THE PHILIPPINE CONSTITUTION

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," 1 "and that 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: 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.

I

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.6 The fact that the lone and small congressional district of Batanes, may be over-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. 7 The function of a delegate 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.

V

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," 14 impressed as it was by the explanation made by the author of R.A. No. 4880, Sen. 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. 16 The primary purpose of the prohibition then is also to avert the clear and 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.

G.R. No. L-27833               April 18, 1969

IN THE MATTER OF PETITION FOR DECLARATORY RELIEF RE CONSTITUTIONALITY OF REPUBLIC ACT 4880. ARSENIO GONZALES and FELICISIMO R. CABIGAO, petitioners, vs.COMMISSION ON ELECTIONS, respondent.

F. R. Cabigao in his own behalf as petitioner. B. F. Advincula for petitioner Arsenio Gonzales.Ramon Barrios for respondent Commission on Elections. Sen. Lorenzo Tañada as amicus curiae.

FERNANDO, J.:

A statute designed to maintain the purity and integrity of the electoral process by Congress calling a halt to the undesirable practice of prolonged political campaign bringing in their wake serious evils not the least of which is the ever increasing cost of seeking public office, is challenged on constitutional grounds. More precisely, the basic liberties of free speech and free press, freedom of assembly and freedom of association are invoked to nullify the act. Thus the question confronting this Court is one of transcendental significance.

It is faced with the reconciliation of two values esteemed highly and cherished dearly in a constitutional democracy. One is the freedom of belief and of expression availed of by an individual whether by himself alone or in association with others of similar persuasion, a goal that occupies a place and to none in the legal hierarchy. The other is the safeguarding of the equally vital right of suffrage by a prohibition of the early nomination of candidates and the limitation of the period of election campaign or partisan political activity, with the hope that the time-consuming efforts, entailing huge expenditures of funds and involving the risk of bitter rivalries that may end in violence, to paraphrase the explanatory note of the challenged legislation, could be devoted to more fruitful endeavors.

The task is not easy, but it is unavoidable. That is of the very essence of judicial duty. To paraphrase a landmark opinion, 1 when we act in these matters we do so not on the assumption that to us is granted the requisite knowledge to set matters right, but by virtue of the responsibility we cannot escape under the Constitution, one that history authenticates, to pass upon every assertion of an alleged infringement of liberty, when our competence is appropriately invoked.

This then is the crucial question: Is there an infringement of liberty? Petitioners so alleged in his action, which they entitled Declaratory Relief with Preliminary Injunction, filed on July 22, 1967, a proceeding that should have been started in the of Court of First Instance but treated by this Court as one of prohibition in view of the seriousness and the urgency of the constitutional issue raised. Petitioners challenged the validity of two new sections now included in the Revised Election Code, under Republic Act No. 4880, which was approved and took effect on June 17, 1967, prohibiting the too early nomination of candidates 2 and limiting the period of election campaign or partisan political activity. 3

The terms "candidate" and "election campaign" or "partisan political activity" are likewise defined. The former according to Act No. 4880 "refers to any person aspiring for or seeking an elective public office regarded of whether or not said person has already filed his certificate of candidacy or has been nominated by any political party as its candidate." "Election campaign" or "partisan political activity" refers to acts designed to have a candidate elected or not or promote the candidacy of a person or persons to a public office." Then the acts were specified. There is a proviso that simple

expression of opinion and thoughts concerning the election shall not be considered as part of an election campaign. There is the further proviso that nothing stated in the Act "shall be understood to prevent any person from expressing his views on current political problems or issues, or from mentioning the names of the candidates for public office whom he supports." 4

Petitioner Cabigao was, at the time of the filing 6f the petition, an incumbent councilor in the 4th District of Manila and the Nacionalista Party official candidate for Vice-Mayor of Manila to which he was subsequently elected on November 11, 1967; petitioner Gonzales, on the other hand, is a private individual, a registered voter in the City of Manila and a political leader of his co-petitioner. It is their claim that "the enforcement of said Republic Act No. 4880 in question [would] prejudice [their] basic rights..., such as their freedom of speech, their freedom of assembly and their right to form associations or societies for purpose not contrary to law, guaranteed under the Philippine Constitution," and that therefore said act is unconstitutional.

After invoking anew the fundamental rights to free speech, free press, freedom of association and freedom of assembly with a citation of two American Supreme Court decisions, 5 they asserted that "there is nothing in the spirit or intention of the law that would legally justify its passage and [enforcement] whether for reasons of public policy, public order or morality, and that therefore the enactment of Republic Act [No.] 4880 under, the guise of regulation is but a clear and simple abridgment of the constitutional rights of freedom of speech, freedom of assembly and the right to form associations and societies for purposes not contrary to law, ..." There was the further allegation that the nomination of a candidate and the fixing of period of election campaign are matters of political expediency and convenience which only political parties can regulate or curtail by and among themselves through self-restraint or mutual understanding or agreement and that the regulation and limitation of these political matters invoking the police power, in the absence of clear and present danger to the state, would render the constitutional rights of petitioners meaningless and without effect.

To the plea of petitioners that after hearing, Republic Act No. 4880 be declared unconstitutional, null and void, respondent Commission on Elections, in its answer filed on August 1, 1967, after denying the allegations as to the validity of the act "for being mere conclusions of law, erroneous at that," and setting forth special affirmative defenses, procedural and substantive character, would have this Court dismiss the petition.

Thereafter the case was set for hearing on August 3, 1967. On the same date a resolution was passed by us to the following effect: "At the hearing of case L-27833 (Arsenio Gonzales, et al. vs. Commission on Elections), Atty. F. Reyes Cabigao appeared for the petitioners and Atty. Ramon Barrios appeared for the respondent and they were given a period of four days from today within which to submit, simultaneously,, their respective memorandum in lieu of oral argument."

On August 9, 1967, another resolution, self-explanatory in character, came from this Court. Thus: "In ease G.R. No. L-27833 (Arsenio Gonzales, et al. vs. Commission on Elections), the Court, with eight (8) Justice present, having deliberated on the issue of the constitutionality of Republic Act No. 4880; and a divergence of views having developed among the Justices as to the constitutionality of section 50-B, pars. (c), (d) and (e) of the Revised Election Code: considering the Constitutional provision that "no treaty or law may be declared unconstitutional without the concurrence of two-thirds of all the members of the (Supreme) Court' (sec. 10, Art, VII), the Court [resolved] to defer final voting on the issue until after the return of the Justices now on official leave."

The case was then reset for oral argument. At such hearing, one of the co-petitioners, now Vice-Mayor Felicisimo Cabigao of the City of Manila acting as counsel, assailed the validity of the challenged legislation relying primarily on American Supreme Court opinion that warn against

curtailment in whatever guise or form of the cherished freedoms of expression, of assemble and of association, all embraced in the First Amendment of the United States Constitution. Respondent Commission on Elections was duly represented by Atty. Ramon Barrios.

Senator Lorenzo M. Tañada was asked to appear as amicus curiae. That he did, arguing most impressively with a persuasive exposition of the existence of undeniable conditions that imperatively called for regulation of the electoral process and with full recognition that Act No. 4880 could indeed be looked upon as a limitation on the preferred rights of speech and press, of assembly and of association. He did justify its enactment however under the clear and present danger doctrine, there being the substantive evil of elections, whether for national or local officials, being debased and degraded by unrestricted campaigning, excess of partisanship and undue concentration in politics with the loss not only of efficiency in government but of lives as well.

The matter was then discussed in conference, but no final action was taken. The divergence of views with reference to the paragraphs above mentioned having continued, on Oct. 10, 1968, this Court, by resolution, invited certain entities to submit memoranda as amici curiae on the question of the validity of R.A. Act No. 4880. The Philippine Bar Association, the Civil Liberties Union, the U.P. Law Center and the U.P. Women Lawyers' Circle were included, among them. They did file their respective memoranda with this Court and aided it in the consideration of the constitutional issues involved.

1. In the course of the deliberations, a serious procedural objection was raised by five members of the Court. 6 It is their view that respondent Commission on Elections not being sought to be restrained from performing any specific act, this suit cannot be characterized as other than a mere request for an advisory opinion. Such a view, from the remedial law standpoint, has much to recommend it. Nonetheless, a majority would affirm, the original stand that under the circumstances it could still rightfully be treated as a petition for prohibition.

The language of Justice Laurel fits the case "All await the decision of this Court on the constitutional question. Considering, therefore, the importance which the instant case has assumed and to prevent multiplicity of suits, strong reasons of public policy demand that [its] constitutionality ... be now resolved." 7 It may likewise be added that the exceptional character of the situation that confronts us, the paramount public interest, and the undeniable necessity for a ruling, the national elections being, barely six months away, reinforce our stand.

It would appear undeniable, therefore, that before us is an appropriate invocation of our jurisdiction to prevent the enforcement of an alleged unconstitutional statute. We are left with no choice then; we must act on the matter.

There is another procedural obstacle raised by respondent to be hurdled. It is not insuperable. It is true that ordinarily, a party who impugns the validity of a statute or ordinance must have a substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement. 8 Respondent cannot see such interest as being possessed by petitioners. It may indicate the clarity of vision being dimmed, considering that one of the petitioners was a candidate for an elective position. Even if such were the case, however, the objection is not necessarily fatal. In this jurisdiction, the rule has been sufficiently relaxed to allow a taxpayer to bring an action to restrain the expenditure of public funds through the enforcement of an invalid or unconstitutional legislative measure. 9

2. In the answer of the respondent as well as its memorandum, stress was laid on Republic Act No. 4880 as an exercise of the police power of the state, designed to insure a free, orderly and honest election by regulating "conduct which Congress has determined harmful if unstrained and carried for

a long period before elections it necessarily entails huge expenditures of funds on the part of the candidates, precipitates violence and even deaths, results in the corruption of the electorate, and inflicts direful consequences upon public interest as the vital affairs of the country are sacrificed to purely partisan pursuits." Evidently for respondent that would suffice to meet the constitutional questions raised as to the alleged infringement of free speech, free press, freedom of assembly and 'freedom' of association. Would it were as simple as that?

An eloquent excerpt from a leading American decision 10 admonishes though against such a cavalier approach. "The case confronts us again with the duty our system places on this Court to say where the individual's, freedom ends the State's power begins. Choice on that border, now as always delicate, is perhaps more so where the usual. presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment.... That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions. And it is the character of the right, not of the limitation, which determines what standard governs the choice..."

Even a leading American State court decision on a regulatory measure dealing with elections, cited in the answer of respondent, militates against a stand minimizing the importance and significance of the alleged violation of individual rights: "As so construed by us, it has not been made to appear that section 8189, Comp. Gen. Laws, section 5925, Rev. Gen. St., is on its face violative of any provision of either the state or Federal Constitution on the subject of free speech or liberty of the press, nor that its operation is in any wise subversive of any one's constitutional liberty." 11 Another leading State decision is much more emphatic: "Broad as the power of the legislature is with respect to regulation of elections, that power is not wholly without limitation. Under the guise of regulating elections, the legislature may not deprive a citizen of the right of trial by jury. A person charged with its violation may not be compelled to give evidence against himself. If it destroys the right of free speech, it is to that extent void." 12

The question then of the alleged violation of Constitutional rights must be squarely met. lawphi1.nêt

3. Now as to the merits. A brief resume of the basic rights on which petitioners premise their stand that the act is unconstitutional may prove illuminating. The primacy, the high estate accorded freedom of expression is of course a fundamental postulate of our constitutional system. No law shall be passed abridging the freedom of speech or of the press .... 13 What does it embrace? At the very least, free speech and free press may be identified with the liberty to discuss publicly and truthfully any matter of public interest without censorship or punishment. 14 There is to be then no previous restraint on the communication of views or subsequent liability whether in libel suits, 15prosecution for sedition, 16 or action for damages, 17 or contempt proceedings 18 unless there be a clear and present danger of substantive evil that Congress has a right to prevent.

The vital need in a constitutional democracy for freedom of expression is undeniable whether as a means of assuring individual self-fulfillment, of attaining the truth, of assuring participation by the people in social including political decision-making, and of maintaining the balance between stability and change. 19 The trend as reflected in Philippine and American decisions is to recognize the broadcast scope and assure the widest latitude to this constitutional guaranty. It represents a profound commitment to the principle that debate of public issue should be uninhibited, robust, and wide-open. 20 It is not going too far, according to another American decision, to view the function of free speech as inviting dispute. "It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." 21 Freedom of speech and of the press thus means something more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, to take refuge in the existing climate of opinion on any matter of public consequence. So atrophied, the right

becomes meaningless. The right belongs as well, if not more, for those who question, who do not conform, who differ. To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees with us. 22

So with Emerson one may conclude that "the theory of freedom of expression involves more than a technique for arriving at better social judgments through democratic procedures. It comprehends a vision of society, a faith and a whole way of life. The theory grew out of an age that was awakened and invigorated by the idea of new society in which man's mind was free, his fate determined by his own powers of reason, and his prospects of creating a rational and enlightened civilization virtually unlimited. It is put forward as a prescription for attaining a creative, progressive, exciting and intellectually robust community. It contemplates a mode of life that, through encouraging toleration, skepticism, reason and initiative, will allow man to realize his full potentialities. It spurns the alternative of a society that is tyrannical, conformist, irrational and stagnant." 23

From the language of the specified constitutional provision, it would appear that the right is not susceptible of any limitation. No law may be passed abridging the freedom of speech and of the press. The realities of life in a complex society preclude however a literal interpretation. Freedom of expression is not an absolute. It would be too much to insist that at all times and under all circumstances it should remain unfettered and unrestrained. There are other societal values that press for recognition. How is it to be limited then?

This Court spoke, in Cabansag v. Fernandez; 24 of two tests that may supply an acceptable criterion for permissible restriction. Thus: "These are the 'clear and present danger' rule and the 'dangerous tendency' rule. The first, as interpreted in a number of cases, means that the evil consequence of the comment or utterance must be extremely serious and the degree of imminence extremely high' before the utterance can be punished. The danger to be guarded against is the 'substantive evil' sought to be prevented." It has the advantage of establishing according to the above decision "a definite rule in constitutional law. It provides the criterion as to what words may be public established."

The Cabansag case likewise referred to the other test, the "dangerous tendency" rule and explained it thus: "If the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil which the legislative body seeks to prevent.

We posed the issue thus: "Has the letter of Cabansag created a sufficient danger to a fair administration of justice? Did its remittance to the PCAC create a danger sufficiently imminent to come under the two rules mentioned above?" The choice of this Court was manifest and indisputable. It adopted the clear and present danger test. As a matter of fact, in an earlier decision, Primicias v. Fugoso, 25 there was likewise an implicit acceptance of the clear and present danger doctrine.

Why repression is permissible only when the danger of substantive evil is present is explained by Justice Branders thus: ... the evil apprehended is so 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." 26 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." 27 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." 28 It received its original formulation from Holmes. Thus: "The question in every case is whether the words used in such circumstances and 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." 29

This test then as a limitation on freedom of expression is justified by the danger or evil a substantive character that the state has a right to prevent. Unlike the dangerous tendency doctrine, the danger must not only be clear but also present. The term clear seems to point to a causal connection with the danger of the substantially evil arising from the utterance questioned. Present refers to the time element. It used to be identified with imminent and immediate danger. The danger must not only be probable but very likely inevitable.

4. How about freedom of assembly? The Bill of Rights as thus noted prohibits abridgment by law of freedom of speech or of the press. It likewise extends the same protection to the right of the people peaceably to assemble. As was pointed out by Justice Malcolm in the case of United States v. Bustos, 30 this right is a necessary consequence of our republican institution and complements the right of free speech. Assembly means a right on the part of citizens to meet peaceably for consultation in respect to public affairs. From the same Bustos opinion: "Public policy, the welfare of society and orderly administration of government have demanded protection for public opinion." To paraphrase the opinion of Justice Rutledge speaking for the majority in Thomas v. Collins,31 it was not by accident or coincidence that the rights to freedom of speech and of the press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition the government for redress of grievances. All these rights while not identical are inseparable. They are cognate rights and the assurance afforded by the clause of this section of the Bill of Rights wherein they are contained, applies to all. As emphatically put in the leading case of United States v. Cruikshank, 32 "the very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for redress of grievances." As in the case of freedom of expression, this right is not to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that Congress has a right to prevent.

5. Our Constitution likewise recognizes the freedom to form association for purposes not contrary to law. 33 With or without a constitutional provision of this character, it may be assumed that the freedom to organize or to be a member of any group or society exists. With this explicit provision, whatever doubts there may be on the matter are dispelled. Unlike the cases of other guarantee which are mostly American in origin, this particular freedom has an indigenous cast. It can trace its origin 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 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." 34 He adopted the view of De Tocqueville on the importance and the significance of the freedom to associate. Thus: "The most natural privilege of man, next to the right of acting for himself, is that of combining his exertions with those of his fellow creatures and of acting in common with them. The right of association therefore appears to me almost inalienable in its nature as the right of personal liberty. No legislator can attack it without impairing the foundation of society." 35

There can be no dispute as to the soundness of the above observation of De Tocqueville. Since man lives in social it would be a barren existence if he could not freely associate with others of kindred persuasion or of congenial frame of mind. As a matter of fact, the more common form of associations may be likely to be fraternal, cultural, social or religious. Thereby, for almost everybody, save for those exceptional few who glory in aloofness and isolation life is enriched and becomes more meaningful.

In a sense, however, the stress on this freedom of association should be on its political significance. If such a right were non-existent then the likelihood of a one-party government is more than a possibility. Authoritarianism may become unavoidable. Political opposition will simply cease to exist; minority groups may be outlawed, constitutional democracy as intended by the Constitution may well become a thing of the past.

Political parties which, as is originally the case, assume the role alternately of being in the majority or in the minority as the will of the electorate dictates, will lose their constitutional protection. It is undeniable therefore, that the utmost scope should be afforded this freedom of association.

It is indispensable not only for its enhancing the respect that should be accorded a human personality but equally so for its assurance that the wishes of any group to oppose whatever for the moment is the party in power and with the help of the electorate to set up its own program of government would not be nullified or frustrated. To quote from Douglas anew: "Justice Frankfurter thought that political and academic affiliations have a preferred position under the due process version of the First Amendment. But the associational rights protected by the First Amendment are in my view much broader and cover the entire spectrum in political ideology as well as in art, in journalism, in teaching, and in religion. In my view, government can neither legislate with respect to nor probe the intimacies of political, spiritual, or intellectual relationships in the myriad of lawful societies and groups, whether popular or unpopular, that exist in this country." 36

Nonetheless, the Constitution limits this particular freedom in the sense that there could be an abridgment of the right to form associations or societies when their purposes are "contrary to law". How should the limitation "for purposes not contrary to law" be interpreted? It is submitted that it is another way of expressing the clear and present danger rule for unless an association or society could be shown to create an imminent danger to public safety, there is no justification for abridging the right to form association societies.37 As was so aptly stated: "There is no other course consistent with the Free Society envisioned by the First Amendment. For the views a citizen entertains, the beliefs he harbors, the utterances he makes, the ideology he embraces, and the people he associates with are no concern to government — until and unless he moves into action. That article of faith marks indeed the main difference between the Free Society which we espouse and the dictatorships both on the Left and on the Right." 38 With the above principles in mind, we now consider the validity of the prohibition in Republic Act No. 4880 of the too early nomination of candidates and the limitation found therein on the period of election campaign or partisan political activity alleged by petitioners to offend against the rights of free speech, free press, freedom of assembly and freedom of association. In effect what are asked to do is to declare the act void on its face evidence having been introduced as to its actual operation. There is respectable authority for the court having the power to so act. Such fundamental liberties are accorded so high a place in our constitutional scheme that any alleged infringement manifest in the wording of statute cannot be allowed to pass unnoticed. 39

In considering whether it is violative of any of the above rights, we cannot ignore of course 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 realities of the

situation. Nor can we ignore the express legislative purpose apparent in the proviso "that simple expressions of opinion and thoughts concerning the election shall not be considered as part of an election campaign," and in the other proviso "that nothing herein stated shall be understood to prevent any person from expressing his views on current political problems or issues, or from mentioning the names of the candidates for public office whom he supports." Such limitations qualify the entire provision restricting the period of an election campaign or partisan political activity.

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 officio 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." 40

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 in validity. We do so unanimously.

The limitation on the period of "election campaign" or "partisan political activity" calls for a more intensive scrutiny. According to Republic Act No. 4880: "It is unlawful for any 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 period of one hundred twenty days immediately preceding an election involving a public office voted for at large and ninety days immediately preceding an election for any other elective public office. The term 'candidate' refers to any person aspiring for or seeking an elective public office, regardless of whether or not said person has already filed his certificate of candidacy or has been nominated by any political party as its candidate. The term 'election campaign' or 'partisan political activity' refers to acts designed to have a candidate elected or not or promote the candidacy of a person or persons to a public office ..."

If that is all there is to that provision, it suffers from the fatal constitutional infirmity of vagueness and may be stricken down. What other conclusion can there be extending as it does to so wide and all-encompassing a front that what is valid, being a legitimate exercise of press freedom as well as freedom of assembly, becomes prohibited? That cannot be done; such an undesirable eventuality, this Court cannot allow to pass.

It is a well-settled principle that stricter standard of permissible statutory vagueness may be applied to a statute having inhibiting effect on speech; a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser.41 Where the statutory provision then operates to inhibit the exercise of individual freedom affirmatively protected by the Constitution, the imputation of vagueness sufficient to invalidate the statute is inescapable. 42 The language of Justice Douglas, both appropriate and vigorous, comes to mind: "Words which are vague and fluid ... may be as much of a trap for the innocent as the ancient laws of Caligula." 43Nor is the reason difficult to discern: ."These freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions." 44

7. The constitutional objections are thus formidable. It cannot be denied that the limitations thus imposed on the constitutional rights of free speech and press, of assembly, and of association cut deeply, into their substance. This on the one hand.

On the other, it cannot be denied either that evils substantial in character taint the purity of the electoral process. There can be under the circumstances then no outright condemnation of the statute. It could not be said to be unwarranted, much less arbitrary. There is need for refraining from the outright assumption that the constitutional infirmity is apparent from a mere reading thereof.

For under circumstances that manifest abuses of the gravest character, remedies much more drastic than what ordinarily would suffice would indeed be called for. The justification alleged by the proponents of the measures weighs heavily with the members of the Court, though in varying degrees, in the appraisal of the aforesaid restrictions to which such precious freedoms are subjected. They are not unaware of the clear and present danger that calls for measures that may bear heavily on the exercise of the cherished rights of expression, of assembly, and of association.

This is not to say, that once such a situation is found to exist there is no limit to the allowable limitations on such constitutional rights. The clear and present danger doctrine rightly viewed requires that not only should there be an occasion for the imposition of such restrictions but also that they be limited in scope.

There are still constitutional questions of a serious character then to be faced. The practices which the act identifies with "election campaign" or "partisan political activity" must be such that they are free from the taint of being violative of free speech, free press, freedom of assembly, and freedom of association. What removes the sting from constitutional objection of vagueness is the enumeration of the acts deemed included in the terms "election campaign" or "partisan political activity."

They are: "(a) Forming organizations, associations, clubs, committees or other groups 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 a candidate or party;(c) making speeches, announcements or commentaries or holding interviews for or against the election or any party or candidate for public office; (d) publishing or distributing campaign literature or materials; (e) directly or indirectly soliciting votes and/or undertaking any campaign or propaganda for or against any party; (f) giving, soliciting, or receiving contributions for election campaign purposes, either directly or indirectly." 45 As thus limited the objection that may be raised as to vagueness has been minimized, if not totally set at rest. 46

8. This Court, with the aforementioned five Justices unable to agree, is of the view that no unconstitutional infringement exists insofar as the formation of organization, associations, clubs, committees, or other groups of persons for the purpose of soliciting votes or undertaking any campaign or propaganda or both for or against a candidate or party is restricted 47 and that the prohibition against giving, soliciting, or receiving contribution for election purposes, either directly or indirectly, is equally free from constitutional infirmity. 48

The restriction on freedom of assembly as confined to holding political conventions, caucuses, conferences, meetings, rallies, parades or other similar assemblies for the purpose of soliciting votes or undertaking any campaign or propaganda or both for or against a candidate or party, 49 leaving untouched all other legitimate exercise of such poses a more difficult question. Nevertheless, after a thorough consideration, and with the same Justices entertaining the opposite conviction, we reject the contention that it should be annulled. Candor compels the admission that the writer of this opinion suffers from the gravest doubts. For him, such statutory prescription could very well be within the outermost limits of validity, beyond which lies the abyss of unconstitutionality.

The other acts, likewise deemed included in "election campaign" or "partisan political activity" tax to the utmost the judicial predisposition to view with sympathy legislative efforts to regulate election practices deemed inimical, because of their collision with the preferred right of freedom of expression. From the outset, such provisions did occasion divergence of views among the members of the Court. Originally only a minority was for their being adjudged as invalid. It is not so. any more. 50 This is merely to emphasize that the scope of the curtailment to which freedom of expression may be subjected is not foreclosed by the recognition of the existence of a clear and present danger of a substantive evil, the debasement of the electoral process.

The majority of the Court is thus of the belief that the solicitation or undertaking of any campaign or propaganda whether directly or indirectly, by an individual, 51 the making of speeches, announcements or commentaries or holding interview for or against the election for any party or candidate for public office, 52 or the publication or distribution of campaign literature or materials, 53 suffer from the corrosion of invalidity. It lacks however one more affirmative vote to call for a declaration of unconstitutionality.

This is not to deny that Congress was indeed called upon to seek remedial measures for the far-from-satisfactory condition arising from the too-early nomination of candidates and the necessarily prolonged, political campaigns. The direful consequences and the harmful effects on the public interest with the vital affairs of the country sacrificed many a time to purely partisan pursuits were known to all. Moreover, it is no exaggeration to state that violence and even death did frequently occur because of the heat engendered by such political activities. Then, too, the opportunity for dishonesty and corruption, with the right to suffrage being bartered, was further magnified.

Under the police power then, with its concern for the general welfare and with the commendable aim of safe-guarding the right of suffrage, the legislative body must have felt impelled to impose the foregoing restrictions. It is understandable for Congress to believe that without the limitations thus set forth in the challenged legislation, the laudable purpose of Republic Act No. 4880 would be frustrated and nullified. Whatever persuasive force such approach may command failed to elicit the assent of a majority of the Court. This is not to say that the conclusion reached by the minority that the above poisons of the statute now assailed has passed the constitutional test is devoid of merit.

It only indicates that for the majority, the prohibition of any speeches, announcements or commentaries, or the holding of interviews for or against the election of any party or candidate for public office and the prohibition of the publication or distribution of campaign literature or materials, against the solicitation of votes whether directly or indirectly, or the undertaking of any campaign literature or propaganda for or against any candidate or party is repugnant to a constitutional command. To that extent, the challenged statute prohibits what under the Constitution cannot by any law be abridged.

More specifically, in terms of the permissible scope of legislation that otherwise could be justified under the clear and present danger doctrine, it is the consideration opinion of the majority, though lacking the necessary vote for an adjudication of invalidity, that the challenged statute could have been more narrowly drawn and the practices prohibited more precisely delineated to satisfy the constitutional requirements as to a valid limitation under the clear and present danger doctrine.

In a 1968 opinion, the American Supreme Court made clear that the absence of such reasonable and definite standards in a legislation of its character is fatal. 54 Where, as in the case of the above paragraphs, the majority of the Court could discern "an over breadth that makes possible oppressive or capricious application" 55 of the statutory provisions, the line dividing the valid from the constitutionally infirm has been crossed. Such provisions offend the constitutional principle that "a governmental purpose constitutionally subject to control or prevent activities state regulation may not

be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. 56

It is undeniable, therefore, that even though the governmental purposes be legitimate and substantial, they cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. 57 For precision of regulation is the touchstone in an area so closely related to our most precious freedoms. 58

Under the circumstances then, a majority of the Court feels compelled to view the statutory provisions in question as unconstitutional on their face inasmuch as they appear to range too widely and indiscriminately across the fundamental liberties associated with freedom of the mind. 59

Such a conclusion does not find favor with the other members of the Court. For this minority group, no judgment of nullity insofar as the challenged sections are concerned is called for. It cannot accept the conclusion that the limitations thus imposed on freedom of expression vitiated by their latitudinarian scope, for Congress was not at all insensible to the problem that an all-encompassing coverage of the practices sought to be restrained would seriously pose.

Such an approach finds support in the exposition made by the author of the measure, Senator Lorenzo M. Tañada, appearing before us as amicus curiae. He did clearly explain 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 invariably 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.

More than that, he would stress the two provisos already mentioned, precisely placed in the state as a manifestation of the undeniable legislative determination not to transgress the preferred freedom of speech, of press, of assembly and of association. It is thus provided: "That simple expressions or opinion and thoughts concerning the election shall not be considered as part of an election campaign [and that nothing in the Act] shall be understood to prevent any person from expressing his views on current political problems or issues, or from mentioning the names of the candidates for public office whom he supports. 60 If properly implemented then, as it ought to, the barrier to free, expression becomes minimal and far from unwarranted.

For the minority of the Court, all of the above arguments possess sufficient persuasive force to blunt whatever cutting edge may be ascribed to the fears entertained that Congress failed to abide by what the Constitution commands as far as freedom of the mind and of association are concerned. It is its opinion that it would be premature to say the least, for a judgment of nullity of any provision found in Republic Act No. 4880. The need for adjudication arises only if in the implementation of the Act, there is in fact an unconstitutional application of its provisions. Nor are we called upon, under this approach, to anticipate each and every problem that may arise. It is time enough to consider it when there is in fact an actual, concrete case that requires an exercise of judicial power.

9. To recapitulate, we give due recognition to the legislative concern to cleanse, and, if possible, render spotless, the electoral process. There is full acceptance by the Court of the power of Congress, under narrowly drawn legislation to impose the necessary restrictions to what otherwise would be liberties traditionally accorded the widest scope and the utmost deference, freedom of speech and of the press, of assembly, and of association. We cannot, however, be recreant to the trust reposed on us; we are called upon to safeguard individual rights. In the language of Justice

Laurel: "This Court is perhaps the last bulwark of constitutional government. It shall not obstruct the popular will as manifested through proper organs... But, in the same way that it cannot renounce the life breathed into it by the Constitution, so may it not forego its obligation, in proper cases, to apply the necessary,..." 61

We recognize the wide discretion accorded Congress to protect vital interests. Considering the responsibility incumbent on the judiciary, it is not always possible, even with the utmost sympathy shown for the legislative choice of means to cure an admitted evil, that the legislative judgment arrived at, with its possible curtailment of the preferred freedoms, be accepted uncritically. There may be times, and this is one of them, with the majority, with all due reject to a coordinate branch, unable to extend their approval to the aforesaid specific provisions of one of the sections of the challenged statute. The necessary two-third vote, however, not being obtained, there is no occasion for the power to annul statutes to come into play.

Such being the case, it is the judgment of this Court that Republic Act No. 4880 cannot be declared unconstitutional.

WHEREFORE, the petition is dismissed and the writ of prayed for denied. Without costs.

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. MACAPAGALDIOSDADO P. MACAPAGALPresident

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 aconstituent 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

G.R. No. L-56350 April 2, 1981

SAMUEL C. OCCENA, petitioner, vs.THE COMMISSION ON ELECTIONS, THE COMMISSION ON AUDIT, THE NATIONAL TREASURER, THE DIRECTOR OF PRINTING, respondents.

 

G.R. No. L-56404 April 2, 1981

RAMON A. GONZALES, MANUEL B. IMBONG, JO AUREA MARCOS-IMBONG, RAY ALLAN T. DRILON, NELSON B. MALANA and GIL M. TABIOS, petitioners, vs.THE NATIONAL TREASURER and the COMMISSION ON ELECTIONS, respondents.

 

FERNANDO, C.J.:

The challenge in these two prohibition proceedings against the validity of three Batasang Pambansa Resolutions1 proposing constitutional amendments, goes further than merely assailing their alleged constitutional infirmity. Petitioners Samuel Occena and Ramon A. Gonzales, both members of the Philippine Bar and former delegates to the 1971 Constitutional Convention that framed the present Constitution, are suing as taxpayers. The rather unorthodox aspect of these petitions is the assertion that the 1973 Constitution is not the fundamental law, the Javellana 2 ruling to the contrary notwithstanding. To put it at its mildest, such an approach has the arresting charm of novelty – but nothing else. It is in fact self defeating, for if such were indeed the case, petitioners have come to the wrong forum. We sit as a Court duty-bound to uphold and apply that Constitution. To contend otherwise as was done here would be, quite clearly, an exercise in futility. Nor are the arguments of petitioners cast in the traditional form of constitutional litigation any more persuasive. For reasons to be set forth, we dismiss the petitions.

The suits for prohibition were filed respectively on March 6 3 and March 12, 1981. 4 On March 10 and 13 respectively, respondents were required to answer each within ten days from notice. 5 There was a comment on the part of the respondents. Thereafter, both cases were set for hearing and were duly argued on March 26 by petitioners and Solicitor General Estelito P. Mendoza for respondents. With the submission of pertinent data in amplification of the oral argument, the cases were deemed submitted for decision.

It is the ruling of the Court, as set forth at the outset, that the petitions must be dismissed.

1. It is much too late in the day to deny the force and applicability of the 1973 Constitution. In the dispositive portion of Javellana v. The Executive Secretary, 6 dismissing petitions for prohibition and mandamus to declare invalid its ratification, this Court stated that it did so by a vote of six 7 to four. 8 It then concluded: "This being the vote of the majority, there is no further judicial obstacle to the new Constitution being considered in force and effect." 9 Such a statement served a useful purpose. It could even be said that there was a need for it. It served to clear the atmosphere. It made manifest that, as of January 17, 1973, the present Constitution came into force and effect. With such a pronouncement by the Supreme Court and with the recognition of the cardinal postulate that what the Supreme Court says is not only entitled to respect but must also be obeyed, a factor for instability was removed. Thereafter, as a matter of law, all doubts were resolved. The 1973 Constitution is the fundamental law. It is as simple as

that. What cannot be too strongly stressed is that the function of judicial review has both a positive and a negative aspect. As was so convincingly demonstrated by Professors Black 10 and Murphy, 11 the Supreme Court can check as well as legitimate. In declaring what the law is, it may not only nullify the acts of coordinate branches but may also sustain their validity. In the latter case, there is an affirmation that what was done cannot be stigmatized as constitutionally deficient. The mere dismissal of a suit of this character suffices. That is the meaning of the concluding statement in Javellana. Since then, this Court has invariably applied the present Constitution. The latest case in point is People v. Sola, 12 promulgated barely two weeks ago. During the first year alone of the effectivity of the present Constitution, at least ten cases may be cited. 13

2. We come to the crucial issue, the power of the Interim Batasang Pambansa to propose amendments and how it may be exercised. More specifically as to the latter, the extent of the changes that may be introduced, the number of votes necessary for the validity of a proposal, and the standard required for a proper submission. As was stated earlier, petitioners were unable to demonstrate that the challenged resolutions are tainted by unconstitutionality.

(1) The existence of the power of the Interim Batasang Pambansa is indubitable. The applicable provision in the 1976 Amendments is quite explicit. Insofar as pertinent it reads thus: "The Interim Batasang Pambansa shall have the same powers and its Members shall have the same functions, responsibilities, rights, privileges, and disqualifications as the interim National Assembly and the regular National Assembly and the Members thereof."14 One of such powers is precisely that of proposing amendments. The 1973 Constitution in its Transitory Provisions vested the Interim National Assembly with the power to propose amendments upon special call by the Prime Minister by a vote of the majority of its members to be ratified in accordance with the Article on Amendments. 15 When, therefore, theInterim Batasang Pambansa, upon the call of the President and Prime Minister Ferdinand E. Marcos, met as a constituent body it acted by virtue Of such impotence Its authority to do so is clearly beyond doubt. It could and did propose the amendments embodied in the resolutions now being assailed. It may be observed parenthetically that as far as petitioner Occena is Concerned, the question of the authority of the Interim Batasang Pambansa to propose amendments is not new. In Occena v. Commission on Elections, 16 filed by the same petitioner, decided on January 28, 1980, such a question was involved although not directly passed upon. To quote from the opinion of the Court penned by Justice Antonio in that case: "Considering that the proposed amendment of Section 7 of Article X of the Constitution extending the retirement of members of the Supreme Court and judges of inferior courts from sixty-five (65) to seventy (70) years is but a restoration of the age of retirement provided in the 1935 Constitution and has been intensively and extensively discussed at the Interim Batasang Pambansa, as well as through the mass media, it cannot, therefore, be said that our people are unaware of the advantages and disadvantages of the proposed amendment." 17

(2) Petitioners would urge upon us the proposition that the amendments proposed are so extensive in character that they go far beyond the limits of the authority conferred on the Interim Batasang Pambansa as Successor of the Interim National Assembly. For them, what was done was to revise and not to amend. It suffices to quote from the opinion of Justice Makasiar, speaking for the Court, in Del Rosario v. Commission on Elections 18 to dispose of this contention. Thus: "3. And whether the Constitutional Convention will only propose amendments to the Constitution or entirely overhaul the present Constitution and propose an entirely new Constitution based on an Ideology foreign to the democratic system, is of no moment; because the same will be submitted to the people for ratification. Once ratified by the sovereign people, there can be no debate about the validity of the new Constitution. 4. The fact that the present Constitution may be revised and replaced with a new one ... is no argument against the validity of the law because 'amendment' includes the 'revision' or total overhaul of the entire Constitution. At any rate, whether the Constitution is merely amended in part or revised or totally changed would become immaterial the moment the same is ratified by the sovereign people." 19 There is here the adoption of the principle so well-known in American decisions as well as legal texts that a constituent body can propose anything but conclude nothing. 20 We are not disposed to deviate from such a principle not only sound in theory but also advantageous in practice.

(3) That leaves only the questions of the vote necessary to propose amendments as well as the standard for proper submission. Again, petitioners have not made out a case that calls for a judgment in their favor. The language of the Constitution supplies the answer to the above questions. The Interim Batasang Pambansa, sitting as a constituent body, can propose amendments. In that capacity, only a majority vote is needed. It would be an indefensible proposition to assert that the three-fourth votes required when it sits as a legislative body applies as well when it has been convened as the agency through which amendments could be proposed. That is not a requirement as far as a constitutional convention is concerned. It is not a requirement either when, as in this case, the Interim Batasang Pambansa exercises its constituent power to propose amendments. Moreover, even on the assumption that the requirement of three- fourth votes applies, such extraordinary majority was obtained. It is not disputed that Resolution No. 1 proposing an amendment allowing a natural-born citizen of the Philippines naturalized in a foreign country to own a limited area of land for residential purposes was approved by the vote of 122 to 5; Resolution No. 2 dealing with the Presidency, the Prime Minister and the Cabinet, and the National Assembly by a vote of 147 to 5 with 1 abstention; and Resolution No. 3 on the amendment to the Article on the Commission on Elections by a vote of 148 to 2 with 1 abstention. Where then is the alleged infirmity? As to the requisite standard for a proper submission, the question may be viewed not only from the standpoint of the period that must elapse before the holding of the plebiscite but also from the standpoint of such amendments having been called to the attention of the people so that it could not plausibly be maintained that they were properly informed as to the proposed changes. As to the period, the Constitution indicates the way the matter should be resolved. There is no ambiguity to the applicable provision: "Any amendment to, or revision of, this Constitution shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not later than three months after the approval of such amendment or revision." 21 The three resolutions were approved by the InterimBatasang Pambansa sitting as a constituent assembly on February 5 and 27, 1981. In the Batasang Pambansa Blg. 22, the date of the plebiscite is set for April 7, 1981. It is thus within the 90-day period provided by the Constitution. Thus any argument to the contrary is unavailing. As for the people being adequately informed, it cannot be denied that this time, as in the cited 1980 Occena opinion of Justice Antonio, where the amendment restored to seventy the retirement age of members of the judiciary, the proposed amendments have "been intensively and extensively discussed at the Interim Batasang Pambansa, as well as through the mass media, [ so that ] it cannot, therefore, be said that our people are unaware of the advantages and disadvantages of the proposed amendment [ s ]." 22

WHEREFORE, the petitions are dismissed for lack of merit. No costs.

G.R. No. 127325 March 19, 1997

MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA ISABEL ONGPIN, petitioners, vs.COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA & CARMEN PEDROSA, in their capacities as founding members of the People's Initiative for Reforms, Modernization and Action (PIRMA), respondents.

SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL ANG KONSTITUSYON (DIK), MOVEMENT OF ATTORNEYS FOR BROTHERHOOD INTEGRITY AND NATIONALISM, INC. (MABINI), INTEGRATED BAR OF THE PHILIPPINES (IBP), and LABAN NG DEMOKRATIKONG PILIPINO (LABAN), petitioners-intervenors.

 

DAVIDE, JR., J.:

The heart of this controversy brought to us by way of a petition for prohibition under Rule 65 of the Rules of Court is the right of the people to directly propose amendments to the Constitution through the system of initiative under Section 2 of Article XVII of the 1987 Constitution. Undoubtedly, this demands special attention, as this system of initiative was unknown to the people of this country, except perhaps to a few scholars, before the drafting of the 1987 Constitution. The 1986 Constitutional Commission itself, through the original proponent 1 and the main sponsor 2 of the proposed Article on Amendments or Revision of the Constitution, characterized this system as "innovative". 3 Indeed it is, for both under the 1935 and 1973 Constitutions, only two methods of proposing amendments to, or revision of, the Constitution were recognized, viz., (1) by Congress upon a vote of three-fourths of all its members and (2) by a constitutional convention.  4 For this and the other reasons hereafter discussed, we resolved to give due course to this petition.

On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public respondent Commission on Elections (hereafter, COMELEC) a "Petition to Amend the Constitution, to Lift Term Limits of Elective Officials, by People's Initiative" (hereafter, Delfin Petition) 5 wherein Delfin asked the COMELEC for an order

1. Fixing the time and dates for signature gathering all over the country;

2. Causing the necessary publications of said Order and the attached "Petition for Initiative on the 1987 Constitution, in newspapers of general and local circulation;

3. Instructing Municipal Election Registrars in all Regions of the Philippines, to assist Petitioners and volunteers, in establishing signing stations at the time and on the dates designated for the purpose.

Delfin alleged in his petition that he is a founding member of the Movement for People's Initiative,  6 a group of citizens desirous to avail of the system intended to institutionalize people power; that he and the members of the Movement and other volunteers intend to exercise the power to directly propose amendments to the Constitution granted under Section 2, Article XVII of the Constitution; that the exercise of that power shall be conducted in proceedings under the control and supervision of the COMELEC; that, as required in COMELEC Resolution No. 2300, signature stations shall be established all over the country, with the assistance of municipal election registrars, who shall verify the signatures affixed by

individual signatories; that before the Movement and other volunteers can gather signatures, it is necessary that the time and dates to be designated for the purpose be first fixed in an order to be issued by the COMELEC; and that to adequately inform the people of the electoral process involved, it is likewise necessary that the said order, as well as the Petition on which the signatures shall be affixed, be published in newspapers of general and local circulation, under the control and supervision of the COMELEC.

The Delfin Petition further alleged that the provisions sought to be amended are Sections 4 and 7 of Article VI, 7Section 4 of Article VII, 8 and Section 8 of Article X 9 of the Constitution. Attached to the petition is a copy of a "Petition for Initiative on the 1987 Constitution" 10 embodying the proposed amendments which consist in the deletion from the aforecited sections of the provisions concerning term limits, and with the following proposition:

DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE GOVERNMENT OFFICIALS, AMENDING FOR THE PURPOSE SECTIONS 4 AND 7 OF ARTICLE VI, SECTION 4 OF ARTICLE VII, AND SECTION 8 OF ARTICLE X OF THE 1987 PHILIPPINE CONSTITUTION?

According to Delfin, the said Petition for Initiative will first be submitted to the people, and after it is signed by at least twelve per cent of the total number of registered voters in the country it will be formally filed with the COMELEC.

Upon the filing of the Delfin Petition, which was forthwith given the number UND 96-037 (INITIATIVE), the COMELEC, through its Chairman, issued an Order 11 (a) directing Delfin "to cause the publication of the petition, together with the attached Petition for Initiative on the 1987 Constitution (including the proposal, proposed constitutional amendment, and the signature form), and the notice of hearing in three (3) daily newspapers of general circulation at his own expense" not later than 9 December 1996; and (b) setting the case for hearing on 12 December 1996 at 10:00 a.m.

At the hearing of the Delfin Petition on 12 December 1996, the following appeared: Delfin and Atty. Pete Q. Quadra; representatives of the People's Initiative for Reforms, Modernization and Action (PIRMA); intervenor-oppositor Senator Raul S. Roco, together with his two other lawyers, and representatives of, or counsel for, the Integrated Bar of the Philippines (IBP), Demokrasya-Ipagtanggol ang Konstitusyon (DIK), Public Interest Law Center, and Laban ng Demokratikong Pilipino (LABAN). 12 Senator Roco, on that same day, filed a Motion to Dismiss the Delfin Petition on the ground that it is not the initiatory petition properly cognizable by the COMELEC.

After hearing their arguments, the COMELEC directed Delfin and the oppositors to file their "memoranda and/or oppositions/memoranda" within five days. 13

On 18 December 1996, the petitioners herein — Senator Miriam Defensor Santiago, Alexander Padilla, and Maria Isabel Ongpin — filed this special civil action for prohibition raising the following arguments:

(1) The constitutional provision on people's initiative to amend the Constitution can only be implemented by law to be passed by Congress. No such law has been passed; in fact, Senate Bill No. 1290 entitled An Act Prescribing and Regulating Constitution Amendments by People's Initiative, which petitioner Senator Santiago filed on 24 November 1995, is still pending before the Senate Committee on Constitutional Amendments.

(2) It is true that R.A. No. 6735 provides for three systems of initiative, namely, initiative on the Constitution, on statutes, and on local legislation. However, it failed to provide any subtitle on initiative on the Constitution, unlike in the other modes of initiative, which are specifically provided for in Subtitle II and Subtitle III. This deliberate omission indicates that the matter of people's initiative to amend the Constitution was left to some future law. Former Senator Arturo Tolentino stressed this deficiency in the law in his privilege speech delivered before the Senate in 1994: "There is not a single word in that law which can be considered as implementing [the provision on constitutional initiative]. Such implementing provisions have been obviously left to a separate law.

(3) Republic Act No. 6735 provides for the effectivity of the law after publication in print media. This indicates that the Act covers only laws and not constitutional amendments because the latter take effect only upon ratification and not after publication.

(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern "the conduct of initiative on the Constitution and initiative and referendum on national and local laws, is ultra vires insofar asinitiative on amendments to the Constitution is concerned, since the COMELEC has no power to provide rules and regulations for the exercise of the right of initiative to amend the Constitution. Only Congress is authorized by the Constitution to pass the implementing law.

(5) The people's initiative is limited to amendments to the Constitution, not to revision thereof. Extending or lifting of term limits constitutes a revision and is, therefore, outside the power of the people's initiative.

(6) Finally, Congress has not yet appropriated funds for people's initiative; neither the COMELEC nor any other government department, agency, or office has realigned funds for the purpose.

To justify their recourse to us via the special civil action for prohibition, the petitioners allege that in the event the COMELEC grants the Delfin Petition, the people's initiative spearheaded by PIRMA would entail expenses to the national treasury for general re-registration of voters amounting to at least P180 million, not to mention the millions of additional pesos in expenses which would be incurred in the conduct of the initiative itself. Hence, the transcendental importance to the public and the nation of the issues raised demands that this petition for prohibition be settled promptly and definitely, brushing aside technicalities of procedure and calling for the admission of a taxpayer's and legislator's suit. 14 Besides, there is no other plain, speedy, and adequate remedy in the ordinary course of law.

On 19 December 1996, this Court (a) required the respondents to comment on the petition within a non-extendible period of ten days from notice; and (b) issued a temporary restraining order, effective immediately and continuing until further orders, enjoining public respondent COMELEC from proceeding with the Delfin Petition, and private respondents Alberto and Carmen Pedrosa from conducting a signature drive for people's initiative to amend the Constitution.

On 2 January 1997, private respondents, through Atty Quadra, filed their Comment 15 on the petition. They argue therein that:

1. IT IS NOT TRUE THAT "IT WOULD ENTAIL EXPENSES TO THE NATIONAL TREASURY FOR GENERAL REGISTRATION OF VOTERS AMOUNTING TO AT

LEAST PESOS: ONE HUNDRED EIGHTY MILLION (P180,000,000.00)" IF THE "COMELEC GRANTS THE PETITION FILED BY RESPONDENT DELFIN BEFORE THE COMELEC.

2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL GOVERNMENT IF THE COMELEC GRANTS THE PETITION OF RESPONDENT DELFIN. ALL EXPENSES IN THE SIGNATURE GATHERING ARE ALL FOR THE ACCOUNT OF RESPONDENT DELFIN AND HIS VOLUNTEERS PER THEIR PROGRAM OF ACTIVITIES AND EXPENDITURES SUBMITTED TO THE COMELEC. THE ESTIMATED COST OF THE DAILY PER DIEM OF THE SUPERVISING SCHOOL TEACHERS IN THE SIGNATURE GATHERING TO BE DEPOSITED and TO BE PAID BY DELFIN AND HIS VOLUNTEERS IS P2,571,200.00;

3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE SIGNATURE GATHERING WHICH BY LAW COMELEC IS DUTY BOUND "TO SUPERVISE CLOSELY" PURSUANT TO ITS "INITIATORY JURISDICTION" UPHELD BY THE HONORABLE COURT IN ITS RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS.COMELEC, ET AL. G.R. NO. 125416;

4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING LAW IMPLEMENTING THE POWER OF PEOPLE INITIATIVE TO PROPOSE AMENDMENTS TO THE CONSTITUTION. SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 IS A DUPLICATION OF WHAT ARE ALREADY PROVIDED FOR IN REP. ACT NO. 6735;

5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16, 1991 PURSUANT TO REP. ACT 6735 WAS UPHELD BY THE HONORABLE COURT IN THE RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416 WHERE THE HONORABLE COURT SAID: "THE COMMISSION ON ELECTIONS CAN DO NO LESS BY SEASONABLY AND JUDICIOUSLY PROMULGATING GUIDELINES AND RULES FOR BOTH NATIONAL AND LOCAL USE, IN IMPLEMENTING OF THESE LAWS."

6. EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 CONTAINS A PROVISION DELEGATING TO THE COMELEC THE POWER TO "PROMULGATE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PURPOSES OF THIS ACT." (SEC. 12, S.B. NO. 1290, ENCLOSED AS ANNEX E, PETITION);

7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF ELECTIVE OFFICIALS PROVIDED UNDER THE 1987 CONSTITUTION IS NOT A "REVISION" OF THE CONSTITUTION. IT IS ONLY AN AMENDMENT. "AMENDMENT ENVISAGES AN ALTERATION OF ONE OR A FEW SPECIFIC PROVISIONS OF THE CONSTITUTION. REVISION CONTEMPLATES A RE-EXAMINATION OF THE ENTIRE DOCUMENT TO DETERMINE HOW AND TO WHAT EXTENT IT SHOULD BE ALTERED." (PP. 412-413, 2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY JOAQUIN G. BERNAS, S.J.).

Also on 2 January 1997, private respondent Delfin filed in his own behalf a Comment 16 which starts off with an assertion that the instant petition is a "knee-jerk reaction to a draft 'Petition for Initiative on the 1987 Constitution'. . . which is not formally filed yet." What he filed on 6 December 1996 was an "Initiatory Pleading" or "Initiatory Petition," which was legally necessary to start the signature campaign to amend the Constitution or to put the movement to gather signatures under COMELEC power and function. On the substantive allegations of the petitioners, Delfin maintains as follows:

(1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735, which governs the conduct of initiative to amend the Constitution. The absence therein of a subtitle for such initiative is not fatal, since subtitles are not requirements for the validity or sufficiency of laws.

(2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition in an initiative to amend the Constitution approved by the majority of the votes cast in the plebiscite shall become effective as of the day of the plebiscite.

(3) The claim that COMELEC Resolution No. 2300 is ultra vires is contradicted by (a) Section 2, Article IX-C of the Constitution, which grants the COMELEC the power to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall; and (b) Section 20 of R.A. 6735, which empowers the COMELEC to promulgate such rules and regulations as may be necessary to carry out the purposes of the Act.

(4) The proposed initiative does not involve a revision of, but mere amendment to, the Constitution because it seeks to alter only a few specific provisions of the Constitution, or more specifically, only those which lay term limits. It does not seek to reexamine or overhaul the entire document.

As to the public expenditures for registration of voters, Delfin considers petitioners' estimate of P180 million as unreliable, for only the COMELEC can give the exact figure. Besides, if there will be a plebiscite it will be simultaneous with the 1997 Barangay Elections. In any event, fund requirements for initiative will be a priority government expense because it will be for the exercise of the sovereign power of the people.

In the Comment 17 for the public respondent COMELEC, filed also on 2 January 1997, the Office of the Solicitor General contends that:

(1) R.A. No. 6735 deals with, inter alia, people's initiative to amend the Constitution. Its Section 2 on Statement of Policy explicitly affirms, recognizes, and guarantees that power; and its Section 3, which enumerates the three systems of initiative, includes initiative on the Constitution and defines the same as the power to propose amendments to the Constitution. Likewise, its Section 5 repeatedly mentions initiative on the Constitution.

(2) A separate subtitle on initiative on the Constitution is not necessary in R.A. No. 6735 because, being national in scope, that system of initiative is deemed included in the subtitle on National Initiative and Referendum; and Senator Tolentino simply overlooked pertinent provisions of the law when he claimed that nothing therein was provided for initiative on the Constitution.

(3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A. No. 6735 does not deal with initiative on the Constitution.

(4) Extension of term limits of elected officials constitutes a mere amendment to the Constitution, not a revision thereof.

(5) COMELEC Resolution No. 2300 was validly issued under Section 20 of R.A. No. 6735 and under the Omnibus Election Code. The rule-making power of the COMELEC to implement the provisions of R.A. No. 6735 was in fact upheld by this Court in Subic Bay Metropolitan Authority vs. COMELEC.

On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary restraining order; (b) noted the aforementioned Comments and the Motion to Lift Temporary Restraining Order filed by private respondents through Atty. Quadra, as well as the latter's Manifestation stating that he is the counsel for private respondents Alberto and Carmen Pedrosa only and the Comment he filed was for the Pedrosas; and (c) granted the Motion for Intervention filed on 6 January 1997 by Senator Raul Roco and allowed him to file his Petition in Intervention not later than 20 January 1997; and (d) set the case for hearing on 23 January 1997 at 9:30 a.m.

On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and the Movement of Attorneys for Brotherhood Integrity and Nationalism, Inc. (MABINI), filed a Motion for Intervention. Attached to the motion was their Petition in Intervention, which was later replaced by an Amended Petition in Intervention wherein they contend that:

(1) The Delfin proposal does not involve a mere amendment to, but a revision of, the Constitution because, in the words of Fr. Joaquin Bernas, S.J., 18 it would involve a change from a political philosophy that rejects unlimited tenure to one that accepts unlimited tenure; and although the change might appear to be an isolated one, it can affect other provisions, such as, on synchronization of elections and on the State policy of guaranteeing equal access to opportunities for public service and prohibiting political dynasties. 19 Arevision cannot be done by initiative which, by express provision of Section 2 of Article XVII of the Constitution, is limited to amendments.

(2) The prohibition against reelection of the President and the limits provided for all other national and local elective officials are based on the philosophy of governance, "to open up the political arena to as many as there are Filipinos qualified to handle the demands of leadership, to break the concentration of political and economic powers in the hands of a few, and to promote effective proper empowerment for participation in policy and decision-making for the common good"; hence, to remove the term limits is to negate and nullify the noble vision of the 1987 Constitution.

(3) The Delfin proposal runs counter to the purpose of initiative, particularly in a conflict-of-interest situation. Initiative is intended as a fallback position that may be availed of by the people only if they are dissatisfied with the performance of their elective officials, but not as a premium for good performance. 20

(4) R.A. No. 6735 is deficient and inadequate in itself to be called the enabling law that implements the people's initiative on amendments to the Constitution. It fails to state (a) the proper parties who may file the petition, (b) the appropriate agency before whom the petition is to be filed, (c) the contents of the petition, (d) the publication of the same, (e) the ways and means of gathering the signatures of the voters nationwide and 3% per legislative district, (f) the proper parties who may oppose or question the veracity of the signatures, (g) the role of the COMELEC in the verification of the signatures and the sufficiency of the petition, (h) the appeal from any decision of the COMELEC, (I) the holding of a plebiscite, and (g) the appropriation of funds for such people's initiative.

Accordingly, there being no enabling law, the COMELEC has no jurisdiction to hear Delfin's petition.

(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by COMELEC Resolution No. 2300, since the COMELEC is without authority to legislate the procedure for a people's initiativeunder Section 2 of Article XVII of the Constitution. That function exclusively pertains to Congress. Section 20 of R.A. No. 6735 does not constitute a legal basis for the Resolution, as the former does not set a sufficient standard for a valid delegation of power.

On 20 January 1997, Senator Raul Roco filed his Petition inIntervention. 21 He avers that R.A. No. 6735 is the enabling law that implements the people's right to initiate constitutional amendments. This law is a consolidation of Senate Bill No. 17 and House Bill No. 21505; he co-authored the House Bill and even delivered a sponsorship speech thereon. He likewise submits that the COMELEC was empowered under Section 20 of that law to promulgate COMELEC Resolution No. 2300. Nevertheless, he contends that the respondent Commission is without jurisdiction to take cognizance of the Delfin Petition and to order its publication because the said petition is not the initiatory pleading contemplated under the Constitution, Republic Act No. 6735, and COMELEC Resolution No. 2300. What vests jurisdiction upon the COMELEC in an initiative on the Constitution is the filing of a petition for initiative which is signedby the required number of registered voters. He also submits that the proponents of a constitutional amendment cannot avail of the authority and resources of the COMELEC to assist them is securing the required number of signatures, as the COMELEC's role in an initiative on the Constitution is limited to the determination of the sufficiency of the initiative petition and the call and supervision of a plebiscite, if warranted.

On 20 January 1997, LABAN filed a Motion for Leave to Intervene.

The following day, the IBP filed a Motion for Intervention to which it attached a Petition in Intervention raising the following arguments:

(1) Congress has failed to enact an enabling law mandated under Section 2, Article XVII of the 1987 Constitution.

(2) COMELEC Resolution No. 2300 cannot substitute for the required implementing law on the initiative to amend the Constitution.

(3) The Petition for Initiative suffers from a fatal defect in that it does not have the required number of signatures.

(4) The petition seeks, in effect a revision of the Constitution, which can be proposed only by Congress or a constitutional convention. 22

On 21 January 1997, we promulgated a Resolution (a) granting the Motions for Intervention filed by the DIK and MABINI and by the IBP, as well as the Motion for Leave to Intervene filed by LABAN; (b) admitting the Amended Petition in Intervention of DIK and MABINI, and the Petitions in Intervention of Senator Roco and of the IBP; (c) requiring the respondents to file within a nonextendible period of five days their Consolidated Comments on the aforesaid Petitions in Intervention; and (d) requiring LABAN to file its Petition in Intervention within a nonextendible period of three days from notice, and the respondents to comment thereon within a nonextendible period of five days from receipt of the said Petition in Intervention.

At the hearing of the case on 23 January 1997, the parties argued on the following pivotal issues, which the Court formulated in light of the allegations and arguments raised in the pleadings so far filed:

1. Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative and Referendum and Appropriating Funds Therefor, was intended to include or cover initiative on amendments to the Constitution; and if so, whether the Act, as worded, adequately covers such initiative.

2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and Regulations Governing the Conduct of Initiative on the Constitution, and Initiative and Referendum on National and Local Laws) regarding the conduct of initiative on amendments to the Constitution is valid, considering the absence in the law of specific provisions on the conduct of such initiative.

3. Whether the lifting of term limits of elective national and local officials, as proposed in the draft "Petition for Initiative on the 1987 Constitution," would constitute a revision of, or an amendment to, the Constitution.

4. Whether the COMELEC can take cognizance of, or has jurisdiction over, a petition solely intended to obtain an order (a) fixing the time and dates for signature gathering; (b) instructing municipal election officers to assist Delfin's movement and volunteers in establishing signature stations; and (c) directing or causing the publication of, inter alia, the unsigned proposed Petition for Initiative on the 1987 Constitution.

5. Whether it is proper for the Supreme Court to take cognizance of the petition when there is a pending case before the COMELEC.

After hearing them on the issues, we required the parties to submit simultaneously their respective memoranda within twenty days and requested intervenor Senator Roco to submit copies of the deliberations on House Bill No. 21505.

On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts the allegations and arguments in the main Petition. It further submits that the COMELEC should have dismissed the Delfin Petition for failure to state a sufficient cause of action and that the Commission's failure or refusal to do so constituted grave abuse of discretion amounting to lack of jurisdiction.

On 28 January 1997, Senator Roco submitted copies of portions of both the Journal and the Record of the House of Representatives relating to the deliberations of House Bill No. 21505, as well as the transcripts of stenographic notes on the proceedings of the Bicameral Conference Committee, Committee on Suffrage and Electoral Reforms, of 6 June 1989 on House Bill No. 21505 and Senate Bill No. 17.

Private respondents Alberto and Carmen Pedrosa filed their Consolidated Comments on the Petitions in Intervention of Senator Roco, DIK and MABINI, and IBP. 23 The parties thereafter filed, in due time, their separate memoranda. 24

As we stated in the beginning, we resolved to give due course to this special civil action.

For a more logical discussion of the formulated issues, we shall first take up the fifth issue which appears to pose a prejudicial procedural question.

I

THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY IN THE COMELEC OF THE DELFIN PETITION.

Except for the petitioners and intervenor Roco, the parties paid no serious attention to the fifth issue, i.e., whether it is proper for this Court to take cognizance of this special civil action when there is a pending case before the COMELEC. The petitioners provide an affirmative answer. Thus:

28. The Comelec has no jurisdiction to take cognizance of the petition filed by private respondent Delfin. This being so, it becomes imperative to stop the Comelec from proceeding any further, and under the Rules of Court, Rule 65, Section 2, a petition for prohibition is the proper remedy.

29. The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction and directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not legally vested. (People v. Vera, supra., p. 84). In this case the writ is an urgent necessity, in view of the highly divisive and adverse environmental consequences on the body politic of the questioned Comelec order. The consequent climate of legal confusion and political instability begs for judicial statesmanship.

30. In the final analysis, when the system of constitutional law is threatened by the political ambitions of man, only the Supreme Courtcan save a nation in peril and uphold the paramount majesty of the Constitution. 25

It must be recalled that intervenor Roco filed with the COMELEC a motion to dismiss the Delfin Petition on the ground that the COMELEC has no jurisdiction or authority to entertain the petition. 26 The COMELEC made no ruling thereon evidently because after having heard the arguments of Delfin and the oppositors at the hearing on 12 December 1996, it required them to submit within five days their memoranda or oppositions/memoranda. 27 Earlier, or specifically on 6 December 1996, it practically gave due course to the Delfin Petition by ordering Delfin to cause the publication of the petition, together with the attached Petition for Initiative, the signature form, and the notice of hearing; and by setting the case for hearing. The COMELEC's failure to act on Roco's motion to dismiss and its insistence to hold on to the petition rendered ripe and viable the instant petition under Section 2 of Rule 65 of the Rules of Court, which provides:

Sec. 2. Petition for prohibition. — Where the proceedings of any tribunal, corporation, board, or person, whether exercising functions judicial or ministerial, are without or in excess of its or his jurisdiction, or with grave abuse of discretion, and there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered commanding the defendant to desist from further proceedings in the action or matter specified therein.

It must also be noted that intervenor Roco claims that the COMELEC has no jurisdiction over the Delfin Petition because the said petition is not supported by the required minimum number of signatures of registered voters. LABAN also asserts that the COMELEC gravely abused its

discretion in refusing to dismiss the Delfin Petition, which does not contain the required number of signatures. In light of these claims, the instant case may likewise be treated as a special civil action for certiorari under Section I of Rule 65 of the Rules of Court.

In any event, as correctly pointed out by intervenor Roco in his Memorandum, this Court may brush aside technicalities of procedure incases of transcendental importance. As we stated in Kilosbayan, Inc. v. Guingona, Jr. 28

A party's standing before this Court is a procedural technicality which it may, in the exercise of its discretion, set aside in view of the importance of issues raised. In the landmark Emergency Powers Cases, this Court brushed aside this technicality because the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure.

II

R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF INITIATIVE ON AMENDMENTS TO THE CONSTITUTION, BUT IS, UNFORTUNATELY, INADEQUATE TO COVER THAT

SYSTEM.

Section 2 of Article XVII of the Constitution provides:

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

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

This provision is not self-executory. In his book, 29 Joaquin Bernas, a member of the 1986 Constitutional Commission, stated:

Without implementing legislation Section 2 cannot operate. Thus, although this mode of amending the Constitution is a mode of amendment which bypasses congressional action, in the last analysis it still is dependent on congressional action.

Bluntly stated, the right of the people to directly propose amendments to the Constitution through the system of initiative would remain entombed in the cold niche of the Constitution until Congress provides for its implementation. Stated otherwise, while the Constitution has recognized or granted that right, the people cannot exercise it if Congress, for whatever reason, does not provide for its implementation.

This system of initiative was originally included in Section 1 of the draft Article on Amendment or Revision proposed by the Committee on Amendments and Transitory Provisions of the 1986 Constitutional Commission in its Committee Report No. 7 (Proposed Resolution No. 332). 30 That section reads as follows:

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

(a) by the National Assembly upon a vote of three-fourths of all its members; or

(b) by a constitutional convention; or

(c) directly by the people themselves thru initiative as provided for in Article___ Section ___of the Constitution. 31

After several interpellations, but before the period of amendments, the Committee submitted a new formulation of the concept of initiative which it denominated as Section 2; thus:

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

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

This completes the blanks appearing in the original Committee Report No. 7. 32

The interpellations on Section 2 showed that the details for carrying out Section 2 are left to the legislature. Thus:

FR. BERNAS. Madam President, just two simple, clarificatory questions.

First, on Section 1 on the matter of initiative upon petition of at least 10 percent, there are no details in the provision on how to carry this out. Do we understand, therefore, that we are leaving this matter to the legislature?

MR. SUAREZ. That is right, Madam President.

FR. BERNAS. And do we also understand, therefore, that for as long as the legislature does not pass the necessary implementing law on this, this will not operate?

MR. SUAREZ. That matter was also taken up during the committee hearing, especially with respect to the budget appropriations which would have to be legislated so that the plebiscite could be called. We deemed it best that this matter be left to the legislature. The Gentleman is right. In any event, as envisioned, no amendment through the power of initiative can be called until after five years from the date of the ratification of this Constitution. Therefore, the first amendment that could be proposed through the exercise of this initiative power would be after five years. It is reasonably expected

that within that five-year period, the National Assembly can come up with the appropriate rules governing the exercise of this power.

FR. BERNAS. Since the matter is left to the legislature — the details on how this is to be carried out — is it possible that, in effect, what will be presented to the people for ratification is the work of the legislature rather than of the people? Does this provision exclude that possibility?

MR. SUAREZ. No, it does not exclude that possibility because even the legislature itself as a body could propose that amendment, maybe individually or collectively, if it fails to muster the three-fourths vote in order to constitute itself as a constituent assembly and submit that proposal to the people for ratification through the process of an initiative.

xxx xxx xxx

MS. AQUINO. Do I understand from the sponsor that the intention in the proposal is to vest constituent power in the people to amend the Constitution?

MR. SUAREZ. That is absolutely correct, Madam President.

MS. AQUINO. I fully concur with the underlying precept of the proposal in terms of institutionalizing popular participation in the drafting of the Constitution or in the amendment thereof, but I would have a lot of difficulties in terms of accepting the draft of Section 2, as written. Would the sponsor agree with me that in the hierarchy of legal mandate, constituent power has primacy over all other legal mandates?

MR. SUAREZ. The Commissioner is right, Madam President.

MS. AQUINO. And would the sponsor agree with me that in the hierarchy of legal values, the Constitution is source of all legal mandates and that therefore we require a great deal of circumspection in the drafting and in the amendments of the Constitution?

MR. SUAREZ. That proposition is nondebatable.

MS. AQUINO. Such that in order to underscore the primacy of constituent power we have a separate article in the constitution that would specifically cover the process and the modes of amending the Constitution?

MR. SUAREZ. That is right, Madam President.

MS. AQUINO. Therefore, is the sponsor inclined, as the provisions are drafted now, to again concede to the legislature the process or

the requirement of determining the mechanics of amending the Constitution by people's initiative?

MR. SUAREZ. The matter of implementing this could very well be placed in the hands of the National Assembly, not unless we can incorporate into this provision the mechanics that would adequately cover all the conceivable situations. 33

It was made clear during the interpellations that the aforementioned Section 2 is limited to proposals to AMEND — not to REVISE — the Constitution; thus:

MR. SUAREZ. . . . This proposal was suggested on the theory that this matter of initiative, which came about because of the extraordinary developments this year, has to be separated from the traditional modes of amending the Constitution as embodied in Section 1. The committee members felt that this system of initiative should not extend to the revision of the entire Constitution, so we removed it from the operation of Section 1 of the proposed Article on Amendment or Revision. 34

xxx xxx xxx

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

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

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

MR. SUAREZ. That is right. Those were the terms envisioned in the Committee. 35

Amendments to the proposed Section 2 were thereafter introduced by then Commissioner Hilario G. Davide, Jr., which the Committee accepted. Thus:

MR. DAVIDE. Thank you Madam President. I propose to substitute the entire Section 2 with the following:

MR. DAVIDE. Madam President, I have modified the proposed amendment after taking into account the modifications submitted by

the sponsor himself and the honorable Commissioners Guingona, Monsod, Rama, Ople, de los Reyes and Romulo. The modified amendment in substitution of the proposed Section 2 will now read as follows: "SECTION 2. — AMENDMENTS TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER Of REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST THREE PERCENT OF THE REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.

MR. SUAREZ. Madam President, considering that the proposed amendment is reflective of the sense contained in Section 2 of our completed Committee Report No. 7, we accept the proposed amendment. 36

The interpellations which ensued on the proposed modified amendment to Section 2 clearly showed that it was a legislative act which must implement the exercise of the right. Thus:

MR. ROMULO. Under Commissioner Davide's amendment, is it possible for the legislature to set forth certain procedures to carry out the initiative. . .?

MR. DAVIDE. It can.

xxx xxx xxx

MR. ROMULO. But the Commissioner's amendment does not prevent the legislature from asking another body to set the proposition in proper form.

MR. DAVIDE. The Commissioner is correct. In other words, the implementation of this particular right would be subject to legislation, provided the legislature cannot determine anymore the percentage of the requirement.

MR. ROMULO. But the procedures, including the determination of the proper form for submission to the people, may be subject to legislation.

MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other words, none of the procedures to be proposed by the legislative body must diminish or impair the right conceded here.

MR. ROMULO. In that provision of the Constitution can the procedures which I have discussed be legislated?

MR. DAVIDE. Yes. 37

Commissioner Davide also reaffirmed that his modified amendment strictly confines initiative to AMENDMENTS to — NOT REVISION of — the Constitution. Thus:

MR. DAVIDE. With pleasure, Madam President.

MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment on line 1 refers to "amendment." Does it not cover the word "revision" as defined by Commissioner Padilla when he made the distinction between the words "amendments" and "revision"?

MR. DAVIDE. No, it does not, because "amendments" and "revision" should be covered by Section 1. So insofar as initiative is concerned, it can only relate to "amendments" not "revision." 38

Commissioner Davide further emphasized that the process of proposing amendments through initiative must be more rigorous and difficult than the initiative on legislation. Thus:

MR. DAVIDE. A distinction has to be made that under this proposal, what is involved is an amendment to the Constitution. To amend a Constitution would ordinarily require a proposal by the National Assembly by a vote of three-fourths; and to call a constitutional convention would require a higher number. Moreover, just to submit the issue of calling a constitutional convention, a majority of the National Assembly is required, the import being that the process of amendment must be made more rigorous and difficult than probably initiating an ordinary legislation or putting an end to a law proposed by the National Assembly by way of a referendum. I cannot agree to reducing the requirement approved by the Committee on the Legislative because it would require another voting by the Committee, and the voting as precisely based on a requirement of 10 percent. Perhaps, I might present such a proposal, by way of an amendment, when the Commission shall take up the Article on the Legislative or on the National Assembly on plenary sessions. 39

The Davide modified amendments to Section 2 were subjected to amendments, and the final version, which the Commission approved by a vote of 31 in favor and 3 against, reads as follows:

MR. DAVIDE. Thank you Madam President. Section 2, as amended, reads as follows: "AMENDMENT TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST THREE PERCENT OF THE REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS

FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDEFOR THE IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT. 40

The entire proposed Article on Amendments or Revisions was approved on second reading on 9 July 1986.41 Thereafter, upon his motion for reconsideration, Commissioner Gascon was allowed to introduce an amendment to Section 2 which, nevertheless, was withdrawn. In view thereof, the Article was again approved on Second and Third Readings on 1 August 1986. 42

However, the Committee on Style recommended that the approved Section 2 be amended by changing "percent" to "per centum" and "thereof" to "therein" and deleting the phrase "by law" in the second paragraph so that said paragraph reads: The Congress 43 shall provide for the implementation of the exercise of this right. 44 This amendment was approved and is the text of the present second paragraph of Section 2.

The conclusion then is inevitable that, indeed, the system of initiative on the Constitution under Section 2 of Article XVII of the Constitution is not self-executory.

Has Congress "provided" for the implementation of the exercise of this right? Those who answer the question in the affirmative, like the private respondents and intervenor Senator Roco, point to us R.A. No. 6735.

There is, of course, no other better way for Congress to implement the exercise of the right than through the passage of a statute or legislative act. This is the essence or rationale of the last minute amendment by the Constitutional Commission to substitute the last paragraph of Section 2 of Article XVII then reading:

The Congress 45 shall by law provide for the implementation of the exercise of this right.

with

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

This substitute amendment was an investiture on Congress of a power to provide for the rules implementing the exercise of the right. The "rules" means "the details on how [the right] is to be carried out." 46

We agree that R.A. No. 6735 was, as its history reveals, intended to cover initiative to propose amendments to the Constitution. The Act is a consolidation of House Bill No. 21505 and Senate Bill No. 17. The former was prepared by the Committee on Suffrage and Electoral Reforms of the House of Representatives on the basis of two House Bills referred to it, viz., (a) House Bill No. 497, 47 which dealt with the initiative and referendum mentionedin Sections 1 and 32 of Article VI of the Constitution; and (b) House Bill No. 988, 48 which dealt with the subject matter of House Bill No. 497, as well as with initiative and referendum under Section 3 of Article X (Local Government) and initiative provided for in Section 2 of Article XVII of the Constitution. Senate Bill No. 17 49 solely dealt with initiative and referendum concerning ordinances or resolutions of local government units. The Bicameral Conference Committee consolidated Senate Bill No. 17 and House Bill No. 21505 into a draft bill, which was subsequently approved on 8 June 1989 by the Senate 50and by the House of Representatives. 51 This approved bill is now R.A. No. 6735.

But is R.A. No. 6735 a full compliance with the power and duty of Congress to "provide for the implementation of the exercise of the right?"

A careful scrutiny of the Act yields a negative answer.

First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act does not suggest an initiative on amendments to the Constitution. The said section reads:

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

The inclusion of the word "Constitution" therein was a delayed afterthought. That word is neither germane nor relevant to said section, which exclusively relates to initiative and referendum on national laws and local laws, ordinances, and resolutions. That section is silent as to amendments on the Constitution. As pointed out earlier, initiative on the Constitution is confined only to proposals to AMEND. The people are not accorded the power to "directly propose, enact, approve, or reject, in whole or in part, the Constitution" through the system of initiative. They can only do so with respect to "laws, ordinances, or resolutions."

The foregoing conclusion is further buttressed by the fact that this section was lifted from Section 1 of Senate Bill No. 17, which solely referred to a statement of policy on local initiative and referendum and appropriately used the phrases "propose and enact," "approve or reject" and "in whole or in part." 52

Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative on amendments to the Constitution and mentions it as one of the three systems of initiative, and that Section 5 (Requirements) restates the constitutional requirements as to the percentage of the registered voters who must submit the proposal. But unlike in the case of the other systems of initiative, the Act does not provide for the contents of a petition forinitiative on the Constitution. Section 5, paragraph (c) requires, among other things, statement of the proposed law sought to be enacted, approved or rejected, amended or repealed, as the case may be. It does not include, as among the contents of the petition, the provisions of the Constitution sought to be amended, in the case of initiative on the Constitution. Said paragraph (c) reads in full as follows:

(c) The petition shall state the following:

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

c.2 the proposition;

c.3 the reason or reasons therefor;

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

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

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

The use of the clause "proposed laws sought to be enacted, approved or rejected, amended or repealed" only strengthens the conclusion that Section 2, quoted earlier, excludes initiative on amendments to the Constitution.

Third. While the Act provides subtitles for National Initiative and Referendum (Subtitle II) and for Local Initiative and Referendum (Subtitle III), no subtitle is provided for initiative on the Constitution. This conspicuous silence as to the latter simply means that the main thrust of the Act is initiative and referendum on national and local laws. If Congress intended R.A. No. 6735 to fully provide for the implementation of the initiative on amendments to the Constitution, it could have provided for a subtitle therefor, considering that in the order of things, the primacy of interest, or hierarchy of values, the right of the people to directly propose amendments to the Constitution is far more important than the initiative on national and local laws.

We cannot accept the argument that the initiative on amendments to the Constitution is subsumed under the subtitle on National Initiative and Referendum because it is national in scope. Our reading of Subtitle II (National Initiative and Referendum) and Subtitle III (Local Initiative and Referendum) leaves no room for doubt that the classification is not based on the scope of the initiative involved, but on its nature and character. It is "national initiative," if what is proposed to be adopted or enacted is a national law, or a law which only Congress can pass. It is "local initiative" if what is proposed to be adopted or enacted is a law, ordinance, or resolution which only the legislative bodies of the governments of the autonomous regions, provinces, cities, municipalities, and barangays can pass. This classification of initiative into national and local is actually based on Section 3 of the Act, which we quote for emphasis and clearer understanding:

Sec. 3. Definition of terms —

xxx xxx xxx

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

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

a.2 Initiative on Statutes which refers to a petition proposing to enact a national legislation; and

a.3 Initiative on local legislation which refers to a petition proposing to enact a regional, provincial, city, municipal, or barangay law, resolution or ordinance. (Emphasis supplied).

Hence, to complete the classification under subtitles there should have been a subtitle on initiative on amendments to the Constitution. 53

A further examination of the Act even reveals that the subtitling is not accurate. Provisions not germane to the subtitle on National Initiative and Referendum are placed therein, like (1) paragraphs (b) and (c) of Section 9, which reads:

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

(c) A national or local initiative proposition approved by majority of the votes cast in an election called for the purpose shall become effective fifteen (15) days after certification and proclamation of the Commission. (Emphasis supplied).

(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative with the legislative bodies of local governments; thus:

Sec. 11. Indirect Initiative. — Any duly accredited people's organization, as defined by law, may file a petition for indirect initiative with the House of Representatives, and other legislative bodies. . . .

and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the findings of sufficiency or insufficiency of the petition for initiative or referendum, which could be petitions for both national and localinitiative and referendum.

Upon the other hand, Section 18 on "Authority of Courts" under subtitle III on Local Initiative and Referendum is misplaced, 54 since the provision therein applies to both national and local initiative and referendum. It reads:

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

Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing for the details in the implementation of initiative and referendum on national and local legislation thereby giving them special attention, it failed, rather intentionally, to do so on the system of initiative on amendments to the Constitution. Anent the initiative on national legislation, the Act provides for the following:

(a) The required percentage of registered voters to sign the petition and the contents of the petition;

(b) The conduct and date of the initiative;

(c) The submission to the electorate of the proposition and the required number of votes for its approval;

(d) The certification by the COMELEC of the approval of the proposition;

(e) The publication of the approved proposition in the Official Gazette or in a newspaper of general circulation in the Philippines; and

(f) The effects of the approval or rejection of the proposition. 55

As regards local initiative, the Act provides for the following:

(a) The preliminary requirement as to the number of signatures of registered voters for the petition;

(b) The submission of the petition to the local legislative body concerned;

(c) The effect of the legislative body's failure to favorably act thereon, and the invocation of the power of initiative as a consequence thereof;

(d) The formulation of the proposition;

(e) The period within which to gather the signatures;

(f) The persons before whom the petition shall be signed;

(g) The issuance of a certification by the COMELEC through its official in the local government unit concerned as to whether the required number of signatures have been obtained;

(h) The setting of a date by the COMELEC for the submission of the proposition to the registered voters for their approval, which must be within the period specified therein;

(i) The issuance of a certification of the result;

(j) The date of effectivity of the approved proposition;

(k) The limitations on local initiative; and

(l) The limitations upon local legislative bodies. 56

Upon the other hand, as to initiative on amendments to the Constitution, R.A. No. 6735, in all of its twenty-three sections, merely (a) mentions, the word "Constitution" in Section 2; (b) defines "initiative on the Constitution" and includes it in the enumeration of the three systems of initiative in Section 3; (c) speaks of "plebiscite" as the process by which the proposition in an initiative on the Constitution may be approved or rejected by the people; (d) reiterates the constitutional requirements as to the number of voters who should sign the petition; and (e) provides for the date of effectivity of the approved proposition.

There was, therefore, an obvious downgrading of the more important or the paramount system of initiative. RA. No. 6735 thus delivered a humiliating blow to the system of initiative on amendments to the Constitution by merely paying it a reluctant lip service. 57

The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. Its lacunae on this substantive matter are fatal and cannot be cured by "empowering" the COMELEC "to promulgate such rules and regulations as may be necessary to carry out the purposes of [the] Act. 58

The rule is that what has been delegated, cannot be delegated or as expressed in a Latin maxim: potestas delegata non delegari potest. 59 The recognized exceptions to the rule are as follows:

(1) Delegation of tariff powers to the President under Section 28(2) of Article VI of the Constitution;

(2) Delegation of emergency powers to the President under Section 23(2) of Article VI of the Constitution;

(3) Delegation to the people at large;

(4) Delegation to local governments; and

(5) Delegation to administrative bodies. 60

Empowering the COMELEC, an administrative body exercising quasi-judicial functions, to promulgate rules and regulations is a form of delegation of legislative authority under no. 5 above. However, in every case of permissible delegation, there must be a showing that the delegation itself is valid. It is valid only if the law (a) is complete in itself, setting forth therein the policy to be executed, carried out, or implemented by the delegate; and (b) fixes a standard — the limits of which are sufficiently determinate and determinable — to which the delegate must conform in the performance of his functions. 61 A sufficient standard is one which defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative command is to be effected. 62

Insofar as initiative to propose amendments to the Constitution is concerned, R.A. No. 6735 miserably failed to satisfy both requirements in subordinate legislation. The delegation of the power to the COMELEC is then invalid.

III

COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND REGULATIONS ON THE CONDUCT OF INITIATIVE ON AMENDMENTS TO THE CONSTITUTION, IS VOID.

It logically follows that the COMELEC cannot validly promulgate rules and regulations to implement the exercise of the right of the people to directly propose amendments to the Constitution through the system of initiative. It does not have that power under R.A. No. 6735. Reliance on the COMELEC's power under Section 2(1) of Article IX-C of the Constitution is misplaced, for the laws and regulations referred to therein are those promulgated by the COMELEC under (a) Section 3 of Article IX-C of the Constitution, or (b) a law where subordinate legislation is authorized and which satisfies the "completeness" and the "sufficient standard" tests.

IV

COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN ENTERTAINING THE DELFIN PETITION.

Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the power of Congress to implement the right to initiate constitutional amendments, or that it has validly vested upon the COMELEC the power of subordinate legislation and that COMELEC Resolution No. 2300 is valid, the COMELEC acted without jurisdiction or with grave abuse of discretion in entertaining the Delfin Petition.

Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No. 6735, a petition for initiative on the Constitution must be signed by at least 12% of the total number of registered voters of which every legislative district is represented by at least 3% of the registered voters therein. The Delfin Petition does not contain signatures of the required number of voters. Delfin himself admits that he has not yet gathered signatures and that the purpose of his petition is primarily to obtain assistance in his drive to gather signatures. Without the required signatures, the petition cannot be deemed validly initiated.

The COMELEC acquires jurisdiction over a petition for initiative only after its filing. The petition then is theinitiatory pleading. Nothing before its filing is cognizable by the COMELEC, sitting en banc. The only participation of the COMELEC or its personnel before the filing of such petition are (1) to prescribe the form of the petition; 63(2) to issue through its Election Records and Statistics Office a certificate on the total number of registered voters in each legislative district; 64 (3) to assist, through its election registrars, in the establishment of signature stations; 65 and (4) to verify, through its election registrars, the signatures on the basis of the registry list of voters, voters' affidavits, and voters' identification cards used in the immediately preceding election. 66

Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and COMELEC Resolution No. 2300, it cannot be entertained or given cognizance of by the COMELEC. The respondent Commission must have known that the petition does not fall under any of the actions or proceedings under the COMELEC Rules of Procedure or under Resolution No. 2300, for which reason it did not assign to the petition a docket number. Hence, the said petition was merely entered as UND, meaning, undocketed. That petition was nothing more than a mere scrap of paper, which should not have been dignified by the Order of 6 December 1996, the hearing on 12 December 1996, and the order directing Delfin and the oppositors to file their memoranda or oppositions. In so dignifying it, the COMELEC acted without jurisdiction or with grave abuse of discretion and merely wasted its time, energy, and resources.

The foregoing considered, further discussion on the issue of whether the proposal to lift the term limits of elective national and local officials is an amendment to, and not a revision of, the Constitution is rendered unnecessary, if not academic.

CONCLUSION

This petition must then be granted, and the COMELEC should be permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system.

We feel, however, that the system of initiative to propose amendments to the Constitution should no longer be kept in the cold; it should be given flesh and blood, energy and strength. Congress should not tarry any longer in complying with the constitutional mandate to provide for the implementation of the right of the people under that system.

WHEREFORE, judgment is hereby rendered

a) GRANTING the instant petition;

b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to the Constitution, and to have failed to provide sufficient standard for subordinate legislation;

c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections prescribing rules and regulations on the conduct of initiative or amendments to the Constitution; and

d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-037).

The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the Commission on Elections, but is LIFTED as against private respondents.

Resolution on the matter of contempt is hereby reserved.

SO ORDERED.

G.R. No. 174153             October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH 6,327,952 REGISTERED VOTERS,Petitioners, vs.THE COMMISSION ON ELECTIONS, Respondent.

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

ALTERNATIVE LAW GROUPS, INC., Intervenor.

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

ONEVOICE INC., CHRISTIAN S.MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE, and CARLOS P. MEDINA, JR., Intervenors.

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ATTY. PETE QUIRINO QUADRA, Intervenor.

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

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

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ARTURO M. DE CASTRO, Intervenor.

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TRADE UNION CONGRESS OF THE PHILIPPINES, Intervenor.

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LUWALHATI RICASA ANTONINO, Intervenor.

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PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS, and AMADO GAT INCIONG, Intervenors.

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

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

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

PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and MR. VICTORINO F. BALAIS, Intervenors.

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SENATE OF THE PHILIPPINES, represented by its President, MANUEL VILLAR, JR., Intervenor.

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

SULONG BAYAN MOVEMENT FOUNDATION, INC., Intervenor.

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

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INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND CEBU PROVINCE CHAPTERS, Intervenors.

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SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR. and SENATORS SERGIO R. OSMENA III, JAMBY MADRIGAL, JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO LACSON, Intervenors.

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JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO, Intervenors.

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G.R. No. 174299             October 25, 2006

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

D E C I S I O N

CARPIO, J.:

The Case

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

Antecedent Facts

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

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

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

DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM, AND PROVIDING ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO THE OTHER?

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

The Ruling of the COMELEC

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

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

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

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

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

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

The Issues

The petitions raise the following issues:

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

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

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

The Ruling of the Court

There is no merit to the petition.

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

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

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

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

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

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

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

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

MR. SUAREZ: The people themselves, Madam President.

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

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

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

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

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

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

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

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

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

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

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

Moreover, "an initiative signer must be informed at the time of signing of the nature and effect of that which is proposed" and failure to do so is "deceptive and misleading" which renders the initiative void.19

Section 2, Article XVII of the Constitution does not expressly state that the petition must set forth the full text of the proposed amendments. However, the deliberations of the framers of our Constitution clearly show that the framers intended to adopt the relevant American jurisprudence on people's initiative. In particular, the deliberations of the Constitutional Commission explicitly reveal that the framers intended that the people must first see the full text of the proposed amendments before they sign, and that the people must sign on a petition containing such full text. Indeed, Section 5(b) of Republic Act No. 6735, the Initiative and Referendum Act that the Lambino Group invokes as valid, requires that the people must sign the "petition x x x as signatories."

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

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

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

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

Province: City/Municipality: No. of

Verified

Signatures:

Legislative District: Barangay:

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

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

Precinct Number

Name

Last Name, First Name, M.I.

Address Birthdate

MM/DD/YY

Signature Verification

12345678910

_________________Barangay Official

(Print Name and Sign)

_________________Witness

(Print Name and Sign)

__________________Witness

(Print Name and Sign)

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

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

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

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

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

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

RESOLUTION NO. 2006-02

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

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

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

WHEREAS, the People's Consultative Commission on Charter Change created by Her Excellency to recommend amendments to the 1987 Constitution has submitted its final report sometime in December 2005;

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

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

WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, THAT ALL THE MEMBER-LEAGUES OF THE UNION OF LOCAL AUTHORITIES OF THE PHILIPPINES (ULAP) SUPPORT THE PORPOSALS (SIC) OF THE PEOPLE'S CONSULATATIVE (SIC) COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION;

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

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

For example, the proposed revisions of the Consultative Commission affect all provisions of the existing Constitution, from the Preamble to the Transitory Provisions. The proposed revisions have profound impact on the Judiciary and the National Patrimony provisions of the existing

Constitution, provisions that the Lambino Group's proposed changes do not touch. The Lambino Group's proposed changes purport to affect only Articles VI and VII of the existing Constitution, including the introduction of new Transitory Provisions.

The ULAP adopted Resolution No. 2006-02 on 14 January 2006 or more than six months before the filing of the 25 August 2006 petition or the 30 August 2006 amended petition with the COMELEC. However, ULAP Resolution No. 2006-02 does not establish that ULAP or the Lambino Group caused the circulation of the draft petition, together with the signature sheets, six months before the filing with the COMELEC. On the contrary, ULAP Resolution No. 2006-02 casts grave doubt on the Lambino Group's claim that they circulated the draft petition together with the signature sheets. ULAP Resolution No. 2006-02 does not refer at all to the draft petition or to the Lambino Group's proposed changes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In any event, the Lambino Group's signature sheets do not contain the full text of the proposed changes, either on the face of the signature sheets, or as attachment with an indication in the signature sheet of such attachment.Petitioner Atty. Lambino admitted this during the oral arguments, and this admission binds the Lambino Group. This fact is also obvious from a mere reading of the signature sheet. This omission is fatal. The failure to so include the text of

the proposed changes in the signature sheets renders the initiative void for non-compliance with the constitutional requirement that the amendment must be "directly proposed by the people through initiative upon a petition." The signature sheet is not the "petition" envisioned in the initiative clause of the Constitution.

For sure, the great majority of the 6.3 million people who signed the signature sheets did not see the full text of the proposed changes before signing. They could not have known the nature and effect of the proposed changes, among which are:

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

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

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

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

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

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

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

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

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

Thus, the members of the interim Parliament will decide the expiration of their own term of office. This allows incumbent members of the House of Representatives to hold office beyond their current

three-year term of office, and possibly even beyond the five-year term of office of regular members of the Parliament. Certainly, this is contrary to the representations of Atty. Lambino and his group to the 6.3 million people who signed the signature sheets. Atty. Lambino and his group deceived the 6.3 million signatories, and even the entire nation.

This lucidly shows the absolute need for the people to sign an initiative petition that contains the full text of the proposed amendments to avoid fraud or misrepresentation. In the present initiative, the 6.3 million signatories had to rely on the verbal representations of Atty. Lambino and his group because the signature sheets did not contain the full text of the proposed changes. The result is a grand deception on the 6.3 million signatories who were led to believe that the proposed changes would require the holding in 2007 of elections for the regular Parliament simultaneously with the local elections.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The signature sheets do not explain this discrimination against the Senators. The 6.3 million people who signed the signature sheets could not have known that their signatures would be used to discriminate against the Senators. They could not have known that their signatures would be used to limit, after 30 June 2010, the interim Parliament's choice of Prime Minister only to members of the existing House of Representatives.

An initiative that gathers signatures from the people without first showing to the people the full text of the proposed amendments is most likely a deception, and can operate as a gigantic fraud on the people. That is why the Constitution requires that an initiative must be "directly proposed by the people x x x in a petition" - meaning that the people must sign on a petition that contains the full text of the proposed amendments. On so vital an issue as amending the nation's fundamental law, the writing of the text of the proposed amendments cannot be hidden from the people under a general or special power of attorney to unnamed, faceless, and unelected individuals.

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

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

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

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

ARTICLE XVIIAMENDMENTS OR REVISIONS

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

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

(2) A constitutional convention.

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

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

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

MR. SUAREZ: Thank you, Madam President.

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

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

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

x x x x

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

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

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

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

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

x x x x

MR. MAAMBONG: My first question: Commissioner Davide's proposed amendment on line 1 refers to "amendments." Does it not cover the word "revision" as defined by Commissioner Padilla when he made the distinction between the words "amendments" and "revision"?

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

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

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

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

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

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

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

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

To call it an amendment is a misnomer.

Whether it be a revision or a new constitution, it is not such a measure as can be submitted to the people through the initiative. If a revision, it is subject to the requirements of Article XVII, Section 2(1); if a new constitution, it can only be proposed at a convention called in the manner provided in Article XVII, Section 1. x x x x

Similarly, in this jurisdiction there can be no dispute that a people's initiative can only propose amendments to the Constitution since the Constitution itself limits initiatives to amendments. There can be no deviation from the constitutionally prescribed modes of revising the Constitution. A

popular clamor, even one backed by 6.3 million signatures, cannot justify a deviation from the specific modes prescribed in the Constitution itself.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The proposal here to amend Section 1 of Article III of the 1968 Constitution to provide for a Unicameral Legislature affects not only many other provisions of the Constitution but provides for a change in the form of the legislative branch of government, which has

been in existence in the United States Congress and in all of the states of the nation, except one, since the earliest days. It would be difficult to visualize a more revolutionary change. The concept of a House and a Senate is basic in the American form of government. It would not only radically change the whole pattern of government in this state and tear apart the whole fabric of the Constitution, but would even affect the physical facilities necessary to carry on government.

x x x x

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

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

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

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

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

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

99. With this distinction in mind, we note that the constitutional provisions expressly provide for both "amendment" and "revision" when it speaks of legislators and constitutional delegates, while the same provisions expressly provide only for "amendment" when it speaks of the people. It would seem that the apparent distinction is based on the actual experience of the people, that on one hand the common people in general are not expected to work full-time on the matter of correcting the constitution because that is not their occupation,

profession or vocation; while on the other hand, the legislators and constitutional convention delegates are expected to work full-time on the same matter because that is their occupation, profession or vocation. Thus, the difference between the words "revision" and "amendment" pertain only to the process or procedure of coming up with the corrections, for purposes of interpreting the constitutional provisions.

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

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

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

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

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

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

We first address Mabon's argument that Article XVII, section 2(1), does not prohibit revisions instituted by initiative. In Holmes v. Appling, x x x, the Supreme Court concluded that a revision of the constitution may not be accomplished by initiative, because of the provisions

of Article XVII, section 2. After reviewing Article XVII, section1, relating to proposed amendments, the court said:

"From the foregoing it appears that Article IV, Section 1, authorizes the use of the initiative as a means of amending the Oregon Constitution, but it contains no similar sanction for its use as a means of revising the constitution." x x x x

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

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

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

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

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

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

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

Since a revision of a constitution affects basic principles, or several provisions of a constitution, a deliberative body with recorded proceedings is best suited to undertake a revision. A revision requires harmonizing not only several provisions, but also the altered principles with those that remain unaltered. Thus, constitutions normally authorize deliberative bodies like constituent

assemblies or constitutional conventions to undertake revisions. On the other hand, constitutions allow people's initiatives, which do not have fixed and identifiable deliberative bodies or recorded proceedings, to undertake only amendments and not revisions.

In the present initiative, the Lambino Group's proposed Section 2 of the Transitory Provisions states:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

5. Conclusion

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

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

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

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

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

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

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

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

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.

I

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. 8 This is especially true in cases where the power of the Presidency to initiate the of normally exercised by the legislature, is seriously doubted. Under the terms of the 1973 Constitution, the power to propose amendments o the constitution resides in the interim National Assembly in the period of transition (See. 15, Transitory provisions). After that period, and the regular National Assembly in its active session, the power to propose amendments becomes ipso facto the prerogative of the regular National Assembly (Sec. 1, pars. 1 and 2 of Art. XVI, 1973 constitution). The normal course has not been followed. Rather than calling the National Assembly to constitute itself into a constituent assembly the incumbent President undertook the proposal of amendments and submitted the proposed amendments thru Presidential Decree 1033 to the people in a Referendum-Plebiscite on October 16. Unavoidably, the regularity regularity of the procedure for amendments, written in lambent words in the very Constitution sought to be amended, raises a contestable issue. The implementing Presidential Decree Nos. 991, 1031, and 1033, which commonly purport to have the force and effect of legislation are assailed as invalid, thus the issue of the validity of said Decrees is plainly a justiciable one, within the competence of this Court to pass upon. Section 2 (2), Article X of the new Constitution provides: "All cases involving the constitutionality of a treaty, executive agreement, or law may shall be heard and decided by the Supreme Court en banc and no treaty, executive agreement, or law may be declared unconstitutional without the concurrence of at least ten Members. ..." The Supreme Court has the last word in the construction not only of treaties and statutes, but also of the Constitution itself The amending, like all other powers organized in the Constitution, is in form a delegated and hence a limited power, so that the Supreme Court is vested with that authorities to determine whether that power has been discharged within its limits.

Political questions are neatly associated with the wisdom, of the legality of a particular act. Where the vortex of the controversy refers to the legality or validity of the contested act, that matter is definitely justiciable or non-political. What is in the heels of the Court is not the wisdom of the act of the incumbent President in proposing amendments to the Constitution, but his constitutional authority to perform such act or to assume the power of a constituent assembly. Whether the amending process confers on the President that power to propose amendments is therefore a downright justiciable question. Should the contrary be found, the actuation of the President would merely be a brutum fulmen. If the Constitution provides how it may be amended, the judiciary as the interpreter of that Constitution, can declare whether the procedure followed or the authority assumed was valid or not. 10

We cannot accept the view of the Solicitor General, in pursuing his theory of non-justiciability, that the question of the President's authority to propose amendments and the regularity of the procedure adopted for submission of the proposal to the people ultimately lie in the judgment of the A clear Descartes fallacy of vicious circle. Is it not that the people themselves, by their sovereign act, provided for the authority and procedure for the amending process when they ratified the present Constitution in 1973? Whether, therefore, the constitutional provision has been followed or not is the proper subject of inquiry, not by the people themselves of course who exercise no power of judicial but by the Supreme Court in whom the people themselves vested that power, a power which includes the competence to determine whether the constitutional norms for amendments have been observed or not. And, this inquiry must be done a prior not a posterior i.e., before the submission to and ratification by the people.

Indeed, the precedents evolved by the Court or, prior constitutional cases underline the preference of the Court's majority to treat such issue of Presidential role in the amending process as one of non-political impression. In the Plebiscite Cases, 11 the contention of the Solicitor General that the issue on the legality of Presidential Decree No. 73 "submitting to the Pilipino people (on January 15, 1973) for ratification or rejection the Constitution of the Republic of the Philippines proposed by the 1971 Constitutional Convention and appropriating fund s therefore "is a political one, was rejected and the Court unanimously considered the issue as justiciable in nature. Subsequently in the Ratification Cases 12involving the issue of whether or not the validity of Presidential Proclamation No. 1102. announcing the Ratification by the Filipino people of the constitution proposed by the 1971 Constitutional Convention," partakes of the nature of a political question, the affirmative stand of' the Solicitor General was dismissed, the Court ruled that the question raised is justiciable. Chief Justice Concepcion, expressing the majority view, said, Thus, in the aforementioned plebiscite cases, We rejected the theory of the respondents therein that the question whether Presidential Decree No. 73 calling a plebiscite to be held on January 15, 1973, for the ratification or rejection of the proposed new Constitution, was valid or not, was not a proper subject of judicial inquiry because, they claimed, it partook of a political nature, and We unanimously declared that the issue was a justiciable one. With Identical unanimity. We overruled the respondent's contention in the 1971 habeas corpus cases, questioning Our authority to determine the constitutional sufficiency of the factual bases of the Presidential proclamation suspending the privilege of the writ of habeas corpus on August 21, 1971, despite the opposite view taken by this Court in Barcelon vs. Baker and Montenegro vs. Castaneda, insofar as it adhered to the former case, which view We, accordingly, abandoned and refused to apply. For the same reason, We did not apply and expressly modified, in Gonzales vs. Commission on Elections, the political-question theory adopted in Mabanag vs. Lopez Vito." 13 The return to Barcelon vs. Baker and Mabanag vs. Lopez Vito, urged by the Solicitor General, was decisively refused by the Court. Chief Justice Concepcion continued: "The reasons adduced in support thereof are, however, substantially the same as those given in support on the political question theory advanced in said habeas corpus and plebiscite cases, which were carefully considered by this Court and found by it to be legally unsound and constitutionally untenable. As a consequence. Our decisions in the aforementioned habeas corpus cases partakes of the nature and effect of a stare decisis which gained added weight by its virtual reiteration."

II

The amending process as laid out

in the new Constitution.

1. Article XVI of the 1973 Constitution on Amendments ordains:

SECTION 1. (1) Any amendment to, or revision of, this Constitution may be proposed by the National Assembly upon a vote of three-fourths of all its Members, or by a constitutional convention. (2) The National Assembly may, by a vote of two-thirds of all its Members, call a constitutional convention or, by a majority vote of all its Members, submit the question of calling such a convention to the electorate in an election.

SECTION 2. Any amendment to, or revision of, this Constitution shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not later than three months after the approval of such amendment or revision.

In the present period of transition, the interim National Assembly instituted in the Transitory Provisions is conferred with that amending power. Section 15 of the Transitory Provisions reads:

SECTION 15. The interim National Assembly, upon special call by the interim Prime Minister, may, by a majority vote of all its Members, propose amendments to this Constitution. Such amendments shall take effect when ratified in accordance with Article Sixteen hereof.

There are, therefore, two periods contemplated in the constitutional life of the nation, i.e., period of normalcy and period of transition. In times of normally, the amending process may be initiated by the proposals of the (1) regular National Assembly upon a vote of three-fourths of all its members; or (2) by a Constitutional Convention called by a vote of two-thirds of all the Members of the National Assembly. However the calling of a Constitutional Convention may be submitted to the electorate in an election voted upon by a majority vote of all the members of the National Assembly. In times of transition, amendments may be proposed by a majority vote of all the Members of the National Assembly upon special call by the interim Prime Minister,.

2. This Court in Aquino v. COMELEC," had already settled that the incumbent President is vested with that prerogative of discretion as to when he shall initially convene the interim National Assembly. Speaking for the majority opinion in that case, Justice Makasiar said: "The Constitutional Convention intended to leave to the President the determination of the time when he shall initially convene the interim National Assembly, consistent with the prevailing conditions of peace and order in the country." Concurring, Justice Fernandez, himself a member of that Constitutional Convention, revealed: "(W)hen the Delegates to the Constitutional Convention voted on the Transitory Provisions, they were aware of the fact that under the same, the incumbent President was given the discretion as to when he could convene the interim National Assembly; it was so stated plainly by the sponsor, Delegate Yaneza; as a matter of fact, the proposal that it be convened 'immediately', made by Delegate Pimentel (V) was rejected. The President's decision to defer the convening of the interim National Assembly soon found support from the people themselves. In the plebiscite of January 10-15, 1973, at which the ratification of the 1973 Constitution was submitted, the people voted against the convening of the interim National Assembly. In the referendum of July 24, 1973, the Citizens Assemblies ("bagangays") reiterated their sovereign will to withhold the convening of the interim National Assembly. Again, in the referendum of February 27, 1975, the proposed question of whether the interim National Assembly shall be initially convened was eliminated, because some of the members of Congress and delegates of the Constitutional Convention, who were deemed automatically members of the I interim National Assembly, were against its inclusion since in that referendum of January, 1973, the people had already resolved against it.

3. In sensu strictiore, when the legislative arm of the state undertakes the proposals of amendment to a Constitution, that body is not in the usual function of lawmaking. lt is not legislating when engaged in the amending process.16 Rather, it is exercising a peculiar power bestowed upon it by the fundamental charter itself. In the Philippines, that power is provided for in Article XVI of the 1973 Constitution (for the regular National Assembly) or in Section 15 of the Transitory Provisions (for the National Assembly). While ordinarily it is the business of the legislating body to legislate for the nation by virtue of constitutional conferment amending of the Constitution is not legislative in character. In political science a distinction is made between constitutional content of an organic character and that of a legislative character'. The distinction, however, is one of policy, not of law. 17Such being the case, approval of the President of any proposed amendment is a misnomer 18 The prerogative of the President to approve or disapprove applies only to the ordinary cases of legislation. The President has nothing to do with proposition or adoption of amendments to the Constitution. 19

III

Concentration of Powers

in the President during

crisis government.

1. In general, the governmental powers in crisis government the Philippines is a crisis government today are more or less concentrated in the President. 20 According to Rossiter, "(t)he concentration of government power in a democracy faced by an emergency is a corrective to the crisis inefficiencies inherent in the doctrine of the separation of powers. In most free states it has generally been regarded as imperative that the total power of the government be parceled out among three mutually independent branches executive, legislature, and judiciary. It is believed to be destructive of constitutionalism if any one branch should exercise any two or more types of power, and certainly a total disregard of the separation of powers is, as Madison wrote in the Federalist, No. 47, 'the very definition of tyranny.' In normal times the separation of powers forms a distinct obstruction to arbitrary governmental action. By this same token, in abnormal times it may form an insurmountable barrier to a decisive emergency action in behalf of the state and its independent existence. There are moments in the life of any government when all powers must work together in unanimity of purpose and action, even if this means the temporary union of executive, legislative, and judicial power in the hands of one man. The more complete the separation of powers in a constitutional system, the more difficult and yet the more necessary will be their fusion in time of crisis. This is evident in a comparison of the crisis potentialities of the cabinet and presidential systems of government. In the former the all-important harmony of legislature and executive is taken for granted; in the latter it is neither guaranteed nor to be to confidently expected. As a result, cabinet is more easily established and more trustworthy than presidential dictatorship. The power of the state in crisis must not only be concentrated and expanded; it must also be freed from the normal system of constitutional and legal limitations. 21 John Locke, on the other hand, claims for the executive in its own right a broad discretion capable even of setting aside the ordinary laws in the meeting of special exigencies for which the legislative power had not provided. 22 The rationale behind such broad emergency powers of the Executive is the release of the government from "the paralysis of constitutional restrains" so that the crisis may be ended and normal times restored.

2. The presidential exercise of legislative powers in time of martial law is now a conceded valid at. That sun clear authority of the President is saddled on Section 3 (pars. 1 and 2) of the Transitory Provisions, thus: 23

The incumbent President of the Philippines shall initially convene the interim National Assembly and shall preside over its sessions until the interim Speaker shall have been elected. He shall continue to exercise his powers and prerogatives under the nineteen hundred and thirty-five Constitution and the powers vested in the President and the Prime Minister under this Constitution until the calls upon the interim National Assembly to elect the interim President and the interim Prime Minister, who shall then exercise their respective powers vested by this Constitution.

All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the incumbent President shall be part of the law of the land, and shall remain valid, binding, and effective even after lifting of martial law or the ratification of this Constitution, unless modified, revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or other acts of the incumbent President, or unless expressly and explicitly modified or repealed by the regular National Assembly.

"It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention delegate, "that the Constitutional Convention, while giving to the President the discretion when to call the interim National Assembly to session, and knowing that it may not be convened soon, would create a vacuum in the exercise of legislative powers. Otherwise, with no one to exercise the lawmaking

powers, there would be paralyzation of the entire governmental machinery." 24 Paraphrasing Rossiter, this is an extremely important factor in any constitutional dictatorship which extends over a period of time. The separation of executive and legislature ordained in the Constitution presents a distinct obstruction to efficient crisis government. The steady increase in executive power is not too much a cause for as the steady increase in the magnitude and complexity of the problems the President has been called upon by the Filipino people to solve in their behalf, which involve rebellion, subversion, secession, recession, inflation, and economic crisis-a crisis greater than war. In short, while conventional constitutional law just confines the President's power as Commander-in-Chief to the direction of the operation of the national forces, yet the facts of our political, social, and economic disturbances had convincingly shown that in meeting the same, indefinite power should be attributed to tile President to take emergency measures 25

IV

Authority of the incumbent

President t to propose

amendments to the Constitution.

1. As earlier pointed out, the power to legislate is constitutionally consigned to the interim National Assembly during the transition period. However, the initial convening of that Assembly is a matter fully addressed to the judgment of the incumbent President. And, in the exercise of that judgment, the President opted to defer convening of that body in utter recognition of the people's preference. Likewise, in the period of transition, the power to propose amendments to the Constitution lies in the interim National Assembly upon special call by the President (See. 15 of the Transitory Provisions). Again, harking to the dictates of the sovereign will, the President decided not to call the interim National Assembly. Would it then be within the bounds of the Constitution and of law for the President to assume that constituent power of the interim Assembly vis-a-vis his assumption of that body's legislative functions? The answer is yes. If the President has been legitimately discharging the legislative functions of the interim Assembly, there is no reason why he cannot validly discharge the function of that Assembly to propose amendments to the Constitution, which is but adjunct, although peculiar, to its gross legislative power. This, of course, is not to say that the President has converted his office into a constituent assembly of that nature normally constituted by the legislature. Rather, with the interim National Assembly not convened and only the Presidency and the Supreme Court in operation, the urges of absolute necessity render it imperative upon the President to act as agent for and in behalf of the people to propose amendments to the Constitution. Parenthetically, by its very constitution, the Supreme Court possesses no capacity to propose amendments without constitutional infractions. For the President to shy away from that actuality and decline to undertake the amending process would leave the governmental machineries at a stalemate or create in the powers of the State a destructive vacuum, thereby impeding the objective of a crisis government "to end the crisis and restore normal times." In these parlous times, that Presidential initiative to reduce into concrete forms the constant voices of the people reigns supreme. After all, constituent assemblies or constitutional conventions, like the President now, are mere agents of the people .26

2. The President's action is not a unilateral move. As early as the referendums of January 1973 and February 1975, the people had already rejected the calling of the interim National Assembly. The Lupong Tagapagpaganap of the Katipunan ng mga Sanggunian, the Pambansang Katipunan ng mga Barangay, and the Pambansang Katipunan ng mga Barangay, representing 42,000 barangays, about the same number of Kabataang Barangay organizations, Sanggunians in 1,458 municipalities, 72 provinces, 3 sub-provinces, and 60 cities had informed the President that the prevailing sentiment of the people is for the abolition of the interim National Assembly. Other issues concerned the lifting of martial law and amendments to the Constitution .27 The national organizations of Sangguniang Bayan presently proposed to settle the issues of martial law, the interim Assembly, its replacement, the period of its existence, the length of the period for the

exercise by the President of its present powers in a referendum to be held on October 16 .  28 The Batasang Bayan (legislative council) created under Presidential Decree 995 of September 10, 1976, composed of 19 cabinet members, 9 officials with cabinet rank, 91 members of the Lupong Tagapagpaganap (executive committee) of the Katipunan ng mga Sangguniang Bayan voted in session to submit directly to the people in a plebiscite on October 16, the previously quoted proposed amendments to the Constitution, including the issue of martial law .29 Similarly, the "barangays" and the "sanggunians" endorsed to the President the submission of the proposed amendments to the people on October 16. All the foregoing led the President to initiate the proposal of amendments to the Constitution and the subsequent issuance of Presidential Decree No, 1033 on September 22, 1976 submitting the questions (proposed amendments) to the people in the National Referendum-Plebiscite on October 16.

V

The People is Sovereign

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

2. The October 16 referendum-plebiscite is a resounding call to the people to exercise their sovereign power as constitutional legislator. The proposed amendments, as earlier discussed, proceed not from the thinking of a single man. Rather, they are the collated thoughts of the sovereign will reduced only into enabling forms by the authority who can presently exercise the powers of the government. In equal vein, the submission of those proposed amendments and the question of martial law in a referendum-plebiscite expresses but the option of the people themselves implemented only by the authority of the President. Indeed, it may well be said that the amending process is a sovereign act, although the authority to initiate the same and the procedure to be followed reside somehow in a particular body.

VI

Referendum-Plebiscite not

rendered nugatory by the

participation of the 15-year olds.

1. October 16 is in parts a referendum and a plebiscite. The question - (1) Do you want martial law to be continued? - is a referendum question, wherein the 15-year olds may participate. This was prompted by the desire of the Government to reach the larger mas of the people so that their true pulse may be felt to guide the President in pursuing his program for a New Order. For the succeeding question on the proposed amendments, only those of voting age of 18 years may participate. This is the plebiscite aspect, as contemplated in Section 2, Article XVI of the new Constitution. 36 On this second question, it would only be the votes of those 18 years old and above which will have valid bearing on the results. The fact that the voting populace are simultaneously asked to answer the referendum question and the plebiscite question does not infirm the referendum-plebiscite. There is nothing objectionable in consulting the people on a given issue, which is of current one and

submitting to them for ratification of proposed constitutional amendments. The fear of commingled votes (15-year olds and 18-year olds above) is readily dispelled by the provision of two ballot boxes for every barangay center, one containing the ballots of voters fifteen years of age and under eighteen, and another containing the ballots of voters eighteen years of age and above. 37 The ballots in the ballot box for voters fifteen years of age and under eighteen shall be counted ahead of the ballots of voters eighteen years and above contained in another ballot box. And, the results of the referendum-plebiscite shall be separately prepared for the age groupings, i.e., ballots contained in each of the two boxes.  38

2. It is apt to distinguish here between a "referendum" and a "plebiscite." A "referendum" is merely consultative in character. It is simply a means of assessing public reaction to the given issues submitted to the people foe their consideration, the calling of which is derived from or within the totality of the executive power of the President. 39It is participated in by all citizens from the age of fifteen, regardless of whether or not they are illiterates, feeble-minded, or ex- convicts .  40 A "plebiscite," on the other hand, involves the constituent act of those "citizens of the Philippines not otherwise disqualified by law, who are eighteen years of age or over, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months preceding the election Literacy, property or any other substantive requirement is not imposed. It is generally associated with the amending process of the Constitution, more particularly, the ratification aspect.

VII

1. There appeals to be no valid basis for the claim that the regime of martial law stultifies in main the freedom to dissent. That speaks of a bygone fear. The martial law regime which, in the observation of Justice Fernando, 41 is impressed with a mild character recorded no State imposition for a muffled voice. To be sure, there are restraints of the individual liberty, but on certain grounds no total suppression of that liberty is aimed at. The for the referendum-plebiscite on October 16 recognizes all the embracing freedoms of expression and assembly The President himself had announced that he would not countenance any suppression of dissenting views on the issues, as he is not interested in winning a "yes" or "no" vote, but on the genuine sentiment of the people on the issues at hand. 42 Thus, the dissenters soon found their way to the public forums, voicing out loud and clear their adverse views on the proposed amendments and even (in the valid ratification of the 1973 Constitution, which is already a settled matter. 43 Even government employees have been held by the Civil Service Commission free to participate in public discussion and even campaign for their stand on the referendum-plebiscite issues.  44

VIII

Time for deliberation

is not short.

1. The period from September 21 to October 16 or a period of 3 weeks is not too short for free debates or discussions on the referendum-plebiscite issues. The questions are not new. They are the issues of the day. The people have been living with them since the proclamation of martial law four years ago. The referendums of 1973 and 1975 carried the same issue of martial law. That notwithstanding, the contested brief period for discussion is not without counterparts in previous plebiscites for constitutional amendments. Justice Makasiar, in the Referendum Case, recalls: "Under the old Society, 15 days were allotted for the publication in three consecutive issues of the Official Gazette of the women's suffrage amendment to the Constitution before the scheduled plebiscite on April 30, 1937 (Com. Act No. 34). The constitutional amendment to append as ordinance the complicated Tydings-Kocialskowski was published in only three consecutive issues of the Official Gazette for 10 days prior to the scheduled plebiscite (Com. Act 492). For the 1940 Constitutional amendments providing for the bicameral Congress, the reelection of the President and Vice President, and the creation of the Commission on Elections, 20 days of publication in three

consecutive issues of the Official Gazette was fixed (Com Act No. 517). And the Parity Amendment, an involved constitutional amendment affecting the economy as well as the independence of the Republic was publicized in three consecutive issues of the Official Gazette for 20 days prior to the plebiscite (Rep. Act No. 73)." 45

2. It is worthy to note that Article XVI of the Constitution makes no provision as to the specific date when the plebiscite shall be held, but simply states that it "shall be held not later than three months after the approval of such amendment or revision." In Coleman v. Miller, 46 the United States Supreme court held that this matter of submission involves "an appraisal of a great variety of relevant conditions, political, social and economic," which "are essentially political and not justiciable." The constituent body or in the instant cases, the President, may fix the time within which the people may act. This is because proposal and ratification are not treated as unrelated acts, but as succeeding steps in a single endeavor, the natural inference being that they are not to be widely separated in time; second, it is only when there is deemed to be a necessity therefor that amendments are to be proposed, the reasonable implication being that when proposed, they are to be considered and disposed of presently, and third, ratification is but the expression of the approbation of the people, hence, it must be done contemporaneously. 47 In the words of Jameson, "(a)n alteration of the Constitution proposed today has relation to the sentiment and the felt needs of today, and that, if not ratified early while that sentiment may fairly be supposed to exist. it ought to be regarded as waived, and not again to be voted upon, unless a second time proposed by proper body

IN RESUME

The three issues are

1. Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and 1033 political or justiciable?

2. During the present stage of the transition period, and under, the environmental circumstances now obtaining, does the President possess power to propose amendments to the Constitution as well as set up the required machinery and prescribe the procedure for the ratification of his proposals by the people?

3. Is the submission to the people of the proposed amendments within the time frame allowed therefor a sufficient and proper submission?

Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices Enrique M. Fernando, Claudio Teehankee, Antonio P. Barredo, Cecilia Munoz Palma, Hermogenes Concepcion Jr. and Ruperto G. Martin are of the view that the question posed is justiciable, while Associate Justices Felix V. Makasiar, Felix Q. Antonio and Ramon C. Aquino hold the view that the question is political.

Upon the second issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino, Concepcion Jr. and Martin voted in the affirmative, while Associate Justices Teehankee and Munoz Palma voted in the negative. Associate Justice Fernando, conformably to his concurring and dissenting opinion in Aquino vs. Enrile (59 SCRA 183), specifically dissents from the proposition that there is concentration of powers in the Executive during periods of crisis, thus raising serious doubts as to the power of the President to propose amendments.

Upon the third issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Aquino, Concepcion Jr. and Martin are of the view that there is a sufficient and proper submission of the proposed amendments for ratification by the people. Associate Justices Barredo and Makasiar expressed the hope, however that the period of time may be extended. Associate Justices

Fernando, Makasiar and Antonio are of the view that the question is political and therefore beyond the competence and cognizance of this Court, Associate Justice Fernando adheres to his concurrence in the opinion of Chief Justice Concepcion in Gonzales vs. COMELEC (21 SCRA 774).Associate Justices Teehankee and MUNOZ Palma hold that prescinding from the President's lack of authority to exercise the constituent power to propose the amendments, etc., as above stated, there is no fair and proper submission with sufficient information and time to assure intelligent consent or rejection under the standards set by this Court in the controlling cases of Gonzales, supra, and Tolentino vs. COMELEC (41 SCRA 702).

Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino, Concepcion Jr. and Martin voted to dismiss the three petitions at bar. For reasons as expressed in his separate opinion, Associate Justice Fernando concurs in the result. Associate Justices Teehankee and Munoz Palma voted to grant the petitions.

ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are hereby dismissed. This decision is immediately executory.

SO ORDERED.

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.

R E S O L U T I O N

 

CONCEPCION, C.J.:

The above-entitled five (5) cases are a sequel of cases G.R. Nos. L-35925, L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965 and L-35979, decided on January 22, 1973, to which We will hereafter refer collectively as the plebiscite cases.

Background of the Plebiscite Cases.

The factual setting thereof is set forth in the decision therein rendered, from which We quote:

On March 16, 1967, Congress of the Philippines passed Resolution No. 2, which was amended by Resolution No. 4 of said body, adopted on June 17, 1969, calling a Convention to propose amendments to the Constitution of the Philippines. Said Resolution No. 2, as amended, was implemented by Republic Act No. 6132, approved on August 24, 1970, pursuant to the provisions of which the election of delegates to said Convention was held on November 10, 1970, and the 1971 Constitutional Convention began to perform its functions on June 1, 1971. While the Convention was in session on September 21, 1972, the President issued Proclamation No. 1081 placing the entire Philippines under Martial Law. On November 29, 1972, the Convention approved its Proposed Constitution of the Republic of the Philippines. The next day, November 30, 1972, the President of the Philippines issued Presidential Decree No. 73, "submitting to the Filipino people for ratification or rejection the Constitution of the Republic of the Philippines proposed by the 1971 Constitutional Convention, and appropriating funds therefor," as well as setting the plebiscite for said ratification or rejection of the Proposed Constitution on January 15, 1973.

Soon after, or on December 7, 1972, Charito Planas filed, with this Court, Case G.R. No. L-35925, against the Commission on Elections, the Treasurer of the Philippines and the Auditor General, to enjoin said "respondents or their agents from implementing Presidential Decree No. 73, in any manner, until further orders of the Court," upon the grounds, inter alia, that said Presidential Decree "has no force and

effect as law because the calling ... of such plebiscite, the setting of guidelines for the conduct of the same, the prescription of the ballots to be used and the question to be answered by the voters, and the appropriation of public funds for the purpose, are, by the Constitution, lodged exclusively in Congress ...," and "there is no proper submission to the people of said Proposed Constitution set for January 15, 1973, there being no freedom of speech, press and assembly, and there being no sufficient time to inform the people of the contents thereof."

Substantially identical actions were filed, on December 8, 1972, by Pablo C. Sanidad against the Commission on Elections (Case G.R. No. L- 35929) on December 11, 1972, by Gerardo Roxas, et al., against the Commission on Elections, the Director of Printing, the National Treasurer and the Auditor General (Case G.R. L-35940), by Eddie B. Monteclaro against the Commission on Elections and the Treasurer of the Philippines (Case G.R. No. L-35941), and by Sedfrey Ordoñez, et al. against the National Treasurer and the Commission on Elections (Case G.R. No. L-35942); on December 12, 1972, by Vidal Tan, et al., against the Commission on Elections, the Treasurer of the Philippines, the Auditor General and the Director of Printing (Case G.R. No. L-35948) and by Jose W. Diokno and Benigno S. Aquino against the Commission on Elections (Case G.R. No. L-35953); on December 14, 1972, by Jacinto Jimenez against the Commission on Elections, the Auditor General, the Treasurer of the Philippines and the Director of the Bureau of Printing (Case G.R. No. L-35961), and by Raul M. Gonzales against the Commission on Elections, the Budget Commissioner, the National Treasurer and the Auditor General (Case G.R. No. L-35965); and on December 16, 1972, by Ernesto C. Hidalgo against the Commission on Elections, the Secretary of Education, the National Treasurer and the Auditor General (Case G.R. No. L-35979).

In all these cases, except the last (G.R. No. L-35979), the respondents were required to file their answers "not later than 12:00 (o'clock) noon of Saturday, December 16, 1972." Said cases were, also, set for hearing and partly heard on Monday, December 18, 1972, at 9:30 a.m. The hearing was continued on December 19, 1972. By agreement of the parties, the aforementioned last case — G.R. No. L-35979 — was, also, heard, jointly with the others, on December 19, 1972. At the conclusion of the hearing, on that date, the parties in all of the aforementioned cases were given a short period of time within which "to submit their notes on the points they desire to stress." Said notes were filed on different dates, between December 21, 1972, and January 4, 1973.

Meanwhile, or on December 17, 1972, the President had issued an order temporarily suspending the effects of Proclamation No. 1081, for the purpose of free and open debate on the Proposed Constitution. On December 23, the President announced the postponement of the plebiscite for the ratification or rejection of the Proposed Constitution. No formal action to this effect was taken until January 7, 1973, when General Order No. 20 was issued, directing "that the plebiscite scheduled to be held on January 15, 1978, be postponed until further notice." Said General Order No. 20, moreover, "suspended in the meantime" the "order of December 17, 1972, temporarily suspending the effects of Proclamation No. 1081 for purposes of free and open debate on the proposed Constitution."

In view of these events relative to the postponement of the aforementioned plebiscite, the Court deemed it fit to refrain, for the time being, from deciding the aforementioned cases, for neither the date nor the conditions under which said

plebiscite would be held were known or announced officially. Then, again, Congress was, pursuant to the 1935 Constitution, scheduled to meet in regular session on January 22, 1973, and since the main objection to Presidential Decree No. 73 was that the President does not have the legislative authority to call a plebiscite and appropriate funds therefor, which Congress unquestionably could do, particularly in view of the formal postponement of the plebiscite by the President — reportedly after consultation with, among others, the leaders of Congress and the Commission on Elections — the Court deemed it more imperative to defer its final action on these cases.

"In the afternoon of January 12, 1973, the petitioners in Case G.R. No. L-35948 filed an "urgent motion," praying that said case be decided "as soon as possible, preferably not later than January 15, 1973." It was alleged in said motion, inter alia:

"6. That the President subsequently announced the issuance of Presidential Decree No. 86 organizing the so-called Citizens Assemblies, to be consulted on certain public questions [Bulletin Today, January 1, 1973];

"7. That thereafter it was later announced that "the Assemblies will be asked if they favor or oppose —

[1] The New Society;

[2] Reforms instituted under Martial Law;

[3] The holding of a plebiscite on the proposed new Constitution and when (the tentative new dates given following the postponement of the plebiscite from the original date of January 15 are February 19 and March 5);

[4] The opening of the regular session slated on January 22 in accordance with the existing Constitution despite Martial Law." [Bulletin Today, January 3, 1973.]

"8. That it was later reported that the following are to be the forms of the questions to be asked to the Citizens Assemblies: —

[1] Do you approve of the New Society?

[2] Do you approve of the reform measures under martial law?

[3] Do you think that Congress should meet again in regular session?

[4] How soon would you like the plebiscite on the new Constitution to be held? [Bulletin Today, January 5, 1973].

"9. That the voting by the so-called Citizens Assemblies was announced to take place during the period from January 10 to January 15, 1973;

"10. That on January 10, 1973, it was reported that on more question would be added to the four (4) question previously announced, and that the forms of the question would be as follows: —

[1] Do you like the New Society?

[2] Do you like the reforms under martial law?

[3] Do you like Congress again to hold sessions?

[4] Do you like the plebiscite to be held later?

[5] Do you like the way President Marcos running the affairs of the government? [Bulletin Today, January 10, 1973; emphasis an additional question.]

"11. That on January 11, 1973, it was reported that six (6) more questions would be submitted to the so-called Citizens Assemblies: —

[1] Do you approve of the citizens assemblies as the base of popular government to decide issues of national interests?

[2] Do you approve of the new Constitution?

[3] Do you want a plebiscite to be called to ratify the new Constitution?

[4] Do you want the elections to be held in November, 1973 in accordance with the provisions of the 1935 Constitution?

[5] If the elections would not be held, when do you want the next elections to be called?

[6] Do you want martial law to continue? [Bulletin Today, January 11, 1973; emphasis supplied]

"12. That according to reports, the returns with respect to the six (6) additional questions quoted above will be on a form similar or identical to Annex "A" hereof;

"13. That attached to page 1 of Annex "A" is another page, which we marked as Annex "A-1", and which reads: —

COMMENTS ON

QUESTION No. 1

In order to broaden the base of citizens' participation in government.

QUESTION No. 2

But we do not want the Ad Interim Assembly to be convoked. Or if it is to be convened at all, it should not be done so until after at least seven (7) years from the approval of the New Constitution by the Citizens Assemblies.

QUESTION No. 3

The vote of the Citizens Assemblies should already be considered the plebiscite on the New Constitution.

If the Citizens Assemblies approve of the New Constitution, then the new Constitution should be deemed ratified.

QUESTION No. 4

We are sick and tired of too frequent elections. We are fed up with politics, of so many debates and so much expenses.

QUESTION No. 5

Probably a period of at least seven (7) years moratorium on elections will be enough for stability to be established in the country, for reforms to take root and normalcy to return.

QUESTION No. 6

We want President Marcos to continue with Martial Law. We want him to exercise his powers with more authority. We want him to be strong and firm so that he can accomplish all his reform programs and establish normalcy in the country. If all other measures fail, we want President Marcos to declare a revolutionary government along the lines of the new Constitution without the ad interim Assembly."

"Attention is respectfully invited to the comments on "Question No. 3," which reads: —

QUESTION No. 3

The vote of the Citizens Assemblies should be considered the plebiscite on the New Constitution.

If the Citizens Assemblies approve of the New Constitution, then the new Constitution should be deemed ratified.

This, we are afraid, and therefore allege, is pregnant with ominous possibilities.

14. That, in the meantime, speaking on television and over the radio, on January 7, 1973, the President announced that the limited freedom of debate on the proposed Constitution was being withdrawn and that the proclamation of martial law and the orders and decrees issued thereunder would thenceforth strictly be enforced [Daily Express, January 8, 1973];

15. That petitioners have reason to fear, and therefore state, that the question added in the last list of questions to be asked to the Citizens Assemblies, namely: —

Do you approve of the New Constitution? —

in relation to the question following it: —

Do you still want a plebiscite to be called to ratify the new Constitution?" —

would be an attempt to by-pass and short-circuit this Honorable Court before which the question of the validity of the plebiscite on the proposed Constitution is now pending;

"16. That petitioners have reason to fear, and therefore allege, that if an affirmative answer to the two questions just referred to will be reported then this Honorable Court and the entire nation will be confronted with a fait accompli which has been attained in a highly unconstitutional and undemocratic manner;

"17. That the fait accompli would consist in the supposed expression of the people approving the proposed Constitution;

"18. That, if such event would happen, then the case before this Honorable Court could, to all intents and purposes, become moot because, petitioners fear, and they therefore allege, that on the basis of such supposed expression of the will of the people through the Citizens Assemblies, it would be announced that the proposed Constitution, with all its defects, both congenital and otherwise, has been ratified;

"19. That, in such a situation the Philippines will be facing a real crisis and there is likelihood of confusion if not chaos, because then, the people and their officials will not know which Constitution is in force.

"20. That the crisis mentioned above can only be avoided if this Honorable Court will immediately decide and announce its decision on the present petition;

"21. That with the withdrawal by the President of the limited freedom of discussion on the proposed Constitution which was given to the people pursuant to Sec. 3 of Presidential Decree No. 73, the opposition of respondents to petitioners' prayer at the plebiscite be prohibited has now collapsed and that a free plebiscite can no longer be held."

At about the same time, a similar prayer was made in a "manifestation" filed by the petitioners in L-35949, "Gerardo Roxas, et al. v. Commission on Elections, et al.," and L-35942, "Sedfrey A. Ordoñez, et al. v. The National Treasurer, et al."

The next day, January 13, 1973, which was a Saturday, the Court issued a resolution requiring the respondents in said three (3) cases to comment on said "urgent motion" and "manifestation," "not later than Tuesday noon, January 16, 1973." Prior thereto, or on January 15, 1973, shortly before noon, the petitioners in said Case G.R. No. L-

35948 riled a "supplemental motion for issuance of restraining order and inclusion of additional respondents," praying —

"... that a restraining order be issued enjoining and restraining respondent Commission on Elections, as well as the Department of Local Governments and its head, Secretary Jose Roño; the Department of Agrarian Reforms and its head, Secretary Conrado Estrella; the National Ratification Coordinating Committee and its Chairman, Guillermo de Vega; their deputies, subordinates and substitutes, and all other officials and persons who may be assigned such task, from collecting, certifying, and announcing and reporting to the President or other officials concerned, the so-called Citizens' Assemblies referendum results allegedly obtained when they were supposed to have met during the period comprised between January 10 and January 15, 1973, on the two questions quoted in paragraph 1 of this Supplemental Urgent Motion."

In support of this prayer, it was alleged —

"3. That petitioners are now before this Honorable Court in order to ask further that this Honorable Court issue a restraining order enjoining herein respondents, particularly respondent Commission on Elections as well as the Department of Local Governments and its head, Secretary Jose Roño; the Department of Agrarian Reforms and its head, Secretary Conrado Estrella; the National Ratification Coordinating Committee and its Chairman, Guillermo de Vega; and their deputies, subordinates and/or substitutes, from collecting, certifying, announcing and reporting to the President the supposed Citizens' Assemblies referendum results allegedly obtained when they were supposed to have met during the period between January 10 and January 15, 1973, particularly on the two questions quoted in paragraph 1 of this Supplemental Urgent Motion;

"4. That the proceedings of the so-called Citizens' Assemblies are illegal, null and void particularly insofar as such proceedings are being made the basis of a supposed consensus for the ratification of the proposed Constitution because: —

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

[b] Elections or plebiscites for the ratification of constitutional amendments contemplated in Article XV of the Constitution have provisions for the secrecy of choice and of vote, which is one of the safeguards of freedom of action, but votes in the Citizens' Assemblies were open and were cast by raising hands;

[c] The Election Code makes ample provisions for free, orderly and honest elections, and such provisions are a minimum requirement for elections or plebiscites for the ratification of constitutional

amendments, but there were no similar provisions to guide and regulate proceedings of the so called Citizens' Assemblies;

[d] It is seriously to be doubted that, for lack of material time, more than a handful of the so called Citizens' Assemblies have been actually formed, because the mechanics of their organization were still being discussed a day or so before the day they were supposed to begin functioning: —

"Provincial governors and city and municipal mayors had been meeting with barrio captains and community leaders since last Monday [January 8, 1973) to thresh out the mechanics in the formation of the Citizens Assemblies and the topics for discussion." [Bulletin Today, January 10, 1973]

"It should be recalled that the Citizens' Assemblies were ordered formed only at the beginning of the year [Daily Express, January 1, 1973], and considering the lack of experience of the local organizers of said assemblies, as well as the absence of sufficient guidelines for organization, it is too much to believe that such assemblies could be organized at such a short notice.

"5. That for lack of material time, the appropriate amended petition to include the additional officials and government agencies mentioned in paragraph 3 of this Supplemental Urgent Motion could not be completed because, as noted in the Urgent Motion of January 12, 1973, the submission of the proposed Constitution to the Citizens' Assemblies was not made known to the public until January 11, 1973. But be that as it may, the said additional officials and agencies may be properly included in the petition at bar because: —

[a] The herein petitioners have prayed in their petition for the annulment not only of Presidential Decree No. 73, but also of "any similar decree, proclamation, order or instruction.

so that Presidential Decree No. 86, insofar at least as it attempts to submit the proposed Constitution to a plebiscite by the so-called Citizens' Assemblies, is properly in issue in this case, and those who enforce, implement, or carry out the said Presidential Decree No. 86. and the instructions incidental thereto clearly fall within the scope of this petition;

[b] In their petition, petitioners sought the issuance of a writ of preliminary injunction restraining not only the respondents named in the petition but also their "agents" from implementing not only Presidential Decree No. 73, but also "any other similar decree, order, instruction, or proclamation in relation to the holding of a plebiscite on January 15, 1973 for the purpose of submitting to the Filipino people for their ratification or rejection the 1972 Draft or proposed Constitution approved by the Constitutional Convention on November 30, 1972"; and finally,

[c] Petitioners prayed for such other relief which may be just and equitable. [p. 39, Petition].

"Therefore, viewing the case from all angles, the officials and government agencies mentioned in paragraph 3 of this Supplemental Urgent Motion, can lawfully be reached by the processes of this Honorable Court by reason of this petition, considering, furthermore, that the Commission on Elections has under our laws the power, among others, of: —

(a) Direct and immediate supervision and control over national, provincial, city, municipal and municipal district officials required by law to perform duties relative to the conduct of elections on matters pertaining to the enforcement of the provisions of this Code ..." [Election Code of 1971, Sec. 3].

"6. That unless the petition at bar is decided immediately and the Commission on Elections, together with the officials and government agencies mentioned in paragraph 3 of this Supplemental Urgent Motion are restrained or enjoined from collecting, certifying, reporting or announcing to the President the results of the alleged voting of the so-called Citizens' Assemblies, irreparable damage will be caused to the Republic of the Philippines, the Filipino people, the cause of freedom an democracy, and the petitioners herein because:

[a] After the result of the supposed voting on the questions mentioned in paragraph 1 hereof shall have been announced, a conflict will arise between those who maintain that the 1935 Constitution is still in force, on the one hand, and those who will maintain that it has been superseded by the proposed Constitution, on the other, thereby creating confusion, if not chaos;

[b] Even the jurisdiction of this Court will be subject to serious attack because the advocates of the theory that the proposed Constitution has been ratified by reason of the announcement of the results of the proceedings of the so-called Citizens' Assemblies will argue that, General Order No. 3, which shall also be deemed ratified pursuant to the Transitory Provisions of the proposed Constitution, has placed Presidential Decree Nos. 73 and 86 beyond the reach and jurisdiction of this Honorable Court."

On the same date — January 15, 1973 — the Court passed a resolution requiring the respondents in said case G.R. No. L-35948 to file "file an answer to the said motion not later than 4 P.M., Tuesday, January 16, 1973," and setting the motion for hearing "on January 17, 1973, at 9:30 a.m." While the case was being heard, on the date last mentioned, at noontime, the Secretary of Justice called on the writer of this opinion and said that, upon instructions of the President, he (the Secretary of Justice) was delivering to him (the writer) a copy of Proclamation No. 1102, which had just been signed by the President. Thereupon, the writer returned to the Session Hall and announced to the Court, the parties in G.R. No. L-35948 — inasmuch as the hearing in connection therewith was still going on — and the public there present that the President had, according to information conveyed by the Secretary of Justice, signed said Proclamation No. 1102, earlier that morning. Thereupon, the writer read Proclamation No. 1102 which is of the following tenor:

"BY THE PRESIDENT OF THE PHILIPPINES

"PROCLAMATION NO. 1102

"ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.

"WHEREAS, the Constitution proposed by the nineteen hundred seventy-one Constitutional Convention is subject to ratification by the Filipino people;

"WHEREAS, Citizens Assemblies were created in barrios, in municipalities and in districts/wards in chartered cities pursuant to Presidential Decree No. 86, dated December 31, 1972, composed of all persons who are residents of the barrio, district or ward for at least six months, fifteen years of age or over, citizens of the Philippines and who are registered in the list of Citizen Assembly members kept by the barrio, district or ward secretary;

"WHEREAS, the said Citizens Assemblies were established precisely to broaden the base of citizen participation in the democratic process and to afford ample opportunity for the citizenry to express their views on important national issues;

"WHEREAS, responding to the clamor of the people and pursuant to Presidential Decree No. 86-A, dated January 5, 1973, the following questions were posed before the Citizens Assemblies or Barangays: Do you approve of the New Constitution? Do you still want a plebiscite to be called to ratify the new Constitution?

"WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty-one (14,976,561) members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed Constitution, as against seven hundred forty-three thousand eight hundred sixty-nine (743,869) who voted for its rejection; while on the question as to whether or not the people would still like a plebiscite to be called to ratify the new Constitution, fourteen million two hundred ninety-eight thousand eight hundred fourteen (14,298,814) answered that there was no need for a plebiscite and that the vote of the Barangays (Citizens Assemblies) should be considered as a vote in a plebiscite;

"WHEREAS, since the referendum results show that more than ninety-five (95) per cent of the members of the Barangays (Citizens Assemblies) are in favor of the new Constitution, the Katipunan ng Mga Barangay has strongly recommended that the new Constitution should already be deemed ratified by the Filipino people;

"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the Constitution, do hereby certify and proclaim that the Constitution proposed by the nineteen hundred and seventy-one (1971) Constitutional Convention has been ratified by an overwhelming majority of all of the votes cast by the members of all the Barangays (Citizens Assemblies) throughout the Philippines, and has thereby come into effect.

"IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the Philippines to be affixed.

"Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen hundred and seventy-three.

(Sgd.) FERDINAND E. MARCOS"President of the Philippines

"By the President:

"ALEJANDRO MELCHOR"Executive Secretary"

Such is the background of the cases submitted determination. After admitting some of the allegations made in the petition in L-35948 and denying the other allegations thereof, respondents therein alleged in their answer thereto, by way affirmative defenses: 1) that the "questions raised" in said petition "are political in character"; 2) that "the Constitutional Convention acted freely and had plenary authority to propose not only amendments but a Constitution which would supersede the present Constitution"; 3) that "the President's call for a plebiscite and the appropriation of funds for this purpose are valid"; 4) that "there is not an improper submission" and "there can be a plebiscite under Martial Law"; and 5) that the "argument that the Proposed Constitution is vague and incomplete, makes an unconstitutional delegation of power, includes a referendum on the proclamation of Martial Law and purports to exercise judicial power" is "not relevant and ... without merit." Identical defenses were set up in the other cases under consideration.

Immediately after the hearing held on January 17, 1973, or since the afternoon of that date, the Members of the Court have been deliberating on the aforementioned cases and, after extensive discussions on the merits thereof, have deemed it best that each Member write his own views thereon and that thereafter the Chief Justice should state the result or the votes thus cast on the points in issue. Hence, the individual views of my brethren in the Court are set forth in the opinions attached hereto, except that, instead of writing their separate opinions, some Members have preferred to merely concur in the opinion of one of our colleagues.

Then the writer of said decision expressed his own opinion on the issues involved therein, after which he recapitulated the views of the Members of the Court, as follows:

1. There is unanimity on the justiciable nature of the issue on the legality of Presidential Decree No. 73.

2. On the validity of the decree itself, Justices Makalintal, Castro, Fernando, Teehankee, Esguerra and myself, or six (6) Members of the Court, are of the opinion that the issue has become moot and academic, whereas Justices Barredo, Makasiar and Antonio voted to uphold the validity of said Decree.

3. On the authority of the 1971 Constitutional Convention to pass the proposed Constitution or to incorporate therein the provisions contested by the petitioners in L-35948, Justices Makalintal, Castro, Teehankee and Esguerra opine that the issue has become moot and academic. Justices Fernando, Barredo, Makasiar, Antonio and myself have voted to uphold the authority of the Convention.

4. Justice Fernando, likewise, expressed the view that the 1971 Constitutional Convention had authority to continue in the performance of its functions despite the proclamation of Martial Law. In effect, Justices Barredo, Makasiar and Antonio hold the same view.

5. On the question whether the proclamation of Martial Law affected the proper submission of the proposed Constitution to a plebiscite, insofar as the freedom essential therefor is concerned, Justice Fernando is of the opinion that there is a repugnancy between the election contemplated under Art. XV of the 1935 Constitution and the existence of Martial Law, and would, therefore, grant the petitions were they not moot and academic. Justices Barredo, Antonio and Esguerra are of the opinion that issue involves questions of fact which cannot be predetermined, and that Martial Law per se does not necessarily preclude the factual possibility of adequate freedom, for the purposes contemplated.

6. On Presidential Proclamation No. 1102, the following views were expressed:

a. Justices Makalintal, Castro, Fernando, Teehankee, Makasiar, Esguerra and myself are of the opinion that the question of validity of said Proclamation has not been properly raised before the Court, which, accordingly, should not pass upon such question.

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

c. Justice Zaldivar maintains unqualifiedly that the Proposed Constitution has not been ratified in accordance with Article XV of the 1935 Constitution, and that, accordingly, it has no force and effect whatsoever.

d. Justice Antonio feels "that the Court is not competent to act" on the issue whether the Proposed Constitution has been ratified by the people or not, "in the absence of any judicially discoverable and manageable standards," since the issue "poses a question of fact.

7. On the question whether or not these cases should be dismissed, Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra voted in the affirmative, for the reasons set forth in their respective opinions. Justices Fernando, Teehankee, and the writer similarly voted, except as regards Case No. L-35948 as to which they

voted to grant to the petitioners therein a reasonable period of time within which to file appropriate pleadings should they wish to contest the legality of Presidential Proclamation No. 1102. Justice Zaldivar favors the granting of said period to the petitioners in said Case No. L-35948 for the aforementioned purpose, but he believes, in effect, that the Court should go farther and decide on the merits everyone of the cases under consideration.

Accordingly, the Court — acting in conformity with the position taken by six (6) of its members,  1 with three (3) members dissenting, 2 with respect to G.R. No. L-35948, only and another member 3 dissenting, as regards all of the cases dismissed the same, without special pronouncement as to costs.

The Present Cases

Prior thereto, or on January 20, 1973, Josue Javellana filed Case G.R. No. L-36142 against the Executive Secretary and the Secretaries of National Defense, Justice and Finance, to restrain said respondents "and their subordinates or agents from implementing any of the provisions of the propose Constitution not found in the present Constitution" — referring to that of 1935. The petition therein, filed by Josue Javellana, as a "Filipino citizen, and a qualified and registered voter" and as "a class suit, for himself, and in behalf of all citizens and voters similarly situated," was amended on or about January 24, 1973. After reciting in substance the facts set forth in the decision in the plebiscite cases, Javellana alleged that the President had announced "the immediate implementation of the New Constitution, thru his Cabinet, respondents including," and that the latter "are acting without, or in excess of jurisdiction in implementing the said proposed Constitution" upon the ground: "that the President, as Commander-in-Chief of the Armed Forces of the Philippines, is without authority to create the Citizens Assemblies"; that the same "are without power to approve the proposed Constitution ..."; "that the President is without power to proclaim the ratification by the Filipino people of the proposed Constitution"; and "that the election held to ratify the proposed Constitution was not a free election, hence null and void."

Similar actions were filed, on January 23, 1973, by Vidal Tan, J. Antonio Araneta, Alejandro Roces, Manuel Crudo, Antonio U. Miranda, Emilio de Peralta and Lorenzo M. Tañada, against the Executive Secretary, the Secretaries of Finance, Justice, Land Reform, and National Defense, the Auditor General, the Budget Commissioner, the Chairman of the Presidential Commission on Reorganization, the Treasurer of the Philippines, the Commission on Elections and the Commissioner of Civil Service 4 on February 3, 1973, by Eddie Monteclaro, personally and as President of the National Press Club of the Philippines, against the Executive Secretary, the Secretary of Public Information, the Auditor General, the Budget Commissioner and the National Treasurer 5 and on February 12, 1973, by Napoleon V. Dilag, Alfredo Salapantan, Jr., Leonardo Asodisen, Jr. and Raul M. Gonzales, 6 against the Executive Secretary, the Secretary of National Defense, the Budget Commissioner and the Auditor General.

Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio Padilla, Jovito R. Salonga, Salvador H. Laurel, 7 Ramon V. Mitra, Jr. and Eva Estrada-Kalaw, the first as "duly elected Senator and Minority Floor Leader of the Senate," and others as "duly elected members" thereof, filed Case G.R. No. L-36165, against the Executive Secretary, the Secretary National Defense, the Chief of Staff of the Armed Forces of the Philippines, the Secretary of General Services, the President and the President Pro Tempore of the Senate. In their petition — as amended on January 26, 1973 — petitioners Gerardo Roxas, et al. allege, inter alia, that the term of office of three of the aforementioned petitioners 8 would expire on December 31, 1975, and that of the others 9 on December 31, 1977; that pursuant to our 1935 Constitution, "which is still in force Congress of the Philippines "must convene for its 8th Session on Monday, January 22, 1973, at 10:00 A.M., which is regular customary hour of its opening session"; that "on said day, from 10:00 A.M. up to the afternoon," said petitioner "along with their other colleagues, were unlawfully prevented from using the Senate Session Hall, the same having been closed by the authorities

in physical possession and control the Legislative Building"; that "(a)t about 5:00 to 6:00 P.M. the said day, the premises of the entire Legislative Building were ordered cleared by the same authorities, and no one was allowed to enter and have access to said premises"; that "(r)espondent Senate President Gil J. Puyat and, in his absence, respondent President Pro Tempore Jose Roy we asked by petitioning Senators to perform their duties under the law and the Rules of the Senate, but unlawfully refrained and continue to refrain from doing so"; that the petitioners ready and willing to perform their duties as duly elected members of the Senate of the Philippines," but respondent Secretary of National Defense, Executive Secretary and Chief of Staff, "through their agents and representatives, are preventing petitioners from performing their duties as duly elected Senators of the Philippines"; that "the Senate premise in the Congress of the Philippines Building ... are occupied by and are under the physical control of the elements military organizations under the direction of said respondents"; that, as per "official reports, the Department of General Services ... is now the civilian agency in custody of the premises of the Legislative Building"; that respondents "have unlawfully excluded and prevented, and continue to so exclude and prevent" the petitioners "from the performance of their sworn duties, invoking the alleged approval of the 1972 (1973) Constitution of the Philippines by action of the so-called Citizens' Assemblies on January 10, 1973 to January 15, 1973, as stated in and by virtue of Proclamation No. 1102 signed and issued by the President of the Philippines"; that "the alleged creation of the Citizens' Assemblies as instrumentalities for the ratification of the Constitution of the Republic of the Philippines" is inherently illegal and palpably unconstitutional; that respondents Senate President and Senate President Pro Tempore "have unlawfully refrained and continue to refrain from and/or unlawfully neglected and continue to neglect the performance of their duties and functions as such officers under the law and the Rules of the Senate" quoted in the petition; that because of events supervening the institution of the plebiscite cases, to which reference has been made in the preceding pages, the Supreme Court dismissed said cases on January 22, 1973, by a majority vote, upon the ground that the petitions therein had become moot and academic; that the alleged ratification of the 1972 (1973) Constitution "is illegal, unconstitutional and void and ... can not have superseded and revoked the 1935 Constitution," for the reasons specified in the petition as amended; that, by acting as they did, the respondents and their "agents, representatives and subordinates ...have excluded the petitioners from an office to which" they "are lawfully entitled"; that "respondents Gil J. Puyat and Jose Roy have unlawfully refrained from convening the Senate for its 8th session, assuming general jurisdiction over the Session Hall and the premises of the Senate and ... continue such inaction up to this time and ... a writ of mandamus is warranted in order to compel them to comply with the duties and functions specifically enjoined by law"; and that "against the above mentioned unlawful acts of the respondents, the petitioners have no appeal nor other speedy and adequate remedy in the ordinary course of law except by invoking the equitable remedies of mandamus and prohibition with the provisional remedy of preliminary mandatory injunction."

Premised upon the foregoing allegations, said petitioners prayed that, "pending hearing on the merits, a writ of preliminary mandatory injunction be issued ordering respondents Executive Secretary, the Secretary of National Defense, the Chief of Staff of the Armed Forces of the Philippines, and the ... Secretary of General Service, as well as all their agents, representatives and subordinates to vacate the premises of the Senate of the Philippines and to deliver physical possession of the same to the President of the Senate or his authorized representative"; and that hearing, judgment be rendered declaring null and Proclamation No. 1102 ... and any order, decree, proclamation having the same import and objective, issuing writs of prohibition and mandamus, as prayed for against above-mentioned respondents, and making the writ injunction permanent; and that a writ of mandamusbe issued against the respondents Gil J. Puyat and Jose Roy directing them to comply with their duties and functions as President and President Pro Tempore, respectively, of the Senate of Philippines, as provided by law and the Rules of the Senate."

Required to comment on the above-mentioned petitions and/or amended petitions, respondents filed, with the leave Court first had and obtained, a consolidated comment on said petitions and/or amended petitions, alleging that the same ought to have been dismissed outright; controverting petitioners' allegations concerning the alleged lack impairment of the freedom of the 1971 Constitution Convention to approve the proposed Constitution, its alleged lack of authority to

incorporate certain contested provisions thereof, the alleged lack of authority of the President to create and establish Citizens' Assemblies "for the purpose submitting to them the matter of ratification of the new Constitution," the alleged "improper or inadequate submiss of the proposed constitution," the "procedure for ratification adopted ... through the Citizens Assemblies"; a maintaining that: 1) "(t)he Court is without jurisdiction to act on these petitions"; 2) the questions raised therein are "political in character and therefore nonjusticiable"; 3) "there substantial compliance with Article XV of the 1 Constitution"; 4) "(t)he Constitution was properly submitted the people in a free, orderly and honest election; 5) "Proclamation No. 1102, certifying the results of the election, is conclusive upon the courts"; and 6) "(t)he amending process outlined in Article XV of the 1935 Constitution is not exclusive of other modes of amendment."

Respondents Puyat and Roy, in said Case G.R. No. L-36165, filed their separate comment therein, alleging that "(t)he subject matter" of said case "is a highly political question which, under the circumstances, this ...Court would not be in a position to act upon judicially," and that, in view of the opinions expressed by three members of this Court in its decision in the plebiscite cases, in effect upholding the validity of Proclamation No. 1102, "further proceedings in this case may only be an academic exercise in futility."

On February 5, 1973, the Court issued a resolution requiring respondents in L-36236 to comment on the petition therein not later than Saturday, February 10, 1973, and setting the case for hearing on February 12, 1973, at 9:30 a.m. By resolution dated February 7, 1973, this Court resolved to consider the comments of the respondents in cases G.R. Nos. L-36142, L-36164, and L-36165, as motions to dismiss the petitions therein, and to set said cases for hearing on the same date and time as L-36236. On that date, the parties in G.R. No. L-36283 10 agreed that the same be, likewise, heard, as it was, in fact, heard jointly with the aforementioned cases G.R. Nos. L-36142, L-36164, L-36165 and L-36236. The hearing, which began on February 12, 1973, shortly after 9:30 a.m., was continued not only that afternoon, but, also, on February 13, 14, 15 and 16, morning and afternoon, after which the parties were granted up to February 24, 1973, noon, within which to submit their notes of oral arguments and additional arguments, as well as the documents required of them or whose presentation was reserved by them. The same resolution granted the parties until March 1, 1973, to reply to the notes filed by their respective opponents. Counsel for the petitioners in G.R. Nos. L-36164 and L-36165 filed their aforementioned notes on February 24, 1973, on which date the Solicitor General sought an extension of time up to March 3, 1973, within which to file his notes, which was granted, with the understanding that said notes shall include his reply to the notes already filed by the petitioners in G.R. Nos. L-36164 a L-36165. Counsel for the petitioners, likewise, moved and were granted an extension of time, to expire on March 10, 1973, within which to file, as they did, their notes in reply to those submitted by the Solicitor General on March 3, 1973. On March 21, 1973, petitioners in L-36165 filed a "Manifestation a Supplemental Rejoinder," whereas the Office of the Solicitor General submitted in all these cases a "Rejoinder Petitioners' Replies."

After deliberating on these cases, the members of the Court agreed that each would write his own opinion and serve a copy thereof on his colleagues, and this they did. Subsequently, the Court discussed said opinions and votes were cast thereon. Such individual opinions are appended hereto.

Accordingly, the writer will first express his person opinion on the issues before the Court. After the exposition his aforesaid opinion, the writer will make, concurrently with his colleagues in the Court, a resume of summary of the votes cast by them in these cases.

Writer's Personal Opinion

I.

Alleged academic futility of further proceedings in G.R. L-36165.

This defense or theory, set up by counsel for respondents Gil J. Puyat and Jose Roy in G.R. No. L-36165, and, also, by the Solicitor General, is predicated upon the fact that, in Our decision in the plebiscite cases, Mr. Justice Barredo had expressed the view that the 1935 Constitution had "pro tanto passed into history" and "been legitimately supplanted by the Constitution now in force by virtue of Proclamation No. 1102 ..."; that Mr. Justice Antonio did not feel "that this Court competent to act" in said cases "in the absence of any judicially discoverable and manageable standards" and because "the access to relevant information is insufficient to assure the correct determination of the issue," apart from the circumstance that "the new constitution has been promulgated and great interests have already arisen under it" and that the political organ of the Government has recognized its provisions; whereas, Mr. Justice Esguerra had postulated that "(w)ithout any competent evidence ... about the circumstances attending the holding" of the "referendum or plebiscite" thru the Citizens' Assemblies, he "cannot say that it was not lawfully held" and that, accordingly, he assumed "that what the proclamation (No. 1102) says on its face is true and until overcome by satisfactory evidence" he could not "subscribe to the claim that such plebiscite was not held accordingly"; and that he accepted "as a fait accompli that the Constitution adopted (by the 1971 Constitutional Convention) on November 30, 1972, has been duly ratified.

Counsel for respondents Gil J. Puyat and Jose Roy goes on to say that, under these circumstances, "it seems remote or improbable that the necessary eight (8) votes under the 1935 Constitution, and much less the ten (10) votes required by the 1972 (1973) Constitution, can be obtained for the relief sought in the Amended Petition" in G.R. No. L-36165.

I am unable to share this view. To begin with, Mr. Justice Barredo announced publicly, in open court, during the hearing of these cases, that he was and is willing to be convinced that his aforementioned opinion in the plebiscite cases should be reconsidered and changed. In effect, he thus declared that he had an open mind in connection with the cases at bar, and that in deciding the same he would not necessarily adhere to said opinion if the petitioners herein succeeded in convincing him that their view should be sustained.

Secondly, counsel for the aforesaid respondents had apparently assumed that, under the 1935 Constitution, eight (8) votes are necessary to declare invalid the contested Proclamation No. 1102. I do not believe that this assumption is borne out by any provision of said Constitution. Section 10 of Article VIII thereof reads:

All cases involving the constitutionality of a treaty or law shall be heard and decided by the Supreme Court in banc, and no treaty or law may be declared unconstitutional without the concurrence of two thirds of all the members of the Court.

Pursuant to this section, the concurrence of two-thirds of all the Members of the Supreme Court is required only to declare "treaty or law" unconstitutional. Construing said provision, in a resolution dated September 16, 1949, then Chief Justice Moran, voicing the unanimous view of the Members of this Court, postulated:

... There is nothing either in the Constitution or in the Judiciary Act requiring the vote of eight Justices to nullify a rule or regulation or an executive order issued by the President. It is very significant that in the previous drafts of section 10, Article VIII of the Constitution, "executive order" and "regulation"were included among those that required for their nullification the vote of two-thirds of all the members of the Court. But "executive order" and "regulation" were later deleted from the final draft (Aruego, The Framing of the Philippine Constitution, Vol. I, pp. 495, 496), and thus a mere majority of six members of this Court is enough to nullify them. 11

The distinction is not without reasonable foundation. The two thirds vote (eight [8] votes) requirement, indeed, was made to apply only to treaty and law, because, in these cases, the participation of the two other departments of the government — the Executive and the Legislative — is present, which circumstance is absent in the case of rules, regulations and executive orders. Indeed, a law (statute) passed by Congress is subject to the approval or veto of the President, whose disapproval cannot be overridden except by the vote of two-thirds (2/3) of all members of each House of Congress. 12 A treaty is entered into by the President with the concurrence of the Senate,13 which is not required in the case of rules, regulations or executive orders which are exclusive acts of the President. Hence, to nullify the same, a lesser number of votes is necessary in the Supreme Court than that required to invalidate a law or treaty.

Although the foregoing refers to rules, regulations and executive orders issued by the President, the dictum applies with equal force to executive proclamation, like said Proclamation No. 1102, inasmuch as the authority to issue the same is governed by section 63 of the Revised Administrative Code, which provides:

Administrative acts and commands of the (Governor-General) President of the Philippines touching the organization or mode of operation of the Government or rearranging or readjusting any of the districts, divisions, parts or ports of the (Philippine Islands) Philippines and all acts and commands governing the general performance of duties by public employees or disposing of issues of general concern shall be made effective in executive orders.

Executive orders fixing the dates when specific laws, resolutions, or orders are to have or cease to (have) effect and any information concerning matters of public moment determined by law, resolution, or executive orders, may be promulgated in an executive proclamation, with all the force of an executive order. 14

In fact, while executive order embody administrative acts or commands of the President, executive proclamations are mainly informative and declaratory in character, and so does counsel for respondents Gil J. Puyat and Jose Roy maintain in G.R. No. L-36165. 15 As consequence, an executive proclamation has no more than "the force of an executive order," so that, for the Supreme Court to declare such proclamation unconstitutional, under the 1935 Constitution, the same number of votes needed to invalidate an executive order, rule or regulation — namely, six (6) votes — would suffice.

As regards the applicability of the provisions of the proposed new Constitution, approved by the 1971 Constitutional Convention, in the determination of the question whether or not it is now in force, it is obvious that such question depends upon whether or not the said new Constitution has been ratified in accordance with the requirements of the 1935 Constitution, upon the authority of which said Constitutional Convention was called and approved the proposed Constitution. It is well settled that the matter of ratification of an amendment to the Constitution should be settled by applying the provisions of the Constitution in force at the time of the alleged ratification, or the old Constitution. 16

II

Does the issue on the validity of Proclamation No. 1102 partake of the nature of a political, and, hence, non-justiciable question?

The Solicitor General maintains in his comment the affirmative view and this is his main defense. In support thereof, he alleges that "petitioners would have this Court declare as invalid the New Constitution of the Republic" from which — he claims — "this Court now derives its authority"; that

"nearly 15 million of our body politic from the age of 15 years have mandated this Constitution to be the New Constitution and the prospect of unsettling acts done in reliance on it caution against interposition of the power of judicial review"; that "in the case of the New Constitution, the government has been recognized in accordance with the New Constitution"; that "the country's foreign relations are now being conducted in accordance with the new charter"; that "foreign governments have taken note of it"; that the "plebiscite cases" are "not precedents for holding questions regarding proposal and ratification justiciable"; and that "to abstain from judgment on the ultimate issue of constitutionality is not to abdicate duty."

At the outset, it is obvious to me that We are not being asked to "declare" the new Constitution invalid. What petitioners dispute is the theory that it has been validly ratified by the people, especially that they have done so in accordance with Article XV of the 1935 Constitution. The petitioners maintain that the conclusion reached by the Chief Executive in the dispositive portion of Proclamation No. 1102 is not borne out by the whereases preceding the same, as the predicates from which said conclusion was drawn; that the plebiscite or "election" required in said Article XV has not been held; that the Chief Executive has no authority, under the 1935 Constitution, to dispense with said election or plebiscite; that the proceedings before the Citizens' Assemblies did not constitute and may not be considered as such plebiscite; that the facts of record abundantly show that the aforementioned Assemblies could not have been held throughout the Philippines from January 10 to January 15, 1973; and that, in any event, the proceedings in said Assemblies are null and void as an alleged ratification of the new Constitution proposed by the 1971 Constitutional Convention, not only because of the circumstances under which said Assemblies had been created and held, but, also, because persons disqualified to vote under Article V of the Constitution were allowed to participate therein, because the provisions of our Election Code were not observed in said Assemblies, because the same were not held under the supervision of the Commission on Elections, in violation of section 2 of Article X of the 1935 Constitution, and because the existence of Martial Law and General Order No. 20, withdrawing or suspending the limited freedom to discuss the merits and demerits of said proposed Constitution, impaired the people's freedom in voting thereon, particularly a viva voce, as it was done in many instances, as well as their ability to have a reasonable knowledge of the contents of the document on which they were allegedly called upon to express their views.

Referring now more specifically to the issue on whether the new Constitution proposed by the 1971 Constitutional Convention has been ratified in accordance with the provisions of Article XV of the 1935 Constitution is a political question or not, I do not hesitate to state that the answer must be in the negative. Indeed, such is the position taken by this Court, 17 in an endless line of decisions, too long to leave any room for possible doubt that said issue is inherently and essentially justiciable. Such, also, has been the consistent position of the courts of the United States of America, whose decisions have a persuasive effect in this jurisdiction, our constitutional system in the 1935 Constitution being patterned after that of the United States. Besides, no plausible reason has, to my mind, been advanced to warrant a departure from said position, consistently with the form of government established under said Constitution..

Thus, in the aforementioned plebiscite cases, 18 We rejected the theory of the respondents therein that the question whether Presidential Decree No. 73 calling a plebiscite to be held on January 15, 1973, for the ratification or rejection of the proposed new Constitution, was valid or not, was not a proper subject of judicial inquiry because, they claimed, it partook of a political nature, and We unanimously declared that the issue was a justiciable one. With identical unanimity, We overruled the respondents' contention in the 1971 habeas corpus cases, 19 questioning Our authority to determine the constitutional sufficiency of the factual bases of the Presidential proclamation suspending the privilege of the writ of habeas corpus on August 21, 1971, despite the opposite view taken by this Court in Barcelona v. Baker 20 and Montenegro v. Castañeda, 21insofar as it adhered to the former case, which view We, accordingly, abandoned and refused to apply. For the same reason, We did not apply and expressly modified, in Gonzales v.

Commission on Elections, 22 the political-question theory adopted in Mabanag v. Lopez Vito. 23 Hence, respondents herein urge Us to reconsider the action thus taken by the Court and to revert to and follow the views expressed in Barcelon v. Baker and Mabanag v. Lopez Vito. 24

The reasons adduced in support thereof are, however, substantially the same as those given in support of the political-question theory advanced in said habeas corpus and plebiscite cases, which were carefully considered by this Court and found by it to be legally unsound and constitutionally untenable. As a consequence, Our decision in the aforementioned habeas corpus cases partakes of the nature and effect of a stare decisis, which gained added weight by its virtual reiteration in the plebiscite cases.

The reason why the issue under consideration and other issues of similar character are justiciable, not political, is plain and simple. One of the principal bases of the non-justiciability of so-called political questions is the principle of separation of powers — characteristic of the Presidential system of government — the functions of which are classified or divided, by reason of their nature, into three (3) categories, namely: 1) those involving the making of laws, which are allocated to the legislative department; 2) those concerned mainly with the enforcement of such laws and of judicial decisions applying and/or interpreting the same, which belong to the executive department; and 3) those dealing with the settlement of disputes, controversies or conflicts involving rights, duties or prerogatives that are legally demandable and enforceable, which are apportioned to courts of justice. Within its own sphere — but only within such sphere — each department is supreme and independent of the others, and each is devoid of authority, not only to encroach upon the powers or field of action assigned to any of the other departments, but, also, to inquire into or pass upon the advisability or wisdom of the acts performed, measures taken or decisions made by the other departments — provided that such acts, measures or decisions are withinthe 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 orunqualified, the acts in the exercise of such power are said to be political in nature, and, consequently, non-justiciable or beyond judicial review. Otherwise, courts of justice would be arrogating upon themselves a power conferred by the Constitution upon another branch of the service to the exclusion of the others. Hence, in Tañada v. Cuenco, 26 this Court quoted with approval from In re McConaughy, 27 the following:

"At the threshold of the case we are met with the assertion that the questions involved are political, and not judicial. If this is correct, the court has no jurisdiction as the certificate of the state canvassing board would then be final, regardless of the actual vote upon the amendment. The question thus raised is a fundamental one; but

it has been so often decided contrary to the view contended for by the Attorney General that it would seem to be finally settled.

xxx xxx xxx

"... What is generally meant, when it is said that a question is political, and not judicial, is that it is a matter which is to be exercised by the people in their primary political capacity, or that it has been specifically delegated to some other department or particular officer of the government, with discretionary power to act. See State vs. Cunningham, 81 Wis. 497, N.W. 724, 15 L.R.A. 561; In re Gunn, 50 Kan. 155; 32 Pac. 470, 948, 19 L.R.A. 519; Green vs. Mills, 69 Fed. 852, 16 C.C.A. 516, 30 L.R.A. 90; Fletcher vs. Tuttle 151 Ill. 41, 37 N.E. 683, 25 L.R.A. 143, 42 Am. St. Rep. 220. Thus theLegislature 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 mainfunctions of courts of justice under the Presidential form of government adopted in our 1935 Constitution, and the system of checks and balances, one of its basic predicates. As a consequence, We have neither the authority nor the discretion to decline passing upon said issue, but are under the ineluctable obligation — made particularly more exacting and peremptory by our oath, as members of the highest Court of the land, to support and defend the Constitution — to settle it. This explains why, in Miller v. Johnson, 28 it was

held that courts have a "duty, rather than a power", to determine whether another branch of the government has "kept within constitutional limits." Not satisfied with this postulate, the court went farther and stressed that, if the Constitution provides how it may be amended — as it is in our 1935 Constitution — "then, unless the manner is followed, the judiciary as the interpreter of that constitution, will declare the amendment invalid." 29 In fact, this very Court — speaking through Justice Laurel, an outstanding authority on Philippine Constitutional Law, as well as one of the highly respected and foremost leaders of the Convention that drafted the 1935 Constitution — declared, as early as July 15, 1936, that "(i)n times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, thejudicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments" of the government. 30

The Solicitor General has invoked Luther v. Borden 31 in support of his stand that the issue under consideration is non-justiciable in nature. Neither the factual background of that case nor the action taken therein by the Federal Supreme Court has any similarity with or bearing on the cases under consideration.

Luther v. Borden was an action for trespass filed by Luther with the Circuit Court of the United States against Borden and others for having forcibly entered into Luther's house, in Rhode Island, sometime in 1842. The defendants who were in the military service of said former colony of England, alleged in their defense that they had acted in obedience to the commands of a superior officer, because Luther and others were engaged in a conspiracy to overthrow the government by force and the state had been placed by competent authority under Martial Law. Such authority was the charter government of Rhode Island at the time of the Declaration of Independence, for — unlike other states which adopted a new Constitution upon secession from England — Rhode Island retained its form of government under a British Charter, making only such alterations, by acts of the Legislature, as were necessary to adapt it to its subsequent condition as an independent state. It was under this form of government when Rhode Island joined other American states in the Declaration of Independence and, by subsequently ratifying the Constitution of the United States, became a member of the Union. In 1843, it adopted a new Constitution.

Prior thereto, however, many citizens had become dissatisfied with the charter government. Memorials addressed by them to the Legislature having failed to bring about the desired effect, meetings were held and associations formed — by those who belonged to this segment of the population — which eventually resulted in a convention called for the drafting of a new Constitution to be submitted to the people for their adoption or rejection. The convention was not authorized by any law of the existing government. The delegates to such convention framed a new Constitution which was submitted to the people. Upon the return of the votes cast by them, the convention declared that said Constitution had been adopted and ratified by a majority of the people and became the paramount law and Constitution of Rhode Island.

The charter government, which was supported by a large number of citizens of the state, contested, however, the validity of said proceedings. This notwithstanding, one Thomas W. Dorr, who had been elected governor under the new Constitution of the rebels, prepared to assert authority by force of arms, and many citizens assembled to support him. Thereupon, the charter government passed an Act declaring the state under Martial Law and adopted measures to repel the threatened attack and subdue the rebels. This was the state of affairs when the defendants, who were in the military service of the charter government and were to arrest Luther, for engaging in the support of the rebel government — which was never able to exercise any authority in the state — broke into his house.

Meanwhile, the charter government had taken measures to call its own convention to revise the existing form of government. Eventually, a new constitution was drafted by a convention held under the authority of the charter government, and thereafter was adopted and ratified by the people.

"(T)he times and places at which the votes were to be given, the persons who were to receive and return them, and the qualifications of the voters having all been previously authorized and provided for by law passed by the charter government," the latter formally surrendered all of its powers to the new government, established under its authority, in May 1843, which had been in operation uninterruptedly since then.

About a year before, or in May 1842, Dorr, at the head of a military force, had made an unsuccessful attempt to take possession of the state arsenal in Providence, but he was repulsed, and, after an "assemblage of some hundreds of armed men under his command at Chepatchet in the June following, which dispersed upon approach of the troops of the old government, no further effort was made to establish" his government. "... until the Constitution of 1843" — adopted under the auspices of the charter government — "went into operation, the charter government continued to assert its authority and exercise its powers and to enforce obedience throughout the state ... ."

Having offered to introduce evidence to prove that the constitution of the rebels had been ratified by the majority of the people, which the Circuit Court rejected, apart from rendering judgment for the defendants, the plaintiff took the case for review to the Federal Supreme Court which affirmed the action of the Circuit Court, stating:

It is worthy of remark, however, when we are referring to the authority of State decisions, that the trial of Thomas W. Dorr took place after the constitution of 1843 went into operation. The judges who decided that case held their authority under that constitution and it is admitted on all hands that it was adopted by the people of the State, and is the lawful and established government. It is the decision, therefore, of a State court, whose judicial authority to decide upon the constitution and laws of Rhode Island is not questioned by either party to this controversy, although the government under which it acted was framed and adopted under the sanction and laws of the charter government.

The point, then, raised here has been already decided by the courts of Rhode Island. The question relates, altogether, to the constitution and laws of that State, and the well settled rule in this court is, that the courts of the United States adopt and follow the decisions of the State courts in questions which concern merely the constitution and laws of the State.

Upon what ground could the Circuit Court of the United States which tried this case have departed from this rule, and disregarded and overruled the decisions of the courts of Rhode Island?Undoubtedly the courts of the United States have certain powers under the Constitution and laws of the United States which do not belong to the State courts. But the power of determining that a State government has been lawfully established, which the courts of the State disown and repudiate, is not one of them. Upon such a question the courts of the United States are bound to follow the decisions of the State tribunals, and must therefore regard the charter government as the lawful and established government during the time of this contest. 32

It is thus apparent that the context within which the case of Luther v. Borden was decided is basically and fundamentally different from that of the cases at bar. To begin with, the case did not involve a federal question, but one purely municipal in nature. Hence, the Federal Supreme Court was "bound to follow the decisions of the State tribunals" of Rhode Island upholding the constitution adopted under the authority of the charter government. Whatever else was said in that case constitutes, therefore, an obiter dictum. Besides, no decision analogous to that rendered by the State Court of Rhode Island exists in the cases at bar. Secondly, the states of the Union have a measure of internal

sovereignty upon which the Federal Government may not encroach, whereas ours is a unitary form of government, under which our local governments derive their authority from the national government. Again, unlike our 1935 Constitution, the charter or organic law of Rhode Island contained noprovision 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 justiciablequestion. 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 mattersother than those referring to its power to review decisions of a state court concerning the constitution and government of that state, not the Federal Constitution or Government, are manifestly neither, controlling, nor even persuasive in the present cases, having as the Federal Supreme Court admitted — no authority whatsoever to pass upon such matters or to review decisions of said state court thereon. In fact, referring to that case, the Supreme Court of Minnessota had the following to say:

Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always cited by those who assert that the courts have no power to determine questions of a political character. It is interesting historically, but it has not the slightest application to the case at bar. When carefully analyzed, it appears that it merely determines that the federal courts will accept as final and controlling a decision of the highest court of a state upon a question of the construction of the Constitution of the state. ... . 33

Baker v. Carr, 34 cited by respondents, involved an action to annul a Tennessee statute apportioning the seats in the General Assembly among the counties of the State, upon the theory that the legislation violated the equal protection clause. A district court dismissed the case upon the ground, among others, that the issue was a political one, but, after a painstaking review of the jurisprudence on the matter, the Federal Supreme Court reversed the appealed decision and held that said issue was justiciable and non-political, inasmuch as:"... (d)eciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution ... ."

Similarly, in Powell v. McCormack, 35 the same Court, speaking through then Chief Justice Warren, reversed a decision of the Court of Appeals of New York affirming that of a Federal District Court, dismissing Powell's action for a declaratory judgment declaring thereunder that he — whose qualifications were uncontested — had been unlawfully excluded from the 90th Congress of the U.S. Said dismissal was predicated upon the ground, inter alia, that the issue was political, but the Federal Supreme Court held that it was clearly a justiciable one.

The Supreme Court of Minnessota undertook a careful review of American jurisprudence on the matter. Owing to the lucidity of its appraisal thereof, We append the same to this opinion as Annex A thereof.

After an, exhaustive analysis of the cases on this subject, the Court concluded:

The authorities are thus practically uniform in holding that whether a constitutional amendment has been properly adopted according to the requirements of an existing Constitution is a judicial question. There can be little doubt that the consensus of judicial opinion is to the effect that it is the absolute duty of the judiciary to determine whether the Constitution has been amended in the manner required by the Constitution, unless a special tribunal has been created to determine the question; and even then many of the courts hold that the tribunal cannot be permitted to illegally amend the organic law. ... . 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 boundenduty 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, alladministrative 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 deputies for the purpose of insuring fee, orderly, and honest elections. The decisions, orders, and rulings of the Commission shall be subject to review by the Supreme Court.

xxx xxx xxx 39

a. Who may vote in a plebiscite under Art. V of the Constitution?

Petitioners maintain that section 1 of Art. V of the Constitution is a limitation upon the exercise of the right of suffrage. They claim that no other persons than "citizens of the Philippines not otherwise disqualified by law, who are twenty-one years of age or over and are able to read and write, and who shall have resided in the Philippines for one year and in the municipality wherein they propose to vote for at least six months preceding the election," may exercise the right of suffrage in the Philippines. Upon the other hand, the Solicitor General contends that said provision merely guarantees the right of suffrage to persons possessing the aforementioned qualifications and none of the disqualifications, prescribed by law, and that said right may be vested by competent authorities in persons lacking some or all of the aforementioned qualifications, and possessing some of the aforesaid disqualifications. In support of this view, he invokes the permissive nature of the language — "(s)uffrage may be exercised" — used in section 1 of Art. V of the Constitution, and the provisions of the Revised Barrio Charter, Republic Act No. 3590, particularly sections 4 and 6 thereof, providing that citizens of the Philippines "eighteen years of age or over," who are registered in the list of barrio assembly members, shall be members thereof and may participate as such in the plebiscites prescribed in said Act.

I cannot accept the Solicitor General's theory. Art. V of the Constitution declares who may exercise the right of suffrage, so that those lacking the qualifications therein prescribed may not exercise such right. This view is borne out by the records of the Constitutional Convention that drafted the 1935 Constitution. Indeed, section 1 of Art. V of the 1935 Constitution was largely based on the report of the committee on suffrage of the Convention that drafted said Constitution which report was, in turn, "strongly influenced by the election laws then in force in the Philippines ... ." 40 " Said committee had recommended: 1) "That the right of suffrage should exercised only by male citizens of the Philippines." 2) "That should be limited to those who could read and write." 3) "That the duty to vote should be made obligatory." It appears that the first recommendation was discussed extensively in the Convention, and that, by way of compromise, it was eventually agreed to include, in section 1 of Art. V of the Constitution, the second sentence thereof imposing upon the National Assembly established by the original Constitution — instead of the bicameral Congress subsequently created by amendment said Constitution — the duty to "extend the right of suffrage women, if in a plebiscite to, be held for that purpose within two years after the adoption of this Constitution, not less than three hundred thousand women possessing the necessary qualifications shall vote affirmatively on the question." 41

The third recommendation on "compulsory" voting was, also debated upon rather extensively, after which it was rejected by the Convention. 42 This accounts, in my opinion, for the permissive language used in the first sentence of said Art. V. Despite some debates on the age qualification — amendment having been proposed to reduce the same to 18 or 20, which were rejected, and the residence qualification, as well as the disqualifications to the exercise of the right of suffrage — the second recommendation limiting the right of suffrage to those who could "read and write" was — in the language

of Dr. Jose M. Aruego, one of the Delegates to said Convention — "readily approved in the Convention without any dissenting vote," although there was some debate on whether the Fundamental Law should specify the language or dialect that the voter could read and write, which was decided in the negative. 43

What is relevant to the issue before Us is the fact that the constitutional provision under consideration was meant to be and is a grant or conferment of a right to persons possessing the qualifications and none of the disqualifications therein mentioned, which in turn, constitute a limitation of or restriction to said right, and cannot, accordingly, be dispensed with, except by constitutional amendment. Obviously, every such constitutional grant or conferment of a right is necessarily a negation of the authority of Congress or of any other branch of the Government to deny said right to the subject of the grant — and, in this sense only, may the same partake of the nature of a guarantee. But, this does not imply not even remotely, that the Fundamental Law allows Congress or anybody else to vest in those lacking the qualifications and having the disqualifications mentioned in the Constitution the right of suffrage.

At this juncture, it is noteworthy that the committee on suffrage responsible for the adoption of section 1 of Art. V of the Constitution was "strongly influenced by the election laws then in force in the Philippines." Our first Election Law was Act 1582, passed on January 9, 1907, which was partly amended by Acts 1669, 1709, 1726 and 1768, and incorporated into the Administrative Code of 1916 — Act 2657 — as chapter 20 thereof, and then in the Administrative Code of 1917 — Act 2711 — as chapter 18 thereof, which, in turn, was amended by Act 3387, approved on December 3, 1927. Sections 431 and 432 of said Code of 1917, prescribing, respectively, the qualifications for and disqualifications from voting, are quoted below. 44 In all of these legislative acts, the provisions concerning the qualifications of voters partook of the nature of a grant or recognition of the right of suffrage, and, hence, of adenial thereof to those who lacked the requisite qualification and possessed any of the statutory disqualifications. In short, the history of section 1, Art. V of the Constitution, shows beyond doubt than the same conferred — not guaranteed — the authority to persons having the qualifications prescribed therein and none of disqualifications to be specified in ordinary laws and, necessary implication, denied such right to those lacking any said qualifications, or having any of the aforementioned disqualifications.

This view is further bolstered by the fact that the 1971 Constitutional Convention sought the submission to a plebiscite of a "partial amendment" to said section 1 of Art. V of the 1935 Constitution, by reducing the voting age from twenty-one (21) years to eighteen (18) years, which, however, did not materialize on account of the decision of this Court in Tolentino v. Commission on Elections, 45 granting the writs, of prohibition and injunction therein applied for, upon the ground that, under the Constitution, all of the amendments adopted by the Convention should be submitted in "an election" or a single election, not separately or in several or distinct elections, and that the proposed amendment sought to be submitted to a plebiscite was not even a complete amendment, but a "partial amendment" of said section 1, which could be amended further, after its ratification, had the same taken place, so that the aforementioned partial amendment was, for legal purposes, no more than a provisional or temporary amendment. Said partial amendment was predicated upon the generally accepted contemporary construction that, under the 1935 Constitution, persons below twenty-one (21) years of age could not exercise the right of suffrage, without a previous amendment of the Constitution.

Upon the other hand, the question, whether 18-year-old members of barrio assemblies may vote in barrio assembly plebiscites is, to say the least, a debatable one. Indeed, there seems to be a conflict between the last paragraph of said section 6 of Rep. Act No. 3590, 46 pursuant to which the "majority vote of all the barrio assemblymembers" (which include all barrio residents 18 years of age or over, duly registered in the list of barrio assembly members) is necessary for the approval, in an assembly plebiscite, of "any budgetary, supplemental appropriations or special tax ordinances," whereas, according to the paragraph preceding the penultimate one of said section, 47 "(a)ll duly registered barrio assembly members qualified to vote" — who, pursuant to section 10 of the same Act, must be citizens "of the Philippines, twenty-one years of age or over, able to read and write," and residents the barrio "during the

six months immediately preceding election, duly registered in the list of voters" and " otherwise disqualified ..." — just like the provisions of present and past election codes of the Philippines and Art. V of the 1935 Constitution — "may vote in the plebiscite."

I believe, however, that the apparent conflict should resolved in favor of the 21-year-old members of the assembly, not only because this interpretation is in accord with Art. V the Constitution, but, also, because provisions of a Constitution — particularly of a written and rigid one, like ours generally accorded a mandatory status — unless the intention to the contrary is manifest, which is not so as regards said Art. V — for otherwise they would not have been considered sufficiently important to be included in the Fundamental Law of the land. 48Besides, it would be illogical, if not absurd, believe that Republic Act No. 3590 requires, for the most important measures for which it demands — in addition to favorable action of the barrio council — the approval of barrio assembly through aplebiscite, lesser qualifications than those prescribed in dealing with ordinary measures for which such plebiscite need not be held.

It is similarly inconceivable that those who drafted the 1935 Constitution intended section 1 of Art. V thereof to apply only to elections of public officers, not to plebiscites for the ratification of amendments to the Fundamental Law or revision thereof, or of an entirely new Constitution, and permit the legislature to require lesser qualifications for such ratification, notwithstanding the fact that the object thereof much more important — if not fundamental, such as the basic changes introduced in the draft of the revised Constitution adopted by the 1971 Constitutional Convention, which a intended to be in force permanently, or, at least, for many decades, and to affect the way of life of the nation — and, accordingly, demands greater experience and maturity on the part of the electorate than that required for the election of public officers, 49 whose average term ranges from 2 to 6 years.

It is admitted that persons 15 years of age or over, but below 21 years, regardless of whether or not they possessed the other qualifications laid down in both the Constitution and the present Election Code, 50 and of whether or not they are disqualified under the provisions of said Constitution and Code, 51 or those of Republic Act No. 3590, 52 have participated and voted in the Citizens' Assemblies that have allegedly ratified the new or revised Constitution drafted by the 1971 Constitutional Convention.

In fact, according to the latest official data, the total number of registered voters 21 years of age or over in the entire Philippines, available in January 1973, was less than 12 million. Yet, Proclamation No. 1102 states that 14,976,56 "members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed Constitution, as against ... 743,869 who voted for its rejection," whereas, on the question whether or not the people still wanted a plebiscite to be called to ratify the new Constitution, "... 14,298,814 answered that there was no need for a plebiscite and that the vote of the Barangays (Citizens Assemblies) should be considered as a vote in a plebiscite." In other words, it is conceded that the number of people who allegedly voted at the Citizens' Assemblies for exceeded the number of registered voters under the Election Code in force in January 1973.

It is thus clear that the proceedings held in such Citizens' Assemblies — and We have more to say on this point in subsequent pages — were fundamentally irregular, in that persons lacking the qualifications prescribed in section 1 of Art. V of the Constitution were allowed to vote in said Assemblies. And, since there is no means by which the invalid votes of those less than 21 years of age can be separated or segregated from those of the qualified voters, the proceedings in the Citizens' Assemblies must be considered null and void. 53

It has been held that "(t)he power to reject an entire poll ... should be exercised ... in a case where it is impossibleto ascertain with reasonable certainty the true vote," as where "it is impossible to separate the legal votes from the illegal or spurious ... ." 54

In Usman v. Commission on Elections, et al., 55 We held:

Several circumstances, defying exact description and dependent mainly on the factual milieu of the particular controversy, have the effect of destroying the integrity and authenticity of disputed election returns and of avoiding their prima facie value and character. If satisfactorily proven, although in a summary proceeding, such circumstances as alleged by the affected or interested parties, stamp the election returns with the indelible mark of falsity and irregularity, and, consequently, of unreliability, and justify their exclusion from the canvass.

Then, too, the 1935 Constitution requires "a majority of the votes cast" for a proposed amendment to the Fundamental Law to be "valid" as part thereof, and the term "votes cast" has a well-settled meaning.

The term "votes cast" ... was held in Smith v. Renville County Commissioners, 65 N.W. 956, 64 Minn. 16, to have been used as an equivalent of "ballots cast." 56

The word "cast" is defined as "to deposit formally or officially." 57

It seems to us that a vote is cast when a ballot is deposited indicating a "choice." ... The word "cast" means "deposit (a ballot) formally or officially ... .

... In simple words, we would define a "vote cast" as the exercise on a ballot of the choice of the voter on the measure proposed. 58

In short, said Art. XV envisages — with the term "votes cast" — choices made on ballots — not orally or by raising — by the persons taking part in plebiscites. This is but natural and logical, for, since the early years of the American regime, we had adopted the Australian Ballot System, with its major characteristics, namely, uniform official ballots prepared and furnished by the Government and secrecy in the voting, with the advantage of keeping records that permit judicial inquiry, when necessary, into the accuracy of the election returns. And the 1935 Constitution has been consistently interpreted in all plebiscites for the ratification rejection of proposed amendments thereto, from 1935 to 1967. Hence, the viva voce voting in the Citizens' Assemblies was and is null and void ab initio.

b. How should the plebiscite be held? (COMELEC supervision indispensable; essential requisites)

Just as essential as compliance with said Art. V of the 19 Constitution is that of Art. X thereof, particularly its sections 1 and 2. Indeed, section 1 provides that "(t)here shall be an independent Commission on Elections ... ." The point to be stressed here is the term "independent." Indeed, why was the term used?

In the absence of said constitutional provision as to the independence of the Commission, would it have been depends upon either Congress or the Judiciary? The answer must be the negative, because the functions of the Commission — "enforcement and administration" of election laws — are neither legislative nor judicial in nature, and, hence, beyond the field allocated to either Congress or courts of justice. Said functions are by their nature essentially executive, for which reason, the Commission would be under the "control" of the President, pursuant to section 10, paragraph (1) of Art. VII of the Constitution, if Art. X thereof did not explicitly declare that it (the Commission) is an "independent" body. In other words, in amending the original 1935 Constitution, by inserting therein said Art. X, on the Commission on Elections, the purpose was to make said Commission independent principally of the Chief Executive.

And the reason therefor is, also, obvious. Prior to the creation of the Commission on Elections as a constitutional organ, election laws in the Philippines were enforced by the then Department of the Interior, through its Executive Bureau, one of the offices under the supervision and control of said Department. The same — like other departments of the Executive Branch of the Government — was, in turn, under the control of the Chief Executive, before the adoption of the 1935 Constitution, and had been — until the abolition of said Department, sometime ago — under the control of the President of the Philippines, since the effectivity of said Fundamental Law. Under the provisions thereof, the Executive could so use his power of control over the Department of the Interior and its Executive Bureau as to place the minority party at such a great, if not decisive, disadvantage, as to deprive it, in effect, of the opportunity to defeat the political party in power, and, hence, to enable the same to perpetuate itself therein. To forestall this possibility, the original 1935 Constitution was amended by the establishment of the Commission on Elections as a constitutional body independent primarily of the President of the Philippines.

The independence of the Commission was sought to be strengthened by the long term of office of its members — nine (9) years, except those first appointed 59 — the longest under the Constitution, second only to that of the Auditor General 60; by providing that they may not be removed from office except by impeachment, placing them, in this respect, on the same plane as the President, the Vice-President, the Justices of the Supreme Court and the Auditor General; that they may not be reappointed; that their salaries, "shall be neither increased nor diminished during their term of office"; that the decisions the Commission "shall be subject to review by the Supreme Court" only 61; that "(n)o pardon, parole, or suspension sentence for the violation of any election law may be granted without the favorable recommendation of the Commission" 62; and, that its chairman and members "shall not, during the continuance in office, engage in the practice of any profession or intervene, directly or indirectly, in the management or control of any private enterprise which in anyway may affected by the functions of their office; nor shall they, directly or indirectly, be financially interested in any contract with the Government or any subdivision or instrumentality thereof." 63 Thus, the framers of the amendment to the original Constitution of 1935 endeavored to do everything possible protect and insure the independence of each member of the Commission.

With respect to the functions thereof as a body, section 2 of said Art. X ordains that "(t)he Commission on Elections shall have exclusive charge of the enforcement and administration all laws relative to the conduct of elections," apart from such other "functions which may be conferred upon it by law." It further provides that the Commission "shall decide, save those involving the right to vote, all administrative question affecting elections, including the determination of the number and location of polling places, and the appointment of election inspectors and of other election officials." And, to forests possible conflicts or frictions between the Commission, on one hand, and the other offices or agencies of the executive department, on the other, said section 2 postulates that "(a)ll law enforcement agencies and instrumentalities of the Government, when so required by the Commission, shall act as its deputies for the purpose of insuring free, orderly, and honest elections." Not satisfied with this, it declares, in effect, that "(t)he decisions, orders, and ruling of the Commission" shall not be subject to review, except by the Supreme Court.

In accordance with the letter and spirit of said Art. X of the Constitution, Rep. Act No. 6388, otherwise known as the Election Code of 1971, implements the constitutional powers of the Commission on Elections and grants additional powers thereto, some of which are enumerated in sections 5 and 6 of said Act, quoted below. 64Moreover, said Act contains, inter alia, detailed provisions regulating contributions and other (corrupt) practices; the establishment of election precincts; the designation and arrangement of polling places, including voting booths, to protect the secrecy of the ballot; formation of lists of voters, the identification and registration of voters, the proceedings therefor, as well as for the inclusion in, or exclusion or cancellation from said list and the publication thereof; the establishment of municipal, provincial and files of registered voters; the composition and appointment of board of election inspectors; the particulars of the official ballots to be used and the precautions to be taken to insure authenticity thereof; the procedure for the casting of votes; the counting of votes by boards

of inspectors; the rules for the appreciation of ballots and the preparation and disposition of election returns; the constitution and operation of municipal, provincials and national boards of canvassers; the presentation of the political parties and/or their candidates in each election precinct; the proclamation of the results, including, in the case of election of public officers, election contests; and the jurisdiction of courts of justice in cases of violation of the provisions of said Election Code and the penalties for such violations.

Few laws may be found with such meticulous and elaborate set of provisions aimed at "insuring free, orderly, and honest election," as envisaged in section 2 of Art. X of the Constitution. Yet, none of the foregoing constitutional and statutory provisions was followed by the so-called Barangays or Citizens' Assemblies. And no reasons have been given, or even sought to be given therefor. In many, if not most, instances, the election were held a viva voce, thus depriving the electorate of the right to vote secretly — one of the most, fundamental and critical features of our election laws from time immemorial — particularly at a time when the same was of utmostimportance, owing to the existence of Martial Law.

In Glen v. Gnau, 65 involving the casting of many votes, openly, without complying with the requirements of the law pertinent thereto, it was held that the "election officers" involved "cannot be too strongly condemned" therefor and that if they "could legally dispense with such requirement ... they could with equal propriety dispense with all of them, including the one that the vote shall be by secret ballot, or even by ballot at all ... ."

Moreover, upon the formal presentation to the Executive of the proposed Constitution drafted by the 1971 Constitutional Convention, or on December 1, 1972, Presidential Decree No. 73 (on the validity of which — which was contested in the plebiscite cases, as well as in the 1972 habeas corpus cases 66 — We need not, in the case of bar, express any opinion) was issued, calling a plebiscite, to be held on January 15, 1973, at which the proposed Constitution would be submitted to the people for ratification or rejection; directing the publication of said proposed Constitution; and declaring, inter alia, that "(t)he provision of the Election Code of 1971, insofar as they are not inconsistent" with said decree — excepting those "regarding right and obligations of political parties and candidates" — "shall apply to the conduct of the plebiscite." Indeed, section 2 of said Election Code of 1971 provides that "(a)ll elections of public officers except barrio officials and plebiscites shall be conducted in the manner provided by this Code." General Order No. 20, dated January 7, 1973, postponing until further notice, "the plebiscite scheduled to be held on January 15, 1973," said nothing about the procedure to be followed in plebiscite to take place at such notice, and no other order or decree has been brought to Our attention, expressly or impliedly repealing the provisions of Presidential Decree 73, insofar as said procedure is concerned.

Upon the other hand, said General Order No. 20 expressly suspended "the provisions of Section 3 of Presidential Decree No. 73 insofar as they allow free public discussion of proposed Constitution ... temporarily suspending effects of Proclamation No. 1081 for the purposes of free open dabate on the proposed Constitution ... ." This specific mention of the portions of the decrees or orders or instructions suspended by General Order No. 20 necessarily implies that all other portions of said decrees, orders or instructions — and, hence, the provisions of Presidential Decree No. 73 outlining the procedure to be followed in the plebiscite for ratification or rejection of the proposed Constitution — remained in force, assuming that said Decree is valid.

It is claimed that by virtue of Presidential Decree No. 86-A — the text of which is quoted below 67 — the Executive declared, inter alia, that the collective views expressed in the Citizens' Assemblies "shall be considered in the formulation of national policies or programs and, wherever practicable, shall be translated into concrete and specific decision"; that such Citizens' Assemblies "shall consider vital national issues ... like the holding of the plebiscite on the new Constitution ... and others in the future, which shall serve as guide or basis for action or decision by the national government"; and that the Citizens' Assemblies "shall conduct between January 10 and 15, 1973, a referendum on important

national issues, including those specified in paragraph 2 hereof, and submit the results thereof to the Department of Local Governments and Community Development immediately thereafter, ... ." As in Presidential Decree No. 86, this Decree No. 86-A does not and cannot exclude the exercise of the constitutional supervisory power of the Commission on Elections or its participation in the proceedings in said Assemblies, if the same had been intended to constitute the "election" or Plebiscite required Art. V of the 1935 Constitution. The provision of Decree No. 86-A directing the immediate submission of the result thereof to the Department of Local Governments Community Development is not necessarily inconsistent with, and must be subordinate to the constitutional power of the Commission on Elections to exercise its "exclusive authority over the enforcement and administration of all laws to the conduct of elections," if the proceedings in the Assemblies would partake of the nature of an "election" or plebiscite for the ratification or rejection of the proposed Constitution.

We are told that Presidential Decree No. 86 was further amended by Presidential Decree No. 86-B, dated 1973, ordering "that important national issues shall from time to time; be referred to the Barangays (Citizens Assemblies) for resolution in accordance with Presidential Decree No. 86-A dated January 5, 1973 and that the initial referendum include the matter of ratification of the Constitution by the 1971 Constitutional Convention" and that "(t)he Secretary of the Department of Local Governments and Community Development shall insure the implementation of this order." As in the case of Presidential Decrees Nos. 86 and 86-A, the foregoing directives do not necessarily exclude exercise of the powers vested by the 1935 Constitution in the Commission on Elections, even if the Executive had the authority to repeal Art. X of our Fundamental Law — which he does not possess. Copy of Presidential Decree No. 86-B is appended hereto as Annex B hereof.

The point is that, such of the Barrio Assemblies as were held took place without the intervention of the Commission on Elections, and without complying with the provisions of the Election Code of 1971 or even of those of Presidential Decree No. 73. What is more, they were held under the supervision of the very officers and agencies of the Executive Department sought to be excluded therefrom by Art. X of the 1935 Constitution. Worse still, said officers and agencies of the 1935 Constitution would be favored thereby, owing to the practical indefinite extension of their respective terms of office in consequence of section 9 of the Transitory Provisions, found in Art. XVII of the proposed Constitution, without any elections therefor. And the procedure therein mostly followed is such that there is no reasonable means of checking the accuracy of the returns files by the officers who conducted said plebiscites. This is another patent violation of Art. of the Constitution which can hardly be sanctioned. And, since the provisions of this article form part of the fundamental scheme set forth in the 1935 Constitution, as amended, to insure the "free, orderly, and honest" expression of the people's will, the aforementioned violation thereof renders null and void the contested proceedings or alleged plebiscite in the Citizens' Assemblies, insofar as the same are claimed to have ratified the revised Constitution proposed by the 1971 Constitutional Convention. "... (a)ll the authorities agree that the legal definition of an election, as well as that which is usually and ordinarily understood by the term, is a choosing or as election by those having a right to participate (in the selection) of those who shall fill the offices, or of the adoption or rejection of any public measure affecting the territory involved. 15 Cyc. 279; Lewis v. Boynton, 25 Colo. 486, 55 Pac. 732; Saunders v. Haynes, 13 Cal. 145; Seaman v. Baughman, 82 Iowa 216, 47 N.W. 1091, 11 L.R.A. 354; State v. Hirsh, 125 Ind. 207, 24 N.E. 1062, 9 L.R.A. 170; Bouvier's Law Dictionary. 68

IV

Has the proposed Constitution aforementioned been approved by a majority of the people in Citizens' Assemblies allegedly held throughout the Philippines?

Respondents maintain the affirmative, relying upon Proclamation No. 1102, the validity of which is precisely being contested by petitioners herein. Respondents claim that said proclamation is "conclusive" upon this Court, or is, at least, entitled to full faith and credence, as an enrolled bill; that the proposed Constitution has been, in fact, ratified, approved or adopted by the "overwhelming" majority of the people; that Art. XV of the 1935 Constitution has thus been "substancially" complied with; and that the Court refrain from passing upon the validity of Proclamation No. 1102, not only because such question is political in nature, but, also, because should the Court invalidate the proclamation, the former would, in effect, veto the action of the people in whom sovereignty resides and from its power are derived.

The major flaw in this process of rationalization is that it assumes, as a fact, the very premise on which it is predicated, and which, moreover, is contested by the petitioners. As the Supreme Court of Minnessota has aptly put it —

... every officer under a constitutional government must act according to law and subject to its restrictions, and every departure therefrom or disregard thereof must subject him to the restraining and controlling of the people, acting through the agency of the judiciary; for it must be remembered that the people act through courts, as well as through the executive or the Legislature. One department is just as representative as the other, and the judiciary is the department which is charged with the special duty of determining the limitations which the law places upon all official action. ... .

Accordingly, the issue boils downs to whether or not the Executive acted within the limits of his authority when he certified in Proclamation No. 1102 "that the Constitution proposed by the nineteen hundred and seventy-one (1971) Constitutional Convention has been ratified by an overwhelming majority of all of the votes cast by the members of all the Barangays (Citizens Assemblies) throughout the Philippines and has thereby come into effect."

In this connection, it is not claimed that the Chief Executive had personal knowledge of the data he certified in said proclamation. Moreover, Art. X of the 1935 Constitution was precisely inserted to place beyond the Executive the power to supervise or even exercise any authority whatsoever over "all laws relative to the conduct of elections," and, hence, whether the elections are for the choice or selection of public officers or for the ratification or rejection of any proposed amendment, or revision of the Fundamental Law, since the proceedings for the latter are, also, referred to in said Art. XV as "elections".

The Solicitor General stated, in his argument before this Court, that he had been informed that there was in each municipality a municipal association of presidents of the citizens' assemblies for each barrio of the municipality; that the president of each such municipal association formed part of a provincial or city association of presidents of such municipal associations; that the president of each one of these provincial or city associations in turn formed part of a National Association or Federation of Presidents of such Provincial or City Associations; and that one Francisco Cruz from Pasig, Rizal, as President of said National Association or Federation, reported to the President of the Philippines, in the morning of January 17, 1973, the total result of the voting in the citizens' assemblies all over the country from January 10 to January 15, 1973. The Solicitor General further intimated that the said municipal associations had reported the results of the citizens' assemblies in their respective municipalities to the corresponding Provincial Association, which, in turn, transmitted the results of the voting in the to the Department of Local Governments and Community Development, which tabulated the results of the voting in the citizens' assemblies throughout the Philippines and then turned them over to Mr. Franciso Cruz, as President or acting President of the National Association or Federation, whereupon Mr. Cruz, acting in a ceremonial capacity, reported

said results (tabulated by the Department of Governments and Community Development) to the Chief Executive, who, accordingly, issued Proclamation No. 1102.

The record shows, however, that Mr. Cruz was not even a member of any barrio council since 1972, so that he could possibly have been a member on January 17, 1973, of a municipal association of presidents of barrio or ward citizens' assemblies, much less of a Provincial, City or National Association or Federation of Presidents of any such provincial or city associations.

Secondly, at the conclusion of the hearing of these cases February 16, 1973, and in the resolution of this Court of same date, the Solicitor General was asked to submit, together with his notes on his oral argument, a true copy of aforementioned report of Mr. Cruz to the President and of "(p)roclamation, decree, instruction, order, regulation or circular, if any, creating or directing or authorizing creation, establishment or organization" of said municipal, provincial and national associations, but neither a copy of alleged report to the President, nor a copy of any "(p)roclamation, decree, instruction, order, regulation or circular," has been submitted to this Court. In the absence of said report, "(p)roclamation, decree, instruction," etc., Proclamation No. 1102 is devoid of any factual and legalfoundation. Hence, the conclusion set forth in the dispositive portion of said Proclamation No. 1102, to the effect that the proposed new or revised Constitution had been ratified by majority of the votes cast by the people, can not possibly have any legal effect or value.

The theory that said proclamation is "conclusive upon Court is clearly untenable. If it were, acts of the Executive and those of Congress could not possibly be annulled or invalidated by courts of justice. Yet, such is not the case. In fact, even a resolution of Congress declaring that a given person has been elected President or Vice-President of the Philippines as provided in the Constitution, 69 is not conclusive upon the courts. It is no more than prima facieevidence of what is attested to by said resolution. 70 If assailed directly in appropriate proceedings, such as an election protest, if and when authorized by law, as it is in the Philippines, the Court may receive evidence and declare, in accordance therewith, who was duly elected to the office involved. 71 If prior to the creation of the Presidential Electoral Tribunal, no such protest could be filed, it was not because the resolution of Congress declaring who had been elected President or Vice-President was conclusive upon courts of justice, but because there was no law permitting the filing of such protest and declaring what court or body would hear and decide the same. So, too, a declaration to the effect that a given amendment to the Constitution or revised or new Constitution has been ratified by a majority of the votes cast therefor, may be duly assailed in court and be the object of judicial inquiry, in direct proceedings therefor — such as the cases at bar — and the issue raised therein may and should be decided in accordance with the evidence presented.

The case of In re McConaughy 72 is squarely in point. "As the Constitution stood from the organization of the state" — of Minnessota — "all taxes were required to be raised under the system known as the 'general property tax.' Dissatisfaction with the results of this method and the development of more scientific and satisfactory methods of raising revenue induced the Legislature to submit to the people an amendment to the Constitution which provided merely that taxes shall be uniform upon the same class of subjects. This proposed amendment was submitted at the general election held in November, 1906, and in due time it was certified by the state canvassing board and proclaimed by the Governor as having been legally adopted. Acting upon the assumption that the amendment had become a part of the Constitution, the Legislature enacted statutes providing for a State Tax Commission and a mortgage registry tax, and the latter statute, upon the same theory, was held constitutional" by said Court. "The district court found that the amendment had no in fact been adopted, and on this appeal" the Supreme Court was "required to determine the correctness of that conclusion."

Referring to the effect of the certification of the State Board of Canvassers created by the Legislature and of theproclamation made by the Governor based thereon, the Court held: "It will be noted that this board does no more than tabulate the reports received from the various county board and add

up and certify the results. State v. Mason, 45 Wash. 234, 88 Pac. 126, 9 L.R.A. (U.S.) 1221. It is settled law that the decisions of election officers, and canvassing boards are not conclusive and that the final decision must rest with the courts, unless the law declares that the decisions of the board shall be final" — and there is no such law in the cases at bar. "... The correctness of the conclusion of the state board rests upon the correctness of the returns made by the county boards and it is inconceivable that it was intended that this statement of result should be final and conclusive regardless of the actual facts. The proclamation of the Governor adds nothing in the way of conclusiveness to the legal effect of the action of the canvassing board. Its purpose is to formally notify the people of the state of the result of the voting as found by the canvassing board. James on Const. Conv. (4th Ed.) sec. 523."

In Bott v. Wartz, 73 the Court reviewed the statement of results of the election made by the canvassing board, in order that the true results could be judicially determined. And so did the court in Rice v. Palmer. 74

Inasmuch as Art. X of the 1935 Constitution places under the "exclusive" charge of the Commission on Elections, "the enforcement and administration of all laws relative to the conduct of elections," independently of the Executive, and there is not even a certification by the Commission in support of the alleged results of the citizens' assemblies relied upon in Proclamation No. 1102 — apart from the fact that on January 17, 1973 neither the alleged president of the Federation of Provincial or City Barangays nor the Department of Local Governments had certified to the President the alleged result of the citizens' assemblies all over the Philippines — it follows necessarily that, from a constitutional and legal viewpoint, Proclamation No. 1102 is not even prima facieevidence 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 beingeighteen (18) years, apart from the fact that Art. VI of the proposed Constitution requires "secret" voting, which was not observed in many, if not most, Citizens' Assemblies. Besides, both the 1935 Constitution and the proposed Constitution require a "majority of the votes cast" in an election or plebiscite called for the ratification of an amendment or revision of the first Constitution or the effectivity of the proposed Constitution, and the phrase "votes cast" has been construed to mean "votes made in writing not orally, as it was in many Citizens' Assemblies.75

Even counsel for Gil J. Puyat and Jose Roy, as respondents in L-36165, asserts openly that Art. XV of the Constitution has not been complied with, and since the alleged substantial compliance with the requirements thereof partakes of the nature of a defense set up by the other respondents in these cases, the burden of proving such defense — which, if true, should be within their peculiar knowledge — is clearly on such respondents. Accordingly, if despite the extensive notes and documents submitted by the parties herein, the members of the Court do not know or are not prepared to say whether or not the majority of the people or of those who took part in the Citizens' Assemblies have assented to the proposed Constitution, the logical step would be to give due course to these cases, require the respondents to file their answers, and the plaintiffs their reply, and, thereafter, to receive the pertinent evidence and then proceed to the determination of the issues raised thereby. Otherwise, we would be placing upon the petitioners the burden of disproving a defense set up by the respondents, who have not so far established the truth of such defense.

Even more important, and decisive, than the foregoing is the circumstance that there is ample reason to believe that many, if not most, of the people did not know that the Citizens' Assemblies

were, at the time they were held, plebiscites for the ratification or rejection of the proposed Constitution. Hence, in Our decision in the plebiscite cases, We said, inter alia:

Meanwhile, or on December 17, 1972, the President had issued an order temporarily suspending the effects of Proclamation No. 1081, for the purpose of free and open debate on the Proposed Constitution. On December 23, the President announced the postponement of the plebiscite for the ratification or rejection of the Proposed Constitution. No formal action to this effect was taken until January 7, 1973, when General Order No. 20 was issued, directing "that the plebiscite scheduled to be held on January 15, 1973, be postponed until further notice." Said General Order No. 20, moreover, "suspended in the meantime" the "order of December 17, 1972, temporarily suspending the effects of Proclamation No. 1081 for purposes of free and open debate on the proposed Constitution.

In view of these events relative to the postponement of the aforementioned plebiscite, the Court deemed it fit to refrain, for the time being, from deciding the aforementioned cases, for neither the date nor the conditions under which said plebiscite would be held were known or announced officially. Then again, Congress was, pursuant to the 1935 Constitution, scheduled to meet in regular session on January 22, 1973, and since the main objection to Presidential Decree No. 73 was that the President does not have the legislative authority to call a plebiscite and appropriate funds therefor, which Congress unquestionably could do, particularly in view of the formal postponement of the plebiscite by the President — reportedly after consultation with, among others, the leaders of Congress and the Commission on Elections — the Court deemed it more imperative to defer its final action on these cases.

And, apparently, the parties in said cases entertained the same belief, for, on December 23, 1972 — four (4) days after the last hearing of said cases 76 — the President announced the postponement of the plebiscite scheduled by Presidential Decree No. 73 to be held on January 15, 1973, after consultation with the Commission on Elections and the leaders of Congress, owing to doubts on the sufficiency of the time available to translate the proposed Constitution into some local dialects and to comply with some pre-electoral requirements, as well as to afford the people a reasonable opportunity to be posted on the contents and implications of said transcendental document. On January 7, 1973, General Order No. 20 was issued formally, postponing said plebiscite "until further notice." How can said postponement be reconciled with the theory that the proceedings in the Citizens' Assemblies scheduled to be held from January 10 to January 15, 1973, were "plebiscites," in effect, accelerated, according to the theory of the Solicitor General, for the ratification of the proposed Constitution? If said Assemblies were meant to be the plebiscites or elections envisaged in Art. XV of the Constitution, what, then, was the "plebiscite" postponed by General Order No. 20? Under these circumstances, it was only reasonable for the people who attended such assemblies to believe that the same were not an "election" or plebiscite for the ratification or adoption of said proposed Constitution.

And, this belief is further bolstered up by the questions propounded in the Citizens' Assemblies, namely:

[1] Do you like the New Society?

[2] Do you like the reforms under martial law?

[3] Do you like Congress again to hold sessions?

[4] Do you like the plebiscite to be held later?

[5] Do you like the way President Marcos is running the affairs of the government? [Bulletin Today, January 10, 1973; emphasis an additional question.]

[6] Do you approve of the citizens assemblies as the base of popular government to decide issues of national interests?

[7] Do you approve of the new Constitution?

[8] Do you want a plebiscite to be called to ratify the new Constitution?

[9] Do you want the elections to be held in November, 1973 in accordance with the provisions of the 1935 Constitution?

[10] If the elections would not be held, when do you want the next elections to be called?

[11] Do you want martial law to continue? [Bulletin Today, January 11, 1973]

To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11 are not proper in a plebiscite for the ratification of a proposed Constitution or of a proposed amendment thereto. Secondly, neither is the language of question No. 7 — "Do you approve the new Constitution?" One approves "of" the act of another which does not need such approval for the effectivity of said act, which the first person, however, finds to be good, wise satisfactory. The approval of the majority of the votes cast in plebiscite is, however, essential for an amendment to the Constitution to be valid as part thereof. Thirdly, if the proceedings in the Citizens' Assemblies constituted a plebiscite question No. 8 would have been unnecessary and improper, regardless of whether question No. 7 were answered affirmatively or negatively. If the majority of the answers to question No. 7 were in the affirmative, the proposed Constitution would have become effective and no other plebiscite could be held thereafter in connection therewith, even if the majority of the answers to question No. 8 were, also, in the affirmative. If the majority of the answers to question No. 7 were in the negative, neither may another plebiscite be held, even if the majority of the answers to question No. 8 were in the affirmative. In either case, not more than one plebiscite could be held for the ratification or rejection of the proposed Constitution. In short, the insertion of said two (2) questions — apart from the other questions adverted to above — indicates strongly that the proceedings therein did not partake of the nature of a plebiscite or election for the ratification or rejection of the proposed Constitution.

Indeed, I can not, in good conscience, declare that the proposed Constitution has been approved or adopted by the people in the citizens' assemblies all over the Philippines, when it is, to my mind, a matter of judicial knowledge that there have been no such citizens' assemblies in many parts of Manila and suburbs, not to say, also, in other parts of the Philippines. In a letter of Governor Efren B. Pascual of Bataan, dated January 15, 1973, to the Chief Executive, the former reported:

... This report includes a resumee (sic) of the activities we undertook in effecting the referendum on the eleven questions you wanted our people consulted on and the Summary of Results thereof for each municipality and for the whole province.

xxx xxx xxx

... Our initial plans and preparations, however, dealt only on the original five questions. Consequently, when we received an instruction on January 10 to change the questions, we urgently suspended all scheduled Citizens Assembly meetings on that day and called all Mayors, Chiefs of Offices and other government officials to another conference to discuss with them the new set of guidelines and materials to be used.

On January 11, ... another instruction from the top was received to include the original five questions among those to be discussed and asked in the Citizens' Assembly meetings. With this latest order,we again had to make modifications in our instructions to all those managing and supervising the holding of the Citizens' Assembly meetings throughout the province. ... Aside from the coordinators we had from the Office of the Governor, the splendid cooperation and support extended by almost all government officials and employees in the province, particularly of the Department of Education, PC and PACD personnel, provided us with enough hands to trouble shoot and implement sudden changes in the instructions anytime and anywhere needed. ...

... As to our people, in general, their enthusiastic participation showed their preference and readiness to accept this new method of government to people consultation in shaping up government policies.

Thus, as late as January 10, 1973, the Bataan officials had to suspend "all scheduled Citizens' Assembly meetings ..." and call all available officials "... to discuss with them the new set of guidelines and materials to be used ... ." Then, "on January 11 ... another instruction from the top was received to include the original five questions among those be discussed and asked in the Citizens' Assembly meetings. With this latest order, we again had to make modifications in our instructions to all those managing and supervising holding of the Citizens' Assembly meetings throughout province. ... As to our people, in general, their enthusiastic participation showed their preference and readiness to accept the new method of government to people consultation in shaping upgovernment policies."

This communication manifestly shows: 1) that, as late a January 11, 1973, the Bataan officials had still to discuss— not put into operation — means and ways to carry out the changing instructions from the top on how to organize the citizens' assemblies, what to do therein and even what questions or topics to propound or touch in said assemblies; 2) that the assemblies would involve no more than consultations or dialogues between people and government — not decisions be made by the people; and 3) that said consultations were aimed only at "shaping up government policies" and, hence could not, and did not, partake of the nature of a plebiscite for the ratification or rejection of a proposed amendment of a new or revised Constitution for the latter does not entail the formulation of a policy of the Government, but the making of decision by the people on the new way of life, as a nation, they wish to have, once the proposed Constitution shall have been ratified.

If this was the situation in Bataan — one of the provinces nearest to Manila — as late as January 11, 1973, one can easily imagine the predicament of the local officials and people in the remote barrios in northern and southern Luzon, in the Bicol region, in the Visayan Islands and Mindanao. In fact, several members of the Court, including those of their immediate families and their household, although duly registered voters in the area of Greater Manila, were not even notified that citizens' assemblies would be held in the places where their respective residences were located. In the Prohibition and Amendment case, 77 attention was called to the "duty cast upon the court of taking judicial cognizance of anything affecting the existence and validity of any law or portion of the Constitution ... ." In line with its own pronouncement in another case, the Federal Supreme Court of the

United States stressed, in Baker v. Carr, 78 that "a court is not at liberty to shut its eyes to an obvious mistake, when the validity of the law depends upon the truth of what is declared."

In the light of the foregoing, I cannot see how the question under consideration can be answered or resolved otherwise than in the negative.

V

Have the people acquiesced in the proposed Constitution?

It is urged that the present Government of the Philippines is now and has been run, since January 17, 1971, under the Constitution drafted by the 1971 Constitutional Convention; that the political department of the Government has recognized said revised Constitution; that our foreign relations are being conducted under such new or revised Constitution; that the Legislative Department has recognized the same; and that the people, in general, have, by their acts or omissions, indicated their conformity thereto.

As regards the so-called political organs of the Government, gather that respondents refer mainly to the offices under the Executive Department. In a sense, the latter performs some functions which, from a constitutional viewpoint, are politics in nature, such as in recognizing a new state or government, in accepting diplomatic representatives accredited to our Government, and even in devising administrative means and ways to better carry into effect. Acts of Congress which define the goals or objectives thereof, but are either imprecise or silent on the particular measures to be resorted to in order to achieve the said goals or delegate the power to do so, expressly or impliedly, to the Executive. This, notwithstanding, the political organ of a government that purports to be republican is essentially the Congress or Legislative Department. Whatever may be the functions allocated to the Executive Department — specially under a written, rigid Constitution with a republican system of Government like ours — the role of that Department is inherently, basically and fundamentally executive in nature — to "take care that the laws be faithfully executed," in the language of our 1935 Constitution. 79

Consequently, I am not prepared to concede that the acts the officers and offices of the Executive Department, in line with Proclamation No. 1102, connote a recognition thereof o an acquiescence thereto. Whether they recognized the proposed Constitution or acquiesce thereto or not is something that cannot legally, much less necessarily or even normally, be deduced from their acts in accordance therewith, because the are bound to obey and act in conformity with the orders of the President, under whose "control" they are, pursuant to the 1935 Constitution. They have absolutely no other choice, specially in view of Proclamation No. 1081 placing the Philippines under Martial Law. Besides, by virtue of the very decrees, orders and instructions issued by the President thereafter, he had assumed all powers of Government — although some question his authority to do so — and, consequently, there is hardly anything he has done since the issuance of Proclamation No. 1102, on January 17, 1973 — declaring that the Constitution proposed by the 1971 Constitutional Convention has been ratified by the overwhelming majority of the people — that he could not do under the authority he claimed to have under Martial Law, since September 21, 1972, except the power of supervision over inferior courts and its personnel, which said proposed Constitution would place under the Supreme Court, and which the President has not ostensibly exercised, except as to some minor routine matters, which the Department of Justice has continued to handle, this Court having preferred to maintain the status quo in connection therewith pending final determination of these cases, in which the effectivity of the aforementioned Constitution is disputed.

Then, again, a given department of the Government cannot generally be said to have "recognized" its own acts. Recognition normally connotes the acknowledgment by a party of the acts of another. Accordingly, when a subordinate officer or office of the Government complies with the commands of a superior officer or office, under whose supervision and control he or it is, the former merely obeys the latter. Strictly speaking, and from a legal and constitutional viewpoint, there is no act of recognition involved therein. Indeed, the lower officer or office, if he or it acted otherwise, would just be guilty of insubordination.

Thus, for instance, the case of Taylor v. Commonwealth 80 — cited by respondents herein in support of the theory of the people's acquiescence — involved a constitution ordained in 1902 and "proclaimed by a convention duly called by a direct vote of the people of the state to revise and amend the Constitution of 1869. The result of the work of that Convention has been recognized, accepted and acted upon as the only valid Constitution of the State" by —

1. The "Governor of the State in swearing fidelity to it and proclaiming it, as directed thereby";

2. The "Legislature in its formal official act adopting a joint resolution, July 15, 1902, recognizing the Constitution ordained by the Convention ...";

3. The "individual oaths of its members to support it, and by its having been engaged for nearly a year, in legislating under it and putting its provisions into operation ...";

4. The "judiciary in taking the oath prescribed thereby to support it and by enforcing its provisions ..."; and

5. The "people in their primary capacity by peacefully accepting it and acquiescing in it, by registering as voters under it to the extent of thousands throughout the State, and by voting, under its provisions, at a general election for their representatives in the Congress of the United States."

Note that the New Constitution of Virginia, drafted by a convention whose members were elected directly by the people, was not submitted to the people for ratification or rejection thereof. But, it was recognized, not by the convention itself, but by other sectors of the Government, namely, the Governor; the Legislature — not merely by individual acts of its members, but by formal joint resolution of its two (2) chambers; by the judiciary; and by the people, in the various ways specified above. What is more, there was no martial law. In the present cases, noneof the foregoing acts of acquiescence was present. Worse still, there is martial law, the strict enforcement of which was announced shortly before the alleged citizens' assemblies. To top it all, in the Taylor case, the effectivity of the contested amendment was not contested judicially until about one (1) year after the amendment had been put into operation in all branches of the Government, and complied with by the people who participated in the elections held pursuant to the provisions of the new Constitution. In the cases under consideration, the legality of Presidential Decree No. 73 calling a plebiscite to be held on January 15, 1973, was impugned as early as December 7, 1972, or five (5) weeks before the scheduled plebiscite, whereas the validity of Proclamation No. 1102 declaring on January 17, 1973, that the proposed Constitution had been ratified — despite General Order No. 20, issued on January 7, 1972, formally and officially suspending the plebiscite until further notice — was impugned as early as January 20, 1973, when L-36142 was filed, or three (3) days after the issuance of Proclamation No. 1102.

It is further alleged that a majority of the members of our House of Representatives and Senate have acquiesced in the new or revised Constitution, by filing written statements opting to serve in the Ad Interim Assembly established in the Transitory Provisions of said Constitution. Individual acts of

recognition by members of our legislature, as well as of other collegiate bodies under the government, are invalid as acts of said legislature or bodies, unless its members have performed said acts in session duly assembled, or unless the law provides otherwise, and there is no such law in the Philippines. This is a well-established principle of Administrative Law and of the Law of Public Officers, and no plausible reason has been adduced to warrant departure therefrom. 81

Indeed, if the members of Congress were generally agreeable to the proposed Constitution, why did it become necessary to padlock its premises to prevent its meeting in session on January 22, 1973, and thereafter as provided in the 1935 Constitution? It is true that, theoretically, the members of Congress, if bent on discharging their functions under said Constitution, could have met in any other place, the building in which they perform their duties being immaterial to the legality of their official acts. The force of this argument is, however, offset or dissipated by the fact that, on or about December 27, 1972, immediately after a conference between the Executive, on the one hand, and members of Congress, on the other, some of whom expressed the wish to meet in session on January 22, 1973, as provided in the 1935 Constitution, a Daily Express columnist (Primitivo Mijares) attributed to Presidential Assistant Guillermo de Vega a statement to the effect that "'certain members of the Senate appear to be missing the point in issue' when they reportedly insisted on taking up first the question of convening Congress." The Daily Express of that date, 82 likewise, headlined, on its front page, a "Senatorial PlotAgainst 'Martial Law Government' Disclosed". Then, in its issue of December 29, 1972, the same paper imputed to the Executive an appeal "to diverse groups involved in a conspiracy to undermine" his powers" under martial law to desist from provoking a constitutional crisis ... which may result in the exercise by me of authority I have not exercised."

No matter how good the intention behind these statement may have been, the idea implied therein was too clear an ominous for any member of Congress who thought of organizing, holding or taking part in a session of Congress, not to get the impression that he could hardly do so without inviting or risking the application of Martial Law to him. Under these conditions, I do not feel justified in holding that the failure of the members of Congress to meet since January 22, 1973, was due to their recognition, acquiescence in or conformity with the provisions of the aforementioned Constitution, or its alleged ratification.

For the same reasons, especially because of Proclamation No. 1081, placing the entire Philippines under Martial Law, neither am I prepared to declare that the people's inaction as regards Proclamation No. 1102, and their compliance with a number of Presidential orders, decrees and/or instructions — some or many of which have admittedly had salutary effects — issued subsequently thereto amounts, constitutes or attests to a ratification, adoption or approval of said Proclamation No. 1102. In the words of the Chief Executive, "martial law connotespower of the gun, meant coercion by the military, and compulsion and intimidation." 83 The failure to use the gun against those who comply with the orders of the party wielding the weapon does not detract from the intimidation that Martial Law necessarily connotes. It may reflect the good, reasonable and wholesome attitude of the person who has the gun, either pointed at others, without pulling the trigger, or merely kept in its holster, but not without warning that he may or would use it if he deemed it necessary. Still, the intimidation is there, and inaction or obedience of the people, under these conditions, is not necessarily an act of conformity or acquiescence. This is specially so when we consider that the masses are, by and large, unfamiliar with the parliamentary system, the new form of government introduced in the proposed Constitution, with the particularity that it is not even identical to that existing in England and other parts of the world, and that even experienced lawyers and social scientists find it difficult to grasp the full implications of some provisions incorporated therein.

As regards the applicability to these cases of the "enrolled bill" rule, it is well to remember that the same refers to a document certified to the President — for his action under the Constitution — by the Senate President and the Speaker of the House of Representatives, and attested to by the Secretary of the Senate and the Secretary of the House of Representatives, concerning legislative

measures approved by the two Houses of Congress. The argument of the Solicitor General is, roughly, this: If the enrolled bill is entitled to full faith and credence and, to this extent, it is conclusive upon the President and the judicial branch of the Government, why should Proclamation No. 1102 merit less consideration than in enrolled bill?

Before answering this question, I would like to ask the following: If, instead of being certified by the aforementioned officers of Congress, the so-called enrolled bill were certified by, say, the President of the Association of Sugar Planters and/or Millers of the Philippines, and the measure in question were a proposed legislation concerning Sugar Plantations and Mills sponsored by said Association, which even prepared the draft of said legislation, as well as lobbied actually for its approval, for which reason the officers of the Association, particularly, its aforementioned president — whose honesty and integrity are unquestionable — were present at the deliberations in Congress when the same approved the proposed legislation, would the enrolled bill rule apply thereto? Surely, the answer would have to be in the negative. Why? Simply, because said Association President has absolutely no official authority to perform in connection therewith, and, hence, his certification is legally, as good as non-existent.

Similarly, a certification, if any, of the Secretary of the Department of Local Governments and Community Development about the tabulated results of the voting in the Citizens Assemblies allegedly held all over the Philippines — and the records do not show that any such certification, to the President of the Philippines or to the President Federation or National Association of presidents of Provincial Associations of presidents of municipal association presidents of barrio or ward assemblies of citizens — would not, legally and constitutionally, be worth the paper on which it is written. Why? Because said Department Secretary is not the officer designated by law to superintend plebiscites or elections held for the ratification or rejection of a proposed amendment or revision of the Constitution and, hence, to tabulate the results thereof. Worse still, it is the department which, according to Article X of the Constitution, should not and must not be all participate in said plebiscite — if plebiscite there was.

After citing approvingly its ruling in United States v. Sandoval, 84 the Highest Court of the United States that courts "will not stand impotent before an obvious instance of a manifestly unauthorized exercise of power." 85

I cannot honestly say, therefore, that the people impliedly or expressly indicated their conformity to the proposed Constitution.

VI

Are the Parties entitled to any relief?

Before attempting to answer this question, a few words be said about the procedure followed in these five (5) cases. In this connection, it should be noted that the Court has not decided whether or not to give due course to the petitions herein or to require the respondents to answer thereto. Instead, it has required the respondents to comment on the respective petitions — with three (3) members of the voting to dismiss them outright — and then considers comments thus submitted by the respondents as motions to dismiss, as well as set the same for hearing. This was due to the transcendental nature of the main issue raised, the necessity of deciding the same with utmost dispatch, and the main defense set up by respondents herein, namely, the alleged political nature of said issue, placing the same, according to respondents, beyond the ambit of judicial inquiry and determination. If this defense was sustained, the cases could readily be dismissed; but, owing to the importance of the questions involved, a reasoned resolution was demanded by public interest. At the same time, respondents had cautioned against a judicial inquiry into the merits of the issues posed

on account of the magnitude of the evil consequences, it was claimed, which would result from a decision thereon, if adverse to the Government.

As a matter of fact, some of those issues had been raised in the plebiscite cases, which were dismissed as moot and academic, owing to the issuance of Proclamation No. 1102 subsequently to the filing of said cases, although before the rendition of judgment therein. Still one of the members of the Court (Justice Zaldivar) was of the opinion that the aforementioned issues should be settled in said cases, and he, accordingly, filed an opinion passing upon the merits thereof. On the other hand, three (3) members of the Court — Justices Barredo, Antonio and Esguerra — filed separate opinions favorable to the respondents in the plebiscite cases, Justice Barredo holding "that the 1935 Constitution has pro tanto passed into history and has been legitimately supplanted by the Constitution in force by virtue of Proclamation 1102." 86 When the petitions at bar were filed, the same three (3) members of the Court, consequently, voted for the dismissal of said petitions. The majority of the members of the Court did not share, however, either view, believing that the main question that arose before the rendition of said judgment had not been sufficiently discussed and argued as the nature and importance thereof demanded.

The parties in the cases at bar were accordingly given every possible opportunity to do so and to elucidate on and discuss said question. Thus, apart from hearing the parties in oral argument for five (5) consecutive days — morning and afternoon, or a total of exactly 26 hours and 31 minutes — the respective counsel filed extensive notes on their or arguments, as well as on such additional arguments as they wished to submit, and reply notes or memoranda, in addition to rejoinders thereto, aside from a sizeable number of document in support of their respective contentions, or as required by the Court. The arguments, oral and written, submitted have been so extensive and exhaustive, and the documents filed in support thereof so numerous and bulky, that, for all intents and purposes, the situation is as if — disregarding forms — the petitions had been given due course and the cases had been submitted for decision.

Accordingly, the majority of the members of the Court believe that they should express their views on the aforementioned issues as if the same were being decided on the merits, and they have done so in their individual opinion attached hereto. Hence, the resume of the votes cast and the tenor of the resolution, in the last pages hereof, despite the fact that technically the Court has not, as yet, formally given due course to the petitions herein.

And, now, here are my views on the reliefs sought by the parties.

In L-36165, it is clear that we should not issue the writ of mandamus prayed for against Gil J. Puyat and Jose Roy, President and President Pro Tempore respectively of the Senate, it being settled in our jurisdiction, based upon the theory of separation of powers, that the judiciary will not issue such writ to the head of a co-equal department, like the aforementioned officers of the Senate.

In all other respects and with regard to the other respondent in said case, as well as in cases L-36142, L-36164, L-36236 and L-36283, my vote is that the petitions therein should be given due course, there being more thanprima facie showing that the proposed Constitution has not been ratified in accordance with Article XV of the 1935 Constitution, either strictly, substantially, or has been acquiesced in by the people or majority thereof; that said proposed Constitution is not in force and effect; and that the 1935 Constitution is still the Fundamental Law of the Land, without prejudice to the submission of said proposed Constitution to the people at a plebiscite for its ratification or rejection in accordance with Articles V, X and XV of the 1935 Constitution and the provisions of the Revised Election Code in force at the time of such plebiscite.

Perhaps others would feel that my position in these cases overlooks what they might consider to be the demands of "judicial statesmanship," whatever may be the meaning of such phrase. I am aware of this possibility, if not probability; but "judicial statesmanship," though consistent with Rule of Law, cannot prevail over the latter. Among consistent ends or consistent values, there always is a hierarchy, a rule of priority.

We must realize that the New Society has many achievements which would have been very difficult, if not impossible, to accomplish under the old dispensation. But, in and for the judiciary, statesmanship should not prevail over the Rule of Law. Indeed, the primacy of the law or of the Rule of Law and faithful adherence thereto are basic, fundamental and essential parts of statesmanship itself.

Resume of the Votes Cast and the Court's Resolution

As earlier stated, after the submittal by the members of the Court of their individual opinions and/or concurrences as appended hereto, the writer will now make, with the concurrence of his colleagues, a resume or summary of the votes cast by each of them.

It should be stated that by virtue of the various approaches and views expressed during the deliberations, it was agreed to synthesize the basic issues at bar in broad general terms in five questions for purposes of taking the votes. It was further agreed of course that each member of the Court would expound in his individual opinion and/or concurrence his own approach to the stated issues and deal with them and state (or not) his opinion thereon singly or jointly and with such priority, qualifications and modifications as he may deem proper, as well as discuss thereon other related issues which he may consider vital and relevant to the cases at bar.

The five questions thus agreed upon as reflecting the basic issues herein involved are the following:

1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and therefore non-justiciable, question?

2. Has the Constitution proposed by the 1971 Constitutional Convention been ratified validly (with substantial, if not strict, compliance) conformably to the applicable constitutional and statutory provisions?

3. Has the aforementioned proposed Constitution acquiesced in (with or without valid ratification) by the people?

4. Are petitioners entitled to relief? and

5. Is the aforementioned proposed Constitution in force?

The results of the voting, premised on the individual views expressed by the members of the Court in their respect opinions and/or concurrences, are as follows:

1. On the first issue involving the political-question doctrine Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee and myself, or six (6) members of the Court, hold that the issue of the validity of Proclamation No. 1102 presents a justiciable and non-political question. Justices Makalintal and Castro did not vote squarely on this question, but, only inferentially, in their discussion of the second question. Justice Barredo qualified his vote, stating that "inasmuch as it is claimed there has been approval by the people, the Court may inquire into the question of whether or not there has actually

been such an approval, and, in the affirmative, the Court should keep hands-off out of respect to the people's will, but, in negative, the Court may determine from both factual and legal angles whether or not Article XV of the 1935 Constitution been complied with." Justices Makasiar, Antonio, Esguerra, or three (3) members of the Court hold that the issue is political and "beyond the ambit of judicial inquiry."

2. On the second question of validity of the ratification, Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee and myself, or six (6) members of the Court also hold that the Constitution proposed by the 1971 Constitutional Convention was not validly ratified in accordance with Article XV, section 1 of the 1935 Constitution, which provides only one way for ratification, i.e., "in an election or plebiscite held in accordance with law and participated in only by qualified and duly registered voters. 87

Justice Barredo qualified his vote, stating that "(A)s to whether or not the 1973 Constitution has been validly ratified pursuant to Article XV, I still maintain that in the light of traditional concepts regarding the meaning and intent of said Article, the referendum in the Citizens' Assemblies, specially in the manner the votes therein were cast, reported and canvassed, falls short of the requirements thereof. In view, however, of the fact that I have no means of refusing to recognize as a judge that factually there was voting and that the majority of the votes were for considering as approved the 1973 Constitution without the necessity of the usual form of plebiscite followed in past ratifications, I am constrained to hold that, in the political sense, if not in the orthodox legal sense, the people may be deemed to have cast their favorable votes in the belief that in doing so they did the part required of them by Article XV, hence, it may be said that in its political aspect, which is what counts most, after all, said Article has been substantially complied with, and, in effect, the 1973 Constitution has been constitutionally ratified."

Justices Makasiar, Antonio and Esguerra, or three (3) members of the Court hold that under their view there has been in effect substantial compliance with the constitutional requirements for valid ratification.

3. On the third question of acquiescence by the Filipino people in the aforementioned proposed Constitution, no majority vote has been reached by the Court.

Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold that "the people have already accepted the 1973 Constitution."

Two (2) members of the Court, namely, Justice Zaldivar and myself hold that there can be no free expression, and there has even been no expression, by the people qualified to vote all over the Philippines, of their acceptance or repudiation of the proposed Constitution under Martial Law. Justice Fernando states that "(I)f it is conceded that the doctrine stated in some American decisions to the effect that independently of the validity of the ratification, a new Constitution once accepted acquiesced in by the people must be accorded recognition by the Court, I am not at this stage prepared to state that such doctrine calls for application in view of the shortness of time that has elapsed and the difficulty of ascertaining what is the mind of the people in the absence of the freedom of debate that is a concomitant feature of martial law." 88

Three (3) members of the Court express their lack of knowledge and/or competence to rule on the question. Justices Makalintal and Castro are joined by Justice Teehankee in their statement that "Under a regime of martial law, with the free expression of opinions through the usual media vehicle restricted, (they) have no means of knowing, to the point of judicial certainty, whether the people have accepted the Constitution." 89

4. On the fourth question of relief, six (6) members of the Court, namely, Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra voted to DISMISS the petition. Justice Makalintal and Castro so voted on the strength of their view that "(T)he effectivity of the said Constitution, in the final analysis, is the basic and ultimate question posed by these cases to resolve which considerations other than judicial, an therefore beyond the competence of this Court, 90 are relevant and unavoidable." 91

Four (4) members of the Court, namely, Justices Zaldivar, Fernando, Teehankee and myself voted to deny respondents' motion to dismiss and to give due course to the petitions.

5. On the fifth question of whether the new Constitution of 1973 is in force:

Four (4) members of the Court, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold that it is in force by virtue of the people's acceptance thereof;

Four (4) members of the Court, namely, Justices Makalintal, Castro, Fernando and Teehankee cast no vote thereon on the premise stated in their votes on the third question that they could not state with judicial certainty whether the people have accepted or not accepted the Constitution; and

Two (2) members of the Court, namely, Justice Zaldivar and myself voted that the Constitution proposed by the 1971 Constitutional Convention is not in force;

with the result that there are not enough votes to declare that the new Constitution is not in force.

ACCORDINGLY, by virtue of the majority of six (6) votes of Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra with the four (4) dissenting votes of the Chief Justice and Justices Zaldivar, Fernando and Teehankee, all the aforementioned cases are hereby dismissed. This being the vote of the majority, there is no further judicial obstacle to the new Constitution being considered in force and effect.

It is so ordered

G.R. No. 76180 October 24, 1986

IN RE: SATURNINO V. BERMUDEZ, petitioner.

R E S O L U T IO N

 

PER CURIAM:

In a petition for declaratory relief impleading no respondents, petitioner, as a lawyer, quotes the first paragraph of Section 5 (not Section 7 as erroneously stated) of Article XVIII of the proposed 1986 Constitution, which provides in full as follows:

Sec. 5. The six-year term of the incumbent President and Vice-President elected in the February 7, 1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30, 1992.

The first regular elections for the President and Vice-President under this Constitution shall be held on the second Monday of May, 1992.

Claiming that the said provision "is not clear" as to whom it refers, he then asks the Court "to declare and answer the question of the construction and definiteness as to who, among the present incumbent President Corazon Aquino and Vice-President Salvador Laurel and the elected President Ferdinand E. Marcos and Vice-President Arturo M. Tolentino being referred to under the said Section 7 (sic) of ARTICLE XVIII of the TRANSITORY PROVISIONS of the proposed 1986 Constitution refers to, . ...

The petition is dismissed outright for lack of jurisdiction and for lack for cause of action.

Prescinding from petitioner's lack of personality to sue or to bring this action, (Tan vs. Macapagal, 43 SCRA 677), it is elementary that this Court assumes no jurisdiction over petitions for declaratory relief. More importantly, the petition amounts in effect to a suit against the incumbent President of the Republic, President Corazon C. Aquino, and it is equally elementary that incumbent Presidents are immune from suit or from being brought to court during the period of their incumbency and tenure.

The petition furthermore states no cause of action. Petitioner's allegation of ambiguity or vagueness of the aforequoted provision is manifestly gratuitous, it being a matter of public record and common public knowledge that the Constitutional Commission refers therein to incumbent President Corazon C. Aquino and Vice-President Salvador H. Laurel, and to no other persons, and provides for the extension of their term to noon of June 30, 1992 for purposes of synchronization of elections. Hence, the second paragraph of the cited section provides for the holding on the second Monday of May, 1992 of the first regular elections for the President and Vice-President under said 1986 Constitution. In previous cases, the legitimacy of the government of President Corazon C. Aquino was likewise sought to be questioned with the claim that it was not established pursuant to the 1973 Constitution. The said cases were dismissed outright by this court which held that:

Petitioners have no personality to sue and their petitions state no cause of action. For the legitimacy of the Aquino government is not a justiciable matter. It belongs to the realm of politics where only the

people of the Philippines are the judge. And the people have made the judgment; they have accepted the government of President Corazon C. Aquino which is in effective control of the entire country so that it is not merely a de facto government but in fact and law a de jure government. Moreover, the community of nations has recognized the legitimacy of tlie present government. All the eleven members of this Court, as reorganized, have sworn to uphold the fundamental law of the Republic under her government. (Joint Resolution of May 22, 1986 in G.R. No. 73748 [Lawyers League for a Better Philippines, etc. vs. President Corazon C. Aquino, et al.]; G.R. No. 73972 [People's Crusade for Supremacy of the Constitution. etc. vs. Mrs. Cory Aquino, et al.]; and G.R. No. 73990 [Councilor Clifton U. Ganay vs. Corazon C. Aquino, et al.])

For the above-quoted reason, which are fully applicable to the petition at bar, mutatis mutandis, there can be no question that President Corazon C. Aquino and Vice-President Salvador H. Laurel are the incumbent and legitimate President and Vice-President of the Republic of the Philippines.or the above-quoted reasons, which are fully applicable to the petition at bar,

ACCORDINGLY, the petition is hereby dismissed.

G.R. No. 78059 August 31, 1987

ALFREDO M. DE LEON, ANGEL S. SALAMAT, MARIO C. STA. ANA, JOSE C. TOLENTINO, ROGELIO J. DE LA ROSA and JOSE M. RESURRECCION, petitioners, vs.HON. BENJAMIN B. ESGUERRA, in his capacity as OIC Governor of the Province of Rizal, HON. ROMEO C. DE LEON, in his capacity as OIC Mayor of the Municipality of Taytay, Rizal, FLORENTINO G. MAGNO, REMIGIO M. TIGAS, RICARDO Z. LACANIENTA, TEODORO V. MEDINA, ROSENDO S. PAZ, and TERESITA L. TOLENTINO, respondents.

 

MELENCIO-HERRERA, J.:

An original action for Prohibition instituted by petitioners seeking to enjoin respondents from replacing them from their respective positions as Barangay Captain and Barangay Councilmen of Barangay Dolores, Municipality of Taytay, Province of Rizal.

As required by the Court, respondents submitted their Comment on the Petition, and petitioner's their Reply to respondents' Comment.

In the Barangay elections held on May 17, 1982, petitioner Alfredo M. De Leon was elected Barangay Captain and the other petitioners Angel S. Salamat, Mario C. Sta. Ana, Jose C. Tolentino, Rogelio J. de la Rosa and Jose M. Resurreccion, as Barangay Councilmen of Barangay Dolores, Taytay, Rizal under Batas Pambansa Blg. 222, otherwise known as the Barangay Election Act of 1982.

On February 9, 1987, petitioner Alfredo M, de Leon received a Memorandum antedated December 1, 1986 but signed by respondent OIC Governor Benjamin Esguerra on February 8, 1987 designating respondent Florentino G. Magno as Barangay Captain of Barangay Dolores, Taytay, Rizal. The designation made by the OIC Governor was "by authority of the Minister of Local Government."

Also on February 8, 1987, respondent OIC Governor signed a Memorandum, antedated December 1, 1986 designating respondents Remigio M. Tigas, Ricardo Z. Lacanienta Teodoro V. Medina, Roberto S. Paz and Teresita L. Tolentino as members of the Barangay Council of the same Barangay and Municipality.

That the Memoranda had been antedated is evidenced by the Affidavit of respondent OIC Governor, the pertinent portions of which read:

xxx xxx xxx

That I am the OIC Governor of Rizal having been appointed as such on March 20, 1986;

That as being OIC Governor of the Province of Rizal and in the performance of my duties thereof, I among others, have signed as I did sign the unnumbered memorandum ordering the replacement of all the barangay officials of all the barangay(s) in the Municipality of Taytay, Rizal;

That the above cited memorandum dated December 1, 1986 was signed by me personally on February 8,1987;

That said memorandum was further deciminated (sic) to all concerned the following day, February 9. 1987.

FURTHER AFFIANT SAYETH NONE.

Pasig, Metro Manila, March 23, 1987.

Before us now, petitioners pray that the subject Memoranda of February 8, 1987 be declared null and void and that respondents be prohibited from taking over their positions of Barangay Captain and Barangay Councilmen, respectively. Petitioners maintain that pursuant to Section 3 of the Barangay Election Act of 1982 (BP Blg. 222), their terms of office "shall be six (6) years which shall commence on June 7, 1982 and shall continue until their successors shall have elected and shall have qualified," or up to June 7, 1988. It is also their position that with the ratification of the 1987 Constitution, respondent OIC Governor no longer has the authority to replace them and to designate their successors.

On the other hand, respondents rely on Section 2, Article III of the Provisional Constitution, promulgated on March 25, 1986, which provided:

SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their successors, if such appointment is made within a period of one year from February 25,1986.

By reason of the foregoing provision, respondents contend that the terms of office of elective and appointive officials were abolished and that petitioners continued in office by virtue of the aforequoted provision and not because their term of six years had not yet expired; and that the provision in the Barangay Election Act fixing the term of office of Barangay officials to six (6) years must be deemed to have been repealed for being inconsistent with the aforequoted provision of the Provisional Constitution.

Examining the said provision, there should be no question that petitioners, as elective officials under the 1973 Constitution, may continue in office but should vacate their positions upon the occurrence of any of the events mentioned. 1

Since the promulgation of the Provisional Constitution, there has been no proclamation or executive order terminating the term of elective Barangay officials. Thus, the issue for resolution is whether or not the designation of respondents to replace petitioners was validly made during the one-year period which ended on February 25, 1987.

Considering the candid Affidavit of respondent OIC Governor, we hold that February 8, 1977, should be considered as the effective date of replacement and not December 1,1986 to which it was ante dated, in keeping with the dictates of justice.

But while February 8, 1987 is ostensibly still within the one-year deadline, the aforequoted provision in the Provisional Constitution must be deemed to have been overtaken by Section 27, Article XVIII of the 1987 Constitution reading.

SECTION 27. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose and shall supersede all previous Constitutions.

The 1987 Constitution was ratified in a plebiscite on February 2, 1987. By that date, therefore, the Provisional Constitution must be deemed to have been superseded. Having become inoperative, respondent OIC Governor could no longer rely on Section 2, Article III, thereof to designate respondents to the elective positions occupied by petitioners.

Petitioners must now be held to have acquired security of tenure specially considering that the Barangay Election Act of 1982 declares it "a policy of the State to guarantee and promote the autonomy of the barangays to ensure their fullest development as self-reliant communities. 2 Similarly, the 1987 Constitution ensures the autonomy of local governments and of political subdivisions of which the barangays form a part, 3 and limits the President's power to "general supervision" over local governments. 4 Relevantly, Section 8, Article X of the same 1987 Constitution further provides in part:

Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years ...

Until the term of office of barangay officials has been determined by law, therefore, the term of office of six (6) years provided for in the Barangay Election Act of 1982 5 should still govern.

Contrary to the stand of respondents, we find nothing inconsistent between the term of six (6) years for elective Barangay officials and the 1987 Constitution, and the same should, therefore, be considered as still operative, pursuant to Section 3, Article XVIII of the 1987 Constitution, reading:

Sec. 3. All existing laws, decrees, executive orders, proclamations letters of instructions, and other executive issuances not inconsistent, with this Constitution shall remain operative until amended, repealed or revoked.

WHEREFORE, (1) The Memoranda issued by respondent OIC Governor on February 8, 1987 designating respondents as the Barangay Captain and Barangay Councilmen, respectively, of Barangay Dolores, Taytay, Rizal, are both declared to be of no legal force and effect; and (2) the Writ of Prohibition is granted enjoining respondents perpetually from proceeding with the ouster/take-over of petitioners' positions subject of this Petition. Without costs.

SO ORDERED.