at once the
5

instrument" and the guarantee and the bright consummate flower of all liberty"  and, for Justice
6

Cardozo, "the matrix, the indispensable condition of nearly every other form of freedom." 7

2. It is in the light of the above fundamental postulates that I find merit in the plea of petitioners to
annul the challenged provision. There is much to be said for the point emphatically stressed by
Senator Lorenzo M. Tañada, as amicus curiae, to the effect that there is nothing unlawful in a
candidate for delegate to the Convention representing or allowing himself to be represented as such
of any political party or any other organization as well as of such political party, political group,
political committee, civic, religious, professional or other organization or organized group intervening
in his nomination, in the filing of his certificate of candidacy, or giving aid or support, directly or
indirectly, material or otherwise, favorable to or against his campaign for election as such delegate. I
find the conclusion inescapabe therefore, that what the constitutional provisions in question allow,
more specifically the right to form associations, is prohibited. The infirmity of the ban is thus apparent
on its face.

There is, to my mind, another avenue of approach that leads to the same conclusion. The final
proviso in the same section of the Act forbids any construction that would in any wise "impair or
abridge the freedom of civic, political, religious, professional, trade organizations or organized
groups of whatever nature to disseminate information about, or arouse public interest in, the
forthcoming Constitutional Convention, or to advocate constitutional reforms, programs, policies or
proposals for amendment of the present Constitution, and no prohibition contained herein shall limit
or curtail the right of their members, as long as they act individually, to support or oppose any
candidate for delegate to the Constitutional Convention."  It is regrettable that such an explicit
8

recognition of what cannot be forbidden consistently with the constitutional guarantees of freedom of
expression and freedom of association falls short of according full respect to what is thus
commanded, by the fundamental law, as they are precluded by the very same Act from giving aid or
support precisely to the very individuals who can carry out whatever constitutional reforms,
programs, policies or proposals for amendment they might advocate. As thus viewed, the conviction
I entertain as to its lack of validity is further strengthened and fortified.

3. It would be a different matter, of course, if there is a clear and present danger of a substantive evil
that would justify a limitation on such cherished freedoms. Reference has been made to Gonzales v.
Commission on Elections.  As repression is permissible only when the danger of substantive evil is
9

present is explained by Justice Branders thus: ... the evil apprehended is to imminent that it may
befall before there is opportunity for full discussion. If there be time to expose through discussion the
falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is
more speech, not enforced silence. For him the apprehended evil must be "relatively serious." For
"[prohibition] of free speech and assembly is a measure so stringent that it would be inappropriate as
the means for averting a relatively trivial harm to society." Justice Black would go further. He would
require that the substantive evil be "extremely serious." Only thus may there be a realization of the
ideal envisioned by Cardozo: "There shall be no compromise of the freedom to think one's thoughts
and speak them, except at those extreme borders where thought merges into action." It received its
original formulation from Holmes. Thus: "The question in every case is whether the words used in
such circumstances are of such a nature as to create a clear and present danger that they will bring
about the substantive evils that Congress has a right to prevent. It is a question of proximity and
degree." "   The majority of the Court would find the existence of a clear and present danger of
10

debasing the electoral process. With due respect, I find myself unable to share such a view.

The assumption would, appear to be that there is a clear and present danger of a grave substantive
evil of partisanship running riot unless political parties are thus restrained. There would be a sacrifice
then of the national interest involved. The Convention might not be able to live up to the high hopes
entertained for an improvement of the fundamental law. It would appear though that what prompted
such a ban is to assure that the present majority party would not continue to play its dominant role in
the political life of the nation. The thought is entertained that otherwise, we will not have a
Convention truly responsive to the needs of the hour and of the future insofar as they may be
anticipated.

To my mind, this is to lose sight of the fact that in the national elections of 1946, 1953, 1961 and
1965, the presidency was won by the opposition candidate. Moreover, in national elections for
senators alone, that of 1951, to mention only one instance, saw a complete sweep of the field by the
then minority party. It would be unjustifiable, so I am led to believe to assume that inevitably the
prevailing dominant political party would continue its ascendancy in the coming Convention.

Then, too, the result of the plebiscite in the two proposed amendments in 1967 indicate
unmistakably that the people can, if so minded, make their wishes prevail. There is thus no
assurance that the mere identification with party labels would automatically insure the success of a
candidacy. Even if it be assumed that to guard against the evils of party spirit carried to excess, such
a ban is called for, still no such danger is presented by allowing civil, professional or any other
organization or organized group of whatever nature to field its own candidates or give aid or support,
directly or indirectly material or otherwise, to anyone running for the Convention. From such a
source, no such misgivings or apprehension need arise. Nor it the fear that organizations could
hastily be assembled or put up to camouflage their true colors as satellites of the political parties be
valid. The electorate can see through such schemes and can emphatically register its reaction.
There is, moreover, the further safeguard that whatever work the Convention may propose is
ultimately subject to popular ratification.
For me then the danger of a substantive evil is neither clear nor present. What causes me grave
concern is that to guard against such undesirable eventuality, which may not even come to pass, a
flagrant disregard of what the Constitution ordains is minimized. A desirable end cannot be coerced
by unconstitutional means.

4. It is not easy to yield assent to the proposition that on a matter so essentially political as the
amendment or revision of an existing Constitution, political parties or political groups are to be
denied the opportunity of launching the candidacy of their choice. Well has it been said by Chief
Justice Hughes: "The greater the importance of safeguarding the community from incitements to the
overthrow of our institutions by force and violence, the more imperative is the need to preserve
inviolate the constitutional rights of free speech, free press and free assembly in order to maintain
the opportunity for free political discussion, to the end that government may be responsive to the will
of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the
security of the Republic, the very foundation of constitutional government."   It is to carry this
11

essential process one step farther to recognize and to implement the right of every political party or
group to select the candidates who, by their election, could translate into actuality their hopes for the
fundamental law that the times demand. Moreover, is it not in keeping with the rights to intellectual
freedom so sedulously safeguarded by the Constitution to remove all obstacles to organized civic
groups making their influence felt in the task of constitution framing, the result of which has
momentuous implications for the nation? What is decisive of this aspect of the matter is not the
character of the association or organized group as such but the essentially political activity thus
carried out.

This is not to deny the wide latitude as to the choice of means vested in Congress to attain a
desirable goal. Nor can it be successfully argued that the judiciary should display reluctance in
extending sympathy and understanding to such legislative determination. This is merely to stress
that however worthwhile the objective, the Constitution must still be paid deference. Moreover, it
may not be altogether unrealistic to consider the practical effects of the ban as thus worded as not
lacking in effectivity insofar as civic, religious, professional or other organizations or organized group
is concerned, but not necessarily so in the case of political party, political group or political
committee. There is the commendable admission by Senator Tolentino, appearing as amicus curiae,
that the political leaders of stature, in their individual capacity, could continue to assert their
influence. It could very well happen, then, in not a few cases, assuming the strength of political
parties, that a candidate thus favored is sure of emerging the victor. What is thus sought to be
accomplished to guard against the evil of party spirit prevailing could very well be doomed to futility.
The high hopes entertained by the articulate and vocal groups of young people, intellectuals and
workers, may not be realized. The result would be that this unorthodox and novel provision could
assume the character of a tease, an illusion like a munificent bequest in a pauper's will.

If such an appraisal is not unjustifiably tinged with pessimism, then, to my mind, a radical approach
to a problem possibly tainted with constitutional infirmity cannot hurdle the judicial test as to its
validity. It is one thing to encourage a fresh and untried solution to a problem of gravity when the
probability of its success may be assumed. It is an entirely different matter to cut down the exercise
of what otherwise are undeniable constitutional rights, when as in this case, the outcome might belie
expectations. Considering the well-settled principle that even though the governmental process be
legitimate and substantial, they cannot be pursued by means that broadly stifle fundamental
personal liberties, if the end can be narrowly achieved, I am far from being persuaded that to
preclude political parties or other groups or associations from lending aid and support to the
candidates of men in whom they can repose their trust is consistent with the constitutional rights of
freedom of association and freedom of expression. Here, the danger of overbreadth, so clear and
manifest as to be offensive to constitutional standards, magnified by the probability that the result
would be the failure and not success of the statutory scheme, cautions against the affixing of the
imprimatur of judicial approval to the challenged provision.
5. Necessarily then, from this mode of viewing the matter, it would follow that the holding of this
Court in Gonzales v. Comelec   does not compel the conclusion reached by the majority sustaining
12

the validity of this challenged provision. What survived the test of constitutional validity in that case,
with the Court unanimous in its opinion, is the prohibition for any political party, political committee or
political group to nominate candidates for any elective public office voted for at large earlier than 150
days immediately preceding election and for any other public office earlier than 90 days immediately
preceding such election.   A corollary to the above limitation, the provision making it unlawful for any
13

person, whether or not a voter or candidate, or for any group or association of persons, whether or
not a political party or political committee, to engage in an election campaign or partisan political
activity except during the above periods successfully hurdled, the constitutional test, although the
restrictions as to the making of speeches, announcements or commentaries or holding interviews for
or against the election of any party or candidate for public office or the publishing or distributing of
campaign literature or materials or the solicitation or undertaking any campaign or propaganda for or
against any candidate or party, directly or indirectly, survived by the narrow margin of one vote, four
members of this Court unable to discern any constitutional infirmity as against the free speech
guarantee, thus resulting in failing to muster the necessary two-thirds majority for a declaration of
invalidity. Insofar as election campaign or partisan political activity would limit or restrict the
formation, of organizations, associations, clubs, committees or other groups of persons for the
purpose of soliciting votes or undertaking any campaign or propaganda for or against a party or
candidate or, the giving, soliciting, or receiving a contribution for election campaign purposes, either
directly or indirectly as well as the holding of political conventions, caucuses, conferences, meetings,
rallies, parades or other similar assemblies, with a similar and in view, only five members of this
Court, a minority thereof voted, for their unconstitutionality. What emerges clearly, then, is that
definite acts short of preventing the political parties from the choice of their candidates and thereafter
working for them in effect were considered by this Court as not violative of the constitutional
freedoms of speech, of press, of assembly and of association.

The challenged provision in these two petitions, however, goes much farther. Political parties or any
other organization or organized group are precluded from selecting and supporting candidates for
delegates to the Constitutional Convention. To my mind, this is to enter a forbidden domain,
Congress trespassing on a field hitherto rightfully assumed to be within the sphere of liberty. Thus, I
am unable to conclude that our previous decision in Gonzales v. Commission on Elections which
already was indicative of the cautious and hesitant judicial approach to lending its approval to what
otherwise are invasions of vital constitutional safeguards to freedoms of belief, of expression, and of
association lends support to the decision reached by the majority insofar as this challenged provision
is concerned.

Hence my inability to subscribe in its entirety to the opinion of the Court. I am authorized to state that
the Chief Justice is in agreement with the views herein expressed.

Concepcion, C.J., Villamor and Zaldivar, JJ., concur.

BARREDO, J., concurring and dissenting:

Without prejudice to a more extended opinion, I vote, in concurrence with the majority, to sustain the
validity of the provisions of Republic Act 6132 impugned by petitioners in these cases, except
Section 4 and the portion of Section 8(a) referring to political parties. As regards Section 4, I reiterate
my separate opinion in the cases of Subido and others. (G.R. Nos. L-32436 and L-32439) With
respect to Section 8(a), I hold that the considerations which take the restraint on the freedoms of
association, assembly and speech involved in the ban on political parties to nominate and support
their own candidates, reasonable and within the limits of the Constitution do not obtain when it
comes to civic or non-political organizations. As I see it, the said ban, insofar as civic or non-political
organizations are concerned, is a deceptive device to preserve the built-in advantages of political
parties while at the same time crippling completely the other kinds of associations. The only way to
accomplish the purported objective of the law of equalizing the forces that will campaign in behalf of
the candidates to the constitutional convention is to maintain said ban only as against political
parties, for after all, only the activities and manners of operation of these parties and/or some of their
members have made necessary the imposition thereof. Under the resulting set up embodied in the
provision in question, the individual candidates who have never had any political party connections
or very little of it would be at an obvious disadvantage unless they are allowed to seek and use the
aid of civic organizations. Neither the elaborate provisions of Republic Act 6132 regarding methods
of campaign nor its other provisions intended to minimize the participation of political parties in the
electorate processes of voting, counting of the votes and canvassing of the results can overcome the
advantages of candidates more or less connected with political parties, particularly the major and
established ones, as long as the right to form other associations and the right of these associations
to campaign for their candidates are denied considering particularly the shortness of the time that is
left between now and election day.

The issues involved in the coming elections are grave and fundamental ones that are bound to affect
the lives, rights and liberties of all the people of this country most effectively, pervasively and
permanently. The only insurance of the people against political parties which may be inclined
towards the Establishment and the status quo is to organize themselves to gain much needed
strength and effectivity. To deny them this right is to stifle the people's only opportunity for change.

It is axiomatic that issues, no matter how valid, if not related to particular candidates in an organized
way, similarly as in the use of platforms by political parties, cannot have any chance of support and
final adoption. Both men and issues are important, but unrelated to each other, each of them alone
is insignificant, and the only way to relate them is by organization. Precisely because the issues in
this election of candidates are of paramount importance second to none, it is imperative that all of
the freedoms enshrined in the constitution should have the ampliest recognition for those who are
minded to actively battle for them and any attempt to curtail them would endanger the very purposes
for which a new constitutional convention has been conceived.

Consistently with my separate opinion in the case of Gonzales and Cabigao vs. Comelec, G.R. No.
L-27833, April 18, 1969 and for the reasons therein stated, I maintain that the right of suffrage which
is the cornerstone of any democracy like ours is meaningless when the right to campaign in any
election therein is unreasonably and unnecessarily curtailed, restrained or hampered, as is being
done under the statute in dispute.

It is, of course, understood that this opinion is based on my considered view, contrary to that of the
majority, that as Section 8(a) stands and taking into account its genesis, the ban against political
parties is separable from that against other associations within the contemplation of Section 21 of
the Act which expressly refers to the separability of the application thereof to any "persons, groups
or circumstances."

I reserve my right to expand this explanation of my vote in the next few days.

# Footnotes

1 Sec. 1 of Res. No. 4.

2 Sec. 3, Res. No. 4.

3 Sec. 22, R.A. No. 6132.

4 Abelardo Subido vs. Comelec, in re validity of Sec. 4 and Sec. 8(a) par. 2, R.A.
6132, G.R. No. L-32436, and In the matter of the petition for declaratory relief re
validity and constitutionality of Sec. 4, R.A. 6132, Hon. Guardson Lood, Judge, CFI,
Pasig, Rizal et al., petitioners, G.R. No. L-32439, Sept. 9, 1970.

5 Sec. 5, Art. VI, Constitution.

6 Macias et al. vs. Comelec, G. R. No. L-18684, Sept. 14, 1961..

7 People vs. Vera, 65 Phil. 56; People vs. Solon, G.R. No. L-14864, Nov. 23, 1960.

8 See Gonzales vs. Comelec, L-27833, April 18, 1969; Vol. 27, SCRA, p. 835, 858 et
seq.; Justice Douglas in Elfbrandt v. Russel, 384 US 11, 18-19, 1966.

9 27 SCRA, pp. 860-861.

10 27 SCRA, p. 865.

11 27 SCRA, p. 869.

12 27 SCRA, pp. 864-865, 868.

13 27 SCRA, pp. 869-870.

14 27 SCRA, p. 873.

15 27 SCRA, p. 872.

16 See his sponsorship speech of July 20, 1970.

17 84 Phil. 847, 852.

18 See his sponsorship speech on July 20, 1970.

19 See Justice Castro's separate opinion in Gonzales vs. Comelec, supra, 27 SCRA,

pp. 898-899 citing American Communications Association vs. Douds, 339 U.S. 383,
94 L. Ed., 925, 9437.

20 Pp. 4-5, 12, Answer in L-32432.

FERNANDO, J., concurring and dissenting:

1 Sec. 8(a), Republic Act No. 6132 (1970).

2 The Constitution provides: "The right to form associations or societies for purposes
not contrary to law shall not be abridged." Art. III, Sec. 1, par. 6.

3 Douglas, The Right of Association, 63 Col. Law Rev. 1363 (1963).

 4 NAACP v. Alabama ex rel. Patterson, 357 US 449, 460 (1958) per Harlan, J. Cf.
Bates v. Little Rock, 361 US 516 (1960); Shelton v. Tucker, 364 US 479. (1960);
Louisiana ex rel. Gremillon v. NAACP, 366 US. 293 (1961); Communist Party v.
Subversive Activities Control Board, 367 US 1 (1961); Scales v. United States, 367
US 203 (1961); NAACP v. Button, 371 US 415 (1963); Gibson v. Florida Legislative
Investigation, Comm., 372 US 539 (1963); Brotherhood v. Virginia ex rel. State Bar
377 US 1 (1964); NAACP v. Alabama, 377 US 288 (1964).

5 Griswold v. Connecticut, 381 US 479, 483 (1965). In Elfbrandt v. Russel, 384 US

11, 18 (1966) he spoke of this right as a "cherished freedom." Cf. Keyishan v. Board
of Regents, 385 US 589 (1967).

6 Planas v. Gil, 67 Phil. 62 (1939), Justice Laurel quoting Wendell Philipps.

7 Palko v. Connecticut, 302 US 319, 323 (1937).

8 Section 8(a), Republic Act No. 6132 (1970).

9 L-27833, April 18, 1969, 27 SCRA 835.

10 Ibid., pp. 859-860.

11 De Jonge v. Oregon, 299 US 353, 365 (1937).

12 L-27833, April 18, 1969, 27 SCRA -835.

13 Sec. 50(a) of Republic Act 4880 (1967).

FACTS:
Petitioners Manuel Imbong and Raul Gonzales, both interested in running as candidates in the
1971 Constitutional Convention, filed separate petitions for declaratory relief, impugning the
constitutionality of RA 6132, claiming that it prejudices their rights as candidates.

Congress, acting as a Constituent Assembly, passed Resolution No.2, which called for the
Constitutional Convention to propose Constitutional amendments. After its adoption, Congress,
acting as a legislative body, enacted R.A. 4914 implementing said resolution, restating entirely
the provisions of said resolution.

Thereafter, Congress, acting as a Constituent Assembly, passed Resolution No. 4 amending the
Resolution No. 2 by providing that ―xxx any other details relating to the specific apportionment
of delegates, election of delegates to, and the holding of the Constitutional Convention shall be
embodied in an implementing legislation xxx.

Congress, acting as a legislative body, enacted R.A. 6132, implementing Resolution Nos. 2 and
4, and expressly repealing R.A. 4914.

ISSUE:
 May Congress in acting as a legislative body enact R.A.6132 to implement the resolution passed
by it in its capacity as a Constituent Assembly?

HELD:
YES. The Court declared that while the authority to call a Constitutional Convention is vested by
the Constitution solely and exclusively in Congress acting as a constitutional assembly, the
power to enact the implementing details or specifics of the general law does not exclusively
pertain to Congress, the Congress in exercising its comprehensive legislative power (not as a
Constitutional Assembly) may pass the necessary implementing law providing for the details of
the Constitutional Conventions, such as the number, qualification, and compensation of its
member.

The reasons cited by the Court in upholding the constitutionality of the enactment of R.A. 6132
are as follows:

 Congress, acting as a Constituent Assembly pursuant to Article XV of the Constitution

has authority to propose constitutional amendments or call a convention for the purpose by ¾
votes of each house in joint session assembled but voting separately.
 Such grant includes all other powers essential to the effective exercise of the principal
power by necessary implication.
 Implementing details are within the authority of the Congress not only as a Constituent
Assembly but also in the exercise of its comprehensive legislative power which encompasses all
matters not expressly or by necessary implication withdrawn or removed by the Constitution
from the ambit of legislative action so long as it does not contravene any provision of the
Constitution; and
 Congress as a legislative body may thus enact necessary implementing legislation to fill
in the gaps, which Congress as a Constituent Assembly has omitted.