Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. L-40004 January 31, 1975

BENIGNO S. AQUINO, JR., TRINIDAD HERRERA, BISHOP FRANCISCO CLAVER, S.J.,

BISHOP ANTONIO NEPOMUCENO, BISHOP JESUS VALERA, BISHOP FELIX ZAFRA,

BISHOP TEOTIMO PACIS, EUGENIO LOPEZ, JR., SERGIO OSMEÑA, III, ANTONIO

ARANETA, ANTONIO MIRANDA, RAUL GONZALES, JOKER ARROYO, and EMILIO DE

PERALTA, petitioners,

vs.

COMMISSION ON ELECTIONS, and NATIONAL TREASURER, respondents.

Lorenzo M. Tañada, Renato E. Tañada and Wigberto E. Tañada for petitioners

Office of the Solicitor General Estelito P Mendoza, Assistant Solicitor General Hugo E. Gutierrez,

Jr., Assistant Solicitor General Vicente V. Mendoza & Assistant Solicitor General Reynato S.

Puno for respondents.

MAKASIAR, J.:p

I

This petition for prohibition, which was filed on January 21, 1975, seeks the nullification of

Presidential Decrees Nos. 1366, 1366-A, calling a referendum for February 27, 1975,

Presidential Decrees Nos. 629 and 630 appropriating funds therefor, and Presidential Decrees

Nos. 637 and 637-A specifying the referendum questions, as well as other presidential decrees,

orders and instructions relative to the said referendum.

The respondents, through the Solicitor General, filed their comment on January 28, 1975. After

the oral argument of over 7 hours on January 30, 1975, the Court resolved to consider the

comment as answer and the case submitted for decision.

The first ground upon which the petition is predicated states that President Ferdinand E. Marcos

does not hold any legal office nor possess any lawful authority under either the 1935

Constitution or the 1973 Constitution and therefore has no authority to issue the questioned

proclamations, decrees and orders. This challenges the title of the incumbent President to the

office of the Presidency and therefore is in the nature of a quo warranto proceedings, the

appropriate action by which the title of a public officer can be questioned before the courts. Only

the Solicitor General or the person who asserts title to the same office can legally file such a

quo warranto petition. The petitioners do not claim such right to the office and not one of them is

the incumbent Solicitor General. Hence, they have no personality to file the suit (Castro vs. Del

Rosario, Jan. 30, 1967, 19 SCRA 197; City of Manila & Antonio Villegas vs. Abelardo Subido, et.

al., May 20, 1966, 17 SCRA 231-232, 235-236; Nacionalista Party vs. Bautista, 85 Phil. 101;

and Nacionalista Party vs. Vera, 85 Phil. 127). It is established jurisprudence that the legality of

the appointment or election of a public officer cannot be questioned collaterally through a

petition for prohibition which assails the validity of his official acts.

The foregoing governing legal principles on public officers are re-stated in order to avert any

misapprehension that they have been eroded by Our resolution in the instant petition.

Because of the far-reaching implications of the herein petition, the Court resolved to pass upon

the issues raised.

II

This Court already ruled in the Ratification Cases "that there is no further judicial obstacle to the

new Constitution being considered in force and effect." As Chief Justice Makalintal stressed in

the Habeas Corpus cases, the issue as to its effectivity "has been laid to rest by Our decision in

Javellana versus Executive Secretary (L-36142, March 31, 1973, 50 SCRA 30, 141), and of

course by the existing political realities both in the conduct of national affairs and in our relation

with countries" (Aquino, Jr. vs. Enrile and 8 companion cases, L-35546, L-35538-40, L-35538-

40, L-35547, L-35556, L-35571 and

L-35573, Sept. 17, 1971, 59 SCRA 183, 241).

III

In the aforesaid Habeas Corpus cases, We affirmed the validity of Martial Law Proclamation No.

1081 issued on September 22, 1972 by President Marcos because there was no arbitrariness in

the issuance of said proclamation pursuant to the 1935 Constitution that the factual bases had

not disappeared but had even been exacerbated; that the question is to the validity of the

Martial Law proclamation has been foreclosed by Section 3(2) of Article XVII of the 1973

Constitution, which provides that "all proclamations, orders, decrees, instructions and acts

promulgated, issued or done by the incumbent President shall be part of the law of the land and

shall remain valid, legal, binding and effective even after the lifting of Martial Law or the

ratification of this Constitution ..."; and that "any inquiry by this Court in the present cases into

the constitutional sufficiency of the factual bases for the proclamation of Martial Law, has

become moot and purposeless as a consequence of the general referendum of July 27-28,

1973. The question propounded to the voters was: "Under the (1973) Constitution, the President,

if he so desires, can continue in office beyond 1973. Do you want President Marcos to continue

beyond 1973 and finish the reforms be initiated under Martial Law?" The overwhelming majority

of those who cast their ballots, including citizens beyond 15 and 18 years, voted affirmatively on

the proposal. The question was thereby removed from the area of presidential power under the

Constitution and transferred to the seat of sovereignty itself. Whatever may be the nature of the

exercise of that power by the President in the beginning — whether or not purely political and

therefore non-justiciable — this Court is precluded from applying its judicial yardstick to the act

of the sovereign." (Aquino, Jr. vs. Enrile, supra, 59 SCRA 183,

240-242).

Under the 1935 Constitution, President Ferdinand E. Marcos was duly reelected by the vote of

the sovereign people in the Presidential elections of 1969 by an overwhelming vote of over

5,000,000 electors as against 3,000,000 votes for his rival, garnering a majority of from about

896,498 to 1,436,118 (Osmeña vs. Marcos, Presidential Election Contest No. 3, Jan. 8, 1973).

While his term of office under the 1935 Constitution should have terminated on December 30,

1973, by the general referendum of July 27-28, 1973, the sovereign people expressly

authorized him to continue in office even beyond 1973 under the 1973 Constitution (which was

validly ratified on January 17, 1973 by the sovereign people) in order to finish the reforms he

initiated under Martial Law; and as aforestated, as this was the decision of the people, in whom

"sovereignty resides ... and all government authority emanates ...," it is therefore beyond the

scope of judicial inquiry (Aquino, Jr. vs. Enrile, et. al., supra, p. 242).

The logical consequence therefore is that President Marcos is a de jure President of the

Republic of the Philippines.

IV

The next issue is whether he is the incumbent President of the Philippines within the purview of

Section 3 of Article XVII on the transitory provisions of the new or 1973 Constitution. As

heretofore stated, by virtue of his reelection in 1969, the term of President Marcos tinder the

1935 Constitution was to terminate on December 30, 1973. The new Constitution was approved

by the Constitutional Convention on November 30, 1972, still during his incumbency. Being the

only incumbent President of the Philippines at the time of the approval of the new Constitution

by the Constitutional Convention, the Constitutional Convention had nobody in mind except

President Ferdinand E. Marcos who shall initially convene the interim Assembly. It was the

incumbent President Marcos alone who issued Martial Law Proclamation No. 1081 on

September 22, 1972 and issued orders and decrees as well as instructions and performed other

acts as President prior to the approval on November 30, 1972 of the new Constitution by the

Constitutional Convention and prior to its ratification on January 17, 1973 by the people.

Consequently, since President Marcos was the only incumbent President at the time, because

his term under the 1935 Constitution has yet to expire on December 30, 1973, the Constitutional

Convention, in approving the new Constitution, had in mind only him when in Section 3(2) of

Article XVII of the new Constitution it provided "that all the proclamations, orders, decrees,

instructions and acts promulgated, issued or done by the incumbent President shall be part of

the law of the land, and shall remain valid, legal, binding and effective even after lifting of Martial

Law or the ratification of this Constitution, unless modified, revoked or superseded by

subsequent proclamations, orders, decrees, instructions or other acts of the incumbent

President, or unless expressly and explicitly modified or repealed by the regular National

Assembly."

The term incumbent President of the Philippines employed in Section 9 of the same Article XVII

likewise could only refer to President Ferdinand E. Marcos. .

This conclusion is further buttressed by Section 10 of the same Article XVII which provides that

"the incumbent members of the Judiciary may continue in office until they reach the age of 70

years unless sooner replaced in accordance with the preceding section hereof." There can be

no dispute that the phrase "incumbent members of the Judiciary" can only refer to those

members of the Judiciary who were already Justices and Judges of the various courts of the

country at the time the Constitutional Convention approved the new Constitution on November

30, 1972 and when it was ratified.

Because President Ferdinand E. Marcos is the incumbent President referred to in Article XVII of

the transitory provisions of the 1973 Constitution, he can "continue to exercise the 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 he calls upon the interim

National Assembly to elect the interim President and the interim Prime Minister, who shall then

exercise their legislative powers vested by this Constitution (Sec. 3[l], Art. XVII, 1973

Constitution).

Under the 1935 Constitution, the President is empowered to proclaim martial law. Under the

1973 Constitution, it is the Prime Minister who is vested with such authority (Sec. 12, Art. IX,

1973 Constitution).

WE affirm the proposition that as Commander-in-Chief and enforcer or administrator of martial

law, the incumbent President of the Philippines can promulgate proclamations, orders and

decrees during the period of Martial Law essential to the security and preservation of the

Republic, to the defense of the political and social liberties of the people and to the institution of

reforms to prevent the resurgence of rebellion or insurrection or secession or the threat thereof

as well as to meet the impact of a worldwide recession, inflation or economic crisis which

presently threatens all nations including highly developed countries (Rossiter, Constitutional

Dictatorship, 1948 Ed., pp. 7, 303; see also Chief Justice Stone's Concurring Opinion in Duncan

vs. Kahanamoku, 327 US 304).

To dissipate all doubts as to the legality of such law-making authority by the President during

the period of Martial Law, Section 3(2) of Article XVII of the New Constitution expressly affirms

that all the proclamations, orders, decrees, instructions and acts he promulgated, issued or did

prior to the approval by the Constitutional Convention on November 30, 1972 and prior to the

ratification by the people on January 17, 1973 of the new Constitution, are "part of the law of the

land, and shall remain valid, legal, binding and effective even after the 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 specifically modified or repealed by the regular National Assembly."

The entire paragraph of Section 3(2) is not a grant of authority to legislate, but a recognition of

such power as already existing in favor of the incumbent President during the period of Martial

Law.

Dr. Jose M. Aruego, noted authority in Constitutional Law as well as delegate to the 1935 and

1971 Constitutional Conventions, shares this view, when he states thus:

108. ... — These Presidential Proclamations, order, decrees, instructions, etc. had been

issued by the incumbent President in the exercise of what he consider to be his powers

under martial law, in the same manner that the lawmaking body had enacted several

thousand statutes in the exercise of what it consider to be its power under the Organic

Laws. Both these classes of rules of law — by the President and by the lawmaking body

— were, under general principles of constitutional law, presumed to be constitutional

until declared unconstitutional by the agency charged with the power and function to

pass upon constitutional law question — the Judiciary, at the apex of which is the

Supreme Court. Hence, the inclusion of both group of rules — President rules and

legislative rules — in the new Constitution for the people to approve or disapprove in the

scheduled plebiscite. (Aruego, The New Constitution, 1973 Ed., p. 230).

Delegate Arturo Pacificador, a Floor Leader of the 1971 Constitutional Convention, in explaining

Section 3(2) of Article XVII, underscores this recognition of the legislative power of the

incumbent President as Commander-in-Chief during martial Law, thus:

The second paragraph sets forth the understanding of the Convention of the nature,

extent and scope of the powers of the incumbent President of the Philippines, under

martial law. It expressly recognizes that the commander-in-chief, under martial law, can

exercise all necessary powers to meet the perils of invasion, insurrection, rebellion or

imminent danger thereof. This provision complements Section 7, Article XVII of the

Constitution that "all existing laws not inconsistent with this Constitution shall remain

operative until amended, modified, or repealed by the National Assembly."

The second paragraph is an express recognition on the part of the framers of the new

Constitution of the wisdom of the proclamations, orders, decrees and instructions by the

incumbent President in the light of the prevailing conditions obtaining in the country. (Montejo,

New Constitution, 1973 Ed., p. 314, emphasis supplied).

The power under the second clause of Section 3(2) is not limited merely to modifying, revoking

or superseding all his proclamations, orders, decrees, instructions or other acts promulgated,

issued or done prior to the ratification of the 1973 Constitution. But even if the scope of his

legislative authority thereunder is to be limited to the subject matter of his previous

proclamations, orders, decrees or instructions or acts, the challenged Proclamations Nos. 1366

and 1366-A, as well as Presidential Decrees Nos. 629, 630, 637 and 637-A are analogous to

the referenda of January, 1973 and July 27-28, 1973.

The actions of the incumbent President are not without historical precedents. It should be

recalled that the American Federal Constitution, unlike the 1935 or 1973 Constitution of the

Philippines, does not confer expressly on the American President the power to proclaim Martial

Law or to suspend the writ of habeas corpus. And yet President Abraham Lincoln during the

Civil War, and President Roosevelt during the Second World War, without express constitutional

or statutory authority, created agencies and offices and appropriated public funds therefor in

connection with the prosecution of the war. Nobody raised a finger to oppose the same. In the

case of President Roosevelt, the theater of war was not in the United States. It was thousands

of miles away, in the continents of Europe and Africa and in the Far East. In the Philippines,

military engagements between the government forces and the rebels and secessionists are

going on, emphasizing the immediacy of the peril to the safety of the Republic itself. There is

therefore greater reason to affirm this law-making authority in favor of the incumbent President

during the period of Martial Law.

Petitioners further argue that the President should call the interim National Assembly as

required of him by Section 3(1) of Article XVII, which National Assembly alone can exercise

legislative powers during the period of transition.

It should be stressed that there is a distinction between the existence of the interim Assembly

and its organization as well as its functioning. The interim Assembly already existed from the

time the new Constitution was ratified; because Section 1 of Article XVII states that "there shall

be an interim National Assembly which shall exist immediately upon the ratification of this

Constitution and shall continue until the members of the regular National Assembly shall have

been elected and shall have assumed office ..." However, it cannot function until it is convened

and thereafter duly organized with the election of its interim speaker and other officials. This

distinction was clearly delineated in the case of Mejia, et. al. vs. Balolong, et. al. where We held

that from the phrase "the City of Dagupan, which is hereby created, ...," Dagupan City came into

existence as a legal entity upon the approval of its Charter; but the date of the organization of

the city government was to be fixed by the President of the Philippines, and necessarily was

subsequent to the approval of its organic law (81 Phil. 486, 490-492).

Petitioners likewise urge that the President should have convened the interim Assembly before

the expiration of his term on December 30, 1973. 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.

This was revealed by no less than Delegate Jose M. Aruego himself, who stated:

109. Convening the interim National Assembly. — The Constitutional Convention could

have fixed the date when the interim National Assembly should convene itself as it did

with respect to the regular National Assembly. There would not have been any need for

any Presidential call as there is none, with respect to the regular National Assembly.

But considering that the country had been already placed under martial law rule the success of

which was conditioned upon the unity not only of planning but also in the execution of plans,

many delegates felt that the incumbent President should be given the discretion to decide when

the interim National Assembly should be convened because he would need its counsel and help

in the administration of the affairs of the country.

And in the event that it should convene, why did the interim National Assembly not fix its tenure,

and state expressly when the election of the members of the regular National Assembly should

be called? Many of the delegates felt that they could not be sure even of the proximate date

when the general conditions of peace and order would make possible orderly elections, ... (The

New Philippine Constitution by Aruego, 1973 Ed., p. 230).

This was also disclosed by Delegate Arturo F. Pacificador, who affirmed:

Under the first paragraph of this section, the incumbent President is mandated to initially

convene theinterim National Assembly.

Note that the word used is "shall" to indicate the mandatory nature of the desire of the

Constitutional Convention that the interim National Assembly shall be convened by the

incumbent President. The Constitutional Convention, however, did not fix any definite time at

which the incumbent President shall initially convene the interim National Assembly. This

decision was deliberate to allow the incumbent President enough latitude of discretion to decide

whether in the light of the emergency situation now prevailing, conditions have already

normalized to permit the convening of the interim National Assembly. (Montejo, The New

Constitution, 1973 Ed., p. 314).

It is thus patent that the President is given the discretion as to when he shall convene the

interim National Assembly after determining whether the conditions warrant the same.

His decision to defer the initial convocation of the interim National Assembly was supported by

the sovereign people at the referendum in January, 1973 when the people voted to postpone

the convening of the interim National Assembly until after at least seven (7) years from the

approval of the new Constitution. And the reason why the same question was eliminated from

the questions to be submitted at the referendum on February 27, 1975, is that even some

members of the Congress and delegates of the Constitutional Convention, who are already ipso

factomembers of the interim National Assembly, are against such inclusion; because the issue

was already decided in the January, 1973 referendum by the sovereign people indicating

thereby their disenchantment with any Assembly as the former Congress failed to institutionalize

the reforms they demanded and had wasted public funds through the endless debates without

relieving the suffering of the general mass of citizenry.

Petitioners likewise impugn the scheduled referendum on the ground that there can be no true

expression of the people's will due to the climate of fear generated by Martial Law and that the

period of free discussion and debate is limited to two weeks from February 7 to 21, without right

of rebuttal from February 22 until the day of the referendum.

The first objection is not tenable because during the senatorial elections in 1951 and 1971, the

privilege of the writ of habeas corpus was suspended, during which period of suspension there

was fear of arrest and detention. Yet the election was so free that a majority of the senatorial

candidates of the opposition party were elected and there was no reprisal against or

harrassment of any voter thereafter. The same thing was true in the referendum of July 27-28,

1973, which was done also through secret ballot. There was no Army, PC, or police truck, bus

or other mode of transportation utilized to transport the voters to the various precincts of the

country. There was no PC, Army or police personnel assigned to each election precinct or

voting booth. And such assignment would be impossible; because the combined membership of

the police, PC, and Army was then as now very much less than the number of precincts, let

alone the number of voting booths. And no one would be left to fight the rebels or to maintain

peace and order. And as heretofore stated, the voting was done in secrecy. Only one voter at a

time entered the voting booth. The voting was orderly. There was no buying of votes or buying

the right not to vote. And as opined by the Solicitor General, every qualified voter who fails to

register or go to the polling place on referendum day is subject to prosecution; but failure to fill

up the ballot is not penalized.

In the Habeas Corpus cases, We declared that the result of the referendum on July 27-28, 1973

was a decision by the sovereign people which cannot be reviewed by this Court. Then again, it

is too late now for petitioners to challenge the validity of said referendum.

Moreover, as stressed by the Solicitor General, the previous referenda of January and July,

1973, were a lot more free than the elections under the Old Society previous to the proclamation

of Martial Law, where the will of the voter was subverted through "guns, goons and gold", as

well as through fraud. All modes of transportation were utilized by the candidates and their

leaders to transport the voters to the precinct. The voters were likewise wined and dined and so

prostituted that they refused to vote until the required monetary persuasion was proffered, if

they were not being subjected to various forms of intimidation. In some areas, the ballots were

filled up and the election returns were accomplished before election day. Even animals and

dead persons voted. The decisions in the electoral contests filed after every election under the

Old Society attest to this very unflattering fact in our history.

The second objection that the two-week period for free debate is too short, is addressed to the

wisdom of the President who may still amend the proclamation to extend the period of free

discussion.

At any rate, such a brief period of discussion has its counterpart in previous plebiscites for

constitutional amendments. 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 Act

of the US Federal Congress to the 1935 Constitution was published in only three consecutive

issues of the Official Gazette for 10 days prior to the scheduled plebiscite (Com. Act No. 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).

The period of 14 days for free discussion can compare favorably with the period required for

publication of the proposed amendments under the Old Society.

WHEREFORE, PRESIDENT FERDINAND E. MARCOS IS HEREBY DECLARED DE JURE

PRESIDENT OF THE REPUBLIC, PRESIDENTIAL PROCLAMATIONS NOS. 1366 AND 1366-

A AND PRESIDENTIAL DECREES NOS. 629,630, 637 AND 637-A ARE HEREBY DECLARED

VALID, AND THE PETITION IS HEREBY DISMISSED. WITHOUT COSTS.

Aquino, J, concurs.

Makatintal, C.J., concurs in the result.

Separate Opinions

CASTRO, J., concurring:

I vote to deny the petition.

At the threshold, and only for the purposes of this separate capsule opinion, I will assume (a)

that this case before us is not in the nature of a quo warranto proceeding; (b) that the petitioners

possess legal standing before the Court; and (c) that all the petitioners, whatever be the

persuasion of their counsel, recognize the Court as the supreme judicial tribunal operating and

functioning under the 1973 Constitution.

I find no particular difficulty in resolving what I regard as the two crucial issues posed by the

petition.

1. On the matter of whether Ferdinand E. Marcos is still the President of the Philippines, the

Transitory Provisions (Art XVII) of the 1973 Constitution, more specifically Secs. 2, 3, 9 and 12

thereof, even if they do not mention him by name, clearly point to and recognize Ferdinand E.

Marcos as the constitutional and lawful President of the Philippines. If there is any doubt at all

— and I do not personally entertain any — that the said Transitory Provisions refer to President

Marcos as the "incumbent President," then such doubt should be considered as having been

completely dissipated by the resounding affirmative vote of the people on this question

propounded in general referendum of July 27-28, 1973: "Under the [1973] Constitution, the

President, if he so desires, can continue in office beyond 1973. Do you want President Marcos

to continue beyond 1973 and finish the reforms he initiated under martial law?"

2. On the matter of whether President Marcos, at the present time, can constitutionally exercise

legislative power, I do not need to postulate that he derives legislative power from the

constraints of a regime of martial law. To my mind, pars. 1 and 2 of See. 3 of the Transitory

Provisions are unequivocal authority for President Marcos to legislate. These paragraphs read:

The incumbent President of the Philippines shall initially convene the interim National Assemble

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 he calls 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, legal, binding,

and effective even after [the] 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.

Stated elsewhere, my reading of these provisions is that they constitute an unmistakable

constitutional warrant for the "incumbent President" (meaning President Marcos) to legislate

(until, at the very earliest, the interim National Assembly shall have been convoked).

The peripheral matter of whether President Marcos should now or soon convene the interim

National Assembly is completely outside the competence of the Supreme Court to resolve, as,

in my view, it is a political question addressed principally, basically, and exclusively to the

President and the Filipino people.

Makalintal, C.J., Barredo, Antonio, Esguerra and Fernandez, JJ., concur.

FERNANDO, J., concurring:

It is a crucial question that is posed by this petition to call a halt to the February 27 referendum

because of alleged constitutional transgressions. It is one fundamental in its essence, and what

is more, impressed with the sense of immediacy to quiet doubts and to minimize uncertainties.

There has been a quick response, hopefully not one given in haste, which is the enemy of

thought. For all the vigor and the learning that characterized the advocacy of Senator Lorenzo M.

Tañada, it did not suffice to elicit a favorable verdict. The petition did not prosper. So it has been

adjudged, and I concur in the result reached. It is given expression in the notable opinion

penned by Justice Makasiar which, on its face, betrays sensitivity to the magnitude and the

grave implications of the serious problems posed. What is more, it has not avoided subsidiary

issues which reach into vital areas of our constitutional system. To the extent that it reiterates

tried and tested doctrines, I am of course in agreement. Certainly, there is not much difficulty for

me in reaching the conclusion that the term "incumbent President" in the Transitory Provisions

means what it says. If I submit this brief concurrence, it is only because of my belief that

notwithstanding the brilliant and illuminating argumentation in depth by both eminent counsel,

raging far and wide in the domain of constitutionalism, there is no need as yet to express my

views on some collateral matters. It suffices for me to rely on a jurical concept that is decisive. It

is the fundamental principle that sovereignty resides in the people with all government authority

emanating from them. 1 It speaks, to recall Cardozo, with a reverberating clang that drowns all

weaker sounds.

1. Respondents would interpose obstacles to avoid a decision on the merits. They are not

insurmountable. They alleged that the questions raised are political and therefore left for the

political sovereign, not the courts. 2 Such an assertion carries overtones of the Tañada v.

Cuenco 3 ruling that a matter to be decided by the people in their sovereign capacity is of such a

character. It has an aura of plausibility but it cannot stand the rigor of analysis. It confuses the

end result with the procedure necessary to bring it about. It is elemental that constitutionalism

implies restraints as well on the process by which lawful and valid state objectives may be

achieved. 4 What is challenged here is the actuation of the incumbent President for alleged

failure to comply with constitutional requisites. It is much too late in the day to assert that a

petition of that character is not appropriate for the courts. This is not to venture into uncharted

judicial territory. There are landmarks all along the way. This is not then to trespass on

forbidden ground. There is no disregard of the political question concept.

3. It follows therefore that the will of the people given expression, even in an unofficial manner

but accurately ascertained, is impressed with a decisive significance. It is more than just a

foundation for societal or political development. Whether appropriate, it determines what is to be

done. Its significance is vital, not merely formal. It is understandable then why in Javellana, 21

one of the issues passed upon by this Court is the effect of acquiescence by the people to

present Constitution even on the assumption that it was ratified in accordance with the 1935

Charter. It may not be amiss to recall what I did state on that point in my separate opinion: "Nor

is the matter before us solely to be determined by the failure to comply with the requirements of

Article XV. Independently of the lack of validity of the ratification of the new Constitution, then

this Court cannot refuse to yield assent to such a political decision of the utmost gravity,

conclusive in its effect. Such a fundamental principle is meaningless if it does not imply, to

follow Laski, that the nation as a whole constitutes the "single center of ultimate reference,"

necessarily the possessor of that "power that is able to resolve disputes by saying the last

word." If the origins of the democratic polity enshrined in the 1935 Constitution with the

declaration that the Philippines is a republican state could be traced back to Athens and to

Rome, it is no doubt true, as McIver pointed out, that only with the recognition of the nation as

the separate political unit in public law is there the juridical recognition of the people composing

it "as the source of political authority." From them, as Corwin did stress, emanate "the highest

possible embodiment of human will," which is supreme and must be obeyed. To avoid any

confusion and in the interest of clarity, it should be expressed in the manner ordained by law.

Even if such were not the case, however, once it is manifested, it is to be accepted as final and

authoritative. The government which is merely an agency to register its commands has no

choice but to submit. Its officials must act accordingly. No agency is exempt from such a duty,

not even this Court. In that sense, the lack of regularity in the method employed to register its

wishes is not fatal in its consequences. Once the fact of acceptance by the people of a new

fundamental law is made evident, the judiciary is left with no choice but to accord it recognition.

The obligation to render it obeisance falls on the courts as well." 22

To such a cardinal jural postulate is traceable my concurring and dissenting opinion in Tolentino

v. Commission on Elections: 23 "It was likewise argued by petitioner that the proposed

amendment is provisional and therefore is not such as was contemplated in this article. I do not

find such contention convincing. The fact that the Constitutional Convention did seek to consult

the wishes of the people by the proposed submission of a tentative amendatory provision is an

argument for its validity. It might be said of course that until impressed with finality, an

amendment is not to be passed upon by the electorate. There is plausibility in such a view. A

literal reading of the Constitution would support it. The spirit that informs it though would not, for

me, be satisfied. From its silence I deduce the inference that there is no repugnancy to the

fundamental law when the Constitutional Convention ascertains the popular will. In that sense,

the Constitution, to follow the phraseology of Thomas Reed Powell, is not silently silent but

silently vocal. What I deem the more important consideration is that while a public official, as an

agent, has to locate his source of authority in either Constitution or statute, the people, as the

principal, can only be limited in the exercise of their sovereign powers by the express terms of

the Constitution. A concept to the contrary would to my way of thinking be inconsistent with the

fundamental principle that it is in the people, and the people alone, that sovereignty resides." 24

As it was then, so, to my way of thinking, should it be now. With such a decisive consideration in

mind, it is difficult to conclude that the infirmities imputed to the challenged Presidential decrees

are fatal. They do not suffer from the corrosion of substantial constitutional infractions. It is in

that sense that I do not feel called upon to inquire into the nature of the authority conferred on

the incumbent President under the Transitory Provisions, whether purely executive as

contended by petitioners or both executive and legislative as argued by respondents. I leave

that question for another day. What cannot be ignored is that with a National Assembly in

existence but not convened, it is only the Executive that can perform those essential and

indispensable functions of dealing with the actual conduct of public affairs. That is the reality

that stares us in the face. To deny his power to issue decrees and to appropriate public funds is

thus to assure the paralyzation and impotence of government. Precisely then, if a referendum

may lend itself to a reappraisal of the situation, by all means let it be conducted. This is not to

deny that the judicial power to call a halt exists. It is merely to stress that it should be exercised

with the utmost reluctance as is required by deference to the concept of popular sovereignty. To

be more specific about the matter, this Tribunal should refrain from making use of that

prerogative now.

Parenthetically, it may be observed that in 1973 when the Javellana decision was promulgated,

I could not detect sufficient evidence as to the fact of acquiescence to the present Constitution.

That was why I had to dissent from the judgment of the Court dismissing the various petitions

assailing the validity of Proclamation No. 1102. Since then, with well-nigh two years having

gone by, it is quite evident that the matter is no longer open to doubt. Under the standard set

forth in the leading case of Taylor v. Commonwealth, 25 decided at the beginning of the century,

no other conclusion is allowable. The present Constitution "having been thus acknowledged and

accepted by the officers administering the government and by the people ... and being, as a

matter of fact, in force throughout ..., and there being no government in existence ... opposing or

denying its validity, [it] is the only rightful, valid, and existing Constitution ... and that to it all the

citizens ... owe their obedience and loyal allegiance." 26

5. That is about all. In writing this brief concurrence, I had nothing in mind but to explain why I

had to vote the way I did. It is quite obvious that for me the old landmarks of the law are still

there to serve as guides, that precedents do serve as factors for continuity and stability not to be

ignored but also not to be slavishly obeyed. For in constitutional law more than in any other

branch of juristic science, much depends on the immediacy and the reality of the specific

problems to be faced. Hence it has been truly said in days of crisis or of emergency, to stand

still is to lose ground. Nonetheless, one has always to reckon with the imponderables and the

intangibles, ever so often elusive to our understanding and disheartening to our deeply-

cherished convictions. For he has no choice but to comply as best he can with the duty to

decide in accordance with legal norms with roots that go far deeper than his personal

preferences and predilections. So it has to be.

BARREDO, J., concurring:

I concur in the judgment dismissing the petition. The following opinion is without prejudice to a

more extended one in due time.

Consistently with my opinion in the habeas corpus or martial law cases, the Court has

jurisdiction over the instant petition even if, as will be shown later, the matter of calling a

referendum is by nature a political matter. Anent the possible contention that the title of

President Marcos as President of the Philippines may not be collaterally attacked and that the

proper remedy is quo warranto, under the authority of Nacionalista Party vs. Felix Angelo

Bautista, 85 Phil. 101, I concede that the remedy of prohibition is not altogether improper.

The first ground of the petition is that President Marcos does not have any legal authority to call

the referendum because he is not holding any public office. The specific arguments supporting

this contention are that (1) Marcos is no longer President under the 1935 Constitution; (2) he is

not President nor Prime Minister under the 1973 Constitution; (3) he is not the "incumbent

President" contemplated in the transitory provisions of the new constitution; and, in any event,

his transitory powers as "incumbent President" have already lapsed. The second and third

grounds are that President Marcos does not have any power to legislate nor the authority to

issue proclamations, decrees and orders having the force of law, hence he cannot issue

decrees appropriating funds and, therefore, the decree calling for the referendum is void.

It is my considered conviction that these grounds are untenable.

President Marcos' authority to continue exercising the powers of the President under the 1935

Constitution and to exercise those of President and Prime Minister under the 1973 Constitution

is specifically provided for in Sec. 31 Article XVII of the 1973 Constitution. It is to me

unquestionable that by virtue of these provisions, President Marcos' being the President of the

Philippines, is constitutionally indubitable.

It was precisely because upon the effectivity of the New Constitution President Marcos would

cease to be President under the 1935 Charter and would not then be occupying any office

under the New Constitution, and, on the other hand, there would yet be no new president and

no prime minister, that he, as "incumbent President" at that time had to be expressly granted the

authority to exercise the powers of the President under the Old Constitution as well as those of

the President and the Prime Minister under the new one, pending the election of these officers.

Necessarily, there had to be a head of government until the new parliamentary system could be

properly installed, and whether or not it would have been wiser to confer the powers in question

on some other official or body is not for the Court to decide. In the meantime, the title of

President is the most appropriate to be held by him.

The contention that President Marcos may not be considered the "incumbent President"

referred to in the Constitution because what is contemplated therein is the one who would be in

office at the time of its ratification and that pursuant to the Javellana decision of the Supreme

Court, the constitution has not yet been ratified, whereas, on the other hand, the term of

President Marcos under the 1935 Constitution expired on December 30, 1973, is predicated

wholly on the old theory advanced in the habeas corpus cases and which has already been

discarded in the opinions therein, although perhaps, it is best that the Court made a categorical

ruling which would clear all doubts on the matter and thereby do away with this issue once and

for all. To that end, I would say that as far as the Court is concerned, its holding in Javellana

that "there is no more judicial obstacle to the New Constitution being considered as in force and

effect" should be understood as meaning that the charter is as valid and binding for all purposes

as if it had been ratified strictly in accordance with the 1935 Constitution as petitioners would

argue it should have been.

The problem of constitutional construction raised in the petition is, does the Constitution

contemplate that the interim assembly created by it would meet immediately and forthwith elect

the new President and the Prime Minister? If this question were to be answered in the light of

normal conditions, there could be some plausibility in suggesting an affirmative response, albeit

not altogether conclusive. But no one can ever escape the fact that the Constitution was

formulated and approved under abnormal and exceptional circumstances. The members of the

convention were well cognizant of the fact that the country was then as it still is under martial

law and that normal processes of government have not been in operation since its proclamation.

We must assume that as practical men they knew that the procedure of shifting from the

presidential to the parliamentary system would have to be reconciled with the demands of the

martial law situation then obtaining. Above all it must have been obvious to the delegates that

under martial law, President Marcos had in fact assumed all the powers of government. In other

words, it must have been evident to them from what was happening that the immediate

convening of the legislative body would not be compatible with the way President Marcos was

exercising martial law powers.

It is but proper, therefore, that these transcendental historical facts be taken into account in

construing the constitutional provisions pertinent to the issue under discussion. As I see it, given

the choice between, on the one hand, delaying the approval of a new charter until after martial

law shall have been lifted and, on the other, immediately enacting one which would have to give

due allowances to the exercise of martial law powers in the manner being done by President

Marcos, the convention opted for the latter. To my mind, it is only from this point of view that one

should read and try to understand the peculiar and unusual features of the transitory provisions

of the New Constitution.

Otherwise, how can one explain why, instead of giving the interim Assembly itself the power to

convene motu propioas was being done in the regular sessions of the old legislature and as in

the case of the regular National Assembly provided therein, said power has been granted by the

Constitution to the incumbent President? Very significantly in this connection, whereas Section

1 of Article XVII very explicitly uses the word "immediately" in reference to the existence of the

interim Assembly, there is no time fixed as to when the incumbent President should initially

convene it. Withal, even the authority to call for the election of the new President and the Prime

Minister was not lodged in the assembly but again in the incumbent President. Is it not logical to

conclude that the reason behind all these unprecedented provisions is to avoid putting any

hindrance or obstacle to the continued exercise by President Marcos of the powers he had

assumed under his martial law proclamation and his general orders subsequent thereto? If the

Convention were differently minded, it could have easily so worded the said provisions in the

most unequivocal manner. And what makes this conclusion definite is precisely the insertion in

the transitory provisions of Section 3(2) of Article XVII which makes all the proclamations,

decrees, orders and instructions of the incumbent President part of the law of the land, which, in

my considered view, is the Convention's own contemporary construction that during martial law,

the administrator thereof must of necessity exercise legislative powers particularly those needed

to carry out the objectives of the proclamation, with no evident limitation except that no

particular legislation not demanded by said objectives shall infringe Section 7 of Article XVII

which reserves to the regular National Assembly the power to amend, modify or repeal "all

existing laws not inconsistent with this Constitution." Neither paragraph (1) nor paragraph (2) of

Section 3 of the same article would have been necessary if the convention had intended that the

interim National Assembly would be immediately convened and the new President and the

Prime Minister would be forthwith elected. Indeed, it is implicit in the provisions just mentioned

that the delegates had in mind that there would be a considerable time gap between the going

into effect of the New Constitution and the election of the new President and the Prime Minister.

And they could not have been thinking merely of the possibility of protracted delay in the

election of said officers because the Assembly itself, once convened, could have readily

provided in the exercise of its inherent powers for what might be required in such a contingency.

In support of the foregoing views, I invoke the testimonies of Delegates Aruego, Tupaz, Ortiz,

Pacificador and others which were quoted during the hearing and the deliberations. I will quote

them in my extended opinion.

It must be borne in mind that once martial law is proclaimed, all the powers of government are

of necessity assumed by the authority that administers the martial law and the operation of the

regular government, including its legislature and its judiciary, is subjected to its imperatives. Of

course, the Constitution itself is not ousted, but by the power that the Constitution itself vests in

the Executive to issue the proclamation, it yields the application and effects of some of its

provisions to the demands of the situation, as the administrator may in his bona fide judgment

so determine. Otherwise stated, since laws and regulations would be needed to maintain the

government and to provide for the safety and security of the people, the orders of the

administrator are given the force of law. In that sense, the administrator legislates. If he can

legislate, so also he can appropriate public funds.

To my mind, these postulates underlie the provisions of Sec. 3(2) of Article XVII. To reiterate,

the said provision recognizes legislative power in the incumbent President and the scope of said

powers is coextensive with what might be needed, primarily according to his judgment, to

achieve the ends of his martial law proclamation, and in all other respects, they are limited only

by the provisions of Sec. 7 of the same article, but, evidently, even this limitation must be

reconciled with the fundamental criterion that the New Constitution was conceived, formulated

and enacted with the basic objective of establishing the New Society for which martial law was

proclaimed. In other words, since the known broad objective of Proclamation 1081 is not only to

contain or suppress the rebellion but also to reform our society and recognize and restructure

our government and its institutions as the indispensable means of preventing the resurgence of

the causes of the rebellion, it is obvious that any decree promulgated by the President in line

with these purposes, including those appropriating the necessary funds therefor, cannot be

assailed as beyond the pale of the Constitution.

There is nothing in the letter of the Constitution concerning referendums. But it would be absurd

to think that such paucity may be deemed to indicate that the government has no authority to

call one. If there is anything readily patent in the Constitution, it is that it has been ordained to

secure to the people the blessings of democracy and that its primordial declared principle is that

"sovereignty resides in the people and all government authority emanates from them." Of

course, it establishes a representative democracy, but surely, there is and there could be no

prohibition in it against any practice or action that would make our government approximate as

much as possible a direct one, which is the ideal. On the contrary, it is self-evident that

conditions and resources of the country permitting, any move along such a direction should be

welcome. In fact, at this time when there are fears about what some consider as an emerging

dictatorship, referendums in the manner contemplated in the impugned presidential decrees

provide the means for the most vigorous assertion by the people of their sovereignty, what with

the participation therein of even the fifteen-year olds and non-literates and the concrete efforts

being exerted to insure the most adequate submission and the utmost freedom of debate and

consensus as the emergency situation would permit and to have the fairest recording and

tabulation of the votes. Granting the good faith of everyone concerned, and there is absolutely

no reason why it should be otherwise, a unique exercise of essential democratic rights may be

expected, unorthodox as the experience may be to those who cannot understand or who refuse

to understand martial law Philippine style. In principle, to oppose the holding of a referendum

under these circumstances could yet be a disservice to the nation.

A plebiscite or election of officials prescribed by the Constitution for specific occasions must be

distinguished from a referendum, which is an inherent constitutional democratic institution,

perhaps not normally convenient to hold frequently or regularly, but which in certain periods in

the life of the nation may be indispensable to its integrity and preservation. The administration of

martial law is usually considered as nothing more than submission to the will of its administrator.

Certainly, there can be no objection to said administrator's holding a dialogue with the people

and adopting ways and means of governing with their full acquiescence manifested in whatever

happens to be the most feasible way of doing it. If it be assumed that a referendum under the

aegis of martial law may not be an ideal gauge of the genuine will of all the people, no one

would deny that if it is undertaken in good faith, and giving allowances to the imperatives of the

situation, it can somehow reflect their sentiment on the grave issues posed. Besides, whether or

not the people will enjoy sufficient and adequate freedom when they cast their votes in the

challenged referendum is a question that is unfair to all concerned to determine a priori and

beforehand. In any event, it is history alone that can pass judgment on any given referendum.

Upon the other hand, whether a referendum should be called or not and what questions should

be asked therein are purely political matters as to which it does not appear to be proper and

warranted for the Court to exert its judicial power in the premises. To be sure, the referendum in

question could be a waste of the people's money in the eyes of some concerned citizens, while

it may be a necessary and fruitful democratic exercise in the view of others, but what is certain

is that considering its nature and declared purposes and the public benefits to be derived from it,

it is the better part of discretion, granted to it by the Constitution for the Court to refrain from

interfering with the decision of the President.

The claim that the Comelec may not be considered as the independent and impartial guardian

of the results of the scheduled referendum has no basis in fact. From extant circumstances, the

recent activities of that body have not been characterized by any perceptible design to influence

such results in any direction. Referendums being, as they are, in the Philippines today, in the

nature of extra-constitutional innovations, it seems but natural and logical at this stage that the

Comelec has been assigned to undertake the functions of formulating the questions, which,

after all has been done after a more or less nationwide gathering of opinions, and of

subsequently explaining them to the people to best enable them to vote intelligently and freely.

I see no cause to be apprehensive about the fate of those who might wish to vote "no." To start

with, the voting will be secret and is guaranteed to be so. And when I consider that even a

strongly worded petition to enjoin the referendum has been openly ventilated before the

Supreme Court with full mass media coverage giving due emphasis to the points vehemently

and vigorously argued by Senator Tañada, who did not appear to be inhibited in the expression

of his views, I cannot but be confirmed in the conviction that the apprehensions of petitioners

are unfounded.

Under the New Constitution, every citizen is charged with the duty to vote. To vote in a

referendum is no less a sacred civic obligation than to vote in an election of officials or in a

plebiscite. The impugned decrees cannot therefore be constitutionally faulted just because they

provide penalties for those who fail to comply with their duty prescribed in no uncertain terms by

the fundamental law of the land.

Makalintal, C.J., Antonio, Esguerra and Fernandez, JJ., concur.

ANTONIO, J., concurring:

I

The only rational way to ascertain the meaning and intent of paragraphs 1 and 2 of Section 3 of

Article XVII (transitory provisions) of the New Constitution is to read its language in connection

with the known conditions of affairs out of which the occasion for its adoption had arisen, and

then construe it, if there be any doubtful expression, not in a narrow or technical sense, but

liberally, giving effect to the whole Constitution, in order that it may accomplish the objects of its

establishment. For these provisions can never be isolated from the context of its economic,

political and social environment.

The New Constitution was framed and adopted at a time of national emergency. The delegates

to the Constitutional Convention realized that the rebellion, lawlessness and near anarchy that

brought about the declaration of martial law, were mere symptoms of a serious malady in the

social order. They knew that the revolutionary reforms made by the incumbent President thru

his decrees, orders and letters of instruction, such as the emancipation of the tenant-farmer

from his bondage to the soil, reorganization of government, eradication of graft and corruption

and measures to bridge the gap between the rich and the poor, were indeed imperative, if the

exigency that brought about the military necessity was to be overcome, civil order restored, and

the foundations of genuine democracy established. The actions of the incumbent President in

promulgating those measures legislative in character during martial law was not without legal

and historical basis. Democratic political theorists traditionally have assumed the need in time of

emergency to disregard for the time being the governmental process prescribed for peacetime

and to rely upon a generically different method of government — the exercise by the Chief

Executive of extraordinary or authoritarian powers, to preserve the State and the permanent

freedom of its citizens. 1

Thus, in my concurring opinion in Javellana, et al. v. Executive Secretary, et al., 2 it was stated

that "to preserve the independence of the State, the maintenance of the existing constitutional

order and the defense of the political and social liberties of the people, in times of grave

emergency, when the legislative branch of the government is unable to function or its

functioning would itself threaten the public safety, the Chief Executive may promulgate

measures legislative in character, ...". We considered then that the proclamation of martial rule

marked the commencement of a crisis government and crisis government in a constitutional

democracy entails the concentration and expansion of governmental power and the release of

the government from the paralysis of constitutional restraints in order to deal effectively with the

emergency. 3 This was the view of the members of the Constitutional Convention when they

framed the New Constitution.

In Our concurring opinions in Aquino, et al. v. Enrile et al., 4 We declared that on the basis of the

deliberations of the 166-man Special Committee of the Constitutional Convention, which was

authorized to make the final draft of the Constitution, during their session on October 24, 1972,

the Convention expressly recognized the authority of the incumbent President during martial law

to exercise legislative powers not merely in the enactment of measures to quell the rebellion but,

more important, of measures urgently required to extirpate the root causes of the social disorder

which gave rise to the exigency.

In was with a view of the continuance of the exercise of these extraordinary powers that the

Convention provided in paragraph 1, Section 3, of Article XVII of the transitory provisions of the

New Constitution that: "He (the incumbent President) shall continue to exercise his powers and

prerogatives under the nineteen hundred thirty-five Constitution ..." and in paragraph 2 thereof

also provided that: "All proclamations, orders, decrees, instructions, and acts promulgated,

issued, or done by the incumbent President shall be part of the law of the land and shall remain

valid, legal, binding and effective even after lifting of martial law or 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."

The conferment upon the incumbent President of those extraordinary powers necessarily

implies that in view of the emergency, there might be a deferment in the convening of the

interim National Assembly and, therefore, it was necessary that he be equipped with adequate

legal authority and power to carry the body politic through the crisis.

Indeed, the need of the times was for a more expeditious mode of decision-making and policy

formulation. The insurgency and the secessionist movement compounded by a world-wide

economic inflation and recession generated problems which must be solved with immediacy

and with policies that are flexible and responsive to the imperatives of the crisis.

II

The impossibility for the Convention to determine a priori, in view of the emergency situation,

the time when conditions shall have sufficiently normalized to permit the convening of the

interim Assembly, precluded them from fixing in the transitory provisions of the Constitution a

definite period when the incumbent President shall initially convene that body. It was a matter

which was wholly confided by the Constitution to the incumbent President. Since the exercise of

this power was committed to the incumbent President in all the vicissitudes and conditions of

the emergency, it has necessarily given him ample scope for the exercise of his judgment and

discretion. It was a political decision for which he is directly responsible to the people to whom

he is accountable and for whose welfare he is obliged to act. As stated in the separate opinion

of Justice Castro, concurred in by the Chief Justice, Justices Barredo, Esguerra, Fernandez and

the writer of this opinion, "The peripheral matter whether President Marcos should now or soon

convene the interim National Assembly is completely outside the competence of the Supreme

Court to resolve as ... it is a political question addressed principally, basically, and exclusively to

the President and the Filipino people."

III

Neither can it be asserted that the exercise by the incumbent President of those extraordinary

powers is necessarily inconsistent with and an absolute contradiction to the existence of a

democracy. 5 When the exercise of such authoritarian powers is expressly conferred upon him

by the Constitution, it represents the will of the sovereign people as the source of all political

power. So long as the power is used to fulfill its true function in realizing the ethical purposes of

the community, which is to ensure the economic and social well-being of its citizens and to

secure to them justice, such power is employed for constructive and moral purposes. Its

exercise is, therefore, legitimate as it represents the collective will of the people themselves. It is,

therefore, logical that the incumbent President consult the people on issues vital to the public

interest even through a consultative referendum. Such useful and healthy contact between the

government administrator and the citizenry is the more necessary in a period of martial law,

because the equal participation of the citizenry in the formulation of the will of the State and in

its fundamental political decisions ensures the unity of the people in their efforts to surmount the

crisis. The success then of the political leadership in leading the nation through the emergency

would depend on its ability to convince and persuade, not to dictate and coerce; to enlist, not to

command; to arouse and muster the energies, loyalties, and, if need be, the sacrifices of the

people. As Leibholz aptly observed, "the one essential presupposition of democracy is that the

people as a political unity retains its sovereignty, and that the majority of the active citizens can

express their will in political freedom and equality." 6

IV

It is, however, asserted that the questions asked may not logically be the subject of a

referendum. Thus, it is claimed that some of the questions contemplate vital changes in the

existing form of local government, which changes, under Sections 2 and 3 of Article XI of the

1973 Constitution, must be submitted to the electorate for ratification in a plebiscite called for

that purpose. Admittedly, the question of the coming referendum asked the voters in the Greater

Manila Area, do not contain a full text of the law proposed for the ratification or rejection by the

people. It is, therefore, not a plebiscite contemplated by the aforecited Sections 2 and 3 of

Article XI of the New Constitution but merely a referendum, advisory or consultative in character.

Political democracy is essentially a government of consensus. The citizen has "a right and a

duty to judge his own concerns, his acts and their effects, as they bear on the common good. If

they entail the common acts of the community, he again has the duty and right to contribute to

the common deliberation by which the acts of the community are decided." 7 Common

deliberation or mutual persuasion occurs on all levels of society, and as a result thereof a

common judgment or consensus is formed on those matters which affect the democratic polity.

This is based on the premise that sovereignty in a political democracy resides in the people and

that, their government is founded on their consent. It is in the formulation of this consensus

whether in an election, plebiscite, direct legislation or advisory referendum or consultation, that

the political community manifests its consent or dissent. The national leadership as the elected

representative of the national community has the duty to be responsive and responsible to this

sovereign will. It has been said that the President "speaks and acts as the people's agent. He

lays claim to a mandate from them for his acts. Authority descends upon him from the nation,

not from the other organs of government." 8 In his dual role as Chief Executive and Legislator

under martial law, the incumbent President has, therefore, a greater degree of accountability to

the political community. To discharge effectively that responsibility, he has to ascertain the

people's consensus or common judgment and to act in accordance therewith. Only then can it

be said that his actions represent the people's collective judgment and, therefore, entitled to

their whole-hearted support. The coming referendum is a national undertaking affecting the

future of the country and the people. It, therefore, requires the involvement of every Filipino. By

participating in the national consultation or advisory referendum of February 27, 1975, the

Filipino people will prove to the rest of the world their maturity and capability as a people to

make major decisions.

V

It is nevertheless asserted that a referendum held under present existing circumstances is of no

far-reaching significance because it is being undertaken in a climate of fear. The infirmity of

such a priori judgment is evident from the fact that it is not based on reality. It betrays a lack of

awareness of the strength and character of our people. It is contradicted by past experience.

There has been a deliberate policy to lift gradually the strictures on freedom attendant to a

regime of martial law. Thus, State restrictions on press freedom had been removed, except over

publications which, because of their subversive or seditious character, are deemed incompatible

with the public safety. Freedom of discussion and of assembly are now encouraged. No less

than the incumbent President of the Philippines has underscored the need for an accurate and

honest canvass of the people's sentiments. As the nation's leader, he is called upon to make

bold decisions in the face of the grave problems confronting the nation, but he is convinced that

such decisions cannot be effective unless rooted in the will and reflective of the true sentiments

of the sovereign people.

Given the determination of the incumbent President to ascertain the true sentiments of the

people, and considering the measures instituted by the Commission on Elections to safeguard

the purity of the ballot, there appears, therefore, no basis for petitioners' apprehension that the

forthcoming referendum will not reflect the people's untrammeled judgment.

The foregoing opinion contains in brief the reasons for my concurrence with the main opinion

and the separate opinions of Justices Castro and Barredo.

FERNANDEZ, J., concurring:

The present case calls for an interpretation of the New Constitution, particularly its Transitory

Provisions. Privileged as I was to be a member of the Constitutional Convention that drafted the

Constitution, I feel it my duty to write this concurring opinion in the hope that I may be able to

shed light, even if only modestly, on the fundamental questions involved in this case, on the

basis of what I personally know and in the light of the records of the Convention, to show the

understanding and intention of the Delegates when they discussed and voted on the

constitutional provisions involved in this case.

The pertinent provisions of the New Constitution upon which the parties in this case base their

respective claims are:

ARTICLE XVII

TRANSITORY PROVISIONS

SECTION 1. There shall be an interim National Assembly which shall exist immediately

upon the ratification of this Constitution and shall continue until the Members of the

regular National Assembly shall have been elected and shall have assumed office

following an election called for the purpose by the interim National Assembly. Except as

otherwise provided in this Constitution, the interim National Assembly shall have the

same powers and its Members shall have the same functions, responsibilities, rights,

privileges, and disqualifications as the regular National Assembly and the Members

thereof.

Sec. 2. The Members of the interim National Assembly shall be the incumbent President and

Vice-President of the Philippines, those who served as President of the Nineteen hundred and

seventy-one Constitutional Convention, those Members of the Senate and the House of

Representatives who shall express in writing to the Commission on Elections within thirty days

after the ratification of this Constitution their option to serve therein, and those Delegates to the

nineteen hundred and seventy-one Constitutional Convention who have opted to serve therein

by voting affirmatively for this Article. They may take their oath of office before any officer

authorized to administer oath and qualify thereto, after the ratification of this Constitution.

Sec. 3. (1) 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 he 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.

(2) All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by

the incumbent President shall be part of the law of the land, and shall remain valid, legal,

binding, and effective even after lifting of martial law or the ratification of this Constitution,

unless modified, revoked, or superseded by subsequent promulgations, orders, decrees,

instructions, or other acts of the incumbent President, or unless expressly and explicitly modified

or repealed by the regular National Assembly.

xxx xxx xxx

The discussion on these Transitory Provisions in the plenary session 1 of the Constitutional

Convention on October 18, 19 and 20, 1972 2 and the votes thereon clearly show:

1. That the determination of the date the interim National Assembly should be convened was left

to the judgment of the President, the country being, as it still is, under martial law;

2. That the incumbent President legally holds office as such having been authorized to continue

in office and to exercise not only the powers of the President under the 1935 Constitution but

also those of the President and Prime Minister under the 1973 Constitution, from the time the

New Constitution was ratified on January 17, 1973 until the election of the interim President and

interim Prime Minister which up to now has not yet taken place; and

3. That included in the powers of the President under the 1935 Constitution and the powers of

the Prime Minister under the 1973 Constitution is the power to declare martial law which in turn

includes the power to make all needful rules and regulations with the force and effect of law until

the termination of the martial rule.

The minutes of the plenary session of the Convention of October 18, 1972 contain the

sponsorship speech of Delegate Yaneza, Chairman of the Committee on Transitory Provisions.

He described the proposed interimgovernment as a practical response to our abnormal

conditions presently obtaining in the country. He explained that in order to effectively implement

reform measures under the New Constitution, the nation should be relieved of the burden of

political and national elections during the transitory period. The proposed interim National

Assembly should therefore be composed of present elective government officials, together with

members of the Convention who would vote for its creation and who could be of great help, in

view of their familiarity with the provisions of the New Constitution, in the enactment of reform

measures to be approved by the interim National Assembly pursuant to the mandates of the

New Constitution. Delegate Yaneza was interpellated by Delegates Suarez, Tupaz (A), Jamir,

Ledesma (F), Alano, Sanchez, Molina, Siguion Reyna, Pimentel, Laurel, Encarnacion,

Pacificador, Ordoñez, Teves, Gonzales, and his co-sponsor, Delegate Abundo.

The following exchange took place between Delegate Pimentel and Delegate Yaneza.

DELEGATE PIMENTEL (V): Thank you, Mr. Chairman. Now Section 3 has been

repeatedly the basis of certain questions. It says: "the incumbent President of the

Philippines shall initially convene." Will it not be better if we state here, "shall

immediately convene? Or we should provide a certain number of days or months

perhaps after the ratification of the Constitution when the President shall initially convene

thead interim Assembly?

DELEGATE YANEZA: Yes, Your Honor, we can. We see your point and we have discussed that

in the Committee lengthily, but we arrived at a decision to give our President flexibility regarding

this particular matter, Your honor. And we feel that we have decided this matter with some

wisdom and with consideration of the present situation obtaining in our country. (Emphasis

supplied)

The minutes of the plenary session of the Convention of October 19, 1972 show, among others,

the following:

Delegate Reyes (J) inquired whether the incumbent President of the Republic would be at the

same time President and the Prime Minister under the interim Government. Delegate Yaneza

answered affirmatively, adding that the President would actually have a triple personality since

he would exercise powers under the two Constitutions.

Delegate Garcia (L.M.) asked whether the interim Assembly could convene without the approval

of the President, to which Delegate Britanico (a co-sponsor) replied in the negative.

Delegate Barrera (former Supreme Court Justice) was the first to speak against the approval of

Sections 1, 2 and 3 of the Transitory Provisions. He was interpellated by Delegates Lim, Laggui

and Raquiza. He was followed by Delegate Teves who also spoke against the Transitory

Provisions in question. Teves was interpellated by Delegates Purisima, Adil, and Siguion Reyna.

Delegate David (J) was the next opposition speaker. He was in turn interpellated by Delegate

Tupaz (A.).

On October 20, 1972, Delegate Concordia continued the opposition against the Transitory

Provisions, followed by Delegate Garcia (L.M.) who was interpellated by Delegates Bersola

Catan and Leido.

The chair then declared the period of rebuttal open and recognized Delegate Cuaderno as first

speaker. Cuaderno said that he favored the article on the interim Government mainly because

of the benefits of martial law.

Delegate Mutuc was the next rebuttal speaker. He confined his speech to the ratification of all

proclamations, orders, decrees, instructions and acts proclaimed, issued or done by the present

administration under martial law, contending that only the sovereign people could pass

judgment with finality on the same.

Delegate Fernandez followed. And the last rebuttal speaker was Delegate Serrano who

maintained that the interimNational Assembly was a necessity, to fill the vacuum of

constitutional processes that could arise should the President continue in office beyond his

tenure so that he could see the fruition of his efforts to restore normalcy in the country.

The strongest attack on the Transitory Provisions was delivered by Delegate Jesus Barrera of

Rizal, a former Justice of the Supreme Court. This was rebutted by Delegate Estanislao A.

Fernandez of Laguna (now a humble member of this Court). Both speeches covered all the

principal points.

Modesty aside, we now beg to summarize their arguments, as follows:

Delegate Barrera: It is immoral for us to vote Yes, because that would be practically

electing ourselves as members of the interim National Assembly when we were elected

by the people only for the purpose of writing a Constitution.

Delegate Fernandez: True, when we were elected, our mandate from the people was only to

write a new Constitution. But then there was no martial law yet. With martial law, there arose a

need for aninterim Government, specifically, an interim National Assembly. No one has

previously received any mandate from our people on who should be members of this interim

National Assembly. No one can say as of now whether it is immoral, and even moral, for us to

vote Yes. For my part, I will vote Yes because if I vote No, I would foreclose my right to become

a member of this interim National Assembly. I will vote Yes. Afterwards I will consult with the

people of the second district of Laguna on this matter. If they say "Fernandez, you committed an

error", then I will not take my oath. However, if they say "Fernandez, you did well so that we can

have an additional representative in the interim National Assembly," then I will take my oath. By

that time, I think nobody can say it was immoral for me to have voted Yes. But what is most

important is whether or not the members of the interim National Assembly succeed in the

discharge of their duties and responsibilities. If they fail, then our people and history will

condemn them. If they succeed, our people and history may commend them.

Delegate Barrera: As long as the interim National Assembly does not call for the election of the

regular members of the National Assembly, the members of this interim Assembly will continue

in office. For how long, it is not determined. In view of the high salary of the members of the

National Assembly (P60,000.00 a year), there will be a temptation for them not to call for the

election of the members of the regular National Assembly, for a long, long time.

Delegate Fernandez: I disagree. We must grant that the members of the interim National

Assembly would be possessed with a sense of decency and patriotism that would make them

realize the impropriety of overstaying in office. And the people will always be there to

demonstrate thru the media and the streets to compel the interim National Assembly to call for a

regular election.

Delegate Barrera: But it is wishful thinking on the part of the members of the convention to vote

Yes and thereby become members of the interim National Assembly because the President

may unduly delay the lifting of martial law and the calling of the National Assembly into a

session. Then he will be President for life.

Delegate Fernandez: What is the premise of the conclusion of the Delegate from Rizal that the

President will unduly delay the lifting of martial Law and the calling of the interim Assembly into

a session? Nothing. For my part, I wish to advance a premise. If it is valid, the conclusion will be

valid. I believe President Marcos will want to go down in history as a good President. If this

premise is good and I believe it is, then he will not abuse. He will lift martial law and convene the

interim National Assembly at the proper time. He will not be President for life.

Delegate Abundo then said that the committee had accepted the following amendment: "(b) the

Mariño amendment to Section 2 concerning "those members of both the Senate and House of

Representatives to express in writing to the Commission on Elections their option to sit in the

assembly within 30 days after the ratification of the Constitution, etc." There being no objection,

the above amendment was approved.

Delegate Yuzon proposed to fix the date of the election of the members of the regular Assembly

to "not later than May, 1976." Delegate Renulla proposed 1977 instead. Delegate Yuson

accepted the amendment, but when submitted to a vote, the amendment was lost. Other

amendments were proposed and were lost.

Delegate Pacificador moved to suspend the rules so that voting on the draft Transitory

Provisions could be considered as voting on second and third reading and proposed that absent

delegates be allowed to cast their votes in writing and deliver them to the Committee on

Credentials within 72 hours from that day.

The voting followed and the chair announced that by a vote of 274 in favor and 14 against the

draft Transitory Provisions were approved on second and third reading. And among the

delegates that voted affirmatively in favor of these Transitory Provisions whose interpretation is

now the subject of the present case, were: Delegate Alonto (former Senator from Lanao),

Delegate Aruego (the well-known author on the framing of the Constitution), Delegate Baradi

(former Ambassador), Delegate Borra (former COMELEC Chairman), Delegate Cuaderno

(Member of the first Constitutional Convention and Economist who recently passed away),

Delegate De las Alas (former Speaker of the House of Representatives), Delegate Laurel (who

was President Protempore of the Convention), Delegate Feliciano Ledesma (Dean of the

College of Law of San Beda), Delegate Oscar Ledesma (former Senator), Delegate Leido

(former Congressman and Secretary of Finance), Delegate Liwag (former Secretary of Justice

and Senator), Delegate Marino (former Executive Secretary and Secretary of Justice), Delegate

Mutuc (former Executive Secretary and Ambassador), Delegate Father Pacifico Ortiz, Delegate

Ceferino Padua (lawyer of former Senator Sergio Osmeña, Jr.), Delegate Jose Ma. Paredes

(former Justice of the Supreme Court), Delegate Godofredo Ramos (veteran legislator),

Delegate Sinco (former UP President and an authority on Constitutional Law), Delegate Serrano

(former Secretary of Foreign Affairs), Delegate Sumulong (former Congressman), Delegate

Sinsuat (former Member of the Cabinet), Delegate Domingo Veloso (former Speaker

Protempore of the House of Representatives), Delegate Concordia(former Congressman), and

Delegate Fernandez.

The foregoing, in our humble opinion, clearly show:

a) That when 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 theinterim 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; and

b) That the incumbent President, or President Marcos to be more specific, was to continue in

the office as President with triple powers, upon and even after the ratification of the New

Constitution (January 17, 1973), and until the election of the interim President and interim Prime

Minister (which has not taken place even up to now), and even after December 30, 1973 when

the term of office of the incumbent President would have expired under the 1935 Constitution.

Hence, the incumbent President continued and continues to be the constitutional and therefore

de jurePresident of our country.

Subsequent events proved the wisdom of the decision of the Convention to give the President a

wide discretion when to convene the interim National Assembly.

a) For although the peace and order condition of the country has improved, it suffered a relapse.

The rebellion had not been completely quelled. Only last January 29, 1975, for instance, the

newspapers carried the report that according to President Marcos — "Muslim insurgents had

broken a truce in Mindanao and Sulu resulting in a fresh outbreak of hostilities and in heavy

casualties." ... "Muslim secessionists ... had taken over three towns in Mindanao and Sulu." ...

"An Armed Forces contingent of 42 men, including three officers and the battalion commander,

were wiped out in a surprise raid."

b) The oil crises which brought about worldwide inflation, recession and depression, created

problems which, according to economic experts, can be solved effectively only with the

President exercising legislative powers. A National Assembly would take a longer period of time

to be able to pass the necessary legislation to cope with this worsening economic situation.

c) And what is most important is that in addition to the criticisms levelled in the Convention

against the membership of the interim National Assembly, the people themselves expressed

their disfavor against the interim Assembly by voting against its immediate convening when they

ratified the Constitution on January 10-15, 1973. In the July 24, 1973 referendum, the

Barangays reiterated their decision of January, 1973 to suspend the convening of the

interimNational Assembly. And in connection with the forthcoming February 27, 1975

referendum, many members of thisinterim National Assembly themselves asked that the

question of whether or not the assembly should immediately be convened be eliminated, as in

fact it was eliminated, because the people had already decided against the immediate

convening of the interim Assembly.

Perhaps, it was a blessing in disguise that before this interim National Assembly could be

convened, it has been "fiscalized" in advance be our people. The people apparently have

expressed their distrust of this interim Assembly. This has become a standing challenge so that

when this interim Assembly is finally convened, its members may discharge their duties and

responsibilities in such a manner as to rebut successfully the basis for the opposition of the

people to its being convened in the meantime.

I have adverted to the proceedings of the Constitutional Convention because it supports the

literal interpretation of the Constitution which I now wish to make. The wording of the New

Constitution is, I believe, clear. Considering the condition in which the country was at the time

they approved the draft of the Constitution, it would have been unthinkable for the Constitutional

Convention not to have provided for a continuity in the office of the Chief Executive.

It is equally unthinkable 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 law-making powers, there would be paralyzation of the entire governmental

machinery. Such an interpretation of the Transitory Provisions is so absurd it should be rejected

outright.

The original wording of Article XVII, Section 3(2) was that "all proclamations, orders, decrees,

instructions and acts promulgated, issued or done by the present administration are hereby

ratified and confirmed as valid." The words "ratified and confirmed" had been changed into

"shall be part of the law of the land," because under the first clause, it would imply that the

incumbent President did not have the authority to issue the proclamations, orders, decrees,

instructions and acts referred to. The Convention conceded that the President had that power;

and that is the reason why the phrase "shall be part of the law of the land" was the one finally

used.

Parenthetically, the Constitutional Convention itself recognized expressly the legislative power

of the incumbent President to enact an appropriation law when it asked and the same was given

by the incumbent President additional funds at the time when there was already martial law.

I wish to add that this legislative power of the President under martial law should not be limited

to the legislative power under the old classical concept of martial law rule. For the modern

concept of martial law rule includes not only the power to suppress invasion, insurrection or

rebellion and imminent danger thereof, but also to prevent their resurgence by the removal of

the causes which gave rise to them; in a word, the reform of our society.

In the speech that I delivered as a Delegate from Laguna in the Constitutional Convention in its

plenary session of October 20, 1972, I stated my firm conviction that President Marcos would

want to go down in history as a good President. This was not only a belief but a challenge to

him as well; and I am glad that subsequent events proved the correctness of my stand. In one of

his books, he himself said:

Moreover, we have embarked upon the experiment with the full knowledge that its

outcome will depend on most of us, not just a few who are managing a "command

society." The misgivings are large; the most outstanding is the fear of a powerful few

holding the many in subjection. But this fear misses the particularity of Philippine martial

law; it cannot and not exist without the clear and not manipulated consent of the

governed. Our people will accept only sacrifices which are justifiable to them.

It is more than a homily to assert that the New Society is not a promised land that patiently

awaits our arrival. More than a place in time or space, the New Society is a vision in our minds:

this can be realized only through the strength of our resolution.

I am mindful of the fact that historically authoritarian regimes tend to outlive their justification. I

do not intend to make a permanent authoritarianism as my legacy to the Filipino people. It is

sufficiently clear to them, I believe, that martial law is an interlude to a new society, that it is, in

sum, a Cromwellian phase in our quest for a good and just society. Certainly the enterprise is

worth a little sacrifice. (Marcos, The Democratic Revolution in the Philippines, 217-218, [1974]).

And in his speech before government elective officials of Bulacan last January 29, 1975 as

reported in the newspapers of last January 30, 1975, he solemnly said that should the coming

referendum fail to give him a vote of confidence, he would call the interim National Assembly to

session and that more than that, he would ask the Assembly to immediately fix the date for

elections of the members of the National Assembly; and that in such a case, he would run in his

district for a seat in the Assembly.

And so, it is now up for the people to speak in the coming February 27, 1975 referendum. The

information campaign should now go in full gear. The Commission on Elections should

emphasize the freedom of debate during the campaign; it should emphasize the freedom of the

people to express themselves not only in the debates but more so as they cast their ballots, by

safeguarding the secrecy of the ballot. And the Commission should redouble its efforts to assure

the people that there will be a true, correct and accurate reading of the ballots, counting of the

votes, and a report of the results of the referendum.

IN VIEW OF ALL THE FOREGOING, I repeat my concurrence in the decision of this Court and

in the separate opinions of Justices Castro and Barredo. The petition should thus be dismissed,

without costs.

TEEHANKEE, J., concurring and dissenting:

In concur with the main opinion insofar as it recognizes President Ferdinand E. Marcos as the

"incumbent President" and head of government who is vested with authority under Article XVII,

section 3 (1) of the Transitory Provisions of the 1973 Constitution to "continue to exercise his

powers and prerogatives under the 1935 Constitution and the powers vested in the President

and Prime Minister under this Constitution."

I am constrained, however, to dissent from the remaining portion thereof which dismisses the

petition, on the basis of serious constitutional grounds as briefly expounded hereinafter.

1. It cannot be gainsaid that the single most important change effected by the 1973 Constitution

is the change of our system of government from presidential to parliamentary wherein the

legislative power is vested in a National Assembly 1 and the Executive Power is vested in the

Prime Minister who "shall be elected by a majority of all the members of the National Assembly

from among themselves." 2 The President who is likewise elected by a majority vote of all the

members of the National Assembly from among themselves "shall be the symbolic head of

state." 3

To carry out the "orderly transition from the presidential to the parliamentary system," section 1

of the Transitory Provisions decreed that:

SECTION 1. There shall be an interim National Assembly which shall exist immediate

upon the ratification of this Constitution and shall continue until the Members of the

regular National Assembly shall have been elected and shall have assumed office

following an election called for the purpose by the interim National Assembly. Except as

otherwise provided in this Constitution, the interim National Assembly shall have the

same powers and its Members shall have the same functions, responsibilities, rights,

privileges, and disqualifications as the regular National Assembly, and the Members

thereof. (Art. XVII)

Section 2 of the Transitory Provisions provides for the members of the interim National

Assembly. The Solicitor General stated at the hearing that the interim National Assembly came

into existence after the proclamation on January 17, 1973 of the ratification of the Constitution

per Proclamation No. 1102 when the members thereof took their oath of office and qualified

thereto in accordance with the cited section and continues in existence at the present time

without having been convened.

Petitioners raise the question as to the scheduled referendum called for February 27, 1975 that

the calling of a referendum and the appropriation of funds therefor are essentially legislative

acts while the transitory powers and prerogatives vested in President Marcos until the election

of the interim Prime Minister and interim President under section 3 (1) of the Transitory

Provisions are executive and not legislative powers, since the powers of the President under the

1935 Constitution and those of the Prime Minister under the 1973 Constitution are essentially

executive powers; more so, with respect to the powers of the President under the 1973

Constitution which are symbolic and ceremonial.

While the Solicitor General has cited the President's powers under martial law and under

section 3 (2) of the Transitory Provisions 4 as vesting him with Šlegislative powers, there is

constitutional basis for the observation that his legislative and appropriation powers under

martial law are confined to the law of necessity of preservation of the state which gave rise to its

proclamation 5 (including appropriations for operations of the government and its agencies and

instrumentalities).

Rossiter, as extensively cited by Solicitor General, has thus stressed that "the measures

adopted in the prosecution of a constitutional dictatorship should never be permanent in

character or effect. ... The actions directed to this end should therefore be provisional. ...

Permanent laws, whether adopted in regular or irregular times are for parliaments to enact," and

that "a radical act of permanent character, one working lasting changes in the political and

social fabric (which) is indispensable to the successful prosecution of the particular

constitutional dictatorship ... must be resolutely taken and openly acknowledged [as exemplified

by U.S. President Lincoln's emancipation proclamation] ... Nevertheless, it is imperative that any

action with such lasting effects should eventually receive the positive approval of the people or

of their representatives in the legislature." 6

Even from the declared Presidential objective of using Martial Law powers to institutionalize

reforms and to remove the causes of rebellion, such powers by their very nature and from the

plain language of the Constitution 7 are limited to such necessary measures as will safeguard

the Republic and suppress the rebellion (or invasion) and measures directly connected with

removing the root causes thereof, such as the tenant emancipation proclamation. 8 The concept

of martial law may not be expanded, as the main opinion does, to cover the lesser threats of

"worldwide recession, inflation or economic crisis which presently threatens all nations" 9 in

derogation of the Constitution.

On the other hand, those legislative powers granted in the cited section 3 (2), known as the

validating provision which validated the President's acts and decrees after the proclamation of

martial law up to the ratification of the Constitution are limited to modifying, revoking or

superseding such validated acts and decrees done or issued prior to the proclaimed ratification,

since section 7 of the Transitory Provisions 10 expressly reserves to the National Assembly the

legislative power to amend, modify or repeal "all existing laws not inconsistent with this

Constitution."

The question is thus reduced as to whether now after the lapse of two years since the adoption

of the 1973 Constitution, the mandate of section 3 (1) of the Transitory Provisions for the

convening, of the existing interimNational Assembly should be implemented — not for purposes

of an action of mandamus which cannot be availed of because of the separation of powers —

but for the present action of prohibition against respondents officials which asserts that the

questioned referendum comes within the constitutional domain of the interim National Assembly

and that after the coming into "immediate existence of the interim National Assembly upon the

proclamation of ratification of the Constitution, the "initial convening" thereof with the election of

the interim Speaker and the election of the interim President and the interim Prime Minister

should have followed as a matter of course. The cited provision reads:

SEC 3. (1) 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 untilhe calls upon the interim National

Assembly to the elect the interim President and the interim Prime Minister, who shall

then exercise their respective powers vested by this Constitution. (Art. XVII)

2. The above quoted pertinent provisions indicate an affirmative answer. It is axiomatic that the

primary task in constitutional construction is to ascertain and assure the realization of the

purpose of the framers and of the people in the adoption of the Constitution and that the courts

may not inquire into the wisdom and efficacy of a constitutional or statutory mandate.

Where the language used is plain and unambiguous, there is no room for interpretation. "It is

assumed that the words in which constitutional provisions are couched express the objective

sought to be attained. They are to be given their ordinary meaning except where technical terms

are employed in which case the significance thus attached to them prevails. As the Constitution

is not primarily a lawyer's document, it being essential for the rule of law to obtain that it should

ever be present in the people's consciousness, its language as much as possible should be

understood in the sense they have in common use. What it says according to the text of the

provision to be construed compels acceptance and negates the power of the courts to alter it,

based on the postulate that the framers and the people mean what they say." 11

The mandate of section 1 of the Transitory Provisions that the interim National Assembly shall

"exist immediatelyupon the ratification of this Constitution" calls for its coming into existence

"right away" as conceded by respondents at the hearing. Likewise, as affirmed by the Solicitor

General, its members as provided in section 2 duly took their oath of office and qualified thereto,

upon the proclamation of ratification. The clear import of section 3 in order to give meaning and

effect to the creation and "immediate existence" of the interim National Assembly is that the

incumbent President shall then proceed to "initially (i.e. "in the first place: at the beginning") 12

convene" it and preside over its sessions until the election of the interim Speaker after which he

calls for the election of the interim President and theinterim Prime Minister "who shall then

exercise their respective powers vested by this Constitution." (The "incumbent President" then

bows out and is succeeded by the Prime Minister who may of course be himself).

This view is further strengthened by the expectations aired in the debates of the 1971

Constitutional Convention that a parliamentary government would be more responsible and

responsive to the people's needs and aspirations. Thus, in section 5 of the Transitory Provision,

the interim National Assembly was charged with the mandate to "give priority to measures for

the orderly transition from the presidential to the parliamentary system, the reorganization of the

Government the eradication of graft of and corruption, the effective maintenance of peace and

order, the implementation of declared agrarian reforms, the standardization of compensation of

government employees, and such other measures as shall bridge the gap between the rich and

the poor" — urgent and long-lasting measures which the President has single-handedly

confronted up to now.

3. The manifestation of the Solicitor General that the schedule referendum is merely

consultative and thus includes the participation of voters below 18 years of age but at least 15

years old (who are not qualified enfranchised voters under Article VI on suffrage of the 1973

Constitution which decrees a minimum age of 18 years for qualified voters) adds weight to the

view that the existing interim National Assembly be now convened and perform its constitutional

functions as the legislative authority. From the very nature of the transitory provision which

created it, its existence must likewise be interim, i.e. temporary provisional, of passing and

temporary duration (as opposed to permanent and the regular institutions provided for in the first

15 Articles of the Constitution) until after it shall have reapportioned the Assembly seats 13 and

called for the election of the members of the regular National Assembly. 14 The convening of the

interim National Assembly with its cross-section of knowledgeable representatives from all over

the country was obviously hopefully conceived to serve (more than consultative referendums)to

apprise the President of the people's and their constituencies' views as well as to assist him as

mandated by the Constitution in the enactment of priority measure to achieve fundamental and

far-reaching reforms.

4. While it has been advanced that the decision to defer the initial convocation of the interim

National Assembly was supported by the results of the referendum in January, 1973 when the

people voted against the convening of theinterim National Assembly for at least seven years, 15

such sentiment cannot be given any legal force and effect in the light of the State's admission at

the hearing that such referendums are merely consultative and cannot amend the Constitution

or any provision or mandate thereof such as the Transitory Provisions which call for the

"immediate existence" and "initial convening" of the interim National Assembly to "give priority to

measures for the orderly transition from the presidential to the parliamentary system" and the

other urgent measures enumerated in section 5 thereof. 16

This seems self-evident for the sovereign people through their mutual compact of a written

constitution have themselves thereby set bounds to their own power, as against the sudden

impulse of mere and fleeting majorities,17 and hence have provided for strict adherence with the

mandatory requirements of the amending process through a fair and proper submission at a

plebiscite, with sufficient information and full debate to assure intelligent consent or rejection. 18

5. Finally, the imposition of penal sanctions of imprisonment and fine upon the citizens who fail

to register and vote in the scheduled referendum is open to serious constitutional question. It

seems clear that the calling of "consultative referendum" is not provided for nor envisaged in the

Constitution as the appropriate vehicle therefor is provided through the interim and regular

National Assemblies. It should perhaps be reexamined whether the mandate of the Constitution

that "it shall be the obligation of every citizen qualified to vote to register and cast his vote" (at

elections of members of the National Assembly and elective local officials and at plebiscites, as

therein provided for) and the criminal penalties imposed in the questioned decrees should be

deemed applicable to such extra-constitutional consultative referendums wherein non-qualified

voters (the 15-year olds up to below 18) are asked to participate.

MUÑOZ PALMA, J., concurring and dissenting:

The views I express in this separate opinion will briefly explain my position on the principal

issues posed in this Petition for Prohibition.

1. President Ferdinand E. Marcos and no other is the person referred to as "incumbent

President" in Article XVII to which we shall refer for short as the Transitory Provisions of the

1973 Constitution. That fact is beyond doubt because at the time the draft of the new

Constitution was being prepared and when it was finally signed by the delegates to the 1971

Constitutional Convention on November 30, 1972, it was President Marcos who was holding the

position of President of the Philippines.

2. As such incumbent President, President Marcos was vested by Section 3(1) of the Transitory

Provisions with constitutional authority to continue as President of the Philippines during the

transition period contemplated in said Article XVII that is, until the interim President and the

interim Prime Minister shall have been elected by the interimNational Assembly who shall then

exercise their respective powers vested by the new Constitution, after which the office of the

incumbent President ceases. During that transition period, President Marcos was given

extraordinary powers consisting of the powers and prerogatives of the President under the 1935

Constitution, and the powers vested in the President and the Prime Minister under the 1973

Constitution. 1

3. Aside from the vest executive powers granted to the incumbent President as indicated above,

he was granted under Section 3(2) of the same Transitory Provisions legislative powers, in the

sense, that all proclamations, orders, decrees, instructions, and acts which were promulgated,

issued, or done by the incumbent President before the ratification of the Constitution were

declared part of the law of the land, to remain valid, legal, binding or effective even after the

lifting of martial law or the ratification of the Constitution, unless modified, revoked or

superseded by subsequent proclamations, etc., by the incumbent President or unless expressly

and explicitly modified or repealed by the regular National Assembly. As to, whether or not, this

unlimited legislative power of the President continue to exist even after the ratification of the

Constitution is a matter which I am not ready to concede at the moment, and which at any rate I

believe is not essential in resolving this Petition for reasons to be given later. Nonetheless, I

hold the view that the President is empowered to issue proclamations, orders, decrees, etc. to

carry out and implement the objectives of the proclamation of martial law be it under the 1935 or

1973 Constitution, and for the orderly and efficient functioning of the government, its

instrumentalities, and agencies. This grant of legislative power is necessary to fill up a vacuum

during the transition period when the interim National Assembly is not yet convened and

functioning, for otherwise, there will be a disruption of official functions resulting in a collapse of

the government and of the existing social order.

4. Because the grant of vast executive and legislating powers to the incumbent President will

necessarily, result in what the petitioners call a one-man rule as there is a concentration of

power in one person, it is my opinion that it could not have been the intent of the framers of the

new Constitution to grant to the incumbent President an indefinite period of time within which to

initially convene the interim National Assembly and to set in motion the formation of the

Parliamentary form of government which was one of the purposes of adopting a new

Constitution. I believe that the interim National Assembly came automatically into existence

upon the ratification of the 1973 Constitution. As a matter of fact, from the submission of the

Solicitor General, it appears that many if not all of those entitled to become members of the

interim National Assembly have opted to serve therein and have qualified thereto in accordance

with the requirements of Section 2 of the Transitory Provisions. 2

We cannot, therefore, reasonably construe the absence of a specific period of time for the

President to initially convene the interim Assembly as placing the matter at his sole pleasure

and convenience for to do so would give rise to a situation in which the incumbent President

could keep the intent National Assembly in suspended animation and prevent it from becoming

fully operational as long as he pleases. This would violate the very spirit and intent of the 1973

Constitution more particularly its Transitory Provisions to institute a form of government, during

the transition period, based upon the fundamental principle of the "separation of powers," with

its checks and balances, by specifically providing that there shall exist immediately upon the

ratification of the 1973 Constitution an interimNational Assembly in which legislative power shall

exercise all the powers and prerogatives which are executive in character, and that the judicial

power shall continue to be vested in the Judiciary existing at the time of the coming into force

and effect of the 1973 Constitution. The situation would also render nugatory the provisions of

Section 5 of the Transitory Provisions which assign to the interim National Assembly a vital role

to perform during the transition period. 3

While it is true that the convening of the interim National Assembly cannot be said to be simply

at the pleasure and convenience of the President, however, the matter is one addressed to his

sound discretion and judgment for which he is answerable alone to his conscience, to the

people he governs, to posterity, and to history.

5. Coming now to the particular problem of the coming referendum on February 27, 1975, it is

my view that the act of the President in calling such a referendum is not really in the nature of a

legislative act which violates the present Constitution. I do not see any prohibition in the

Constitution for the Chief Executive or the President to consult the people on national issues

which in his judgment are relevant and important. I use the word "consult" because in effect the

measure taken by the President is nothing more than consultative in character and the mere

fact that such measure or device is called a referendum in the Presidential Decrees in question

will not affect nor change in any manner its true nature which is simply a means of assessing

public reaction to the given issues submitted to the people for their consideration. Calling the

people to a consultation is, we may say, derived from or within the totality of the executive

power of the President, and because this is so, it necessarily follows that he has the authority to

appropriate the necessary amount from public funds which are subject to his executive control

and disposition to accomplish the purpose.

6. I am constrained to agree with petitioners that a referendum held under a regime of martial

law can be of no far-reaching significance because it is being accomplished under an

atmosphere of climate of fear. There can be no valid comparison between a situation under

martial rule and one where the privilege of the writ of habeas corpus is suspended, as

discussed in the Opinion of Justice Makasiar, because the former entails a wider area of

curtailment and infringement of individual rights, such as, human liberty, property rights, rights of

free expression and assembly, protection against unreasonable searches and seizures, liberty

of abode and of travel, etc. 4

7. Finally, whatever maybe the totality of the answers given to the proposed referendum

questions on local government will be of no real value to the President because under Article XI,

Section 2, 1973 Constitution, it is the National Assembly which is empowered to enact a local

government code, and any change in the existing form of local government shall not take effect

until ratified by the majority of the votes cast in a plebiscite called for the purpose, all of which

cannot be complied with for the simple reason that for the present there is no National Assembly.

Moreover, any vote given on this matter cannot be truly intelligent considering the vagueness of

the question as drafted and the short period of time given to the citizenry to study the so-called

manager or commission type of local government being submitted to the voters.

8 In conclusion, if I concur in the dismissal of the Petition for prohibition it is for the simple

reason that I believe that calling a referendum of this nature is a valid exercise of executive

power not prohibited by the Constitution as discussed in number 5 of this Opinion.

Separate Opinions

CASTRO, J., concurring:

I vote to deny the petition.

At the threshold, and only for the purposes of this separate capsule opinion, I will assume (a)

that this case before us is not in the nature of a quo warranto proceeding; (b) that the petitioners

possess legal standing before the Court; and (c) that all the petitioners, whatever be the

persuasion of their counsel, recognize the Court as the supreme judicial tribunal operating and

functioning under the 1973 Constitution.

I find no particular difficulty in resolving what I regard as the two crucial issues posed by the

petition.

1. On the matter of whether Ferdinand E. Marcos is still the President of the Philippines, the

Transitory Provisions (Art XVII) of the 1973 Constitution, more specifically Secs. 2, 3, 9 and 12

thereof, even if they do not mention him by name, clearly point to and recognize Ferdinand E.

Marcos as the constitutional and lawful President of the Philippines. If there is any doubt at all

— and I do not personally entertain any — that the said Transitory Provisions refer to President

Marcos as the "incumbent President," then such doubt should be considered as having been

completely dissipated by the resounding affirmative vote of the people on this question

propounded in general referendum of July 27-28, 1973: "Under the [1973] Constitution, the

President, if he so desires, can continue in office beyond 1973. Do you want President Marcos

to continue beyond 1973 and finish the reforms he initiated under martial law?"

2. On the matter of whether President Marcos, at the present time, can constitutionally exercise

legislative power, I do not need to postulate that he derives legislative power from the

constraints of a regime of martial law. To my mind, pars. 1 and 2 of See. 3 of the Transitory

Provisions are unequivocal authority for President Marcos to legislate. These paragraphs read:

The incumbent President of the Philippines shall initially convene the interim National Assemble

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 he calls 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, legal, binding,

and effective even after [the] 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.

Stated elsewhere, my reading of these provisions is that they constitute an unmistakable

constitutional warrant for the "incumbent President" (meaning President Marcos) to legislate

(until, at the very earliest, the interim National Assembly shall have been convoked).

The peripheral matter of whether President Marcos should now or soon convene the interim

National Assembly is completely outside the competence of the Supreme Court to resolve, as,

in my view, it is a political question addressed principally, basically, and exclusively to the

President and the Filipino people.

Makalintal, C.J., Barredo, Antonio, Esguerra and Fernandez, JJ., concur.

FERNANDO, J., concurring:

It is a crucial question that is posed by this petition to call a halt to the February 27 referendum

because of alleged constitutional transgressions. It is one fundamental in its essence, and what

is more, impressed with the sense of immediacy to quiet doubts and to minimize uncertainties.

There has been a quick response, hopefully not one given in haste, which is the enemy of

thought. For all the vigor and the learning that characterized the advocacy of Senator Lorenzo M.

Tañada, it did not suffice to elicit a favorable verdict. The petition did not prosper. So it has been

adjudged, and I concur in the result reached. It is given expression in the notable opinion

penned by Justice Makasiar which, on its face, betrays sensitivity to the magnitude and the

grave implications of the serious problems posed. What is more, it has not avoided subsidiary

issues which reach into vital areas of our constitutional system. To the extent that it reiterates

tried and tested doctrines, I am of course in agreement. Certainly, there is not much difficulty for

me in reaching the conclusion that the term "incumbent President" in the Transitory Provisions

means what it says. If I submit this brief concurrence, it is only because of my belief that

notwithstanding the brilliant and illuminating argumentation in depth by both eminent counsel,

raging far and wide in the domain of constitutionalism, there is no need as yet to express my

views on some collateral matters. It suffices for me to rely on a jurical concept that is decisive. It

is the fundamental principle that sovereignty resides in the people with all government authority

emanating from them. 1 It speaks, to recall Cardozo, with a reverberating clang that drowns all

weaker sounds.

1. Respondents would interpose obstacles to avoid a decision on the merits. They are not

insurmountable. They alleged that the questions raised are political and therefore left for the

political sovereign, not the courts. 2 Such an assertion carries overtones of the Tañada v.

Cuenco 3 ruling that a matter to be decided by the people in their sovereign capacity is of such a

character. It has an aura of plausibility but it cannot stand the rigor of analysis. It confuses the

end result with the procedure necessary to bring it about. It is elemental that constitutionalism

implies restraints as well on the process by which lawful and valid state objectives may be

achieved. 4 What is challenged here is the actuation of the incumbent President for alleged

failure to comply with constitutional requisites. It is much too late in the day to assert that a

petition of that character is not appropriate for the courts. This is not to venture into uncharted

judicial territory. There are landmarks all along the way. This is not then to trespass on

forbidden ground. There is no disregard of the political question concept.

3. It follows therefore that the will of the people given expression, even in an unofficial manner

but accurately ascertained, is impressed with a decisive significance. It is more than just a

foundation for societal or political development. Whether appropriate, it determines what is to be

done. Its significance is vital, not merely formal. It is understandable then why in Javellana, 21

one of the issues passed upon by this Court is the effect of acquiescence by the people to

present Constitution even on the assumption that it was ratified in accordance with the 1935

Charter. It may not be amiss to recall what I did state on that point in my separate opinion: "Nor

is the matter before us solely to be determined by the failure to comply with the requirements of

Article XV. Independently of the lack of validity of the ratification of the new Constitution, then

this Court cannot refuse to yield assent to such a political decision of the utmost gravity,

conclusive in its effect. Such a fundamental principle is meaningless if it does not imply, to

follow Laski, that the nation as a whole constitutes the "single center of ultimate reference,"

necessarily the possessor of that "power that is able to resolve disputes by saying the last

word." If the origins of the democratic polity enshrined in the 1935 Constitution with the

declaration that the Philippines is a republican state could be traced back to Athens and to

Rome, it is no doubt true, as McIver pointed out, that only with the recognition of the nation as

the separate political unit in public law is there the juridical recognition of the people composing

it "as the source of political authority." From them, as Corwin did stress, emanate "the highest

possible embodiment of human will," which is supreme and must be obeyed. To avoid any

confusion and in the interest of clarity, it should be expressed in the manner ordained by law.

Even if such were not the case, however, once it is manifested, it is to be accepted as final and

authoritative. The government which is merely an agency to register its commands has no

choice but to submit. Its officials must act accordingly. No agency is exempt from such a duty,

not even this Court. In that sense, the lack of regularity in the method employed to register its

wishes is not fatal in its consequences. Once the fact of acceptance by the people of a new

fundamental law is made evident, the judiciary is left with no choice but to accord it recognition.

The obligation to render it obeisance falls on the courts as well." 22

To such a cardinal jural postulate is traceable my concurring and dissenting opinion in Tolentino

v. Commission on Elections: 23 "It was likewise argued by petitioner that the proposed

amendment is provisional and therefore is not such as was contemplated in this article. I do not

find such contention convincing. The fact that the Constitutional Convention did seek to consult

the wishes of the people by the proposed submission of a tentative amendatory provision is an

argument for its validity. It might be said of course that until impressed with finality, an

amendment is not to be passed upon by the electorate. There is plausibility in such a view. A

literal reading of the Constitution would support it. The spirit that informs it though would not, for

me, be satisfied. From its silence I deduce the inference that there is no repugnancy to the

fundamental law when the Constitutional Convention ascertains the popular will. In that sense,

the Constitution, to follow the phraseology of Thomas Reed Powell, is not silently silent but

silently vocal. What I deem the more important consideration is that while a public official, as an

agent, has to locate his source of authority in either Constitution or statute, the people, as the

principal, can only be limited in the exercise of their sovereign powers by the express terms of

the Constitution. A concept to the contrary would to my way of thinking be inconsistent with the

fundamental principle that it is in the people, and the people alone, that sovereignty resides." 24

As it was then, so, to my way of thinking, should it be now. With such a decisive consideration in

mind, it is difficult to conclude that the infirmities imputed to the challenged Presidential decrees

are fatal. They do not suffer from the corrosion of substantial constitutional infractions. It is in

that sense that I do not feel called upon to inquire into the nature of the authority conferred on

the incumbent President under the Transitory Provisions, whether purely executive as

contended by petitioners or both executive and legislative as argued by respondents. I leave

that question for another day. What cannot be ignored is that with a National Assembly in

existence but not convened, it is only the Executive that can perform those essential and

indispensable functions of dealing with the actual conduct of public affairs. That is the reality

that stares us in the face. To deny his power to issue decrees and to appropriate public funds is

thus to assure the paralyzation and impotence of government. Precisely then, if a referendum

may lend itself to a reappraisal of the situation, by all means let it be conducted. This is not to

deny that the judicial power to call a halt exists. It is merely to stress that it should be exercised

with the utmost reluctance as is required by deference to the concept of popular sovereignty. To

be more specific about the matter, this Tribunal should refrain from making use of that

prerogative now.

Parenthetically, it may be observed that in 1973 when the Javellana decision was promulgated,

I could not detect sufficient evidence as to the fact of acquiescence to the present Constitution.

That was why I had to dissent from the judgment of the Court dismissing the various petitions

assailing the validity of Proclamation No. 1102. Since then, with well-nigh two years having

gone by, it is quite evident that the matter is no longer open to doubt. Under the standard set

forth in the leading case of Taylor v. Commonwealth, 25 decided at the beginning of the century,

no other conclusion is allowable. The present Constitution "having been thus acknowledged and

accepted by the officers administering the government and by the people ... and being, as a

matter of fact, in force throughout ..., and there being no government in existence ... opposing or

denying its validity, [it] is the only rightful, valid, and existing Constitution ... and that to it all the

citizens ... owe their obedience and loyal allegiance." 26

5. That is about all. In writing this brief concurrence, I had nothing in mind but to explain why I

had to vote the way I did. It is quite obvious that for me the old landmarks of the law are still

there to serve as guides, that precedents do serve as factors for continuity and stability not to be

ignored but also not to be slavishly obeyed. For in constitutional law more than in any other

branch of juristic science, much depends on the immediacy and the reality of the specific

problems to be faced. Hence it has been truly said in days of crisis or of emergency, to stand

still is to lose ground. Nonetheless, one has always to reckon with the imponderables and the

intangibles, ever so often elusive to our understanding and disheartening to our deeply-

cherished convictions. For he has no choice but to comply as best he can with the duty to

decide in accordance with legal norms with roots that go far deeper than his personal

preferences and predilections. So it has to be.

BARREDO, J., concurring:

I concur in the judgment dismissing the petition. The following opinion is without prejudice to a

more extended one in due time.

Consistently with my opinion in the habeas corpus or martial law cases, the Court has

jurisdiction over the instant petition even if, as will be shown later, the matter of calling a

referendum is by nature a political matter. Anent the possible contention that the title of

President Marcos as President of the Philippines may not be collaterally attacked and that the

proper remedy is quo warranto, under the authority of Nacionalista Party vs. Felix Angelo

Bautista, 85 Phil. 101, I concede that the remedy of prohibition is not altogether improper.

The first ground of the petition is that President Marcos does not have any legal authority to call

the referendum because he is not holding any public office. The specific arguments supporting

this contention are that (1) Marcos is no longer President under the 1935 Constitution; (2) he is

not President nor Prime Minister under the 1973 Constitution; (3) he is not the "incumbent

President" contemplated in the transitory provisions of the new constitution; and, in any event,

his transitory powers as "incumbent President" have already lapsed. The second and third

grounds are that President Marcos does not have any power to legislate nor the authority to

issue proclamations, decrees and orders having the force of law, hence he cannot issue

decrees appropriating funds and, therefore, the decree calling for the referendum is void.

It is my considered conviction that these grounds are untenable.

President Marcos' authority to continue exercising the powers of the President under the 1935

Constitution and to exercise those of President and Prime Minister under the 1973 Constitution

is specifically provided for in Sec. 31 Article XVII of the 1973 Constitution. It is to me

unquestionable that by virtue of these provisions, President Marcos' being the President of the

Philippines, is constitutionally indubitable.

It was precisely because upon the effectivity of the New Constitution President Marcos would

cease to be President under the 1935 Charter and would not then be occupying any office

under the New Constitution, and, on the other hand, there would yet be no new president and

no prime minister, that he, as "incumbent President" at that time had to be expressly granted the

authority to exercise the powers of the President under the Old Constitution as well as those of

the President and the Prime Minister under the new one, pending the election of these officers.

Necessarily, there had to be a head of government until the new parliamentary system could be

properly installed, and whether or not it would have been wiser to confer the powers in question

on some other official or body is not for the Court to decide. In the meantime, the title of

President is the most appropriate to be held by him.

The contention that President Marcos may not be considered the "incumbent President"

referred to in the Constitution because what is contemplated therein is the one who would be in

office at the time of its ratification and that pursuant to the Javellana decision of the Supreme

Court, the constitution has not yet been ratified, whereas, on the other hand, the term of

President Marcos under the 1935 Constitution expired on December 30, 1973, is predicated

wholly on the old theory advanced in the habeas corpus cases and which has already been

discarded in the opinions therein, although perhaps, it is best that the Court made a categorical

ruling which would clear all doubts on the matter and thereby do away with this issue once and

for all. To that end, I would say that as far as the Court is concerned, its holding in Javellana

that "there is no more judicial obstacle to the New Constitution being considered as in force and

effect" should be understood as meaning that the charter is as valid and binding for all purposes

as if it had been ratified strictly in accordance with the 1935 Constitution as petitioners would

argue it should have been.

The problem of constitutional construction raised in the petition is, does the Constitution

contemplate that the interim assembly created by it would meet immediately and forthwith elect

the new President and the Prime Minister? If this question were to be answered in the light of

normal conditions, there could be some plausibility in suggesting an affirmative response, albeit

not altogether conclusive. But no one can ever escape the fact that the Constitution was

formulated and approved under abnormal and exceptional circumstances. The members of the

convention were well cognizant of the fact that the country was then as it still is under martial

law and that normal processes of government have not been in operation since its proclamation.

We must assume that as practical men they knew that the procedure of shifting from the

presidential to the parliamentary system would have to be reconciled with the demands of the

martial law situation then obtaining. Above all it must have been obvious to the delegates that

under martial law, President Marcos had in fact assumed all the powers of government. In other

words, it must have been evident to them from what was happening that the immediate

convening of the legislative body would not be compatible with the way President Marcos was

exercising martial law powers.

It is but proper, therefore, that these transcendental historical facts be taken into account in

construing the constitutional provisions pertinent to the issue under discussion. As I see it, given

the choice between, on the one hand, delaying the approval of a new charter until after martial

law shall have been lifted and, on the other, immediately enacting one which would have to give

due allowances to the exercise of martial law powers in the manner being done by President

Marcos, the convention opted for the latter. To my mind, it is only from this point of view that one

should read and try to understand the peculiar and unusual features of the transitory provisions

of the New Constitution.

Otherwise, how can one explain why, instead of giving the interim Assembly itself the power to

convene motu propioas was being done in the regular sessions of the old legislature and as in

the case of the regular National Assembly provided therein, said power has been granted by the

Constitution to the incumbent President? Very significantly in this connection, whereas Section

1 of Article XVII very explicitly uses the word "immediately" in reference to the existence of the

interim Assembly, there is no time fixed as to when the incumbent President should initially

convene it. Withal, even the authority to call for the election of the new President and the Prime

Minister was not lodged in the assembly but again in the incumbent President. Is it not logical to

conclude that the reason behind all these unprecedented provisions is to avoid putting any

hindrance or obstacle to the continued exercise by President Marcos of the powers he had

assumed under his martial law proclamation and his general orders subsequent thereto? If the

Convention were differently minded, it could have easily so worded the said provisions in the

most unequivocal manner. And what makes this conclusion definite is precisely the insertion in

the transitory provisions of Section 3(2) of Article XVII which makes all the proclamations,

decrees, orders and instructions of the incumbent President part of the law of the land, which, in

my considered view, is the Convention's own contemporary construction that during martial law,

the administrator thereof must of necessity exercise legislative powers particularly those needed

to carry out the objectives of the proclamation, with no evident limitation except that no

particular legislation not demanded by said objectives shall infringe Section 7 of Article XVII

which reserves to the regular National Assembly the power to amend, modify or repeal "all

existing laws not inconsistent with this Constitution." Neither paragraph (1) nor paragraph (2) of

Section 3 of the same article would have been necessary if the convention had intended that the

interim National Assembly would be immediately convened and the new President and the

Prime Minister would be forthwith elected. Indeed, it is implicit in the provisions just mentioned

that the delegates had in mind that there would be a considerable time gap between the going

into effect of the New Constitution and the election of the new President and the Prime Minister.

And they could not have been thinking merely of the possibility of protracted delay in the

election of said officers because the Assembly itself, once convened, could have readily

provided in the exercise of its inherent powers for what might be required in such a contingency.

In support of the foregoing views, I invoke the testimonies of Delegates Aruego, Tupaz, Ortiz,

Pacificador and others which were quoted during the hearing and the deliberations. I will quote

them in my extended opinion.

It must be borne in mind that once martial law is proclaimed, all the powers of government are

of necessity assumed by the authority that administers the martial law and the operation of the

regular government, including its legislature and its judiciary, is subjected to its imperatives. Of

course, the Constitution itself is not ousted, but by the power that the Constitution itself vests in

the Executive to issue the proclamation, it yields the application and effects of some of its

provisions to the demands of the situation, as the administrator may in his bona fide judgment

so determine. Otherwise stated, since laws and regulations would be needed to maintain the

government and to provide for the safety and security of the people, the orders of the

administrator are given the force of law. In that sense, the administrator legislates. If he can

legislate, so also he can appropriate public funds.

To my mind, these postulates underlie the provisions of Sec. 3(2) of Article XVII. To reiterate,

the said provision recognizes legislative power in the incumbent President and the scope of said

powers is coextensive with what might be needed, primarily according to his judgment, to

achieve the ends of his martial law proclamation, and in all other respects, they are limited only

by the provisions of Sec. 7 of the same article, but, evidently, even this limitation must be

reconciled with the fundamental criterion that the New Constitution was conceived, formulated

and enacted with the basic objective of establishing the New Society for which martial law was

proclaimed. In other words, since the known broad objective of Proclamation 1081 is not only to

contain or suppress the rebellion but also to reform our society and recognize and restructure

our government and its institutions as the indispensable means of preventing the resurgence of

the causes of the rebellion, it is obvious that any decree promulgated by the President in line

with these purposes, including those appropriating the necessary funds therefor, cannot be

assailed as beyond the pale of the Constitution.

There is nothing in the letter of the Constitution concerning referendums. But it would be absurd

to think that such paucity may be deemed to indicate that the government has no authority to

call one. If there is anything readily patent in the Constitution, it is that it has been ordained to

secure to the people the blessings of democracy and that its primordial declared principle is that

"sovereignty resides in the people and all government authority emanates from them." Of

course, it establishes a representative democracy, but surely, there is and there could be no

prohibition in it against any practice or action that would make our government approximate as

much as possible a direct one, which is the ideal. On the contrary, it is self-evident that

conditions and resources of the country permitting, any move along such a direction should be

welcome. In fact, at this time when there are fears about what some consider as an emerging

dictatorship, referendums in the manner contemplated in the impugned presidential decrees

provide the means for the most vigorous assertion by the people of their sovereignty, what with

the participation therein of even the fifteen-year olds and non-literates and the concrete efforts

being exerted to insure the most adequate submission and the utmost freedom of debate and

consensus as the emergency situation would permit and to have the fairest recording and

tabulation of the votes. Granting the good faith of everyone concerned, and there is absolutely

no reason why it should be otherwise, a unique exercise of essential democratic rights may be

expected, unorthodox as the experience may be to those who cannot understand or who refuse

to understand martial law Philippine style. In principle, to oppose the holding of a referendum

under these circumstances could yet be a disservice to the nation.

A plebiscite or election of officials prescribed by the Constitution for specific occasions must be

distinguished from a referendum, which is an inherent constitutional democratic institution,

perhaps not normally convenient to hold frequently or regularly, but which in certain periods in

the life of the nation may be indispensable to its integrity and preservation. The administration of

martial law is usually considered as nothing more than submission to the will of its administrator.

Certainly, there can be no objection to said administrator's holding a dialogue with the people

and adopting ways and means of governing with their full acquiescence manifested in whatever

happens to be the most feasible way of doing it. If it be assumed that a referendum under the

aegis of martial law may not be an ideal gauge of the genuine will of all the people, no one

would deny that if it is undertaken in good faith, and giving allowances to the imperatives of the

situation, it can somehow reflect their sentiment on the grave issues posed. Besides, whether or

not the people will enjoy sufficient and adequate freedom when they cast their votes in the

challenged referendum is a question that is unfair to all concerned to determine a priori and

beforehand. In any event, it is history alone that can pass judgment on any given referendum.

Upon the other hand, whether a referendum should be called or not and what questions should

be asked therein are purely political matters as to which it does not appear to be proper and

warranted for the Court to exert its judicial power in the premises. To be sure, the referendum in

question could be a waste of the people's money in the eyes of some concerned citizens, while

it may be a necessary and fruitful democratic exercise in the view of others, but what is certain

is that considering its nature and declared purposes and the public benefits to be derived from it,

it is the better part of discretion, granted to it by the Constitution for the Court to refrain from

interfering with the decision of the President.

The claim that the Comelec may not be considered as the independent and impartial guardian

of the results of the scheduled referendum has no basis in fact. From extant circumstances, the

recent activities of that body have not been characterized by any perceptible design to influence

such results in any direction. Referendums being, as they are, in the Philippines today, in the

nature of extra-constitutional innovations, it seems but natural and logical at this stage that the

Comelec has been assigned to undertake the functions of formulating the questions, which,

after all has been done after a more or less nationwide gathering of opinions, and of

subsequently explaining them to the people to best enable them to vote intelligently and freely.

I see no cause to be apprehensive about the fate of those who might wish to vote "no." To start

with, the voting will be secret and is guaranteed to be so. And when I consider that even a

strongly worded petition to enjoin the referendum has been openly ventilated before the

Supreme Court with full mass media coverage giving due emphasis to the points vehemently

and vigorously argued by Senator Tañada, who did not appear to be inhibited in the expression

of his views, I cannot but be confirmed in the conviction that the apprehensions of petitioners

are unfounded.

Under the New Constitution, every citizen is charged with the duty to vote. To vote in a

referendum is no less a sacred civic obligation than to vote in an election of officials or in a

plebiscite. The impugned decrees cannot therefore be constitutionally faulted just because they

provide penalties for those who fail to comply with their duty prescribed in no uncertain terms by

the fundamental law of the land.

Makalintal, C.J., Antonio, Esguerra and Fernandez, JJ., concur.

ANTONIO, J., concurring:

I

The only rational way to ascertain the meaning and intent of paragraphs 1 and 2 of Section 3 of

Article XVII (transitory provisions) of the New Constitution is to read its language in connection

with the known conditions of affairs out of which the occasion for its adoption had arisen, and

then construe it, if there be any doubtful expression, not in a narrow or technical sense, but

liberally, giving effect to the whole Constitution, in order that it may accomplish the objects of its

establishment. For these provisions can never be isolated from the context of its economic,

political and social environment.

The New Constitution was framed and adopted at a time of national emergency. The delegates

to the Constitutional Convention realized that the rebellion, lawlessness and near anarchy that

brought about the declaration of martial law, were mere symptoms of a serious malady in the

social order. They knew that the revolutionary reforms made by the incumbent President thru

his decrees, orders and letters of instruction, such as the emancipation of the tenant-farmer

from his bondage to the soil, reorganization of government, eradication of graft and corruption

and measures to bridge the gap between the rich and the poor, were indeed imperative, if the

exigency that brought about the military necessity was to be overcome, civil order restored, and

the foundations of genuine democracy established. The actions of the incumbent President in

promulgating those measures legislative in character during martial law was not without legal

and historical basis. Democratic political theorists traditionally have assumed the need in time of

emergency to disregard for the time being the governmental process prescribed for peacetime

and to rely upon a generically different method of government — the exercise by the Chief

Executive of extraordinary or authoritarian powers, to preserve the State and the permanent

freedom of its citizens. 1

Thus, in my concurring opinion in Javellana, et al. v. Executive Secretary, et al., 2 it was stated

that "to preserve the independence of the State, the maintenance of the existing constitutional

order and the defense of the political and social liberties of the people, in times of grave

emergency, when the legislative branch of the government is unable to function or its

functioning would itself threaten the public safety, the Chief Executive may promulgate

measures legislative in character, ...". We considered then that the proclamation of martial rule

marked the commencement of a crisis government and crisis government in a constitutional

democracy entails the concentration and expansion of governmental power and the release of

the government from the paralysis of constitutional restraints in order to deal effectively with the

emergency. 3 This was the view of the members of the Constitutional Convention when they

framed the New Constitution.

In Our concurring opinions in Aquino, et al. v. Enrile et al., 4 We declared that on the basis of the

deliberations of the 166-man Special Committee of the Constitutional Convention, which was

authorized to make the final draft of the Constitution, during their session on October 24, 1972,

the Convention expressly recognized the authority of the incumbent President during martial law

to exercise legislative powers not merely in the enactment of measures to quell the rebellion but,

more important, of measures urgently required to extirpate the root causes of the social disorder

which gave rise to the exigency.

In was with a view of the continuance of the exercise of these extraordinary powers that the

Convention provided in paragraph 1, Section 3, of Article XVII of the transitory provisions of the

New Constitution that: "He (the incumbent President) shall continue to exercise his powers and

prerogatives under the nineteen hundred thirty-five Constitution ..." and in paragraph 2 thereof

also provided that: "All proclamations, orders, decrees, instructions, and acts promulgated,

issued, or done by the incumbent President shall be part of the law of the land and shall remain

valid, legal, binding and effective even after lifting of martial law or 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."

The conferment upon the incumbent President of those extraordinary powers necessarily

implies that in view of the emergency, there might be a deferment in the convening of the

interim National Assembly and, therefore, it was necessary that he be equipped with adequate

legal authority and power to carry the body politic through the crisis.

Indeed, the need of the times was for a more expeditious mode of decision-making and policy

formulation. The insurgency and the secessionist movement compounded by a world-wide

economic inflation and recession generated problems which must be solved with immediacy

and with policies that are flexible and responsive to the imperatives of the crisis.

II

The impossibility for the Convention to determine a priori, in view of the emergency situation,

the time when conditions shall have sufficiently normalized to permit the convening of the

interim Assembly, precluded them from fixing in the transitory provisions of the Constitution a

definite period when the incumbent President shall initially convene that body. It was a matter

which was wholly confided by the Constitution to the incumbent President. Since the exercise of

this power was committed to the incumbent President in all the vicissitudes and conditions of

the emergency, it has necessarily given him ample scope for the exercise of his judgment and

discretion. It was a political decision for which he is directly responsible to the people to whom

he is accountable and for whose welfare he is obliged to act. As stated in the separate opinion

of Justice Castro, concurred in by the Chief Justice, Justices Barredo, Esguerra, Fernandez and

the writer of this opinion, "The peripheral matter whether President Marcos should now or soon

convene the interim National Assembly is completely outside the competence of the Supreme

Court to resolve as ... it is a political question addressed principally, basically, and exclusively to

the President and the Filipino people."

III

Neither can it be asserted that the exercise by the incumbent President of those extraordinary

powers is necessarily inconsistent with and an absolute contradiction to the existence of a

democracy. 5 When the exercise of such authoritarian powers is expressly conferred upon him

by the Constitution, it represents the will of the sovereign people as the source of all political

power. So long as the power is used to fulfill its true function in realizing the ethical purposes of

the community, which is to ensure the economic and social well-being of its citizens and to

secure to them justice, such power is employed for constructive and moral purposes. Its

exercise is, therefore, legitimate as it represents the collective will of the people themselves. It is,

therefore, logical that the incumbent President consult the people on issues vital to the public

interest even through a consultative referendum. Such useful and healthy contact between the

government administrator and the citizenry is the more necessary in a period of martial law,

because the equal participation of the citizenry in the formulation of the will of the State and in

its fundamental political decisions ensures the unity of the people in their efforts to surmount the

crisis. The success then of the political leadership in leading the nation through the emergency

would depend on its ability to convince and persuade, not to dictate and coerce; to enlist, not to

command; to arouse and muster the energies, loyalties, and, if need be, the sacrifices of the

people. As Leibholz aptly observed, "the one essential presupposition of democracy is that the

people as a political unity retains its sovereignty, and that the majority of the active citizens can

express their will in political freedom and equality." 6

IV

It is, however, asserted that the questions asked may not logically be the subject of a

referendum. Thus, it is claimed that some of the questions contemplate vital changes in the

existing form of local government, which changes, under Sections 2 and 3 of Article XI of the

1973 Constitution, must be submitted to the electorate for ratification in a plebiscite called for

that purpose. Admittedly, the question of the coming referendum asked the voters in the Greater

Manila Area, do not contain a full text of the law proposed for the ratification or rejection by the

people. It is, therefore, not a plebiscite contemplated by the aforecited Sections 2 and 3 of

Article XI of the New Constitution but merely a referendum, advisory or consultative in character.

Political democracy is essentially a government of consensus. The citizen has "a right and a

duty to judge his own concerns, his acts and their effects, as they bear on the common good. If

they entail the common acts of the community, he again has the duty and right to contribute to

the common deliberation by which the acts of the community are decided." 7 Common

deliberation or mutual persuasion occurs on all levels of society, and as a result thereof a

common judgment or consensus is formed on those matters which affect the democratic polity.

This is based on the premise that sovereignty in a political democracy resides in the people and

that, their government is founded on their consent. It is in the formulation of this consensus

whether in an election, plebiscite, direct legislation or advisory referendum or consultation, that

the political community manifests its consent or dissent. The national leadership as the elected

representative of the national community has the duty to be responsive and responsible to this

sovereign will. It has been said that the President "speaks and acts as the people's agent. He

lays claim to a mandate from them for his acts. Authority descends upon him from the nation,

not from the other organs of government." 8 In his dual role as Chief Executive and Legislator

under martial law, the incumbent President has, therefore, a greater degree of accountability to

the political community. To discharge effectively that responsibility, he has to ascertain the

people's consensus or common judgment and to act in accordance therewith. Only then can it

be said that his actions represent the people's collective judgment and, therefore, entitled to

their whole-hearted support. The coming referendum is a national undertaking affecting the

future of the country and the people. It, therefore, requires the involvement of every Filipino. By

participating in the national consultation or advisory referendum of February 27, 1975, the

Filipino people will prove to the rest of the world their maturity and capability as a people to

make major decisions.

V

It is nevertheless asserted that a referendum held under present existing circumstances is of no

far-reaching significance because it is being undertaken in a climate of fear. The infirmity of

such a priori judgment is evident from the fact that it is not based on reality. It betrays a lack of

awareness of the strength and character of our people. It is contradicted by past experience.

There has been a deliberate policy to lift gradually the strictures on freedom attendant to a

regime of martial law. Thus, State restrictions on press freedom had been removed, except over

publications which, because of their subversive or seditious character, are deemed incompatible

with the public safety. Freedom of discussion and of assembly are now encouraged. No less

than the incumbent President of the Philippines has underscored the need for an accurate and

honest canvass of the people's sentiments. As the nation's leader, he is called upon to make

bold decisions in the face of the grave problems confronting the nation, but he is convinced that

such decisions cannot be effective unless rooted in the will and reflective of the true sentiments

of the sovereign people.

Given the determination of the incumbent President to ascertain the true sentiments of the

people, and considering the measures instituted by the Commission on Elections to safeguard

the purity of the ballot, there appears, therefore, no basis for petitioners' apprehension that the

forthcoming referendum will not reflect the people's untrammeled judgment.

The foregoing opinion contains in brief the reasons for my concurrence with the main opinion

and the separate opinions of Justices Castro and Barredo.

FERNANDEZ, J., concurring:

The present case calls for an interpretation of the New Constitution, particularly its Transitory

Provisions. Privileged as I was to be a member of the Constitutional Convention that drafted the

Constitution, I feel it my duty to write this concurring opinion in the hope that I may be able to

shed light, even if only modestly, on the fundamental questions involved in this case, on the

basis of what I personally know and in the light of the records of the Convention, to show the

understanding and intention of the Delegates when they discussed and voted on the

constitutional provisions involved in this case.

The pertinent provisions of the New Constitution upon which the parties in this case base their

respective claims are:

ARTICLE XVII

TRANSITORY PROVISIONS

SECTION 1. There shall be an interim National Assembly which shall exist immediately

upon the ratification of this Constitution and shall continue until the Members of the

regular National Assembly shall have been elected and shall have assumed office

following an election called for the purpose by the interim National Assembly. Except as

otherwise provided in this Constitution, the interim National Assembly shall have the

same powers and its Members shall have the same functions, responsibilities, rights,

privileges, and disqualifications as the regular National Assembly and the Members

thereof.

Sec. 2. The Members of the interim National Assembly shall be the incumbent President and

Vice-President of the Philippines, those who served as President of the Nineteen hundred and

seventy-one Constitutional Convention, those Members of the Senate and the House of

Representatives who shall express in writing to the Commission on Elections within thirty days

after the ratification of this Constitution their option to serve therein, and those Delegates to the

nineteen hundred and seventy-one Constitutional Convention who have opted to serve therein

by voting affirmatively for this Article. They may take their oath of office before any officer

authorized to administer oath and qualify thereto, after the ratification of this Constitution.

Sec. 3. (1) 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 he 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.

(2) All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by

the incumbent President shall be part of the law of the land, and shall remain valid, legal,

binding, and effective even after lifting of martial law or the ratification of this Constitution,

unless modified, revoked, or superseded by subsequent promulgations, orders, decrees,

instructions, or other acts of the incumbent President, or unless expressly and explicitly modified

or repealed by the regular National Assembly.

xxx xxx xxx

The discussion on these Transitory Provisions in the plenary session 1 of the Constitutional

Convention on October 18, 19 and 20, 1972 2 and the votes thereon clearly show:

1. That the determination of the date the interim National Assembly should be convened was left

to the judgment of the President, the country being, as it still is, under martial law;

2. That the incumbent President legally holds office as such having been authorized to continue

in office and to exercise not only the powers of the President under the 1935 Constitution but

also those of the President and Prime Minister under the 1973 Constitution, from the time the

New Constitution was ratified on January 17, 1973 until the election of the interim President and

interim Prime Minister which up to now has not yet taken place; and

3. That included in the powers of the President under the 1935 Constitution and the powers of

the Prime Minister under the 1973 Constitution is the power to declare martial law which in turn

includes the power to make all needful rules and regulations with the force and effect of law until

the termination of the martial rule.

The minutes of the plenary session of the Convention of October 18, 1972 contain the

sponsorship speech of Delegate Yaneza, Chairman of the Committee on Transitory Provisions.

He described the proposed interimgovernment as a practical response to our abnormal

conditions presently obtaining in the country. He explained that in order to effectively implement

reform measures under the New Constitution, the nation should be relieved of the burden of

political and national elections during the transitory period. The proposed interim National

Assembly should therefore be composed of present elective government officials, together with

members of the Convention who would vote for its creation and who could be of great help, in

view of their familiarity with the provisions of the New Constitution, in the enactment of reform

measures to be approved by the interim National Assembly pursuant to the mandates of the

New Constitution. Delegate Yaneza was interpellated by Delegates Suarez, Tupaz (A), Jamir,

Ledesma (F), Alano, Sanchez, Molina, Siguion Reyna, Pimentel, Laurel, Encarnacion,

Pacificador, Ordoñez, Teves, Gonzales, and his co-sponsor, Delegate Abundo.

The following exchange took place between Delegate Pimentel and Delegate Yaneza.

DELEGATE PIMENTEL (V): Thank you, Mr. Chairman. Now Section 3 has been

repeatedly the basis of certain questions. It says: "the incumbent President of the

Philippines shall initially convene." Will it not be better if we state here, "shall

immediately convene? Or we should provide a certain number of days or months

perhaps after the ratification of the Constitution when the President shall initially convene

thead interim Assembly?

DELEGATE YANEZA: Yes, Your Honor, we can. We see your point and we have discussed that

in the Committee lengthily, but we arrived at a decision to give our President flexibility regarding

this particular matter, Your honor. And we feel that we have decided this matter with some

wisdom and with consideration of the present situation obtaining in our country. (Emphasis

supplied)

The minutes of the plenary session of the Convention of October 19, 1972 show, among others,

the following:

Delegate Reyes (J) inquired whether the incumbent President of the Republic would be at the

same time President and the Prime Minister under the interim Government. Delegate Yaneza

answered affirmatively, adding that the President would actually have a triple personality since

he would exercise powers under the two Constitutions.

Delegate Garcia (L.M.) asked whether the interim Assembly could convene without the approval

of the President, to which Delegate Britanico (a co-sponsor) replied in the negative.

Delegate Barrera (former Supreme Court Justice) was the first to speak against the approval of

Sections 1, 2 and 3 of the Transitory Provisions. He was interpellated by Delegates Lim, Laggui

and Raquiza. He was followed by Delegate Teves who also spoke against the Transitory

Provisions in question. Teves was interpellated by Delegates Purisima, Adil, and Siguion Reyna.

Delegate David (J) was the next opposition speaker. He was in turn interpellated by Delegate

Tupaz (A.).

On October 20, 1972, Delegate Concordia continued the opposition against the Transitory

Provisions, followed by Delegate Garcia (L.M.) who was interpellated by Delegates Bersola

Catan and Leido.

The chair then declared the period of rebuttal open and recognized Delegate Cuaderno as first

speaker. Cuaderno said that he favored the article on the interim Government mainly because

of the benefits of martial law.

Delegate Mutuc was the next rebuttal speaker. He confined his speech to the ratification of all

proclamations, orders, decrees, instructions and acts proclaimed, issued or done by the present

administration under martial law, contending that only the sovereign people could pass

judgment with finality on the same.

Delegate Fernandez followed. And the last rebuttal speaker was Delegate Serrano who

maintained that the interimNational Assembly was a necessity, to fill the vacuum of

constitutional processes that could arise should the President continue in office beyond his

tenure so that he could see the fruition of his efforts to restore normalcy in the country.

The strongest attack on the Transitory Provisions was delivered by Delegate Jesus Barrera of

Rizal, a former Justice of the Supreme Court. This was rebutted by Delegate Estanislao A.

Fernandez of Laguna (now a humble member of this Court). Both speeches covered all the

principal points.

Modesty aside, we now beg to summarize their arguments, as follows:

Delegate Barrera: It is immoral for us to vote Yes, because that would be practically

electing ourselves as members of the interim National Assembly when we were elected

by the people only for the purpose of writing a Constitution.

Delegate Fernandez: True, when we were elected, our mandate from the people was only to

write a new Constitution. But then there was no martial law yet. With martial law, there arose a

need for aninterim Government, specifically, an interim National Assembly. No one has

previously received any mandate from our people on who should be members of this interim

National Assembly. No one can say as of now whether it is immoral, and even moral, for us to

vote Yes. For my part, I will vote Yes because if I vote No, I would foreclose my right to become

a member of this interim National Assembly. I will vote Yes. Afterwards I will consult with the

people of the second district of Laguna on this matter. If they say "Fernandez, you committed an

error", then I will not take my oath. However, if they say "Fernandez, you did well so that we can

have an additional representative in the interim National Assembly," then I will take my oath. By

that time, I think nobody can say it was immoral for me to have voted Yes. But what is most

important is whether or not the members of the interim National Assembly succeed in the

discharge of their duties and responsibilities. If they fail, then our people and history will

condemn them. If they succeed, our people and history may commend them.

Delegate Barrera: As long as the interim National Assembly does not call for the election of the

regular members of the National Assembly, the members of this interim Assembly will continue

in office. For how long, it is not determined. In view of the high salary of the members of the

National Assembly (P60,000.00 a year), there will be a temptation for them not to call for the

election of the members of the regular National Assembly, for a long, long time.

Delegate Fernandez: I disagree. We must grant that the members of the interim National

Assembly would be possessed with a sense of decency and patriotism that would make them

realize the impropriety of overstaying in office. And the people will always be there to

demonstrate thru the media and the streets to compel the interim National Assembly to call for a

regular election.

Delegate Barrera: But it is wishful thinking on the part of the members of the convention to vote

Yes and thereby become members of the interim National Assembly because the President

may unduly delay the lifting of martial law and the calling of the National Assembly into a

session. Then he will be President for life.

Delegate Fernandez: What is the premise of the conclusion of the Delegate from Rizal that the

President will unduly delay the lifting of martial Law and the calling of the interim Assembly into

a session? Nothing. For my part, I wish to advance a premise. If it is valid, the conclusion will be

valid. I believe President Marcos will want to go down in history as a good President. If this

premise is good and I believe it is, then he will not abuse. He will lift martial law and convene the

interim National Assembly at the proper time. He will not be President for life.

Delegate Abundo then said that the committee had accepted the following amendment: "(b) the

Mariño amendment to Section 2 concerning "those members of both the Senate and House of

Representatives to express in writing to the Commission on Elections their option to sit in the

assembly within 30 days after the ratification of the Constitution, etc." There being no objection,

the above amendment was approved.

Delegate Yuzon proposed to fix the date of the election of the members of the regular Assembly

to "not later than May, 1976." Delegate Renulla proposed 1977 instead. Delegate Yuson

accepted the amendment, but when submitted to a vote, the amendment was lost. Other

amendments were proposed and were lost.

Delegate Pacificador moved to suspend the rules so that voting on the draft Transitory

Provisions could be considered as voting on second and third reading and proposed that absent

delegates be allowed to cast their votes in writing and deliver them to the Committee on

Credentials within 72 hours from that day.

The voting followed and the chair announced that by a vote of 274 in favor and 14 against the

draft Transitory Provisions were approved on second and third reading. And among the

delegates that voted affirmatively in favor of these Transitory Provisions whose interpretation is

now the subject of the present case, were: Delegate Alonto (former Senator from Lanao),

Delegate Aruego (the well-known author on the framing of the Constitution), Delegate Baradi

(former Ambassador), Delegate Borra (former COMELEC Chairman), Delegate Cuaderno

(Member of the first Constitutional Convention and Economist who recently passed away),

Delegate De las Alas (former Speaker of the House of Representatives), Delegate Laurel (who

was President Protempore of the Convention), Delegate Feliciano Ledesma (Dean of the

College of Law of San Beda), Delegate Oscar Ledesma (former Senator), Delegate Leido

(former Congressman and Secretary of Finance), Delegate Liwag (former Secretary of Justice

and Senator), Delegate Marino (former Executive Secretary and Secretary of Justice), Delegate

Mutuc (former Executive Secretary and Ambassador), Delegate Father Pacifico Ortiz, Delegate

Ceferino Padua (lawyer of former Senator Sergio Osmeña, Jr.), Delegate Jose Ma. Paredes

(former Justice of the Supreme Court), Delegate Godofredo Ramos (veteran legislator),

Delegate Sinco (former UP President and an authority on Constitutional Law), Delegate Serrano

(former Secretary of Foreign Affairs), Delegate Sumulong (former Congressman), Delegate

Sinsuat (former Member of the Cabinet), Delegate Domingo Veloso (former Speaker

Protempore of the House of Representatives), Delegate Concordia(former Congressman), and

Delegate Fernandez.

The foregoing, in our humble opinion, clearly show:

a) That when 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 theinterim 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; and

b) That the incumbent President, or President Marcos to be more specific, was to continue in

the office as President with triple powers, upon and even after the ratification of the New

Constitution (January 17, 1973), and until the election of the interim President and interim Prime

Minister (which has not taken place even up to now), and even after December 30, 1973 when

the term of office of the incumbent President would have expired under the 1935 Constitution.

Hence, the incumbent President continued and continues to be the constitutional and therefore

de jurePresident of our country.

Subsequent events proved the wisdom of the decision of the Convention to give the President a

wide discretion when to convene the interim National Assembly.

a) For although the peace and order condition of the country has improved, it suffered a relapse.

The rebellion had not been completely quelled. Only last January 29, 1975, for instance, the

newspapers carried the report that according to President Marcos — "Muslim insurgents had

broken a truce in Mindanao and Sulu resulting in a fresh outbreak of hostilities and in heavy

casualties." ... "Muslim secessionists ... had taken over three towns in Mindanao and Sulu." ...

"An Armed Forces contingent of 42 men, including three officers and the battalion commander,

were wiped out in a surprise raid."

b) The oil crises which brought about worldwide inflation, recession and depression, created

problems which, according to economic experts, can be solved effectively only with the

President exercising legislative powers. A National Assembly would take a longer period of time

to be able to pass the necessary legislation to cope with this worsening economic situation.

c) And what is most important is that in addition to the criticisms levelled in the Convention

against the membership of the interim National Assembly, the people themselves expressed

their disfavor against the interim Assembly by voting against its immediate convening when they

ratified the Constitution on January 10-15, 1973. In the July 24, 1973 referendum, the

Barangays reiterated their decision of January, 1973 to suspend the convening of the

interimNational Assembly. And in connection with the forthcoming February 27, 1975

referendum, many members of thisinterim National Assembly themselves asked that the

question of whether or not the assembly should immediately be convened be eliminated, as in

fact it was eliminated, because the people had already decided against the immediate

convening of the interim Assembly.

Perhaps, it was a blessing in disguise that before this interim National Assembly could be

convened, it has been "fiscalized" in advance be our people. The people apparently have

expressed their distrust of this interim Assembly. This has become a standing challenge so that

when this interim Assembly is finally convened, its members may discharge their duties and

responsibilities in such a manner as to rebut successfully the basis for the opposition of the

people to its being convened in the meantime.

I have adverted to the proceedings of the Constitutional Convention because it supports the

literal interpretation of the Constitution which I now wish to make. The wording of the New

Constitution is, I believe, clear. Considering the condition in which the country was at the time

they approved the draft of the Constitution, it would have been unthinkable for the Constitutional

Convention not to have provided for a continuity in the office of the Chief Executive.

It is equally unthinkable 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 law-making powers, there would be paralyzation of the entire governmental

machinery. Such an interpretation of the Transitory Provisions is so absurd it should be rejected

outright.

The original wording of Article XVII, Section 3(2) was that "all proclamations, orders, decrees,

instructions and acts promulgated, issued or done by the present administration are hereby

ratified and confirmed as valid." The words "ratified and confirmed" had been changed into

"shall be part of the law of the land," because under the first clause, it would imply that the

incumbent President did not have the authority to issue the proclamations, orders, decrees,

instructions and acts referred to. The Convention conceded that the President had that power;

and that is the reason why the phrase "shall be part of the law of the land" was the one finally

used.

Parenthetically, the Constitutional Convention itself recognized expressly the legislative power

of the incumbent President to enact an appropriation law when it asked and the same was given

by the incumbent President additional funds at the time when there was already martial law.

I wish to add that this legislative power of the President under martial law should not be limited

to the legislative power under the old classical concept of martial law rule. For the modern

concept of martial law rule includes not only the power to suppress invasion, insurrection or

rebellion and imminent danger thereof, but also to prevent their resurgence by the removal of

the causes which gave rise to them; in a word, the reform of our society.

In the speech that I delivered as a Delegate from Laguna in the Constitutional Convention in its

plenary session of October 20, 1972, I stated my firm conviction that President Marcos would

want to go down in history as a good President. This was not only a belief but a challenge to

him as well; and I am glad that subsequent events proved the correctness of my stand. In one of

his books, he himself said:

Moreover, we have embarked upon the experiment with the full knowledge that its

outcome will depend on most of us, not just a few who are managing a "command

society." The misgivings are large; the most outstanding is the fear of a powerful few

holding the many in subjection. But this fear misses the particularity of Philippine martial

law; it cannot and not exist without the clear and not manipulated consent of the

governed. Our people will accept only sacrifices which are justifiable to them.

It is more than a homily to assert that the New Society is not a promised land that patiently

awaits our arrival. More than a place in time or space, the New Society is a vision in our minds:

this can be realized only through the strength of our resolution.

I am mindful of the fact that historically authoritarian regimes tend to outlive their justification. I

do not intend to make a permanent authoritarianism as my legacy to the Filipino people. It is

sufficiently clear to them, I believe, that martial law is an interlude to a new society, that it is, in

sum, a Cromwellian phase in our quest for a good and just society. Certainly the enterprise is

worth a little sacrifice. (Marcos, The Democratic Revolution in the Philippines, 217-218, [1974]).

And in his speech before government elective officials of Bulacan last January 29, 1975 as

reported in the newspapers of last January 30, 1975, he solemnly said that should the coming

referendum fail to give him a vote of confidence, he would call the interim National Assembly to

session and that more than that, he would ask the Assembly to immediately fix the date for

elections of the members of the National Assembly; and that in such a case, he would run in his

district for a seat in the Assembly.

And so, it is now up for the people to speak in the coming February 27, 1975 referendum. The

information campaign should now go in full gear. The Commission on Elections should

emphasize the freedom of debate during the campaign; it should emphasize the freedom of the

people to express themselves not only in the debates but more so as they cast their ballots, by

safeguarding the secrecy of the ballot. And the Commission should redouble its efforts to assure

the people that there will be a true, correct and accurate reading of the ballots, counting of the

votes, and a report of the results of the referendum.

IN VIEW OF ALL THE FOREGOING, I repeat my concurrence in the decision of this Court and

in the separate opinions of Justices Castro and Barredo. The petition should thus be dismissed,

without costs.

TEEHANKEE, J., concurring and dissenting:

In concur with the main opinion insofar as it recognizes President Ferdinand E. Marcos as the

"incumbent President" and head of government who is vested with authority under Article XVII,

section 3 (1) of the Transitory Provisions of the 1973 Constitution to "continue to exercise his

powers and prerogatives under the 1935 Constitution and the powers vested in the President

and Prime Minister under this Constitution."

I am constrained, however, to dissent from the remaining portion thereof which dismisses the

petition, on the basis of serious constitutional grounds as briefly expounded hereinafter.

1. It cannot be gainsaid that the single most important change effected by the 1973 Constitution

is the change of our system of government from presidential to parliamentary wherein the

legislative power is vested in a National Assembly 1 and the Executive Power is vested in the

Prime Minister who "shall be elected by a majority of all the members of the National Assembly

from among themselves." 2 The President who is likewise elected by a majority vote of all the

members of the National Assembly from among themselves "shall be the symbolic head of

state." 3

To carry out the "orderly transition from the presidential to the parliamentary system," section 1

of the Transitory Provisions decreed that:

SECTION 1. There shall be an interim National Assembly which shall exist immediate

upon the ratification of this Constitution and shall continue until the Members of the

regular National Assembly shall have been elected and shall have assumed office

following an election called for the purpose by the interim National Assembly. Except as

otherwise provided in this Constitution, the interim National Assembly shall have the

same powers and its Members shall have the same functions, responsibilities, rights,

privileges, and disqualifications as the regular National Assembly, and the Members

thereof. (Art. XVII)

Section 2 of the Transitory Provisions provides for the members of the interim National

Assembly. The Solicitor General stated at the hearing that the interim National Assembly came

into existence after the proclamation on January 17, 1973 of the ratification of the Constitution

per Proclamation No. 1102 when the members thereof took their oath of office and qualified

thereto in accordance with the cited section and continues in existence at the present time

without having been convened.

Petitioners raise the question as to the scheduled referendum called for February 27, 1975 that

the calling of a referendum and the appropriation of funds therefor are essentially legislative

acts while the transitory powers and prerogatives vested in President Marcos until the election

of the interim Prime Minister and interim President under section 3 (1) of the Transitory

Provisions are executive and not legislative powers, since the powers of the President under the

1935 Constitution and those of the Prime Minister under the 1973 Constitution are essentially

executive powers; more so, with respect to the powers of the President under the 1973

Constitution which are symbolic and ceremonial.

While the Solicitor General has cited the President's powers under martial law and under

section 3 (2) of the Transitory Provisions 4 as vesting him with Šlegislative powers, there is

constitutional basis for the observation that his legislative and appropriation powers under

martial law are confined to the law of necessity of preservation of the state which gave rise to its

proclamation 5 (including appropriations for operations of the government and its agencies and

instrumentalities).

Rossiter, as extensively cited by Solicitor General, has thus stressed that "the measures

adopted in the prosecution of a constitutional dictatorship should never be permanent in

character or effect. ... The actions directed to this end should therefore be provisional. ...

Permanent laws, whether adopted in regular or irregular times are for parliaments to enact," and

that "a radical act of permanent character, one working lasting changes in the political and

social fabric (which) is indispensable to the successful prosecution of the particular

constitutional dictatorship ... must be resolutely taken and openly acknowledged [as exemplified

by U.S. President Lincoln's emancipation proclamation] ... Nevertheless, it is imperative that any

action with such lasting effects should eventually receive the positive approval of the people or

of their representatives in the legislature." 6

Even from the declared Presidential objective of using Martial Law powers to institutionalize

reforms and to remove the causes of rebellion, such powers by their very nature and from the

plain language of the Constitution 7 are limited to such necessary measures as will safeguard

the Republic and suppress the rebellion (or invasion) and measures directly connected with

removing the root causes thereof, such as the tenant emancipation proclamation. 8 The concept

of martial law may not be expanded, as the main opinion does, to cover the lesser threats of

"worldwide recession, inflation or economic crisis which presently threatens all nations" 9 in

derogation of the Constitution.

On the other hand, those legislative powers granted in the cited section 3 (2), known as the

validating provision which validated the President's acts and decrees after the proclamation of

martial law up to the ratification of the Constitution are limited to modifying, revoking or

superseding such validated acts and decrees done or issued prior to the proclaimed ratification,

since section 7 of the Transitory Provisions 10 expressly reserves to the National Assembly the

legislative power to amend, modify or repeal "all existing laws not inconsistent with this

Constitution."

The question is thus reduced as to whether now after the lapse of two years since the adoption

of the 1973 Constitution, the mandate of section 3 (1) of the Transitory Provisions for the

convening, of the existing interimNational Assembly should be implemented — not for purposes

of an action of mandamus which cannot be availed of because of the separation of powers —

but for the present action of prohibition against respondents officials which asserts that the

questioned referendum comes within the constitutional domain of the interim National Assembly

and that after the coming into "immediate existence of the interim National Assembly upon the

proclamation of ratification of the Constitution, the "initial convening" thereof with the election of

the interim Speaker and the election of the interim President and the interim Prime Minister

should have followed as a matter of course. The cited provision reads:

SEC 3. (1) 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 untilhe calls upon the interim National

Assembly to the elect the interim President and the interim Prime Minister, who shall

then exercise their respective powers vested by this Constitution. (Art. XVII)

2. The above quoted pertinent provisions indicate an affirmative answer. It is axiomatic that the

primary task in constitutional construction is to ascertain and assure the realization of the

purpose of the framers and of the people in the adoption of the Constitution and that the courts

may not inquire into the wisdom and efficacy of a constitutional or statutory mandate.

Where the language used is plain and unambiguous, there is no room for interpretation. "It is

assumed that the words in which constitutional provisions are couched express the objective

sought to be attained. They are to be given their ordinary meaning except where technical terms

are employed in which case the significance thus attached to them prevails. As the Constitution

is not primarily a lawyer's document, it being essential for the rule of law to obtain that it should

ever be present in the people's consciousness, its language as much as possible should be

understood in the sense they have in common use. What it says according to the text of the

provision to be construed compels acceptance and negates the power of the courts to alter it,

based on the postulate that the framers and the people mean what they say." 11

The mandate of section 1 of the Transitory Provisions that the interim National Assembly shall

"exist immediatelyupon the ratification of this Constitution" calls for its coming into existence

"right away" as conceded by respondents at the hearing. Likewise, as affirmed by the Solicitor

General, its members as provided in section 2 duly took their oath of office and qualified thereto,

upon the proclamation of ratification. The clear import of section 3 in order to give meaning and

effect to the creation and "immediate existence" of the interim National Assembly is that the

incumbent President shall then proceed to "initially (i.e. "in the first place: at the beginning") 12

convene" it and preside over its sessions until the election of the interim Speaker after which he

calls for the election of the interim President and theinterim Prime Minister "who shall then

exercise their respective powers vested by this Constitution." (The "incumbent President" then

bows out and is succeeded by the Prime Minister who may of course be himself).

This view is further strengthened by the expectations aired in the debates of the 1971

Constitutional Convention that a parliamentary government would be more responsible and

responsive to the people's needs and aspirations. Thus, in section 5 of the Transitory Provision,

the interim National Assembly was charged with the mandate to "give priority to measures for

the orderly transition from the presidential to the parliamentary system, the reorganization of the

Government the eradication of graft of and corruption, the effective maintenance of peace and

order, the implementation of declared agrarian reforms, the standardization of compensation of

government employees, and such other measures as shall bridge the gap between the rich and

the poor" — urgent and long-lasting measures which the President has single-handedly

confronted up to now.

3. The manifestation of the Solicitor General that the schedule referendum is merely

consultative and thus includes the participation of voters below 18 years of age but at least 15

years old (who are not qualified enfranchised voters under Article VI on suffrage of the 1973

Constitution which decrees a minimum age of 18 years for qualified voters) adds weight to the

view that the existing interim National Assembly be now convened and perform its constitutional

functions as the legislative authority. From the very nature of the transitory provision which

created it, its existence must likewise be interim, i.e. temporary provisional, of passing and

temporary duration (as opposed to permanent and the regular institutions provided for in the first

15 Articles of the Constitution) until after it shall have reapportioned the Assembly seats 13 and

called for the election of the members of the regular National Assembly. 14 The convening of the

interim National Assembly with its cross-section of knowledgeable representatives from all over

the country was obviously hopefully conceived to serve (more than consultative referendums)to

apprise the President of the people's and their constituencies' views as well as to assist him as

mandated by the Constitution in the enactment of priority measure to achieve fundamental and

far-reaching reforms.

4. While it has been advanced that the decision to defer the initial convocation of the interim

National Assembly was supported by the results of the referendum in January, 1973 when the

people voted against the convening of theinterim National Assembly for at least seven years, 15

such sentiment cannot be given any legal force and effect in the light of the State's admission at

the hearing that such referendums are merely consultative and cannot amend the Constitution

or any provision or mandate thereof such as the Transitory Provisions which call for the

"immediate existence" and "initial convening" of the interim National Assembly to "give priority to

measures for the orderly transition from the presidential to the parliamentary system" and the

other urgent measures enumerated in section 5 thereof. 16

This seems self-evident for the sovereign people through their mutual compact of a written

constitution have themselves thereby set bounds to their own power, as against the sudden

impulse of mere and fleeting majorities,17 and hence have provided for strict adherence with the

mandatory requirements of the amending process through a fair and proper submission at a

plebiscite, with sufficient information and full debate to assure intelligent consent or rejection. 18

5. Finally, the imposition of penal sanctions of imprisonment and fine upon the citizens who fail

to register and vote in the scheduled referendum is open to serious constitutional question. It

seems clear that the calling of "consultative referendum" is not provided for nor envisaged in the

Constitution as the appropriate vehicle therefor is provided through the interim and regular

National Assemblies. It should perhaps be reexamined whether the mandate of the Constitution

that "it shall be the obligation of every citizen qualified to vote to register and cast his vote" (at

elections of members of the National Assembly and elective local officials and at plebiscites, as

therein provided for) and the criminal penalties imposed in the questioned decrees should be

deemed applicable to such extra-constitutional consultative referendums wherein non-qualified

voters (the 15-year olds up to below 18) are asked to participate.

MUÑOZ PALMA, J., concurring and dissenting:

The views I express in this separate opinion will briefly explain my position on the principal

issues posed in this Petition for Prohibition.

1. President Ferdinand E. Marcos and no other is the person referred to as "incumbent

President" in Article XVII to which we shall refer for short as the Transitory Provisions of the

1973 Constitution. That fact is beyond doubt because at the time the draft of the new

Constitution was being prepared and when it was finally signed by the delegates to the 1971

Constitutional Convention on November 30, 1972, it was President Marcos who was holding the

position of President of the Philippines.

2. As such incumbent President, President Marcos was vested by Section 3(1) of the Transitory

Provisions with constitutional authority to continue as President of the Philippines during the

transition period contemplated in said Article XVII that is, until the interim President and the

interim Prime Minister shall have been elected by the interimNational Assembly who shall then

exercise their respective powers vested by the new Constitution, after which the office of the

incumbent President ceases. During that transition period, President Marcos was given

extraordinary powers consisting of the powers and prerogatives of the President under the 1935

Constitution, and the powers vested in the President and the Prime Minister under the 1973

Constitution. 1

3. Aside from the vest executive powers granted to the incumbent President as indicated above,

he was granted under Section 3(2) of the same Transitory Provisions legislative powers, in the

sense, that all proclamations, orders, decrees, instructions, and acts which were promulgated,

issued, or done by the incumbent President before the ratification of the Constitution were

declared part of the law of the land, to remain valid, legal, binding or effective even after the

lifting of martial law or the ratification of the Constitution, unless modified, revoked or

superseded by subsequent proclamations, etc., by the incumbent President or unless expressly

and explicitly modified or repealed by the regular National Assembly. As to, whether or not, this

unlimited legislative power of the President continue to exist even after the ratification of the

Constitution is a matter which I am not ready to concede at the moment, and which at any rate I

believe is not essential in resolving this Petition for reasons to be given later. Nonetheless, I

hold the view that the President is empowered to issue proclamations, orders, decrees, etc. to

carry out and implement the objectives of the proclamation of martial law be it under the 1935 or

1973 Constitution, and for the orderly and efficient functioning of the government, its

instrumentalities, and agencies. This grant of legislative power is necessary to fill up a vacuum

during the transition period when the interim National Assembly is not yet convened and

functioning, for otherwise, there will be a disruption of official functions resulting in a collapse of

the government and of the existing social order.

4. Because the grant of vast executive and legislating powers to the incumbent President will

necessarily, result in what the petitioners call a one-man rule as there is a concentration of

power in one person, it is my opinion that it could not have been the intent of the framers of the

new Constitution to grant to the incumbent President an indefinite period of time within which to

initially convene the interim National Assembly and to set in motion the formation of the

Parliamentary form of government which was one of the purposes of adopting a new

Constitution. I believe that the interim National Assembly came automatically into existence

upon the ratification of the 1973 Constitution. As a matter of fact, from the submission of the

Solicitor General, it appears that many if not all of those entitled to become members of the

interim National Assembly have opted to serve therein and have qualified thereto in accordance

with the requirements of Section 2 of the Transitory Provisions. 2

We cannot, therefore, reasonably construe the absence of a specific period of time for the

President to initially convene the interim Assembly as placing the matter at his sole pleasure

and convenience for to do so would give rise to a situation in which the incumbent President

could keep the intent National Assembly in suspended animation and prevent it from becoming

fully operational as long as he pleases. This would violate the very spirit and intent of the 1973

Constitution more particularly its Transitory Provisions to institute a form of government, during

the transition period, based upon the fundamental principle of the "separation of powers," with

its checks and balances, by specifically providing that there shall exist immediately upon the

ratification of the 1973 Constitution an interimNational Assembly in which legislative power shall

exercise all the powers and prerogatives which are executive in character, and that the judicial

power shall continue to be vested in the Judiciary existing at the time of the coming into force

and effect of the 1973 Constitution. The situation would also render nugatory the provisions of

Section 5 of the Transitory Provisions which assign to the interim National Assembly a vital role

to perform during the transition period. 3

While it is true that the convening of the interim National Assembly cannot be said to be simply

at the pleasure and convenience of the President, however, the matter is one addressed to his

sound discretion and judgment for which he is answerable alone to his conscience, to the

people he governs, to posterity, and to history.

5. Coming now to the particular problem of the coming referendum on February 27, 1975, it is

my view that the act of the President in calling such a referendum is not really in the nature of a

legislative act which violates the present Constitution. I do not see any prohibition in the

Constitution for the Chief Executive or the President to consult the people on national issues

which in his judgment are relevant and important. I use the word "consult" because in effect the

measure taken by the President is nothing more than consultative in character and the mere

fact that such measure or device is called a referendum in the Presidential Decrees in question

will not affect nor change in any manner its true nature which is simply a means of assessing

public reaction to the given issues submitted to the people for their consideration. Calling the

people to a consultation is, we may say, derived from or within the totality of the executive

power of the President, and because this is so, it necessarily follows that he has the authority to

appropriate the necessary amount from public funds which are subject to his executive control

and disposition to accomplish the purpose.

6. I am constrained to agree with petitioners that a referendum held under a regime of martial

law can be of no far-reaching significance because it is being accomplished under an

atmosphere of climate of fear. There can be no valid comparison between a situation under

martial rule and one where the privilege of the writ of habeas corpus is suspended, as

discussed in the Opinion of Justice Makasiar, because the former entails a wider area of

curtailment and infringement of individual rights, such as, human liberty, property rights, rights of

free expression and assembly, protection against unreasonable searches and seizures, liberty

of abode and of travel, etc. 4

7. Finally, whatever maybe the totality of the answers given to the proposed referendum

questions on local government will be of no real value to the President because under Article XI,

Section 2, 1973 Constitution, it is the National Assembly which is empowered to enact a local

government code, and any change in the existing form of local government shall not take effect

until ratified by the majority of the votes cast in a plebiscite called for the purpose, all of which

cannot be complied with for the simple reason that for the present there is no National Assembly.

Moreover, any vote given on this matter cannot be truly intelligent considering the vagueness of

the question as drafted and the short period of time given to the citizenry to study the so-called

manager or commission type of local government being submitted to the voters.

8 In conclusion, if I concur in the dismissal of the Petition for prohibition it is for the simple

reason that I believe that calling a referendum of this nature is a valid exercise of executive

power not prohibited by the Constitution as discussed in number 5 of this Opinion.

Footnotes

FERNANDO, J., CONCURRING:

1 According to Article II, Section 1 of the present Constitution: "The Philippines is a republican

state. Sovereignty resides in the people and all government authority emanates from them."

There is here a reiteration of Article II, Section 1 of the 1935 Constitution.

2 Respondent's comment, 6.

3 Tañada v. Cuenco, 103 Phil. 1051 (1957).

4 Cf. Angara v. Electoral Commission, 63 Phil. 139 (1936).

5 Respondents' Comment, 5.

6 Standing to Secure Judicial Review, 74 Harvard Law Rev. 1265 (1961).

7 Ibid, 1266. Cf. Berger Standing to Sue in Public Actions, 78 Yale Law Journal 816 (1969).

8 110 Phil. 331 (1960).

9 65 Phil. 56 (1937).

10 262 US 447 (1923).

11 Respondents' Comment, 5.

12 391 US 83 (1968).

13 Ibid, 92-95.

14 Cf. Tan v. Macapagal, L-34161,, February 29, 1972, 43 SCRA 677.

15 Cf. Lerner, Ideas Are Weapons, 470 (1939).

16 Cf. Bryn-Jones Toward a Democratic New Order 23 (1945).

17 69 Phil. 199 (1939).

18 Ibid, 641.

19 319 US 624 (1943).

20 Ibid, 641.

21 Javellana v. The Executive Secretary, L-36142, March 31, 1973, 50 SCRA 30.

22 Ibid, 327-328. The works cited are Laski, Grammar of Politics, 4th ed., 34 (1937); McIver the

Web of Government, 84 (1947); and Corwin, The Higher Law Background of American

Constitutional Law, in I Selected Essays on Constitutional Law 3 (1938).

23 L-34150, October 16, 1971, 41 SCRA 702.

24 Ibid. 740-741.

25 44 SE 754 (1903).

26 Ibid. Cf. Miller v. Johnson, 92 Ky. 589, 18 SW 522 (1892); Bott V. Wurts 40 Atlantic, 740

(1898); Arie v. State, 23 Okl. 166 (1909); Hammond v. Clark, 136 Ga. 313 (1911); Taylor v. King,

130 A. 407 (1925); Wheeler v. Board of Trustees, 37 SE 322 (1946).

27 L-35925, January 22, 1973, 49 SCRA 105.

28 Ibid, 159.

29 Ibid.

30 L-35546, September 17, 1974, 59 SCRA 183.

31 Ibid, 300.

32 Petition, Annex C. The other two members proposed are the President of the Integrated Bar,

former Justice J.B.L. Reyes, whose reputation for probity and integrity is legendary, as

Chairman, and another retired member of this Court.

ANTONIO, J., CONCURRING:

1 John Locke called upon the English doctrine of prerogative to cope with the problem of

emergency. He was of the view, that in times of danger to the nation, positive laws set down by

the legislative might be inadequate or even a fatal obstacle to the promptness of action

necessary to avert catastrophe. "In these situations the Crown retained a prerogative "power to

act according to discretion for the public good, without the prescription of the law and

sometimes even against it." " The prerogative "can be nothing but the people's permitting their

rulers to do several things of their own free choice where the law is silent, and sometimes too

against the direct letter of the law, for the public good and their acquiescing in it when so done."

The prerogative was therefore exercisable only for the public good. Rousseau assumed that, in

time of emergency, there is need for temporary suspension of democratic processes of

government. Contemporary political theorists observed that in response to the problems posed

by an emergency, constitutional democracies have employed constitutional dictatorship. The

"President's power as Commander-in-Chief", wrote Corwin, "has been transformed from a

simple power of military command to a vast reservoir of indeterminate powers in time of

emergency". (Corwin, The President: Office and Powers, pp. 312, 318, 1948). Frederick M.

Watkins, who made a classic study of the Weimar experience with emergency powers, places

his real faith in a scheme of "Constitutional dictatorship" provided "it serves to protect

established institutions from the danger of permanent injury in a period of temporary emergency,

and is followed by a prompt return to the previous forms of political life." Clinton L. Rossiter, on

the basis of the historical experience of Great Britain, France, Weimar Germany and the United

States, adverts to the scheme of "Constitutional dictatorship" as solution to the vexing problem

presented by emergency. Charles H. McIlwain clearly recognized the need to repose adequate

power in government during emergency. "And in discussing the meaning of constitutionalism he

insisted that the historical and proper test of constitutionalism was the existence of adequate

processes for keeping government responsible. He refused to equate constitutionalism with the

enfeebling of government by an exaggerated emphasis upon separation of powers and

substantive limitations on governmental powers." (Smith & Cotter: Powers of the President

During Crisis, 1972 Ed.)

2 L-36142, L-36164, L-36165, L-36236, and L-36283, 50 SCRA 30-392. This was concurred in

by Justices Barredo, Makasiar and Esguerra.

3 Ibid., 361-392.

4 59 SCRA 183; Separate opinion of Justice Barredo, Ibid., p. 322, Separate opinion of Justice

Antonio with the concurrence of Justices Makasiar, Fernandez and Aquino, Ibid., p. 460;

Separate opinion of Justice Fernandez, Ibid., p. 522.

5 "The democracy of Rousseau is also intolerant and absolutist, in that it hands over the

individual completely to the community, refusing to recognize the citizen's right to freedom; in

this respect it sets itself in opposition to the democracy of the French Revolution, which

proclaimed and took under its protection the Rights of Man. Even Bonapartism, so far as it is

supported by the people and so far as the latter has not resigned its sovereignty, can appear as

democracy; and consequently a Caesar can function as incarnation and official representative

of his people as a whole.

"In the same way it is possible to have absolutist and authoritarian democracies which may bear

a conservative, reactionary, collectivist or anti- constitutional character, according to the

circumstances." (Gerhard Leibholz, Politics and Law, 1965 Ed., pp. 28-29.)

6 Ibid., p. 29.

7 Scott Buchanan, So Reason Can Rule, The Constitution Revisited.

8 Joseph Kallenbach, The Presidency and the Constitution.

FERNANDEZ, J, CONCURRING:

1 Session of the entire Convention, not only of any of its Committees.

2 At the time when martial law was already in effect, the same having been proclaimed on

September 21, 1972.

TEEHANKEE, J., CONCURRING AND DISSENTING:

1 Art. VIII, sec. 1, 1973 Constitution.

2 Art. IX, secs. I and 3, idem.

3 Art. VII secs. 1 and 2, idem.

4 "(2) All proclamations, orders, decrees, instructions and acts promulgated, issued, or done by

the incumbent President shall be part of the law of the land, and shall remain valid, legal,

binding, andeffective 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 theincumbent President, or unless expressly and explicitly modified or repealed

by the regular National Assembly." (Art. XVII, sec. 3)

5 "As necessity creates the rule, so it limits its duration."

6 Solicitor General's Comment, at pp. 24-26, citing Constitutional Dictatorship, 1948 ed. by

Clinton Rossiter, 1948 ed.

7 Article IX, sec. 12, 1973 Constitution Martial Law provision.

8 P.D. No. 27, Oct. 21, 1972 and amendatory decrees.

9 Main opinion, at page 5.

10 "SEC. 7. All existing laws not inconsistent with this Constitution shall remain operative

untilamended, modified, or repealed by the National Assembly." (Art. XVII)

11 J.M. Tuason & Co., Inc. vs. LTC, 31 SCRA 413, 422-423, per Fernando, J.; emphasis

supplied.

12 Webster's Third Int. Dictionary.

13 Art. XVII, secs. 6.

14 Idem, sec. 1.

15 Main opinion, at page 9. See Proc. No. 1103, dated Jan. 17, 1973 wherein the President

proclaimed "that the convening of the interim National Assembly ... shall be suspended" on the

basis of the therein stated premise that "fourteen million nine hundred seventy six thousand five

hundred sixty-one (14,976,561) members of all the Barangays voted for the adoption of the

proposed Constitution, as against seven hundred forty-three thousand eight hundred sixty-nine

(743,869) who voted for its rejection; but a majority of those who approved the new Constitution

conditioned their votes on the demand that the interim National Assembly provided in its

Transitory Provisions should not be convened."

16 Supra, at page 5.

17 Cf. Duncan vs. McCall, 139 U.S. 449, 35 L. Ed. 219.

18 Cf. Tolentino vs. Comelec 41 SCRA 702 (Oct. 14, 1971) and cases cited.

MUÑOZ, PALMA, J., CONCURRING AND DISSENTING:

1 Article XVII: Sec. 3(1) The incumbent President of the Philippines shall initially convene the

interim National Assembly and shall preside over its session 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 that powers vested in the President and the Prime

Minister under this Constitution until he 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.

2 Ibid, Section 2. The Members of the interim National Assembly shall be the incumbent

President and Vice-President of the Philippines, those who served as President of the nineteen

hundred and seventy-one Constitutional Convention, those Members of the Senate and the

House of Representatives who shall express in writing to the Commission on Elections within

thirty days after the ratification of this Constitution their option to serve therein, and those

Delegates to the nineteen hundred and seventy-one Constitutional Convention who have opted

to serve therein by voting affirmatively for this Article. They may take their oath of office before

and officer authorized to administer oath and qualify thereto, after the ratification of this

Constitution.

3 Ibid, Section 5. The interim National Assembly shall give priority to measures for the orderly

transition from the presidential to the parliamentary system, the reorganization of the

Government, the eradication of graft and corruption the effective maintenance of peace and

order, the implementation of declared agrarian reforms, the standardization of compensation of

Government employees, and such other measures as shall bridge the gap between the rich and

the poor.

4 Aquino, Jr. vs. Enrile, et al., and other cases, L-35546 and others, September 17, 1974 per

Opinion Muñoz Palma, J., 59 SCRA 183, 632.

2. Now as to the merits. The success of petitioners would signify that the referendum scheduled

for February 27 of this year will not take place. Believing as I do that the opportunity of the

people to give expression to their views is implicit in the fundamental principle that sovereignty

resides in them, I am unable to find sufficient merit in this petition. For all its logical and

plausible aspect, it still does not admit of doubt, in my mind at least, that a conclusion different

from that reached by this Court would be attended by deplorable consequences. For one thing,

it would impress with the stigma of illegality the viable procedure that under the stern realities of

the present is the only one in the horizon for ascertaining the desires of the people. Moreover,

under a republican regime, even under normal times, their role is limited to the choice of public

officials, thereafter to be held to accountability through their informed, even immoderate,

criticism. Now with this proposed referendum, they will be sounded out on what they think and

how they feel on matters of significance. Even assuming its consultative character, it remains at

the very least a step in the right direction. It may not go far enough, but there is progress of

sorts that hopefully may eventually lead to the goal of complete civilian rule. It stands to reason,

at least from my standpoint, that when people are thus allowed to express their wishes and

voice their opinions, the concept of popular sovereignty, more so under crisis conditions,

becomes impressed with a meaning beyond that of lyric liturgy or acrimonious debate devoid of

illumination. Nor is this to discern new waves of hope that may ultimately dissolve in the sands

of actuality. It is merely to manifest fidelity to the fundamental principle of the Constitution. It

dates back to the American Declaration of Independence of 1776. The government it sets up

derives its just powers from the consent of the governed. The basis of republicanism, to

paraphrase Lerner, is that the majority will shall prevail, the premise being that an ordinary

citizen, the common man, can be trusted to determine his political destiny. 15 Thereby, as Bryn-

Jones pointed out, the controlling power, the governmental authority in the language of the

Constitution, is vested in the entire aggregate of the community. 16 It is in that sense, as Justice

Laurel stressed in Moya v. Del Fierro, 17 that an "enfranchised citizen [is] a particle of popular

sovereignty and [is] the ultimate source of established authority." 18 There is reliance likewise to

this excerpt from the eloquent opinion of Justice Jackson in West Virginia State Board of

Education v. Barnette: 19 "There is no mysticism in the American concept of the State or of the

nature or origin of its authority. We set up government by consent of the governed, and the Bill

of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to

be controlled by public opinion, not public opinion by authority." 20 If that is true of the United

States, so should it be in our land. It caters to man's fundamental yearning for some degree of

participation in the process of reaching fateful decisions. While courts have to deal with the

necessities of their time, the idea should remain untarnished.

4. There is finally, according to petitioners, a deficiency that mars the proposed referendum. It

deserves serious consideration. It is their submission that under martial law, with people denied

their basic freedoms, particularly their freedoms of expression and assembly, it cannot be validly

held. In my concurring and dissenting opinion in Planas v. Commission on Elections 27 I express

the apprehension that voters cannot "freely register their will," as "dissent may be fraught with

unpleasant consequences." 28 Further: "While it is to be admitted that the Administration has

done its best to alleviate such a state of mind, I cannot in all honesty say, although I am

prepared to concede that I may labor under a sense of undue pessimism, that the momentum of

fear necessarily incident to such a regime has been reduced to a minimum." 29There is, I would

say, still that feeling of insecurity as to what the morrow may bring, not from high and

responsible officials, of course, but from those much lower in the ranks, whether in the armed

forces or in the civilian component. Abuses, in the nature of things, cannot be completely curbed.

In that sense, my misgivings are not unjustified. Nonetheless, I gain reassurance from the fact

that as I did admit in my concurring and dissenting opinion in Aquino v. Enrile, 30 "the Philippine

brand of martial law [is] impressed with a mild character." 31 There is by and large a high degree

of confidence in the capabilities and moderation of those entrusted with its implementation. To

cite only an instance, it is a rare and impressive tribute to the Judge Advocate General, Justice

Guillermo S. Santos of the Court of Appeals, that in a manifesto of reputable citizens both from

the clergy and the laity, with a number of civic and political leaders, the suggestion was made

that the conduct of the referendum should be under the auspices of a Committee of three with

him as one of the members. 32 I am not then in a position to press with the same degree of

conviction my original stand. I would not be justified though in making such a concession if the

constitutional rights to freedom of expression and the freedom of assembly may not be availed

of. They are once again enshrined in our Bill of Rights — and in the very same language. If the

Constitution is now fully in force, they must be allowed full operation. I do not deny that they are

not absolute in character, but the limitation is supplied by the clear and present danger test. Nor

do I deny that under emergency conditions, it is not unreasonable to enlarge the area of state

authority, to seek national cohesiveness, and to discourage dissent. What I cannot sufficiently

stress though is that dissent, even during such periods of stress, is not disloyalty, much less

subversion. Thus the citizens can invoke in the exercise of the freedoms of expression and of

assembly not the challenged decrees but their constitutional rights. Moreover, as thus construed

as they should be to avoid any taint of invalidity, they may be pulled back from the edge of the

constitutional precipice. It would follow, and that to my mind would be to the credit of the

Executive, that even in these trying and parlous times, there is adherence to a tolerant,

compassionate view of life.

Then there is the attack on the standing of petitioners, as vindicating at most what they consider

a public right and not protecting their rights as individuals. 5 This is to conjure the specter of the

public right dogma as an inhibition to parties intent on keeping public officials staying on the

path of constitutionalism. As was so well put by Jaffe: 6 "The protection of private rights is an

essential constituent of public interest and, conversely, without a well-ordered state there could

be no enforcement of private rights. Private and public interests are, both in a substantive and

procedural sense, aspects of the totality of the legal order." 7 Moreover, petitioners have

convincingly shown that in their capacity as taxpayers, their standing to sue has been amply

demonstrated. There would be a retreat from the liberal approach followed in Pascual v.

Secretary of Public Works, 8 foreshadowed by the very decision of People v. Vera 9 where the

doctrine was first fully discussed, if we act differently now. I do not think we are prepared to take

that step. Respondents, however, would hark back to the American Supreme Court doctrine in

Mellon v. Frothingham, 10with their claim that what petitioners possess "is an interest which is

shared in common by other people and is comparatively so minute and indeterminate as to

afford any basis and assurance that the judicial process can act on it." 11 That is to speak in the

language of a bygone era, even in the United States. For as Chief Justice Warren clearly

pointed out in the later case of Flast v. Cohen, 12 the barrier thus set up if not breached has

definitely been lowered. 13 The weakness of these particular defenses is thus quite apparent. 14

4. There is finally, according to petitioners, a deficiency that mars the proposed referendum. It

deserves serious consideration. It is their submission that under martial law, with people denied

their basic freedoms, particularly their freedoms of expression and assembly, it cannot be validly

held. In my concurring and dissenting opinion in Planas v. Commission on Elections 27 I express

the apprehension that voters cannot "freely register their will," as "dissent may be fraught with

unpleasant consequences." 28 Further: "While it is to be admitted that the Administration has

done its best to alleviate such a state of mind, I cannot in all honesty say, although I am

prepared to concede that I may labor under a sense of undue pessimism, that the momentum of

fear necessarily incident to such a regime has been reduced to a minimum." 29There is, I would

say, still that feeling of insecurity as to what the morrow may bring, not from high and

responsible officials, of course, but from those much lower in the ranks, whether in the armed

forces or in the civilian component. Abuses, in the nature of things, cannot be completely curbed.

In that sense, my misgivings are not unjustified. Nonetheless, I gain reassurance from the fact

that as I did admit in my concurring and dissenting opinion in Aquino v. Enrile, 30 "the Philippine

brand of martial law [is] impressed with a mild character." 31 There is by and large a high degree

of confidence in the capabilities and moderation of those entrusted with its implementation. To

cite only an instance, it is a rare and impressive tribute to the Judge Advocate General, Justice

Guillermo S. Santos of the Court of Appeals, that in a manifesto of reputable citizens both from

the clergy and the laity, with a number of civic and political leaders, the suggestion was made

that the conduct of the referendum should be under the auspices of a Committee of three with

him as one of the members. 32 I am not then in a position to press with the same degree of

conviction my original stand. I would not be justified though in making such a concession if the

constitutional rights to freedom of expression and the freedom of assembly may not be availed

of. They are once again enshrined in our Bill of Rights — and in the very same language. If the

Constitution is now fully in force, they must be allowed full operation. I do not deny that they are

not absolute in character, but the limitation is supplied by the clear and present danger test. Nor

do I deny that under emergency conditions, it is not unreasonable to enlarge the area of state

authority, to seek national cohesiveness, and to discourage dissent. What I cannot sufficiently

stress though is that dissent, even during such periods of stress, is not disloyalty, much less

subversion. Thus the citizens can invoke in the exercise of the freedoms of expression and of

assembly not the challenged decrees but their constitutional rights. Moreover, as thus construed

as they should be to avoid any taint of invalidity, they may be pulled back from the edge of the

constitutional precipice. It would follow, and that to my mind would be to the credit of the

Executive, that even in these trying and parlous times, there is adherence to a tolerant,

compassionate view of life.

2. Now as to the merits. The success of petitioners would signify that the referendum scheduled

for February 27 of this year will not take place. Believing as I do that the opportunity of the

people to give expression to their views is implicit in the fundamental principle that sovereignty

resides in them, I am unable to find sufficient merit in this petition. For all its logical and

plausible aspect, it still does not admit of doubt, in my mind at least, that a conclusion different

from that reached by this Court would be attended by deplorable consequences. For one thing,

it would impress with the stigma of illegality the viable procedure that under the stern realities of

the present is the only one in the horizon for ascertaining the desires of the people. Moreover,

under a republican regime, even under normal times, their role is limited to the choice of public

officials, thereafter to be held to accountability through their informed, even immoderate,

criticism. Now with this proposed referendum, they will be sounded out on what they think and

how they feel on matters of significance. Even assuming its consultative character, it remains at

the very least a step in the right direction. It may not go far enough, but there is progress of

sorts that hopefully may eventually lead to the goal of complete civilian rule. It stands to reason,

at least from my standpoint, that when people are thus allowed to express their wishes and

voice their opinions, the concept of popular sovereignty, more so under crisis conditions,

becomes impressed with a meaning beyond that of lyric liturgy or acrimonious debate devoid of

illumination. Nor is this to discern new waves of hope that may ultimately dissolve in the sands

of actuality. It is merely to manifest fidelity to the fundamental principle of the Constitution. It

dates back to the American Declaration of Independence of 1776. The government it sets up

derives its just powers from the consent of the governed. The basis of republicanism, to

paraphrase Lerner, is that the majority will shall prevail, the premise being that an ordinary

citizen, the common man, can be trusted to determine his political destiny. 15 Thereby, as Bryn-

Jones pointed out, the controlling power, the governmental authority in the language of the

Constitution, is vested in the entire aggregate of the community. 16 It is in that sense, as Justice

Laurel stressed in Moya v. Del Fierro, 17 that an "enfranchised citizen [is] a particle of popular

sovereignty and [is] the ultimate source of established authority." 18 There is reliance likewise to

this excerpt from the eloquent opinion of Justice Jackson in West Virginia State Board of

Education v. Barnette: 19 "There is no mysticism in the American concept of the State or of the

nature or origin of its authority. We set up government by consent of the governed, and the Bill

of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to

be controlled by public opinion, not public opinion by authority." 20 If that is true of the United

States, so should it be in our land. It caters to man's fundamental yearning for some degree of

participation in the process of reaching fateful decisions. While courts have to deal with the

necessities of their time, the idea should remain untarnished.

Then there is the attack on the standing of petitioners, as vindicating at most what they consider

a public right and not protecting their rights as individuals. 5 This is to conjure the specter of the

public right dogma as an inhibition to parties intent on keeping public officials staying on the

path of constitutionalism. As was so well put by Jaffe: 6 "The protection of private rights is an

essential constituent of public interest and, conversely, without a well-ordered state there could

be no enforcement of private rights. Private and public interests are, both in a substantive and

procedural sense, aspects of the totality of the legal order." 7 Moreover, petitioners have

convincingly shown that in their capacity as taxpayers, their standing to sue has been amply

demonstrated. There would be a retreat from the liberal approach followed in Pascual v.

Secretary of Public Works, 8 foreshadowed by the very decision of People v. Vera 9 where the

doctrine was first fully discussed, if we act differently now. I do not think we are prepared to take

that step. Respondents, however, would hark back to the American Supreme Court doctrine in

Mellon v. Frothingham, 10with their claim that what petitioners possess "is an interest which is

shared in common by other people and is comparatively so minute and indeterminate as to

afford any basis and assurance that the judicial process can act on it." 11 That is to speak in the

language of a bygone era, even in the United States. For as Chief Justice Warren clearly

pointed out in the later case of Flast v. Cohen, 12 the barrier thus set up if not breached has

definitely been lowered. 13 The weakness of these particular defenses is thus quite apparent. 14

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. 115455 October 30, 1995

ARTURO M. TOLENTINO, petitioner,

vs.

THE SECRETARY OF FINANCE and THE COMMISSIONER OF INTERNAL REVENUE,

respondents.

G.R. No. 115525 October 30, 1995

JUAN T. DAVID, petitioner,

vs.

TEOFISTO T. GUINGONA, JR., as Executive Secretary; ROBERTO DE OCAMPO, as

Secretary of Finance; LIWAYWAY VINZONS-CHATO, as Commissioner of Internal Revenue;

and their AUTHORIZED AGENTS OR REPRESENTATIVES, respondents.

G.R. No. 115543 October 30, 1995

RAUL S. ROCO and the INTEGRATED BAR OF THE PHILIPPINES, petitioners,

vs.

THE SECRETARY OF THE DEPARTMENT OF FINANCE; THE COMMISSIONERS OF THE

BUREAU OF INTERNAL REVENUE AND BUREAU OF CUSTOMS, respondents.

G.R. No. 115544 October 30, 1995

PHILIPPINE PRESS INSTITUTE, INC.; EGP PUBLISHING CO., INC.; KAMAHALAN

PUBLISHING CORPORATION; PHILIPPINE JOURNALISTS, INC.; JOSE L. PAVIA; and

OFELIA L. DIMALANTA, petitioners,

vs.

HON. LIWAYWAY V. CHATO, in her capacity as Commissioner of Internal Revenue; HON.

TEOFISTO T. GUINGONA, JR., in his capacity as Executive Secretary; and HON. ROBERTO B.

DE OCAMPO, in his capacity as Secretary of Finance, respondents.

G.R. No. 115754 October 30, 1995

CHAMBER OF REAL ESTATE AND BUILDERS ASSOCIATIONS, INC., (CREBA), petitioner,

vs.

THE COMMISSIONER OF INTERNAL REVENUE, respondent.

G.R. No. 115781 October 30, 1995

KILOSBAYAN, INC., JOVITO R. SALONGA, CIRILO A. RIGOS, ERME CAMBA, EMILIO C.

CAPULONG, JR., JOSE T. APOLO, EPHRAIM TENDERO, FERNANDO SANTIAGO, JOSE

ABCEDE, CHRISTINE TAN, FELIPE L. GOZON, RAFAEL G. FERNANDO, RAOUL V.

VICTORINO, JOSE CUNANAN, QUINTIN S. DOROMAL, MOVEMENT OF ATTORNEYS FOR

BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. ("MABINI"), FREEDOM FROM

DEBT COALITION, INC., and PHILIPPINE BIBLE SOCIETY, INC. and WIGBERTO

TAÑADA,petitioners,

vs.

THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE, THE COMMISSIONER OF

INTERNAL REVENUE and THE COMMISSIONER OF CUSTOMS, respondents.

G.R. No. 115852 October 30, 1995

PHILIPPINE AIRLINES, INC., petitioner,

vs.

THE SECRETARY OF FINANCE and COMMISSIONER OF INTERNAL REVENUE,

respondents.

G.R. No. 115873 October 30, 1995

COOPERATIVE UNION OF THE PHILIPPINES, petitioner,

vs.

HON. LIWAYWAY V. CHATO, in her capacity as the Commissioner of Internal Revenue, HON.

TEOFISTO T. GUINGONA, JR., in his capacity as Executive Secretary, and HON. ROBERTO B.

DE OCAMPO, in his capacity as Secretary of Finance, respondents.

G.R. No. 115931 October 30, 1995

PHILIPPINE EDUCATIONAL PUBLISHERS ASSOCIATION, INC. and ASSOCIATION OF

PHILIPPINE BOOK SELLERS, petitioners,

vs.

HON. ROBERTO B. DE OCAMPO, as the Secretary of Finance; HON. LIWAYWAY V. CHATO,

as the Commissioner of Internal Revenue; and HON. GUILLERMO PARAYNO, JR., in his

capacity as the Commissioner of Customs, respondents.

R E S O L U T I O N

MENDOZA, J.:

These are motions seeking reconsideration of our decision dismissing the petitions filed in these

cases for the declaration of unconstitutionality of R.A. No. 7716, otherwise known as the

Expanded Value-Added Tax Law. The motions, of which there are 10 in all, have been filed by

the several petitioners in these cases, with the exception of the Philippine Educational

Publishers Association, Inc. and the Association of Philippine Booksellers, petitioners in G.R. No.

115931.

The Solicitor General, representing the respondents, filed a consolidated comment, to which the

Philippine Airlines, Inc., petitioner in G.R. No. 115852, and the Philippine Press Institute, Inc.,

petitioner in G.R. No. 115544, and Juan T. David, petitioner in G.R. No. 115525, each filed a

reply. In turn the Solicitor General filed on June 1, 1995 a rejoinder to the PPI's reply.

On June 27, 1995 the matter was submitted for resolution.

I. Power of the Senate to propose amendments to revenue bills. Some of the petitioners

(Tolentino, Kilosbayan, Inc., Philippine Airlines (PAL), Roco, and Chamber of Real Estate and

Builders Association (CREBA)) reiterate previous claims made by them that R.A. No. 7716 did

not "originate exclusively" in the House of Representatives as required by Art. VI, §24 of the

Constitution. Although they admit that H. No. 11197 was filed in the House of Representatives

where it passed three readings and that afterward it was sent to the Senate where after first

reading it was referred to the Senate Ways and Means Committee, they complain that the

Senate did not pass it on second and third readings. Instead what the Senate did was to pass

its own version (S. No. 1630) which it approved on May 24, 1994. Petitioner Tolentino adds that

what the Senate committee should have done was to amend H. No. 11197 by striking out the

text of the bill and substituting it with the text of S. No. 1630. That way, it is said, "the bill

remains a House bill and the Senate version just becomes the text (only the text) of the House

bill."

The contention has no merit.

The enactment of S. No. 1630 is not the only instance in which the Senate proposed an

amendment to a House revenue bill by enacting its own version of a revenue bill. On at least

two occasions during the Eighth Congress, the Senate passed its own version of revenue bills,

which, in consolidation with House bills earlier passed, became the enrolled bills. These were:

R.A. No. 7369 (AN ACT TO AMEND THE OMNIBUS INVESTMENTS CODE OF 1987 BY

EXTENDING FROM FIVE (5) YEARS TO TEN YEARS THE PERIOD FOR TAX AND DUTY

EXEMPTION AND TAX CREDIT ON CAPITAL EQUIPMENT) which was approved by the

President on April 10, 1992. This Act is actually a consolidation of H. No. 34254, which was

approved by the House on January 29, 1992, and S. No. 1920, which was approved by the

Senate on February 3, 1992.

R.A. No. 7549 (AN ACT GRANTING TAX EXEMPTIONS TO WHOEVER SHALL GIVE

REWARD TO ANY FILIPINO ATHLETE WINNING A MEDAL IN OLYMPIC GAMES) which was

approved by the President on May 22, 1992. This Act is a consolidation of H. No. 22232, which

was approved by the House of Representatives on August 2, 1989, and S. No. 807, which was

approved by the Senate on October 21, 1991.

On the other hand, the Ninth Congress passed revenue laws which were also the result of the

consolidation of House and Senate bills. These are the following, with indications of the dates

on which the laws were approved by the President and dates the separate bills of the two

chambers of Congress were respectively passed:

1. R.A. NO. 7642

AN ACT INCREASING THE PENALTIES FOR TAX EVASION, AMENDING FOR THIS

PURPOSE THE PERTINENT SECTIONS OF THE NATIONAL INTERNAL REVENUE CODE

(December 28, 1992).

House Bill No. 2165, October 5, 1992

Senate Bill No. 32, December 7, 1992

2. R.A. NO. 7643

AN ACT TO EMPOWER THE COMMISSIONER OF INTERNAL REVENUE TO REQUIRE THE

PAYMENT OF THE VALUE-ADDED TAX EVERY MONTH AND TO ALLOW LOCAL

GOVERNMENT UNITS TO SHARE IN VAT REVENUE, AMENDING FOR THIS PURPOSE

CERTAIN SECTIONS OF THE NATIONAL INTERNAL REVENUE CODE (December 28, 1992)

House Bill No. 1503, September 3, 1992

Senate Bill No. 968, December 7, 1992

3. R.A. NO. 7646

AN ACT AUTHORIZING THE COMMISSIONER OF INTERNAL REVENUE TO PRESCRIBE

THE PLACE FOR PAYMENT OF INTERNAL REVENUE TAXES BY LARGE TAXPAYERS,

AMENDING FOR THIS PURPOSE CERTAIN PROVISIONS OF THE NATIONAL INTERNAL

REVENUE CODE, AS AMENDED (February 24, 1993)

House Bill No. 1470, October 20, 1992

Senate Bill No. 35, November 19, 1992

4. R.A. NO. 7649

AN ACT REQUIRING THE GOVERNMENT OR ANY OF ITS POLITICAL SUBDIVISIONS,

INSTRUMENTALITIES OR AGENCIES INCLUDING GOVERNMENT-OWNED OR

CONTROLLED CORPORATIONS (GOCCS) TO DEDUCT AND WITHHOLD THE VALUE-

ADDED TAX DUE AT THE RATE OF THREE PERCENT (3%) ON GROSS PAYMENT FOR

THE PURCHASE OF GOODS AND SIX PERCENT (6%) ON GROSS RECEIPTS FOR

SERVICES RENDERED BY CONTRACTORS (April 6, 1993)

House Bill No. 5260, January 26, 1993

Senate Bill No. 1141, March 30, 1993

5. R.A. NO. 7656

AN ACT REQUIRING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS TO

DECLARE DIVIDENDS UNDER CERTAIN CONDITIONS TO THE NATIONAL GOVERNMENT,

AND FOR OTHER PURPOSES (November 9, 1993)

House Bill No. 11024, November 3, 1993

Senate Bill No. 1168, November 3, 1993

6. R.A. NO. 7660

AN ACT RATIONALIZING FURTHER THE STRUCTURE AND ADMINISTRATION OF THE

DOCUMENTARY STAMP TAX, AMENDING FOR THE PURPOSE CERTAIN PROVISIONS OF

THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED, ALLOCATING FUNDS FOR

SPECIFIC PROGRAMS, AND FOR OTHER PURPOSES (December 23, 1993)

House Bill No. 7789, May 31, 1993

Senate Bill No. 1330, November 18, 1993

7. R.A. NO. 7717

AN ACT IMPOSING A TAX ON THE SALE, BARTER OR EXCHANGE OF SHARES OF

STOCK LISTED AND TRADED THROUGH THE LOCAL STOCK EXCHANGE OR THROUGH

INITIAL PUBLIC OFFERING, AMENDING FOR THE PURPOSE THE NATIONAL INTERNAL

REVENUE CODE, AS AMENDED, BY INSERTING A NEW SECTION AND REPEALING

CERTAIN SUBSECTIONS THEREOF (May 5, 1994)

House Bill No. 9187, November 3, 1993

Senate Bill No. 1127, March 23, 1994

Thus, the enactment of S. No. 1630 is not the only instance in which the Senate, in the exercise

of its power to propose amendments to bills required to originate in the House, passed its own

version of a House revenue measure. It is noteworthy that, in the particular case of S. No. 1630,

petitioners Tolentino and Roco, as members of the Senate, voted to approve it on second and

third readings.

On the other hand, amendment by substitution, in the manner urged by petitioner Tolentino,

concerns a mere matter of form. Petitioner has not shown what substantial difference it would

make if, as the Senate actually did in this case, a separate bill like S. No. 1630 is instead

enacted as a substitute measure, "taking into Consideration . . . H.B.11197."

Indeed, so far as pertinent, the Rules of the Senate only provide:

RULE XXIX

AMENDMENTS

xxx xxx xxx

§68. Not more than one amendment to the original amendment shall be considered.

No amendment by substitution shall be entertained unless the text thereof is submitted in writing.

Any of said amendments may be withdrawn before a vote is taken thereon.

§69. No amendment which seeks the inclusion of a legislative provision foreign to the subject

matter of a bill (rider) shall be entertained.

xxx xxx xxx

§70-A. A bill or resolution shall not be amended by substituting it with another which covers a

subject distinct from that proposed in the original bill or resolution. (emphasis added).

Nor is there merit in petitioners' contention that, with regard to revenue bills, the Philippine

Senate possesses less power than the U.S. Senate because of textual differences between

constitutional provisions giving them the power to propose or concur with amendments.

Art. I, §7, cl. 1 of the U.S. Constitution reads:

All Bills for raising Revenue shall originate in the House of Representatives; but the

Senate may propose or concur with amendments as on other Bills.

Art. VI, §24 of our Constitution reads:

All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills

of local application, and private bills shall originate exclusively in the House of

Representatives, but the Senate may propose or concur with amendments.

The addition of the word "exclusively" in the Philippine Constitution and the decision to drop the

phrase "as on other Bills" in the American version, according to petitioners, shows the intention

of the framers of our Constitution to restrict the Senate's power to propose amendments to

revenue bills. Petitioner Tolentino contends that the word "exclusively" was inserted to modify

"originate" and "the words 'as in any other bills' (sic) were eliminated so as to show that these

bills were not to be like other bills but must be treated as a special kind."

The history of this provision does not support this contention. The supposed indicia of

constitutional intent are nothing but the relics of an unsuccessful attempt to limit the power of

the Senate. It will be recalled that the 1935 Constitution originally provided for a unicameral

National Assembly. When it was decided in 1939 to change to a bicameral legislature, it

became necessary to provide for the procedure for lawmaking by the Senate and the House of

Representatives. The work of proposing amendments to the Constitution was done by the

National Assembly, acting as a constituent assembly, some of whose members, jealous of

preserving the Assembly's lawmaking powers, sought to curtail the powers of the proposed

Senate. Accordingly they proposed the following provision:

All bills appropriating public funds, revenue or tariff bills, bills of local application, and

private bills shall originate exclusively in the Assembly, but the Senate may propose or

concur with amendments. In case of disapproval by the Senate of any such bills, the

Assembly may repass the same by a two-thirds vote of all its members, and thereupon,

the bill so repassed shall be deemed enacted and may be submitted to the President for

corresponding action. In the event that the Senate should fail to finally act on any such

bills, the Assembly may, after thirty days from the opening of the next regular session of

the same legislative term, reapprove the same with a vote of two-thirds of all the

members of the Assembly. And upon such reapproval, the bill shall be deemed enacted

and may be submitted to the President for corresponding action.

The special committee on the revision of laws of the Second National Assembly vetoed the

proposal. It deleted everything after the first sentence. As rewritten, the proposal was approved

by the National Assembly and embodied in Resolution No. 38, as amended by Resolution No.

73. (J. ARUEGO, KNOW YOUR CONSTITUTION 65-66 (1950)). The proposed amendment

was submitted to the people and ratified by them in the elections held on June 18, 1940.

This is the history of Art. VI, §18 (2) of the 1935 Constitution, from which Art. VI, §24 of the

present Constitution was derived. It explains why the word "exclusively" was added to the

American text from which the framers of the Philippine Constitution borrowed and why the

phrase "as on other Bills" was not copied. Considering the defeat of the proposal, the power of

the Senate to propose amendments must be understood to be full, plenary and complete "as on

other Bills." Thus, because revenue bills are required to originate exclusively in the House of

Representatives, the Senate cannot enact revenue measures of its own without such bills. After

a revenue bill is passed and sent over to it by the House, however, the Senate certainly can

pass its own version on the same subject matter. This follows from the coequality of the two

chambers of Congress.

That this is also the understanding of book authors of the scope of the Senate's power to concur

is clear from the following commentaries:

The power of the Senate to propose or concur with amendments is apparently without

restriction. It would seem that by virtue of this power, the Senate can practically re-write

a bill required to come from the House and leave only a trace of the original bill. For

example, a general revenue bill passed by the lower house of the United States

Congress contained provisions for the imposition of an inheritance tax . This was

changed by the Senate into a corporation tax. The amending authority of the Senate was

declared by the United States Supreme Court to be sufficiently broad to enable it to

make the alteration. [Flint v. Stone Tracy Company, 220 U.S. 107, 55 L. ed. 389].

(L. TAÑADA AND F. CARREON, POLITICAL LAW OF THE PHILIPPINES 247 (1961))

The above-mentioned bills are supposed to be initiated by the House of Representatives

because it is more numerous in membership and therefore also more representative of the

people. Moreover, its members are presumed to be more familiar with the needs of the country

in regard to the enactment of the legislation involved.

The Senate is, however, allowed much leeway in the exercise of its power to propose or concur

with amendments to the bills initiated by the House of Representatives. Thus, in one case, a bill

introduced in the U.S. House of Representatives was changed by the Senate to make a

proposed inheritance tax a corporation tax. It is also accepted practice for the Senate to

introduce what is known as an amendment by substitution, which may entirely replace the bill

initiated in the House of Representatives.

(I. CRUZ, PHILIPPINE POLITICAL LAW 144-145 (1993)).

In sum, while Art. VI, §24 provides that all appropriation, revenue or tariff bills, bills authorizing

increase of the public debt, bills of local application, and private bills must "originate exclusively

in the House of Representatives," it also adds, "but the Senate may propose or concur with

amendments." In the exercise of this power, the Senate may propose an entirely new bill as a

substitute measure. As petitioner Tolentino states in a high school text, a committee to which a

bill is referred may do any of the following:

(1) to endorse the bill without changes; (2) to make changes in the bill omitting or adding

sections or altering its language; (3) to make and endorse an entirely new bill as a

substitute, in which case it will be known as a committee bill; or (4) to make no report at

all.

(A. TOLENTINO, THE GOVERNMENT OF THE PHILIPPINES 258 (1950))

To except from this procedure the amendment of bills which are required to originate in the

House by prescribing that the number of the House bill and its other parts up to the enacting

clause must be preserved although the text of the Senate amendment may be incorporated in

place of the original body of the bill is to insist on a mere technicality. At any rate there is no rule

prescribing this form. S. No. 1630, as a substitute measure, is therefore as much an

amendment of H. No. 11197 as any which the Senate could have made.

II. S. No. 1630 a mere amendment of H. No. 11197. Petitioners' basic error is that they assume

that S. No. 1630 is an independent and distinct bill. Hence their repeated references to its

certification that it was passed by the Senate "in substitution of S.B. No. 1129, taking into

consideration P.S. Res. No. 734 and H.B. No. 11197," implying that there is something

substantially different between the reference to S. No. 1129 and the reference to H. No. 11197.

From this premise, they conclude that R.A. No. 7716 originated both in the House and in the

Senate and that it is the product of two "half-baked bills because neither H. No. 11197 nor S. No.

1630 was passed by both houses of Congress."

In point of fact, in several instances the provisions of S. No. 1630, clearly appear to be mere

amendments of the corresponding provisions of H. No. 11197. The very tabular comparison of

the provisions of H. No. 11197 and S. No. 1630 attached as Supplement A to the basic petition

of petitioner Tolentino, while showing differences between the two bills, at the same time

indicates that the provisions of the Senate bill were precisely intended to be amendments to the

House bill.

Without H. No. 11197, the Senate could not have enacted S. No. 1630. Because the Senate bill

was a mere amendment of the House bill, H. No. 11197 in its original form did not have to pass

the Senate on second and three readings. It was enough that after it was passed on first

reading it was referred to the Senate Committee on Ways and Means. Neither was it required

that S. No. 1630 be passed by the House of Representatives before the two bills could be

referred to the Conference Committee.

There is legislative precedent for what was done in the case of H. No. 11197 and S. No. 1630.

When the House bill and Senate bill, which became R.A. No. 1405 (Act prohibiting the

disclosure of bank deposits), were referred to a conference committee, the question was raised

whether the two bills could be the subject of such conference, considering that the bill from one

house had not been passed by the other and vice versa. As Congressman Duran put the

question:

MR. DURAN. Therefore, I raise this question of order as to procedure: If a House bill is

passed by the House but not passed by the Senate, and a Senate bill of a similar nature

is passed in the Senate but never passed in the House, can the two bills be the subject

of a conference, and can a law be enacted from these two bills? I understand that the

Senate bill in this particular instance does not refer to investments in government

securities, whereas the bill in the House, which was introduced by the Speaker, covers

two subject matters: not only investigation of deposits in banks but also investigation of

investments in government securities. Now, since the two bills differ in their subject

matter, I believe that no law can be enacted.

Ruling on the point of order raised, the chair (Speaker Jose B. Laurel, Jr.) said:

THE SPEAKER. The report of the conference committee is in order. It is precisely in

cases like this where a conference should be had. If the House bill had been approved

by the Senate, there would have been no need of a conference; but precisely because

the Senate passed another bill on the same subject matter, the conference committee

had to be created, and we are now considering the report of that committee.

(2 CONG. REC. NO. 13, July 27, 1955, pp. 3841-42 (emphasis added))

III. The President's certification. The fallacy in thinking that H. No. 11197 and S. No. 1630 are

distinct and unrelated measures also accounts for the petitioners' (Kilosbayan's and PAL's)

contention that because the President separately certified to the need for the immediate

enactment of these measures, his certification was ineffectual and void. The certification had to

be made of the version of the same revenue bill which at the moment was being considered.

Otherwise, to follow petitioners' theory, it would be necessary for the President to certify as

many bills as are presented in a house of Congress even though the bills are merely versions of

the bill he has already certified. It is enough that he certifies the bill which, at the time he makes

the certification, is under consideration. Since on March 22, 1994 the Senate was considering S.

No. 1630, it was that bill which had to be certified. For that matter on June 1, 1993 the President

had earlier certified H. No. 9210 for immediate enactment because it was the one which at that

time was being considered by the House. This bill was later substituted, together with other bills,

by H. No. 11197.

As to what Presidential certification can accomplish, we have already explained in the main

decision that the phrase "except when the President certifies to the necessity of its immediate

enactment, etc." in Art. VI, §26 (2) qualifies not only the requirement that "printed copies [of a

bill] in its final form [must be] distributed to the members three days before its passage" but also

the requirement that before a bill can become a law it must have passed "three readings on

separate days." There is not only textual support for such construction but historical basis as

well.

Art. VI, §21 (2) of the 1935 Constitution originally provided:

(2) No bill shall be passed by either House unless it shall have been printed and copies

thereof in its final form furnished its Members at least three calendar days prior to its

passage, except when the President shall have certified to the necessity of its immediate

enactment. Upon the last reading of a bill, no amendment thereof shall be allowed and

the question upon its passage shall be taken immediately thereafter, and the yeas and

nays entered on the Journal.

When the 1973 Constitution was adopted, it was provided in Art. VIII, §19 (2):

(2) No bill shall become a law unless it has passed three readings on separate days, and

printed copies thereof in its final form have been distributed to the Members three days

before its passage, except when the Prime Minister certifies to the necessity of its

immediate enactment to meet a public calamity or emergency. Upon the last reading of a

bill, no amendment thereto shall be allowed, and the vote thereon shall be taken

immediately thereafter, and the yeas and nays entered in the Journal.

This provision of the 1973 document, with slight modification, was adopted in Art. VI, §26 (2) of

the present Constitution, thus:

(2) No bill passed by either House shall become a law unless it has passed three

readings on separate days, and printed copies thereof in its final form have been

distributed to its Members three days before its passage, except when the President

certifies to the necessity of its immediate enactment to meet a public calamity or

emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and

the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in

the Journal.

The exception is based on the prudential consideration that if in all cases three readings on

separate days are required and a bill has to be printed in final form before it can be passed, the

need for a law may be rendered academic by the occurrence of the very emergency or public

calamity which it is meant to address.

Petitioners further contend that a "growing budget deficit" is not an emergency, especially in a

country like the Philippines where budget deficit is a chronic condition. Even if this were the

case, an enormous budget deficit does not make the need for R.A. No. 7716 any less urgent or

the situation calling for its enactment any less an emergency.

Apparently, the members of the Senate (including some of the petitioners in these cases)

believed that there was an urgent need for consideration of S. No. 1630, because they

responded to the call of the President by voting on the bill on second and third readings on the

same day. While the judicial department is not bound by the Senate's acceptance of the

President's certification, the respect due coequal departments of the government in matters

committed to them by the Constitution and the absence of a clear showing of grave abuse of

discretion caution a stay of the judicial hand.

At any rate, we are satisfied that S. No. 1630 received thorough consideration in the Senate

where it was discussed for six days. Only its distribution in advance in its final printed form was

actually dispensed with by holding the voting on second and third readings on the same day

(March 24, 1994). Otherwise, sufficient time between the submission of the bill on February 8,

1994 on second reading and its approval on March 24, 1994 elapsed before it was finally voted

on by the Senate on third reading.

The purpose for which three readings on separate days is required is said to be two-fold: (1) to

inform the members of Congress of what they must vote on and (2) to give them notice that a

measure is progressing through the enacting process, thus enabling them and others interested

in the measure to prepare their positions with reference to it. (1 J. G. SUTHERLAND,

STATUTES AND STATUTORY CONSTRUCTION §10.04, p. 282 (1972)). These purposes

were substantially achieved in the case of R.A. No. 7716.

IV. Power of Conference Committee. It is contended (principally by Kilosbayan, Inc. and the

Movement of Attorneys for Brotherhood, Integrity and Nationalism, Inc. (MABINI)) that in

violation of the constitutional policy of full public disclosure and the people's right to know (Art. II,

§28 and Art. III, §7) the Conference Committee met for two days in executive session with only

the conferees present.

As pointed out in our main decision, even in the United States it was customary to hold such

sessions with only the conferees and their staffs in attendance and it was only in 1975 when a

new rule was adopted requiring open sessions. Unlike its American counterpart, the Philippine

Congress has not adopted a rule prescribing open hearings for conference committees.

It is nevertheless claimed that in the United States, before the adoption of the rule in 1975, at

least staff members were present. These were staff members of the Senators and

Congressmen, however, who may be presumed to be their confidential men, not stenographers

as in this case who on the last two days of the conference were excluded. There is no showing

that the conferees themselves did not take notes of their proceedings so as to give petitioner

Kilosbayan basis for claiming that even in secret diplomatic negotiations involving state interests,

conferees keep notes of their meetings. Above all, the public's right to know was fully served

because the Conference Committee in this case submitted a report showing the changes made

on the differing versions of the House and the Senate.

Petitioners cite the rules of both houses which provide that conference committee reports must

contain "a detailed, sufficiently explicit statement of the changes in or other amendments."

These changes are shown in the bill attached to the Conference Committee Report. The

members of both houses could thus ascertain what changes had been made in the original bills

without the need of a statement detailing the changes.

The same question now presented was raised when the bill which became R.A. No. 1400 (Land

Reform Act of 1955) was reported by the Conference Committee. Congressman Bengzon

raised a point of order. He said:

MR. BENGZON. My point of order is that it is out of order to consider the report of the

conference committee regarding House Bill No. 2557 by reason of the provision of

Section 11, Article XII, of the Rules of this House which provides specifically that the

conference report must be accompanied by a detailed statement of the effects of the

amendment on the bill of the House. This conference committee report is not

accompanied by that detailed statement, Mr. Speaker. Therefore it is out of order to

consider it.

Petitioner Tolentino, then the Majority Floor Leader, answered:

MR. TOLENTINO. Mr. Speaker, I should just like to say a few words in connection with

the point of order raised by the gentleman from Pangasinan.

There is no question about the provision of the Rule cited by the gentleman from Pangasinan,

but this provision applies to those cases where only portions of the bill have been amended. In

this case before us an entire bill is presented; therefore, it can be easily seen from the reading

of the bill what the provisions are. Besides, this procedure has been an established practice.

After some interruption, he continued:

MR. TOLENTINO. As I was saying, Mr. Speaker, we have to look into the reason for the

provisions of the Rules, and the reason for the requirement in the provision cited by the

gentleman from Pangasinan is when there are only certain words or phrases inserted in

or deleted from the provisions of the bill included in the conference report, and we

cannot understand what those words and phrases mean and their relation to the bill. In

that case, it is necessary to make a detailed statement on how those words and phrases

will affect the bill as a whole; but when the entire bill itself is copied verbatim in the

conference report, that is not necessary. So when the reason for the Rule does not exist,

the Rule does not exist.

(2 CONG. REC. NO. 2, p. 4056. (emphasis added))

Congressman Tolentino was sustained by the chair. The record shows that when the ruling was

appealed, it was upheld by viva voce and when a division of the House was called, it was

sustained by a vote of 48 to 5. (Id.,

p. 4058)

Nor is there any doubt about the power of a conference committee to insert new provisions as

long as these are germane to the subject of the conference. As this Court held in Philippine

Judges Association v. Prado, 227 SCRA 703 (1993), in an opinion written by then Justice Cruz,

the jurisdiction of the conference committee is not limited to resolving differences between the

Senate and the House. It may propose an entirely new provision. What is important is that its

report is subsequently approved by the respective houses of Congress. This Court ruled that it

would not entertain allegations that, because new provisions had been added by the conference

committee, there was thereby a violation of the constitutional injunction that "upon the last

reading of a bill, no amendment thereto shall be allowed."

Applying these principles, we shall decline to look into the petitioners' charges that an

amendment was made upon the last reading of the bill that eventually became R.A. No.

7354 and that copies thereof in its final form were not distributed among the members of

each House. Both the enrolled bill and the legislative journals certify that the measure

was duly enacted i.e., in accordance with Article VI, Sec. 26 (2) of the Constitution. We

are bound by such official assurances from a coordinate department of the government,

to which we owe, at the very least, a becoming courtesy.

(Id. at 710. (emphasis added))

It is interesting to note the following description of conference committees in the Philippines in a

1979 study:

Conference committees may be of two types: free or instructed. These committees may

be given instructions by their parent bodies or they may be left without instructions.

Normally the conference committees are without instructions, and this is why they are

often critically referred to as "the little legislatures." Once bills have been sent to them,

the conferees have almost unlimited authority to change the clauses of the bills and in

fact sometimes introduce new measures that were not in the original legislation. No

minutes are kept, and members' activities on conference committees are difficult to

determine. One congressman known for his idealism put it this way: "I killed a bill on

export incentives for my interest group [copra] in the conference committee but I could

not have done so anywhere else." The conference committee submits a report to both

houses, and usually it is accepted. If the report is not accepted, then the committee is

discharged and new members are appointed.

(R. Jackson, Committees in the Philippine Congress, in COMMITTEES AND LEGISLATURES:

A COMPARATIVE ANALYSIS 163 (J. D. LEES AND M. SHAW, eds.)).

In citing this study, we pass no judgment on the methods of conference committees. We cite it

only to say that conference committees here are no different from their counterparts in the

United States whose vast powers we noted in Philippine Judges Association v. Prado, supra. At

all events, under Art. VI, §16(3) each house has the power "to determine the rules of its

proceedings," including those of its committees. Any meaningful change in the method and

procedures of Congress or its committees must therefore be sought in that body itself.

V. The titles of S. No. 1630 and H. No. 11197. PAL maintains that R.A. No. 7716 violates Art. VI,

§26 (1) of the Constitution which provides that "Every bill passed by Congress shall embrace

only one subject which shall be expressed in the title thereof." PAL contends that the

amendment of its franchise by the withdrawal of its exemption from the VAT is not expressed in

the title of the law.

Pursuant to §13 of P.D. No. 1590, PAL pays a franchise tax of 2% on its gross revenue "in lieu

of all other taxes, duties, royalties, registration, license and other fees and charges of any kind,

nature, or description, imposed, levied, established, assessed or collected by any municipal, city,

provincial or national authority or government agency, now or in the future."

PAL was exempted from the payment of the VAT along with other entities by §103 of the

National Internal Revenue Code, which provides as follows:

§103. Exempt transactions. — The following shall be exempt from the value-added tax:

xxx xxx xxx

(q) Transactions which are exempt under special laws or international agreements to which the

Philippines is a signatory.

R.A. No. 7716 seeks to withdraw certain exemptions, including that granted to PAL, by

amending §103, as follows:

§103. Exempt transactions. — The following shall be exempt from the value-added tax:

xxx xxx xxx

(q) Transactions which are exempt under special laws, except those granted under Presidential

Decree Nos. 66, 529, 972, 1491, 1590. . . .

The amendment of §103 is expressed in the title of R.A. No. 7716 which reads:

AN ACT RESTRUCTURING THE VALUE-ADDED TAX (VAT) SYSTEM, WIDENING

ITS TAX BASE AND ENHANCING ITS ADMINISTRATION, AND FOR THESE

PURPOSES AMENDING AND REPEALING THE RELEVANT PROVISIONS OF THE

NATIONAL INTERNAL REVENUE CODE, AS AMENDED, AND FOR OTHER

PURPOSES.

By stating that R.A. No. 7716 seeks to "[RESTRUCTURE] THE VALUE-ADDED TAX (VAT)

SYSTEM [BY] WIDENING ITS TAX BASE AND ENHANCING ITS ADMINISTRATION, AND

FOR THESE PURPOSES AMENDING AND REPEALING THE RELEVANT PROVISIONS OF

THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED AND FOR OTHER

PURPOSES," Congress thereby clearly expresses its intention to amend any provision of the

NIRC which stands in the way of accomplishing the purpose of the law.

PAL asserts that the amendment of its franchise must be reflected in the title of the law by

specific reference to P.D. No. 1590. It is unnecessary to do this in order to comply with the

constitutional requirement, since it is already stated in the title that the law seeks to amend the

pertinent provisions of the NIRC, among which is §103(q), in order to widen the base of the VAT.

Actually, it is the bill which becomes a law that is required to express in its title the subject of

legislation. The titles of H. No. 11197 and S. No. 1630 in fact specifically referred to §103 of the

NIRC as among the provisions sought to be amended. We are satisfied that sufficient notice

had been given of the pendency of these bills in Congress before they were enacted into what is

now R.A.

No. 7716.

In Philippine Judges Association v. Prado, supra, a similar argument as that now made by PAL

was rejected. R.A. No. 7354 is entitled AN ACT CREATING THE PHILIPPINE POSTAL

CORPORATION, DEFINING ITS POWERS, FUNCTIONS AND RESPONSIBILITIES,

PROVIDING FOR REGULATION OF THE INDUSTRY AND FOR OTHER PURPOSES

CONNECTED THEREWITH. It contained a provision repealing all franking privileges. It was

contended that the withdrawal of franking privileges was not expressed in the title of the law. In

holding that there was sufficient description of the subject of the law in its title, including the

repeal of franking privileges, this Court held:

To require every end and means necessary for the accomplishment of the general

objectives of the statute to be expressed in its title would not only be unreasonable but

would actually render legislation impossible. [Cooley, Constitutional Limitations, 8th Ed.,

p. 297] As has been correctly explained:

The details of a legislative act need not be specifically stated in its title, but

matter germane to the subject as expressed in the title, and adopted to the

accomplishment of the object in view, may properly be included in the act. Thus,

it is proper to create in the same act the machinery by which the act is to be

enforced, to prescribe the penalties for its infraction, and to remove obstacles in

the way of its execution. If such matters are properly connected with the subject

as expressed in the title, it is unnecessary that they should also have special

mention in the title. (Southern Pac. Co. v. Bartine, 170 Fed. 725)

(227 SCRA at 707-708)

VI. Claims of press freedom and religious liberty. We have held that, as a general proposition,

the press is not exempt from the taxing power of the State and that what the constitutional

guarantee of free press prohibits are laws which single out the press or target a group belonging

to the press for special treatment or which in any way discriminate against the press on the

basis of the content of the publication, and R.A. No. 7716 is none of these.

Now it is contended by the PPI that by removing the exemption of the press from the VAT while

maintaining those granted to others, the law discriminates against the press. At any rate, it is

averred, "even nondiscriminatory taxation of constitutionally guaranteed freedom is

unconstitutional."

With respect to the first contention, it would suffice to say that since the law granted the press a

privilege, the law could take back the privilege anytime without offense to the Constitution. The

reason is simple: by granting exemptions, the State does not forever waive the exercise of its

sovereign prerogative.

Indeed, in withdrawing the exemption, the law merely subjects the press to the same tax burden

to which other businesses have long ago been subject. It is thus different from the tax involved

in the cases invoked by the PPI. The license tax in Grosjean v. American Press Co., 297 U.S.

233, 80 L. Ed. 660 (1936) was found to be discriminatory because it was laid on the gross

advertising receipts only of newspapers whose weekly circulation was over 20,000, with the

result that the tax applied only to 13 out of 124 publishers in Louisiana. These large papers

were critical of Senator Huey Long who controlled the state legislature which enacted the

license tax. The censorial motivation for the law was thus evident.

On the other hand, in Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460

U.S. 575, 75 L. Ed. 2d 295 (1983), the tax was found to be discriminatory because although it

could have been made liable for the sales tax or, in lieu thereof, for the use tax on the privilege

of using, storing or consuming tangible goods, the press was not. Instead, the press was

exempted from both taxes. It was, however, later made to pay a special use tax on the cost of

paper and ink which made these items "the only items subject to the use tax that were

component of goods to be sold at retail." The U.S. Supreme Court held that the differential

treatment of the press "suggests that the goal of regulation is not related to suppression of

expression, and such goal is presumptively unconstitutional." It would therefore appear that

even a law that favors the press is constitutionally suspect. (See the dissent of Rehnquist, J. in

that case)

Nor is it true that only two exemptions previously granted by E.O. No. 273 are withdrawn

"absolutely and unqualifiedly" by R.A. No. 7716. Other exemptions from the VAT, such as those

previously granted to PAL, petroleum concessionaires, enterprises registered with the Export

Processing Zone Authority, and many more are likewise totally withdrawn, in addition to

exemptions which are partially withdrawn, in an effort to broaden the base of the tax.

The PPI says that the discriminatory treatment of the press is highlighted by the fact that

transactions, which are profit oriented, continue to enjoy exemption under R.A. No. 7716. An

enumeration of some of these transactions will suffice to show that by and large this is not so

and that the exemptions are granted for a purpose. As the Solicitor General says, such

exemptions are granted, in some cases, to encourage agricultural production and, in other

cases, for the personal benefit of the end-user rather than for profit. The exempt transactions

are:

(a) Goods for consumption or use which are in their original state (agricultural, marine

and forest products, cotton seeds in their original state, fertilizers, seeds, seedlings,

fingerlings, fish, prawn livestock and poultry feeds) and goods or services to enhance

agriculture (milling of palay, corn, sugar cane and raw sugar, livestock, poultry feeds,

fertilizer, ingredients used for the manufacture of feeds).

(b) Goods used for personal consumption or use (household and personal effects of citizens

returning to the Philippines) or for professional use, like professional instruments and

implements, by persons coming to the Philippines to settle here.

(c) Goods subject to excise tax such as petroleum products or to be used for manufacture of

petroleum products subject to excise tax and services subject to percentage tax.

(d) Educational services, medical, dental, hospital and veterinary services, and services

rendered under employer-employee relationship.

(e) Works of art and similar creations sold by the artist himself.

(f) Transactions exempted under special laws, or international agreements.

(g) Export-sales by persons not VAT-registered.

(h) Goods or services with gross annual sale or receipt not exceeding P500,000.00.

(Respondents' Consolidated Comment on the Motions for Reconsideration, pp. 58-60)

The PPI asserts that it does not really matter that the law does not discriminate against the

press because "even nondiscriminatory taxation on constitutionally guaranteed freedom is

unconstitutional." PPI cites in support of this assertion the following statement in Murdock v.

Pennsylvania, 319 U.S. 105, 87 L. Ed. 1292 (1943):

The fact that the ordinance is "nondiscriminatory" is immaterial. The protection afforded

by the First Amendment is not so restricted. A license tax certainly does not acquire

constitutional validity because it classifies the privileges protected by the First

Amendment along with the wares and merchandise of hucksters and peddlers and treats

them all alike. Such equality in treatment does not save the ordinance. Freedom of press,

freedom of speech, freedom of religion are in preferred position.

The Court was speaking in that case of a license tax, which, unlike an ordinary tax, is mainly for

regulation. Its imposition on the press is unconstitutional because it lays a prior restraint on the

exercise of its right. Hence, although its application to others, such those selling goods, is valid,

its application to the press or to religious groups, such as the Jehovah's Witnesses, in

connection with the latter's sale of religious books and pamphlets, is unconstitutional. As the

U.S. Supreme Court put it, "it is one thing to impose a tax on income or property of a preacher.

It is quite another thing to exact a tax on him for delivering a sermon."

A similar ruling was made by this Court in American Bible Society v. City of Manila, 101 Phil.

386 (1957) which invalidated a city ordinance requiring a business license fee on those

engaged in the sale of general merchandise. It was held that the tax could not be imposed on

the sale of bibles by the American Bible Society without restraining the free exercise of its right

to propagate.

The VAT is, however, different. It is not a license tax. It is not a tax on the exercise of a privilege,

much less a constitutional right. It is imposed on the sale, barter, lease or exchange of goods or

properties or the sale or exchange of services and the lease of properties purely for revenue

purposes. To subject the press to its payment is not to burden the exercise of its right any more

than to make the press pay income tax or subject it to general regulation is not to violate its

freedom under the Constitution.

Additionally, the Philippine Bible Society, Inc. claims that although it sells bibles, the proceeds

derived from the sales are used to subsidize the cost of printing copies which are given free to

those who cannot afford to pay so that to tax the sales would be to increase the price, while

reducing the volume of sale. Granting that to be the case, the resulting burden on the exercise

of religious freedom is so incidental as to make it difficult to differentiate it from any other

economic imposition that might make the right to disseminate religious doctrines costly.

Otherwise, to follow the petitioner's argument, to increase the tax on the sale of vestments

would be to lay an impermissible burden on the right of the preacher to make a sermon.

On the other hand the registration fee of P1,000.00 imposed by §107 of the NIRC, as amended

by §7 of R.A. No. 7716, although fixed in amount, is really just to pay for the expenses of

registration and enforcement of provisions such as those relating to accounting in §108 of the

NIRC. That the PBS distributes free bibles and therefore is not liable to pay the VAT does not

excuse it from the payment of this fee because it also sells some copies. At any rate whether

the PBS is liable for the VAT must be decided in concrete cases, in the event it is assessed this

tax by the Commissioner of Internal Revenue.

VII. Alleged violations of the due process, equal protection and contract clauses and the rule on

taxation. CREBA asserts that R.A. No. 7716 (1) impairs the obligations of contracts, (2)

classifies transactions as covered or exempt without reasonable basis and (3) violates the rule

that taxes should be uniform and equitable and that Congress shall "evolve a progressive

system of taxation."

With respect to the first contention, it is claimed that the application of the tax to existing

contracts of the sale of real property by installment or on deferred payment basis would result in

substantial increases in the monthly amortizations to be paid because of the 10% VAT. The

additional amount, it is pointed out, is something that the buyer did not anticipate at the time he

entered into the contract.

The short answer to this is the one given by this Court in an early case: "Authorities from

numerous sources are cited by the plaintiffs, but none of them show that a lawful tax on a new

subject, or an increased tax on an old one, interferes with a contract or impairs its obligation,

within the meaning of the Constitution. Even though such taxation may affect particular

contracts, as it may increase the debt of one person and lessen the security of another, or may

impose additional burdens upon one class and release the burdens of another, sti ll the tax must

be paid unless prohibited by the Constitution, nor can it be said that it impairs the obligation of

any existing contract in its true legal sense." (La Insular v. Machuca Go-Tauco and Nubla Co-

Siong, 39 Phil. 567, 574 (1919)). Indeed not only existing laws but also "the reservation of the

essential attributes of sovereignty, is . . . read into contracts as a postulate of the legal order."

(Philippine-American Life Ins. Co. v. Auditor General, 22 SCRA 135, 147 (1968)) Contracts

must be understood as having been made in reference to the possible exercise of the rightful

authority of the government and no obligation of contract can extend to the defeat of that

authority. (Norman v. Baltimore and Ohio R.R., 79 L. Ed. 885 (1935)).

It is next pointed out that while §4 of R.A. No. 7716 exempts such transactions as the sale of

agricultural products, food items, petroleum, and medical and veterinary services, it grants no

exemption on the sale of real property which is equally essential. The sale of real property for

socialized and low-cost housing is exempted from the tax, but CREBA claims that real estate

transactions of "the less poor," i.e., the middle class, who are equally homeless, should likewise

be exempted.

The sale of food items, petroleum, medical and veterinary services, etc., which are essential

goods and services was already exempt under §103, pars. (b) (d) (1) of the NIRC before the

enactment of R.A. No. 7716. Petitioner is in error in claiming that R.A. No. 7716 granted

exemption to these transactions, while subjecting those of petitioner to the payment of the VAT.

Moreover, there is a difference between the "homeless poor" and the "homeless less poor" in

the example given by petitioner, because the second group or middle class can afford to rent

houses in the meantime that they cannot yet buy their own homes. The two social classes are

thus differently situated in life. "It is inherent in the power to tax that the State be free to select

the subjects of taxation, and it has been repeatedly held that 'inequalities which result from a

singling out of one particular class for taxation, or exemption infringe no constitutional

limitation.'" (Lutz v. Araneta, 98 Phil. 148, 153 (1955). Accord, City of Baguio v. De Leon, 134

Phil. 912 (1968); Sison, Jr. v. Ancheta, 130 SCRA 654, 663 (1984); Kapatiran ng mga

Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 163 SCRA 371 (1988)).

Finally, it is contended, for the reasons already noted, that R.A. No. 7716 also violates Art. VI,

§28(1) which provides that "The rule of taxation shall be uniform and equitable. The Congress

shall evolve a progressive system of taxation."

Equality and uniformity of taxation means that all taxable articles or kinds of property of the

same class be taxed at the same rate. The taxing power has the authority to make reasonable

and natural classifications for purposes of taxation. To satisfy this requirement it is enough that

the statute or ordinance applies equally to all persons, forms and corporations placed in similar

situation. (City of Baguio v. De Leon, supra; Sison, Jr. v. Ancheta, supra)

Indeed, the VAT was already provided in E.O. No. 273 long before R.A. No. 7716 was enacted.

R.A. No. 7716 merely expands the base of the tax. The validity of the original VAT Law was

questioned in Kapatiran ng Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 163 SCRA

383 (1988) on grounds similar to those made in these cases, namely, that the law was

"oppressive, discriminatory, unjust and regressive in violation of Art. VI, §28(1) of the

Constitution." (At 382) Rejecting the challenge to the law, this Court held:

As the Court sees it, EO 273 satisfies all the requirements of a valid tax. It is uniform. . . .

The sales tax adopted in EO 273 is applied similarly on all goods and services sold to the public,

which are not exempt, at the constant rate of 0% or 10%.

The disputed sales tax is also equitable. It is imposed only on sales of goods or services by

persons engaged in business with an aggregate gross annual sales exceeding P200,000.00.

Small corner sari-sari stores are consequently exempt from its application. Likewise exempt

from the tax are sales of farm and marine products, so that the costs of basic food and other

necessities, spared as they are from the incidence of the VAT, are expected to be relatively

lower and within the reach of the general public.

(At 382-383)

The CREBA claims that the VAT is regressive. A similar claim is made by the Cooperative

Union of the Philippines, Inc. (CUP), while petitioner Juan T. David argues that the law

contravenes the mandate of Congress to provide for a progressive system of taxation because

the law imposes a flat rate of 10% and thus places the tax burden on all taxpayers without

regard to their ability to pay.

The Constitution does not really prohibit the imposition of indirect taxes which, like the VAT, are

regressive. What it simply provides is that Congress shall "evolve a progressive system of

taxation." The constitutional provision has been interpreted to mean simply that "direct taxes

are . . . to be preferred [and] as much as possible, indirect taxes should be minimized." (E.

FERNANDO, THE CONSTITUTION OF THE PHILIPPINES 221 (Second ed. (1977)). Indeed,

the mandate to Congress is not to prescribe, but to evolve, a progressive tax system. Otherwise,

sales taxes, which perhaps are the oldest form of indirect taxes, would have been prohibited

with the proclamation of Art. VIII, §17(1) of the 1973 Constitution from which the present Art. VI,

§28(1) was taken. Sales taxes are also regressive.

Resort to indirect taxes should be minimized but not avoided entirely because it is difficult, if not

impossible, to avoid them by imposing such taxes according to the taxpayers' ability to pay. In

the case of the VAT, the law minimizes the regressive effects of this imposition by providing for

zero rating of certain transactions (R.A. No. 7716, §3, amending §102 (b) of the NIRC), while

granting exemptions to other transactions. (R.A. No. 7716, §4, amending §103 of the NIRC).

Thus, the following transactions involving basic and essential goods and services are exempted

from the VAT:

(a) Goods for consumption or use which are in their original state (agricultural, marine

and forest products, cotton seeds in their original state, fertilizers, seeds, seedlings,

fingerlings, fish, prawn livestock and poultry feeds) and goods or services to enhance

agriculture (milling of palay, corn sugar cane and raw sugar, livestock, poultry feeds,

fertilizer, ingredients used for the manufacture of feeds).

(b) Goods used for personal consumption or use (household and personal effects of citizens

returning to the Philippines) and or professional use, like professional instruments and

implements, by persons coming to the Philippines to settle here.

(c) Goods subject to excise tax such as petroleum products or to be used for manufacture of

petroleum products subject to excise tax and services subject to percentage tax.

(d) Educational services, medical, dental, hospital and veterinary services, and services

rendered under employer-employee relationship.

(e) Works of art and similar creations sold by the artist himself.

(f) Transactions exempted under special laws, or international agreements.

(g) Export-sales by persons not VAT-registered.

(h) Goods or services with gross annual sale or receipt not exceeding P500,000.00.

(Respondents' Consolidated Comment on the Motions for Reconsideration, pp. 58-60)

On the other hand, the transactions which are subject to the VAT are those which involve goods

and services which are used or availed of mainly by higher income groups. These include real

properties held primarily for sale to customers or for lease in the ordinary course of trade or

business, the right or privilege to use patent, copyright, and other similar property or right, the

right or privilege to use industrial, commercial or scientific equipment, motion picture films, tapes

and discs, radio, television, satellite transmission and cable television time, hotels, restaurants

and similar places, securities, lending investments, taxicabs, utility cars for rent, tourist buses,

and other common carriers, services of franchise grantees of telephone and telegraph.

The problem with CREBA's petition is that it presents broad claims of constitutional violations by

tendering issues not at retail but at wholesale and in the abstract. There is no fully developed

record which can impart to adjudication the impact of actuality. There is no factual foundation to

show in the concrete the application of the law to actual contracts and exemplify its effect on

property rights. For the fact is that petitioner's members have not even been assessed the VAT.

Petitioner's case is not made concrete by a series of hypothetical questions asked which are no

different from those dealt with in advisory opinions.

The difficulty confronting petitioner is thus apparent. He alleges arbitrariness. A mere

allegation, as here, does not suffice. There must be a factual foundation of such

unconstitutional taint. Considering that petitioner here would condemn such a provision

as void on its face, he has not made out a case. This is merely to adhere to the

authoritative doctrine that where the due process and equal protection clauses are

invoked, considering that they are not fixed rules but rather broad standards, there is a

need for proof of such persuasive character as would lead to such a conclusion. Absent

such a showing, the presumption of validity must prevail.

(Sison, Jr. v. Ancheta, 130 SCRA at 661)

Adjudication of these broad claims must await the development of a concrete case. It may be

that postponement of adjudication would result in a multiplicity of suits. This need not be the

case, however. Enforcement of the law may give rise to such a case. A test case, provided it is

an actual case and not an abstract or hypothetical one, may thus be presented.

Nor is hardship to taxpayers alone an adequate justification for adjudicating abstract issues.

Otherwise, adjudication would be no different from the giving of advisory opinion that does not

really settle legal issues.

We are told that it is our duty under Art. VIII, §1, ¶2 to decide whenever a claim is made that

"there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the

part of any branch or instrumentality of the government." This duty can only arise if an actual

case or controversy is before us. Under Art . VIII, §5 our jurisdiction is defined in terms of

"cases" and all that Art. VIII, §1, ¶2 can plausibly mean is that in the exercise of that jurisdiction

we have the judicial power to determine questions of grave abuse of discretion by any branch or

instrumentality of the government.

Put in another way, what is granted in Art. VIII, §1, ¶2 is "judicial power," which is "the power of

a court to hear and decide cases pending between parties who have the right to sue and be

sued in the courts of law and equity" (Lamb v. Phipps, 22 Phil. 456, 559 (1912)), as

distinguished from legislative and executive power. This power cannot be directly appropriated

until it is apportioned among several courts either by the Constitution, as in the case of Art. VIII ,

§5, or by statute, as in the case of the Judiciary Act of 1948 (R.A. No. 296) and the Judiciary

Reorganization Act of 1980 (B.P. Blg. 129). The power thus apportioned constitutes the court's

"jurisdiction," defined as "the power conferred by law upon a court or judge to take cognizance

of a case, to the exclusion of all others." (United States v. Arceo, 6 Phil. 29 (1906)) Without an

actual case coming within its jurisdiction, this Court cannot inquire into any allegation of grave

abuse of discretion by the other departments of the government.

VIII. Alleged violation of policy towards cooperatives. On the other hand, the Cooperative Union

of the Philippines (CUP), after briefly surveying the course of legislation, argues that it was to

adopt a definite policy of granting tax exemption to cooperatives that the present Constitution

embodies provisions on cooperatives. To subject cooperatives to the VAT would therefore be to

infringe a constitutional policy. Petitioner claims that in 1973, P.D. No. 175 was promulgated

exempting cooperatives from the payment of income taxes and sales taxes but in 1984,

because of the crisis which menaced the national economy, this exemption was withdrawn by

P.D. No. 1955; that in 1986, P.D. No. 2008 again granted cooperatives exemption from income

and sales taxes until December 31, 1991, but, in the same year, E.O. No. 93 revoked the

exemption; and that finally in 1987 the framers of the Constitution "repudiated the previous

actions of the government adverse to the interests of the cooperatives, that is, the repeated

revocation of the tax exemption to cooperatives and instead upheld the policy of strengthening

the cooperatives by way of the grant of tax exemptions," by providing the following in Art. XII:

§1. The goals of the national economy are a more equitable distribution of opportunities,

income, and wealth; a sustained increase in the amount of goods and services produced

by the nation for the benefit of the people; and an expanding productivity as the key to

raising the quality of life for all, especially the underprivileged.

The State shall promote industrialization and full employment based on sound agricultural

development and agrarian reform, through industries that make full and efficient use of human

and natural resources, and which are competitive in both domestic and foreign markets.

However, the State shall protect Filipino enterprises against unfair foreign competition and trade

practices.

In the pursuit of these goals, all sectors of the economy and all regions of the country shall be

given optimum opportunity to develop. Private enterprises, including corporations, cooperatives,

and similar collective organizations, shall be encouraged to broaden the base of their ownership.

§15. The Congress shall create an agency to promote the viability and growth of cooperatives

as instruments for social justice and economic development.

Petitioner's contention has no merit. In the first place, it is not true that P.D. No. 1955 singled

out cooperatives by withdrawing their exemption from income and sales taxes under P.D. No.

175, §5. What P.D. No. 1955, §1 did was to withdraw the exemptions and preferential

treatments theretofore granted to private business enterprises in general, in view of the

economic crisis which then beset the nation. It is true that after P.D. No. 2008, §2 had restored

the tax exemptions of cooperatives in 1986, the exemption was again repealed by E.O. No. 93,

§1, but then again cooperatives were not the only ones whose exemptions were withdrawn. The

withdrawal of tax incentives applied to all, including government and private entities . In the

second place, the Constitution does not really require that cooperatives be granted tax

exemptions in order to promote their growth and viability. Hence, there is no basis for

petitioner's assertion that the government's policy toward cooperatives had been one of

vacillation, as far as the grant of tax privileges was concerned, and that it was to put an end to

this indecision that the constitutional provisions cited were adopted. Perhaps as a matter of

policy cooperatives should be granted tax exemptions, but that is left to the discretion of

Congress. If Congress does not grant exemption and there is no discrimination to cooperatives,

no violation of any constitutional policy can be charged.

Indeed, petitioner's theory amounts to saying that under the Constitution cooperatives are

exempt from taxation. Such theory is contrary to the Constitution under which only the following

are exempt from taxation: charitable institutions, churches and parsonages, by reason of Art. VI,

§28 (3), and non-stock, non-profit educational institutions by reason of Art. XIV, §4 (3).

CUP's further ground for seeking the invalidation of R.A. No. 7716 is that it denies cooperatives

the equal protection of the law because electric cooperatives are exempted from the VAT. The

classification between electric and other cooperatives (farmers cooperatives, producers

cooperatives, marketing cooperatives, etc.) apparently rests on a congressional determination

that there is greater need to provide cheaper electric power to as many people as possible,

especially those living in the rural areas, than there is to provide them with other necessities in

life. We cannot say that such classification is unreasonable.

We have carefully read the various arguments raised against the constitutional validity of R.A.

No. 7716. We have in fact taken the extraordinary step of enjoining its enforcement pending

resolution of these cases. We have now come to the conclusion that the law suffers from none

of the infirmities attributed to it by petitioners and that its enactment by the other branches of the

government does not constitute a grave abuse of discretion. Any question as to its necessity,

desirability or expediency must be addressed to Congress as the body which is electorally

responsible, remembering that, as Justice Holmes has said, "legislators are the ultimate

guardians of the liberties and welfare of the people in quite as great a degree as are the courts."

(Missouri, Kansas & Texas Ry. Co. v. May, 194 U.S. 267, 270, 48 L. Ed. 971, 973 (1904)). It is

not right, as petitioner in G.R. No. 115543 does in arguing that we should enforce the public

accountability of legislators, that those who took part in passing the law in question by voting for

it in Congress should later thrust to the courts the burden of reviewing measures in the flush of

enactment. This Court does not sit as a third branch of the legislature, much less exercise a

veto power over legislation.

WHEREFORE, the motions for reconsideration are denied with finality and the temporary

restraining order previously issued is hereby lifted.

SO ORDERED.

Narvasa, C.J., Feliciano, Melo, Kapunan, Francisco and Hermosisima, Jr., JJ., concur.

Padilla and Vitug, JJ., maintained their separate opinion.

Regalado, Davide, Jr., Romero, Bellosillo and Puno, JJ, maintained their dissenting opinion.

Panganiban, J., took no part.

Republic of the Philippines

SUPREME COURT

Manila

SECOND DIVISION

G.R. No. 130230 April 15, 2005

METROPOLITAN MANILA DEVELOPMENT AUTHORITY, Petitioner,

vs.

DANTE O. GARIN, respondent.

D E C I S I O N

CHICO-NAZARIO, J.:

At issue in this case is the validity of Section 5(f) of Republic Act No. 7924 creating the

Metropolitan Manila Development Authority (MMDA), which authorizes it to confiscate and

suspend or revoke driver's licenses in the enforcement of traffic laws and regulations.

The issue arose from an incident involving the respondent Dante O. Garin, a lawyer, who was

issued a traffic violation receipt (TVR) and his driver's license confiscated for parking illegally

along Gandara Street, Binondo, Manila, on 05 August 1995. The following statements were

printed on the TVR:

You are hereby directed to report to the MMDA Traffic Operations Center Port Area Manila after

48 hours from date of apprehension for disposition/appropriate action thereon. Criminal case

shall be filed for failure to redeem license after 30 days.

Valid as temporary DRIVER'S license for seven days from date of apprehension.1

Shortly before the expiration of the TVR's validity, the respondent addressed a letter2 to then

MMDA Chairman Prospero Oreta requesting the return of his driver's license, and expressing

his preference for his case to be filed in court.

Receiving no immediate reply, Garin filed the original complaint3 with application for preliminary

injunction in Branch 260 of the Regional Trial Court (RTC) of Parañaque, on 12 September

1995, contending that, in the absence of any implementing rules and regulations, Sec. 5(f) of

Rep. Act No. 7924 grants the MMDA unbridled discretion to deprive erring motorists of their

licenses, pre-empting a judicial determination of the validity of the deprivation, thereby violating

the due process clause of the Constitution. The respondent further contended that the provision

violates the constitutional prohibition against undue delegation of legislative authority, allowing

as it does the MMDA to fix and impose unspecified – and therefore unlimited - fines and other

penalties on erring motorists.

In support of his application for a writ of preliminary injunction, Garin alleged that he suffered

and continues to suffer great and irreparable damage because of the deprivation of his license

and that, absent any implementing rules from the Metro Manila Council, the TVR and the

confiscation of his license have no legal basis.

For its part, the MMDA, represented by the Office of the Solicitor General, pointed out that the

powers granted to it by Sec. 5(f) of Rep. Act No. 7924 are limited to the fixing, collection and

imposition of fines and penalties for traffic violations, which powers are legislative and executive

in nature; the judiciary retains the right to determine the validity of the penalty imposed. It

further argued that the doctrine of separation of powers does not preclude "admixture" of the

three powers of government in administrative agencies.4

The MMDA also refuted Garin's allegation that the Metro Manila Council, the governing board

and policy making body of the petitioner, has as yet to formulate the implementing rules for Sec.

5(f) of Rep. Act No. 7924 and directed the court's attention to MMDA Memorandum Circular No.

TT-95-001 dated 15 April 1995. Respondent Garin, however, questioned the validity of MMDA

Memorandum Circular No. TT-95-001, as he claims that it was passed by the Metro Manila

Council in the absence of a quorum.

Judge Helen Bautista-Ricafort issued a temporary restraining order on 26 September 1995,

extending the validity of the TVR as a temporary driver's license for twenty more days. A

preliminary mandatory injunction was granted on 23 October 1995, and the MMDA was directed

to return the respondent's driver's license.

On 14 August 1997, the trial court rendered the assailed decision5 in favor of the herein

respondent and held that:

a. There was indeed no quorum in that First Regular Meeting of the MMDA Council held on

March 23, 1995, hence MMDA Memorandum Circular No. TT-95-001, authorizing confiscation

of driver's licenses upon issuance of a TVR, is void ab initio.

b. The summary confiscation of a driver's license without first giving the driver an

opportunity to be heard; depriving him of a property right (driver's license) without DUE

PROCESS; not filling (sic) in Court the complaint of supposed traffic infraction, cannot be

justified by any legislation (and is) hence unconstitutional.

WHEREFORE, the temporary writ of preliminary injunction is hereby made permanent; th(e)

MMDA is directed to return to plaintiff his driver's license; th(e) MMDA is likewise ordered to

desist from confiscating driver's license without first giving the driver the opportunity to be heard

in an appropriate proceeding.

In filing this petition,6 the MMDA reiterates and reinforces its argument in the court below and

contends that a license to operate a motor vehicle is neither a contract nor a property right, but

is a privilege subject to reasonable regulation under the police power in the interest of the public

safety and welfare. The petitioner further argues that revocation or suspension of this privilege

does not constitute a taking without due process as long as the licensee is given the right to

appeal the revocation.

To buttress its argument that a licensee may indeed appeal the taking and the judiciary retains

the power to determine the validity of the confiscation, suspension or revocation of the license,

the petitioner points out that under the terms of the confiscation, the licensee has three options:

1. To voluntarily pay the imposable fine,

2. To protest the apprehension by filing a protest with the MMDA Adjudication Committee, or

3. To request the referral of the TVR to the Public Prosecutor's Office.

The MMDA likewise argues that Memorandum Circular No. TT-95-001 was validly passed in the

presence of a quorum, and that the lower court's finding that it had not was based on a

"misapprehension of facts," which the petitioner would have us review. Moreover, it asserts that

though the circular is the basis for the issuance of TVRs, the basis for the summary confiscation

of licenses is Sec. 5(f) of Rep. Act No. 7924 itself, and that such power is self-executory and

does not require the issuance of any implementing regulation or circular.

Meanwhile, on 12 August 2004, the MMDA, through its Chairman Bayani Fernando,

implemented Memorandum Circular No. 04, Series of 2004, outlining the procedures for the use

of the Metropolitan Traffic Ticket (MTT) scheme. Under the circular, erring motorists are issued

an MTT, which can be paid at any Metrobank branch. Traffic enforcers may no longer

confiscate drivers' licenses as a matter of course in cases of traffic violations. All motorists with

unredeemed TVRs were given seven days from the date of implementation of the new system

to pay their fines and redeem their license or vehicle plates.7

It would seem, therefore, that insofar as the absence of a prima facie case to enjoin the

petitioner from confiscating drivers' licenses is concerned, recent events have overtaken the

Court's need to decide this case, which has been rendered moot and academic by the

implementation of Memorandum Circular No. 04, Series of 2004.

The petitioner, however, is not precluded from re-implementing Memorandum Circular No. TT-

95-001, or any other scheme, for that matter, that would entail confiscating drivers' licenses.

For the proper implementation, therefore, of the petitioner's future programs, this Court deems it

appropriate to make the following observations:

1. A license to operate a motor vehicle is a privilege that the state may withhold in the

exercise of its police power.

The petitioner correctly points out that a license to operate a motor vehicle is not a property right,

but a privilege granted by the state, which may be suspended or revoked by the state in the

exercise of its police power, in the interest of the public safety and welfare, subject to the

procedural due process requirements. This is consistent with our rulings in Pedro v. Provincial

Board of Rizal8 on the license to operate a cockpit, Tan v. Director of Forestry9 andOposa v.

Factoran10 on timber licensing agreements, and Surigao Electric Co., Inc. v. Municipality of

Surigao11 on a legislative franchise to operate an electric plant.

Petitioner cites a long list of American cases to prove this point, such as State ex. Rel.

Sullivan,12 which states in part that, "the legislative power to regulate travel over the highways

and thoroughfares of the state for the general welfare is extensive. It may be exercised in any

reasonable manner to conserve the safety of travelers and pedestrians. Since motor vehicles

are instruments of potential danger, their registration and the licensing of their operators have

been required almost from their first appearance. The right to operate them in public places is

not a natural and unrestrained right, but a privilege subject to reasonable regulation, under the

police power, in the interest of the public safety and welfare. The power to license imports

further power to withhold or to revoke such license upon noncompliance with prescribed

conditions."

Likewise, the petitioner quotes the Pennsylvania Supreme Court in Commonwealth v. Funk,13 to

the effect that: "Automobiles are vehicles of great speed and power. The use of them

constitutes an element of danger to persons and property upon the highways. Carefully

operated, an automobile is still a dangerous instrumentality, but, when operated by careless or

incompetent persons, it becomes an engine of destruction. The Legislature, in the exercise of

the police power of the commonwealth, not only may, but must, prescribe how and by whom

motor vehicles shall be operated on the highways. One of the primary purposes of a system of

general regulation of the subject matter, as here by the Vehicle Code, is to insure the

competency of the operator of motor vehicles. Such a general law is manifestly directed to the

promotion of public safety and is well within the police power."

The common thread running through the cited cases is that it is the legislature, in the exercise of

police power, which has the power and responsibility to regulate how and by whom motor

vehicles may be operated on the state highways.

2. The MMDA is not vested with police power.

In Metro Manila Development Authority v. Bel-Air Village Association, Inc.,14 we categorically

stated that Rep. Act No. 7924 does not grant the MMDA with police power, let alone legislative

power, and that all its functions are administrative in nature.

The said case also involved the herein petitioner MMDA which claimed that it had the authority

to open a subdivision street owned by the Bel-Air Village Association, Inc. to public traffic

because it is an agent of the state endowed with police power in the delivery of basic services in

Metro Manila. From this premise, the MMDA argued that there was no need for the City of

Makati to enact an ordinance opening Neptune Street to the public.

Tracing the legislative history of Rep. Act No. 7924 creating the MMDA, we concluded that the

MMDA is not a local government unit or a public corporation endowed with legislative power,

and, unlike its predecessor, the Metro Manila Commission, it has no power to enact ordinances

for the welfare of the community. Thus, in the absence of an ordinance from the City of Makati,

its own order to open the street was invalid.

We restate here the doctrine in the said decision as it applies to the case at bar: police power,

as an inherent attribute of sovereignty, is the power vested by the Constitution in the legislature

to make, ordain, and establish all manner of wholesome and reasonable laws, statutes and

ordinances, either with penalties or without, not repugnant to the Constitution, as they shall

judge to be for the good and welfare of the commonwealth, and for the subjects of the same.

Having been lodged primarily in the National Legislature, it cannot be exercised by any group or

body of individuals not possessing legislative power. The National Legislature, however, may

delegate this power to the president and administrative boards as well as the lawmaking bodies

of municipal corporations or local government units (LGUs). Once delegated, the agents can

exercise only such legislative powers as are conferred on them by the national lawmaking body.

Our Congress delegated police power to the LGUs in the Local Government Code of 1991.15 A

local government is a "political subdivision of a nation or state which is constituted by law and

has substantial control of local affairs."16Local government units are the provinces, cities,

municipalities and barangays, which exercise police power through their respective legislative

bodies.

Metropolitan or Metro Manila is a body composed of several local government units. With the

passage of Rep. Act No. 7924 in 1995, Metropolitan Manila was declared as a "special

development and administrative region" and the administration of "metro-wide" basic services

affecting the region placed under "a development authority" referred to as the MMDA. Thus:

. . . [T]he powers of the MMDA are limited to the following acts: formulation, coordination,

regulation, implementation, preparation, management, monitoring, setting of policies, installation

of a system and administration. There is no syllable in R. A. No. 7924 that grants the MMDA

police power, let alone legislative power. Even the Metro Manila Council has not been

delegated any legislative power. Unlike the legislative bodies of the local government units,

there is no provision in R. A. No. 7924 that empowers the MMDA or its Council to "enact

ordinances, approve resolutions and appropriate funds for the general welfare" of the

inhabitants of Metro Manila. The MMDA is, as termed in the charter itself, a "development

authority." It is an agency created for the purpose of laying down policies and

coordinating with the various national government agencies, people's organizations,

non-governmental organizations and the private sector for the efficient and expeditious

delivery of basic services in the vast metropolitan area. All its functions are

administrative in nature and these are actually summed up in the charter itself, viz:

"Sec. 2. Creation of the Metropolitan Manila Development Authority. -- -x x x.

The MMDA shall perform planning, monitoring and coordinative functions, and in the

process exercise regulatory and supervisory authority over the delivery of metro-wide

services within Metro Manila, without diminution of the autonomy of the local government

units concerning purely local matters."

….

Clearly, the MMDA is not a political unit of government. The power delegated to the MMDA is

that given to the Metro Manila Council to promulgate administrative rules and regulations in the

implementation of the MMDA's functions. There is no grant of authority to enact ordinances

and regulations for the general welfare of the inhabitants of the metropolis. 17 (footnotes

omitted, emphasis supplied)

Therefore, insofar as Sec. 5(f) of Rep. Act No. 7924 is understood by the lower court and by the

petitioner to grant the MMDA the power to confiscate and suspend or revoke drivers' licenses

without need of any other legislative enactment, such is an unauthorized exercise of police

power.

3. Sec. 5(f) grants the MMDA with the duty to enforce existing traffic rules and regulations.

Section 5 of Rep. Act No. 7924 enumerates the "Functions and Powers of the Metro Manila

Development Authority." The contested clause in Sec. 5(f) states that the petitioner shall "install

and administer a single ticketing system, fix, impose and collect fines and penalties for all kinds

of violations of traffic rules and regulations, whether moving or nonmoving in nature, and

confiscate and suspend or revoke drivers' licenses in the enforcement of such traffic laws and

regulations, the provisions of Rep. Act No. 413618 and P.D. No. 160519 to the contrary

notwithstanding," and that "(f)or this purpose, the Authority shall enforce all traffic laws and

regulations in Metro Manila, through its traffic operation center, and may deputize members of

the PNP, traffic enforcers of local government units, duly licensed security guards, or members

of non-governmental organizations to whom may be delegated certain authority, subject to such

conditions and requirements as the Authority may impose."

Thus, where there is a traffic law or regulation validly enacted by the legislature or those

agencies to whom legislative powers have been delegated (the City of Manila in this case), the

petitioner is not precluded – and in fact is duty-bound – to confiscate and suspend or revoke

drivers' licenses in the exercise of its mandate of transport and traffic management, as well as

the administration and implementation of all traffic enforcement operations, traffic engineering

services and traffic education programs.20

This is consistent with our ruling in Bel-Air that the MMDA is a development authority created for

the purpose of laying down policies and coordinating with the various national government

agencies, people's organizations, non-governmental organizations and the private sector, which

may enforce, but not enact, ordinances.

This is also consistent with the fundamental rule of statutory construction that a statute is to be

read in a manner that would breathe life into it, rather than defeat it,21 and is supported by the

criteria in cases of this nature that all reasonable doubts should be resolved in favor of the

constitutionality of a statute.22

A last word. The MMDA was intended to coordinate services with metro-wide impact that

transcend local political boundaries or would entail huge expenditures if provided by the

individual LGUs, especially with regard to transport and traffic management,23 and we are aware

of the valiant efforts of the petitioner to untangle the increasingly traffic-snarled roads of Metro

Manila. But these laudable intentions are limited by the MMDA's enabling law, which we can

but interpret, and petitioner must be reminded that its efforts in this respect must be authorized

by a valid law, or ordinance, or regulation arising from a legitimate source.

WHEREFORE, the petition is dismissed.

SO ORDERED.

Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

Footnotes

1 Records, p. 10.

2 Id., p. 11.

3 Id., p. 1.

4 Memorandum for Defendants, Records, pp. 178 -185.

5 Id., pp. 187-190, penned by Hon. Helen Bautista-Ricafort.

6 Records, pp. 197-225.

7 Sec. 7, Mem. Circ. No. 04, Series of 2004.

8 56 Phil 123 (1931).

9 G.R. No. L-24548, 27 October 1983, 125 SCRA 302.

10 G.R. No. 101083, 30 July 1993, 224 SCRA 792.

11 G.R. No. L-22766, 30 August 1968, 24 SCRA 898.

12 63 P. 2d 653, 108 ALR 1156, 1159.

13 323 Pa. 390, 186 A. 65 (108 ALR 1161).

14 G.R. No. 135962, 27 March 2000, 328 SCRA 836, penned by Justice Reynato S. Puno.

15 Sec. 16 of Book I of the Local Government Code of 1991 states:

General Welfare.-Every local government unit shall exercise the powers expressly granted,

those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for

its efficient and effective governance, and those which are essential to the promotion of the

general welfare. Within their respective territorial jurisdictions, local government units shall

ensure and support, among other things, the preservation and enrichment of culture, promote

health and safety, enhance the right of the people to a balanced ecology, encourage and

support the development of appropriate and self-reliant scientific and technological capabilities,

improve public morals, enhance economic prosperity and social justice, promote full

employment among their residents, maintain peace and order, and preserve the comfort and

convenience of their inhabitants.

16 Supra, Note 18, p. 844, citing Bernas, The 1987 Constitution of the Philippines, A

Commentary, pp. 95-98 [1996], citing UP Law Center Revision Project, Part II, 712 [1970] citing

Sady, "Improvement of Local Government Administration for Development Purpose," Journal of

Local Administration Overseas 135 [July 1962].

17 Ibid., pp. 849-860.

18 Entitled "An Act to Compile the Laws Relative to Land Transportation and Traffic Rules, to

Create a Land Transportation Commission and for Other Purposes," approved on 20 June 1964.

Sec. 29 thereof states:

Confiscation of driver's license.- Law enforcement and peace officers duly designated by

the Commissioner shall, in apprehending any driver for violations of this Act or of any

regulations issued pursuant thereto, or of local traffic rules and regulations, confiscate

the license of the driver concerned and issue a receipt prescribed and issued by the

Commission therefore which shall authorize the driver to operate a motor vehicle for a

period not exceeding seventy-two hours from the time and date of issue of said receipt.

The period so fixed in the receipt shall not be extended, and shall become invalid

thereafter. Failure of the driver to settle his case within fifteen days from the date of

apprehension will cause suspension and revocation of his license. (emphasis supplied)

19 Entitled "Granting the Metropolitan Manila Commission Certain Powers Related to Traffic

Management and Control in Metropolitan Manila, Providing Penalties, and for Other Purposes,"

dated 21 November 1978.

SEC. 5.- In case of traffic violations, the driver's license shall not be confiscated but the

erring driver shall be immediately issued a traffic citation ticket prescribed by the

Metropolitan Manila Commissionwhich shall state the violation committed, the amount of

fine imposed for the violation and an advice that he can make payment to the city or

municipal treasurer where the violation was committed or to the Philippine National Bank

or Philippine Veteran's Bank or their branches within seven days from the date of

issuance of the citation ticket. (emphasis supplied)

20 Section 3(b), Rep. Act No. 7924.

21 Thus, in Briad Agro Development Corporation v. dela Serna, (G.R. No. 82805, 29 June 1989,

174 SCRA 524) we upheld the grant of concurrent jurisdiction between the Secretary of Labor

or its Regional Directors and the Labor Arbiters to pass upon money claims, among other cases,

"the provisions of Article 217 of this Code to the contrary notwithstanding," as enunciated in

Executive Order No. 111. Holding that E.O. 111 was a curative law intended to widen worker's

access to the Government for redress of grievances, we held,"…the Executive Order vests in

Regional Directors jurisdiction, '[t]he provisions of Article 217 of this Code to the contrary

notwithstanding,' it would have rendered such a proviso - and the amendment itself - useless to

say that they (Regional Directors) retained the self-same restricted powers, despite such an

amendment. It is fundamental that a statute is to be read in a manner that would breathe life

into it, rather than defeat it." (See also Philtread Workers Union v. Confessor, G.R. No. 117169,

12 March 1997, 269 SCRA 393.)

22 In Heirs of Ardona v. Reyes, (G.R. No. 60549, 26 October 1983, 125 SCRA 221) we upheld

the constitutionality of Presidential Decree No. 564, the Revised Charter of the Philippine

Tourism Authority, and Proclamation No. 2052 declaring certain municipalities in the province of

Cebu as tourist zones. The law granted the Philippine Tourism authority the right to expropriate

282 hectares of land to establish a resort complex notwithstanding the claim that certificates of

land transfer and emancipation patents had already been issued to them thereby making the

lands expropriated within the coverage of the land reform area under Presidential Decree No. 2,

and that the agrarian reform program occupies a higher level in the order of priorities than other

State policies like those relating to the health and physical well-being of the people, and that

property already taken for public use may not be taken for another public use. We held that,

"(t)he petitioners have failed to overcome the burden of anyone trying to strike down a statute or

decree whose avowed purpose is the legislative perception of the public good. A statute has in

its favor the presumption of validity. All reasonable doubts should be resolved in favor of the

constitutionality of a law. The courts will not set aside a law as violative of the Constitution

except in a clear case (People v. Vera, 65 Phil. 56). And in the absence of factual findings or

evidence to rebut the presumption of validity, the presumption prevails (Ermita-Malate Hotel, etc.

v. Mayor of Manila, 20 SCRA 849; Morfe v. Mutuc, 22 SCRA 424)."

In the same manner, we upheld in Dumlao v. COMELEC (G.R. No. L-52245, 22 January 1980,

95 SCRA 392) the first paragraph of Section 4 of Batas Pambansa Bilang 52 providing that any

retired elective provincial, city or municipal official, who has received payment of the retirement

benefits and who shall have been 65 years of age at the commencement of the term of office to

which he seeks to be elected is disqualified to run for the same elective local office from which

he has retired. Invoking the need for the emergence of younger blood in local politics, we

affirmed that the constitutional guarantee is not violated by a reasonable classification based

upon substantial distinctions, where the classification is germane to the purpose of the law and

applies to all those belonging to the same class. (See also Tropical Homes, Inc, v. National

Housing Authority, G.R. No. L-48672, 31 July 1987 152 SCRA 540; Peralta v. COMELEC, G.R.

No. L-47791, 11 March 1978, 82 SCRA 55; People v. Vera, GR No. 45685, 65 Phil 56 [1937].)

23 Section 3(b), Republic Act No. 7924.

Republic of the Philippines

SUPREME COURT

Manila

THIRD DIVISION

G.R. No. 97995 January 21, 1993

PHILIPPINE NATIONAL BANK, petitioner,

vs.

COURT OF APPEALS AND B.P. MATA AND CO., INC., respondents.

Roland A. Niedo for petitioner.

Benjamin C. Santos Law Office for respondent.

ROMERO, J.:

Rarely is this Court confronted with a case calling for the delineation in broad strokes of the

distinctions between such closely allied concepts as the quasi-contract called "solutio indebiti"

under the venerable Spanish Civil Code and the species of implied trust denominated

"constructive trusts," commonly regarded as of Anglo-American origin. Such a case is the one

presented to us now which has highlighted more of the affinity and less of the dissimilarity

between the two concepts as to lead the legal scholar into the error of interchanging the two.

Presented below are the factual circumstances that brought into juxtaposition the twin

institutions of the Civil Law quasi-contract and the Anglo-American trust.

Private Respondent B.P. Mata & Co. Inc. (Mata), is a private corporation engaged in providing

goods and services to shipping companies. Since 1966, it has acted as a manning or crewing

agent for several foreign firms, one of which is Star Kist Foods, Inc., USA (Star Kist). As part of

their agreement, Mata makes advances for the crew's medical expenses, National Seaman's

Board fees, Seaman's Welfare fund, and standby fees and for the crew's basic personal needs.

Subsequently, Mata sends monthly billings to its foreign principal Star Kist, which in turn

reimburses Mata by sending a telegraphic transfer through banks for credit to the latter's

account.

Against this background, on February 21, 1975, Security Pacific National Bank (SEPAC) of Los

Angeles which had an agency arrangement with Philippine National Bank (PNB), transmitted a

cable message to the International Department of PNB to pay the amount of US$14,000 to Mata

by crediting the latter's account with the Insular Bank of Asia and America (IBAA), per order of

Star Kist. Upon receipt of this cabled message on February 24, 1975, PNB's International

Department noticed an error and sent a service message to SEPAC Bank. The latter replied

with instructions that the amount of US$14,000 should only be for US$1,400.

On the basis of the cable message dated February 24, 1975 Cashier's Check No. 269522 in the

amount of US$1,400 (P9,772.95) representing reimbursement from Star Kist, was issued by the

Star Kist for the account of Mata on February 25, 1975 through the Insular Bank of Asia and

America (IBAA).

However, fourteen days after or on March 11, 1975, PNB effected another payment through

Cashier's Check No. 270271 in the amount of US$14,000 (P97,878.60) purporting to be another

transmittal of reimbursement from Star Kist, private respondent's foreign principal.

Six years later, or more specifically, on May 13, 1981, PNB requested Mata for refund of

US$14,000 (P97,878.60) after it discovered its error in effecting the second payment.

On February 4, 1982, PNB filed a civil case for collection and refund of US$14,000 against Mata

arguing that based on a constructive trust under Article 1456 of the Civil Code, it has a right to

recover the said amount it erroneously credited to respondent Mata. 1

After trial, the Regional Trial Court of Manila rendered judgment dismissing the complaint ruling

that the instant case falls squarely under Article 2154 on solutio indebiti and not under Article

1456 on constructive trust. The lower court ruled out constructive trust, applying strictly the

technical definition of a trust as "a right of property, real or personal, held by one party for the

benefit of another; that there is a fiduciary relation between a trustee and a cestui que trustas

regards certain property, real, personal, money or choses in action." 2

In affirming the lower court, the appellate court added in its opinion that under Article 2154 on

solutio indebiti, the person who makes the payment is the one who commits the mistake vis-a-

vis the recipient who is unaware of such a mistake. 3 Consequently, recipient is duty bound to

return the amount paid by mistake. But the appellate court concluded that petitioner's demand

for the return of US$14,000 cannot prosper because its cause of action had already prescribed

under Article 1145, paragraph 2 of the Civil Code which states:

The following actions must be commenced within six years:

xxx xxx xxx

(2) Upon a quasi-contract.

This is because petitioner's complaint was filed only on February 4, 1982, almost seven years

after March 11, 1975 when petitioner mistakenly made payment to private respondent.

Hence, the instant petition for certiorari proceeding seeking to annul the decision of the

appellate court on the basis that Mata's obligation to return US$14,000 is governed, in the

alternative, by either Article 1456 on constructive trust or Article 2154 of the Civil Code on quasi-

contract. 4

Article 1456 of the Civil Code provides:

If property is acquired through mistake or fraud, the person obtaining it is, by force of law,

considered a trustee of an implied trust for the benefit of the person from whom the

property comes.

On the other hand, Article 2154 states:

If something is received when there is no right to demand it, and it was unduly delivered

through mistake, the obligation to return it arises.

Petitioner naturally opts for an interpretation under constructive trust as its action filed on

February 4, 1982 can still prosper, as it is well within the prescriptive period of ten (10) years as

provided by Article 1144, paragraph 2 of the Civil Code. 5

If it is to be construed as a case of payment by mistake or solutio indebiti, then the prescriptive

period for quasi-contracts of six years applies, as provided by Article 1145. As pointed out by

the appellate court, petitioner's cause of action thereunder shall have prescribed, having been

brought almost seven years after the cause of action accrued. However, even assuming that the

instant case constitutes a constructive trust and prescription has not set in, the present action

has already been barred by laches.

To recall, trusts are either express or implied. While express trusts are created by the intention

of the trustor or of the parties, implied trusts come into being by operation of law. 6 Implied trusts

are those which, without being expressed, are deducible from the nature of the transaction as

matters of intent or which are superinduced on the transaction by operation of law as matters of

equity, independently of the particular intention of the parties. 7

A deeper analysis of Article 1456 reveals that it is not a trust in the technical sense 12 for in a

typical trust, confidence is reposed in one person who is named a trustee for the benefit of

another who is called the cestui que trust, respecting property which is held by the trustee for

the benefit of the cestui que trust. 13 A constructive trust, unlike an express trust, does not

emanate from, or generate a fiduciary relation. While in an express trust, a beneficiary and a

trustee are linked by confidential or fiduciary relations, in a constructive trust, there is neither a

promise nor any fiduciary relation to speak of and the so-called trustee neither accepts any trust

nor intends holding the property for the beneficiary. 14

In the case at bar, Mata, in receiving the US$14,000 in its account through IBAA, had no intent

of holding the same for a supposed beneficiary or cestui que trust, namely PNB. But under

Article 1456, the law construes a trust, namely a constructive trust, for the benefit of the person

from whom the property comes, in this case PNB, for reasons of justice and equity.

At this juncture, a historical note on the codal provisions on trust and quasi-contracts is in order.

Originally, under the Spanish Civil Code, there were only two kinds of quasi contracts:

negotiorum gestio and solutio indebiti. But the Code Commission, mindful of the position of the

eminent Spanish jurist, Manresa, that "the number of quasi contracts may be indefinite," added

Section 3 entitled "Other Quasi-Contracts." 15

Moreover, even as Article 2142 of the Civil Code defines a quasi-contract, the succeeding

article provides that: "The provisions for quasi-contracts in this Chapter do not exclude other

quasi-contracts which may come within the purview of the preceding article." 16

Indubitably, the Civil Code does not confine itself exclusively to the quasi-contracts enumerated

from Articles 2144 to 2175 but is open to the possibility that, absent a pre-existing relationship,

there being neither crime nor quasi-delict, a quasi-contractual relation may be forced upon the

parties to avoid a case of unjust enrichment. 17 There being no express consent, in the sense of

a meeting of minds between the parties, there is no contract to speak of. However, in view of

the peculiar circumstances or factual environment, consent is presumed to the end that a

recipient of benefits or favors resulting from lawful, voluntary and unilateral acts of another may

not be unjustly enriched at the expense of another.

Undoubtedly, the instant case fulfills the indispensable requisites of solutio indebiti as defined in

Article 2154 that something (in this case money) has been received when there was no right to

demand it and (2) the same was unduly delivered through mistake. There is a presumption that

there was a mistake in the payment "if something which had never been due or had already

been paid was delivered; but he from whom the return is claimed may prove that the delivery

was made out of liberality or for any other just cause." 18

In the case at bar, a payment in the corrected amount of US$1,400 through Cashier's Check No.

269522 had already been made by PNB for the account of Mata on February 25, 1975.

Strangely, however, fourteen days later, PNB effected another payment through Cashier's

Check No. 270271 in the amount of US$14,000, this time purporting to be another transmittal of

reimbursement from Star Kist, private respondent's foreign principal.

While the principle of undue enrichment or solutio indebiti, is not new, having been incorporated

in the subject on quasi-contracts in Title XVI of Book IV of the Spanish Civil Code entitled

"Obligations incurred without contract," 19the chapter on Trusts is fairly recent, having been

introduced by the Code Commission in 1949. Although the concept of trusts is nowhere to be

found in the Spanish Civil Code, the framers of our present Civil Code incorporated implied

trusts, which includes constructive trusts, on top of quasi-contracts, both of which embody the

principle of equity above strict legalism. 20

In analyzing the law on trusts, it would be instructive to refer to Anglo-American jurisprudence

on the subject. Under American Law, a court of equity does not consider a constructive trustee

for all purposes as though he were in reality a trustee; although it will force him to return the

property, it will not impose upon him the numerous fiduciary obligations ordinarily demanded

from a trustee of an express trust. 21 It must be borne in mind that in an express trust, the trustee

has active duties of management while in a constructive trust, the duty is merely to surrender

the property.

Still applying American case law, quasi-contractual obligations give rise to a personal liability

ordinarily enforceable by an action at law, while constructive trusts are enforceable by a

proceeding in equity to compel the defendant to surrender specific property. To be sure, the

distinction is more procedural than substantive. 22

Further reflection on these concepts reveals that a constructive "trust" is as much a misnomer

as a "quasi-contract," so far removed are they from trusts and contracts proper, respectively. In

the case of a constructive trust, as in the case of quasi-contract, a relationship is "forced" by

operation of law upon the parties, not because of any intention on their part but in order to

prevent unjust enrichment, thus giving rise to certain obligations not within the contemplation of

the parties. 23

Although we are not quite in accord with the opinion that "the trusts known to American and

English equity jurisprudence are derived from the fidei commissa of the Roman Law," 24 it is safe

to state that their roots are firmly grounded on such Civil Law principles are expressed in the

Latin maxim, "Nemo cum alterius detrimento locupletari potest,"25 particularly the concept of

constructive trust.

Returning to the instant case, while petitioner may indeed opt to avail of an action to enforce a

constructive trust or the quasi-contract of solutio indebiti, it has been deprived of a choice, for

prescription has effectively blocked quasi-contract as an alternative, leaving only constructive

trust as the feasible option.

Petitioner argues that the lower and appellate courts cannot indulge in semantics by holding that

in Article 1456 the recipient commits the mistake while in Article 2154, the recipient commits no

mistake. 26 On the other hand, private respondent, invoking the appellate court's reasoning,

would impress upon us that under Article 1456, there can be no mutual mistake. Consequently,

private respondent contends that the case at bar is one of solutio indebiti and not a constructive

trust.

We agree with petitioner's stand that under Article 1456, the law does not make any distinction

since mutual mistake is a possibility on either side — on the side of either the grantor or the

grantee. 27 Thus, it was error to conclude that in a constructive trust, only the person obtaining

the property commits a mistake. This is because it is also possible that a grantor, like PNB in

the case at hand, may commit the mistake.

Proceeding now to the issue of whether or not petitioner may still claim the US$14,000 it

erroneously paid private respondent under a constructive trust, we rule in the negative. Although

we are aware that only seven (7) years lapsed after petitioner erroneously credited private

respondent with the said amount and that under Article 1144, petitioner is well within the

prescriptive period for the enforcement of a constructive or implied trust, we rule that petitioner's

claim cannot prosper since it is already barred by laches. It is a well-settled rule now that an

action to enforce an implied trust, whether resulting or constructive, may be barred not only by

prescription but also by laches. 28

While prescription is concerned with the fact of delay, laches deals with the effect of

unreasonable delay. 29 It is amazing that it took petitioner almost seven years before it

discovered that it had erroneously paid private respondent. Petitioner would attribute its mistake

to the heavy volume of international transactions handled by the Cable and Remittance Division

of the International Department of PNB. Such specious reasoning is not persuasive. It is

unbelievable for a bank, and a government bank at that, which regularly publishes its balanced

financial statements annually or more frequently, by the quarter, to notice its error only seven

years later. As a universal bank with worldwide operations, PNB cannot afford to commit such

costly mistakes. Moreover, as between parties where negligence is imputable to one and not to

the other, the former must perforce bear the consequences of its neglect. Hence, petitioner

should bear the cost of its own negligence.

WHEREFORE, the decision of the Court of Appeals dismissing petitioner's claim against private

respondent is AFFIRMED.

Costs against petitioner.

SO ORDERED.

Bidin, Davide, Jr. and Melo, JJ., concur.

Gutierrez, Jr., J., concurs in the result.

# Footnotes

1 Records, p. 122.

2 Salao v. Salao, G.R. No. L-26699, March 16, 1976, 70 SCRA 65.

3 Rollo, p. 41.

4 Rollo, p. 27.

5 Article 1144. The following actions must be brought within ten years from the time the right of

action accrues:

xxx xxx xxx

(2) Upon an obligation created by law;

xxx xxx xxx

6 Article 1441, Civil Code.

7 89 CJS 724.

8 89 CJS 722.

9 89 CJS 725.

10 Aquino, Civil Code, Vol. II. pp. 556-557; Ramos v. Ramos, G.R. No. L-19872, December 3,

1974, 61 SCRA 284.

11 Salao v. Salao, G.R. No. L-26699, March 16, 1976, 70 SCRA 65.

12 Ramos v. Ramos, G.R. No. L-19872 December 3, 1974, 61 SCRA 284, citing Gayondato v.

Treasurer of the Philippine Islands, 49 Phil. 244.

13 State ex Wirt v. Superior Court for Spokane Country, 10 Wash. 2d, 362, 116 P. 2d 752, 755,

Article 1440 Civil Code.

14 Diaz v. Goricho, 103 Phil. 261.

15 Report of the Code Commission, p. 60.

16 Article 2143, Civil Code.

17 Report of the Code Commission, pp. 159-160.

18 Article 2163, Civil Code.

19 Lao Chit v. Security and Trust Co. and Consolidated Investment, Inc., 105 Phil. 490.

20 Report of the Code Commission, p. 26.

21 Scott on Trusts, Volume 3, p. 2315.

22 Ibid, p. 2312.

23 Scott on Trusts, Volume 3, p. 2316.

24 Government v. Abadilla, 46 Phil. 642 and Miguel et al v. Court of Appeals,

L-20274, October 30, 1969, 29 SCRA 760.

25 Translated as, "No one should be allowed to enrich himself unjustly at the expense of

another." (Jenk Cent. Cas. 4; 10 Barb. [N.Y.] 626, 633, "Cyclopedic Law Dictionary," 2nd Edition,

p. 688).

26 Rollo, p. 32.

27 Tolentino, Civil Code of the Philippines, Vol. IV, p. 685.

28 Villagonzalo v. IAC, G.R. No. 711110, November 22, 1988, 167 SCRA 535; Perez v. Ong

Chua, No. L-36850, September 23, 1982, 116 SCRA 732, 90 CJS 887-889 and 54 Am Jur., pp.

449-450.

29 Mapa III v. Guanzon, G.R. No. L-25605, June 20, 1977, 77 SCRA 387.

In turn, implied trusts are subdivided into resulting and constructive trusts. 8 A resulting trust is a

trust raised by implication of law and presumed always to have been contemplated by the

parties, the intention of which is found in the nature of the transaction, but not expressed in the

deed or instrument of conveyance. 9 Examples of resulting trusts are found in Articles 1448 to

1455 of the Civil Code. 10 On the other hand, a constructive trust is one not created by words

either expressly or impliedly, but by construction of equity in order to satisfy the demands of

justice. An example of a constructive trust is Article 1456 quoted above. 11

Republic of the Philippines

SUPREME COURT

Manila

THIRD DIVISION

G.R. No. 97995 January 21, 1993

PHILIPPINE NATIONAL BANK, petitioner,

vs.

COURT OF APPEALS AND B.P. MATA AND CO., INC., respondents.

Roland A. Niedo for petitioner.

Benjamin C. Santos Law Office for respondent.

ROMERO, J.:

Rarely is this Court confronted with a case calling for the delineation in broad strokes of the

distinctions between such closely allied concepts as the quasi-contract called "solutio indebiti"

under the venerable Spanish Civil Code and the species of implied trust denominated

"constructive trusts," commonly regarded as of Anglo-American origin. Such a case is the one

presented to us now which has highlighted more of the affinity and less of the dissimilarity

between the two concepts as to lead the legal scholar into the error of interchanging the two.

Presented below are the factual circumstances that brought into juxtaposition the twin

institutions of the Civil Law quasi-contract and the Anglo-American trust.

Private Respondent B.P. Mata & Co. Inc. (Mata), is a private corporation engaged in providing

goods and services to shipping companies. Since 1966, it has acted as a manning or crewing

agent for several foreign firms, one of which is Star Kist Foods, Inc., USA (Star Kist). As part of

their agreement, Mata makes advances for the crew's medical expenses, National Seaman's

Board fees, Seaman's Welfare fund, and standby fees and for the crew's basic personal needs.

Subsequently, Mata sends monthly billings to its foreign principal Star Kist, which in turn

reimburses Mata by sending a telegraphic transfer through banks for credit to the latter's

account.

Against this background, on February 21, 1975, Security Pacific National Bank (SEPAC) of Los

Angeles which had an agency arrangement with Philippine National Bank (PNB), transmitted a

cable message to the International Department of PNB to pay the amount of US$14,000 to Mata

by crediting the latter's account with the Insular Bank of Asia and America (IBAA), per order of

Star Kist. Upon receipt of this cabled message on February 24, 1975, PNB's International

Department noticed an error and sent a service message to SEPAC Bank. The latter replied

with instructions that the amount of US$14,000 should only be for US$1,400.

On the basis of the cable message dated February 24, 1975 Cashier's Check No. 269522 in the

amount of US$1,400 (P9,772.95) representing reimbursement from Star Kist, was issued by the

Star Kist for the account of Mata on February 25, 1975 through the Insular Bank of Asia and

America (IBAA).

However, fourteen days after or on March 11, 1975, PNB effected another payment through

Cashier's Check No. 270271 in the amount of US$14,000 (P97,878.60) purporting to be another

transmittal of reimbursement from Star Kist, private respondent's foreign principal.

Six years later, or more specifically, on May 13, 1981, PNB requested Mata for refund of

US$14,000 (P97,878.60) after it discovered its error in effecting the second payment.

On February 4, 1982, PNB filed a civil case for collection and refund of US$14,000 against Mata

arguing that based on a constructive trust under Article 1456 of the Civil Code, it has a right to

recover the said amount it erroneously credited to respondent Mata. 1

After trial, the Regional Trial Court of Manila rendered judgment dismissing the complaint ruling

that the instant case falls squarely under Article 2154 on solutio indebiti and not under Article

1456 on constructive trust. The lower court ruled out constructive trust, applying strictly the

technical definition of a trust as "a right of property, real or personal, held by one party for the

benefit of another; that there is a fiduciary relation between a trustee and a cestui que trustas

regards certain property, real, personal, money or choses in action." 2

In affirming the lower court, the appellate court added in its opinion that under Article 2154 on

solutio indebiti, the person who makes the payment is the one who commits the mistake vis-a-

vis the recipient who is unaware of such a mistake. 3 Consequently, recipient is duty bound to

return the amount paid by mistake. But the appellate court concluded that petitioner's demand

for the return of US$14,000 cannot prosper because its cause of action had already prescribed

under Article 1145, paragraph 2 of the Civil Code which states:

The following actions must be commenced within six years:

xxx xxx xxx

(2) Upon a quasi-contract.

This is because petitioner's complaint was filed only on February 4, 1982, almost seven years

after March 11, 1975 when petitioner mistakenly made payment to private respondent.

Hence, the instant petition for certiorari proceeding seeking to annul the decision of the

appellate court on the basis that Mata's obligation to return US$14,000 is governed, in the

alternative, by either Article 1456 on constructive trust or Article 2154 of the Civil Code on quasi-

contract. 4

Article 1456 of the Civil Code provides:

If property is acquired through mistake or fraud, the person obtaining it is, by force of law,

considered a trustee of an implied trust for the benefit of the person from whom the

property comes.

On the other hand, Article 2154 states:

If something is received when there is no right to demand it, and it was unduly delivered

through mistake, the obligation to return it arises.

Petitioner naturally opts for an interpretation under constructive trust as its action filed on

February 4, 1982 can still prosper, as it is well within the prescriptive period of ten (10) years as

provided by Article 1144, paragraph 2 of the Civil Code. 5

If it is to be construed as a case of payment by mistake or solutio indebiti, then the prescriptive

period for quasi-contracts of six years applies, as provided by Article 1145. As pointed out by

the appellate court, petitioner's cause of action thereunder shall have prescribed, having been

brought almost seven years after the cause of action accrued. However, even assuming that the

instant case constitutes a constructive trust and prescription has not set in, the present action

has already been barred by laches.

To recall, trusts are either express or implied. While express trusts are created by the intention

of the trustor or of the parties, implied trusts come into being by operation of law. 6 Implied trusts

are those which, without being expressed, are deducible from the nature of the transaction as

matters of intent or which are superinduced on the transaction by operation of law as matters of

equity, independently of the particular intention of the parties. 7

A deeper analysis of Article 1456 reveals that it is not a trust in the technical sense 12 for in a

typical trust, confidence is reposed in one person who is named a trustee for the benefit of

another who is called the cestui que trust, respecting property which is held by the trustee for

the benefit of the cestui que trust. 13 A constructive trust, unlike an express trust, does not

emanate from, or generate a fiduciary relation. While in an express trust, a beneficiary and a

trustee are linked by confidential or fiduciary relations, in a constructive trust, there is neither a

promise nor any fiduciary relation to speak of and the so-called trustee neither accepts any trust

nor intends holding the property for the beneficiary. 14

In the case at bar, Mata, in receiving the US$14,000 in its account through IBAA, had no intent

of holding the same for a supposed beneficiary or cestui que trust, namely PNB. But under

Article 1456, the law construes a trust, namely a constructive trust, for the benefit of the person

from whom the property comes, in this case PNB, for reasons of justice and equity.

At this juncture, a historical note on the codal provisions on trust and quasi-contracts is in order.

Originally, under the Spanish Civil Code, there were only two kinds of quasi contracts:

negotiorum gestio and solutio indebiti. But the Code Commission, mindful of the position of the

eminent Spanish jurist, Manresa, that "the number of quasi contracts may be indefinite," added

Section 3 entitled "Other Quasi-Contracts." 15

Moreover, even as Article 2142 of the Civil Code defines a quasi-contract, the succeeding

article provides that: "The provisions for quasi-contracts in this Chapter do not exclude other

quasi-contracts which may come within the purview of the preceding article." 16

Indubitably, the Civil Code does not confine itself exclusively to the quasi-contracts enumerated

from Articles 2144 to 2175 but is open to the possibility that, absent a pre-existing relationship,

there being neither crime nor quasi-delict, a quasi-contractual relation may be forced upon the

parties to avoid a case of unjust enrichment. 17 There being no express consent, in the sense of

a meeting of minds between the parties, there is no contract to speak of. However, in view of

the peculiar circumstances or factual environment, consent is presumed to the end that a

recipient of benefits or favors resulting from lawful, voluntary and unilateral acts of another may

not be unjustly enriched at the expense of another.

Undoubtedly, the instant case fulfills the indispensable requisites of solutio indebiti as defined in

Article 2154 that something (in this case money) has been received when there was no right to

demand it and (2) the same was unduly delivered through mistake. There is a presumption that

there was a mistake in the payment "if something which had never been due or had already

been paid was delivered; but he from whom the return is claimed may prove that the delivery

was made out of liberality or for any other just cause." 18

In the case at bar, a payment in the corrected amount of US$1,400 through Cashier's Check No.

269522 had already been made by PNB for the account of Mata on February 25, 1975.

Strangely, however, fourteen days later, PNB effected another payment through Cashier's

Check No. 270271 in the amount of US$14,000, this time purporting to be another transmittal of

reimbursement from Star Kist, private respondent's foreign principal.

While the principle of undue enrichment or solutio indebiti, is not new, having been incorporated

in the subject on quasi-contracts in Title XVI of Book IV of the Spanish Civil Code entitled

"Obligations incurred without contract," 19the chapter on Trusts is fairly recent, having been

introduced by the Code Commission in 1949. Although the concept of trusts is nowhere to be

found in the Spanish Civil Code, the framers of our present Civil Code incorporated implied

trusts, which includes constructive trusts, on top of quasi-contracts, both of which embody the

principle of equity above strict legalism. 20

In analyzing the law on trusts, it would be instructive to refer to Anglo-American jurisprudence

on the subject. Under American Law, a court of equity does not consider a constructive trustee

for all purposes as though he were in reality a trustee; although it will force him to return the

property, it will not impose upon him the numerous fiduciary obligations ordinarily demanded

from a trustee of an express trust. 21 It must be borne in mind that in an express trust, the trustee

has active duties of management while in a constructive trust, the duty is merely to surrender

the property.

Still applying American case law, quasi-contractual obligations give rise to a personal liability

ordinarily enforceable by an action at law, while constructive trusts are enforceable by a

proceeding in equity to compel the defendant to surrender specific property. To be sure, the

distinction is more procedural than substantive. 22

Further reflection on these concepts reveals that a constructive "trust" is as much a misnomer

as a "quasi-contract," so far removed are they from trusts and contracts proper, respectively. In

the case of a constructive trust, as in the case of quasi-contract, a relationship is "forced" by

operation of law upon the parties, not because of any intention on their part but in order to

prevent unjust enrichment, thus giving rise to certain obligations not within the contemplation of

the parties. 23

Although we are not quite in accord with the opinion that "the trusts known to American and

English equity jurisprudence are derived from the fidei commissa of the Roman Law," 24 it is safe

to state that their roots are firmly grounded on such Civil Law principles are expressed in the

Latin maxim, "Nemo cum alterius detrimento locupletari potest,"25 particularly the concept of

constructive trust.

Returning to the instant case, while petitioner may indeed opt to avail of an action to enforce a

constructive trust or the quasi-contract of solutio indebiti, it has been deprived of a choice, for

prescription has effectively blocked quasi-contract as an alternative, leaving only constructive

trust as the feasible option.

Petitioner argues that the lower and appellate courts cannot indulge in semantics by holding that

in Article 1456 the recipient commits the mistake while in Article 2154, the recipient commits no

mistake. 26 On the other hand, private respondent, invoking the appellate court's reasoning,

would impress upon us that under Article 1456, there can be no mutual mistake. Consequently,

private respondent contends that the case at bar is one of solutio indebiti and not a constructive

trust.

We agree with petitioner's stand that under Article 1456, the law does not make any distinction

since mutual mistake is a possibility on either side — on the side of either the grantor or the

grantee. 27 Thus, it was error to conclude that in a constructive trust, only the person obtaining

the property commits a mistake. This is because it is also possible that a grantor, like PNB in

the case at hand, may commit the mistake.

Proceeding now to the issue of whether or not petitioner may still claim the US$14,000 it

erroneously paid private respondent under a constructive trust, we rule in the negative. Although

we are aware that only seven (7) years lapsed after petitioner erroneously credited private

respondent with the said amount and that under Article 1144, petitioner is well within the

prescriptive period for the enforcement of a constructive or implied trust, we rule that petitioner's

claim cannot prosper since it is already barred by laches. It is a well-settled rule now that an

action to enforce an implied trust, whether resulting or constructive, may be barred not only by

prescription but also by laches. 28

While prescription is concerned with the fact of delay, laches deals with the effect of

unreasonable delay. 29 It is amazing that it took petitioner almost seven years before it

discovered that it had erroneously paid private respondent. Petitioner would attribute its mistake

to the heavy volume of international transactions handled by the Cable and Remittance Division

of the International Department of PNB. Such specious reasoning is not persuasive. It is

unbelievable for a bank, and a government bank at that, which regularly publishes its balanced

financial statements annually or more frequently, by the quarter, to notice its error only seven

years later. As a universal bank with worldwide operations, PNB cannot afford to commit such

costly mistakes. Moreover, as between parties where negligence is imputable to one and not to

the other, the former must perforce bear the consequences of its neglect. Hence, petitioner

should bear the cost of its own negligence.

WHEREFORE, the decision of the Court of Appeals dismissing petitioner's claim against private

respondent is AFFIRMED.

Costs against petitioner.

SO ORDERED.

Bidin, Davide, Jr. and Melo, JJ., concur.

Gutierrez, Jr., J., concurs in the result.

# Footnotes

1 Records, p. 122.

2 Salao v. Salao, G.R. No. L-26699, March 16, 1976, 70 SCRA 65.

3 Rollo, p. 41.

4 Rollo, p. 27.

5 Article 1144. The following actions must be brought within ten years from the time the right of

action accrues:

xxx xxx xxx

(2) Upon an obligation created by law;

xxx xxx xxx

6 Article 1441, Civil Code.

7 89 CJS 724.

8 89 CJS 722.

9 89 CJS 725.

10 Aquino, Civil Code, Vol. II. pp. 556-557; Ramos v. Ramos, G.R. No. L-19872, December 3,

1974, 61 SCRA 284.

11 Salao v. Salao, G.R. No. L-26699, March 16, 1976, 70 SCRA 65.

12 Ramos v. Ramos, G.R. No. L-19872 December 3, 1974, 61 SCRA 284, citing Gayondato v.

Treasurer of the Philippine Islands, 49 Phil. 244.

13 State ex Wirt v. Superior Court for Spokane Country, 10 Wash. 2d, 362, 116 P. 2d 752, 755,

Article 1440 Civil Code.

14 Diaz v. Goricho, 103 Phil. 261.

15 Report of the Code Commission, p. 60.

16 Article 2143, Civil Code.

17 Report of the Code Commission, pp. 159-160.

18 Article 2163, Civil Code.

19 Lao Chit v. Security and Trust Co. and Consolidated Investment, Inc., 105 Phil. 490.

20 Report of the Code Commission, p. 26.

21 Scott on Trusts, Volume 3, p. 2315.

22 Ibid, p. 2312.

23 Scott on Trusts, Volume 3, p. 2316.

24 Government v. Abadilla, 46 Phil. 642 and Miguel et al v. Court of Appeals,

L-20274, October 30, 1969, 29 SCRA 760.

25 Translated as, "No one should be allowed to enrich himself unjustly at the expense of

another." (Jenk Cent. Cas. 4; 10 Barb. [N.Y.] 626, 633, "Cyclopedic Law Dictionary," 2nd Edition,

p. 688).

26 Rollo, p. 32.

27 Tolentino, Civil Code of the Philippines, Vol. IV, p. 685.

28 Villagonzalo v. IAC, G.R. No. 711110, November 22, 1988, 167 SCRA 535; Perez v. Ong

Chua, No. L-36850, September 23, 1982, 116 SCRA 732, 90 CJS 887-889 and 54 Am Jur., pp.

449-450.

29 Mapa III v. Guanzon, G.R. No. L-25605, June 20, 1977, 77 SCRA 387

In turn, implied trusts are subdivided into resulting and constructive trusts. 8 A resulting trust is a

trust raised by implication of law and presumed always to have been contemplated by the

parties, the intention of which is found in the nature of the transaction, but not expressed in the

deed or instrument of conveyance. 9 Examples of resulting trusts are found in Articles 1448 to

1455 of the Civil Code. 10 On the other hand, a constructive trust is one not created by words

either expressly or impliedly, but by construction of equity in order to satisfy the demands of

justice. An example of a constructive trust is Article 1456 quoted above. 11

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. L-29131 August 27, 1969

NATIONAL MARKETING CORPORATION, plaintiff-appellant,

vs.

MIGUEL D. TECSON, ET AL., defendants,

MIGUEL D. TECSON, defendant-appellee,

THE INSURANCE COMMISSIONER, petitioner.

Government Corporate Counsel Leopoldo M. Abellera and Trial Atty. Antonio M. Brillantes for

plaintiff-appellant.

Antonio T. Lacdan for defendant-appellee.

Office of the Solicitor General for petitioner.

CONCEPCION, C.J.:

This appeal has been certified to us by the Court of Appeals only one question of law being

involved therein.

On November 14, 1955, the Court of First Instance of Manila rendered judgment, in Civil Case

No. 20520 thereof, entitled "Price Stabilization Corporation vs. Miguel D. Tecson and Alto

Surety and Insurance Co., Inc.," the dispositive part of which reads as follows:

For the foregoing consideration, the Court decides this case:

(a) Ordering the defendants Miguel D. Tecson and Alto Surety Insurance Co., Inc. to pay jointly

and severally plaintiff PRATRA the sum of P7,200.00 plus 7% interest from May 25, 1960 until

the amount is fully paid, plus P500.00 for attorney's fees, and plus costs;

(b) ordering defendant Miguel D. Tecson to indemnify his co-defendant Alto Surety & Insurance

Co., Inc. on the cross-claim for all the amounts it would be made to pay in this decision, in case

defendant Alto Surety & Insurance Co., Inc. pay the amount adjudged to plaintiff in this decision.

From the date of such payment defendant Miguel D. Tecson would pay the Alto Surety &

Insurance Co., Inc., interest at 12% per annum until Miguel D. Tecson has fully reimbursed

plaintiff of the said amount.

Copy of this decision was, on November 21, 1955, served upon the defendants in said case. On

December 21, 1965, the National Marketing Corporation, as successor to all the properties,

assets, rights, and choses in action of the Price Stabilization Corporation, as plaintiff in that case

and judgment creditor therein, filed, with the same court, a complaint, docketed as Civil Case

No. 63701 thereof, against the same defendants, for the revival of the judgment rendered in

said Case No. 20520. Defendant Miguel D. Tecson moved to dismiss said complaint, upon the

ground of lack of jurisdiction over the subject matter thereof and prescription of action. Acting

upon the motion and plaintiff's opposition thereto, said Court issued, on February 14, 1966, an

order reading:

Defendant Miguel Tecson seeks the dismissal of the complaint on the ground of lack of

jurisdiction and prescription. As for lack of jurisdiction, as the amount involved is less than

P10,000 as actually these proceedings are a revival of a decision issued by this same court, the

matter of jurisdiction must be admitted. But as for prescription. Plaintiffs admit the decision of

this Court became final on December 21, 1955. This case was filed exactly on December 21,

1965 — but more than ten years have passed a year is a period of 365 days (Art. 13, CCP).

Plaintiff forgot that 1960, 1964 were both leap years so that when this present case was filed it

was filed two days too late.

The complaint insofar as Miguel Tecson is concerned is, therefore, dismissed as having

prescribed.1äwphï1.ñët

The National Marketing Corporation appealed from such order to the Court of Appeals, which,

on March 20, 1969t certified the case to this Court, upon the ground that the only question

therein raised is one of law, namely, whether or not the present action for the revival of a

judgment is barred by the statute of limitations.

Pursuant to Art. 1144(3) of our Civil Code, an action upon a judgment "must be brought within

ten years from the time the right of action accrues," which, in the language of Art. 1152 of the

same Code, "commences from the time the judgment sought to be revived has become final."

This, in turn, took place on December 21, 1955, or thirty (30) days from notice of the judgment

— which was received by the defendants herein on November 21, 1955 — no appeal having

been taken therefrom. 1 The issue is thus confined to the date on which ten (10) years from

December 21, 1955 expired.

Plaintiff-appellant alleges that it was December 21, 1965, but appellee Tecson maintains

otherwise, because "when the laws speak of years ... it shall be understood that years are of

three hundred sixty-five days each" — according to Art. 13 of our Civil Code — and, 1960 and

1964 being leap years, the month of February in both had 29 days, so that ten (10) years of 365

days each, or an aggregate of 3,650 days, from December 21, 1955, expired on December 19,

1965. The lower court accepted this view in its appealed order of dismissal.

Plaintiff-appellant insists that the same "is erroneous, because a year means a calendar year

(Statutory Construction, Interpretation of Laws, by Crawford, p. 383) and since what is being

computed here is the number of years, a calendar year should be used as the basis of

computation. There is no question that when it is not a leap year, December 21 to December 21

of the following year is one year. If the extra day in a leap year is not a day of the year, because

it is the 366th day, then to what year does it belong? Certainly, it must belong to the year where

it falls and, therefore, that the 366 days constitute one year." 2

The very conclusion thus reached by appellant shows that its theory contravenes the explicit

provision of Art. 13 of the Civil Code of the Philippines, limiting the connotation of each "year" —

as the term is used in our laws — to 365 days. Indeed, prior to the approval of the Civil Code of

Spain, the Supreme Court thereof had held, on March 30, 1887, that, when the law spoke of

months, it meant a "natural" month or "solar" month, in the absence of express provision to the

contrary. Such provision was incorporated into the Civil Code of Spain, subsequently

promulgated. Hence, the same Supreme Court declared 3 that, pursuant to Art. 7 of said Code,

"whenever months ... are referred to in the law, it shall be understood that the months are of 30

days," not the "natural," or "solar" or "calendar" months, unless they are "designated by name,"

in which case "they shall be computed by the actual number of days they have. This concept

was later, modified in the Philippines, by Section 13 of the Revised Administrative Code,

Pursuant to which, "month shall be understood to refer to a calendar month." 4 In the language

of this Court, inPeople vs. Del Rosario, 5 with the approval of the Civil Code of the Philippines

(Republic Act 386) ... we havereverted to the provisions of the Spanish Civil Code in

accordance with which a month is to be considered as the regular 30-day month ... and not the

solar or civil month," with the particularity that, whereas the Spanish Code merely mentioned

"months, days or nights," ours has added thereto the term "years" and explicitly ordains that "it

shall be understood that years are of three hundred sixty-five days."

Although some members of the Court are inclined to think that this legislation is not realistic, for

failure to conform with ordinary experience or practice, the theory of plaintiff-appellant herein

cannot be upheld without ignoring, if not nullifying, Art. 13 of our Civil Code, and reviving

Section 13 of the Revised Administrative Code, thereby engaging in judicial legislation, and, in

effect, repealing an act of Congress. If public interest demands a reversion to the policy

embodied in the Revised Administrative Code, this may be done through legislative process, not

by judicial decree.

WHEREFORE, the order appealed from should be as it is hereby affirmed, without costs. It is so

ordered.

Dizon, Makalintal, Sanchez, Castro, Fernando, Capistrano, Teehankee and Barredo, JJ., concur.

Reyes, J.B.L., and Zaldivar, JJ., are on leave.

Footnotes

1Sec. 1, Rule 39, in relation to Sec. 3, Rule 31, Rules of Court.

2Emphasis ours.

3Decision of April 6, 1895.

4Guzman v. Lichauco, 42 Phil. 292; Gutierrez v. Carpio, 53 Phil. 334, 335-336.

597 Phil. 70-71.

Republic of the Philippines

SUPREME COURT

Baguio City

EN BANC

G.R. No. 124893 April 18, 1997

LYNETTE G. GARVIDA, petitioner,

vs.

FLORENCIO G. SALES, JR., THE HONORABLE COMMISSION ON ELECTIONS, ELECTION

OFFICER DIONISIO F. RIOS and PROVINCIAL SUPERVISOR NOLI PIPO, respondents.

PUNO, J.:

Petitioner Lynette G. Garvida seeks to annul and set aside the order dated May 2, 1996 of

respondent Commission on Elections (COMELEC) en banc suspending her proclamation as the

duly elected Chairman of the Sangguniang Kabataan of Barangay San Lorenzo, Municipality of

Bangui, Ilocos Norte.

The facts are undisputed. The Sangguniang Kabataan (SK) elections nationwide was scheduled

to be held on May 6, 1996. On March 16, 1996, petitioner applied for registration as member

and voter of the Katipunan ng Kabataan of Barangay San Lorenzo, Bangui, Ilocos Norte. The

Board of Election Tellers, however, denied her application on the ground that petitioner, who

was then twenty-one years and ten (10) months old, exceeded the age limit for membership in

the Katipunan ng Kabataan as laid down in Section 3 [b] of COMELEC Resolution No. 2824.

On April 2, 1996, petitioner filed a "Petition for Inclusion as Registered Kabataang Member and

Voter" with the Municipal Circuit Trial Court, Bangui-Pagudpud-Adams-Damalneg, Ilocos Norte.

In a decision dated April 18, 1996, the said court found petitioner qualified and ordered her

registration as member and voter in the Katipunan ng Kabataan. 1 The Board of Election Tellers

appealed to the Regional Trial Court, Bangui, Ilocos Norte. 2 The presiding judge of the

Regional Trial Court, however, inhibited himself from acting on the appeal due to his close

association with petitioner. 3

On April 23, 1996, petitioner filed her certificate of candidacy for the position of Chairman,

Sangguniang Kabataan, Barangay San Lorenzo, Municipality of Bangui, Province of Ilocos

Norte. In a letter dated April 23, 1996, respondent Election Officer Dionisio F. Rios, per advice

of Provincial Election Supervisor Noli Pipo, 4 disapproved petitioner's certificate of candidacy

again due to her age. 5 Petitioner, however, appealed to COMELEC Regional Director Filemon

A. Asperin who set aside the order of respondents and allowed petitioner to run. 6

On May 2, 1996, respondent Rios issued a memorandum to petitioner informing her of her

ineligibility and giving her 24 hours to explain why her certificate of candidacy should not be

disapproved. 7 Earlier and without the knowledge of the COMELEC officials, private respondent

Florencio G. Sales, Jr., a rival candidate for Chairman of the Sangguniang Kabataan, filed with

the COMELEC en banc a "Petition of Denial and/or Cancellation of Certificate of Candidacy"

against petitioner Garvida for falsely representing her age qualification in her certificate of

candidacy. The petition was sent by facsimile 8 and registered mail on April 29, 1996 to the

Commission on Elections National Office, Manila.

On May 2, 1996, the same day respondent Rios issued the memorandum to petitioner, the

COMELEC en bancissued an order directing the Board of Election Tellers and Board of

Canvassers of Barangay San Lorenzo to suspend the proclamation of petitioner in the event

she won in the election. The order reads as follows:

Acting on the Fax "Petition for Denial And/Or Cancellation of Certificate of Candidacy" by

petitioner Florencio G. Sales, Jr. against Lynette G. Garvida, received on April 29, 1996,

the pertinent allegations of which reads:

xxx xxx xxx

5. That the said respondent is disqualified to become a voter and a candidate for the SK for the

reason that she will be more than twenty-one (21) years of age on May 6, 1996; that she was

born on June 11, 1974 as can be gleaned from her birth certificate, copy of which is hereto

attached and marked as Annex "A";

6. That in filing her certificate of candidacy as candidate for SK of Bgy. San Lorenzo, Bangui,

Ilocos Norte, she made material representation which is false and as such, she is disqualified;

that her certificate of candidacy should not be given due course and that said candidacy must

be cancelled;

xxx xxx xxx

the Commission, it appearing that the petition is meritorious, hereby DIRECTS the Board of

Election Tellers/Board of Canvassers of Barangay San Lorenzo, Bangui, Ilocos Norte, to

suspend the proclamation of Lynette G. Garvida in the event she garners the highest number of

votes for the position of Sangguniang Kabataan [sic].

Meantime, petitioner is hereby required to submit immediately ten (10) copies of his petition and

to pay the filing and legal research fees in the amount of P510.00.

SO ORDERED. 9

On May 6, 1996, election day, petitioner garnered 78 votes as against private respondent's

votes of 76. 10 In accordance with the May 2, 1996 order of the COMELEC en banc, the Board

of Election Tellers did not proclaim petitioner as the winner. Hence, the instant petition for

certiorari was filed on May 27, 1996.

On June 2, 1996, however, the Board of Election Tellers proclaimed petitioner the winner for the

position of SK chairman, Barangay San Lorenzo, Bangui, Ilocos Norte. 11 The proclamation was

"without prejudice to any further action by the Commission on Elections or any other interested

party." 12 On July 5, 1996, petitioner ran in the Pambayang Pederasyon ng mga Sangguniang

Kabataan for the municipality of Bangui, Ilocos Norte. She won as Auditor and was proclaimed

one of the elected officials of the Pederasyon. 13

Petitioner raises two (2) significant issues: the first concerns the jurisdiction of the COMELEC

en banc to act on the petition to deny or cancel her certificate of candidacy; the second, the

cancellation of her certificate of candidacy on the ground that she has exceeded the age

requirement to run as an elective official of the SK.

I

Section 532 (a) of the Local Government Code of 1991 provides that the conduct of the SK

elections is under the supervision of the COMELEC and shall be governed by the Omnibus

Election Code. 14 The Omnibus Election Code, in Section 78, Article IX, governs the procedure

to deny due course to or cancel a certificate of candidacy, viz:

Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. — A verified

petition seeking to deny due course or to cancel a certificate of candidacy may be filed

by any person exclusively on the ground that any material representation contained

therein as required under Section 74 hereof is false. The petition may be filed at any

time not later than twenty-five days from the time of filing of the certificate of candidacy

and shall be decided, after due notice and hearing, not later than fifteen days before

election.

In relation thereto, Rule 23 of the COMELEC Rules of Procedure provides that a petition to deny

due course to or cancel a certificate of candidacy for an elective office may be filed with the Law

Department of the COMELEC on the ground that the candidate has made a false material

representation in his certificate. The petition may be heard and evidence received by any official

designated by the COMELEC after which the case shall be decided by the COMELEC itself. 15

Under the same Rules of Procedure, jurisdiction over a petition to cancel a certificate of

candidacy lies with the COMELEC sitting in Division, not en banc. Cases before a Division may

only be entertained by the COMELEC en banc when the required number of votes to reach a

decision, resolution, order or ruling is not obtained in the Division. Moreover, only motions to

reconsider decisions, resolutions, orders or rulings of the COMELEC in Division are resolved by

the COMELEC en banc. 16 It is therefore the COMELEC sitting in Divisions that can hear and

decide election cases. This is clear from Section 3 of the said Rules thus:

Sec. 3. The Commission Sitting in Divisions. — The Commission shall sit in two (2)

Divisions to hear and decide protests or petitions in ordinary actions, special actions,

special cases, provisional remedies, contempt and special proceedings except in

accreditation of citizens' arms of the Commission. 17

In the instant case, the COMELEC en banc did not refer the case to any of its Divisions upon

receipt of the petition. It therefore acted without jurisdiction or with grave abuse of discretion

when it entertained the petition and issued the order of May 2, 1996. 18

II

The COMELEC en banc also erred when it failed to note that the petition itself did not comply

with the formal requirements of pleadings under the COMELEC Rules of Procedure. These

requirements are:

Sec. 1. Filing of Pleadings. — Every pleading, motion and other papers must be filed in

ten (10) legible copies. However, when there is more than one respondent or protestee,

the petitioner or protestant must file additional number of copies of the petition or protest

as there are additional respondents or protestees.

Sec. 2. How Filed. — The documents referred to in the immediately preceding section must be

filed directly with the proper Clerk of Court of the Commission personally, or, unless otherwise

provided in these Rules, by registered mail. In the latter case, the date of mailing is the date of

filing and the requirement as to the number of copies must be complied with.

Sec. 3. Form of Pleadings, etc. — (a) All pleadings allowed by these Rules shall be printed,

mimeographed or typewritten on legal size bond paper and shall be in English or Filipino.

xxx xxx xxx

Every pleading before the COMELEC must be printed, mimeographed or typewritten in legal

size bond paper and filed in at least ten (10) legible copies. Pleadings must be filed directly with

the proper Clerk of Court of the COMELEC personally, or, by registered mail.

In the instant case, the subject petition was not in proper form. Only two (2) copies of the

petition were filed with the COMELEC. 19 Also, the COMELEC en banc issued its Resolution on

the basis of the petition transmitted by facsimile, not by registered mail.

A facsimile or fax transmission is a process involving the transmission and reproduction of

printed and graphic matter by scanning an original copy, one elemental area at a time, and

representing the shade or tone of each area by a specified amount of electric current. 20 The

current is transmitted as a signal over regular telephone lines or via microwave relay and is

used by the receiver to reproduce an image of the elemental area in the proper position and the

correct shade. 21 The receiver is equipped with a stylus or other device that produces a printed

record on paper referred to as a facsimile. 22

Filing a pleading by facsimile transmission is not sanctioned by the COMELEC Rules of

Procedure, much less by the Rules of Court. A facsimile is not a genuine and authentic pleading.

It is, at best, an exact copy preserving all the marks of an original. 23 Without the original, there

is no way of determining on its face whether the facsimile pleading is genuine and authentic and

was originally signed by the party and his counsel. It may, in fact, be a sham pleading. The

uncertainty of the authenticity of a facsimile pleading should have restrained the COMELEC en

banc from acting on the petition and issuing the questioned order. The COMELEC en banc

should have waited until it received the petition filed by registered mail.

III

To write finis to the case at bar, we shall now resolve the issue of petitioner's age.

The Katipunan ng Kabataan was originally created by Presidential Decree No. 684 in 1975 as

the Kabataang Barangay, a barangay youth organization composed of all residents of the

barangay who were at least 15 years but less than 18 years of age. 24 The Kabataang Barangay

sought to provide its members a medium to express their views and opinions and participate in

issues of transcendental importance. 25 Its affairs were administered by a barangay youth

chairman together with six barangay youth leaders who were actual residents of the barangay

and were at least 15 years but less than 18 years of age. 26 In 1983, Batas Pambansa Blg. 337,

then the Local Government Code, raised the maximum age of the Kabataang Barangay

members from "less than 18 years of age" to "not more than 21 years of age."

Membership in the Katipunan ng Kabataan is subject to specific qualifications laid down by the

Local Government Code of 1991, viz:

Sec. 424. Katipunan ng Kabataan. — The katipunan ng kabataan shall be composed of

all citizens of the Philippines actually residing in the barangay for at least six (6) months,

who are fifteen (15) but not more than twenty-one (21) years of age, and who are duly

registered in the list of the sangguniang kabataan or in the official barangay list in the

custody of the barangay secretary.

A member of the Katipunan ng Kabataan may become a candidate for the Sangguniang

Kabataan if he possesses the following qualifications:

Sec. 428. Qualifications. — An elective official of the sangguniang kabataan must be a

citizen of the Philippines, a qualified voter of the katipunan ng kabataan, a resident of the

barangay for at least one (1) year immediately prior to election, at least fifteen (15) years

but not more than twenty-one (21) years of age on the day of his election, able to read

and write Filipino, English, or the local dialect, and must not have been convicted of any

crime involving moral turpitude.

Under Section 424 of the Local Government Code, a member of the Katipunan ng Kabataan

must be: (a) a Filipino citizen; (b) an actual resident of the barangay for at least six months; (c)

15 but not more than 21 years of age; and (d) duly registered in the list of the Sangguniang

Kabataan or in the official barangay list. Section 428 of the Code requires that an elective official

of the Sangguniang Kabataan must be: (a) a Filipino citizen; (b) a qualified voter in the

Katipunan ng Kabataan; (c) a resident of the barangay at least one (1) year immediately

preceding the election; (d) at least 15 years but not more than 21 years of age on the day of his

election; (e) able to read and write; and (f) must not have been convicted of any crime involving

moral turpitude.

For the May 6, 1996 SK elections, the COMELEC interpreted Sections 424 and 428 of the Local

Government Code of 1991 in Resolution No. 2824 and defined how a member of the Katipunan

ng Kabataan becomes a qualified voter and an elective official. Thus:

Sec. 3. Qualifications of a voter. — To be qualified to register as a voter in the SK

elections, a person must be:

a) a citizen of the Philippines;

b) fifteen (15) but not more than twenty-one (21) years of age on election day that is, he must

have been born between May 6, 1975 and May 6, 1981, inclusive; and

c) a resident of the Philippines for at least one (1) year and actually residing in the barangay

wherein he proposes to vote for at least six (6) months immediately preceding the elections.

xxx xxx xxx

Sec. 6. Qualifications of elective members. — An elective official of the SK must be:

a) a qualified voter;

b) a resident in the barangay for at least one (1) year immediately prior to the elections; and

c) able to read and write Filipino or any Philippine language or dialect or English.

Cases involving the eligibility or qualification of candidates shall be decided by the city/municipal

Election Officer (EO) whose decision shall be final.

A member of the Katipunan ng Kabataan may be a qualified voter in the May 6, 1996 SK

elections if he is: (a) a Filipino citizen; (b) 15 but not more than 21 years of age on election day,

i.e., the voter must be born between May 6, 1975 and May 6, 1981, inclusive; and (c) a resident

of the Philippines for at least one (1) year and an actual resident of the barangay at least six (6)

months immediately preceding the elections. A candidate for the SK must: (a) possess the

foregoing qualifications of a voter; (b) be a resident in the barangay at least one (1) year

immediately preceding the elections; and (c) able to read and write.

Except for the question of age, petitioner has all the qualifications of a member and voter in the

Katipunan ng Kabataan and a candidate for the Sangguniang Kabataan. Petitioner 's age is

admittedly beyond the limit set in Section 3 [b] of COMELEC Resolution No. 2824. Petitioner,

however, argues that Section 3 [b] of Resolution No. 2824 is unlawful, ultra vires and beyond

the scope of Sections 424 and 428 of the Local Government Code of 1991. She contends that

the Code itself does not provide that the voter must be exactly 21 years of age on election day.

She urges that so long as she did not turn twenty-two (22) years old, she was still twenty-one

years of age on election day and therefore qualified as a member and voter in the Katipunan ng

Kabataan and as candidate for the SK elections.

A closer look at the Local Government Code will reveal a distinction between the maximum age

of a member in the Katipunan ng Kabataan and the maximum age of an elective SK official.

Section 424 of the Code sets a member's maximum age at 21 years only. There is no further

provision as to when the member shall have turned 21 years of age. On the other hand, Section

428 provides that the maximum age of an elective SK official is 21 years old "on the day of his

election." The addition of the phrase "or the day of his election" is an additional qualification.

The member may be more than 21 years of age on election day or on the day he registers as

member of the Katipunan ng Kabataan. The elective official, however, must not be more than 21

years old on the day of election. The distinction is understandable considering that the Code

itself provides more qualifications for an elective SK official than for a member of the Katipunan

ng Kabataan. Dissimilum dissimilis est ratio. 31 The courts may distinguish when there are facts

and circumstances showing that the legislature intended a distinction or qualification. 32

The qualification that a voter in the SK elections must not be more than 21 years of age on the

day of the election is not provided in Section 424 of the Local Government Code of 1991. In fact

the term "qualified voter" appears only in COMELEC Resolution No. 2824. 33 Since a "qualified

voter" is not necessarily an elective official, then it may be assumed that a "qualified voter" is a

"member of the Katipunan ng Kabataan." Section 424 of the Code does not provide that the

maximum age of a member of the Katipunan ng Kabataan is determined on the day of the

election. Section 3 [b] of COMELEC Resolution No. 2824 is therefore ultra vires insofar as it

sets the age limit of a voter for the SK elections at exactly 21 years on the day of the election.

The provision that an elective official of the SK should not be more than 21 years of age on the

day of his election is very clear. The Local Government Code speaks of years, not months nor

days. When the law speaks of years, it is understood that years are of 365 days each. 34 One

born on the first day of the year is consequently deemed to be one year old on the 365th day

after his birth — the last day of the year. 35 In computing years, the first year is reached after

completing the first 365 days. After the first 365th day, the first day of the second 365-day cycle

begins. On the 365th day of the second cycle, the person turns two years old. This cycle goes

on and on in a lifetime. A person turns 21 years old on the 365th day of his 21st 365-day cycle.

This means on his 21st birthday, he has completed the entire span of 21 365-day cycles. After

this birthday, the 365-day cycle for his 22nd year begins. The day after the 365th day is the first

day of the next 365-day cycle and he turns 22 years old on the 365th day.

The phrase "not more than 21 years of age" means not over 21 years, not beyond 21 years. It

means 21 365-day cycles. It does not mean 21 years and one or some days or a fraction of a

year because that would be more than 21 365-day cycles. "Not more than 21 years old" is not

equivalent to "less than 22 years old," contrary to petitioner's claims. The law does not state that

the candidate be less than 22 years on election day.

In P.D. 684, the law that created the Kabataang Barangay, the age qualification of a barangay

youth official was expressly stated as ". . . at least fifteen years of age or over but less than

eighteen . . ." 36 This provision clearly states that the youth official must be at least 15 years old

and may be 17 years and a fraction of a year but should not reach the age of eighteen years.

When the Local Government Code increased the age limit of members of the youth organization

to 21 years, it did not reenact the provision in such a way as to make the youth "at least 15 but

less than 22 years old." If the intention of the Code's framers was to include citizens less than

22 years old, they should have stated so expressly instead of leaving the matter open to

confusion and doubt. 37

Former Senator Aquilino Q. Pimentel, the sponsor and principal author of the Local Government

Code of 1991 declared that one of the reasons why the Katipunan ng Kabataan was created

and the Kabataang Barangay discontinued was because most, if not all, Kabataang Barangay

leaders were already over 21 years of age by the time President Aquino assumed power. 38

They were not the "youth" anymore. The Local Government Code of 1991 fixed the maximum

age limit at not more than 21 years 39 and the only exception is in the second paragraph of

Section 423 which reads:

In the case at bar, petitioner was born on June 11, 1974. On March 16, 1996, the day she

registered as voter for the May 6, 1996 SK elections, petitioner was twenty-one (21) years and

nine (9) months old. On the day of the elections, she was 21 years, 11 months and 5 days old.

When she assumed office on June 1, 1996, she was 21 years, 11 months and 20 days old and

was merely ten (10) days away from turning 22 years old. Petitioner may have qualified as a

member of the Katipunan ng Kabataan but definitely, petitioner was over the age limit for

elective SK officials set by Section 428 of the Local Government Code and Sections 3 [b] and 6

of Comelec Resolution No. 2824. She was ineligible to run as candidate for the May 6, 1996

Sangguniang Kabataan elections.

The requirement that a candidate possess the age qualification is founded on public policy and

if he lacks the age on the day of the election, he can be declared ineligible. 41 In the same vein,

if the candidate is over the maximum age limit on the day of the election, he is ineligible. The

fact that the candidate was elected will not make the age requirement directory, nor will it

validate his election. 42 The will of the people as expressed through the ballot cannot cure the

vice of ineligibility. 43

The ineligibility of petitioner does not entitle private respondent, the candidate who obtained the

highest number of votes in the May 6, 1996 elections, to be declared elected. 44 A defeated

candidate cannot be deemed elected to the office. 45 Moreover, despite his claims, 46 private

respondent has failed to prove that the electorate themselves actually knew of petitioner's

ineligibility and that they maliciously voted for her with the intention of misapplying their

franchises and throwing away their votes for the benefit of her rival candidate. 47

Neither can this Court order that pursuant to Section 435 of the Local Government Code

petitioner should be succeeded by the Sangguniang Kabataan member who obtained the next

highest number of votes in the May 6, 1996 elections. 48 Section 435 applies when a

Sangguniang Kabataan Chairman "refuses to assume office, fails to qualify,49 is convicted of a

felony, voluntarily resigns, dies, is permanently incapacitated, is removed from office, or has

been absent without leave for more than three (3) consecutive months."

The question of the age qualification is a question of eligibility. 50 Being "eligible" means being

"legally qualified; capable of being legally chosen." 51 Ineligibility, on the other hand, refers to the

lack of the qualifications prescribed in the Constitution or the statutes for holding public office. 52

Ineligibility is not one of the grounds enumerated in Section 435 for succession of the SK

Chairman.

To avoid a hiatus in the office of SK Chairman, the Court deems it necessary to order that the

vacancy be filled by the SK member chosen by the incumbent SK members of Barangay San

Lorenzo, Bangui, Ilocos Norte by simple majority from among themselves. The member chosen

shall assume the office of SK Chairman for the unexpired portion of the term, and shall

discharge the powers and duties, and enjoy the rights and privileges appurtenant to said office.

IN VIEW WHEREOF, the petition is dismissed and petitioner Lynette G. Garvida is declared

ineligible for being over the age qualification for candidacy in the May 6, 1996 elections of the

Sangguniang Kabataan, and is ordered to vacate her position as Chairman of the Sangguniang

Kabataan of Barangay San Lorenzo, Bangui, Ilocos Norte. The Sangguniang Kabataan member

voted by simple majority by and from among the incumbent Sangguniang Kabataan members of

Barangay San Lorenzo, Bangui, Ilocos Norte shall assume the office of Sangguniang Kabataan

Chairman of Barangay San Lorenzo, Bangui, Ilocos Norte for the unexpired portion of the term.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Vitug, Kapunan,

Mendoza, Francisco, Panganiban and Torres, Jr., JJ., concur.

Hermosisima, Jr., J., is on leave.

Footnotes

1 Annex "D" to Comment of Provincial Election Supervisor Noli Pipo, Rollo, pp. 57-58;

Annex "A" to Petition, Rollo, pp. 15-16.

2 Annex "3" to the Comment for the Private Respondent, Rollo, pp. 109-112.

3 The judge was then boarding in the house of petitioner (Comment for the Private Respondent,

p. 2,Rollo, p. 89).

4 Annex "F" to the Comment of Provincial Election Supervisor Noli Pipo, Rollo, pp. 61-62.

5 Annex "C" to the Petition, Rollo p. 18; Annex "G" to the Comment of Provincial Election

Supervisor Noli Pipo, Rollo, p. 63.

6 Annex "D" to the Petition, Rollo, p. 19; Annex "H" to the Comment of Provincial Election

Supervisor Noli Pipo, Rollo, p. 64.

7 Annex "I" to the Comment of Provincial Election Supervisor Noli Pipo, Rollo, p. 66.

8 Through the PT & T.

9 Annex "L" to the Petition, Rollo, pp. 71-73.

10 Comment of Private Respondent Florencio Sales, Jr., p. 14, Rollo, p. 101.

11 Comment of Provincial Election Supervisor Noli Pipo, par. 18, Rollo, p. 41.

12 Annex "R" to the Comment of Provincial Election Supervisor Noli Pipo, Rollo, p. 82.

13 Annex "S" to the Comment of Provincial Election Supervisor Noli Pipo, Rollo, p. 83.

14 Section 532 (a) of the Code (B.P. 881) was amended by R.A. 7808 which in pertinent part

reads:

Sec. 1. . . . .

The conduct of the sangguniang kabataan elections shall be under the supervision of the

Commission on Elections.

The Omnibus Election Code shall govern the elections of the sangguniang kabataan.

15 Rule 23 provides:

"Sec. 1. Ground for Denial of Certificate of Candidacy. — A petition to deny due course to or

cancel a certificate of candidacy for any elective office may be filed with the Law Department of

the Commission by any citizen of voting age or duly registered political party, organization, or

coalition of political parties on the exclusive ground that any material representation contained

therein as required by law is false.

Sec. 2. Period to File Petition. — The petition must be filed within five (5) days following the last

day for the filing of certificates of candidacy.

Sec. 3. Summary Procedure. — The petition shall be heard summarily after due notice.

Sec. 4. Delegation of Reception of Evidence. — The Commission may designate any of its

officials who are members of the Philippine Bar to hear the case and to receive evidence."

16 Section 5 [b] and [c], Rule 3, COMELEC Rules of Procedure provides:

"Sec. 5. . . . .

(b) When sitting in Divisions, two (2) Members of a Division shall constitute a quorum to transact

business. The concurrence of at least two (2) Members of a Division shall be necessary to

reach a decision, resolution, order or ruling. If this required number is not obtained the case

shall be automatically elevated to the Commission en banc for decision or resolution.

(c) Any motion to reconsider a decision, resolution, order or ruling of a Division shall be resolved

by the Commission en banc except motions on interlocutory orders of the Division which shall

be resolved by the Division which issued the order."

17 See also Section 3, Article IX [C] of the Constitution.

18 Sarmiento v. Commission On Elections, 212 SCRA 307, 131-134 [1992].

19 One copy was filed by registered mail and the other by facsimile. Third and fourth copies

were sent by registered mail to petitioner Garvida and the COMELEC officer (Annex 5-B to the

Comment of Private Respondent, Rollo, p. 116).

20 "Facsimile Transmission," The New Encyclopedia Britannica, p. 651, vol. 4, 15th ed. [1992].

21 Id.

22 "Facsimile," The New Webster's International Encyclopedia, p. 375 [1996]; "Facsimile,"

Webster's Third New International Dictionary, p. 813 [1971].

23 Black's Law Dictionary, p. 531, 5th ed. [1979].

24 Sections 1 and 4, P.D. 684.

25 Whereas clauses, Sec. 1, P.D. 684; Mercado v. Board of Elections Supervisors of Ibaan,

Batangas, 243 SCRA 422, 426 [1995].

26 Section 2, P.D. 684

27 Section 423, Chapter 8, Title I, Bk. III, R.A. 7160.

28 Sections 423, 428, Chapter 8, Title I, Bk. III, R.A. 7160.

29 Section 430, Id.

30 Section 429, Id.

31 Of things dissimilar, the rule is dissimilar.

32 Agpalo, Statutory Construction, pp. 142-143 [1990].

33 The Local Government Code speaks of the requirements for membership in the Katipunan

ng Kabataan, not the qualifications of a voter.

34 Civil Code, Article 13; National Marketing Corporation v. Tecson, 29 SCRA 70, 74; [1969].

35 Erwin v. Benton, 87 S.W. 291, 294; 120 Ky. 536 [1905].

36 Section 2, P.D. 684.

37 Feliciano v. Aquino, 102 Phil. 1159-1160 [1957].

38 Pimentel, A.Q., The Local Government Code of 1991, The Key to National Development, p.

440 [1993].

39 It is worth noting that it is only in the case of SK candidates that the Local Government Code

sets a maximum age limit. It sets a minimum age for the rest of the elective officials, e.g.,

members of the sangguniang barangay, sangguniang panglungsod or bayan, sangguniang

panlalawigan, mayor and governor (Sec. 39, Chapter I, Title II, Bk. I, Local Government Code of

1991).

40 Pimentel, supra, at 440.

41 Castaneda v. Yap, 48 O.G. 3364, 3366 [1952].

42 Sanchez v. del Rosario, 1 SCRA 1102, 1106 [1961]; Feliciano v. Aquino, Jr., 102 Phil. 1159,

1160 [1957].

43 Frivaldo v. Commission on Elections, 174 SCRA 245, 255 [1989].

44 Aquino v. Commission on Elections, 241 SCRA 400, 423, 429 [1996]; Labo, Jr. v.

Commission on elections, 211 SCRA 297, 311 [1992]; Sanchez v. del Rosario, supra, at 1105.

45 Id.

46 Comment of Private Respondent Florencio Sales, Jr., pp. 14-15, Rollo, 101-102.

47 cf . Labo, Jr. v. Commission on Elections, supra, at 311.

48 Section 435 of the Local Government Code provides:

"Sec. 435. Succession and Filling of Vacancies. — (a) In case a Sangguniang kabataan

chairman refuses to assume office, fails to qualify, is convicted of a felony, voluntarily resigns,

dies, is permanently incapacitated, is removed from office, or has been absent without leave for

more than three (3) consecutive months, the sangguniang kabataan member who obtained the

next highest number of votes in the election immediately preceding shall assume the office of

the chairman for the unexpired portion of the term, and shall discharge the powers and duties,

and enjoy the rights and privileges appurtenant to the office. In case the said member refuses to

assume the position or fails to qualify, the sangguniang kabataan member obtaining the next

highest number of votes shall assume the position of the chairman for the unexpired portion of

the term.

xxx xxx xxx"

49 "Failure to qualify" means a public officer's or employee's failure to take the oath

and/or give the bond required by law to signify his acceptance of the office and the

undertaking to execute the trust confided in him (Martin and Martin, Administrative Law,

Law of Public Officers and Election Law, p. 140 [1983]; Mechem, A. Treatise on the Law

of Public Offices and Officers, Sec. 253, p. 162; Words and Phrases, "Failure to Qualify,"

citing State v. Boyd, 48 N.W. 739, 751, 31 Neb. 682).

50 Gaerlan v. Catubig, 17 SCRA 376, 378 [1966]; Feliciano v. Aquino, Jr., supra.

51 People v. Yanza, 107 Phil. 888, 890 [1960].

52 Separate Opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v. Commission on

Elections, 248 SCRA 300, 398 [1995].

Sec. 423. Creation and Election. —

a) . . . ;

b) A sangguniang kabataan official who, during his term of office, shall have passed the age of

twenty-one (21) years shall be allowed to serve the remaining portion of the term for which he

was elected.

The general rule is that an elective official of the Sangguniang Kabataan must not be more than

21 years of age on the day of his election. The only exception is when the official reaches the

age of 21 years during his incumbency. Section 423 [b] of the Code allows him to serve the

remaining portion of the term for which he was elected. According to Senator Pimentel, the

youth leader must have "been elected prior to his 21st birthday." 40 Conversely, the SK official

must not have turned 21 years old before his election. Reading Section 423 [b] together with

Section 428 of the Code, the latest date at which an SK elective official turns 21 years old is on

the day of his election. The maximum age of a youth official must therefore be exactly 21 years

on election day. Section 3 [b] in relation to Section 6 [a] of COMELEC Resolution No. 2824 is

not ultra vires insofar as it fixes the maximum age of an elective SK official on the day of his

election.

The Local Government Code of 1991 changed the Kabataang Barangay into the Katipunan ng

Kabataan. It, however, retained the age limit of the members laid down in B.P. 337 at 15 but not

more than 21 years old. 27 The affairs of the Katipunan ng Kabataan are administered by the

Sangguniang Kabataan (SK) composed of a chairman and seven (7) members who are elected

by the Katipunan ng Kabataan. 28 The chairman automatically becomes ex-officio member of

the Sangguniang Barangay. 29 A member of the SK holds office for a term of three (3) years,

unless sooner removed for cause, or becomes permanently incapacitated, dies or resigns from

office. 30

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. L-4043 May 26, 1952

CENON S. CERVANTES, petitioner,

vs.

THE AUDITOR GENERAL, respondent.

Cenon Cervantes in his own behalf.

Office of the Solicitor General Pompeyo Diaz and Solicitor Felix V. Makasiar for respondent.

REYES, J.:

This is a petition to review a decision of the Auditor General denying petitioner's claim for

quarters allowance as manager of the National Abaca and Other Fibers Corporation, otherwise

known as the NAFCO.

It appears that petitioner was in 1949 the manager of the NAFCO with a salary of P15,000 a

year. By a resolution of the Board of Directors of this corporation approved on January 19 of

that year, he was granted quarters allowance of not exceeding P400 a month effective the first

of that month. Submitted the Control Committee of the Government Enterprises Council for

approval, the said resolution was on August 3, 1949, disapproved by the said Committee on

strenght of the recommendation of the NAFCO auditor, concurred in by the Auditor General, (1)

that quarters allowance constituted additional compensation prohibited by the charter of the

NAFCO, which fixes the salary of the general manager thereof at the sum not to exceed

P15,000 a year, and (2) that the precarious financial condition of the corporation did not warrant

the granting of such allowance.

On March 16, 1949, the petitioner asked the Control Committee to reconsider its action and

approve his claim for allowance for January to June 15, 1949, amounting to P1,650. The claim

was again referred by the Control Committee to the auditor General for comment. The latter, in

turn referred it to the NAFCO auditor, who reaffirmed his previous recommendation and

emphasized that the fact that the corporation's finances had not improved. In view of this, the

auditor General also reiterated his previous opinion against the granting of the petitioner's claim

and so informed both the Control Committee and the petitioner. But as the petitioner insisted on

his claim the Auditor General Informed him on June 19, 1950, of his refusal to modify his

decision. Hence this petition for review.

The NAFCO was created by the Commonwealth Act No. 332, approved on June 18, 1939, with

a capital stock of P20,000,000, 51 per cent of which was to be able to be subscribed by the

National Government and the remainder to be offered to provincial, municipal, and the city

governments and to the general public. The management the corporation was vested in a board

of directors of not more than 5 members appointed by the president of the Philippines with the

consent of the Commission on Appointments. But the corporation was made subject to the

provisions of the corporation law in so far as they were compatible with the provisions of its

charter and the purposes of which it was created and was to enjoy the general powers

mentioned in the corporation law in addition to those granted in its charter. The members of the

board were to receive each a per diem of not to exceed P30 for each day of meeting actually

attended, except the chairman of the board, who was to be at the same time the general

manager of the corporation and to receive a salary not to exceed P15,000 per annum.

On October 4, 1946, Republic Act No. 51 was approved authorizing the President of the

Philippines, among other things, to effect such reforms and changes in government owned and

controlled corporations for the purpose of promoting simplicity, economy and efficiency in their

operation Pursuant to this authority, the President on October 4, 1947, promulgated Executive

Order No. 93 creating the Government Enterprises Council to be composed of the President of

the Philippines as chairman, the Secretary of Commerce and Industry as vice-chairman, the

chairman of the board of directors and managing heads of all such corporations as ex-officio

members, and such additional members as the President might appoint from time to time with

the consent of the Commission on Appointments. The council was to advise the President in the

excercise of his power of supervision and control over these corporations and to formulate and

adopt such policy and measures as might be necessary to coordinate their functions and

activities. The Executive Order also provided that the council was to have a Control Committee

composed of the Secretary of Commerce and Industry as chairman, a member to be designated

by the President from among the members of the council as vice-chairman and the secretary as

ex-officio member, and with the power, among others —

(1) To supervise, for and under the direction of the President, all the corporations owned or

controlled by the Government for the purpose of insuring efficiency and economy in their

operations;

(2) To pass upon the program of activities and the yearly budget of expenditures approved by

the respective Boards of Directors of the said corporations; and

(3) To carry out the policies and measures formulated by the Government Enterprises Council

with the approval of the President. (Sec. 3, Executive Order No. 93.)

With its controlling stock owned by the Government and the power of appointing its directors

vested in the President of the Philippines, there can be no question that the NAFCO is

Government controlled corporation subject to the provisions of Republic Act No. 51 and the

executive order (No. 93) promulgated in accordance therewith. Consequently, it was also

subject to the powers of the Control Committee created in said executive order, among which is

the power of supervision for the purpose of insuring efficiency and economy in the operations of

the corporation and also the power to pass upon the program of activities and the yearly budget

of expenditures approved by the board of directors. It can hardly be questioned that under these

powers the Control Committee had the right to pass upon, and consequently to approve or

disapprove, the resolution of the NAFCO board of directors granting quarters allowance to the

petitioners as such allowance necessarily constitute an item of expenditure in the corporation's

budget. That the Control Committee had good grounds for disapproving the resolution is also

clear, for, as pointed out by the Auditor General and the NAFCO auditor, the granting of the

allowance amounted to an illegal increase of petitioner's salary beyond the limit fixed in the

corporate charter and was furthermore not justified by the precarious financial condition of the

corporation.

It is argued, however, that Executive Order No. 93 is null and void, not only because it is based

on a law that is unconstitutional as an illegal delegation of legislature power to executive, but

also because it was promulgated beyond the period of one year limited in said law.

The second ground ignores the rule that in the computation of the time for doing an act, the first

day is excluded and the last day included (Section 13 Rev. Ad. Code.) As the act was approved

on October 4, 1946, and the President was given a period of one year within which to

promulgate his executive order and that the order was in fact promulgated on October 4, 1947,

it is obvious that under the above rule the said executive order was promulgated within the

period given.

As to the first ground, the rule is that so long as the Legislature "lays down a policy and a

standard is established by the statute" there is no undue delegation. (11 Am. Jur. 957). Republic

Act No. 51 in authorizing the President of the Philippines, among others, to make reforms and

changes in government-controlled corporations, lays down a standard and policy that the

purpose shall be to meet the exigencies attendant upon the establishment of the free and

independent government of the Philippines and to promote simplicity, economy and efficiency in

their operations. The standard was set and the policy fixed. The President had to carry the

mandate. This he did by promulgating the executive order in question which, tested by the rule

above cited, does not constitute an undue delegation of legislative power.

It is also contended that the quarters allowance is not compensation and so the granting of it to

the petitioner by the NAFCO board of directors does not contravene the provisions of the

NAFCO charter that the salary of the chairman of said board who is also to be general manager

shall not exceed P15,000 per anum. But regardless of whether quarters allowance should be

considered as compensation or not, the resolution of the board of the directors authorizing

payment thereof to the petitioner cannot be given effect since it was disapproved by the Control

Committee in the exercise of powers granted to it by Executive Order No. 93. And in any event,

petitioner's contention that quarters allowance is not compensation, a proposition on which

American authorities appear divided, cannot be insisted on behalf of officers and employees

working for the Government of the Philippines and its Instrumentalities, including, naturally,

government-controlled corporations. This is so because Executive Order No. 332 of 1941, which

prohibits the payment of additional compensation to those working for the Government and its

Instrumentalities, including government-controlled corporations, was in 1945 amended by

Executive Order No. 77 by expressly exempting from the prohibition the payment of quarters

allowance "in favor of local government officials and employees entitled to this under existing

law." The amendment is a clear indication that quarters allowance was meant to be included in

the term "additional compensation", for otherwise the amendment would not have expressly

excepted it from the prohibition. This being so, we hold that, for the purpose of the executive

order just mentioned, quarters allowance is considered additional compensation and, therefore,

prohibited.

In view of the foregoing, the petition for review is dismissed, with costs.

Paras, C.J., Feria, Pablo, Bengzon, Tuason, Montemayor and Bautista Angelo, JJ., concur.