Amendment And Revisions Cases.docx

G.R. No. 103059 August 19, 1993 REPUBLIC OF THE PHILIPPINES, Petitioner, vs. SANDIGANBAYAN and FEDERICO MORENO, Respondents. The Solicitor General for petitioner.chanrobles virtual law library Ernesto T. Zhornack, Jr. for private respondent. MELO, J.: Impleaded before the Sandiganbayan as co-defendant in the civil suit for recovery of alleged ill-gotten wealth against Lucio C. Tan, former President Ferdinand E. Marcos, and Imelda R. Marcos, was Federico B. Moreno, Chairman of Philippine Virginia Tobacco Administration, now herein private respondent. Feeling that no genuine factual issue was levelled against him by the Government and wholly convinced that the imputations against him are the bereft of factual bases, private respondent availed himself of a mode of discovery sanctioned by Rule 26 which he followed with a motion for summary judgment when the answer to the request for admission contained a major explicit admission. The Second Division of the Sandiganbayan, through Justice Escareal with whom Justices Balajadia and Grospe concurred, entertained the same perception and granted private respondent's motion for summary judgment (pp. 82 and 100, Rollo). Hence, the petition at bar.chanroblesvirtualawlibrarychanrobles virtual law library The inculpatory allegations lifted from the amended complaint pertinent to private respondent read: 2. The wrongs committed by Defendants, acting singly or collectively and in unlawful concert with one another, include the misappropriation and theft of public funds, plunder of the nation's wealth, extortion, blackmail, bribery, embezzlement: and other acts of corruption, betrayal of public trust and brazen abuse of power, as more fully, described below, all at the expense and to the grave and irreparable damage of plaintiff and the Filipino people. xxx xxx xxx xxx xxx xxx xxx xxx xxxchanrobles virtual law library 8. Defendant FEDERICO MORENO was Chairman of Philippine Virginia Tobacco Administration when Defendant Lucia C. Tan's Fortune Tobacco, Incorporated enjoyed privileges in violation of existing laws, such as but not limited to the importation and purchase of Virginia tobacco in excess of the ceiling allowed by law. xxx xxx xxx xxx xxx xxx xxx xxx xxxchanrobles virtual law library 14. Defendant Lucio C. Tan, by himself and/or in unlawful concert with Defendants Ferdinand E. Marcos and Imelda R. Marcos, and taking undue advantage of his relationship and influence with defendant Spouses, among others: xxx xxx xxx xxx xxx xxx xxx xxx xxx (h) established in May, 1985 the Northern Redrying Co., Inc. (NRCI), a Virginia Tobacco Company, which an several instances in 1986 made importations and purchases about 9,607,482.9 net kilos, in excess at the ceiling set by law, with the active collaboration of Defendants Celso C. Ranola, William T. Wong, Ernesto B. Lim, Benjamin T. Albacita who are all Directors of NRCI and at the time of the establishment of NRCI, were employees of defendant Lucio Tan. Defendant Federico Moreno, as Chairman of the Virginia Tobacco Administration, supervised, approved and/or permitted such importations and purchases. 15. The acts of Defendants, singly or collectively, and in unlawful concert with one another, constitute gross official position and authority, flagrant breach of public trust and fiduciary obligations, brazen abuse of right and power, unjust enrichment, violation of the Constitution

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and laws of the Republic of the Philippines, to the grave and irreparable damage of Plaintiff and the Filipino people. (pp. 20-42, Rollo.) On March 8, 1988 private respondent Moreno submitted his Answer, traversing the expanded complaint by contending inter alia that Section 4 of Presidential Decree No. 655 permits the importation of Virginia Tobacco pursuant to the exigencies of the tobacco industry, and that there is no law which curtails the purchase of local Virginia tobacco. At any rate, private respondent continued, his role as Chairman of the Philippine Virginia Tobacco Administration was then limited to submitting requests for importation to the President of the Philippines for approval (p. 60, Rollo).chanroblesvirtualawlibrarychanrobles virtual law library Of particular significance too, are documents which private respondent wanted the Republic to admit via a request for admission. The documents, some of which bear then President Marcos' written approval (Exhs. 2-A, 3-A, 4-A, and 5-A) are reproduced hereunder. Exh. 1 - Moreno CERTIFICATION January 03, 1991chanrobles virtual law library To Whom It May Concern:chanrobles virtual law library This is to certify that, as per National Tobacco Administration (NTA) and Philippine Virginia Tobacco Administration (PVTA) records, NORTHERN TOBACCO REDRYING COMPANY, INC. was never issued any Authority to Import Foreign Blending Tobacco during the incumbency of Justice Federico B. Moreno, former Chairman/General Manager of PVTA. It is further certified that PVTA records do not reveal/show that former Chairman Justice Federico B. Moreno has ever supervised, approved/and or permitted such tobacco importation or purchase of imported blending tobacco.chanroblesvirtualawlibrarychanrobles virtual law library This certification is issued upon the request of Justice Federico B. Moreno for record purposes. (Sgd.) Minda C. Gapuz MINDA C. GAPUZ Manager Market Development & Regulations Department ((p. 115, Rollo.) Exh. 2 - Moreno 7 September 1982 Philippine Virginia Tobacco Administration Cubao, Quezon City, Metro Manila Attention: Justice Federico B. Moreno Chairman - Officer-in-Charge Dear Sirs:chanrobles virtual law library We have the honor to apply for an Import Duty Authority of 3,000,000 kilos for the importation of foreign blending tobacco for the year 1982.chanroblesvirtualawlibrarychanrobles virtual law library For your reference, our specific tax payment for the year 1981 was P655.8 Million.chanroblesvirtualawlibrarychanrobles virtual law library We have also the honor to inform you that for the year 1981, we purchased 8.6 Million kilos (threshed and bundles) of local Virginia/Burley tobacco worth about P141.3 Million.chanroblesvirtualawlibrarychanrobles virtual law library In view of the foregoing, we hope our request will be given your kind consideration and approval.chanroblesvirtualawlibrary chanrobles virtual law library Very truly yours,chanrobles virtual law library LA SUERTE CIGAR and CIGARETTE FACTORY

(Sgd.) Chung Tiong Tay CHUNG RIONG TAY First Vice President & Assistant General Manager (p. 116, Rollo.) Exh. 2 - A - Moreno September 10, 1982 His Excellency President Ferdinand E. Marcos Malacañang, Manilachanrobles virtual law library Dear Mr. President:chanrobles virtual law library La Suerte Cigar and Cigarette Factory requests for an import quota of 3 million kilos of foreign leaf tobacco for the year 1982 to be used for blending purposes in its manufacture of cigarettes.chanroblesvirtualawlibrarychanrobles virtual law library Considering that in 1981 it purchased from the farmers, through trading centers in the North, no less than 8.6 million kilos (threshed and bundled) of local Virginia and Burley Tobacco worth about P141.3 million, and that this year it has bought substantially from the farmers tobacco at high prices, we recommend that it be granted the requested allocation to import three (3) million kilos of tobacco for blending purposes to improve the quality of its cigarettes and that PVTA be authorized to issue the corresponding license.chanroblesvirtualawlibrarychanrobles virtual law library For your consideration and approval. Respectfully, (Sgd.) Federico B. Moreno FEDERICO B. MORENO Chairman (p. 117, Rollo.) Exh. 2-B - Moreno 13 September 1982chanrobles virtual law library MEMORANDUM to Chairman Federico B. Moreno Philippine Virginia Tobacco Administrationchanrobles virtual law library I am pleased to inform you that the President has approved the request of the La Suerte Cigar and Cigarette factory for an import quota of 3 million kilos of foreign leaf tobacco for the year 1982 to be used for blending purposes in its manufacture of cigarettes and for the PVTA to issue the corresponding license. Attached is a copy of your letter dated September 10, 1982 bearing the hand written approval of the President. (Sgd.) Juan C. Tuvera JUAN C. TUVERA Presidential Executive Assistant cc.: Mr. Chung Tiong Tay First Vice President and Asst. Gen. Manager La Suerte Cigar and Cigarette Factory South Super Highway, Parañaque Metro Manila. (p. 118, Rollo.) Exh. 3 - Moreno 14 September 1982

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The Chairman/Officer-In-Charge Philippine Virginia Tobacco Administration Cubao, Quezon City Re: Authority to Import Tobacco Leaf Sir:chanrobles virtual law library In order to satisfy our continuous requirement for foreign tobacco leaf used in blending with locally grown tobacco leaf in the manufacture of our various brands of good quality cigarettes, we would like to seek your permission again to import four (4) million kilograms of foreign tobacco leaf by issuing to us the corresponding Certificate of Authority to Import as required by law.chanroblesvirtualawlibrarychanrobles virtual law library In support of our request, we would like to inform you that our company has purchased a total of close to forty-five (45) million kilograms locally grown tobacco leaf of various types for the crop year 1982, that includes thirty (30) million kilograms of Flue-Cured Virginia Tobacco; ten (10) million kilograms of Burley and five (5) million kilograms of Native Tobacco.chanroblesvirtualawlibrarychanrobles virtual law library Hoping for your favorable consideration and approval.chanroblesvirtualawlibrarychanrobles virtual law library Very truly yours, (Sgd.) Mariano G. Ordoñez MARIANO G. ORDOÑEZ Brig. Gen. AFP (Ret.) President (p. 119, Rollo.) Exh. 3-A - Moreno October 1, 1982 His Excellency President Ferdinand E. Marcos Malacañang, Manilachanrobles virtual law library Dear Mr. Presidentchanrobles virtual law library Fortune Tobacco Corporation requests for an additional import quota of four (4) million kilos of foreign leaf tobacco for the year 1982 to be used for blending purposes in its manufacture of cigarettes.chanroblesvirtualawlibrarychanrobles virtual law library Considering that in 1982, it purchased from the farmers at high prices through trading centers in the North, no less than thirty (30) million kilograms of flue-cured Virginia tobacco; ten (10) million kilograms of Burley tobacco. We recommend that it be granted the requested additional allocation to import four (4) million kilos of tobacco for blending purposes to improve the quality of its cigarettes and that PVTA be authorized to issue the corresponding license.chanroblesvirtualawlibrarychanrobles virtual law library For your consideration and approval. Respectfully, (Sgd.) Federico B. Moreno FEDERICO B. MORENO Chairman (p. 120, Rollo.) Exh. 3-B - Moreno 19 November 1982chanrobles virtual law library MEMORANDUM toChairman Federico B. Moreno Philippine Virginia Tobacco Administration

I am pleased to inform you that the President has approved the request of the Fortune Tobacco Corporation for an additional import quota of four (4) million kilos of foreign leaf tobacco for the year 1982 to be used for blending purposes in its manufacture of cigarettes, and for the PVTA to issue the corresponding license for the purpose, as embodied in your letter dated October 1, 1982, copy enclosed. (Sgd.) Juan C. Tuvera JUAN C. TUVERA Presidential Executive Assistant cc.: Brig. Gen. Mariano G. Ordoñez (Ret.) President, Fortune Tobacco Corporation P.O. Box 3706, Manila (p. 121, Rollo.) Exh. 4 - Moreno 25 May 1983 Philippine Virginia Tobacco Administration Cubao, Quezon City, Metro Manila Attention: Justice Federico B. Moreno Chairman-Officer-in-Charge Dear Sirs:chanrobles virtual law library We have the honor to apply for an Import Authority of 3,000,000 kilos for the importation of foreign blending tobacco for the year 1983.chanroblesvirtualawlibrarychanrobles virtual law library For your reference, our specific tax payment for the year 1982 was P678,789,000.00.chanroblesvirtualawlibrarychanrobles virtual law library We have also the honor to inform you that for the year 1982, we purchased 5.98 Million kilos (threshed and bundles) of local Virginia/Burley tobacco worth about 115.7 Million pesos.chanroblesvirtualawlibrarychanrobles virtual law library In view of the foregoing, we hope our request will be given your kind consideration and approval.chanroblesvirtualawlibrarychanrobles virtual law library Very truly yours,chanrobles virtual law library LA SUERTE CIGAR AND CIGARETTE FACTORY (Sgd.) Chung Tiong Tay CHUNG TIONG TAY First Vice President & Asst. General Manager (p. 122, Rollo.) Exh. 4-A - Moreno May 26, 1983 His Excellency President Ferdinand E. Marcos Malacañang, Manilachanrobles virtual law library Dear Mr. President:chanrobles virtual law library La Suerte Cigar and Cigarette Factory requests for an import quota of 3 million kilos of foreign leaf tobacco for the year 1983 to be used for blending purposes in its manufacture of cigarettes.chanroblesvirtualawlibrarychanrobles virtual law library Considering that in 1982, its specific tax payment was P678.789 million and it purchased from the farmers, through trading centers in the North, no less than 5.98 million kilos (threshed and bundled) of local Virginia and Burley tobacco worth about P115.7 million, and that this year it has bought substantially from the farmers tobacco at high prices, we recommend that it be granted the requested allocation to import three (3) million kilos of tobacco for blending

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purposes to improve the quality of its cigarettes and that PVTA be authorized to issue the corresponding license.chanroblesvirtualawlibrarychanrobles virtual law library For your consideration and approval. Respectfully, (Sgd.) Federico B. Moreno FEDERICO B. MORENO Chairman (p. 123, Rollo.) Exh- 4-B - Moreno June 20, 1983 MEMORANDUM TOChairman Federico B. Moreno Philippine Virginia Tobacco Administration Please be informed that the President has approved the request of La Suerte Cigar and Cigarette Factory to import three (3) million kilos of foreign leaf tobacco for 1983, for blending purpose, subject of your letter dated May 26, 1983, attached. (Sgd.) Juan C. Tuvera JUAN C. TUVERA Presidential Executive Assistantchanrobles virtual law library (p. 124, Rollo.) Exh. 5 - Moreno 9 April 1983 The Honorable Chairman Philippine Virginia Tobacco Administration Consolacion Building, Cubao Quezon City Subject: Request for Authority to Import Tobacco Sir:chanrobles virtual law library Please issue to us the authority to import Four (4) million kilograms of flue-cured tobacco as our initial requirement for imported tobacco for the year 1983. The imported tobacco shall be used by us for blending with locally produced tobacco in the making of our different brands quality cigarettes.chanroblesvirtualawlibrarychanrobles virtual law library We thank you for your attention and usual prompt action on every matter.chanroblesvirtualawlibrarychanrobles virtual law library Very truly yours, (Sgd.) Mariano G. Ordoñez MARIANo G. ORDOÑEZ Brigadier Gen. AFP (Ret.) Presidentchanrobles virtual law library (p. 125, Rollo.) Exh. 5-A - Moreno April 14, 1983 His Excellency President Ferdinand E. Marcos Malacañang, Manilachanrobles virtual law library Dear Mr. President:chanrobles virtual law library Fortune Tobacco Corporation requests for an import quota of four (4) million kilos of foreign leaf tobacco for the year 1983 to be used for blending purposes in its manufacture of cigarettes.chanroblesvirtualawlibrarychanrobles virtual law library

Considering that in 1982, it purchased from the farmers at high prices through trading centers in the North, no less than thirty (30) million kilograms of flue-cured Virginia tobacco; ten (10) million kilograms of Burley tobacco and is presently buying the 1983 crop at good reasonable prices, we recommend that it be granted the requested allocation to import four (4) million kilos of tobacco for blending purposes to improve the quality of its cigarettes and that PVTA be authorized to issue the corresponding license.chanroblesvirtualawlibrarychanrobles virtual law library For your consideration and approval. Respectfully, (Sgd.) Federico B. Moreno FEDERICO B. MORENO Chairman (p. 126, Rollo.) Exh. 5-B - Moreno April 22, 1983 MEMORANDUM FOR: Justice Federico B. Moreno Chairman Philippine Virginia Tobacco Administration Quezon Citychanrobles virtual law library I wish to inform you that the President has approved on 22 April 1983 your letter dated April 14, 1983 regarding the request of Fortune Tobacco Corporation for an import quota of four (4) million kilos of foreign leaf tobacco for the year 1983 to be used for blending purposes in its manufacture of cigarettes. (Sgd.) Joaquin T. Venus, Jr. JOAQUIN T. VENUS, JR. Deputy Presidential Executive Assistant (p. 127, Rollo.) The Republic reacted by admitting the genuineness of Exhibits 5-A and 5-B although it offered the caveat that it was not in a position to deny or admit the veracity of the tenor thereof inasmuch as it has no access to files of the National Tobacco Administration and the Philippine Virginia Tobacco Administration (P. 64, Rollo). This development triggered the submission by private respondent of a motion for summary judgment which posited the thesis that there is no actual issue against him vis-a-vis the sole query of whether he had supervised, approved, or permitted importations of tobacco in favor of Northern Tobacco Redrying, Co., Inc., considering the general and broad averments in the expanded complaint (p. 68, Rollo).chanroblesvirtualawlibrarychanrobles virtual law library In the course of the hearing on the motion for summary judgment on August 6, 1991, private respondent's counsel initially manifested that he was withdrawing said motion but changed his mind when Commissioner Mario C. Jalandoni of the Presidential Commission on Good Government declared that the Republic is admitting the genuineness and due execution of the documents containing President Marcos' handwritten approval (p. 1, Resolution; p. 82, Rollo).chanroblesvirtualawlibrarychanrobles virtual law library An exchange of pleadings ensued and on October 21, 1991, the impugned Resolution was promulgated which decreed the dismissal of the complaint against private respondent, but without prejudice to the continuation of the case against the other defendants, thus: Plaintiff's admission, through counsel (Com. Jalandoni) as to the genuineness and due authenticity of then President Marcos' handwritten notations approving the questioned transactions on Exhibits 3-a, 4-a and 5-a of defendant Moreno's Pre-Trial Brief practically removed or destroyed any factual or legal bases to implicate defendant Moreno therein. From the time plaintiff started compiling its evidence, testimonial as well as documentary, to support

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the filing of its original Complaint, up to the amendment thereof by an expanded Complaint on January 25, 1988, no amplification or further specification of defendant Moreno's alleged participation or involvement in the questioned transactions had been made. Even after defendant Moreno had filed his Pre-Trial Brief and, later, his "Request For Admission", plaintiff could not admit or deny the truthfulness of relevant matters of fact, or genuineness of documents marked as Exhibits 1, 2, 3, 4 and 5, inclusive, together with their sub-markings, alleging the following reasons, to wit: (1) it has no access to the files and records of the National Tobacco Administration (NTA) and the Philippine Virginia Tobacco Admininistration (PVTA); (2) it has not completely and thoroughly examined all other possible sources of information especially defendant Moreno's involvement; (3) it cannot determine with certainty the genuineness and due execution of defendant Moreno's marked exhibits and the truth of relevant allegations therein since these pertain to matters which may have extrinsic circumstances involving private and/or undocumented transaction between and among the defendants in this case; and (4) it needs more time to make complete and thorough verification through other possible documentary and testimonial evidence it may present during the trial.chanroblesvirtualawlibrarychanrobles virtual law library Thus, defendant Moreno's motion for summary judgment, viewed from the context by which plaintiff made its answer to the request for admissions, present a classic case for the affirmative application of Section 1, Rule 34 of the Rules of Court. Even if We are to take a view of the evidence most favorable to the plaintiff, giving it the benefit of all favorable inferences, the fact still remains that plaintiff had not successfully made out any bona fide issue or a genuine triable issue of fact which would warrant the denial of the instant motion and necessitate trial thereof. The test is whether the plaintiff had, in its original and Expanded Complaints, as well as in its Answer to the Request for Admission, set out, and maintained the existence of, any genuine issue of fact.chanroblesvirtualawlibrarychanrobles virtual law library As above-stated, plaintiff had admitted a vital fact which defendant Moreno had offered for admission-that then President Marcos had approved the implementation of the transactions in question. Coupled with defendant Moreno's averment in his Answer that no specific act of illegality had been committed by him, more particularly when he denied that he had any dealing with Northern Tobacco Redrying Co, Inc.; that the latter was ever authorized to import Virginia Tobacco; and that he had any acquaintance with his co-defendants Celso C. Ranola, William T. Wong, Ernesto B. Lim and Benjamin T. Albacita, which plaintiff has not, REPEAT, has not directly or indirectly controverted or overthrown, either in its expanded Complaint or in its Answer To the Request For Admission, then defendant Moreno's claim that no genuine triable issue of fact exists must be upheld. Furthermore, plaintiff has admitted that it has not dug up or found any document or record blunt or destroy the allegations of Minda C. Gapuz, PVTA Market Development and Regulations Department Manager, that defendant Moreno had ever supervised, approved and/or permitted any tobacco importation or purchase of imported blending tobacco and that PTA and PVTA records do not show any authority granted Northern Tobacco Redrying Co., Inc., to import foreign blending tobacco during defendant Moreno's incumbency as General Manager of PVTA. If at all, his admitted referral of applications for such importations to the Office of the President, which acts and approves such application through Pres. Marcos' handwritten notations on the referral letters themselves, and confirmed by memoranda of Pres. Exec. Assts. Tuvera and Venus, only shows that the specific averments of supposed irregularities on the part of defendant Moreno do not support plaintiff's cause of action based on alleged breach of public trust.chanroblesvirtualawlibrarychanrobles virtual law library Again, even if we accept plaintiff's contention that the "Answer To The Request For Admission" was filed on the last day of the extension period granted by the Court, as shown by the Registry Notice dated July 8, 1991 evidencing the mailing of a copy thereof to counsel for

defendant Moreno, and overlook the actual filing of said Answer with the Court on July 17, 1991, still we do not consider such facts decisive anymore for the purpose of sustaining the instant motion for summary judgment, inasmuch as our justifications therefor are based on the admissions and denials reflected in all of plaintiff's pleadings which are material, pertinent and relevant to the issue involved.chanroblesvirtualawlibrarychanrobles virtual law library The query is posed - should the forms of law be gone through, and the time of the court, the parties and counsel be wasted and the facts and circumstances standing incontrovertible on the record? Our answer is in the negative. The summary judgment procedure is intended to "defeat the laws' delays" by giving prompt relief to those having a clear-cut claim or defense, to provide a more adequate and elastic procedure for the protection of the rights of the parties and the prompt dispatch of litigation, and does not contemplate that a party must follow his case through the lights and shadows of the evidence in it. All that the rules require, or is meant to require, is that the party must furnish the court, with proof of the highest testimony or verification within his power, and thus eliminate any and all issues which have no basis in fact, no matter how well pleaded in form, by allowing the moving party to pierce the allegation of fact in the pleadings. In the case at bar, the incident involved in the motion for summary judgment brings to the fore and positively accentuates the blatant lack, or bankruptcy, in the Expanded Complaint as to any cause of action against defendant Moreno. The facts or combination of facts which would afford plaintiff a right to judicial interference for the purpose of holding defendant Moreno liable in this case is totally wanting. There being no genuine fact in issue, much less any cause of action against defendant Moreno, further proceedings against him would be sheer waste of time and effort. (pp. 12-17, Resolution pp. 9398, Rollo) Following the denial of the motion for reconsideration (p. 100, Rollo), petitioner ascended the judicial ladder through the present petition for certiorari ascribing wanton exercise of discretion on the part of public respondent in declaring extinct the cause of action against Moreno. The Republic argues that instead of disapproving Fortune Tobacco Corporation's application geared towards importation of tobacco, private respondent recommended approval thereof to President Marcos thereby suggesting that private respondent acted in concert with President Marcos and Lucio Tan albeit private respondent knew that the importations had already surpassed the ceiling fixed by Section 4 of Presidential Decree No. 655. Even then, the Republic was frank in representing that no triable issue of fact exists as regards the importations by Northern Redrying Co., Inc. (p. 9. Petition for Review; p. 13, Rollo), which admission in judicio was amplified in the Republic's Reply to private respondent's Comment (p. 170, Rollo).chanroblesvirtualawlibrarychanrobles virtual law library For his part, private respondent persists in advancing the idea that there is no intrinsic worth which can be gathered from the bare and general statements of petitioner's amended complaint (p. 106, Rollo).chanroblesvirtualawlibrarychanrobles virtual law library At this juncture, one cannot gainsay the efforts exerted by the Republic, through the collective action of the Presidential Commission an Good Government and the Office of the Solicitor General, in the quest for recovery of alleged ill-gotten wealth accumulated by certain individuals identified with the past regime. We must hasten to add, however, that insofar as the instant petition is concerned, we are of the opinion that the premises set forth in the principal pleading in the court a quo, only with respect to private respondent's participation, suffer a congenital deficiency considering that the allegations thereof fail to spell out the ultimate facts constitutive of the Republic's cause of action (Section 3, Rule 6, Revised Rules of Court).chanroblesvirtualawlibrarychanrobles virtual law library Paragraphs 2 and 15 of the Amended Complaint, earlier quoted, it cannot be overstressed, are mere conclusions of law unaccompanied by factual and categorical propositions. Verily, the allegations herein involved bear a striking resemblance to the assertions treated in Tantuico,

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Jr. vs. Republic (204 SCRA 428 [1991]) which prompted Justice Padilla to require the PCGG to file a bill of particulars, in the process elucidating: As quoted above, paragraph 9(a) of the complaint alleges that "Defendant Ferdinand E. Marcos, together with other Defendants, acting singly or collectively, and/or in unlawful concert with one another, in flagrant breach of public trust and of their fiduciary obligations as public officers, with gross and scandalous abuse of right and power and in brazen violation of the Constitution and laws of the Philippines, embarked upon a systematic plan to accumulate illgotten wealth." In the light of the rules on pleading and case the law cited above, the allegations that defendant Ferdinand E. Marcos, together with the other defendant's "embarked upon a systematic plan to accumulate ill-gotten wealth" and that said defendants acted "in flagrant breach of public trust and of their fiduciary obligations as public officers, with gross and scandalous abuse of right and in brazen violation of the Constitution and laws of the Philippines", are conclusions of law unsupported by factual premises.chanroblesvirtualawlibrarychanrobles virtual law library Nothing is said in the complaint about the petitioner's acts in the execution of the alleged "systematic plan to accumulate ill-gotten wealth", or which are supposed to constitute "flagrant breach of public trust", "gross and scandalous abuse of right and power", and "violations of the Constitution and laws of the Philippines". The complaint does not even allege what duties the petitioners failed to perform, or the particular rights he abused.chanroblesvirtualawlibrarychanrobles virtual law library Likewise, paragraph 15 avers that "defendant Francisco Tantuico, taking undue advantage of his position as Chairman of the Commission on Audit and with grave failure to perform his constitutional duties as such Chairman, acting in concert with Defendants Ferdinand E. Marcos, and Imelda R. Marcos facilitated and made possible the withdrawals, disbursements and questionable use of government funds as stated in the foregoing paragraphs to the grave and irreparable damage and injury of Plaintiff and the entire Filipino people." In like manner, the allegation that petitioner "took undue advantage of his position as Chairman of the Commission on Audit," that he "failed to perform his constitutional duties as such Chairman," and acting concert with Ferdinand E. Marcos and Imelda R. Marcos, "facilitated and made possible the withdrawals, disbursements, and questionable use of government funds as stated in the foregoing paragraphs, to the grave and irreparable damage and injury of plaintiff and the entire Filipino people", are mere conclusions of law. Nowhere in the complaint is there any allegation as to how such duty came about, or what petitioner's duties were, with respect to the alleged withdrawals and disbursements or how petitioner facilitated the alleged withdrawals, disbursements, or conversion of public funds and properties, nor an allegation from where the withdrawals and disbursements came from, except for a general allegation that they came from the national treasury. On top of that, the complaint does not even contain any factual allegation which would show that whatever withdrawals, disbursements, or conversions were made, were indeed subject to audit by the COA.chanroblesvirtualawlibrarychanrobles virtual law library In this connection, it may well be stated that the Commission on Audit (COA), is an independent, constitutional commission, which has no power or authority to withdraw, disburse, or use funds and property pertaining to other government offices or agencies. This is done by the agency or office itself, the chief or head of which is primarily and directly responsible for the funds and property pertaining to such office or agency. The COA is merely authorized to audit, examine and settle accounts of the various government offices or agencies, and this task is performed not by the Chairman of the COA but by the COA auditors assigned to the government office or agency subject to COA audit.chanroblesvirtualawlibrarychanrobles virtual law library Thus, in each agency of the government, there is an auditing unit headed by an auditor, whose duty is to audit and settle the accounts, funds, financial transactions, and resources of the

agency under his audit jurisdiction. The decision of the auditor is appealable to the Regional Director, whose decision, is in turn, appealable to the COA Manager. Any party dissatisfied with the decision of the COA Manager may bring the matter on appeal to the Commission proper, a collegiate body exercising quasi-judicial functions, composed of three (3) COA Commissioners, with the COA Chairman as presiding officer. It is only at this stage that the COA Chairman would come to know of the matter and be called upon to act on the same, and only if an aggrieved party brings the matter on appeal.chanroblesvirtualawlibrarychanrobles virtual law library In other words, the Chairman of the COA does not participate in or personally audit all disbursements and withdrawals of government funds, as well as transactions involving government property. The averments in the particular paragraph of the complaint merely assume that petitioner participated in or personally audited all disbursements and withdrawals of government funds, and all transactions involving government property. Hence, the alleged withdrawals, disbursements and questionable use of government funds could not have been, as held by respondent Sandiganbayan, "within the peculiar and intimate knowledge of petitioner as Chairman of the COA."chanrobles virtual law library The complaint further avers in paragraph 17 that "the following Defendants acted as dummies, nominees and/or agents by allowing themselves (i) to be instruments in accumulating ill-gotten wealth through government concessions, orders and/or policies prejudicial to Plaintiff, or (ii) to be incorporators, directors, or members of corporations beneficially held and/or controlled by Defendants Ferdinand E. Marcos, Imelda R. Marcos, Benjamin (Kokoy) T. Romualdez and Juliette Gomez Romualdez in order to conceal and prevent recovery of assets illegally obtained: Francisco Tantuico. . . ." Again, the allegation that petitioner acted as dummy, nominee, or agent by allowing himself "to be used as instrument in accumulating ill-gotten wealth through government concessions, orders and/or policies prejudicial to Plaintiff" or "to be (an) incorporator, director, or member of corporations beneficially held and/or controlled" by the Marcoses and Romualdezes, is a conclusion of law without factual basis.chanroblesvirtualawlibrarychanrobles virtual law library The complaint does not contain any allegation as to how petitioner became, or why he is perceived to be, a dummy, nominee or agent. Besides, there is no averment in the complaint how petitioner allowed himself to be used as instrument in the accumulation of ill-gotten wealth, what the concessions, orders and/or policies prejudicial to plaintiff are, why they are prejudicial, and what petitioner had to do with the granting, issuance, and or formulation of such concessions, orders, and/or policies. Moreover, Annex "A" of the complaint list down sixty-one (61) corporations which are supposed to be beneficially owned or controlled by the Marcoses and Romualdezes. However, the complaint does not state which corporations petitioner is supposed to be a stockholder, director, member, dummy, nominee and/or agent. More significantly, the petitioner's name does not even appear in Annex "B" of the complaint which is a listing of the alleged "Positions and Participations of Some Defendants".chanroblesvirtualawlibrarychanrobles virtual law library The allegations in the complaint, above-referred to, pertaining to petitioner are, therefore, deficient in that they merely articulate conclusions of law and presumptions unsupported by factual premises. (at pp. 444-447). What about Paragraph 14 (h) which inculpates private respondent when he supposedly "supervised, approved and/or permitted such importations and purchases"? It may be recalled that it was this portion of the Amended Complaint which the thrust of private respondent's defense that elicited the corresponding admission from the Republic on the genuineness and due execution of Exhibits 5-A and 5-B. In so responding, the Republic failed to realize that it practically pursued a diametrically opposed and fatal posture because the candid statement carried with it the express acknowledgment that it was President Marcos, not private respondent, who approved the assailed importations. Withal, the language of Exhibits 2-A, 2-B,

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3-A, and 3-B show that private respondent, as the Chairman of the Philippine Virginia Tobacco Administration, had no authority or discretion to deny, much less to approve, the corresponding license to import tobacco without referring the matter to the President. Indeed, there would have been no need to submit every application for the President's action if private respondent were clothed with the appropriate faculty to decide on the propriety of importation. Consequently, Paragraph 14 (h) of the expanded complaint can hardly serve as legal basis to inculpate private respondent.chanroblesvirtualawlibrarychanrobles virtual law library At any rate, the Republic's propensity to admit statements from the opposing party with prejudicial repercussions is easily discernible and can be confirmed from the pleadings submitted to us which contain the candid acknowledgment that there is no genuine triable issue of fact insofar as Northern Redrying Co., Inc. is concerned (p. 9, Petition for Review, p. 13, Rollo; pp. 5-7, Reply to Private Respondent's Comments, pp. 170-172, Rollo). Notwithstanding said categorical admission in judicio, petitioner offers the excuse that the scenario is different as to Fortune Tobacco Corporation. Yet, we have already said with sufficient emphasis that in view of the admission in the Answer to the request for admission (p. 64, Rollo) as to the genuineness and due execution of the handwritten approval of President Marcos on private respondent's letter vis-a-vis Fortune Tobacco's request for importation (Exhibit 5-A; p. 126, Rollo), petitioner's efforts to press an imaginary issue on this point must be brushed aside on account of the legal axiom against vacillating postures (Article 1431, New Civil Code; Section 4, Rule 129; Section 2(a), Rule 131, Revised Rules on Evidence; Caltex (Philippines), Inc. vs. Court of Appeals, 212 SCRA 448 [1992]); Mentholatum Co., Inc. vs. Managliman, 72 Phil. 524 [1941]).chanroblesvirtualawlibrarychanrobles virtual law library The Sandiganbayan, therefore, correctly rendered the summary judgment in view of the selfdefeating representations of petitioner, for such recourse is well within the purview of section 3, Rule 34 of the Revised Rules of court that: . . . After the hearing, the judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file together with the affidavits, show that, except as to the amount to any material fact and that the moving party is entitled to a judgment as a matter of law. apart from the fact that the expanded complaint was not crafted with enough significant and substantial allegation of ultimate facts to warrant continuation of the trial against private respondent (1 Martin, Rules of Court in the Philippines, Revised ed., 1989, p. 329).chanroblesvirtualawlibrarychanrobles virtual law library WHEREFORE, the petition is hereby DISMISSED and the Resolutions of the Sandiganbayan dated October 21, 1991 and December 13, 1991, AFFIRMED.chanroblesvirtualawlibrarychanrobles virtual law library SO ORDERED. Cruz, Feliciano, Padilla, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, Quiason, Puno and Vitug, JJ., concur

SECOND DIVISION

[G.R. NO. 129406 : March 6, 2006] REPUBLIC OF THE PHILIPPINES represented by the PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG), Petitioner, v. SANDIGANBAYAN (SECOND DIVISION) and ROBERTO S. BENEDICTO, Respondents. D E C I S I O N GARCIA, J.: Before the Court is this petition for certiorari under Rule 65 of the Rules of Court to nullify and set aside the March 28, 19951 and March 13, 19972 Resolutions of the Sandiganbayan, Second Division, in Civil Case No. 0034, insofar as said resolutions ordered the Presidential Commission on Good Government (PCGG) to pay private respondent Roberto S. Benedicto or his corporations the value of 227 shares of stock of the Negros Occidental Golf and Country Club, Inc. (NOGCCI) at P150,000.00 per share, registered in the name of said private respondent or his corporations. The facts: Civil Case No. 0034 entitled Republic of the Philippines, plaintiff, v. Roberto S. Benedicto, et al., defendants, is a complaint for reconveyance, reversion, accounting, reconstitution and damages. The case is one of several suits involving ill-gotten or unexplained wealth that petitioner Republic, through the PCGG, filed with the Sandiganbayan against private respondent Roberto S. Benedicto and others pursuant to Executive Order (EO) No. 14,3series of 1986. Pursuant to its mandate under EO No. 1,4 series of 1986, the PCGG issued writs placing under sequestration all business enterprises, entities and other properties, real and personal, owned or registered in the name of private respondent Benedicto, or of corporations in which he appeared to have controlling or majority interest. Among the properties thus sequestered and taken over by PCGG fiscal agents were the 227 shares in NOGCCI owned by private respondent Benedicto and registered in his name or under the names of corporations he owned or controlled. Following the sequestration process, PCGG representatives sat as members of the Board of Directors of NOGCCI, which passed, sometime in October 1986, a resolution effecting a corporate policy change. The change consisted of assessing a monthly membership due of P150.00 for each NOGCCI share. Prior to this resolution, an investor purchasing more than one NOGCCI share was exempt from paying monthly membership due for the second and subsequent shares that he/she owned. Subsequently, on March 29, 1987, the NOGCCI Board passed another resolution, this time increasing the monthly membership due from P150.00 to P250.00 for each share. As sequestrator of the 227 shares of stock in question, PCGG did not pay the corresponding monthly membership due thereon totaling P2,959,471.00. On account thereof, the 227 sequestered shares were declared delinquent to be disposed of in an auction sale. Apprised of the above development and evidently to prevent the projected auction sale of the same shares, PCGG filed a complaint for injunction with the Regional Trial Court (RTC) of Bacolod City, thereat docketed as Civil Case No. 5348. The complaint, however, was dismissed, paving the way for the auction sale for the delinquent 227 shares of stock. On August 5, 1989, an auction sale was conducted. On November 3, 1990, petitioner Republic and private respondent Benedicto entered into a Compromise Agreement in Civil Case No. 0034. The agreement contained a general release clause5 whereunder petitioner Republic agreed and bound itself to lift the sequestration on the 227 NOGCCI shares, among other Benedicto's properties, petitioner Republic acknowledging that it was within private respondent Benedicto's capacity to acquire the same shares out of his income from business and the exercise of his profession.6 Implied in this undertaking is the recognition by petitioner Republic that the subject shares of stock could not have been illgotten.

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In a decision dated October 2, 1992, the Sandiganbayan approved the Compromise Agreement and accordingly rendered judgment in accordance with its terms. In the process of implementing the Compromise Agreement, either of the parties would, from time to time, move for a ruling by the Sandiganbayan on the proper manner of implementing or interpreting a specific provision therein. On February 22, 1994, Benedicto filed in Civil Case No. 0034 a "Motion for Release from Sequestration and Return of Sequestered Shares/Dividends" praying, inter alia, that his NOGCCI shares of stock be specifically released from sequestration and returned, delivered or paid to him as part of the parties' Compromise Agreement in that case. In a Resolution7promulgated on December 6, 1994, the Sandiganbayan granted Benedicto's aforementioned motion but placed the subject shares under the custody of its Clerk of Court, thus: WHEREFORE, in the light of the foregoing, the said "Motion for Release From Sequestration and Return of Sequestered Shares/Dividends" is hereby GRANTED and it is directed that said shares/dividends be delivered/placed under the custody of the Clerk of Court, Sandiganbayan, Manila subject to this Court's disposition. On March 28, 1995, the Sandiganbayan came out with the herein first assailed Resolution,8 which clarified its aforementioned December 6, 1994 Resolution and directed the immediate implementation thereof by requiring PCGG, among other things: (b) To deliver to the Clerk of Court the 227 sequestered shares of [NOGCCI] registered in the name of nominees of ROBERTO S. BENEDICTO free from all liens and encumbrances, or in default thereof, to pay their value at P150,000.00 per share which can be deducted from [the Republic's] cash share in the Compromise Agreement. [Words in bracket added] (Emphasis Supplied). Owing to PCGG's failure to comply with the above directive, Benedicto filed in Civil Case No. 0034 a Motion for Compliance dated July 25, 1995, followed by an Ex-Parte Motion for Early Resolution dated February 12, 1996. Acting thereon, the Sandiganbayan promulgated yet another Resolution9 on February 23, 1996, dispositively reading: WHEREFORE, finding merit in the instant motion for early resolution and considering that, indeed, the PCGG has not shown any justifiable ground as to why it has not complied with its obligation as set forth in the Order of December 6, 1994 up to this date and which Order was issued pursuant to the Compromise Agreement and has already become final and executory, accordingly, the Presidential Commission on Good Government is hereby given a final extension of fifteen (15) days from receipt hereof within which to comply with the Order of December 6, 1994 as stated hereinabove. On April 1, 1996, PCGG filed a Manifestation with Motion for Reconsideration,10 praying for the setting aside of the Resolution of February 23, 1996. On April 11, 1996, private respondent Benedicto filed a Motion to Enforce Judgment Levy. Resolving these two motions, the Sandiganbayan, in its second assailed Resolution11 dated March 13, 1997, denied that portion of the PCGG's Manifestation with Motion for Reconsideration concerning the subject 227 NOGCCI shares and granted Benedicto's Motion to Enforce Judgment Levy. Hence, the Republic's present recourse on the sole issue of whether or not the public respondent Sandiganbayan, Second Division, gravely abused its discretion in holding that the PCGG is at fault for not paying the membership dues on the 227 sequestered NOGCCI shares of stock, a failing which eventually led to the foreclosure sale thereof. The petition lacks merit. To begin with, PCGG itself does not dispute its being considered as a receiver insofar as the sequestered 227 NOGCCI shares of stock are concerned.12 PCGG also acknowledges that as such receiver, one of its functions is to pay outstanding debts pertaining to the sequestered entity or property,13 in this case the 227 NOGCCI shares in question. It contends, however, that membership dues owing to a golf club cannot be considered as an outstanding debt for

which PCGG, as receiver, must pay. It also claims to have exercised due diligence to prevent the loss through delinquency sale of the subject NOGCCI shares, specifically inviting attention to the injunctive suit, i.e., Civil Case No. 5348, it filed before the RTC of Bacolod City to enjoin the foreclosure sale of the shares. The filing of the injunction complaint adverted to, without more, cannot plausibly tilt the balance in favor of PCGG. To the mind of the Court, such filing is a case of acting too little and too late. It cannot be over-emphasized that it behooved the PCGG's fiscal agents to preserve, like a responsible father of the family, the value of the shares of stock under their administration. But far from acting as such father, what the fiscal agents did under the premises was to allow the element of delinquency to set in before acting by embarking on a tedious process of going to court after the auction sale had been announced and scheduled. The PCGG's posture that to the owner of the sequestered shares rests the burden of paying the membership dues is untenable. For one, it lost sight of the reality that such dues are basically obligations attached to the shares, which, in the final analysis, shall be made liable, thru delinquency sale in case of default in payment of the dues. For another, the PCGG as sequestrator-receiver of such shares is, as stressed earlier, duty bound to preserve the value of such shares. Needless to state, adopting timely measures to obviate the loss of those shares forms part of such duty and due diligence. The Sandiganbayan, to be sure, cannot plausibly be faulted for finding the PCGG liable for the loss of the 227 NOGCCI shares. There can be no quibbling, as indeed the graft court so declared in its assailed and related resolutions respecting the NOGCCI shares of stock, that PCGG's fiscal agents, while sitting in the NOGCCI Board of Directors agreed to the amendment of the rule pertaining to membership dues. Hence, it is not amiss to state, as did the Sandiganbayan, that the PCGG-designated fiscal agents, no less, had a direct hand in the loss of the sequestered shares through delinquency and their eventual sale through public auction. While perhaps anti-climactic to so mention it at this stage, the unfortunate loss of the shares ought not to have come to pass had those fiscal agents prudently not agreed to the passage of the NOGCCI board resolutions charging membership dues on shares without playing representatives. Given the circumstances leading to the auction sale of the subject NOGCCI shares, PCGG's lament about public respondent Sandiganbayan having erred or, worse still, having gravely abused its discretion in its determination as to who is at fault for the loss of the shares in question can hardly be given cogency. For sure, even if the Sandiganbayan were wrong in its findings, which does not seem to be in this case, it is a well-settled rule of jurisprudence that certiorari will issue only to correct errors of jurisdiction, not errors of judgment. Corollarily, errors of procedure or mistakes in the court's findings and conclusions are beyond the corrective hand of certiorari .14 The extraordinary writ of certiorari may be availed only upon a showing, in the minimum, that the respondent tribunal or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion.15 The term "grave abuse of discretion" connotes capricious and whimsical exercise of judgment as is equivalent to excess, or a lack of jurisdiction.16 The abuse must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility.17 Sadly, this is completely absent in the present case. For, at bottom, the assailed resolutions of the Sandiganbayan did no more than to direct PCGG to comply with its part of the bargain under the compromise agreement it freely entered into with private respondent Benedicto. Simply put, the assailed resolutions of the Sandiganbayan have firm basis in fact and in law. Lest it be overlooked, the issue of liability for the shares in question had, as both public and private respondents asserted, long become final and executory. Petitioner's narration of facts

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in its present petition is even misleading as it conveniently fails to make reference to two (2) resolutions issued by the Sandiganbayan. We refer to that court's resolutions of December 6, 199418 and February 23, 199619 as well as several intervening pleadings which served as basis for the decisions reached therein. As it were, the present petition questions only and focuses on the March 28, 199520 and March 13, 199721 resolutions, which merely reiterated and clarified the graft court's underlying resolution of December 6, 1994. And to place matters in the proper perspective, PCGG's failure to comply with the December 6, 1994 resolution prompted the issuance of the clarificatory and/or reiteratory resolutions aforementioned. In a last-ditch attempt to escape liability, petitioner Republic, through the PCGG, invokes state immunity from suit.22 As argued, the order for it to pay the value of the delinquent shares would fix monetary liability on a government agency, thus necessitating the appropriation of public funds to satisfy the judgment claim.23 But, as private respondent Benedicto correctly countered, the PCGG fails to take stock of one of the exceptions to the state immunity principle, i.e., when the government itself is the suitor, as in Civil Case No. 0034. Where, as here, the State itself is no less the plaintiff in the main case, immunity from suit cannot be effectively invoked.24 For, as jurisprudence teaches, when the State, through its duly authorized officers, takes the initiative in a suit against a private party, it thereby descends to the level of a private individual and thus opens itself to whatever counterclaims or defenses the latter may have against it.25 Petitioner Republic's act of filing its complaint in Civil Case No. 0034 constitutes a waiver of its immunity from suit. Being itself the plaintiff in that case, petitioner Republic cannot set up its immunity against private respondent Benedicto's prayers in the same case. In fact, by entering into a Compromise Agreement with private respondent Benedicto, petitioner Republic thereby stripped itself of its immunity from suit and placed itself in the same level of its adversary. When the State enters into contract, through its officers or agents, in furtherance of a legitimate aim and purpose and pursuant to constitutional legislative authority, whereby mutual or reciprocal benefits accrue and rights and obligations arise therefrom, the State may be sued even without its express consent, precisely because by entering into a contract the sovereign descends to the level of the citizen. Its consent to be sued is implied from the very act of entering into such contract,26breach of which on its part gives the corresponding right to the other party to the agreement. Finally, it is apropos to stress that the Compromise Agreement in Civil Case No. 0034 envisaged the immediate recovery of alleged ill-gotten wealth without further litigation by the government, and buying peace on the part of the aging Benedicto.27 Sadly, that stated objective has come to naught as not only had the litigation continued to ensue, but, worse, private respondent Benedicto passed away on May 15, 2000,28 with the trial of Civil Case No. 0034 still in swing, so much so that the late Benedicto had to be substituted by the administratrix of his estate.29 WHEREFORE, the instant petition is hereby DISMISSED. SO ORDERED.

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

MANUEL B. IMBONG, Petitioner, vs. JAIME FERRER, as Chairman of the Comelec, LINO M. PATAJO and CESAR MILAFLOR, as members thereof, Respondents. G.R. No. L-32443 September 11, 1970 IN THE MATTER OF A PETITION FOR DECLARATORY JUDGMENT REGARDING THE VALIDITY OF R.A. No. 6132, OTHERWISE KNOWN AS THE CONSTITUTIONAL CONVENTION ACT OF 1970. RAUL M. GONZALES, Petitioner, vs. COMELEC, Respondent. Manuel B. Imbong in his own behalf. Raul M. Gonzales in his own behalf. Office of the Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General Ricardo L. Pronove, Jr., and Solicitors Raul I. Goco, Bernardo P. Pardo, Rosalio A. de Leon, Vicente A. Torres and Guillermo C. Nakar for respondents. Lorenzo Tañada, Arturo Tolentino, Jovito Salonga and Emmanuel Pelaez as amici curiae. MAKASIAR, J.: These two separate but related petitions for declaratory relief were filed pursuant to Sec. 19 of R.A. No. 6132 by petitioners Manuel B. Imbong and Raul M. Gonzales, both members of the Bar, taxpayers and interested in running as candidates for delegates to the Constitutional Convention. Both impugn the constitutionality of R.A. No. 6132, claiming during the oral argument that it prejudices their rights as such candidates. After the Solicitor General had filed answers in behalf the respondents, hearings were held at which the petitioners and the amici curiae, namely Senator Lorenzo Tañada, Senator Arturo Tolentino, Senator Jovito Salonga, and Senator Emmanuel Pelaez argued orally.chanroblesvirtualawlibrarychanrobles virtual law library It will be recalled that on March 16, 1967, Congress, acting as a Constituent Assembly pursuant to Art. XV of the Constitution, passed Resolution No. 2 which among others called for a Constitutional Convention to propose constitutional amendments to be composed of two delegates from each representative district who shall have the same qualifications as those of Congressmen, to be elected on the second Tuesday of November, 1970 in accordance with the Revised Election Code.chanroblesvirtualawlibrarychanrobles virtual law library After the adoption of said Res. No. 2 in 1967 but before the November elections of that year, Congress, acting as a legislative body, enacted Republic Act No. 4914 implementing the aforesaid Resolution No. 2 and practically restating in toto the provisions of said Resolution No. 2.chanroblesvirtualawlibrarychanrobles virtual law library On June 17, 1969, Congress, also acting as a Constituent Assembly, passed Resolution No. 4 amending the aforesaid Resolution No. 2 of March 16, 1967 by providing that the convention "shall be composed of 320 delegates apportioned among the existing representative districts according to the number of their respective inhabitants: Provided, that a representative district shall be entitled to at least two delegates, who shall have the same qualifications as those required of members of the House of Representatives," 1 "and that any other details relating to the specific apportionment of delegates, election of delegates to, and the holding of, the Constitutional Convention shall be embodied in an implementing legislation: Provided, that it shall not be inconsistent with the provisions of this Resolution." 2chanrobles virtual law library On August 24, 1970, Congress, acting as a legislative body, enacted Republic Act No. 6132, implementing Resolutions Nos. 2 and 4, and expressly repealing R.A. No. 4914. 3chanrobles virtual law library Petitioner Raul M. Gonzales assails the validity of the entire law as well as the particular provisions embodied in Sections 2, 4, 5, and par. 1 of 8(a). Petitioner Manuel B. Imbong impugns the constitutionality of only par. I of Sec. 8(a) of said R.A. No. 6132 practically on the same grounds advanced by petitioner Gonzales. I

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The validity of Sec. 4 of R.A. No. 6132, which considers, all public officers and employees, whether elective or appointive, including members of the Armed Forces of the Philippines, as well as officers and employees of corporations or enterprises of the government, as resigned from the date of the filing of their certificates of candidacy, was recently sustained by this Court, on the grounds, inter alia, that the same is merely an application of and in consonance with the prohibition in Sec. 2 of Art. XII of the Constitution and that it does not constitute a denial of due process or of the equal protection of the law. Likewise, the constitutionality of paragraph 2 of Sec. 8(a) of R.A. No. 6132 was upheld. 4 II Without first considering the validity of its specific provisions, we sustain the constitutionality of the enactment of R.A. No. 6132 by Congress acting as a legislative body in the exercise of its broad law-making authority, and not as a Constituent Assembly, because 1. Congress, when acting as a Constituent Assembly pursuant to Art. XV of the Constitution, has full and plenary authority to propose Constitutional amendments or to call a convention for the purpose, by a three-fourths vote of each House in joint session assembled but voting separately. Resolutions Nos. 2 and 4 calling for a constitutional convention were passed by the required three-fourths vote.chanroblesvirtualawlibrarychanrobles virtual law library 2. The grant to Congress as a Constituent Assembly of such plenary authority to call a constitutional convention includes, by virtue of the doctrine of necessary implication, all other powers essential to the effective exercise of the principal power granted, such as the power to fix the qualifications, number, apportionment, and compensation of the delegates as well as appropriation of funds to meet the expenses for the election of delegates and for the operation of the Constitutional Convention itself, as well as all other implementing details indispensable to a fruitful convention. Resolutions Nos. 2 and 4 already embody the abovementioned details, except the appropriation of funds.chanroblesvirtualawlibrarychanrobles virtual law library 3. While the authority to call a constitutional convention is vested by the present Constitution solely and exclusively in Congress acting as a Constituent Assembly, the power to enact the implementing details, which are now contained in Resolutions Nos. 2 and 4 as well as in R.A. No. 6132, does not exclusively pertain to Congress acting as a Constituent Assembly. Such implementing details are matters within the competence of Congress in the exercise of its comprehensive legislative power, which power encompasses all matters not expressly or by necessary implication withdrawn or removed by the Constitution from the ambit of legislative action. And as lone as such statutory details do not clash with any specific provision of the constitution, they are valid.chanroblesvirtualawlibrarychanrobles virtual law library 4. Consequently, when Congress, acting as a Constituent Assembly, omits to provide for such implementing details after calling a constitutional convention, Congress, acting as a legislative body, can enact the necessary implementing legislation to fill in the gaps, which authority is expressly recognized in Sec. 8 of Res No. 2 as amended by Res. No. 4.chanroblesvirtualawlibrarychanrobles virtual law library 5. The fact that a bill providing for such implementing details may be vetoed by the President is no argument against conceding such power in Congress as a legislative body nor present any difficulty; for it is not irremediable as Congress can override the Presidential veto or Congress can reconvene as a Constituent Assembly and adopt a resolution prescribing the required implementing details. III Petitioner Raul M. Gonzales asserts that Sec. 2 on the apportionment of delegates is not in accordance with proportional representation and therefore violates the Constitution and the intent of the law itself, without pinpointing any specific provision of the Constitution with which it collides.chanroblesvirtualawlibrarychanrobles virtual law library

Unlike in the apportionment of representative districts, the Constitution does not expressly or impliedly require such apportionment of delegates to the convention on the basis of population in each congressional district. Congress, sitting as a Constituent Assembly, may constitutionally allocate one delegate for, each congressional district or for each province, for reasons of economy and to avoid having an unwieldy convention. If the framers of the present Constitution wanted the apportionment of delegates to the convention to be based on the number of inhabitants in each representative district, they would have done so in so many words as they did in relation to the apportionment of the representative districts. 5chanrobles virtual law library The apportionment provided for in Sec. 2 of R.A. No. 6132 cannot possibly conflict with its own intent expressed therein; for it merely obeyed and implemented the intent of Congress acting as a Constituent Assembly expressed in Sec. 1 of Res. No. 4, which provides that the 320 delegates should be apportioned among the existing representative districts according to the number of their respective inhabitants, but fixing a minimum of at least two delegates for a representative district. The presumption is that the factual predicate, the latest available official population census, for such apportionment was presented to Congress, which, accordingly employed a formula for the necessary computation to effect the desired proportional representation.chanroblesvirtualawlibrarychanrobles virtual law library The records of the proceedings on Senate Bill No. 77 sponsored by Senator Pelaez which is now R.A. No. 6132, submitted to this Tribunal by the amici curiae, show that it based its apportionment of the delegates on the 1970 official preliminary population census taken by the Bureau of Census and Statistics from May 6 to June 30, 1976; and that Congress adopted the formula to effect a reasonable apportionment of delegates. The Director of the Bureau of Census and Statistics himself, in a letter to Senator Pelaez dated July 30, 1970, stated that "on the basis of the preliminary count of the population, we have computed the distribution of delegates to the Constitutional Convention based on Senate Bill 77 (p. 2 lines 5 to 32 and p. 3 line 12) which is a fair and an equitable method of distributing the delegates pursuant to the provisions of the joint Resolution of both Houses No. 2, as amended. Upon your request at the session of the Senate-House Conference Committee meeting last night, we are submitting herewith the results of the computation on the basis of the above-stated method."chanrobles virtual law library Even if such latest census were a preliminary census, the same could still be a valid basis for such apportionment. 6 The fact that the lone and small congressional district of Batanes, may be over-represented, because it is allotted two delegates by R.A. No. 6132 despite the fact that it has a population very much less than several other congressional districts, each of which is also allotted only two delegates, and therefore under-represented, vis-a-vis Batanes alone, does not vitiate the apportionment as not effecting proportional representation. Absolute proportional apportionment is not required and is not possible when based on the number of inhabitants, for the population census cannot be accurate nor complete, dependent as it is on the diligence of the census takers, aggravated by the constant movement of population, as well as daily death and birth. It is enough that the basis employed is reasonable and the resulting apportionment is substantially proportional. Resolution No. 4 fixed a minimum of two delegates for a congressional district.chanroblesvirtualawlibrarychanrobles virtual law library While there may be other formulas for a reasonable apportionment considering the evidence submitted to Congress by the Bureau of Census and Statistics, we are not prepared to rule that the computation formula adopted by, Congress for proportional representation as, directed in Res. No. 4 is unreasonable and that the apportionment provided in R.A. No. 6132 does not constitute a substantially proportional representation.chanroblesvirtualawlibrarychanrobles virtual law library

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In the Macias case, relied on by petitioner Gonzales, the apportionment law, which was nullified as unconstitutional, granted more representatives to a province with less population than the provinces with more inhabitants. Such is not the case here, where under Sec. 2 of R.A. No. 6132 Batanes is allotted only two delegates, which number is equal to the number of delegates accorded other provinces with more population. The present petitions therefore do not present facts which fit the mould of the doctrine in the case of Macias et al. vs. Comelec, supra.chanroblesvirtualawlibrarychanrobles virtual law library The impossibility of absolute proportional representation is recognized by the Constitution itself when it directs that the apportionment of congressional districts among the various provinces shall be "as nearly as may be according to their respective inhabitants, but each province shall have at least one member" (Sec. 5, Art. VI, Phil. Const., emphasis supplied). The employment of the phrase "as nearly as may be according to their respective inhabitants" emphasizes the fact that the human mind can only approximate a reasonable apportionment but cannot effect an absolutely proportional representation with mathematical precision or exactitude. IV Sec. 5 of R.A. 6132 is attacked on the ground that it is an undue deprivation of liberty without due process of law and denies the equal protection of the laws. Said Sec. 5 disqualifies any elected delegate from running "for any public office in any election" or from assuming "any appointive office or position in any branch of the government government until after the final adjournment of the Constitutional Convention."chanrobles virtual law library That the citizen does not have any inherent nor natural right to a public office, is axiomatic under our constitutional system. The State through its Constitution or legislative body, can create an office and define the qualifications and disqualifications therefor as well as impose inhibitions on a public officer. Consequently, only those with qualifications and who do not fall under any constitutional or statutory inhibition can be validly elected or appointed to a public office. The obvious reason for the questioned inhibition, is to immunize the delegates from the perverting influence of self-interest, party interest or vested interest and to insure that he dedicates all his time to performing solely in the interest of the nation his high and well nigh sacred function of formulating the supreme law of the land, which may endure for generations and which cannot easily be changed like an ordinary statute. With the disqualification embodied in Sec. 5, the delegate will not utilize his position as a bargaining leverage for concessions in the form of an elective or appointive office as long as the convention has not finally adjourned. The appointing authority may, by his appointing power, entice votes for his own proposals. Not love for self, but love for country must always motivate his actuations as delegate; otherwise the several provisions of the new Constitution may only satisfy individual or special interests, subversive of the welfare of the general citizenry. It should be stressed that the disqualification is not permanent but only temporary only to continue until the final adjournment of the convention which may not extend beyond one year. The convention that framed the present Constitution finished its task in approximately seven months - from July 30, 1934 to February 8, 1935.chanroblesvirtualawlibrarychanrobles virtual law library As admitted by petitioner Gonzales, this inhibition finds analogy in the constitutional provision prohibiting a member of Congress, during the time for which he was elected, from being appointed to any civil office which may have been created or the emolument whereof shall have been increased while he was a member of the Congress. (Sec. 16, Art. VI, Phil. Constitution.)chanrobles virtual law library As observed by the Solicitor General in his Answer, the overriding objective of the challenged disqualification, temporary in nature, is to compel the elected delegates to serve in full their term as such and to devote all their time to the convention, pursuant to their representation and commitment to the people; otherwise, his seat in the convention will be vacant and his constituents will be deprived of a voice in the convention. The inhibition is likewise "designed to

prevent popular political figures from controlling elections or positions. Also it is a brake on the appointing power, to curtail the latter's desire to 'raid' the convention of "talents" or attempt to control the convention." (p. 10, Answer in L-32443.)chanrobles virtual law library Thus the challenged disqualification prescribed in Sec. 5 of R.A. No. 6132 is a valid limitation on the right to public office pursuant to state police power as it is reasonable and not arbitrary.chanroblesvirtualawlibrarychanrobles virtual law library The discrimination under Sec. 5 against delegates to the Constitutional Convention is likewise constitutional; for it is based on a substantial distinction which makes for real differences, is germane to the purposes of the law, and applies to all members of the same class. 7 The function of a delegate is more far-reaching and its effect more enduring than that of any ordinary legislator or any other public officer. A delegate shapes the fundamental law of the land which delineates the essential nature of the government, its basic organization and powers, defines the liberties of the people, and controls all other laws. Unlike ordinary statutes, constitutional amendments cannot be changed in one or two years. No other public officer possesses such a power, not even the members of Congress unless they themselves, propose constitutional amendments when acting as a Constituent Assembly pursuant to Art. XV of the Constitution. The classification, therefore, is neither whimsical nor repugnant to the sense of justice of the community.chanroblesvirtualawlibrarychanrobles virtual law library As heretofore intimated, the inhibition is relevant to the object of the law, which is to insure that the proposed amendments are meaningful to the masses of our people and not designed for the enhancement of selfishness, greed, corruption, or injustice.chanroblesvirtualawlibrarychanrobles virtual law library Lastly, the disqualification applies to all the delegates to the convention who will be elected on the second Tuesday of November, 1970. V Paragraph 1, Sec. 8(a) of R.A. No. 6132 is impugned by both petitioners as violative of the constitutional guarantees of due process, equal protection of the laws, freedom of expressions, freedom of assembly and freedom of association.chanroblesvirtualawlibrarychanrobles virtual law library This Court ruled last year that the guarantees of due process, equal protection of the laws, peaceful assembly, free expression, and the right of association are neither absolute nor illimitable rights; they are always subject to the pervasive and dormant police power of the State and may be lawfully abridged to serve appropriate and important public interests. 8chanrobles virtual law library In said Gonzalez vs. Comelec case the Court applied the clear and present danger test to determine whether a statute which trenches upon the aforesaid Constitutional guarantees, is a legitimate exercise of police power. 9chanrobles virtual law library Paragraph 1 of Sec. 8(a), R.A. No. 6132 prohibits: 1. any candidate for delegate to the convention (a) from representing, orchanrobles virtual law library (b) allowing himself to be represented as being a candidate of any political party or any other organization; and 2. any political party, political group, political committee, civic, religious, professional or other organizations or organized group of whatever nature from (a) intervening in the nomination of any such candidate or in the filing of his certificate, orchanrobles virtual law library (b) from giving aid or support directly or indirectly, material or otherwise, favorable to or against his campaign for election. The ban against all political parties or organized groups of whatever nature contained in par. 1 of Sec. 8(a), is confined to party or organization support or assistance, whether material, moral, emotional or otherwise. The very Sec. 8(a) in its provisos permits the candidate to

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utilize in his campaign the help of the members of his family within the fourth civil degree of consanguinity or affinity, and a campaign staff composed of not more than one for every ten precincts in his district. It allows the full exercise of his freedom of expression and his right to peaceful assembly, because he cannot be denied any permit to hold a public meeting on the pretext that the provision of said section may or will be violated. The right of a member of any political party or association to support him or oppose his opponent is preserved as long as such member acts individually. The very party or organization to which he may belong or which may be in sympathy with his cause or program of reforms, is guaranteed the right to disseminate information about, or to arouse public interest in, or to advocate for constitutional reforms, programs, policies or constitutional proposals for amendments.chanroblesvirtualawlibrarychanrobles virtual law library It is therefore patent that the restriction contained in Sec. 8(a) is so narrow that the basic constitutional rights themselves remain substantially intact and inviolate. And it is therefore a valid infringement of the aforesaid constitutional guarantees invoked by petitioners.chanroblesvirtualawlibrarychanrobles virtual law library In the aforesaid case of Gonzales vs. Comelec, supra, this Court unanimously sustained the validity of the limitation on the period for nomination of candidates in Sec. 50-A of R.A. No. 4880, thus: The prohibition of too early nomination of candidates presents a question that is not too formidable in character. According to the act: "It shall be unlawful for any political party, political committee, or political group to nominate candidates for any elective public office voted for at large earlier than one hundred and fifty days immediately preceding an election, and for any other elective public office earlier than ninety days immediately preceding an election.chanroblesvirtualawlibrarychanrobles virtual law library The right of association is affected. Political parties have less freedom as to the time during which they may nominate candidates; the curtailment is not such, however, as to render meaningless such a basic right. Their scope of legitimate activities, save this one, is not unduly narrowed. Neither is there infringement of their freedom to assemble. They can do so, but not for such a purpose. We sustain its validity. We do so unanimously. 10chanrobles virtual law library In said Gonzales vs. Comelec case, this Court likewise held that the period for the conduct of an election campaign or partisan political activity may be limited without offending the aforementioned constitutional guarantees as the same is designed also to prevent a "clear and present danger of a substantive evil, the debasement of the electoral process." 11chanrobles virtual law library Even if the partisan activity consists of (a) forming organizations, associations, clubs, committees or other group of persons for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a party or candidate; (b) holding political conventions, caucuses, conferences, meetings, rallies, parades or other similar assemblies for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against any candidate or party; and (c) giving, soliciting, or receiving contributions for election campaign either directly or indirectly, (Sec. 50-B, pars. (a), (b), and (c), R.A. 4880), the abridgment was still affirmed as constitutional by six members of this Court, which could not "ignore ... the legislative declaration that its enactment was in response to a serious substantive evil affecting the electoral process, not merely in danger of happening, but actually in existence, and likely to continue unless curbed or remedied. To assert otherwise would be to close one's eyes to the reality of the situation." 12;chanrobles virtual law library Likewise, because four members dissented, this Court in said case of Gonzales vs. Comelec, supra, failed to muster the required eight votes to declare as unconstitutional the limitation on the period for (a) making speeches, announcements or commentaries or holding interviews for or against the election of any party or candidate for public office; (b) publishing or distributing

campaign literature or materials; and (e) directly or indirectly soliciting votes and/or undertaking any campaign or propaganda for or against any candidate or party specified in Sec. 50-B, pars. (c), (d) & (e) of R.A. 4880. 13chanrobles virtual law library The debasement of the electoral process as a substantive evil exists today and is one of the major compelling interests that moved Congress into prescribing the total ban contained in par. 1 of Sec. 8(a) of R.A. No. 6132, to justify such ban. In the said Gonzales vs. Comelec case, this Court gave "due recognition to the legislative concern to cleanse, and if possible, render spotless, the electoral process," 14 impressed as it was by the explanation made by the author of R.A. No. 4880, Sen. Lorenzo Tañada, who appeared as amicus curiae, "that such provisions were deemed by the legislative body to be part and parcel of the necessary and appropriate response not merely to a clear and present danger but to the actual existence of a grave and substantive evil of excessive partisanship, dishonesty and corruption as well as violence that of late has marred election campaigns and partisan political activities in this country. He did invite our attention likewise to the well-settled doctrine that in the choice of remedies for an admitted malady requiring governmental action, on the legislature primarily rests the responsibility. Nor should the cure prescribed by it, unless clearly repugnant to fundamental rights, be ignored or disregarded." 15chanrobles virtual law library But aside from the clear and imminent danger of the debasement of the electoral process, as conceded by Senator Pelaez, the basic motivation, according to Senate Majority Floor Leader Senator Arturo Tolentino, the sponsor of the Puyat-Tolentino amendment embodied in par. 1 of Sec. 8(a) of R.A. No. 6132, is to assure the candidates equal protection of the laws by according them equality of chances. 16 The primary purpose of the prohibition then is also to avert the clear and present danger of another substantive evil, the denial of the equal protection of the laws. The candidates must depend on their individual merits and not on the support of political parties or organizations. Senator Tolentino and Senator Salonga emphasized that under this provision, the poor candidate has an even chance as against the rich candidate. We are not prepared to disagree with them, because such a conclusion, predicated as it is on empirical logic, finds support in our recent political history and experience. Both Senators stressed that the independent candidate who wins in the election against a candidate of the major political parties, is a rare phenomenon in this country and the victory of an independent candidate mainly rests on his ability to match the resources, financial and otherwise, of the political parties or organizations supporting his opponent. This position is further strengthened by the principle that the guarantee of social justice under Sec. V, Art. II of the Constitution, includes the guarantee of equal opportunity, equality of political rights, and equality before the law enunciated by Mr. Justice Tuazon in the case Guido vs. Rural Progress Administration. 17chanrobles virtual law library While it may be true that a party's support of a candidate is not wrong per se it is equally true that Congress in the exercise of its broad law-making authority can declare certain acts as mala prohibita when justified by the exigencies of the times. One such act is the party or organization support proscribed in Sec. 8(a),which ban is a valid limitation on the freedom of association as well as expression, for the reasons aforestated.chanroblesvirtualawlibrarychanrobles virtual law library Senator Tolentino emphasized that "equality of chances may be better attained by banning all organization support." 18chanrobles virtual law library The questioned par. 1 of Sec. 8 (a) likewise can easily pass the balancing-of-interest test. 19chanrobles virtual law library In the apt words of the Solicitor General: It is to be noted that right now the nation is on the threshold of rewriting its Constitution in a hopeful endeavor to find a solution to the grave economic, social and political problems besetting the country. Instead of directly proposing the amendments Congress has chosen to call a Constitutional Convention which shall have the task of fashioning a document that shall

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embody the aspirations and ideals of the people. Because what is to be amended is the fundamental law of the land, it is indispensable that the Constitutional Convention be composed of delegates truly representative of the people's will. Public welfare demands that the delegates should speak for the entire nation, and their voices be not those of a particular segment of the citizenry, or of a particular class or group of people, be they religious, political, civic or professional in character. Senator Pelaez, Chairman of the Senate Committee on Codes and Constitutional Amendments, eloquently stated that "the function of a constitution is not to represent anyone in interest or set of interests, not to favor one group at the expense or disadvantage of the candidates - but to encompass all the interests that exist within our society and to blend them into one harmonious and balanced whole. For the constitutional system means, not the predominance of interests, but the harmonious balancing thereof."chanrobles virtual law library So that the purpose for calling the Constitutional Convention will not be deflated or frustrated, it is necessary that the delegatee thereto be independent, beholden to no one but to God, country and conscience.chanroblesvirtualawlibrarychanrobles virtual law library xxx xxx xxxchanrobles virtual law library The evil therefore, which the law seeks to prevent lies in the election of delegates who, because they have been chosen with the aid and resources of organizations, cannot be expected to be sufficiently representative of the people. Such delegates could very well be the spokesmen of narrow political, religious or economic interest and not of the great majority of the people. 20chanrobles virtual law library We likewise concur with the Solicitor General that the equal protection of the laws is not unduly subverted in par. I of Sec. 8(a); because it does not create any hostile discrimination against any party or group nor does it confer undue favor or privilege on an individual as heretofore stated. The discrimination applies to all organizations, whether political parties or social, civic, religious, or professional associations. The ban is germane to the objectives of the law, which are to avert the debasement of the electoral process, and to attain real equality of chances among individual candidates and thereby make real the guarantee of equal protection of the laws.chanroblesvirtualawlibrarychanrobles virtual law library The political parties and the other organized groups have built-in advantages because of their machinery and other facilities, which, the individual candidate who is without any organization support, does not have. The fact that the other civic of religious organizations cannot have a campaign machinery as efficient as that of a political party, does not vary the situation; because it still has that much built-in advantage as against the individual candidate without similar support. Moreover, these civic religious and professional organization may band together to support common candidates, who advocates the reforms that these organizations champion and believe are imperative. This is admitted by petitioner Gonzales thru the letter of Senator Ganzon dated August 17, 1970 attached to his petition as Annex "D", wherein the Senator stated that his own "Timawa" group had agreed with the Liberal Party in Iloilo to support petitioner Gonzales and two others as their candidates for the convention, which organized support is nullified by the questioned ban, Senator Ganzon stressed that "without the group moving and working in joint collective effort" they cannot "exercise effective control and supervision over our leaders - the Women's League, the area commanders, etc."; but with their joining with the LP's they "could have presented a solid front with very bright chances of capturing all seats."chanrobles virtual law library The civic associations other than political parties cannot with reason insist that they should be exempted from the ban; because then by such exemption they would be free to utilize the facilities of the campaign machineries which they are denying to the political parties. Whenever all organization engages in a political activity, as in this campaign for election of delegates to the Constitutional Convention, to that extent it partakes of the nature of a

political organization. This, despite the fact that the Constitution and by laws of such civic, religious, or professional associations usually prohibit the association from engaging in partisan political activity or supporting any candidate for an elective office. Hence, they must likewise respect the ban.chanroblesvirtualawlibrarychanrobles virtual law library The freedom of association also implies the liberty not to associate or join with others or join any existing organization. A person may run independently on his own merits without need of catering to a political party or any other association for support. And he, as much as the candidate whose candidacy does not evoke sympathy from any political party or organized group, must be afforded equal chances. As emphasized by Senators Tolentino and Salonga, this ban is to assure equal chances to a candidate with talent and imbued with patriotism as well as nobility of purpose, so that the country can utilize their services if elected.chanroblesvirtualawlibrarychanrobles virtual law library Impressed as We are by the eloquent and masterly exposition of Senator Tañada for the invalidation of par. 1 of Sec. 8(a) of R.A. No. 6132, demonstrating once again his deep concern for the preservation of our civil liberties enshrined in the Bill of Rights, We are not persuaded to entertain the belief that the challenged ban transcends the limits of constitutional invasion of such cherished immunities.chanroblesvirtualawlibrarychanrobles virtual law library WHEREFORE, the prayers in both petitions are hereby denied and R.A. No. 6132 including Secs. 2, 4, 5, and 8(a), paragraph 1, thereof, cannot be declared unconstitutional. Without costs. Reyes, J.B.L., Dizon and Castro, JJ., concur.chanroblesvirtualawlibrarychanrobles virtual law library Makalintal, J., concurs in the result.chanroblesvirtualawlibrarychanrobles virtual law library Teehankee, J., is on leave. chanrobles virtual law library chanrobles virtual law library Separate Opinions FERNANDO, J., concurring and dissenting:chanrobles virtual law library The opinion of Justice Makasiar speaking for the Court, comprehensive in scope, persuasive in character and lucid in expression, has much to recommend it. On the whole, I concur. I find difficulty, however, in accepting the conclusion that there is no basis for the challenge hurled against the validity of this provision: "No candidate for delegate to the Convention shall represent or allow himself to be represented as being a candidate of any political party or any other organization, and no political party, political group, political committee, civic, religious, professional, or other organization or organized group of whatever nature shall intervene in the nomination of any such candidate or in the filing of his certificate of candidacy or give aid or support directly or indirectly, material or otherwise, favorable to or against his campaign for election: ..." 1 It is with regret then that I dissent from that portion of the decision.chanroblesvirtualawlibrarychanrobles virtual law library 1. I find it difficult to reconcile the decision reached insofar as the aforesaid ban on political parties and civic, professional and other organizations is concerned with the explicit provision that the freedom to form associations or societies for purposes not contrary to law shall not be abridged. 2 The right of an individual to join others of a like persuasion to pursue common objectives and to engage in activities is embraced within if not actually encouraged by the regime of liberty ordained by the Constitution. This particular freedom has an indigenous cast, its origin being traceable to the Malolos Constitution.chanroblesvirtualawlibrarychanrobles virtual law library In the United States, in the absence of an explicit provision of such character, it is the view of Justice Douglas, in a 1963 article, that it is primarily the First Amendment of her Constitution, which safeguards freedom of speech and of the press, of assembly and of petition "that provides [associations] with the protection they need if they are to remain viable and continue

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to contribute to our Free Society." 3 Such is indeed the case, for five years earlier the American Supreme Court had already declared: "It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the "liberty" [embraced in] freedom of speech." 4chanrobles virtual law library Not long after, in 1965, Justice Douglas as; spokesman for the American Supreme Court could elaborate further on the scope of the right of association as including "the right to express one's attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means, Association in that context is a form of expression of opinion; and while it is not extremely included in the First Amendment its existence is necessary in making the express guarantees fully meaningful." 5 Thus is further vitalized freedom of expression which, for Justice Laurel, is at once the instrument" and the guarantee and the bright consummate flower of all liberty" 6 and, for Justice Cardozo, "the matrix, the indispensable condition of nearly every other form of freedom." 7chanrobles virtual law library 2. It is in the light of the above fundamental postulates that I find merit in the plea of petitioners to annul the challenged provision. There is much to be said for the point emphatically stressed by Senator Lorenzo M. Tañada, as amicus curiae, to the effect that there is nothing unlawful in a candidate for delegate to the Convention representing or allowing himself to be represented as such of any political party or any other organization as well as of such political party, political group, political committee, civic, religious, professional or other organization or organized group intervening in his nomination, in the filing of his certificate of candidacy, or giving aid or support, directly or indirectly, material or otherwise, favorable to or against his campaign for election as such delegate. I find the conclusion inescapabe therefore, that what the constitutional provisions in question allow, more specifically the right to form associations, is prohibited. The infirmity of the ban is thus apparent on its face.chanroblesvirtualawlibrarychanrobles virtual law library There is, to my mind, another avenue of approach that leads to the same conclusion. The final proviso in the same section of the Act forbids any construction that would in any wise "impair or abridge the freedom of civic, political, religious, professional, trade organizations or organized groups of whatever nature to disseminate information about, or arouse public interest in, the forthcoming Constitutional Convention, or to advocate constitutional reforms, programs, policies or proposals for amendment of the present Constitution, and no prohibition contained herein shall limit or curtail the right of their members, as long as they act individually, to support or oppose any candidate for delegate to the Constitutional Convention." 8 It is regrettable that such an explicit recognition of what cannot be forbidden consistently with the constitutional guarantees of freedom of expression and freedom of association falls short of according full respect to what is thus commanded, by the fundamental law, as they are precluded by the very same Act from giving aid or support precisely to the very individuals who can carry out whatever constitutional reforms, programs, policies or proposals for amendment they might advocate. As thus viewed, the conviction I entertain as to its lack of validity is further strengthened and fortified.chanroblesvirtualawlibrarychanrobles virtual law library 3. It would be a different matter, of course, if there is a clear and present danger of a substantive evil that would justify a limitation on such cherished freedoms. Reference has been made to Gonzales v. Commission on Elections. 9 As repression is permissible only when the danger of substantive evil is present is explained by Justice Branders thus: ... the evil apprehended is to imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. For him the apprehended evil must be "relatively serious." For "[prohibition] of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to society." Justice Black would go further. He would require that the

substantive evil be "extremely serious." Only thus may there be a realization of the ideal envisioned by Cardozo: "There shall be no compromise of the freedom to think one's thoughts and speak them, except at those extreme borders where thought merges into action." It received its original formulation from Holmes. Thus: "The question in every case is whether the words used in such circumstances are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree." " 10 The majority of the Court would find the existence of a clear and present danger of debasing the electoral process. With due respect, I find myself unable to share such a view.chanroblesvirtualawlibrarychanrobles virtual law library The assumption would, appear to be that there is a clear and present danger of a grave substantive evil of partisanship running riot unless political parties are thus restrained. There would be a sacrifice then of the national interest involved. The Convention might not be able to live up to the high hopes entertained for an improvement of the fundamental law. It would appear though that what prompted such a ban is to assure that the present majority party would not continue to play its dominant role in the political life of the nation. The thought is entertained that otherwise, we will not have a Convention truly responsive to the needs of the hour and of the future insofar as they may be anticipated.chanroblesvirtualawlibrarychanrobles virtual law library To my mind, this is to lose sight of the fact that in the national elections of 1946, 1953, 1961 and 1965, the presidency was won by the opposition candidate. Moreover, in national elections for senators alone, that of 1951, to mention only one instance, saw a complete sweep of the field by the then minority party. It would be unjustifiable, so I am led to believe to assume that inevitably the prevailing dominant political party would continue its ascendancy in the coming Convention.chanroblesvirtualawlibrarychanrobles virtual law library Then, too, the result of the plebiscite in the two proposed amendments in 1967 indicate unmistakably that the people can, if so minded, make their wishes prevail. There is thus no assurance that the mere identification with party labels would automatically insure the success of a candidacy. Even if it be assumed that to guard against the evils of party spirit carried to excess, such a ban is called for, still no such danger is presented by allowing civil, professional or any other organization or organized group of whatever nature to field its own candidates or give aid or support, directly or indirectly material or otherwise, to anyone running for the Convention. From such a source, no such misgivings or apprehension need arise. Nor it the fear that organizations could hastily be assembled or put up to camouflage their true colors as satellites of the political parties be valid. The electorate can see through such schemes and can emphatically register its reaction. There is, moreover, the further safeguard that whatever work the Convention may propose is ultimately subject to popular ratification.chanroblesvirtualawlibrarychanrobles virtual law library For me then the danger of a substantive evil is neither clear nor present. What causes me grave concern is that to guard against such undesirable eventuality, which may not even come to pass, a flagrant disregard of what the Constitution ordains is minimized. A desirable end cannot be coerced by unconstitutional means.chanroblesvirtualawlibrarychanrobles virtual law library 4. It is not easy to yield assent to the proposition that on a matter so essentially political as the amendment or revision of an existing Constitution, political parties or political groups are to be denied the opportunity of launching the candidacy of their choice. Well has it been said by Chief Justice Hughes: "The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of

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constitutional government." 11 It is to carry this essential process one step farther to recognize and to implement the right of every political party or group to select the candidates who, by their election, could translate into actuality their hopes for the fundamental law that the times demand. Moreover, is it not in keeping with the rights to intellectual freedom so sedulously safeguarded by the Constitution to remove all obstacles to organized civic groups making their influence felt in the task of constitution framing, the result of which has momentuous implications for the nation? What is decisive of this aspect of the matter is not the character of the association or organized group as such but the essentially political activity thus carried out.chanroblesvirtualawlibrarychanrobles virtual law library This is not to deny the wide latitude as to the choice of means vested in Congress to attain a desirable goal. Nor can it be successfully argued that the judiciary should display reluctance in extending sympathy and understanding to such legislative determination. This is merely to stress that however worthwhile the objective, the Constitution must still be paid deference. Moreover, it may not be altogether unrealistic to consider the practical effects of the ban as thus worded as not lacking in effectivity insofar as civic, religious, professional or other organizations or organized group is concerned, but not necessarily so in the case of political party, political group or political committee. There is the commendable admission by Senator Tolentino, appearing as amicus curiae, that the political leaders of stature, in their individual capacity, could continue to assert their influence. It could very well happen, then, in not a few cases, assuming the strength of political parties, that a candidate thus favored is sure of emerging the victor. What is thus sought to be accomplished to guard against the evil of party spirit prevailing could very well be doomed to futility. The high hopes entertained by the articulate and vocal groups of young people, intellectuals and workers, may not be realized. The result would be that this unorthodox and novel provision could assume the character of a tease, an illusion like a munificent bequest in a pauper's will.chanroblesvirtualawlibrarychanrobles virtual law library If such an appraisal is not unjustifiably tinged with pessimism, then, to my mind, a radical approach to a problem possibly tainted with constitutional infirmity cannot hurdle the judicial test as to its validity. It is one thing to encourage a fresh and untried solution to a problem of gravity when the probability of its success may be assumed. It is an entirely different matter to cut down the exercise of what otherwise are undeniable constitutional rights, when as in this case, the outcome might belie expectations. Considering the well-settled principle that even though the governmental process be legitimate and substantial, they cannot be pursued by means that broadly stifle fundamental personal liberties, if the end can be narrowly achieved, I am far from being persuaded that to preclude political parties or other groups or associations from lending aid and support to the candidates of men in whom they can repose their trust is consistent with the constitutional rights of freedom of association and freedom of expression. Here, the danger of overbreadth, so clear and manifest as to be offensive to constitutional standards, magnified by the probability that the result would be the failure and not success of the statutory scheme, cautions against the affixing of the imprimatur of judicial approval to the challenged provision.chanroblesvirtualawlibrarychanrobles virtual law library 5. Necessarily then, from this mode of viewing the matter, it would follow that the holding of this Court in Gonzales v. Comelec 12 does not compel the conclusion reached by the majority sustaining the validity of this challenged provision. What survived the test of constitutional validity in that case, with the Court unanimous in its opinion, is the prohibition for any political party, political committee or political group to nominate candidates for any elective public office voted for at large earlier than 150 days immediately preceding election and for any other public office earlier than 90 days immediately preceding such election. 13 A corollary to the above limitation, the provision making it unlawful for any person, whether or not a voter or candidate, or for any group or association of persons, whether or not a political party or political committee, to engage in an election campaign or partisan political activity except

during the above periods successfully hurdled, the constitutional test, although the restrictions as to the making of speeches, announcements or commentaries or holding interviews for or against the election of any party or candidate for public office or the publishing or distributing of campaign literature or materials or the solicitation or undertaking any campaign or propaganda for or against any candidate or party, directly or indirectly, survived by the narrow margin of one vote, four members of this Court unable to discern any constitutional infirmity as against the free speech guarantee, thus resulting in failing to muster the necessary two-thirds majority for a declaration of invalidity. Insofar as election campaign or partisan political activity would limit or restrict the formation, of organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes or undertaking any campaign or propaganda for or against a party or candidate or, the giving, soliciting, or receiving a contribution for election campaign purposes, either directly or indirectly as well as the holding of political conventions, caucuses, conferences, meetings, rallies, parades or other similar assemblies, with a similar and in view, only five members of this Court, a minority thereof voted, for their unconstitutionality. What emerges clearly, then, is that definite acts short of preventing the political parties from the choice of their candidates and thereafter working for them in effect were considered by this Court as not violative of the constitutional freedoms of speech, of press, of assembly and of association.chanroblesvirtualawlibrarychanrobles virtual law library The challenged provision in these two petitions, however, goes much farther. Political parties or any other organization or organized group are precluded from selecting and supporting candidates for delegates to the Constitutional Convention. To my mind, this is to enter a forbidden domain, Congress trespassing on a field hitherto rightfully assumed to be within the sphere of liberty. Thus, I am unable to conclude that our previous decision in Gonzales v. Commission on Elections which already was indicative of the cautious and hesitant judicial approach to lending its approval to what otherwise are invasions of vital constitutional safeguards to freedoms of belief, of expression, and of association lends support to the decision reached by the majority insofar as this challenged provision is concerned.chanroblesvirtualawlibrarychanrobles virtual law library Hence my inability to subscribe in its entirety to the opinion of the Court. I am authorized to state that the Chief Justice is in agreement with the views herein expressed. Concepcion, C.J., Villamor and Zaldivar, JJ., concur. BARREDO, J., concurring and dissenting:chanrobles virtual law library Without prejudice to a more extended opinion, I vote, in concurrence with the majority, to sustain the validity of the provisions of Republic Act 6132 impugned by petitioners in these cases, except Section 4 and the portion of Section 8(a) referring to political parties. As regards Section 4, I reiterate my separate opinion in the cases of Subido and others. (G.R. Nos. L-32436 and L-32439) With respect to Section 8(a), I hold that the considerations which take the restraint on the freedoms of association, assembly and speech involved in the ban on political parties to nominate and support their own candidates, reasonable and within the limits of the Constitution do not obtain when it comes to civic or non-political organizations. As I see it, the said ban, insofar as civic or non-political organizations are concerned, is a deceptive device to preserve the built-in advantages of political parties while at the same time crippling completely the other kinds of associations. The only way to accomplish the purported objective of the law of equalizing the forces that will campaign in behalf of the candidates to the constitutional convention is to maintain said ban only as against political parties, for after all, only the activities and manners of operation of these parties and/or some of their members have made necessary the imposition thereof. Under the resulting set up embodied in the provision in question, the individual candidates who have never had any political party connections or very little of it would be at an obvious disadvantage unless they are allowed to seek and use the aid of civic organizations. Neither the elaborate provisions of Republic Act

15

6132 regarding methods of campaign nor its other provisions intended to minimize the participation of political parties in the electorate processes of voting, counting of the votes and canvassing of the results can overcome the advantages of candidates more or less connected with political parties, particularly the major and established ones, as long as the right to form other associations and the right of these associations to campaign for their candidates are denied considering particularly the shortness of the time that is left between now and election day.chanroblesvirtualawlibrarychanrobles virtual law library The issues involved in the coming elections are grave and fundamental ones that are bound to affect the lives, rights and liberties of all the people of this country most effectively, pervasively and permanently. The only insurance of the people against political parties which may be inclined towards the Establishment and the status quo is to organize themselves to gain much needed strength and effectivity. To deny them this right is to stifle the people's only opportunity for change.chanroblesvirtualawlibrarychanrobles virtual law library It is axiomatic that issues, no matter how valid, if not related to particular candidates in an organized way, similarly as in the use of platforms by political parties, cannot have any chance of support and final adoption. Both men and issues are important, but unrelated to each other, each of them alone is insignificant, and the only way to relate them is by organization. Precisely because the issues in this election of candidates are of paramount importance second to none, it is imperative that all of the freedoms enshrined in the constitution should have the ampliest recognition for those who are minded to actively battle for them and any attempt to curtail them would endanger the very purposes for which a new constitutional convention has been conceived.chanroblesvirtualawlibrarychanrobles virtual law library Consistently with my separate opinion in the case of Gonzales and Cabigao vs. Comelec, G.R. No. L-27833, April 18, 1969 and for the reasons therein stated, I maintain that the right of suffrage which is the cornerstone of any democracy like ours is meaningless when the right to campaign in any election therein is unreasonably and unnecessarily curtailed, restrained or hampered, as is being done under the statute in dispute.chanroblesvirtualawlibrarychanrobles virtual law library It is, of course, understood that this opinion is based on my considered view, contrary to that of the majority, that as Section 8(a) stands and taking into account its genesis, the ban against political parties is separable from that against other associations within the contemplation of Section 21 of the Act which expressly refers to the separability of the application thereof to any "persons, groups or circumstances."chanrobles virtual law library I reserve my right to expand this explanation of my vote in the next few days.chanroblesvirtualawlibrarychanrobles virtual law library Separate Opinions FERNANDO, J., concurring and dissenting: The opinion of Justice Makasiar speaking for the Court, comprehensive in scope, persuasive in character and lucid in expression, has much to recommend it. On the whole, I concur. I find difficulty, however, in accepting the conclusion that there is no basis for the challenge hurled against the validity of this provision: "No candidate for delegate to the Convention shall represent or allow himself to be represented as being a candidate of any political party or any other organization, and no political party, political group, political committee, civic, religious, professional, or other organization or organized group of whatever nature shall intervene in the nomination of any such candidate or in the filing of his certificate of candidacy or give aid or support directly or indirectly, material or otherwise, favorable to or against his campaign for election: ..." 1 It is with regret then that I dissent from that portion of the decision. 1. I find it difficult to reconcile the decision reached insofar as the aforesaid ban on political parties and civic, professional and other organizations is concerned with the explicit provision that the freedom to form associations or societies for purposes not contrary to law shall not

be abridged. 2 The right of an individual to join others of a like persuasion to pursue common objectives and to engage in activities is embraced within if not actually encouraged by the regime of liberty ordained by the Constitution. This particular freedom has an indigenous cast, its origin being traceable to the Malolos Constitution. In the United States, in the absence of an explicit provision of such character, it is the view of Justice Douglas, in a 1963 article, that it is primarily the First Amendment of her Constitution, which safeguards freedom of speech and of the press, of assembly and of petition "that provides [associations] with the protection they need if they are to remain viable and continue to contribute to our Free Society." 3 Such is indeed the case, for five years earlier the American Supreme Court had already declared: "It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the "liberty" [embraced in] freedom of speech." 4 Not long after, in 1965, Justice Douglas as; spokesman for the American Supreme Court could elaborate further on the scope of the right of association as including "the right to express one's attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means, Association in that context is a form of expression of opinion; and while it is not extremely included in the First Amendment its existence is necessary in making the express guarantees fully meaningful." 5 Thus is further vitalized freedom of expression which, for Justice Laurel, is at once the instrument" and the guarantee and the bright consummate flower of all liberty" 6 and, for Justice Cardozo, "the matrix, the indispensable condition of nearly every other form of freedom." 7 2. It is in the light of the above fundamental postulates that I find merit in the plea of petitioners to annul the challenged provision. There is much to be said for the point emphatically stressed by Senator Lorenzo M. Tañada, as amicus curiae, to the effect that there is nothing unlawful in a candidate for delegate to the Convention representing or allowing himself to be represented as such of any political party or any other organization as well as of such political party, political group, political committee, civic, religious, professional or other organization or organized group intervening in his nomination, in the filing of his certificate of candidacy, or giving aid or support, directly or indirectly, material or otherwise, favorable to or against his campaign for election as such delegate. I find the conclusion inescapabe therefore, that what the constitutional provisions in question allow, more specifically the right to form associations, is prohibited. The infirmity of the ban is thus apparent on its face. There is, to my mind, another avenue of approach that leads to the same conclusion. The final proviso in the same section of the Act forbids any construction that would in any wise "impair or abridge the freedom of civic, political, religious, professional, trade organizations or organized groups of whatever nature to disseminate information about, or arouse public interest in, the forthcoming Constitutional Convention, or to advocate constitutional reforms, programs, policies or proposals for amendment of the present Constitution, and no prohibition contained herein shall limit or curtail the right of their members, as long as they act individually, to support or oppose any candidate for delegate to the Constitutional Convention." 8 It is regrettable that such an explicit recognition of what cannot be forbidden consistently with the constitutional guarantees of freedom of expression and freedom of association falls short of according full respect to what is thus commanded, by the fundamental law, as they are precluded by the very same Act from giving aid or support precisely to the very individuals who can carry out whatever constitutional reforms, programs, policies or proposals for amendment they might advocate. As thus viewed, the conviction I entertain as to its lack of validity is further strengthened and fortified. 3. It would be a different matter, of course, if there is a clear and present danger of a substantive evil that would justify a limitation on such cherished freedoms. Reference has been made to Gonzales v. Commission on Elections. 9 As repression is permissible only when the danger of substantive evil is present is explained by Justice Branders thus: ... the evil

16

apprehended is to imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. For him the apprehended evil must be "relatively serious." For "[prohibition] of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to society." Justice Black would go further. He would require that the substantive evil be "extremely serious." Only thus may there be a realization of the ideal envisioned by Cardozo: "There shall be no compromise of the freedom to think one's thoughts and speak them, except at those extreme borders where thought merges into action." It received its original formulation from Holmes. Thus: "The question in every case is whether the words used in such circumstances are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree." " 10 The majority of the Court would find the existence of a clear and present danger of debasing the electoral process. With due respect, I find myself unable to share such a view. The assumption would, appear to be that there is a clear and present danger of a grave substantive evil of partisanship running riot unless political parties are thus restrained. There would be a sacrifice then of the national interest involved. The Convention might not be able to live up to the high hopes entertained for an improvement of the fundamental law. It would appear though that what prompted such a ban is to assure that the present majority party would not continue to play its dominant role in the political life of the nation. The thought is entertained that otherwise, we will not have a Convention truly responsive to the needs of the hour and of the future insofar as they may be anticipated. To my mind, this is to lose sight of the fact that in the national elections of 1946, 1953, 1961 and 1965, the presidency was won by the opposition candidate. Moreover, in national elections for senators alone, that of 1951, to mention only one instance, saw a complete sweep of the field by the then minority party. It would be unjustifiable, so I am led to believe to assume that inevitably the prevailing dominant political party would continue its ascendancy in the coming Convention. Then, too, the result of the plebiscite in the two proposed amendments in 1967 indicate unmistakably that the people can, if so minded, make their wishes prevail. There is thus no assurance that the mere identification with party labels would automatically insure the success of a candidacy. Even if it be assumed that to guard against the evils of party spirit carried to excess, such a ban is called for, still no such danger is presented by allowing civil, professional or any other organization or organized group of whatever nature to field its own candidates or give aid or support, directly or indirectly material or otherwise, to anyone running for the Convention. From such a source, no such misgivings or apprehension need arise. Nor it the fear that organizations could hastily be assembled or put up to camouflage their true colors as satellites of the political parties be valid. The electorate can see through such schemes and can emphatically register its reaction. There is, moreover, the further safeguard that whatever work the Convention may propose is ultimately subject to popular ratification. For me then the danger of a substantive evil is neither clear nor present. What causes me grave concern is that to guard against such undesirable eventuality, which may not even come to pass, a flagrant disregard of what the Constitution ordains is minimized. A desirable end cannot be coerced by unconstitutional means. 4. It is not easy to yield assent to the proposition that on a matter so essentially political as the amendment or revision of an existing Constitution, political parties or political groups are to be denied the opportunity of launching the candidacy of their choice. Well has it been said by Chief Justice Hughes: "The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free

assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government." 11 It is to carry this essential process one step farther to recognize and to implement the right of every political party or group to select the candidates who, by their election, could translate into actuality their hopes for the fundamental law that the times demand. Moreover, is it not in keeping with the rights to intellectual freedom so sedulously safeguarded by the Constitution to remove all obstacles to organized civic groups making their influence felt in the task of constitution framing, the result of which has momentuous implications for the nation? What is decisive of this aspect of the matter is not the character of the association or organized group as such but the essentially political activity thus carried out. This is not to deny the wide latitude as to the choice of means vested in Congress to attain a desirable goal. Nor can it be successfully argued that the judiciary should display reluctance in extending sympathy and understanding to such legislative determination. This is merely to stress that however worthwhile the objective, the Constitution must still be paid deference. Moreover, it may not be altogether unrealistic to consider the practical effects of the ban as thus worded as not lacking in effectivity insofar as civic, religious, professional or other organizations or organized group is concerned, but not necessarily so in the case of political party, political group or political committee. There is the commendable admission by Senator Tolentino, appearing as amicus curiae, that the political leaders of stature, in their individual capacity, could continue to assert their influence. It could very well happen, then, in not a few cases, assuming the strength of political parties, that a candidate thus favored is sure of emerging the victor. What is thus sought to be accomplished to guard against the evil of party spirit prevailing could very well be doomed to futility. The high hopes entertained by the articulate and vocal groups of young people, intellectuals and workers, may not be realized. The result would be that this unorthodox and novel provision could assume the character of a tease, an illusion like a munificent bequest in a pauper's will. If such an appraisal is not unjustifiably tinged with pessimism, then, to my mind, a radical approach to a problem possibly tainted with constitutional infirmity cannot hurdle the judicial test as to its validity. It is one thing to encourage a fresh and untried solution to a problem of gravity when the probability of its success may be assumed. It is an entirely different matter to cut down the exercise of what otherwise are undeniable constitutional rights, when as in this case, the outcome might belie expectations. Considering the well-settled principle that even though the governmental process be legitimate and substantial, they cannot be pursued by means that broadly stifle fundamental personal liberties, if the end can be narrowly achieved, I am far from being persuaded that to preclude political parties or other groups or associations from lending aid and support to the candidates of men in whom they can repose their trust is consistent with the constitutional rights of freedom of association and freedom of expression. Here, the danger of overbreadth, so clear and manifest as to be offensive to constitutional standards, magnified by the probability that the result would be the failure and not success of the statutory scheme, cautions against the affixing of the imprimatur of judicial approval to the challenged provision. 5. Necessarily then, from this mode of viewing the matter, it would follow that the holding of this Court in Gonzales v. Comelec 12 does not compel the conclusion reached by the majority sustaining the validity of this challenged provision. What survived the test of constitutional validity in that case, with the Court unanimous in its opinion, is the prohibition for any political party, political committee or political group to nominate candidates for any elective public office voted for at large earlier than 150 days immediately preceding election and for any other public office earlier than 90 days immediately preceding such election. 13 A corollary to the above limitation, the provision making it unlawful for any person, whether or not a voter or

17

candidate, or for any group or association of persons, whether or not a political party or political committee, to engage in an election campaign or partisan political activity except during the above periods successfully hurdled, the constitutional test, although the restrictions as to the making of speeches, announcements or commentaries or holding interviews for or against the election of any party or candidate for public office or the publishing or distributing of campaign literature or materials or the solicitation or undertaking any campaign or propaganda for or against any candidate or party, directly or indirectly, survived by the narrow margin of one vote, four members of this Court unable to discern any constitutional infirmity as against the free speech guarantee, thus resulting in failing to muster the necessary two-thirds majority for a declaration of invalidity. Insofar as election campaign or partisan political activity would limit or restrict the formation, of organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes or undertaking any campaign or propaganda for or against a party or candidate or, the giving, soliciting, or receiving a contribution for election campaign purposes, either directly or indirectly as well as the holding of political conventions, caucuses, conferences, meetings, rallies, parades or other similar assemblies, with a similar and in view, only five members of this Court, a minority thereof voted, for their unconstitutionality. What emerges clearly, then, is that definite acts short of preventing the political parties from the choice of their candidates and thereafter working for them in effect were considered by this Court as not violative of the constitutional freedoms of speech, of press, of assembly and of association. The challenged provision in these two petitions, however, goes much farther. Political parties or any other organization or organized group are precluded from selecting and supporting candidates for delegates to the Constitutional Convention. To my mind, this is to enter a forbidden domain, Congress trespassing on a field hitherto rightfully assumed to be within the sphere of liberty. Thus, I am unable to conclude that our previous decision in Gonzales v. Commission on Elections which already was indicative of the cautious and hesitant judicial approach to lending its approval to what otherwise are invasions of vital constitutional safeguards to freedoms of belief, of expression, and of association lends support to the decision reached by the majority insofar as this challenged provision is concerned. Hence my inability to subscribe in its entirety to the opinion of the Court. I am authorized to state that the Chief Justice is in agreement with the views herein expressed. Concepcion, C.J., Villamor and Zaldivar, JJ., concur. BARREDO, J., concurring and dissenting: Without prejudice to a more extended opinion, I vote, in concurrence with the majority, to sustain the validity of the provisions of Republic Act 6132 impugned by petitioners in these cases, except Section 4 and the portion of Section 8(a) referring to political parties. As regards Section 4, I reiterate my separate opinion in the cases of Subido and others. (G.R. Nos. L-32436 and L-32439) With respect to Section 8(a), I hold that the considerations which take the restraint on the freedoms of association, assembly and speech involved in the ban on political parties to nominate and support their own candidates, reasonable and within the limits of the Constitution do not obtain when it comes to civic or non-political organizations. As I see it, the said ban, insofar as civic or non-political organizations are concerned, is a deceptive device to preserve the built-in advantages of political parties while at the same time crippling completely the other kinds of associations. The only way to accomplish the purported objective of the law of equalizing the forces that will campaign in behalf of the candidates to the constitutional convention is to maintain said ban only as against political parties, for after all, only the activities and manners of operation of these parties and/or some of their members have made necessary the imposition thereof. Under the resulting set up embodied in the provision in question, the individual candidates who have never had any political party connections or very little of it would be at an obvious disadvantage unless they are allowed to seek and use the aid of civic organizations. Neither the elaborate provisions of Republic Act

6132 regarding methods of campaign nor its other provisions intended to minimize the participation of political parties in the electorate processes of voting, counting of the votes and canvassing of the results can overcome the advantages of candidates more or less connected with political parties, particularly the major and established ones, as long as the right to form other associations and the right of these associations to campaign for their candidates are denied considering particularly the shortness of the time that is left between now and election day. The issues involved in the coming elections are grave and fundamental ones that are bound to affect the lives, rights and liberties of all the people of this country most effectively, pervasively and permanently. The only insurance of the people against political parties which may be inclined towards the Establishment and the status quo is to organize themselves to gain much needed strength and effectivity. To deny them this right is to stifle the people's only opportunity for change. It is axiomatic that issues, no matter how valid, if not related to particular candidates in an organized way, similarly as in the use of platforms by political parties, cannot have any chance of support and final adoption. Both men and issues are important, but unrelated to each other, each of them alone is insignificant, and the only way to relate them is by organization. Precisely because the issues in this election of candidates are of paramount importance second to none, it is imperative that all of the freedoms enshrined in the constitution should have the ampliest recognition for those who are minded to actively battle for them and any attempt to curtail them would endanger the very purposes for which a new constitutional convention has been conceived. Consistently with my separate opinion in the case of Gonzales and Cabigao vs. Comelec, G.R. No. L-27833, April 18, 1969 and for the reasons therein stated, I maintain that the right of suffrage which is the cornerstone of any democracy like ours is meaningless when the right to campaign in any election therein is unreasonably and unnecessarily curtailed, restrained or hampered, as is being done under the statute in dispute. It is, of course, understood that this opinion is based on my considered view, contrary to that of the majority, that as Section 8(a) stands and taking into account its genesis, the ban against political parties is separable from that against other associations within the contemplation of Section 21 of the Act which expressly refers to the separability of the application thereof to any "persons, groups or circumstances." I reserve my right to expand this explanation of my vote in the next few days.

18

[G.R. No. 56350. April 2, 1981.] SAMUEL C. OCCENA, Petitioner, v. THE COMMISSION ON ELECTIONS, THE COMMISSION ON AUDIT, THE NATIONAL TREASURER, THE DIRECTOR OF PRINTING, Respondents. [G.R. No. 56404. April 2, 1981.] RAMON A. GONZALES, MANUEL B. IMBONG, JO AUREA MARCOS-IMBONG, RAY ALLAN T. DRILON, NELSON B. MALANA and GIL M. TABIOS, Petitioners, v. THE NATIONAL TREASURER and the COMMISSION ON ELECTIONS, Respondents. Samuel Occena for Petitioner. Solicitor General Estelito P. Mendoza, Assistant Solicitor General Nathanael P. de Pano, Jr. and Assistant Solicitor General Roberto E. Soberano for Respondents. Ramon A. Gonzales for Petitioner. Solicitor General Estelito P. Mendoza, Assistant Solicitor Nathanael P. de Paño, Jr. and Assistant Solicitor General Roberto E. Soberano for Respondents. SYNOPSIS Two suits for Prohibition were filed assailing the validity of the Batasang Pambansa Resolution Nos. 28, 104 and 106 proposing constitutional amendments. After hearing and oral argument. the Supreme Court dismissed both petitions, reiterating the effectivity of the present Constitution and upholding the validity of the questioned resolutions, the Interim Batasang Pambansa, by a majority vote, having the power to propose amendments for ratification by the sovereign people. Petition dismissed. SYLLABUS 1. CONSTITUTIONAL LAW; 1973 CONSTITUTION; FORCE AND APPLICABILITY THEREOF SETTLED IN THE CASE OF JAVELLANA v. EXECUTIVE SECRETARY. — The case of Javellana v. The Executive Secretary, L-36142, March 31,1973, made manifest that as of January 17, 1973, the present Constitution came into force and effect. With such a pronouncement by the Supreme Court and with the recognition of the cardinal postulate that what the Supreme Court says is not only entitled to respect but must also be obeyed, a factor for instability was removed. Thereafter, as a matter of law, all doubts were resolved. The 1973 Constitution is the fundamental law.

on Elections, L-32476, Oct. 20,1970, it was held: ". . . The fact that the present Constitution may be revised and replaced with a new one . . . is no argument against the validity of the law because ‘amendment’ includes the ‘revision’ or total overhaul of the entire Constitution. At any rate, whether the Constitution is merely amended in part or revised or totally changed would become immaterial the moment the same is ratified by the sovereign people. There is here the adoption of the principle so well-known in American decisions as well as legal texts that a constituent body can propose anything but conclude nothing. 4. ID.; ID.; ID.; ONLY MAJORITY VOTE NEEDED TO PROPOSE AMENDMENTS. — The Interim Batasang Pambansa, sitting as a constituent body, can propose amendments. In that capacity, only a majority vote is needed. It would be an indefensible proposition to assert that the three-fourth votes required when it sits as a legislative body applies as well when it has been convened as the agency through which amendments could be proposed. That is not a requirement as far as constitutional convention is concerned. It is not a requirement either when, as in this case, the Interim Batasang Pambansa exercises its constituent power to propose amendments. 5. ID.; ID.; ID.; PEOPLE ADEQUATELY INFORMED OF THE PROPOSED AMENDMENTS EMBODIED IN THE QUESTIONED RESOLUTIONS. — The three questioned resolutions, Nos. 28, 104 and 106, were approved by the Interim Batasang Pambansa sitting as a constituent assembly on Feb. 5 and 27, 1981. In the Batasang Pambansa Blg. 22, the date of the plebiscite is set for April 7, 1981. It is thus within the 90-day period provided by the Constitution. As for the people being adequately informed, it cannot be denied that this time, as in the 1980 Occena opinion where the amendment restored to seventy the retirement age of members of the judiciary, the proposed amendments have "been intensively and extensively discussed at the Interim Batasang Pambansa, as well as through mass media, so that it cannot be said that our people are unaware of the advantages and disadvantages of the proposed amendments. TEEHANKEE, J., dissenting:chanrob1es virtual 1aw library 1. CONSTITUTIONAL LAW; AMENDMENTS TO THE CONSTITUTION; STRICT ADHERENCE TO THE MANDATORY REQUIREMENTS OF THE AMENDING PROCESS MUST BE COMPLIED WITH. — Justice Teehankee reiterates his dissent in Sanidad v. Comelec (73 SCRA 333 (1976)),that the transcendental constituent power to propose and approve amendments to the Constitution as well as to set up the machinery and prescribe the procedure for the ratification of the amendments proposals has been withheld by the Constitution from the President (Prime Minister) as sole repository of executive power and that so long as the regular National Assembly provided for in Article VIII-of the Constitution had not come to existence and the proposals for constitutional amendments were now deemed necessary to be discussed and adopted for submittal to the people, strict adherence with the mandatory requirements of the amending process as provided in the Constitution must be complied with.

2. ID.; INTERIM BATASANG PAMBANSA; POWER TO PROPOSE AMENDMENTS TO THE CONSTITUTION BY MAJORITY VOTE. — One of the powers of the Interim Batasang Pambansa is precisely that of proposing amendments. The 1973 Constitution in its Transitory Provisions vested the Interim National Assembly with the power to propose amendments upon special call by the Prime Minister by a vote of the majority of its members to be ratified in accordance with the Article on Amendments.

2. ID.; ID.; ID.; INTERIM NATIONAL ASSEMBLY, THE AGENCY VESTED WITH THE POWER TO PROPOSE AMENDMENTS. — Under the prevailing doctrine of Tolentino v. Comelec (L-34150, Oct. 16, 1971, 41 SCRA 702 and Resolution denying motion for reconsideration dated Nov. 4, 1971) the proposed amendments to be valid must come from the constitutional agency vested with the constituent power to do so, i.e. in the Interim National Assembly provided in the Transitory Article XVII which would then have to be convened and not from the executive power as vested in the (Prime Minister) from whom such constituent power has been withheld.

3. ID.; ID.; ID.; AMENDMENTS MAY INCLUDE REVISION. — In Del Rosarios v. Commission

3. ID.; ID.; AMENDMENT CREATING THE INTERIM BATASANG PAMBANSA INVALID. —

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In Hidalgo v. Marcos (80 SCRA 530[1977]) Justice Teehankee restated, that under the controlling doctrine of Tolentino (41 SCRA 702), the October 1976 constitutional amendments which created the Interim Batasang Pambansa in lieu of the Interim National Assembly were invalid since as ruled by the Court therein, constitutional provisions on amendments "dealing with the procedure or manner of amending the fundamental law are binding upon the Convention and the other departments of the government (and) are no less binding upon the people" and "the very idea of departing from the fundamental law is anachronistic in the realm of constitutionalism and repugnant to the essence of the rule of law." The proposed amendments at bar having been adopted by the Interim Batasang Pambansa as the fruit of the invalid October, 1976 amendments must necessarily suffer from the same congenital infirmity. 4. ID.; ID.; PLEBISCITE FOR THE RATIFICATION THEREOF; DATE SET FOR THE PLEBISCITE SHORT OF REQUIRED PERIOD. — Justice Teehankee reiterates his stand in Sanidad(73 SCRA 333 [1976]) that the doctrine of fair and proper submission first enunciated by a simple majority of six Justices (of an eleven-member Court prior to the 1973 Constitution which increased the official composition of the Court to fifteen) in Gonzales v. Comelec (21 SCRA 774) and subsequently officially adopted by the required constitutional two-thirds majority vote of the Court (of eight votes, then) in Tolentino is fully applicable in the case at bar. The three resolutions proposing complex, complicated and radical amendments of our very structure of government were considered and approved by the Interim Batasang Pambansa sitting as a constituent assembly on February 27, 1981. It set the date of the plebiscite for thirty-nine days later on April 7, 1981 which is totally inadequate and far short of the ninetyday period fixed by the Constitution for submittal to the people to "sufficiently inform them of the amendments to be voted upon, to conscientiously deliberate thereon and to express their will in a genuine manner."cralaw virtua1aw library 5. ID.; ID.; ID.; AMENDMENTS MUST BE PROPERLY LAID TO THE PEOPLE. — "The Constitution can only be amended by the people expressing themselves according to the procedure ordained by the Constitution. Therefore, amendments must be fairly laid before the people for their blessing or spurning. The people are not to be mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunity to mull over the original provisions, compare them with the proposed amendments, and try to reach a conclusion as the dictates of their conscience suggest, free from the incubus of extraneous or possibly insidious influences. We believe the word ‘submitted’ can only mean that the government, within its maximum capabilities, should strain every effort to inform every citizen of the provisions to be amended, and the proposed amendments and the meaning, nature and effects thereof. . . . What the Constitution in effect directs is that the government, in submitting an amendment for ratification, should put every instrumentality or agency within its structural framework to enlighten the people, educate them with respect to their act of ratification or rejection. For, as we have earlier stated, one thing is submission and another is ratification. There must be fair submission, intelligent consent or rejection. If with all these safeguards the people still approve the amendments no matter how prejudicial it is to them, then so be it. For the people decree their own fate." (Gonzales v. Comelec, Sanchez, J., separate opinion, 21 SCRA 774).

D E C I S I O N

FERNANDO, C.J.:

20

The challenge in these two prohibition proceedings against the validity of three Batasang Pambansa Resolutions 1 proposing constitutional amendments, goes further than merely assailing their alleged constitutional infirmity. Petitioners Samuel Occena and Ramon A. Gonzales, both members of the Philippine Bar and former delegates to the 1971 Constitutional Convention that framed the present Constitution, are suing as taxpayers. The rather unorthodox aspect of these petitions is the assertion that the 1973 Constitution is not the fundamental law, the Javellana 2 ruling to the contrary notwithstanding. To put it at its mildest, such an approach has the arresting charm of novelty — but nothing else. It is in fact self defeating, for if such were indeed the case, petitioners have come to the wrong forum. We sit as a Court duty-bound to uphold and apply that Constitution. To contend otherwise as was done here would be, quite clearly, an exercise in futility. Nor are the arguments of petitioners cast in the traditional form of constitutional litigation any more persuasive. For reasons to be set forth, we dismiss the petitions. The suits for prohibition were filed respectively on March 6 3 and March 12, 1981. 4 On March 10 and 13 respectively, respondents were required to answer each within ten days from notice. 5 There was a comment on the part of the respondents. Thereafter, both cases were set for hearing and were duly argued on March 26 by petitioners and Solicitor General Estelito P. Mendoza for Respondents. With the submission of pertinent data in amplification of the oral argument, the cases were deemed submitted for decision.chanrobles law library : red It is the ruling of the Court, as set forth at the outset, that the petitions must be dismissed. 1. It is much too late in the day to deny the force and applicability of the 1973 Constitution. In the dispositive portion of Javellana v. The Executive Secretary, 6 dismissing petitions for prohibition and mandamus to declare invalid its ratification, this Court stated that it did so by a vote of six 7 to four. 8 It then concluded: "This being the vote of the majority, there is no further judicial obstacle to the new Constitution being considered in force and effect." 9 Such a statement served a useful purpose. It could even be said that there was a need for it. It served to clear the atmosphere. It made manifest that as of January 17, 1973, the present Constitution came into force and effect. With such a pronouncement by the Supreme Court and with the recognition of the cardinal postulate that what the Supreme Court says is not only entitled to respect but must also be obeyed, a factor for instability was removed. Thereafter, as a matter of law, all doubts were resolved. The 1973 Constitution is the fundamental law. It is as simple as that. What cannot be too strongly stressed is that the function of judicial review has both a positive and a negative aspect. As was so convincingly demonstrated by Professors Black 10 and Murphy, 11 the Supreme Court can check as well as legitimate. In declaring what the law is, it may not only nullify the acts of coordinate branches but may also sustain their validity. In the latter case, there is an affirmation that what was done cannot be stigmatized as constitutionally deficient. The mere dismissal of a suit of this character suffices. That is the meaning of the concluding statement in Javellana. Since then, this Court has invariably applied the present Constitution. The latest case in point is People v. Sola, 12 promulgated barely two weeks ago. During the first year alone of the effectivity of the present Constitution, at least ten cases may be cited. 13 2. We come to the crucial issue, the power of the Interim Batasang Pambansa to propose amendments and how it may be exercised. More specially as to the latter, the extent of the changes that may be introduced, the number of votes necessary for the validity of a proposal, and the standard required for a proper submission. As was stated earlier, petitioners were unable to demonstrate that the challenged resolutions are tainted by unconstitutionality.

(1) The existence of the power of the Interim Batasang Pambansa is indubitable. The applicable provision in the 1976 Amendments is quite explicit. Insofar as pertinent it reads thus: "The Interim Batasang Pambansa shall have the same powers and its Members shall have the same functions, responsibilities, rights, privileges, and disqualifications as the interim National Assembly and the regular National Assembly and the Members thereof." 14 One of such powers is precisely that of proposing amendments. The 1973 Constitution in its Transitory Provisions vested the Interim National Assembly with the power to propose amendments upon special call by the Prime Minister by a vote of the majority of its members to be ratified in accordance with the Article on Amendments. 15 When, therefore, the Interim Batasang Pambansa, upon the call of the President and Prime Minister Ferdinand E. Marcos, met as a constituent body, it acted by virtue of such competence. Its authority to do so is clearly beyond doubt. It could and did propose the amendments embodied in the resolutions now being assailed. It may be observed parenthetically that as far as petitioner Occena is concerned, the question of the authority of the Interim Batasang Pambansa to propose amendments is not new. In Occena v. Commission on Elections, 16 filed by the same petitioner, decided on January 28, 1980, such a question was involved although not directly passed upon. To quote from the opinion of the Court penned by Justice Antonio in that case: "Considering that the proposed amendment to Section 7 of Article X of the Constitution extending the retirement of members of the Supreme Court and judges of inferior courts from sixty-five (65) to seventy (70) years is but a restoration of the age of retirement provided in the 1935 Constitution and has been intensively and extensively discussed at the Interim Batasang Pambansa, as well as through the mass media, it cannot, therefore, be said that our people are unaware of the advantages and disadvantages of the proposed amendment." 17 (2) Petitioners would urge upon us the proposition that the amendments proposed are so extensive in character that they go far beyond the limits of the authority conferred on the Interim Batasang Pambansa as successor of the Interim National Assembly. For them, what was done was to revise and not to amend. It suffices to quote from the opinion of Justice Makasiar, speaking for the Court, in Del Rosario v. Commission on Elections 18 to dispose of this contention. Thus: "3. And whether the Constitutional Convention will only propose amendments to the Constitution or entirely overhaul the present Constitution and propose an entirely new Constitution based on an ideology foreign to the democratic system, is of no moment; because the same will be submitted to the people for ratification. Once ratified by the sovereign people, there can be no debate about the validity of the new Constitution. 4. The fact that the present Constitution may be revised and replaced with a new one . . . is no argument against the validity of the law because ‘amendment’ includes the ‘revision’ or total overhaul of the entire Constitution. At any rate, whether the Constitution is merely amended in part or revised or totally changed would become immaterial the moment the same is ratified by the sovereign people." 19 There is here the adoption of the principle so well-known in American decisions as well as legal texts that a constituent body can propose anything but conclude nothing. 20 We are not disposed to deviate from such a principle not only sound in theory but also advantageous in practice.chanrobles.com:cralaw:red (3) That leaves only the questions of the vote necessary to propose amendments as well as the standard for proper submission. Again, petitioners have not made out a case that calls for a judgment in their favor. The language of the Constitution supplies the answer to the above questions. The Interim Batasang Pambansa, sitting as a constituent body, can propose amendments. In that capacity, only a majority vote is needed. It would be an indefensible proposition to assert that the three-fourth votes required when it sits as a legislative body applies as well when it has been convened as the agency through which amendments could be proposed. That is not a requirement as far as a constitutional convention is concerned. It is not

21

a requirement either when, as in this case, the Interim Batasang Pambansa exercises its constituent power to propose amendments. Moreover, even on the assumption that the requirement of three-fourth votes applies, such extraordinary majority was obtained. It is not disputed that Resolution No. 1 proposing an amendment allowing a natural-born citizen of the Philippines naturalized in a foreign country to own a limited area of land for residential purposes was approved by the vote of 122 to 5; Resolution No. 2 dealing with the Presidency, the Prime Minister and the Cabinet, and the National Assembly by a vote of 147 to 5 with 1 abstention; and Resolution No. 3 on the amendment to the Article on the Commission on Elections by a vote of 148 to 2 with 1 abstention. Where then is the alleged infirmity? As to the requisite standard for a proper submission, the question may be viewed not only from the standpoint of the period that must elapse before the holding of the plebiscite but also from the standpoint of such amendments having been called to the attention of the people so that it could not plausibly be maintained that they were properly informed as to the proposed changes. As to the period, the Constitution indicates the way the matter should be resolved. There is no ambiguity to the applicable provision: "Any amendment to, or revision of, this Constitution shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not later than three months after the approval of such amendment or revision." 21 The three resolutions were approved by the Interim Batasang Pambansa sitting as a constituent assembly on February 5 and 27, 1981. In the Batasang Pambansa Blg. 22, the date of the plebiscite is set for April 7, 1981. It is thus within the 90-day period provided by the Constitution. Thus any argument to the contrary is unavailing. As for the people being adequately informed, it cannot be denied that this time, as in the cited 1980 Occena opinion of Justice Antonio, where the amendment restored to seventy the retirement age of members of the judiciary, the proposed amendments have "been intensively and extensively discussed at the Interim Batasang Pambansa, as well as through the mass media, [so that] it cannot, therefore, be said that our people are unaware of the advantages and disadvantages of the proposed amendment[s]." 22 WHEREFORE, the petitions are dismissed for lack of merit. No costs. Barredo, Makasiar, Aquino, Concepcion Jr., Fernandez, Guerrero, De Castro and MelencioHerrera, JJ., concur. Abad Santos, J., is on official leave. Separate Opinions

TEEHANKEE, J., dissenting:chanrob1es virtual 1aw library I vote to give due course to the petitions at bar and to grant the application for a temporary restraining order enjoining the plebiscite scheduled for April 7, 1981. 1. Consistently with my dissenting opinion in Sanidad v. Comelec 1 on the invalidity of the October 1976 amendments proposals to the 1973 Constitution for not having been proposed nor adopted in accordance with the mandatory provisions thereof, as restated by the in Hidalgo v. Marcos 2 and De la Llana v. Comelec 3 questioning the validity of the December 17, 1977 referendum exercise as to the continuance in office as incumbent President and to be Prime Minister after the organization of the Interim Batasang Pambansa as provided for in Amendment No. 3 of the 1976 Amendments, I am constrained to dissent from the majority decision of dismissal of the petitions. I had held in Sanidad that the transcendental constituent power to propose and approve

amendments to the Constitution as well as to set up the machinery and prescribe the procedure for the ratification of the amendments proposals has been withheld by the Constitution from the President (Prime Minister) as sole repository of executive power and that so long as the regular National Assembly provided for in Article VIII of the Constitution had not come to existence and the proposals for constitutional amendments were now deemed necessary to be discussed and adopted for submittal to the people, strict adherence with the mandatory requirements of the amending process as provided in the Constitution must be complied with. This means, under the prevailing doctrine of Tolentino v. Comelec 4 that the proposed amendments to be valid must come from the constitutional agency vested with the constituent power to do so, i.e. in the Interim National Assembly provided in the Transitory Article XVII which would then have to be convened and not from the executive power as vested in the President (Prime Minister) from whom such constituent power has been withheld.chanrobles.com : virtual law library 2. As restated by me in the 1977 case of Hidalgo, under the controlling doctrine of Tolentino, the October 1976 constitutional amendments which created the Interim Batasang Pambansa in lieu of the Interim National Assembly were invalid since as ruled by the Court therein, constitutional provisions on amendments "dealing with the procedure or manner of amending the fundamental law are binding upon the Convention and the other departments of the government (and) are no less binding upon the people" and "the very idea of departing from the fundamental law is anachronistic in the realm of constitutionalism and repugnant to the essence of the rule of law." The proposed amendments at bar having been adopted by the Interim Batasang Pambansa as the fruit of the invalid October, 1976 amendments must necessarily suffer from the same congenital infirmity. 3. Prescinding from the foregoing and assuming the validity of the proposed amendments, I reiterate my stand in Sanidad that the doctrine of fair and proper submission first enunciated by a simple majority of six Justices (of an eleven-member Court prior to the 1973 Constitution which increased the official composition of the Court to fifteen) in Gonzales v. Comelec 5 and subsequently officially adopted by the required constitutional two-thirds majority vote of the Court (of eight votes, then) in Tolentino is fully applicable in the case at bar. The three resolutions proposing complex, complicated and radical amendments of our very structure of government were considered and approved by the Interim Batasang Pambansa sitting as a constituent assembly on February 27, 1981. It set the date of the plebiscite for thirty-nine days later on April 7, 1981 which is totally inadequate and far short of the ninety-day period fixed by the Constitution for submittal to the people to "sufficiently inform them of the amendments to be voted upon, to conscientiously deliberate thereon and to express their will in a genuine manner." 6 4. "The minimum requirements that must be met in order that there can be a proper submission to the people of a proposed constitutional amendment" as stated by retired Justice Conrado V. Sanchez in his separate opinion in Gonzales bears repeating as follows: ". . . we take the view that the words ‘submitted to the people for their ratification,’ if construed in the light of the nature of the Constitution — a fundamental charter that is legislation direct from the people, an expression of their sovereign will — is that it can only be amended by the people expressing themselves according to the procedure ordained by the Constitution. Therefore, amendments must be fairly laid before the people for their blessing or spurning. The people are not to be mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunity to mull over the original provisions, compare them with the proposed amendments, and try to reach a conclusion as the dictates of their conscience suggest, free from the incubus of extraneous or possibly insidious influences. We believe the word ‘submitted’ can only mean that

22

the government, within its maximum capabilities, should strain every effort to inform every citizen of the provisions to be amended, and the proposed amendments and the meaning, nature and effects thereof. . . . What the Constitution in effect directs is that the government, in submitting an amendment for ratification, should put every instrumentality or agency within its structural framework to enlighten the people, educate them with respect to their act of ratification or rejection. For, as we have earlier stated, one thing is submission and another is ratification. There must be fair submission, intelligent consent or rejection. If with all these safeguards the people still approve the amendments no matter how prejudicial it is to them, then so be it. For the people decree their own fate." chanrobles virtual lawlibrary Justice Sanchez therein ended the passage with an apt citation that." . . The great men who builded the structure of our state in this respect had the mental vision of a good Constitution voiced by Judge Cooley, who has said ‘A good Constitution should be beyond the reach of temporary excitement and popular caprice or passion. It is needed for stability and steadiness; it must yield to the thought of the people; not to the whim of the people, or the thought evolved in excitement or hot blood, but the sober second thought, which alone, if the government is to be safe, can be allowed efficacy . . . Changes in government are to be feared unless the benefit is certain.’ As Montaign says: ‘All great mutations shake and disorder a state. Good does not necessarily succeed evil; another evil may succeed and a worse.’"

EN BANC

[G.R. No. 115873.]

[G.R. No. 115455. August 25, 1994.] ARTURO M. TOLENTINO, Petitioner, v. THE SECRETARY OF FINANCE and THE COMMISSIONER OF INTERNAL REVENUE, Respondents.

COOPERATIVE UNION OF THE PHILIPPINES, Petitioners, v. 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. 115525.]

[G.R. No. 115931.]

JUAN T. DAVID, Petitioner, v. TEOFISTO T. GUINGONA, JR., as Executive Secretary; ROBERTO DE OCAMPO, as Secretary of Finance; LIWAYWAY VINZONSCHATO, as Commissioner of Internal Revenue; and their AUTHORIZED AGENTS OR REPRESENTATIVES, Respondents.

PHILIPPINE EDUCATIONAL PUBLISHERS ASSOCIATION, INC., and ASSOCIATION OF PHILIPPINE BOOKSELLERS, Petitioners, v. 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.

[G.R. No. 115543.] Arturo M. Tolentino for and in his behalf. RAUL S. ROCO and the INTEGRATED BAR OF THE PHILIPPINES, Petitioners, v. THE SECRETARY OF THE DEPARTMENT OF FINANCE; THE COMMISSIONERS OF THE BUREAU OF INTERNAL REVENUE AND BUREAU OF CUSTOMS, Respondents.

Donna Celeste D. Feliciano and Juan T. David for petitioners in G.R. No 115525. Roco, Bunag, Kapunan, Migallos and Jardeleza for petitioner R.S. Roco.

[G.R. No. 115544.] Villaraza and Cruz for petitioners in G.R. No. 115544. PHILIPPINE PRESS INSTITUTE, INC.; EGP PUBLISHING CO., INC.; KAMAHALAN PUBLISHING CORPORATION; PHILIPPINE JOURNALISTS, INC.; JOSE L. PAVIA; and OFELIA L. DIMALANTA, Petitioners, v. 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.

Carlos A. Raneses and Manuel M. Serrano for petitioner in G.R. No. 115754. Salonga, Hernandez & Allado for Freedom from Debts Coalition, Inc. & Phil. Bible Society. Estelito P. Mendoza for petitioner in G.R. No. 115852.

[G.R. No. 115754.] CHAMBER OF REAL ESTATE AND BUILDERS ASSOCIATIONS, INC., (CREBA), Petitioner, v. THE COMMISSIONER OF INTERNAL REVENUE, Respondent.

Panganiban, Benitez, Parlade, Africa & Barinaga Law Offices for petitioners in G.R. No 115873. R. B. Rodriguez & Associates for petitioners in G.R. No. 115931.

[G.R. No. 115781.] Rene A.V. Saguisag for MABINI. 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., PHILIPPINE BIBLE SOCIETY, INC., and WIGBERTO TAÑADA, Petitioners, v. THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE, THE COMMISSIONER OF INTERNAL REVENUE and THE COMMISSIONER OF CUSTOMS, Respondents. [G.R. No. 115852.] PHILIPPINE AIRLINES, INC., Petitioner, v. THE SECRETARY OF FINANCE, and COMMISSIONER OF INTERNAL REVENUE, Respondents.

23

D E C I S I O N

MENDOZA, J.:

The valued-added tax (VAT) is levied on the sale, barter or exchange of goods and properties as well as on the sale or exchange of services. It is equivalent to 10% of the gross selling price or gross value in money of goods or properties sold, bartered or exchanged or of the gross receipts from the sale or exchange of services. Republic Act No. 7716 seeks to widen the tax base of the existing VAT system and enhance its administration by amending the National Internal Revenue Code.cralawnad

These are various suits for certiorari and prohibition, challenging the constitutionality of Republic Act No. 7716 on various grounds summarized in the resolution of July 6, 1994 of this Court, as follows:chanrob1es virtual 1aw library I. Procedural Issues:chanrob1es virtual 1aw library

Id., § 26(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.

A. Does Republic Act No. 7716 violate Art. VI, § 24 of the Constitution? B. Does it violate Art. VI, § 26(2) of the Constitution? C. What is the extent of the power of the Bicameral Conference Committee?

It appears that on various dates between July 22, 1992 and August 31, 1993, several bills 1 were introduced in the House of Representatives seeking to amend certain provisions of the National Internal Revenue Code relative to the value-added tax or VAT. These bills were referred to the House Ways and Means Committee which recommended for approval a substitute measure, H. No. 11197, entitled

II. Substantive Issues:chanrob1es virtual 1aw library A. Does the law violate the following provisions in the Bill of Rights (Art. III)? 1. § 1

AN ACT RESTRUCTURING THE VALUE-ADDED TAX (VAT) SYSTEM TO WIDEN ITS TAX BASE AND ENHANCE ITS ADMINISTRATION, AMENDING FOR THESE PURPOSES SECTIONS 99, 100, 102, 103, 104, 105, 106, 107, 108 AND 110 OF TITLE IV, 112, 115 AND 116 OF TITLE V, AND 236, 237 AND 238 OF TITLE IX, AND REPEALING SECTIONS 113 AND 114 OF TITLE V, ALL OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED.

2. § 4 3. § 5

The bill (H. No. 11197) was considered on second reading starting November 6, 1993 and, on November 17, 1993, it was approved by the House of Representatives after third and final reading.

4. § 10 B. Does the law violate the following other provisions of the Constitution? 1. Art. VI, § 28(1)

It was sent to the Senate on November 23, 1993 and later referred by that body to its Committee on Ways and Means. On February 7, 1994, the Senate Committee submitted its report recommending approval of S. No. 1630, entitled

2. Art. VI, § 28(3) These questions will be dealt in the order they are stated above. As will presently be explained not all of these questions are judicially cognizable, because not all provisions of the Constitution are self executing and, therefore, judicially enforceable. The other departments of the government are equally charged with the enforcement of the Constitution, especially the provisions relating to them. I. PROCEDURAL ISSUES The contention of petitioners is that in enacting Republic Act No. 7716, or the Expanded Valued-Added Tax Law, Congress violated the Constitution because, although H. No. 11197 had originated in the House of Representatives, it was not passed by the Senate but was simply consolidated with the Senate version (S. No. 1630) in the Conference Committee to produce the bill which the President signed into law. The following provisions of the Constitution are cited in support of the proposition that because Republic Act No. 7716 was passed in this manner, it did not originate in the House of Representatives and it has not thereby become a law:chanrob1es virtual 1aw library Art. VI, § 24: 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.

AN ACT RESTRUCTURING THE VALUE-ADDED TAX (VAT) SYSTEM TO WIDEN ITS TAX BASE AND ENHANCE ITS ADMINISTRATION, AMENDING FOR THESE PURPOSES SECTIONS 99, 100, 102, 103, 104, 105, 107, 108, AND 110 OF TITLE IV, 112 OF TITLE V, AND 236, 237, AND 238 OF TITLE IX, AND REPEALING SECTIONS 113, 114 and 116 OF TITLE V, ALL OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED, AND FOR OTHER PURPOSES. It was stated that the bill was being submitted "in substitution of Senate Bill No. 1129, taking into consideration P. S. Res. No. 734 and H. B. No. 11197."cralaw virtua1aw library On February 8, 1994, the Senate began consideration of the bill (S. No. 1630). It finished debates on the bill and approved it on second reading on March 24, 1994. On the same day, it approved the bill on third reading by the affirmative votes of 13 of its members, with one abstention. H. No. 1197 and its Senate version (S. No. 1630) were then referred to a conference committee which, after meeting four times (April 13, 19, 21 and 25, 1994), recommended that "House Bill No. 11197, in consolidation with Senate Bill No. 1630, be approved in accordance with the attached copy of the bill as reconciled and approved by the conferees."cralaw virtua1aw library The Conference Committee bill, entitled "AN ACT RESTRUCTURING THE VALUE-ADDED TAX

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(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," was thereafter approved by the House of Representatives on April 27, 1994 and by the Senate on May 2, 1994. The enrolled bill was then presented to the President of the Philippines who, on May 5, 1994, signed it. It became Republic Act No. 7716. On May 12, 1994, Republic Act No. 7716 was published in two newspapers of general circulation and, on May 28, 1994, it took effect, although its implementation was suspended until June 30, 1994 to allow time for the registration of business entities. It would have been enforced on July 1, 1994 but its enforcement was stopped because the Court, by the vote of 11 to 4 of its members, granted a temporary restraining order on June 30, 1994. First. Petitioners’ contention is that Republic Act No. 7716 did not "originate exclusively" in the House of Representatives as required by Art. VI, § 24 of the Constitution, because it is in fact the result of the consolidation of two distinct bills, H. No. 11197 and S. No. 1630. In this connection, petitioners point out that although Art. VI, § 24 was adopted from the American Federal Constitution, 2 it is notable in two respects: the verb "shall originate" is qualified in the Philippine Constitution by the word "exclusively" and the phrase "as on other bills" in the American version is omitted. This means, according to them, that to be considered as having originated in the House, Republic Act No. 7716 must retain the essence of H. No. 11197. This argument will not bear analysis. To begin with, it is not the law — but the revenue bill — which is required by the Constitution to "originate exclusively" in the House of Representatives. It is important to emphasize this, because a bill originating in the House may undergo such extensive changes in the Senate that the result may be a rewriting of the whole. The possibility of a third version by the conference committee will be discussed later. At this point, what is important to note is that, as a result of the Senate action, a distinct bill may be produced. To insist that a revenue statute — and not only the bill which initiated the legislative process culminating in the enactment of the law — must substantially be the same as the House bill would be to deny the Senate’s power not only to "concur with amendments" but also to" propose amendments." It would be to violate the coequality of legislative power of the two houses of Congress and in fact make the House superior to the Senate. The contention that the constitutional design is to limit the Senate’s power in respect of revenue bills in order to compensate for the grant to the Senate of the treaty-ratifying power 3 and thereby equalize its powers and those of the House overlooks the fact that the powers being compared are different. We are dealing here with the legislative power. which under the Constitution is vested not in any particular chamber but in the Congress of the Philippines, consisting of "a Senate and a House of Representatives." 4 The exercise of the treatyratifying power is not the exercise of legislative power. It is the exercise of a check on the executive power. There is, therefore, no justification for comparing the legislative powers of the House and of the Senate on the basis of the possession of such nonlegislative power by the Senate. The possession of a similar power by the U.S. Senate 5 has never been thought of as giving it more legislative powers than the House of Representatives. In the United States, the validity of a provision (sec. 37) imposing an ad valorem tax based on the weight of vessels, which the U.S. Senate had inserted in the Tariff Act of 1909, was upheld against the claim that the provision was a revenue bill which originated in the Senate in contravention of Art. I, § 7 of the U.S. Constitution. 6 Nor is the power to amend limited to adding a provision or two in a revenue bill emanating from the House. The U.S. Senate has gone so far as changing the whole of bills following the enacting clause and substituting its own

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versions. In 1883, for example, it struck out everything after the enacting clause of a tariff bill and wrote in its place its own measure, and the House subsequently accepted the amendment. The U.S. Senate likewise added 847 amendments to what later became the PayneAldrich Tariff Act of 1909; it dictated the schedules of the Tariff Act of 1921; it rewrote an extensive tax revision bill in the same year and recast most of the tariff bill of 1992. 7 Given, then, the power of the Senate to propose amendments, the Senate can propose its own version even with respect to bills which are required by the Constitution to originate in the House. It is insisted, however, that S. No. 1630 was passed not in substitution of H. No. 11197 but of another Senate bill (S. No. 1129) earlier filed and that what the Senate did was merely to "take [H. No. 11197] into consideration" in enacting S. No. 1630. There is really no difference between the Senate preserving H. No. 11197 up to the enacting clause and then writing its own version following the enacting clause (which, it would seem, petitioners admit is an amendment by substitution), and, on the other hand, separately presenting a bill of its own on the same subject matter. In either case the result are two bills on the same subject. Indeed, what the Constitution simply means is that the initiative for filing revenue, tariff, or tax bills, bills authorizing an increase of the public debt, private bills and bills of local application must come from the House of Representatives on the theory that, elected as they are from the districts, the members of the House can be expected to be more sensitive to the local needs and problems. On the other hand, the senators, who are elected at large, are expected to approach the same problems from the national perspective. Both views are thereby made to bear on the enactment of such laws. Nor does the Constitution prohibit the filing in the Senate of a substitute bill in anticipation of its receipt of the bill from the House, so long as action by the Senate as a body is withheld pending receipt of the House bill. The Court cannot, therefore, understand the alarm expressed over the fact that on March 1, 1993, eight months before the House passed H. No. 11197, S. No. 1129 had been filed in the Senate. After all it does not appear that the Senate ever considered it. It was only after the Senate had received H. No. 11197 on November 23, 1993 that the process of legislation in respect of it began with the referral to the Senate Committee on Ways and Means of H. No. 11197 and the submission by the Committee on February 7, 1994 of S. No. 1630. For that matter, if the question were simply the priority in the time of filing of bills, the fact is that it was in the House that a bill (H. No. 253) to amend the VAT law was first filed on July 22, 1992. Several other bills had been filed in the House before S. No. 1129 was filed in the Senate, and H. No. 11197 was only a substitute of those earlier bills.chanrobles law library Second. Enough has been said to show that it was within the power of the Senate to propose S. No. 1630. We not pass to the next argument of petitioners that S. No. 1630 did not pass three readings on separate days as required by the Constitution 8 because the second and third readings were done on the same day, March 24, 1994. But this was because on February 24, 1994 9 and again on March 22, 1994, 10 the President had certified S. No. 1630 as urgent. The presidential certification dispensed with the requirement not only of printing but also that of reading the bill on separate days. The phrase "except when the President certifies to the necessity of its immediate enactment, etc." in Art. VI, § 26(2) qualified the two stated conditions before a bill can become a law: (i) the bill has passed three readings on separate days and (ii) it has been printed in its final form and distributed three days before it is finally approved. In other words, the "unless" clause must be read in relation to the "except" clause, because

the two are really coordinate clauses of the same sentence. To construe the "except" clause as simply dispensing with the second requirement in the "unless" clause (i.e., printing and distribution three days before final approval) would not only violate the rules of grammar. It would also negate the very premise of the "except" clause: the necessity of securing the immediate enactment of a bill which is certified in order to meet a public calamity or emergency. For if it is only the printing that is dispensed with by presidential certification, the time saved would be so negligible as to be of any use in insuring immediate enactment. It may well be doubted whether doing away with the necessity of printing and distributing copies of the bill three days before the third reading would insure speedy enactment of a law in the face of an emergency requiring the calling of a special election for President and Vice-President. Under the Constitution such a law is required to be made within seven days of the convening of Congress in emergency session. 11 That upon the certification of a bill by the President the requirement of three readings on separate days and of printing and distribution can be dispensed with is supported by the weight of legislative practice. For example, the bill defining the certiorari jurisdiction of this Court which, in consolidation with the Senate version, became Republic Act No. 5440, was passed on second and third readings in the House of Representatives on the same day (May 14, 1968) after the bill had been certified by the President as urgent. 12 There is, therefore, no merit in the contention that presidential certification dispenses only with the requirement for the printing of the bill and its distribution three days before its passage but not with the requirement of three readings on separate days, also.chanroblesvirtuallawlibrary It is nonetheless urged that the certification of the bill in this case was invalid because there was no emergency, the condition stated in the certification of a "growing budget deficit" not being an unusual condition in this country. It is noteworthy that no member of the Senate saw fit to controvert the reality of the factual basis of the certification. To the contrary, by passing S. No. 1630 on second and third readings on March 24, 1994, the Senate accepted the President’s certification. Should such certification be now reviewed by this Court, especially when no evidence has been shown that, because S. No. 1630 was taken up on second and third readings on the same day, the members of the Senate were deprived of the time needed for the study of a vital piece of legislation? The sufficiency of the factual basis of the suspension of the writ of habeas corpus or declaration of martial law under Art. VII, § 18, or the existence of a national emergency justifying the delegation of extraordinary powers to the President under Art. VI, § 23(2), is subject to judicial review because basic rights of individuals may be at hazard. But the factual basis of presidential certification of bills, which involves doing away with procedural requirements designed to insure that bills are duly considered by members of Congress, certainly should elicit a different standard of review. Petitioners also invite attention to the fact that the President certified S. No. 1630 and not H. No. 11197. That is because S. No. 1630 was what the Senate was considering. When the matter was before the House, the President likewise certified H. No. 9210 then pending in the House. Third. Finally it is contended that the bill which became Republic Act No. 7716 is the bill which the Conference Committee prepared by consolidating H. No. 11197 and S. No. 1630. It is claimed that the Conference Committee report included provisions not found in either the

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House bill or the Senate bill and that these provisions were "surreptitiously" inserted by the Conference Committee. Much is made of the fact that in the last two days of its session on April 21 and 25, 1994 the Committee met behind closed doors. We are not told, however, whether the provisions were not the result of the give and take that often mark the proceedings of conference committees. Nor is there anything unusual or extraordinary about the fact that the Conference Committee met in executive sessions. Often the only way to reach agreement on conflicting provisions is to meet behind closed doors, with only the conferees present. Otherwise, no compromise is likely to be made. The Court is not about to take the suggestion of a cabal or sinister motive attributed to the conferees on the basis solely of their "secret meetings" on April 21 and 25, 1994, nor read anything into the incomplete remarks of the members, marked in the transcript of stenographic notes by ellipses. The incomplete sentences are probably due to the stenographer’s own limitations or to the incoherence that sometimes characterize conversations. William Safire noted some such lapses in recorded talks even by recent past Presidents of the United States. In any event, in the United States conference committees had been customarily held in executive sessions with only the conferees and their staffs in attendance. 13 Only in November 1975 was a new rule adopted requiring open sessions. Even then a majority of either chamber’s conferees may vote in public to close the meetings. 14 As to the possibility of an entirely new bill emergency out of a Conference Committee, it has been explained:chanrob1es virtual 1aw library Under congressional rules of procedure, conference committees are not expected to make any material change in the measure at issue, either by deleting provisions to which both houses have already agreed or by inserting new provisions. But this is a difficult provision to enforce. Note the problem when one house amends a proposal originating in either house by striking out everything following the enacting clause and substituting provisions which make it an entirely new bill. The versions are now altogether different, permitting a conference committee to draft essentially a new bill . . . 15 The result is a third version, which is considered an "amendment in the nature of a substitute," the only requirement for which being that the third version be germane to the subject of the House and Senate bills. 16 Indeed, this Court recently held that it is within the power of a conference committee to include in its report an entirely new provision that is not found either in the House bill or in the Senate bill. 17 If the committee can propose an amendment consisting of one or two provisions, there is no reason why it cannot propose several provisions, collectively considered as an "amendment in the nature of a substitute," so long as such amendment is germane to the subject of the bills before the committee. After all, its report was not final but needed the approval of both houses of Congress to become valid as an act of the legislative department. The charge that in this case the Conference Committee acted as a third legislative chamber is thus without any basis. 18 Nonetheless, it is argued that under the respective Rules of the Senate and the House of Representatives a conference committee can only act on the differing provisions of a Senate bill and a House bill, and that contrary to these Rules the Conference Committee inserted provisions not found in the bills submitted to it. The following provisions are cited in support of

this contention:chanrob1es virtual 1aw library

in issue.

Rules of the Senate

Note that, according to Rule XLIX, § 112, in case there is no specific rule applicable, resort must be to the legislative practice. The Jefferson’s Manual is resorted to only as supplement. It is common place in Congress that conference committee reports include new matters which, though germane, have not been committed to the committee. This practice was admitted by Senator Raul S. Roco, petitioner in G.R. No. 115543, during the oral argument in these cases. Whatever, then, may be provided in the Jefferson’s Manual must be considered to have been modified by the legislative practice. If a change is desired in the practice it must be sought in Congress since this question is not covered by any constitutional provision but is only an internal rule of each house. Thus, Art. VI, § 16(3) of the Constitution provides that "Each House may determine the rules of its proceedings. . . ."cralaw virtua1aw library

Rule XII:chanrob1es virtual 1aw library § Sec. 26. In the event that the Senate does not agree with the House of Representatives on the provision of any bill or joint resolution, the differences shall be settled by a conference committee of both Houses which shall meet within ten days after their composition. The President shall designate the members of the conference committee in accordance with subparagraph (c), Section 3 of Rule III. Each Conference Committee Report shall contain a detailed and sufficiently explicit statement of the changes in or amendments to the subject measure, and shall be signed by the conferees. The consideration of such report shall not be in order unless the report has been filed with the Secretary of the Senate and copies thereof have been distributed to the Members. (Emphasis added) Rules of the House of Representatives Rule XIV:chanrob1es virtual 1aw library § Sec. 85. Conference Committee Reports. — In the event that the House does not agree with the Senate on the amendments to any bill or joint resolution, the differences may be settled by conference committees of both Chambers. The consideration of conference committee reports shall always be in order, except when the journal is being read, while the roll is being called or the House is dividing on any question. Each of the pages of such reports shall be signed by the conferees. Each report shall contain a detailed, sufficiently explicit statement of the changes in or amendments to the subject measure. The consideration of such report shall not be in order unless copies thereof are distributed to the Members: Provided, That in the last fifteen days of each session period it shall be deemed sufficient that three copies of the report, signed as above provided, are deposited in the office of the Secretary General. (Emphasis added) To be sure, nothing in the Rules limits a conference committee to a consideration of conflicting provisions. But Rule XLIV, § 112 of the Rules of the Senate is cited to the effect that "If there is no Rule applicable to a specific case the precedents of the Legislative Department of the Philippines shall be resorted to, and as a supplement of these, the Rules contained in Jefferson’s Manual." The following is then quoted from the Jefferson’s Manual:chanrob1es virtual 1aw library The managers of a conference must confine themselves to the differences committed to them . . . and may not include subjects not within disagreements, even though germane to a question

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This observation applies to the other contention that the Rules of the two chambers were likewise disregarded in the preparation of the Conference Committee Report because the Report did not contain a "detailed and sufficiently explicit statement of changes in, or amendments to, the subject measure." The Report used brackets and capital letters to indicate the changes. This is a standard practice in bill-drafting. We cannot say that in using these marks and symbols the Committee violated the Rules of the Senate and the House. Moreover, this Court is not the proper forum for the enforcement of these internal Rules. To the contrary, as we have already ruled, "parliamentary rules are merely procedural and with their observance the courts have no concern." 19 Our concern is with the procedural requirements of the Constitution for the enactment of laws. As far as these requirements are concerned, we are satisfied that they have been faithfully observed in these cases.chanrobles virtual lawlibrary Nor is there any reason for requiring that the Committee’s Report in these cases must have undergone three readings in each of the two houses. If that be the case, there would be no end to negotiation since each house may seek modifications of the compromise bill. The nature of the bill, therefore, requires that it be acted upon by each house on a "take it or leave it" basis, with the only alternative that if it is not approved by both houses, another conference committee must be appointed. But then again the result would still be a compromise measure that may not be wholly satisfying to both houses. Art. VI, § 26(2) must, therefore, be construed as referring only to bills introduced for the first time in either house of Congress, not to the conference committee report. For if the purpose of requiring three readings is to give members of Congress time to study bills, it cannot be gainsaid that H. No. 11197 was passed in the House after three reading; that in the Senate it was considered on first reading and then referred to a committee of that body; that although the Senate committee did not report out the House bill, it submitted a version (S. No. 1630) which it had prepared by "taking into consideration" the House bill; that for its part the Conference Committee consolidated the two bills and prepared a compromise version; that the Conference Committee Report was thereafter approved by the House and the Senate, presumably after appropriate study by their members. We cannot say that, as a matter of fact, the members of Congress were not fully informed of the provisions of the bill. The allegation that the Conference Committee usurped the legislative power of Congress is, in our view, without warrant in fact and in law. Fourth. Whatever doubts there may be as to the formal validity of Republic Act No. 7716 must be resolved in its favor. Our cases 20 manifest firm adherence to the rule that an enrolled copy of a bill is conclusive not only of its provisions but also of its due enactment. Not even

claims that a proposed constitutional amendment was invalid because the requisite votes for its approval had not been obtained 21 or that certain provisions of a statute had been "smuggled" in the printing of the bill 22 have moved or persuaded us to look behind the proceedings of a coequal branch of the government. There is no reason now to depart from this rule.

§ 103. Exempt transactions. — The following shall be exempt from the value-added tax:chanrob1es virtual 1aw library

No claim is here made that the "enrolled bill" rule is absolute. In fact in one case 23 we "went behind" an enrolled bill and consulted the Journal to determine whether certain provisions of a statute had been approved by the Senate in view of the fact that the President of the Senate himself, who had signed the enrolled bill, admitted a mistake and withdrew his signature, so that in effect there was no longer an enrolled bill to consider.chanroblesvirtuallawlibrary:red

(q) Transactions which are exempt under special laws, except those granted under Presidential Decree Nos. 66, 529, 972, 1491, 1590. . . .

But where allegations that the constitutional procedures for the passage of bills have not been observed have no more basis than another allegation that the Conference Committee "surreptitiously" inserted provisions into a bill which it had prepared, we should decline the invitation to go behind the enrolled copy of the bill. To disregard the "enrolled bill" rule in such cases would be to disregard the respect due the other two departments of our government.

The question is whether this amendment of § 103 of the NIRC is fairly embraced in the title of Republic Act No. 7716, although no mention is made therein of P.D. No. 1590 as among those which the statute amends. We think it is, since the title states that the purpose of the statute is to expand the VAT system, and one way of doing this is to widen its base by withdrawing some of the exemptions granted before. To insist that P.D. No. 1590 be mentioned in the title of the law, in addition to § 103 of the NIRC, in which it is specifically referred to, would be to insist that the title of a bill should be a complete index of its content.

Fifth. An additional attack on the formal validity of Republic Act No. 7716 is made by the Philippine Airlines, Inc., petitioner in G.R. No. 11582, namely, that it violates Art. IV, § 26(1) which provides that "Every bill passed by Congress shall embrace only one subject which shall be expressed in the title thereof." It is contended that neither H. No. 11197 nor S. No. 1630 provided for removal of exemption of PAL transactions from the payment of the VAT and that this was made only in the Conference Committee bill which became Republic Act No. 7716 without reflecting this fact in its title. The title of Republic Act No. 7716 is:chanrob1es virtual 1aw library 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. Among the provisions of the NIRC amended is sec. 103, which originally read:chanrob1es virtual 1aw library § Sec. 103. Exempt transactions. — The following shall be exempt from the value-added tax:chanrob1es virtual 1aw library ... (q) Transactions which are exempt under special laws or international agreements to which the Philippines is a signatory. Among the transactions exempted from the VAT were those of PAL because it was exempted under its franchise (P.D. No. 1590) from the payment of all "other taxes . . . now or in the near future," in consideration of the payment by it either of the corporate income tax or a franchise tax of 2%. As a result of its amendment by Republic Act No. 7716, § 103 of the NIRC now provides:chanrob1es virtual 1aw library

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...

The effect of the amendment is to remove the exemption granted to PAL, as far as the VAT is concerned.

The constitutional requirement that every bill passed by Congress shall embrace only one subject which shall be expressed in its title is intended to prevent surprise upon the members of Congress and to inform the people of pending legislation so that, if they wish to, they can be heard regarding it. If, in the case at bar, petitioner did not know before that its exemption had been withdrawn, it is not because of any defect in the title but perhaps for the same reason other statutes, although published, pass unnoticed until some event somehow calls attention to their existence. Indeed, the title of Republic Act No. 7716 is not any more general than the title of PAL’s own franchise under P.D. No. 1590, and yet no mention is made of its tax exemption. The title of P.D. No. 1590 is:chanrob1es virtual 1aw library AN ACT GRANTING A NEW FRANCHISE TO PHILIPPINE AIRLINES, INC. TO ESTABLISH, OPERATE, AND MAINTAIN AIR-TRANSPORT SERVICES IN THE PHILIPPINES AND BETWEEN THE PHILIPPINES AND OTHER COUNTRIES. The trend in our cases is to construe the constitutional requirement in such a manner that courts do not unduly interfere with the enactment of necessary legislation and to consider it sufficient if the title expresses the general subject of the statute and all its provisions are germane to the general subject thus expressed. 24 It is further contended that amendment of petitioner’s franchise may only be made by special law, in view of sec. 24 of P.D. No. 1590 which provides:chanrob1es virtual 1aw library This franchise, as amended, or any section or provision hereof may only be modified, amended, or repealed expressly by a special law or decree that shall specifically modify, amend, or repeal this franchise or any section or provision thereof.cralawnad This provision is evidently intended to prevent the amendment of the franchise by mere implication resulting from the enactment of a later inconsistent statute, in consideration of the fact that a franchise is a contract which can be altered only by consent of the parties. Thus in Manila Railroad Co. v. Rafferty, 25 it was held that an Act of the U.S. Congress, which provided for the payment of tax on certain goods and articles imported into the Philippines, did not amend the franchise of plaintiff, which exempted it from all taxes except those mentioned

in its franchise. It was held that a special law cannot be amended by a general law. In contrast, in the case at bar, Republic Act No. 7716 expressly amends PAL’s franchise (P.D. No. 1590) by specifically excepting from the grant of exemptions from the VAT PAL’s exemption under P.D. No. 1590. This is within the power of Congress to do under Art. XII, § 11 of the Constitution, which provides that the grant of a franchise for the operation of a public utility is subject to amendment, alteration or repeal by Congress when the common good so requires.

newspapers from advertisements and on their acquisition of paper, ink and services for publication. Even on the assumption that no exemption has effectively been granted to print media transactions, we find no violation of press freedom in these cases. To be sure, we are not dealing here with a statute that on its face operates in the area of press freedom. The PPI’s claim is simply that, as applied to newspapers, the law abridges press freedom. Even with due recognition of its high estate and its importance in a democratic society, however, the press is not immune from general regulation by the State. It has been held:chanrob1es virtual 1aw library

II. SUBSTANTIVE ISSUES A. Claims of Press Freedom, Freedom of Thought and Religious Freedom The Philippine Press Institute (PPI), petitioner in G.R. No. 115544, is a nonprofit organization of newspaper publishers established for the improvement of journalism in the Philippines. On the other hand, petitioner in G.R. No. 115781, the Philippine Bible Society (PBS), is a nonprofit organization engaged in the printing and distribution of bibles and other religious articles. Both petitioners claim violations of their rights under § § 4 and 5 of the Bill of Rights as a result of the enactment of the VAT Law. The PPI question the law insofar as it has withdrawn the exemption previously granted to the press under § 103 (f) of the NIRC. Although the exemption was subsequently restored by administrative regulation with respect to the circulation income of newspapers, the PPI presses its claim because of the possibility that the exemption may still be removed by mere revocation of the regulation of the Secretary of Finance. On the other hand, the PBS goes so far as to question the Secretary’s power to grant exemption for two reasons: (1) The Secretary of Finance has no power to grant tax exemption because this is vested in Congress and requires for its exercise the vote of a majority of all its members 26 and (2) the Secretary’s duty is to execute the law. § 103 of the NIRC contains a list of transactions exempted from VAT. Among the transactions previously granted exemption were:chanrob1es virtual 1aw library (f) Printing, publication, importation or sale of books and any newspaper, magazine, review, or bulletin which appears at regular intervals with fixed prices for subscription and sale and which is devoted principally to the publication of advertisements. Republic Act No. 7716 amended § 103 by deleting par. (f) with the result that print media became subject to the VAT with respect to all aspects of their operations. Later, however, based on a memorandum of the Secretary of Justice, respondent Secretary of Finance issued Revenue Regulations No. 11-94, dated June 27, 1994, exempting the "circulation income of print media pursuant to § 4 Article III of the 1987 Philippine Constitution guaranteeing against abridgment of freedom of the press, among others." The exemption of "circulation income" has left income from advertisements still subject to the VAT. It is unnecessary to pass upon the contention that the exemption granted is beyond the authority of the Secretary of Finance to give, in view of PPI’s contention that even with the exemption of the circulation revenue of print media there is still an unconstitutional abridgment of press freedom because of the imposition of the VAT on the gross receipts of

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The publisher of a newspaper has no immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others. He must answer for libel. He may be punished for contempt of court. Like others, he must pay equitable and nondiscriminatory taxes on his business. .27 The PPI does not dispute this point, either. What it contends is that by withdrawing the exemption previously granted to print media transactions involving printing, publication, importation or sale of newspapers, Republic Act No. 7716 has singled out the press for discriminatory treatment and that within the class of mass media the law discriminates against print media by giving broadcast media favored treatment. We have carefully examined this argument, but we are unable to find a differential treatment of the press by the law, much less any censorial motivation for its enactment. If the press is now required to pay a value-added tax on its transactions, it is not because it is being singled out, much less targeted, for special treatment but only because of the removal of the exemption previously granted to it by law. The withdrawal of exemption is all that is involved in these cases. Other transactions, likewise previously granted exemption, have been delisted as part of the scheme to expand the base and the scope of the VAT system. The law would perhaps be open to the charge of discriminatory treatment if the only privilege withdrawn had been that granted to the press. But that is not the case.chanrobles.com : virtual law library The situation in the case at bar is indeed a far cry from those cited by the PPI in support of its claim that Republic Act No. 7716 subjects the press to discriminatory taxation. In the cases cited, the discriminatory purpose was clear either from the background of the law or from its operation. For example, in Grosjean v. American Press Co., 28 the law imposed a license tax equivalent to 2% of the gross receipts derived from advertisements only on newspapers which had a circulation of more than 20,000 copies per week. Because the tax was not based on the volume of advertisement alone but was measured by the extent of its circulation as well, the law applied only to the thirteen large newspapers in Louisiana, leaving untaxed four papers with circulation of only slightly less than 20,000 copies a week and 120 weekly newspapers which were in serious competition with the thirteen newspapers in question. It was well known that the thirteen newspapers had been critical of Senator Huey Long, and the Long-dominated legislature of Louisiana responded by taxing what Long described as the "lying newspapers" by imposing on them "a tax on lying." The effect of the tax was to curtail both their revenue and their circulation. As the U.S. Supreme Court noted, the tax was "a deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is entitled in virtue of the constitutional guaranties." 29 The case is a classic illustration of the warning that the power to tax is the power to destroy. In the other case 30 invoked by the PPI, the press was also found to have been singled out because everything was exempt from the "use tax" on ink and paper, except the press.

Minnesota imposed a tax on the sales of goods in that state. To protect the sales tax, it enacted a complementary tax on the privilege of "using, storing or consuming in that state tangible personal property" by eliminating the residents’ incentive to get goods from outside states where the sales tax might be lower. The Minnesota Star Tribune was exempted from both taxes from 1967 to 1971. In 1971, however, the state legislature amended the tax scheme by imposing the "use tax" on the cost of paper and ink used for publication. The law was held to have singled out the press because (1) there was no reason for imposing the "use tax" since the press was exempt from the sales tax and (2) the "use tax" was laid on an "intermediate transaction rather than the ultimate retail sale." Minnesota had a heavy burden of justifying the differential treatment and it failed to do so. In addition, the U.S. Supreme Court found the law to be discriminatory because the legislature, by again amending the law so as to exempt the first $100,000 of paper and ink used, further narrowed the coverage of the tax so that "only a handful of publishers pay any tax at all and even fewer pay any significant amount of tax." 31 The discriminatory purpose was thus very clear. More recently, in Arkansas Writers’ Project, Inc. v. Ragland, 32 it was held that a law which taxed general interest magazines but not newspapers and religious, professional, trade and sports journals was discriminatory because while the tax did not single out the press as a whole, it targeted a small group within the press. What is more, by differentiating on the basis of contents (i.e., between general interest and special interests such as religion or sports) the law became "entirely incompatible with the First Amendment’s guarantee of freedom of the press."cralaw virtua1aw library These cases come down to this: that unless justified, the differential treatment of the press creates risks of suppression of expression. In contrast, in the cases at bar, the statute applies to a wide range of goods and services. The argument that, by imposing the VAT only on print media whose gross sales exceeds P480,000 but not more than P750,000, the law discriminates 33 is without merit since it has not been shown that as a result the class subject to tax has been unreasonably narrowed. The fact is that this limitation does not apply to the press alone but to all sales. Nor is impermissible motive shown by the fact that print media and broadcast media are treated differently. The press is taxed on its transactions involving printing and publication, which are different from the transactions of broadcast media. There is thus a reasonable basis for the classification. The cases canvassed, it must be stressed, eschew any suggestion that "owners of newspapers are immune from any forms of ordinary taxation." The license tax in the Grosjean case was declared invalid because it was "one single in kind, with a long history of hostile misuse against the freedom of the press." 34 On the other hand, Minneapolis Star acknowledged that "The First Amendment does not prohibit all regulation of the press [and that] the States and the Federal Government can subject newspapers to generally applicable economic regulations without creating constitutional problems." 35 What has been said above also disposes of the allegations of the PBS that the removal of the exemption of printing, publication or importation of books and religious articles, as well as their printing and publication, likewise violates freedom of thought and of conscience. For as the U.S. Supreme Court unanimously held in Jimmy Swaggart Ministries v. Board of Equalization, 36 the Free Exercise of Religion Clause does not prohibit imposing a generally applicable sales and use tax on the sale of religious material by a religious organization. This brings us to the question whether the registration provision of the law, 37 although of general applicability, nonetheless is invalid when applied to the press because it lays a prior

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restraint on its essential freedom. The case of American Bible Society v. City of Manila 38 is cited by both the PBS and the PPI in support of their contention that the law imposes censorship. There, this Court held that an ordinance of the City of Manila, which imposed a license fee on those engaged in the business of general merchandise, could not be applied to the appellant’s sale of bibles and other religious literature. This Court relied on Murdock v. Pennsylvania 39 in which it was held that, as a license fee is fixed in amount and unrelated to the receipts of the taxpayer, the license fee, when applied to a religious sect, was actually being imposed as a condition for the exercise of the sect’s right under the Constitution. For that reason, it was held, the license fee "restrains in advance those constitutional liberties of press and religion and inevitably tends to suppress their exercise." 40 But, in this case, the fee in § 107, although a fixed amount (P1,000), is not imposed for the exercise of a privilege but only for the purpose of defraying part of the cost of registration. The registration requirement is a central feature of the VAT system. It is designed to provide a record of tax credits because any person who is subject to the payment of the VAT pays an input tax, even as he collects an output tax on sales made or services rendered. The registration fee is thus a mere administrative fee, one not imposed on the exercise of a privilege, much less a constitutional right.chanrobles virtual lawlibrary For the foregoing reasons, we find the attack on Republic Act No. 7716 on the ground that it offends the free speech, press and freedom of religion guarantees of the Constitution to be without merit. For the same reasons, we find the claim of the Philippine Educational Publishers Association (PEPA) in G.R. No. 115931 that the increase in the price of books and other educational materials as a result of the VAT would violate the constitutional mandate to the government to give priority to education, science and technology (Art. II, sec. 17) to be untenable. B. Claims of Regressivity, Denial of Due Process, Equal Protection, and Impairment of Contracts There is basis for passing upon claims that on its face the statute violates the guarantees of freedom of speech, press and religion. The possible "chilling effect" which it may have on the essential freedom of the mind and conscience and the need to assure that the channels of communication are open and operating importunately demand the exercise of this Court’s power of review. There is, however, no justification for passing upon the claims that the law also violates the rule that taxation must be progressive and that it denies petitioners’ right to due process and the equal protection of the laws. The reason for this different treatment has been cogently stated by an eminent authority on constitutional law thus:" [W]hen freedom of the mind is imperiled by law, it is freedom that commands a moments of respect; when property is imperiled it is the lawmakers’ judgment that commands respect. This dual standard may not precisely reverse the presumption of constitutionality in civil liberties cases, but obviously it does set up a hierarchy of values within the due process clause." 41 Indeed, the absence of threat of immediate harm makes the need for judicial intervention less evident and underscores the essential nature of petitioners’ attack on the law on the grounds of regressivity, denial of due process and equal protection and impairment of contracts as a mere academic discussion of the merits of the law. For the fact is that there have even been no notices of assessments issued to petitioners and no determinations at the administrative

levels of their claims so as to illuminate the actual operation of the law and enable us to reach sound judgment regarding so fundamental questions as those raised in these suits.chanrobles virtual lawlibrary Thus, the broad argument against the VAT is that it is regressive and that it violates the requirement that "The rule of taxation shall be uniform and equitable [and] Congress shall evolve a progressive system of taxation." 42 Petitioners in G.R. No. 115781 quote from a paper, entitled "VAT Policy Issues: Structure, Regressivity, Inflation and Exports" by Alan A. Tait of the International Monetary Fund, that "VAT payment by low-income households will be a higher proportion of their incomes (and expenditures) than payments by higher-income households. That is, the VAT will be regressive." Petitioners contend that as a result of the uniform 10% VAT, the tax on consumption goods of those who are in the higher-income bracket, which before were taxed at a rate higher than 10%, has been reduced, while basic commodities, which before were taxed at rates ranging from 3% to 5%, are now taxed at a higher rate. Just as vigorously as it is asserted that the law is regressive, the opposite claim is pressed by respondents that in fact it distributes the tax burden to as many goods and services as possible particularly to those which are within the reach of higher-income groups, even as the law exempts basic goods and services. It is thus equitable. The goods and properties subject to the VAT are those used or consumed by higher-income groups. These include real properties held primarily for sale to customers or held for lease in the ordinary course of business, the right or privilege to use industrial, commercial or scientific equipment, hotels, restaurants and similar places, tourist buses, and the like. On the other hand, small business establishments, with annual gross sales of less than P500,000, are exempted. This, according to respondents, removes from the coverage of the law some 30,000 business establishments. On the other hand, an occasional paper 43 of the Center for Research and Communication cites a NEDA study that the VAT has minimal impact on inflation and income distribution and that while additional expenditure for the lowest income class is only P301 or 1.49% a year, that for a family earning P500,000 a year or more is P8,340 or 2.2%. Lacking empirical data on which to base any conclusion regarding these arguments, any discussion whether the VAT is regressive in the sense that it will hit the "poor" and middleincome group in society harder than it will the "rich," as the Cooperative Union of the Philippines (CUP) claims in G.R. No. 115873, is largely an academic exercise. On the other hand, the CUP’s contention that Congress’ withdrawal of exemption of producers cooperatives, marketing cooperatives, and service cooperatives, while maintaining that granted to electric cooperatives, not only goes against the constitutional policy to promote cooperatives as instruments of social justice (Art. XII, § 15) but also denies such cooperatives the equal protection of the law is actually a policy argument. The legislature is not required to adhere to a policy of "all or none" in choosing the subject of taxation. 44 Nor is the contention of the Chamber of Real Estate and Builders Association (CREBA), petitioner in G.R. 115754, that the VAT will reduce the mark up of its members by as much as 85% to 90% any more concrete. It is a mere allegation. On the other hand, the claim of the Philippine Press Institute, petitioner in G.R. No. 115544, that the VAT will drive some of its members out of circulation because their profits from advertisements will not be enough to pay for their tax liability, while purporting to be based on the financial statements of the newspapers in question, still falls short of the establishment of facts by evidence so necessary for adjudicating the question whether the tax is oppressive and confiscatory. Indeed, regressivity is not a negative standard for courts to enforce. What Congress is

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required by the Constitution to do is to "evolve a progressive system of taxation." This is a directive to Congress, just like the directive to it to give priority to the enactment of laws for the enhancement of human dignity and the reduction of social, economic and political inequalities (Art. XIII, § 1), or for the promotion of the right to "quality education" (Art. XIV, § 1). These provisions are put in the Constitution as moral incentives to legislation, not as judicially enforceable rights. At all events, our 1988 decision in Kapatiran 45 should have laid to rest the question now raised against the VAT. There similar arguments made against the original VAT Law (Executive Order No. 273) were held to be hypothetical, with no more basis than newspaper articles which this Court found to be "hearsay and [without] evidentiary value." As Republic Act No. 7716 merely expands the base of the VAT system and its coverage as provided in the original VAT Law, further debate on the desirability and wisdom of the law should have shifted to Congress. Only slightly less abstract but nonetheless hypothetical is the contention of CREBA that the imposition of the VAT on the sales and leases of real estate by virtue of contracts entered into prior to the effectivity of the law would violate the constitutional provision that "No law impairing the obligation of contracts shall be passed." It is enough to say that the parties to a contract cannot, through the exercise of prophetic discernment, fetter the exercise of the taxing power of the State. For not only are existing laws read into contracts in order to fix obligations as between parties, but the reservation of essential attributes of sovereign power is also read into contracts as a basic postulate of the legal order. The policy of protecting contracts against impairment presupposes the maintenance of a government which retains adequate authority to secure the peace and good order of society. 46 In truth, the Contract Clause has never been thought as a limitation on the exercise of the State’s power of taxation save only where a tax exemption has been granted for a valid consideration. 47 Such is not the case of PAL in G.R. No. 115852, and we do not understand it to make this claim. Rather, its position, as discussed above, is that the removal of its tax exemption cannot be made by a general, but only by a specific, law.chanroblesvirtual|awlibrary The substantive issues raised in some of the cases are presented in abstract, hypothetical form because of the lack of a concrete record. We accept that this Court does not only adjudicate private cases; that public actions by "non-Hohfeldian" 48 or ideological plaintiffs are now cognizable provided they meet the standing requirement of the Constitution; that under Art. VIII, § 1, par. 2 the Court has a "special function" of vindicating constitutional rights. Nonetheless the feeling cannot be escaped that we do not have before us in these cases a fully developed factual record that alone can impart to our adjudication the impact of actuality 49 to insure that decision-making is informed and well grounded. Needless to say, we do not have power to render advisory opinions or even jurisdiction over petitions for declaratory judgment. In effect we are being asked to do what the Conference Committee is precisely accused of having done in these cases — to sit as a third legislative chamber to review legislation. We are told, however, that the power of judicial review is not so much power as it is duty imposed on this Court by the Constitution and that we would be remiss in the performance of that duty if we decline to look behind the barriers set by the principle of separation of powers. Art. VIII, § 1, par. 2 is cited in support of this view:chanrob1es virtual 1aw library Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not

there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.chanroblesvirtualawlibrary

writ of prohibition. WHEREFORE, the petitions in these cases are DISMISSED.

To view the judicial power of review as a duty is nothing new. Chief Justice Marshall said so in 1803, to justify the assertion of this power in Marbury v. Madison:chanrob1es virtual 1aw library It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. 50 Justice Laurel echoed this justification in 1936 in Angara v. Electoral Commission:chanrob1es virtual 1aw library And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. 51 This conception of the judicial power has been affirmed in several cases 52 of this Court following Angara. It does not add anything, therefore, to invoke this "duty" to justify this Court’s intervention in what is essentially a case that at best is not ripe for adjudication. That duty must still be performed in the context of a concrete case or controversy, as Art. VIII, § 5(2) clearly defines our justification in terms of "cases," and nothing but "cases." That the other departments of the government may have committed a grave abuse of discretion is not an independent ground for exercising our power. Disregard of the essential limits imposed by the case and controversy requirement can in the long run only result in undermining our authority as a court of law. For, as judges, what we are called upon to render is judgment according to what may appear to be the opinion of the day. In the preceding pages we have endeavored to discuss, within limits, the validity of Republic Act No. 7716 in its formal and substantive aspects as this has been raised in the various cases before us. To sum up, we hold:chanrob1es virtual 1aw library (1) That the procedural requirements of the Constitution have been complied with by Congress in the enactment of the statute; (2) That judicial inquiry whether the formal requirements for the enactment of statutes — beyond those prescribed by the Constitution — have been observed is precluded by the principle of separation of powers; (3) That the law does not abridge freedom of speech, expression or the press, nor interfere with the free exercise of religion, nor deny to any of the parties the right to an education; and (4) That, in view of the absence of a factual foundation of record, claims that the law is regressive, oppressive and confiscatory and that it violates vested rights protected under the Contract Clause are prematurely raised and do not justify the grant of prospective relief by

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Bidin, Quiason and Kapunan, JJ., concur. Separate Opinions

NARVASA, C.J., concurring:chanrob1es virtual 1aw library I fully concur with the conclusions set forth in the scholarly opinion of my learned colleague, Mr. Justice Vicente V. Mendoza. I write this separate opinion to express my own views relative to the procedural issues raised by the various petitions and dealt with by some other Members of the Court in their separate opinions. By their very nature, it would seem, discussions of constitutional issues prove fertile ground for a not uncommon phenomenon: debate marked by passionate partisanship amounting sometimes to impatience with adverse views, an eagerness on the part of the proponents on each side to assume the role of, or be perceived as, staunch defenders of constitutional principles, manifesting itself in flights of rhetoric, even hyperbole. The peril in this, obviously, is a diminution of objectivity — that quality which, on the part of those charged with the duty and authority of interpreting the fundamental law, is of the essence of their great function. For the Court, more perhaps than for any other person or group, it is necessary to maintain that desirable objectivity. It must make certain that on this as on any other occasion, the judicial function is meticulously performed, the facts ascertained as comprehensively and as accurately as possible, all the issues particularly identified, all the arguments clearly understood; else, it may itself be accused, by its own members or by others, of a lack of adherence to, or a careless observance of, its own procedures, the signatures of its individual members on its enrolled verdicts notwithstanding.chanrobles lawlibrary : rednad In the matter now before the Court, and whatever reservations some people may entertain about their intellectual limitations or moral scruples, I cannot bring myself to accept the thesis which necessarily implies that the members of our august Congress, in enacting the expanded VAT law, exposed their ignorance, or indifference to the observance, of the rules of procedure set down by the Constitution or by their respective chambers, or what is worse, deliberately ignored those rules for some yet undiscovered purpose nefarious in nature, or at least some purpose other than the public weal; or that a few of their fellows, acting as a bicameral conference committee, by devious schemes and cunning maneuvers, and in conspiracy with officials of the Executive Department and others, succeeded in "pulling the wool over the eyes" of all their other colleagues and foisting on them a bill containing provisions that neither chamber of our bicameral legislature conceived or contemplated. This is the thesis that the petitioners would have this Court approve. It is a thesis I consider bereft of any factual or logical foundation. Other than the bare declarations of some of the petitioners, or arguments from the use and import of the language employed in the relevant documents and records, there is no evidence before the Court adequate to support a finding that the legislators concerned, whether of the upper or lower chamber, acted otherwise than in good faith, in the honest discharge of their functions, in the sincere belief that the established procedures were being regularly observed or, at least, that there occurred no serious or fatal deviation therefrom. There is no evidence

on which reasonably to rest a conclusion that any executive or other official took part in or unduly influenced the proceedings before the bicameral conference committee, or that the members of the latter were motivated by a desire to surreptitiously introduce improper revisions in the bills which they were required to reconcile, or that after agreement had been reached on the mode and manner of reconciliation of the "disagreeing provisions," had resorted to stratagems or employed under-handed ploys to ensure their approval and adoption by either House. Neither is there any proof that in voting on the Bicameral Conference Committee (BCC) version of the reconciled bills, the members of the Senate and the House did so in ignorance of, or without understanding, the contents thereof or the bills therein reconciled. Also unacceptable is the theory that since the Constitution requires appropriation and revenue bills to originate exclusively in the House of Representatives, it is improper if not unconstitutional for the Senate to formulate, or even think about formulating, its own draft of this type of measure in anticipation of receipt of one transmitted by the lower Chamber. This is specially cogent as regards much-publicized suggestions for legislation (like the expanded VAT Law) emanating from one or more legislators, or from the Executive Department, or the private sector, etc. which understandably could be expected to forthwith generate much Congressional cogitation. Exclusive origination, I submit, should have no reference to time of conception. As a practical matter, origination should refer to the affirmative act which effectively puts the bicameral legislative procedure in motion, i.e., the transmission by one chamber to the other of a bill for its adoption. This is the purposeful act which sets the legislative machinery in operation to effectively lead to the enactment of a statute. until this transmission takes place, the formulation and discussions, or the reading for three or more times of proposed measures in either chamber, would be meaningless in the context of the activity leading towards concrete legislation. Unless transmitted to the other chamber, a bill prepared by either house cannot possibly become law. In other words, the first affirmative, efficacious step, the operative act as it were, leading to actual enactment of a statute, is the transmission of a bill from one house to the other for action by the latter. This is the origination that is spoken of in the Constitution in its Article VI, Section 24, in reference to appropriation, revenue, or tariff bills, etc. It may be that in the Senate, revenue or tax measures are discussed, even drafted, and this before a similar activity takes place in the House. This is of no moment, so long as those measures or bills remain in the Senate and are not sent over to the House. There is no origination of revenue or tax measures by the Senate in this case. However, once the House completes the drawing up of a similar tax measure in accordance with the prescribed procedure, even if this is done subsequent to the Senate’s own measure — indeed, even if this be inspired by information that a measure of the same nature or on the same subject has been formulated in the Senate — and after third reading transmits its bill to the Senate, there is origination by (or in) the House within the contemplation of the Constitution. So it is entirely possible, as intimated, that in expectation of the receipt of a revenue or tax bill from the House of Representatives, the Senate commences deliberations on its own concept of such a legislative measure. this, possibly to save time, so that when the House bill reaches it, its thoughts and views on the matter are already formed and even reduced to writing in the form of a draft statute. This should not be thought illegal, as interdicted by the Constitution. what the Constitution prohibits is for the Senate to begin the legislative process first, by sending its own revenue bill to the House of Representatives for its consideration and action. This is the initiation that is prohibited to the Senate.

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But petitioners claim that this last was what in fact happened, that the bill that went through the legislative mill and was finally approved as R.A. No. 7716, was the Senate version, SB 1630. This is disputed by the respondents. They claim it was House Bill 11197 that, after being transmitted to the Senate, was referred after first reading to its Committee on Ways and Means; was reported out by said Committee; underwent second and third readings, was sent to the bicameral conference committee and then, after appropriate proceedings therein culminating in extensive amendments thereof, was finally approved by both Houses and became the Expanded VAT Law. On whose die does the truth lie? If it is not possible to make that determination from the pleadings and records before this Court, shall it require evidence to be presented? No, on both law and principle. The Court will reject a case where the legal issues raised, whatever they may be, depend for their resolution on still unsettled questions of fact. Petitioners may not, by raising what are concededly novel and weighty constitutional questions, compel the Court to assume the role of a trier of facts. It is on the contrary their obligation, before raising those questions to this Court, to see to it that all issues of fact are settled in accordance with the procedures laid down by law for proof of facts. Failing this, petitioners would have only themselves to blame for a peremptory dismissal. Now, what is really proven about what happened to HB 11197 after it was transmitted to the Senate? It seems to be admitted on all sides that after going through first reading, HB 1197 was referred to the Committee on Ways and Means chaired by Senator Ernesto Herrera. It is however surmised that after this initial step, HB 1197 was never afterwards deliberated on in the Senate, that it was there given nothing more than a "passing glance," and that it never went through a proper second and third reading. There is no competent proof to substantiate this claim. What is certain that on February 7, 1994, the Senate Committee on Ways and Means submitted its Report (No. 349) stating that HB 11197 was considered, and recommending that SB 1630 be approved "in substitution of S.B. No. 1129, taking into consideration P.S. Res. No. 734 1 and H.B. No. 11197." This Report made known to the Senate, and clearly indicates, that H.B. No. 11197 was indeed deliberated on by the Committee; in truth, as Senator Herrera pointed out, the BCC later "agreed to adopt (a broader coverage of the VAT) which is closely adhering to the Senate version . . . with some new provisions or amendments." The plain implication is that the Senate Committee had indeed discussed HB 11197 in comparison with the inconsistent parts of SB 1129 and afterwards proposed amendments to the former in the form of a new bill (No. 1630) more closely akin to the Senate bill (No. 1129). And it is a reasonable to suppose as not that later, during the second and third readings on March 24, 1994, the Senators, assembled as a body, had before them copies of HB 11197 and SB 1129, as well as of the Committee’s new "SB 1630" that had been recommended for their approval, or at the very least were otherwise perfectly aware that they were considering the particular provisions of these bills. That there was such a deliberation in the Senate on HB 11197 in light of inconsistent portions of SB 1630, may further be necessarily inferred from the request, made by the Senate on the same day, March 24, 1994, for the convocation of a bicameral conference committee to reconcile "the disagreeing provisions of said bill (SB 1630) and House Bill No. 11197," a request that could not have been made had not the Senators more or less closely examined the provisions of HB 11197 and compared them with those of the counterpart Senate measures.

Were the proceedings before the bicameral conference committee fatally flawed? The affirmative is suggested because the committee allegedly overlooked or ignored the fact that SB 1630 could not validly originate in the Senate, and that HB 11197 and SB 1630 never properly passed both chambers. The untenability of these contentions has already been demonstrated. Now, demonstration of the indefensibility of other arguments purporting to establish the impropriety of the BCC proceedings will be attempted. There is the argument, for instance, that the conference committee never used HB 11197 even as "frame of reference" because it does not appear that the suggestion therefor (made by House Panel Chairman Exequiel Javier at the bicameral conference committee’s meeting on April 19, 1994, with the concurrence of Senator Maceda) was ever resolved, the minutes being regrettably vague as to what occurred after that suggestion was made. It is, however, as reasonable to assume that it was, as it was not, given the vagueness of the minutes already alluded to. In fact, a reading of the BCC Report persuasively demonstrates that HB 11197 was not only utilized as a "frame of reference" but actually discussed and deliberated on.chanrobles.com.ph : virtual law library Said BCC Report pertinently states: 2 "CONFERENCE COMMITTEE REPORT The Conference Committee on the disagreeing provisions of House Bill No. 11197, entitled:chanrob1es virtual 1aw library AN ACT RESTRUCTURING THE VALUE ADDED TAX (VAT) SYSTEM TO WIDEN ITS TAX BASE AND ENHANCE ITS ADMINISTRATION, AMENDING FOR THESE PURPOSES SECTIONS 99, 100, 102, 1013, 104, 105, 106, 107, 108 AND 110 OF TITLE IV, 112, 115 AND 116 OF TITLE V, AND 236, 237, AND 238 OF TITLE IX, AND REPEALING SECTIONS 113 SD AND 114 OF TITLE V, ALL OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED. and Senate Bill No. 1630 entitled:chanrob1es virtual 1aw library AN ACT RESTRUCTURING THE VALUE ADDED TAX (VAT) SYSTEM TO WIDEN ITS TAX BASE AND ENHANCE ITS ADMINISTRATION, AMENDING FOR THESE PURPOSES SECTIONS 99, 100, 102, 103, 104, 106, 107, 108 AND 110 OF TITLE IV, 112, 115, 117 AND 121 OF TITLE V, AND 236, 237, AND 238 OF TITLE IX, AND REPEALING SECTIONS 1113, 114, 116, 119 AND 120 OF TITLE V, ALL OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED AND FOR OTHER PURPOSES. having met, after full and free conference, has agreed to recommend and do hereby recommend to their respective Houses that House Bill No. 11197, in consolidation with Senate Bill No. 1630, be approved in accordance with the attached copy of the bill as reconciled and approved by the conferees. Approved."cralaw virtua1aw library The Report, it will be noted, explicitly adverts to House Bill No. 11197, it being in fact mentioned ahead of Senate Bill No. 1630; graphically shows the very close identity of the subjects of both bills (indicated in their respective titles); and clearly says that the committee met in" full and free conference" on the "disagreeing provisions" of both bills (obviously in an effort to reconcile them); and that reconciliation of said "disagreeing provisions" had been

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effected, the BCC having agreed that "House Bill No. 11197, in consolidation with Senate Bill No. 1630, be approved in accordance with the attached copy of the bill as reconciled and approved by the conferees."cralaw virtua1aw library It may be concluded, in other words, that, conformably to the procedure provided in the Constitution with which all the Members of the bicameral conference committee cannot but be presumed to be familiar, and no proof to the contrary having been adduced on the point, it was the original bill (HB 11197) which said body had considered and deliberated on in detail, reconciled or harmonized with SB 1630, and used as basis for drawing up the amended version eventually reported out and submitted to both houses of Congress. It is further contended that the BCC was created and convoked prematurely, that SB 1630 should first have been sent to the House of Representatives for concurrence It is maintained, in other words, that the latter chamber should have refused the Senate request for a bicameral conference committee to reconcile the "disagreeing provisions" of both bills, and should have required that SB 1630 be first transmitted to it. This, seemingly, is nit-picking given the urgency of the proposed legislation as certified by the President (to both houses, in fact). Time was of the essence, according to the President’s best judgment — as regards which absolutely no one in either hamber of Congress took exception, general acceptance being on the contrary otherwise manifested — and that judgment the Court will not now question. In light of that urgency, what was so vital or indispensable about such a transmittal that its absence would invalidate all else that had been done towards enactment of the law, completely escapes me, specially considering that the House had immediately acceded without demur to the request for convocation of the conference committee. What has just been said should dispose of the argument that the statement in the enrolled bill, that "This Act which is a consolidation of House Bill No. 11197 and Senate Bill No. 11630 was finally passed by the House of Representatives and the Senate on April 27, 1994 and May 2, 1994," necessarily signifies that there were two (20 bills separately introduced, retaining their independent existence until they reached the bicameral conference committee where they were consolidated, and therefore, the VAT law did not originate exclusively in the House having originated in part in the Senate as SB 1630, which bill was not embodied in but merely merged with HB 11197, retaining its separate identity until it was joined by the BCC with the house measure. The more logical, and fairer, course is to construe the expression, "consolidation of House Bill No. 11197 and Senate Bill No. 11630" in the context of accompanying and contemporaneous statements, i.e.: (a) the declaration in the BCC Report, supra, that the committee met to reconcile the disagreeing provisions of the two bills, "and after full and free conference" on the matter, agreed and so recommended that "house Bill No. 11197, in consolidation with Senate Bill No. 1630, be approved in accordance with the attached copy of the bill as reconciled and approved by the conferees;" and (b) the avernment of Senator Herrera, in the Report of the Ways and Means Committee, supra, that the committee had actually "considered" (discussed) HB No. 11197 and taken it "into consideration" in recommending that its own version of the measure (SB 1630) be the one approved. That the Senate might have drawn up its own version of the expanded VAT bill, contemporaneously with or even before the House did, is of no moment. It bears repeating in this connection that no VAT bill ever originated in the Senate; neither its SB 1129 or SB 1630 or any of its drafts was ever officially transmitted to the House as an initiating bill which, as already pointed out, is what the Constitution forbids; it was HB 11197 that was first sent to the Senate, underwent first reading, was referred to Committee on Ways and means and there discussed in relation to and in comparison with the counterpart Senate version or versions —

the mere formulation of which was, as also already discussed, not prohibited to it — and afterwards considered by the Senate itself, also in connection with SB 1630, on second and third readings. HB 1197 was in the truest sense, the originating bill. An issue has also arisen respecting the so-called "enrolled bill doctrine" which, it is said, whatever sacrosanct status it might originally have enjoyed, is now in bad odor with modern scholars on account of its imputed rigidity and unrealism; it being also submitted that the ruling in Mabanag v. Lopez Vito (78 Phil. 1) and the cases reaffirming it, is no longer good law, it being based on a provision of the Code of Civil Procedure 3 long since stricken from the statute books. I would myself consider the "enrolled bill" theory as laying down a presumption of so strong character as to be well nigh absolute or conclusive, fully in accord with the familiar and fundamental philosophy of separation of powers. The result, as far as I am concerned, is to make discussion of the enrolled bill principle purely academic; for as already pointed out, there is no proof worthy of the name of any facts to justify its reexamination and, possibly, disregard. The other question is, what the nature of the power given to a bicameral conference committee of reconciling differences between, or "disagreeing provisions" in, a bill originating from the House in relation to amendments proposed by the Senate — whether as regards some or all of its provisions? Is the mode of reconciliation, subject to fixed procedure and guidelines? What exactly can the committee do, or not do? Can it only clarify or revise provisions found in either Senate or House bill? Is it forbidden to propose additional new provisions, even on matters necessarily or reasonably connected with or germane to items in the bills being reconciled? In answer, it is postulated that the reconciliation function is quite limited. in these cases, the conference committee should have confined itself to reconciliation of differences or inconsistencies only by (a) restoring provisions of HB 11197 aliminated by SB 1630, or (b) sustaining wholly or partly the Senate amendments, or (c) as a compromise, agreeing that neither provisions nor amendments be carried into the final form of HB 11197 for submission to both chambers of the legislature. The trouble is, it is theorized, the committee incorporated activities or transactions which were not within the contemplation of both bills; it made additions and deletions which did not enjoy the enlightenment of initial committee studies; it exercised what is known as an "ex post veto power" granted to it by no law, rule or regulation, a power that in truth is denied to it by the rules of both the Senate and the House. In substantiation, the Senate rule is cited, similar to that of the House, providing that "differences shall be settled by a conference committee" whose report shall contain "detailed and sufficiently explicit statement of the changes in or amendments to the subject measure, . . . (to be) signed by the conferees;" as well as the "Jefferson’s Manual," adopted by the Senate as supplement to its own rules, directing that the managers of the conference must confine themselves to differences submitted to them; they may not include subjects not within the disagreements even though germane to a question in issue."cralaw virtua1aw library It is significant that the limiting proviso in the relevant rules has been construed and applied as directory, not mandatory. During the oral argument, counsel for petitioners admitted that the practice for decades has been for bicameral conference committees to include such provisions in the reconciled bill as they believed to be germane or necessary and acceptable to both chambers, even if not within any of the "disagreeing provision," and the reconciled bills,

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containing such provisions had invariably been approved and adopted by both houses of Congress. It is a practice, they say, that should be stopped. But it is a practice that establishes in no uncertain manner the prevailing concept in both houses of Congress of the permissible and acceptable modes of reconciliation that their conference committees may adopt, one whose undesirability is not all that patent if not, indeed, incapable of unquestionable demonstration. The fact is that conference committees only take up bills which have already been freely and fully discussed in both chambers of the legislature, but as to which there is need of reconciliation in view of "disagreeing provisions" between them; and both chambers entrust the function of reconciling the bills to their delegates at a conference committee with full awareness, and tacit consent, that conformably with established practice unquestioningly observed over many years, new provisions may be included even if not within the "disagreeing provisions" but of which, together with other changes, they will be given detailed and sufficiently explicit information prior to voting on the conference committee version. In any event, a fairly recent decision written for the Court by Senior Associate Justice Isagani A. Cruz, promulgated on November 11, 1993, (G.R. No. 105371, The Philippine Judges Association, etc., Et. Al. v. Hon. Pete Prado, etc., Et. Al.), should leave no doubt of the continuing vitality of the enrolled bill doctrine and give an insight into the nature of the reconciling function of bicameral conference committees. In that case, a bilateral conference committee was constituted and met to reconcile Senate Bill No. 720 and House Bill No. 4200. It adopted a "reconciled" measure that was submitted to and approved by both chambers of Congress and ultimately signed into law by the President, as R.A. No. 7354. A provision in this statute (removing the franking privilege from the courts, among others) was assailed as being an invalid amendment because it was not included in the original version of either the senate or the house bill and hence had generated no disagreement between them which had to be reconciled. The Court held:jgc:chanrobles.com.ph "While it is true that a conference committee is the mechanism for compromising differences between the Senate and the House, it is not limited in its jurisdiction to this question. Its broader function is described thus:chanrob1es virtual 1aw library A conference committee may deal generally with the subject matter or it may be limited to resolving the precise differences between the two houses. Even where the conference committee is not by rule limited in its jurisdiction, legislative custom severely limits the freedom with which new subject matter can be inserted into the conference bill. But occasionally a conference committee produces unexpected results, results beyond its mandate. These excursions occur even where the rules impose strict limitations on conference committee jurisdiction. This is symptomatic of the authoritarian power of conference committee (Davies, Legislative Law and Process: In A Nutshell, 1987 Ed., p. 81). It is a matter of record that the Conference Committee Report on the bill in question was returned to and duly approved by both the Senate and the House of Representatives. Thereafter, the bill was enrolled with its certification by Senate President Neptali A. Gonzales and Speaker Ramon V. Mitra of the House of Representatives as having been duly passed by both Houses of Congress. It was then presented to and approved by President Corazon C. Aquino on April 3, 1992. Under the doctrine of separation of powers, the Court may not inquire beyond the certification of the approval of a bill from the presiding officers of Congress. Casco Philippine Chemical Co. v. Gimenez (7 SCRA 347) laid down the rule that the enrolled bill is conclusive upon the Judiciary (except in matters that have to be entered in the journals like the yeas and nays on

the final reading of the bill) (Mabanag v. Lopez Vito, 78 Phil. 1). The journals are themselves also binding on the Supreme Court, as we held in the old (but still valid) case of U.S. v. Pons (34 Phil. 729), where we explained the reason thus:chanrob1es virtual 1aw library To inquire into the veracity of the journals of the Philippine legislature when they are, as we have said, clear and explicit, would be to violate both the letter and spirit of the organic laws by which the Philippine Government was brought into existence, to invade a coordinate and independent department of the Government, and to interfere with the legitimate powers and functions of the Legislature. 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 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." chanrobles law library : red Withal, an analysis of the changes made by the conference committee in HB 11197 and SB 1630 by way of reconciling their "disagreeing provision," — assailed by petitioners as unauthorized or incongruous — reveals that many of the changes related to actual "disagreeing provisions," and that those that might perhaps be considered as entirely new are nevertheless necessarily or logically connected with or germane to particular matters in the bills being reconciled. For instance, the change made by the bicameral conference committee (BCC) concerning amendments to Section 99 of the National Internal Revenue Code (NIRC) — the addition of "lessors of goods or properties and importers of goods" — is really reconciliation of disagreeing provisions, for while HB 11197 mentions as among those subject to tax, "one who sells, barters, or exchanges goods or properties and any person who leases personal properties," SB 1630 does not. The change also merely clarifies the provision by providing that the contemplated taxpayers includes "importers." The revision as regards the amendment to Section 100, NIRC, is also simple reconciliation, being nothing more than the adoption by the BCC of the provision in HB 11197 governing the sale of gold to Bangko Sentral, in contrast to SB 1630 containing no such provision. Similarly, only simple reconciliation was involved as regards approval by the BCC of a provision declaring as not exempt, the sale of real properties primarily held for sale to customers or held for lease in the ordinary course of trade or business, which provision is found in HB 11197 but not in SB 1630; as regards the adoption by the BCC of a provision on life insurance business, contained in SB 1630 but not found in HB 11197; as regards adoption by the BCC of the provision in SB 1630 for determent of tax on certain goods and services for no longer than 3 years, as to which there was no counterpart provision in SB 11197; and as regards the fixing of a period for the adoption of implementing rules, a period being prescribed in SB 1630 and none in HB 11197. In respect of other revisions, it would seem that questions logically arose in the course of the discussion of specific "disagreeing provisions" to which answers were given which, because believed acceptable to both houses of Congress, were placed in the BCC draft. For example, during consideration of radio and television time (Sec. 100, NIRC) dealt with in both House and Senate bills, the question apparently came up, the relevance of which is apparent on its face, relative to satellite transmission and cable television time. Hence, a provision in the BCC bill on the matter. again, while deliberating on the definition of goods or properties in relation to the provision subjecting sales thereof to tax, a question apparently arose, logically relevant, about real properties intended to be sold by a person in economic difficulties, or because he wishes to buy a car, i.e., not as part of a business, the BCC evidently resolved to clarify the matter

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excluding from the tax, "real properties held primarily for sale to customers or held for lease in the ordinary course of business." And in the course of consideration of the term, sale or exchange of services (Sec 102, NIRC), the inquiry most probably was posed as to whether the term should be understood as including other services: e.g., services of lessors of property whether real or personal, of warehousemen, of keepers of resthouses, pension houses, inns, resorts, or of common carriers, etc., and presumably the BCC resolved to clarify the matter by including the services just mentioned. Surely, changes of this nature are obviously to be expected in proceedings before bicameral conference committees and may even be considered grist for their mill, given the history of such BCCs and their general practice here and abroad. In any case, all the changes and revisions, and deletions, made by the conference committee were all subsequently considered by and approved by both the Senate and the House, meeting and voting separately. It is an unacceptable theorization, to repeat, that when the BCC report and its proposed bill were submitted to the Senate and the House, the members thereof did not bother to read, or what is worse, having read did not understand, what was before them, or did not realize that there were new provisions in the reconciled version unrelated to any "disagreeing provisions," or that said new provisions or revisions were effectively concealed from them. Moreover, it certainly was entirely within the power and prerogative of either legislative chamber to reject the BCC bill and require the organization of a new bicameral conference committee. That this option was not exercised by either house only proves that the BCC measure was found to be acceptable as in fact it was approved and adopted by both chambers. I vote to DISMISS the petitions for lack of merit. Feliciano and Melo, JJ., concur. CRUZ, J., dissenting:chanrob1es virtual 1aw library It is curious and almost incredible fact that at the hearing of these cases on July 7, 1994, the lawyers who argued for the petitioners — two of them former presidents of the Senate and the third also a member of that body — all asked this Court to look into the internal operations of their Chamber and correct the irregularities they claimed had been committed there as well as in the House of Representatives and in the bicameral conference committee. While a member of the legislature would normally resist such intervention and invoke the doctrine of separation of powers to protect Congress from what he would call judicial intrusion, these counsel practically implored the Court to examine the questioned proceedings and to this end go beyond the journals of each House, scrutinize the minutes of the committee, and investigate all other matters relating to the passage of the bill (or bills) that eventually became R.A. No. 7716. In effect, the petitioners would have us disregard the time-honored inhibitions laid down by the court upon itself in the landmark case of U.S. v. Pons (34 Phil. 725), where it refused to consider extraneous evidence to disprove the recitals in the journals of the Philippine Legislature that it had adjourned sine die at midnight of February 28, 1914. Although it was generally known then that the special session had actually exceeded the deadline fixed by the Governor-General in his proclamation, the Court chose to be guided solely by the legislative journals, holding significantly as follows:chanrob1es virtual 1aw library

. . . From their very nature and object, the records of the legislature are as important as those of the judiciary, and to inquire into the veracity of the journals of the Philippine Legislature, when they are, as we have said, clear and explicit, would be to violate both the letter and the spirit of the organic laws by which the Philippine Government was brought into existence, to invade a coordinate and independent department of the Government, and to interfere with the legitimate powers and functions of the Legislature. But counsel in his argument says that the public knows that the Assembly’s clock was stopped on February 28, 1914, at midnight and left so until the determination of the discussion of all pending matters. Or, in other words, the hands of the clock were stayed in order to enable the Assembly to effect and adjournment apparently within the fixed time by the Governor’s proclamation for the expiration of the special session, in direct violation of the Act of Congress of July 1, 1902. If the clock was, in fact, stopped, as here suggested, "the resultant evil might be slight as compared with that of altering the probative force and character of legislative records, and making the proof of legislative action depend upon uncertain oral evidence, liable to loss by death or absence, and so imperfect on account of the treachery of memory."cralaw virtua1aw library . . . The journals say that the Legislature adjourned at 12 midnight on February 28, 1914. This settles the question, and the court did not err in declining to go beyond the journals. As one who has always respected the rationale of the separation of powers, I realize only too well the serious implications of the relaxation of the doctrine except only for the weightiest of reasons. The lowering of the barriers now dividing the three major branches of the government could lead to invidious incursions by one department into the exclusive domains of the other departments to the detriment of the proper discharge of the functions assigned to each of them by the Constitution.cralawnad Still, while acknowledging the value of tradition and the reasons for judicial non-interference announced in Pons, I am not disinclined to take a second look at the ruling from a more pragmatic viewpoint and to tear down, if we must, the iron curtain it has hung, perhaps improvidently, around the proceedings of the legislature. I am persuaded even now that where a specific procedure is fixed by the Constitution itself, it should not suffice for Congress to simply say that the rules have been observed and flatly consider the matter closed. It does not have to be as final as that. I would imagine that the judiciary, and particularly this Court, should be able to verify that statement and determine for itself, through the exercise of its own powers, if the Constitution has, indeed, been obeyed. In fact, the Court has already said that the question of whether certain procedural rules have been followed is justiciable rather than political because what is involved is the legality and not the wisdom of the act in question. so we ruled in Sanidad v. Commission on Elections (73 SCRA 333) on the amendment of the Constitution; in Daza v. Singson (180 SCRA 496) on the composition of the Commission on Appointments; and in the earlier case of Tañada v. Cuenco (100 SCRA 1101) on the organization of the Senate Electoral Tribunal, among several other cases. By the same token, the ascertainment of whether a bill underwent the obligatory three readings in both Houses of Congress should not be considered an invasion of the territory of the legislature as this would not involve an inquiry into its discretion in approving the measure but only the manner in which the measure was enacted.

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These views may upset the conservatives among us who are most comfortable when they allow themselves to be petrified by precedents instead of venturing into uncharted waters. To be sure, there is much to be said of the wisdom of the past expressed by vanished judges talking to the future. Via trita est tuttisima. Except when there is a need to revise them because of an altered situation or an emergent idea, precedents should tell us that, indeed, the trodden path is the safest path. It could be that the altered situation has arrived to welcome the emergent idea. The jurisdiction of this Court has been expanded by the Constitution, to possibly include the review the petitioners would have us make of the congressional proceedings being questioned. Perhaps it is also time to declare that the activities of Congress can no longer be smoke-screened in the inviolate recitals of its journals to prevent examination of its sacrosanct records in the name of the separation of powers. But then again, perhaps all this is not yet necessary at this time and all these observations are but wishful musings for more activist judiciary. For I find that this is not even necessary, at least for me, to leave the trodden path in the search for new adventures in the byways of the law. The answer we seek, as I see it, is not far afield It seems to me that it can be found through a study of the enrolled bill alone and that we do not have to go beyond that measure to ascertain if R.A. No. 7716 has been validly enacted. It is settled in this jurisdiction that in case of conflict between the enrolled bill and the legislative journals, it is the former that should prevail except only as to matters that the Constitution requires to be entered in the journals. (Mabanag v. Lopez Vito, 78 Phil. 1). These are the yeas and nays on the final reading of a bill or on any question at the request of at least one-fifth of the members of the House (Constitution, Art. VI, Sec. 16 [4]), the objections of the President to a vetoed bill or item (Ibid, Sec 27 [1]), and the names of the members voting for or against the overriding of his veto (Id. Section 27 [1]), The origin of a bill is not specifically required by the Constitution to be entered in the journals. Hence, on this particular matter, it is the recitals in the enrolled bill and not in the journals that must control. Article VI, Section 24, of the Constitution provides:chanrob1es virtual 1aw library Sec. 24. 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 enrolled bill submitted to and later approved by the President of the Philippines as R.A. No. 7716 was signed by the President of the Senate and the speaker of the House of Representatives. It carried the following certification over the signatures of the Secretary of the Senate and the Acting Secretary of the House of Representatives:chanrob1es virtual 1aw library This Act which is a consolidation of House Bill No. 11197 and Senate Bill No. 11630 was finally passed by the House of Representative and the Senate on April 27, 1994, and May 2, 1994. Let us turn to Webster for the meaning of certain words, To "originate" is "to bring into being; to create something (original); to invent; begin; start." The word "exclusively" means "excluding all others" and is derived from the word "exclusive," meaning "not shared or divided; sole; single." Applying these meanings, I would read Section 24

as saying that the bills mentioned therein must be brought into being, or created, or invented, or begun or started, only or singly or by no other body than the House of Representatives. According to the certification, R.A. No. 7716 "is a consolidation of House Bill No. 11197 and Senate Bill No. 1630." Again giving the words used their natural and ordinary sense conformably to an accepted canon of construction, I would read the word "consolidation" as a "combination or merger" and derived from the word "consolidate," meaning "to combine into one; merge; unite."cralaw virtua1aw library The two bills were separately introduced in their respective Chambers. Both retained their independent existence until they reached the bicameral conference committee where they were consolidated. It was this consolidated measure that was finally passed by Congress and submitted to the President of the Philippines for his approval. House Bill No. 11197 originated in the House of Representatives but this was not the bill that eventually became R.A. No. 7716. The measure that was signed into law by President Ramos was the consolidation of that bill and another bill, viz., Senate Bill No. 1630, which was introduced in the Senate. The resultant enrolled bill thus did not originate exclusively in the House of Representatives. The enrolled bill itself says that part of it (and it does not matter to what extent) originated in the Senate. It would have been different if the only participation of the Senate was in the amendment of the measure that was originally proposed in the House of Representatives. But this was not the case. The participation of the Senate was not in proposing or concurring with amendments that would have been incorporated in House Bill No. 11197. Its participation was in originating its own Senate Bill No. 1630, which was not embodied in but merged with House Bill No. 11197. Senate Bill No. 1630 was not even an amendment by substitution, assuming this was permissible. To "substitute" means "to take the place of; to put or use in place of another." Senate Bill No. 1630 did not, upon its approval, replace (and thus eliminate) House Bill No. 11197. Both bills retained their separate identities until they were joined or united into what became the enrolled bill and ultimately R.A. No. 7716. The certification in the enrolled bill says it all. It is clear that R.A. No. 7716 did not originate exclusively in the House of Representatives. To go back to my earlier observations, this conclusions does not require the reversal of U.S. v. Pons and an inquiry by this Court into the proceedings of the legislature beyond the recitals of its journals. All we need to do is consider the certification in the enrolled bill and, without entering the precincts of Congress, declare that by its own admission it has, indeed, not complied with the Constitution. While this Court respects the prerogatives of the other departments, it will not hesitate to rise to its higher duty to require from them, if they go astray, full and strict compliance with the fundamental law. Our fidelity to it must be total. There is no loftier principle in our democracy than the supremacy of the Constitution, to which all must submit.

I

The original VAT law and the expanded VAT law In Kapatiran v. Tan, 1 where the ponente was the writer of this Separate Opinion, a unanimous Supreme Court en banc upheld the validity of the original VAT law (Executive Order No. 273, approved on 25 July 1987). It will, in my view, be pointless at this time to re-open arguments advanced in said case as to why said VAT law was invalid, and it will be equally redundant to restate the principles laid down by the Court in the same case affirming the validity of the VAT law as a tax measure. And yet, the same arguments are, in effect, marshalled against the merits and substance of the expanded VAT law (Rep. Act No. 7716, approved on 5 May 1994). The same Supreme Court decision should therefore dispose, in the main, of such arguments, for the expanded VAT law is predicated basically on the same principles as the original VAT law, except that now the tax base of the VAT imposition has been expanded or broadened. It only needs to be stated — what actually should be obvious — that a tax measure, like the expanded VAT law (Republic Act No. 7716), is enacted by Congress and approved by the President in the exercise of the State’s power to tax, which is an attribute of sovereignty. And while the power to tax, if exercised without limit, is a power to destroy, and should therefore, not be allowed in such form, it has to be equally recognized that the power to tax is an essential right of government. Without taxes, basic services to the people can come to a halt; economic progress will be stunted, and, in the long run, the people will suffer the pains of stagnation and retrogression. Consequently, upon careful deliberation, I have no difficulty in reaching the conclusion that the expanded VAT law comes within the legitimate power of the state to tax. And as I had occasion to previously state:jgc:chanrobles.com.ph "Constitutional Law, to begin with, is concerned with power not political convenience, wisdom, exigency, or even necessity. Neither the Executive nor the Legislative (Commission on Appointments) can create power where the Constitution confers none." 2 Likewise, in the first VAT case, I said:jgc:chanrobles.com.ph "In any event, if petitioners seriously believe that the adoption and continued application of the VAT are prejudicial to the general welfare or the interests of the majority of the people, they should seek recourse and relief from the political branches of the government. The Court, following the time-honored doctrine of separation of powers, cannot substitute its judgment for that of the President (and Congress) as to the wisdom, justice and advisability of the adoption of the VAT." 3 This Court should not, as a rule, concern itself with questions of policy, much less, economic policy. That is better left to the two (2) political branches of government. That the expanded VAT law is unwise, unpopular and even anti-poor, among other things said against it, are arguments and considerations within the realm of policy-debate, which only Congress and the Executive have the authority to decisively confront, alleviate, remedy and resolve.

I vote to invalidate R.A. No. 7716 for violation of Article VI, Sec. 24, of the Constitution. PADILLA, J., concurring:chanrob1es virtual 1aw library

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II

The procedure followed in the approval of Rep. Act No. 7716. Petitioners however posit that the present case raises a far-reaching constitutional question which the Curt is duty-bound to decide under its expanded jurisdiction in the 1987 Constitution 4. Petitioners more specifically question and impugn the manner by which the expanded VAT law (Rep. Act No. 7716) was approved by Congress. They contend that it was approved in violation of the Constitution from which fact it follows, as a consequence, that the law is null and void. Main reliance of the petitioners in their assault is Section 24, Art. VI of the Constitution which provides:jgc:chanrobles.com.ph

To me then, what should really be important is that both chambers of Congress approved the bill reported out by the Conference Committee. In may considered view, the act of both chambers of Congress in approving the Conference Committee bill, should put an end to any inquiry by this Court as to how the bill came out. What is more, such separate approvals CURED whatever constitutional infirmities may have arisen in the procedures leading to such approvals. For, if such infirmities were serious enough to impugn the very validity of the measure itself, there would have been an objection or objections from members of both chambers to the approval. The Court has been shown no such objection on record in both chambers.chanroblesvirtual|awlibrary

"Sec. 24. All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bill of local application, and private bills shall originate exclusively in the House of Representatives, but the Senate may propose or concur with amendments."cralaw virtua1aw library

Petitioners contend that there were violations of Sec. 26 paragraph 2, Article VI of the Constitution which provides:jgc:chanrobles.com.ph

While it should be admitted at the outset that there was no rigorous and strict adherence to the literal command of the above provision, it may however be said, after careful reflection, that there was substantial compliance with the provision.

(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."cralaw virtua1aw library

There is no question that House Bill No. 11197 expanding the VAT law originated from the House of Representatives. It is undeniably a House measure. On the other hand, Senate Bill No. 1129, also expanding the VAT law, originated from the Senate. It is undeniably a Senate measure which, in point of time, actually antedated House Bill No. 11197. But it is of record that when House Bill No. 11197 was, after approval by the House, sent to the Senate, it was referred to, and considered by the Senate Committee on Ways and Means (after first reading) together with Senate Bill No. 1129, and the Committee came out with Senate Bill No. 1630 in substitution of Senate Bill No. 1129 but after expressly taking into consideration House Bill No. 11197. Since the Senate is, under the above-quoted constitutional provision, empowered to concur with a revenue measure exclusively originating from the House, or to propose amendments thereto, to the extent of proposing amendments by SUBSTITUTION to the House measure, the approval by the Senate of Senate Bill No. 1630, after it had considered House Bill No. 11197, may be taken, in my view, as an AMENDMENT BY SUBSTITUTION by the Senate not only of Senate Bill No. 1129 but of House Bill No. 11197 as well which, it must be remembered, originated exclusively from the House. But then, in recognition of the fact that House Bill No. 11197 which originated exclusively from the House and Senate Bill No. 1630 contained conflicting provisions, both bills (House Bill No. 11197 and Senate Bill No. 1630) were referred to the Bicameral Conference Committee for joint consideration with a view to reconciling their conflicting provisions. The Conference Committee came out eventually with a Conference Committee Bill which was submitted to both chambers of Congress (the Senate and the House). The Conference Committee reported out a bill consolidating provisions in House Bill No. 11197 and Senate Bill No. 1630. What transpired in both chambers after the Conference Committee Report was submitted to them is not clear from the records in this case. What is clear however is that both chambers voted separately on the bill reported out by the Conference Committee and both chambers approved the bill of the Conference Committee.

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"Sec. 26. . . .

in that, when Senate Bill No. 1630 (the Senate counterpart of House Bill No. 11197) was approved by the Senate, after it had been reported out by the Senate Committee on Ways and Means, the bill went through second and third readings on the same day (not separate days) and printed copies thereof in its final form were not distributed to the members of the Senate at least three (3) days before its passage by the Senate. But we are told by the respondents that the reason for this "short cut" was that the President had certified to the necessity of the bill’s immediate enactment to meet an emergency — a certification that, by leave of the same constitutional provision, dispensed with the second and third readings on separate days and the printed form at least three (3) days before its passage. We have here then a situation where the President did certify to the necessity of Senate Bill No. 1630’s immediately enactment to meet an emergency and the Senate responded accordingly. While I would be the last to say that this Court cannot review the exercise of such power by the President in appropriate cases ripe for judicial review, I am not prepared however to say that the President gravely abused his discretion in the exercise of such power as to require that this Court overturn his action. We have been shown no fact or circumstance which would impugn the judgment of the President, concurred in by the Senate, that there was an emergency that required the immediate enactment of Senate Bill No. 1630. On the other hand, a becoming respect for a co-equal and coordinate department of government points that weight and credibility be given to such Presidential judgment. The authority or power of the Conference Committee to make insertions in and deletions from the bills referred to it, namely, House Bill No. 11197 and Senate Bill No. 1630 is likewise assailed by petitioners. Again, what appears important here is that both chambers approved and ratified the bill as reported out by the Conference Committee (with the reported insertions and deletions). This is perhaps attributable to the known legislative practice of allowing a Conference Committee to make insertions in and deletions from bills referred to it for consideration, as long as they are germane to the subject matter of the bills under consideration. Besides, when the Conference Committee made the insertions and deletions

complained of by petitioners, was it not actually performing the task assigned to it of reconciling conflicting provisions in House Bill No. 11197 and Senate Bill No. 1630? This Court impliedly if not expressly recognized the fact of such legislative practice in Philippine Judges Association, etc. v. Hon. Peters Prado, etc., 5 In said case, we stated thus:jgc:chanrobles.com.ph "The petitioners also invoke Sec. 74 of the Rules of the House of Representatives, requiring that amendment to any bill when the House and the Senate shall have differences thereon may be settled by a conference committee of both chambers. They stress that Sec. 35 was never a subject of any disagreement between both Houses and so the second paragraph could not have been validly added as an amendment.

"Under the doctrine of separation of powers, the Court may not inquire beyond the certification of the approval of a bill from the presiding officers of Congress. Casco Philippine Chemical Co. v. Gimenez 6 laid down the rule that the enrolled bill is conclusive upon the Judiciary (except in matters that have to be entered in the journals like the yeas and nays on the final reading of the bill). 7 The journals are themselves also binding on the Supreme Court, as we held in the old (but still valid) case of U.S. v. Pons, 8 where we explained the reason thus:chanrob1es virtual 1aw library ‘To inquire into the veracity of the journals of the Philippine legislature when they are, as we have said, clear and explicit, would be to violate both the letter and spirit of the organic laws by which the Philippine Government was brought into existence, to invade a coordinate and independent department of the Government, and to interfere with the legitimate powers and functions of the Legislature.’

These arguments are unacceptable. While it is true that a conference committee is the mechanism for compromising differences between the Senate and the House, it is not limited in its jurisdiction to this question. Its broader function is described thus:chanrob1es virtual 1aw library ‘A conference committee may deal generally with the subject matter or it may be limited to resolving the precise differences between the two houses. Even where the conference committee is not by rule limited in its jurisdiction, legislative custom severely limits the freedom with which new subject matter can be inserted into the conference bill. But occasionally a conference committee produces unexpected results, results beyond its mandate. These excursions occur even where the rules impose strict limitations on conference committee jurisdiction. This is symptomatic of the authoritarian power of conference committee (Davies, Legislative Law and Process: In A Nutshell, 1986 Ed., p. 81).’ It is a matter of record that the Conference Committee Report on the bill in question was returned to and duly approved by both the Senate and the House of Representatives. Thereafter, the bill was enrolled with its certification by Senate President Neptali A. Gonzales and Speaker Ramon V. Mitra of the House of Representatives as having been duly passed by both Houses of Congress. It was then presented to and approved by President Corazon C. Aquino on April 3, 1992."cralaw virtua1aw library It would seem that if corrective measures are in order to clip the powers of the Conference Committee, the remedy should come from either or both chambers of Congress, not from this Court, under the time-honored doctrine of separation of powers. Finally, as certified by the Secretary of the Senate and the Secretary General of the House of Representatives — "This Act (Rep. Act No. 7716) is a consolidation of House Bill No. 11197 and Senate Bill No. 1630 (w)as finally passed by the House of Representatives and the Senate on April 27, 1994 and May 2, 1994 respectively."cralaw virtua1aw library Under the long-accepted doctrine of the "enrolled bill," the Court in deference to a co-equal and coordinate branch of government is held to a recognition of Rep. Act No. 7716 as a law validly enacted by Congress and, thereafter, approved by the President on 5 May 1994. Again, we quote from our recent decision in Philippine Judges Association, supra:jgc:chanrobles.com.ph

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."cralaw virtua1aw library III

Press Freedom and Religious Freedom and Rep. Act No. 7716 The validity of the passage of Rep. Act No. 7716 notwithstanding, certain provisions of the law have to be examined separately and carefully. Rep. Act. No. 7716 in imposing a value-added tax on circulation income of newspapers and similar publications and on income derived from publishing advertisements in newspapers 9, to my mind, violates Sec. 4, Art. III of the Constitution. Indeed, even the Executive Department has tried to cure this defect by the issuance of BIR Regulation No. 11-94 precluding implementation of the tax in this area. It should be clear, however, that the BIR regulation cannot amend the law (Rep. Act No. 7716). Only legislation (as distinguished from administration regulation) can amend an existing law.chanrobles.com.ph : virtual law library Freedom of the press was virtually unknown in the Philippines before 1900. In fact, a prime cause of the revolution against Spain at the turn of the 19th century was the repression of the freedom of speech and expression and of the press. No less than our national hero, Dr. Jose P. Rizal, in "Filipinas Despues de Cien Anos" (The Philippines a Century Hence) describing the reforms sine quibus non which the Filipinos were insisting upon, stated: "The minister . . . who wants his reforms to be reforms, must begin by declaring the press in the Philippines free. . ." 10 Press freedom in the Philippines has met repressions, most notable of which was the closure of almost all forms of existing mass media upon the imposition of martial law on 21 September 1972. Section 4, Art. III of the Constitution maybe traced to the United States Federal

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Constitution. The guarantee of Freedom of Expression was planted in the Philippines by President McKinley in the Magna Carta of Philippine Liberty, Instructions to the Second Philippine Commission on 7 April 1900.

IV

Petitions of CREBA and PAL and Rep. Act No. 7716 The present constitutional provision which reads:jgc:chanrobles.com.ph "Sec. 4 No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances."cralaw virtua1aw library is essentially the same as that guaranteed in the U.S. Federal Constitution, for which reason, American case law giving judicial expression as to it meaning is highly persuasive in the Philippines. The plain words of the provision reveal the clear intention that no prior restraint can be imposed on the exercise of free speech and expression if they are to remain effective and meaningful.chanrobles virtual lawlibrary The U.S. Supreme Court in the leading case of Grosjean v. American Press Co., Inc. 11 declared a statute imposing a gross receipts license tax of 2% on circulation and advertising income of newspaper publishers as constituting a prior restraint which is contrary to the guarantee of freedom of the press. In Bantam Books, Inc. v. Sullivan, 12 the U.S. Supreme Court stated: "Any system of prior restraint of expression comes to this Court bearing a heavy presumption against its constitutionality."cralaw virtua1aw library In this jurisdiction, prior restraint on the exercise of free expression can be justified only on the ground that there is a clear and present danger of a substantive evil which the State has the right to prevent. 13 In the present case, the tax imposed on circulation and advertising income of newspaper publishers is in the nature of a prior restraint on circulation and free expression and, absent a clear showing that the requisite for prior restraint is present, the constitutional flaw in the law is at once apparent and should not be allowed to proliferate. Similarly, the imposition of the VAT on the sale and distribution of religious articles must be struck down for being contrary to Sec. 5, Art. III of the Constitution which provides:jgc:chanrobles.com.ph "Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights."cralaw virtua1aw library That such a tax on the sale and distribution of religious articles is unconstitutional, has been long settled in American Bible Society, supra. Insofar, therefore, as Rep. Act No. 7716 imposes a value-added tax on the exercise of the above-discussed two (2) basic constitutional rights, Rep. Act No. 7716 should be declared unconstitutional and of no legal force and effect.

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The Chamber of Real Estate and Builder’s Association, Inc. (CREBA) filed its own petition (GR No. 11574) arguing that the provisions of Rep. Act No. 7716 imposing a 10% value-added tax on the gross selling price or gross value in money of every sale, barter or exchange of goods or properties (Section 2) and a 10% value-added tax on gross receipts derived from the sale or exchange of services, including the use or lease of properties (Section 3), violate the equal protection, due process and non-impairment provisions of the Constitution as well as the rule that taxation should be uniform, equitable and progressive. The issue of whether or not the value-added tax is uniform, equitable and progressive has been settled in Kapatiran. CREBA which specifically assails the 10% value-added tax on the gross selling price of real properties, fails to distinguish between a sale of real properties primarily held for sale to customers or held for lease in the ordinary course of trade or business and isolated sales by individual real property owners (Sec. 103[s]). That those engaged in the business of real estate development realize great profits is of common knowledge and need not be discussed at length here. The qualification in the law that the 10% VAT covers only sales of real property primarily held for sale to customers, i.e. for trade or business thus takes into consideration a taxpayer’s capacity to pay. There is no showing that the consequent distinction in real estate sales is arbitrary and in violation of the equal protection clause of the Constitution. The inherent power to tax of the State, which is vested in the legislature, includes the power to determine whom or what to tax, as well as how much to tax. In the absence of a clear showing that the tax violates the due process and equal protection clauses of the Constitution, this Court, in keeping with the doctrine of separation of powers, has to defer to the discretion and judgment of Congress on this point. Philippine Airlines (PAL) in a separate petition (G.R. No. 115852) claims that its franchise under PD No. 1590 which makes it liable for a franchise tax of only 2% of gross revenues "in lieu of all the 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," cannot be amended by Rep. Act No. 7716 as to make it (PAL) liable for a 10% value-added tax on revenues, because Sec. 24 of PD No. 1590 provides that PAL’s franchise can only be amended, modified or repealed by a special law specifically for that purpose. The validity of PAL’S above argument can be tested by ascertaining the true intention of Congress in enacting Rep. Act No. 7716. Sec. 4 thereof dealing with Exempt Transactions states:jgc:chanrobles.com.ph "Section 103. Exempt Transactions. — The following shall be exempt from the value-added tax:chanrob1es virtual 1aw library x

x

x

(q) Transactions which are exempt under special law, except those granted under Presidential

Decrees No. 66, 529, 972, 1491, 1590, . . ." (Emphasis supplied) The repealing clause of Rep. Act No. 7716 further reads:jgc:chanrobles.com.ph "Sec. 20. Repealing clauses. — The provisions of any special law relative to the rate of franchise taxes are hereby expressly repealed. x

x

x

All other laws, orders, issuances, rules and regulations or parts thereof inconsistent with this Act are hereby repealed, amended or modified accordingly" (Emphasis supplied) There can be no dispute, in my mind, that the clear intent of Congress was to modify PAL’s franchise with respect to the taxes it has to pay. To this extent, Rep. Act No. 7716 can be considered as a a special law amending PAL’s franchise and its tax liability thereunder. That Rep. Act. No. 7716 imposes the value-added taxes on other subjects does not make it a general law which cannot amend PD No. 1590. To sum up: it is my considered view that Rep. Act No. 7716 (the expanded value-added tax) is a valid law, viewed from both substantive and procedural standards, except only insofar as it violates Secs. 4 and 5, Art. III of the Constitution (the guarantees of freedom of expression and the free exercise of religion). To that extent, it is, in its present form, unconstitutional. I, therefor, vote to DISMISS the petitions, subject to the above qualification. REGALADO, J., dissenting:chanrob1es virtual 1aw library It would seem like an inconceivable irony that Republic Act No. 7716 which, so respondents claim, was conceived by the collective wisdom of a bicameral Congress and crafted with sedulous care by two branches of government should now be embroiled in challenges to its validity for having been enacted in disregard of mandatory prescriptions of the Constitution itself. Indeed, such impugnment by petitioners goes beyond merely the procedural flaws in the parturition of the law. Creating and regulating as it does definite rights to property, but with its own passage having been violative of explicit provisions of the organic law, even without going into the intrinsic merits of the provisions of Republic Act No. 7716 its substantive invalidity is pro facto necessarily entailed. How it was legislated into its present statutory existence is not in serious dispute and need not detain us except for a recital of some salient and relevant facts. The House of Representatives passed House Bill No. 11197 1 on third reading on November 17, 1993 and, the following day, it transmitted the same to the Senate for concurrence. On its part, the Senate approved Senate Bill No. 1630 on second and third readings on March 24, 1994. It is important to note in this regard that on March 22, 1994, said S.B. No. 1630 had been certified by President Fidel V. Ramos for immediate enactment to meet a public emergency, that is, a growing budgetary deficit. There was no such certification for H.B. No. 11197 although it was the initiating revenue bill.chanrobles lawlibrary : rednad It is, therefore, not only a curious fact but, more importantly, an invalid procedure since that Presidential certification was erroneously made for and confined to S.B. No. 1630 which was indisputably a tax bill and, under the Constitution, could not validly originate in the Senate.

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Whatever is claimed in favor of S.B. No. 1630 under the blessings of that certification, such as its alleged exemption from the three separate readings requirement, is accordingly negated and rendered inutile by the inefficacious nature of said certification as it could lawfully have been issued only for a revenue measure originating exclusively from the lower House. To hold otherwise would be to validate a Presidential certification of a bill initiated in the Senate despite the Constitutional prohibition against its originating therefrom. Equally of serious significance is the fact that S.B. No. 1630 was reported out in Committee Report No. 349 submitted to the Senate on February 7, 1994 and approved by that body "in substitution of S.B. No. 1129," while merely "taking into consideration O.S. No. 734 and H.B. No. 11197." 2 S.B. No. 1630, therefore, was never filed in substitution of either P.S. No. 734 or, more emphatically, of H.B. No. 11197 as these two legislative issuances were merely taken account of, at the most, as referential bases or materials. This is not a play on misdirection for, in the first instance, the respondents assure us that H.B. No. 11197 was actually the sole source of and stated the whole legislative process which culminated in Republic Act No. 7716. The participation of the Senate in enacting S.B. No. 1630 was, it is claimed, justified as it was merely in pursuance of its power to concur in or propose amendments to H.B. No. 11197. Citing the 83-year old case of Flint v. Stone Tracy Co., 3 it is blithely announced that such power to amend includes an amendment by substitution, that is, even to the extent of substituting the entire H.B. No. 11197 by an altogether completely new measure of Senate provenance. Ergo, so the justification goes, the Senate acted perfectly in accordance with its amending power under Section 24, Article VI of the Constitution since it merely proposed amendments through a bill allegedly prepared in advance. This is a mode of argumentation which, by reason of factual inaccuracy and logical implausibility, both astounds and confounds. For, it is of official record that S.B. No. 1630 was filed, certified and enacted in substitution of S.B. No. 1129 which in itself was likewise in derogation of the Constitutional prohibition against such initiation of a tax bill in the Senate. In any event, S.B. No. 1630 was neither intended as a bill to be adopted by the Senate nor to be referred to the bicameral conference committee as a substitute for H.B. No. 11197. These indelible facts appearing in official documents cannot be erased by any amount of strained convolutions or incredible pretensions that S.B. No. 1630 was supposedly enacted in anticipation of H.B. No. 11197. On that score alone, the invocation by the Solicitor General of the hoary concept of amendment by substitution falls flat on its face. Worse, his concomitant citation of Flint to recover from that prone position only succeeded in turning the same postulation over, this time supinely flat on its back. As elsewhere noted by some colleagues, which I will just refer to briefly to avoid duplication, respondents initially sought sanctuary in that doctrine supposedly laid down in Flint, thus: "It has, in fact, been held that the substitution of an entirely new measure for the one originally proposed can be supported as a valid amendment." 4 (Emphasis supplied.) During the interpellation by the writer at the oral argument held in these cases, the attention of the Solicitor General was called to the fact that the amendment in Flint consisted only of a single item, that is, the substitution of a corporate tax for an inheritance tax proposed in a general revenue bill; and that the text of the decision therein nowhere contained the supposed doctrines he quoted and ascribed to the court, as those were merely summations of arguments of counsel therein. It is indeed a source of disappointment for us, but an admission of desperation on his part, that, instead of making a clarification or a defense of his contention, the Solicitor General merely reproduced all over again 5 the same quotations as they appeared in his original consolidated comment, without venturing any explanation or

justification. The aforestated dissemblance, thus unmasked, has further undesirable implications on the contentions advanced by respondents in their defense. For, even indulging respondents ex gratia argumenti in their pretension that S.B. No. 1630 substantiated or replaced H.B. No. 11197, aside from muddling the issue of the true origination of the disputed law, this would further enmesh respondents in a hopeless contradiction.chanrobles virtual lawlibrary In a publication authorized by the Senate and from which the Solicitor General has liberally quoted, it is reported as an accepted rule therein that" (a)n amendment by substitution when approved takes the place of the principal bill. C.R. March 19, 1963, p. 943." 6 Stated elsewise, the principal bill is supplanted and goes out of actuality. Applied to the present situation, and following respondents’ submission that H.B. No. 11197 had been substituted or replaced in its entirety, then in law it had no further existence for purpose of the subsequent stages of legislation except, possibly, for referential data. Now, the enrolled bill thereafter submitted to the President of the Philippines, signed by the President of the Senate and the Speaker of the House of Representatives, carried this solemn certification over the signatures of the respective secretaries of both chambers: "This Act which is a consolidation of House Bill No. 11197 and Senate Bill No. 1630 was finally passed by the House of Representatives and the Senate on April 27, 1994, and May 2, 1994." (Italics mine.) In reliance thereon, the Chief Executive signed the same into law as Republic Act No. 7716. The confusion to which the writer has already confessed is now compounded by that official text of the aforequoted certification which speaks, and this cannot be a mere lapsus calami, of two independent and existing bills (one of them being H.B. No. 11197) which were consolidated to produce the enrolled bill. In parliamentary usage, to consolidate two bills, is to unite them into one 7 and which, in the case at bar, necessarily assumes that H.B. No. 1 1197 never became legally inexistent. But did not the Solicitor General, under the theory of amendment by substitution of the entire H.B. No. 11197 by S.B. No. 1630, thereby premise the same upon the replacement, hence the total elimination from the legislative process, of H.B. 11197? It results, therefore, that to prove compliance with the requirement for the exclusive origination of H.B. No. 11197, two alternative but inconsistent theories had to be espoused and defended by respondents’ counsel. To justify the introduction and passage of S.B. No. 1630 in the Senate, it was supposedly enacted only as an amendment by substitution, hence on that theory H.B. No. 11197 had to be considered as displaced and terminated from its role or existence. Yet, likewise for the same purpose but this time on the theory of origination by consolidation, H.B. No. 11197 had to be resuscitated so it could be united or merged with S. B. No. 1630. This latter alternative theory, unfortunately, also exacerbates the constitutional defect for then it is an admission of a dual origination of the two tax bills, each respectively initiated in and coming from the lower and upper chambers of Congress. Parenthetically, it was also this writer who pointedly brought this baffling situation to the attention of the Solicitor General during the aforesaid oral argument, to the extent of reading aloud the certification in full. We had hoped thereby to be clarified on these vital issue in respondents’ projected memorandum, but we have not been favored with an explanation unraveling this dilemma. Verily, by passing sub silentio on these intriguing submissions, respondents have wreaked havoc on both logic and law just to gloss over their non-compliance with the Constitutional mandate for exclusive origination of a revenue bill. The procedure

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required therefor, we emphatically add, can be satisfied only by complete and strict compliance since this is laid down by the Constitution itself and not by a merely statute. This writer consequently agrees with the clearly tenable proposition of petitioners that when the Senate passed and approved S.B. No. 1630, had it certified by the Chief Executive, and thereafter caused its consideration by the bicameral conference committee in total substitution of H.B. No. 11197, it clearly and deliberately violated the requirements of the Constitution not only in the origination of the bill but in the very enactment of Republic Act No. 7716. Contrarily, the shifting sands of inconsistency in the arguments adduced for respondents betray such lack of intellectual rectitude as to give the impression of being mere rhetorics in defense of the indefensible. We are told, however, that by our discoursing on the foregoing issues we are intruding into non-justiciable areas long declared verboten by such time-honored doctrines as those on political questions, the enrolled bill theory and the respect due to two co-equal and coordinate branches of Government, all derived from the separation of powers inherent in republicanism. We appreciate the lectures, but we are not exactly unaware of the teachings in U.S. v. Pons, 8 Mabanag v. Lopez Vito, 9 Casco Philippine Chemical Co., Inc. v. Gimenez, etc., Et Al., 10 Morales v. Subido, etc., 11 and Philippine Judges Association, etc., Et. Al. v. Prado, etc., Et Al., 12 on the one hand, and Tañada, Et. Al. v. Cuenco, Et Al., 13 Sanidad, Et. Al. v. Commission on Elections, Et Al., 14 and Daza v. Singson, Et Al., 15 on the other, to know which would be applicable to the present controversy and which should be rejected. But, first, a positional exordium. The writer of this opinion would be among the first to acknowledge and enjoin not only courtesy to, but respect for, the official acts of the Executive and Legislative departments, but only so long as the same are in accordance with or are defensible under the fundamental charter and the statutory law. He would readily be numbered in the ranks of those who would preach a reasoned sermon on the separation of powers, but with the qualification that the same are not contained in tripartite compartments separated by impermeable membranes. He also ascribes to the general validity of American constitutional doctrines as a matter of historical and legal necessity, but not to the extent of being oblivious to political changes or unmindful of the fallacy of undue generalization arising from myopic disregard of the factual setting of each particular case. These ruminations have likewise been articulated and dissected by my colleagues, hence it is felt that the only issue which must be set aright in this dissenting opinion is the so-called enrolled bill doctrine to which we are urged to cling with reptilian tenacity. It will be preliminarily noted that the official certification appearing right on the face of Republic Act No. 7716 would even render unnecessary any further judicial inquiry into the proceedings which transpired in the two legislative chambers and, on a parody of tricameralism, in the bicameral conference committee. Moreover, we have the excellent dissertations of some of my colleagues on these matters, but respondents insist en contra that the congressional proceedings cannot properly be inquired into by this Court. Such objection confirms a suppressive pattern aimed at sacrificing the rule of law to the fiat of expediency.chanrobles.com : virtual law library Respondents thus emplaced on their battlements the pronouncements of this Court in the aforecited case of Philippine Judges Association v. Prado. 16 Their reliance thereon falls into the same error committed by their seeking refuge in the Flint case, ante. which, as has earlier been demonstrated (aside from the quotational misrepresentation), could not be on par with the factual situation in the present case. Flint, to repeat, involved a mere amendment on a single legislative item, that is, substituting the proposal therein of an inheritance tax by one on

corporate tax. Now, in their submission based on Philippine Judges Association, respondents studiously avoid mention of the fact that the questioned insertion referred likewise to a single item, that is, the repeal of the franking privilege theretofore granted to the judiciary. That both cases cannot be equated with those at bar, considering the multitude of items challenged and the plethora of constitutional violations involved, is too obvious to belabor. Legal advocacy and judicial adjudication must have a becoming sense of qualitative proportion, instead of lapsing into the discredited and maligned practice of yielding blind adherence to precedents. The writer unqualifiedly affirms his respect for valid official acts of the two branches of government and eschews any unnecessary intrusion into their operational management and internal affairs. These, without doubt, are matters traditionally protected by the republican principle of separation of powers. Where, however, there is an overriding necessity for judicial intervention in light of the pervasive magnitude of the problems presented and the gravity of the constitutional violations alleged, but this Court cannot perform its constitutional duty expressed in Section 1, Article VIII of the Constitution unless it makes the inescapable inquiry, then the confluence of such factors should compel an exception to the rule as an ultimate recourse. The cases now before us present both the inevitable challenge and the inescapable exigency for judicial review. For the Court to now shirk its bounden duty would not only project it as a citadel of the timorous and the slothful, but could even undermine its raison d’etre as the highest and ultimate tribunal. Hence, this dissenting opinion has touched on events behind and which transpired prior to the presentation of the enrolled bill for approval into law. The details of that law which resulted from the legislative action followed by both houses of Congress, the substantive validity of whose provisions and the procedural validity of which legislative process are here challenged as unconstitutional, have been graphically presented by petitioners and admirably explained in the respective opinions of my brethren. The writer concurs in the conclusions drawn therefrom and rejects the contention that we have unjustifiably breached the dike of the enrolled bill doctrine. Even in the land of its source, the so-called conclusive presumption of validity originally attributed to that doctrine has long been revisited and qualified, if not altogether rejected. On the competency of judicial inquiry, it has been held that" (u)under the ‘enrolled bill rule’ by which an enrolled bill is sole expository of its contents and conclusive evidence of its existence and valid enactment, it is nevertheless competent for courts to inquire as to what prerequisites are fixed by the Constitution of which journals of respective houses of Legislature are required to furnish the evidence." 17 In fact, in Gwynn v. Hardee, etc., Et Al., 18 the Supreme Court of Florida declared:jgc:chanrobles.com.ph "(1) While the presumption is that the enrolled bill, as signed by the legislative officers and filed with the secretary of state, is the bill as it passed, yet this presumption is not conclusive, and when it is shown from the legislative journals that a bill though engrossed and enrolled, and signed by the legislative officers, contains provisions that have not passed both houses, such provisions will be held spurious and not a part of the law. As was said by Mr. Justice Cockrell in the case of Wade v. Atlantic Lumber Co., 51 Fla. 628, text 633, 41 So. 72, 73:chanrob1es virtual 1aw library ‘This Court is firmly committed to the holding that when the journals speak they control, and against such proof the enrolled bill is not conclusive.’"

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More enlightening and apropos to the present controversy is the decision promulgated on May 13, 1980 by the Supreme Court of Kentucky in D & W Auto Supply, Et. Al. v. Department of Revenue, Et Al., 19 pertinent excerpts wherefrom are extensively reproduced hereunder:jgc:chanrobles.com.ph ". . . In arriving at our decision we must, perforce, reconsider the validity of a long line of decisions of this court which created and nurtured the so-called ‘enrolled bill’ doctrine. x

x

x

" [1] Section 46 of the Kentucky Constitution sets out certain procedures that the legislature must follow before a bill can be considered for final passage. . . . x

x

x

". . . Under the enrolled bill doctrine as it now exists in Kentucky, a court may not look behind such a bill, enrolled and certified by the appropriate officers, to determine if there are any defects. x

x

x

". . . In Lafferty, passage of the law in question violated this provision, yet the bill was properly enrolled and approved by the governor. In declining to look behind the law to determine the propriety of its enactment, the court enunciated three reasons for adopting the enrolled bill rule. First, the court was reluctant to scrutinize the processes of the legislature, an equal branch of government. Second, reasons of convenience prevailed, which discouraged requiring the legislature to preserve its records and anticipated considerable complex litigation if the court ruled otherwise. Third, the court acknowledged the poor record-keeping abilities of the General Assembly and expressed a preference for accepting the final bill as enrolled, rather than opening up the records of the legislature. . . . x

x

x

"Nowhere has the rule been adopted without reason, or as a result of judicial whim. There are four historical bases for the doctrine. (1) An enrolled bill was a ‘record’ and, as such, was not subject to attack at common law. (2) Since the legislature is one of the three branches of government, the courts, being coequal, must indulge in every presumption that legislative acts are valid. (3) When the rule was originally formulated, record-keeping of the legislatures was so inadequate that a balancing of equities required that the final act, the enrolled bill, be given efficacy. (4) There were theories of convenience as expressed by Kentucky court in Lafferty. "The rule is not unanimous in the several states, however, and it has not been without its critics. From an examination of cases and treaties, we can summarize the criticisms as follows: (1) Artificial presumptions, especially conclusive ones, are not favored. (2) Such a rule frequently (as in the present case) produces results which do not accord with facts or constitutional provisions. (3) The rule is conducive to fraud, forgery, corruption and other

wrongdoings. (4) Modern automatic and electronic record-keeping devices now used by legislatures remove one of the original reasons for the rule. (5) The rule disregards the primary obligation of the courts to seek the truth and to provide a government. In light of these considerations, we are convinced that the time has come to re-examine the enrolled bill doctrine.

convincing evidence establishing that constitutional requirements have not been met.

" [2] This court is not unmindful of the admonition of the doctrine of stare decisis. The maxim is "Stare decisis et non quieta movere," which simply suggests that we stand by precedents and not disturb settled points of law. Yet, this rule is not inflexible, nor is it of such a nature as to require perpetuation of error or logic. As we stated in Daniel’s Adm’r v. Hoofnel, 287 Ky 834, 155 S.W. 2d 469, 471-72 (1941) (Citations omitted):chanrob1es virtual 1aw library

Undeniably, the value-added tax system may have its own merits to commend its continued adoption, and the proposed widening of its base could achieve laudable governmental objectives if properly formulated and conscientiously implemented. We would like to believe, however, that ours is not only an enlightened democracy nurtured by a policy of transparency but one where the edicts of the fundamental law are sacrosanct for all, barring none. While the realization of the lofty ends of this administration should indeed be the devout wish of all, likewise barring none, it can never be justified by methods which even, if unintended, are suggestive of Machiavellism.

The force of the rule depends upon the nature of the question to be decided and the extent of the disturbance of rights and practices which a change in the interpretation of the law or the course of judicial opinions may create. Cogent considerations are whether there is clear error and urgent reasons ‘for neither justice nor wisdom requires a court to go from one doubtful rule to another,’ and whether or not the evils of the principle that has been followed will be more injurious than can possibly result from a change. Certainly, when a theory supporting a rule of law is not grounded on facts, or upon sound logic, or is unjust, or has been discredited by actual experience, it should be discarded, and with it the rule it supports. " [3] It is clear to us that the major premise of the Lafferty decision, the poor record-keeping of the legislature, has disappeared. Modern equipment and technology are the rule in recordkeeping by our General Assembly. Tape recorders, electric typewriters, duplicating machines, recording equipment, printing presses, computers, electronic voting machines, and the like remove all doubts and fears as to the ability of the General Assembly to keep accurate and readily accessible records. "It is also apparent that the ‘convenience’ rule is not appropriate in today’s modern and developing judicial philosophy. The fact that the number and complexity of lawsuits may increase is not persuasive if one is mindful that the overriding purpose of our judicial system is to discover the truth and see that justice is done. The existence of difficulties and complexities should not deter this pursuit and we reject any doctrine or presumption that so provides. "Lastly, we address the premise that the equality of the various branches of government requires that we shut our eyes to constitutional failings and other errors of our coparceners in government. We simply do not agree. Section 26 of the Kentucky Constitution provides that any law contrary to the constitution is ‘void.’ The proper exercise of judicial authority requires us to recognize any law which is unconstitutional and to declare it void. Without belaboring the point, we believe that under section 228 of the Kentucky Constitution it is our obligation to ‘support . . . the Constitution of the commonwealth.’ We are sworn to see that violations of the constitution — by any person, corporation, state agency or branch of government — are brought to light and corrected. To countenance an artificial rule of law that silences our voices when confronted with violations of our constitution is not acceptable to this court. "We believe that a more reasonable rule is the one which Professor Sutherland describes as the ‘extrinsic evidence’ rule. . . . Under this approach there is a prima facie presumption that an enrolled bill is valid, but such presumption may be overcome by clear, satisfactorily and

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"We therefore overrule Lafferty v. Huffman and all other cases following the so-called enrolled bill doctrine, to the extent that there is no longer a conclusive presumption that an enrolled bill is valid. . . ." (Emphases mine.)

Accordingly, I vote to grant the instant petitions and to invalidate Republic Act No. 7716 for having been enacted in violation of Section 24, Article VI of the Constitution. DAVIDE, JR., J., dissenting:chanrob1es virtual 1aw library The legislative history of R.A. No. 7716, as highlighted in the Consolidated Memorandum for the public respondents submitted by the Office of the Solicitor General, demonstrates beyond doubt that it was passed in violation or deliberate disregard of mandatory provisions of the Constitution and of the rules of both chambers of Congress relating to the enactment of bills. I therefore vote to strike down R.A. No. 7716 as unconstitutional and as having been enacted with grave abuse of discretion.chanroblesvirtualawlibrary The Constitution provides for a bicameral Congress. Therefore, no bill can be enacted into law unless it is approved by both chambers — the Senate and the House of Representatives (hereinafter House). Otherwise stated, each chamber may propose and approve a bill, but until it is submitted to the other chamber and passed by the latter, it cannot be submitted to the President for its approval into law. Paragraph 2, Section 26, Article VI of the Constitution provides:jgc:chanrobles.com.ph "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."cralaw virtua1aw library The "three readings" refer to the three readings in both chambers. There are, however, bills which must originate exclusively in the House. Section 24, Article VI of the Constitution enumerates them:jgc:chanrobles.com.ph "Sec. 24. 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."cralaw virtua1aw

library

"vt 1: to cause the beginning of: give rise to: INITIATE . . . 2. to start (a person or thing) on a course or journey . . . vi: to take or have origin: be derived: ARISE, BEGIN, START . . ."cralaw virtua1aw library

Under the Rules of the House, the first reading of a bill consists of a reading of the number, title, and author followed by the referral to the appropriate committees; 7 the second reading consists of the reading in full of the bill with the amendments proposed by the committee, if any; 8 and the third reading is the reading of the bill in the form as approved on second reading and takes place only after printed copies thereof in its final form have been distributed to the Members at least three days before, unless the bill is certified.9 At the second reading, the following takes place:chanrob1es virtual 1aw library

Black’s Law Dictionary 2 defines the word exclusively in this wise:jgc:chanrobles.com.ph

(1) Reading of the bill;

"Apart from all others; only; solely; substantially all or for the greater part. To the exclusion of all others; without admission of others to participation; in a manner of exclude."cralaw virtua1aw library

(2) Sponsorship;

In City Mayor v. The Chief of Philippine Constabulary, 3 this Court said:jgc:chanrobles.com.ph

(4) Period of Amendments; and

"The term ‘exclusive’ in its usual and generally accepted sense, means possessed to the exclusion of others; appertaining to the subject alone, not including, admitting or pertaining to another or others, undivided, sole. (15 Words and Phrases, p. 510, citing Mitchel v. Tulsa Water, Light, Heat and Power Co., 95 P. 961, 21 Okl. 243; and p. 513, citing Commonwealth v. Superintendent of House of Correction, 64 Pa. Super. 613, 615)."cralaw virtua1aw library

(5) Voting on Second Reading. 10

Webster’s Third New International Dictionary 1 defines originate as follows:jgc:chanrobles.com.ph

Indisputably then, only the House can cause the beginning or initiate the passage of any appropriation, revenue, or tariff bill, any bill increasing the public debt, any bill of local application, or any private bill. The Senate can only "propose or concur with amendments." chanrobles law library Under the Rules of the Senate, the first reading is the reading of the title of the bill and its referral to the corresponding committee; the second reading consist of the reading of the bill in the form recommended by the corresponding committee; and the third reading is the reading of the bill in the form it will be after approval on second reading. 4 During the second reading, the following takes place:chanrob1es virtual 1aw library (1) Second reading of the bill;

(3) Debates;

At the third reading, the votes shall be taken immediately and the yeas and nays entered in the Journal. 11 Clearly, whether in the Senate or in the House, every bill must pass the three readings on separate days, except when the bill is certified. Amendments to the bill on third reading are constitutionally prohibited. 12 After its passage by one chamber, the bill should then be transmitted to the other chamber for its concurrence. Section 83, Rule XIV of the Rules of the House expressly provides:jgc:chanrobles.com.ph "Sec. 83. Transmittal to Senate. — The Secretary General, without need of express order, shall transmit to the Senate for its concurrence all the bills and joint or concurrent resolutions approved by the House or the amendments of the House to the bills or resolutions of the Senate, as the case may be. If the measures approved without amendments are bills or resolutions of the Senate, or if amendments of the Senate to bills of the House are accepted, he shall forthwith notify the Senate of the action taken."cralaw virtua1aw library

(2) Sponsorship by the Committee Chairman or any member designated by the corresponding committee;

Simplified, this rule means that:chanrob1es virtual 1aw library

(3) If a debate ensues, turns for and against the bill shall be taken alternately;

1. As to a bill originating in the House:chanrob1es virtual 1aw library

(4) The sponsor of the bill closes the debate;

(a) Upon its approval of the House, the bill shall be transmitted to the Senate;

(5) After the close of the debate, the period of amendments follows;

(b) The Senate may approve it with or without amendments;

(6) Then, after the period of amendments is closed, the voting on the bill on second reading. 5

(c) The Senate returns the bill to the House;

After approval on second reading, printed copies thereof in its final form shall be distributed to the Members of the Senate at least three days prior to the third reading, except in cases of certified bills. At the third reading, the final vote shall be taken and the yeas and nays shall be entered in the Journal. 6

(d) The House may accept the Senate amendments; if it does not, the Secretary General shall notify the Senate of that action. As hereinafter be shown, a request for conference shall then be in order.

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2. As to bills originating in the Senate:chanrob1es virtual 1aw library (a) Upon its approval by the Senate, the bill shall be transmitted to the House; (b) The House may approve it with or without amendments;

combining in one, and jointly enacting laws by the vote of a majority of all. All those rules which are of the essentials of law-making must be observed and followed; and it is only the customary rules of order and routine, such as in every deliberative body are always understood to be under its control, and subject to constant change at its will, that the constitution can be understood to have left as matters of discretion, to be established, modified, or abolished by the bodies for whose government in non-essential matters they exist."cralaw virtua1aw library

(c) The House then returns it to the Senate, informing it of the action taken; (d) The Senate may accept the House amendments; if it does not, it shall notify the House and make a request for conference. The transmitted bill shall then pass three readings in the other chamber on separate days. Section 84, Rule XIV of the Rules of the House states:jgc:chanrobles.com.ph "Sec. 84. Bills from the Senate. — The bills, resolutions and communications of the Senate shall be referred to the corresponding committee in the same manner as bills presented by Members of the House."cralaw virtua1aw library

In respect of appropriation, revenue, or tariff bills, bills increasing the public debt, bills of local application, or private bills, the return thereof to the House after the Senate shall have "proposed or concurred with amendments" for the former either to accept or reject the amendments would not only be in conformity with the foregoing rules but is also implicit from Section 24 of Article VI. With the foregoing as our guiding light, I shall now show the violations of the Constitution and of the Rules of the Senate and of the House in the passage of R.A. No. 7716. VIOLATIONS OF SECTION 24, ARTICLE VI

and Section 51, XXIII of the Rules of the Senate provides:jgc:chanrobles.com.ph

OF THE CONSTITUTION:chanrob1es virtual 1aw library

"Sec. 51. Prior to their final approval, bills and joint resolutions shall be read at least three times."cralaw virtua1aw library

First violation. — Since R.A. No. 7716 is a revenue measure, it must originate exclusively in the House — not in the Senate. As correctly asserted by petitioner Tolentino, on the face of the enrolled copy of R.A. No. 7716, it is a "CONSOLIDATION OF HOUSE BILL No. 11197 AND SENATE BILL No. 1630." In short, it is an illicit marriage of a bill which originated in the House and a bill which originated in the Senate. Therefore, R.A. No. 7716 did not originate exclusively in the House.

It is only when the period of disagreement is reached, i.e., amendments proposed by one chamber to a bill originating from the other are not accepted by the latter, that a request for conference is made or is in order. The request for conference is specifically covered by Section 26, Rule XII of the Rules of the Senate which reads:jgc:chanrobles.com.ph "Sec. 26. In the event that the Senate does not agree with the House of Representatives on the provision of any bill or joint resolution, the differences shall be settled by a conference committee of both Houses which shall meet within ten days after its composition."cralaw virtua1aw library and Section 85, Rule XIV of the Rules of the House which reads:jgc:chanrobles.com.ph "Sec. 85. Conference Committee Reports. — In the event that the House does not agree with the Senate on the amendments to any bill or joint resolution, the differences may be settled by conference committees of both Chambers."cralaw virtua1aw library The foregoing provisions of the Constitution and the Rules of both chambers of Congress are mandatory. In his Treatise On The Constitutional Limitations, 13 more particularly on enactment of bills, Cooley states:jgc:chanrobles.com.ph "Where, for an instance, the legislative power is to be exercised by two houses, and by settled and well-understood parliamentary law these two houses are to hold separate sessions for their deliberations, and the determination of the one upon a proposed law is to be submitted to the separate determination of the other, the constitution, in providing for two houses, has evidently spoken in reference to this settled custom, incorporating it as a rule of constitutional interpretation; so that it would require no prohibitory clause to forbid the two houses from

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The only bill which could serve as a valid basis for R.A. No. 7716 is House Bill (HB) No. 11197. This bill, which is the substitute bill recommended by the House Committee on Ways and Means in substitution of House Bills Nos. 253, 771, 2450, 7033, 8086, 9030, 9210, 9397, 10012, and 10100, and covered by its Committee Report No. 367, 14 was approved on third reading by the House on 17 November 1993. 15 Interestingly, HB No. 9210, 16 which was filed by Representative Exequiel B. Javier on 19 May 1993, was certified by the President in his letter to Speaker Jose de Venecia, Jr. of 1 June 1993. 17 Yet, HB No. 11197, which substituted HB No. 9210 and the others above-stated, was not. Its certification seemed to have been entirely forgotten.chanrobles law library : red On 18 November 1993, the Secretary-General of the House, pursuant to Section 83, Rule XIV of the Rules of the House, transmitted to the President of the Senate HB No. 11197 and requested the concurrence of the Senate therewith. 18 However, HB No. 11197 had passed only its first reading in the Senate by its referral to its Committee on Ways and Means. That Committee never deliberated on HB No. 11197 as it should have. It acted only on Senate Bill (SB) No. 1129 19 introduced by Senator Ernesto F. Herrera on 1 March 1993. It then prepared and proposed SB No. 1630, and in its Committee Report No. 349 20 which was submitted to the Senate on 7 February 1994, 21 it recommended that SB No. 1630 be approved "in substitution of S.B. No. 1129, taking into consideration P.S. Res. No. 734 and H.B. No. 11197." 22 It must be carefully noted that S.B. No. 1630 was proposed and submitted for approval by the Senate in SUBSTITUTION of SB No. 1129, and not HB No. 11197. The latter, instead of being the only measure to be taken up, deliberated upon, and reported back to the Senate for its consideration on second reading and, eventually, on third

reading was, at the most, merely given by the Committee a passing glance. This specific unequivocal action of the Senate Committee on Ways and Means, i.e., proposing and recommending approval of SB No. 1630 as a substitute for or in substitution of SB No. 1129 demolishes at once the thesis of the Solicitor General that:jgc:chanrobles.com.ph

one of the companion cases (No. 425, entitled, "Gay v. Baltic Mining Co."). The second part is the second paragraph of the opinion of the Court delivered by Mr. Justice Day. The misrepresentation that the first pat is a statement of the Court is highly contemptuous. To show such deliberate misrepresentation, it is well to quote what actually are found in 55 L. Ed. 408, 410, to wit:jgc:chanrobles.com.ph

"Assuming that SB 1630 is distinct from HB 11197, amendment by substitution is within the purview of Section 24, Article VI of the Constitution."cralaw virtua1aw library

"Messrs. Charles A. Snow and Joseph H. Knight filed a brief for appellees in No. 425:chanrob1es virtual 1aw library

because, according to him, (a) "Section 68, Rule XXIX of the Rules of the Senate authorizes an amendment by substitution and the only condition required is that ‘the text thereof is submitted in writing’; and (b) ‘[I]n Flint v. Stone Tracy Co. (220 U.S. 107) the United States Supreme Court, interpreting the provision in the United States Constitution similar to Section 24, Article VI of the Philippine Constitution, stated that the power of the Senate to amend a revenue bill includes substitution of an entirely new measure for the one originally proposed by the House of Representatives.’" 23 This thesis is utterly without merit. In the first place, it reads into the Committee Report something which it had not contemplated, that is, to propose SB No. 1630 in substitution of HB No. 11197; or speculates that the Committee may have committed an error in stating that it is SB No. 1129, and not HB No. 11197, which is to be substituted by SB No. 1630. Either, of course, is unwarranted because the words of the Report, solemnly signed by the Chairman, Vice-Chairman (who dissented), seven members, and three ex-officio members,24 leave no room for doubt that although SB No. 1129, P.S. Res No. 734, and HB No. 11197 were referred to and considered by the Committee, it had prepared the attached SB No. 1630 which it recommends for approval "in substitution of S.B. No. 11197, taking into consideration P.S. No. 734 and H.B. No. 11197 with Senators Herrera, Angara, Romulo, Sotto, Ople and Shahani as authors." To do as suggested would be to substitute the judgment of the Committee with another that is completely inconsistent with it, or, simply, to capriciously ignore the facts.chanrobles.com:cralaw:red In the second place, the Office of the Solicitor General intentionally made it appear, to mislead rather than to persuade us, that in Flint v. Stone Tracy Co. 25 the U.S. Supreme Court ruled, as quoted by it in the Consolidated Memorandum for Respondents, as follows: 26 "The Senate has the power to amend a revenue bill. This power to amend is not confined to the elimination of provisions contained in the original act, but embraces as well the addition of such provisions thereto as may render the original act satisfactory to the boy which is called upon to support it. It has, in fact, been held that the substitution of an entirely new measure for the one originally proposed can supported as a valid amendment. x

x

x

It is contended in the first place that this section of the act is unconstitutional, because it is a revenue measure, and originated in the Senate in violation of section 7 of article 1 of the Constitution, providing that ‘all bills for raising revenue shall originate in the House of Representatives, but the Senate may propose or concur with the amendments, as on other bill.’" The first part is not a statement of the Court, but a summary of the arguments of counsel in

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x

x

x

The Senate has the power to amend a revenue bill. This power to amend is not confined to the elimination of provisions contained in the original act, but embraces as well the addition of such provisions thereto as may render the original act satisfactory to the body which is called upon to support it. It has, in fact, been held that the substitution of an entirely new measure for the one originally proposed can be supported as a valid amendment. Brake v. Collison, 122 Fed. 722. Mr. James L. Quackenbush filed a statement for appellees in No. 442. Solicitor General Lehmann (by special leave) argued the cause for the United States on reargument. Mr. Justice Day delivered the opinion of the court:chanrob1es virtual 1aw library These cases involve the constitutional validity of par. 38 of the act of Congress approved August 5, 1909, known as ‘the corporation tax’ Law. 36 Stat. at L. 11, 112-117, chap. 6, U.S. Comp. Stat. Supp. 1909, pp. 659, 844-849. It is contended in the first place that this section of the act is unconstitutional, because it is revenue measure, and originated in the Senate in violation of 7 of article 1 of the Constitution, providing that `all bills for raising revenue shall originate in the House of Representatives, but the Senate may propose or concur with the amendments, as on other bills.’ The history of the act is contained in the government’s brief, and is accepted as correct, no objection being made to its accuracy. This statement shows that the tariff bill of which the section under consideration is a part, originated in the House of Representatives, and was there a general bill for the collection of revenue. As originally introduced, it contained a plan of inheritance taxation. In the Senate the proposed tax was removed from the bill, and the corporation tax, in a measure, substituted therefor. The bill having properly originated in the House, we perceive no reason in the constitutional provision relief upon why it may not be amended in the Senate in the manner which it was in this case. The amendment was germane to the subject-matter of the bill, and not beyond the power of the Senate to proposed." (Emphasis supplied) x

x

x

As shown above, the underlined portions were deliberately omitted in the quotation made by

the Office of the Solicitor General. In the third place, a Senate amendment by substitution with an entirely new bill of a bill, which under Section 24, Article VI of the Constitution can only originate exclusively in the House, is not authorized by said Section 24. Flint v. Stone Tracy Co. cannot be invoked in favor of such a view. As pointed out by Mr. Justice Florenz D. Regalado during the oral arguments of these cases and during the initial deliberations thereon by the court, Flint involves a Senate amendment to a revenue bill which, under the United States Constitution, should originate from the House of Representatives. The amendment consisted of the substitution of a corporation tax in lieu of the plan of inheritance taxation contained in a general bill for the collection of revenue as it came from the House of Representatives where the bill originated. The constitutional provision in question is Section 7, Article I of the United States Constitution which reads:jgc:chanrobles.com.ph "Section 7. Bills and Resolutions. — 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." chanrobles lawlibrary : rednad This provision, contrary to the misleading claim of the Solicitor General, is not a similar to Section 24, Article VI of our Constitution, which for easy comparison is hereunder quoted again:jgc:chanrobles.com.ph "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."cralaw virtua1aw library Note that in the former the word exclusively does not appear. And, in the latter, the phrase "as on other Bills," which is found in the former, does not appear. These are very significant in determining the authority of the upper chamber over the bills enumerated in Section 24. Since the origination is not exclusively vested in the House of Representatives of the United States, the Senate’s authority to propose or concur with amendments is necessarily broader. That broader authority is further confirmed by the phrase "as on other Bills," i.e., its power to propose or concur with amendments thereon is the same as in ordinary bills. The absence of this phrase in our Constitution was clearly intended to restrict or limit the Philippine Senate’s power to propose or concur with amendments. In the light of the exclusively of origination and the absence of the phrase "as on other Bills," the Philippine Senate cannot amend by substitution with an entirely new bill of its own any bill covered by Section 24 of Article VI which the House of Representatives transmitted to it because such substitution would indirectly violate Section 24. These obvious substantive differences between Section 7, Article I of the U.S. Constitution and Section 24, Article VI of our Constitution are enough reasons why this Court should neither allow itself to be misled by Flint v. Stone nor be awed by Rainey v. United States 27 and the opinion of Messrs. Ogg and Ray 28 which the majority cites to support the view that the power of the U.S. Senate to amend a revenue measure is unlimited. Rainey concerns the Tariff Act of 1909 of the United States of America and specifically involved was it Section 37 which was an amendment introduced by the U.S. Senate. It was claimed by the petitioners that the said section is a revenue measure which should originate in the House of Representatives. The U.S. Supreme Court, however, adopted and approved the finding of the court a quo that:jgc:chanrobles.com.ph

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"the section in question is not void as a bill for raising revenue originating in the Senate, and not in the House of Representatives. It appears that the section was proposed by the Senate as an amendment to a bill for raising revenue which originated in the House. That is sufficient."cralaw virtua1aw library Messrs. Ogg and Ray, who are professors emeritus of political science, based their statement not even on a case decided by the U.S. Supreme Court but on their perception of what Section 7, Article I of the U.S. Constitution permits. In the tenth edition (1951) of their work, they state:jgc:chanrobles.com.ph "Any bill may make its first appearance in either house, except only that bills for raising revenue are required by the constitution to ‘originate’ in the House of Representatives. Indeed, through its right to amend revenue bills, even to the extent of substituting new ones, the Senate may, in effect, originate them also." 29 Their "in effect" conclusion is, of course, logically correct because the word exclusively does not appear in said Section 7, Article I of the U.S. Constitution. Neither can I find myself in agreement with the view of the majority that the Constitution does not prohibit the filing in the Senate of a substitute bill in anticipation of its receipt of the bill from the House so long as action by the Senate as a body is withheld pending receipt of the House bill, thereby stating, in effect, that S.B. No. 1129 was such an anticipatory substitute bill, which, nevertheless, does not seem to have been considered by the Senate except only after its receipt of H.B. No. 1179 on 23 November 1993 when the process of legislation in respect of it began with a referral to the Senate Committee on Ways and Means. Firstly, to say that the Constitution does not prohibit it is to render meaningless Section 24 of Article VI or to sanction its blatant disregard through the simple expedient of filing in the Senate of a so-called anticipatory substitute bill. Secondly, it suggests that S.B. No. 1129 was filed as an anticipatory measure to substitute for H.B. No. 11179. This is a speculation which even the author of S.B. No. 1129 may not have indulged in. S.B. No. 1129 was filed in the Senate by Senator Herrera on 1 March 1993. H.B. No. 11197 was approved by the House on third reading only on 17 November 1993. Frankly, I cannot believe that Senator Herrera was able to prohesy that the House would pass any VAT bill, much less to know its provisions. That "it does not seem that the Senate even considered" the latter not until after its receipt of H.B. No. 11179 is another speculation. As stated earlier, S.B. No. 1129 was filed in the Senate on 1 March 1993, while H.B. No. 11197 was transmitted to the Senate only on 18 November 1993. There is no evidence on record to show that both were referred to the Senate Committee on Ways and Means at the same time. Finally, in respect of H.B. No. 11197, its legislative process did not begin with its referral to the Senate’s Ways and Means Committee. It began upon its filing, as a Committee Bill of the House Committee on Ways and Means, in the House. Second violation. — Since SB No. 1129 is a revenue measure, it could not even be validly introduced or initiated in the Senate. It follows too, that the Senate cannot validly act thereon. Third violation. — Since SB No. 1129 could not have been validly introduced in the Senate and could not have been validly acted on by the Senate, then it cannot be substituted by another revenue measure, SB No. 1630, which the Senate Committee on Ways and Means introduced in substitution of SB No. 1129. The filing or introduction in the Senate of SB No. 1630 also violated Section 24, Article VI of the Constitution.

VIOLATIONS OF SECTION 26(2), ARTICLE VI OF THE CONSTITUTION:chanrob1es virtual 1aw library First violation. — The Senate, despite its lack of constitutional authority to consider SB No. 1630 or SB No. 1129 which the former substituted, opened deliberations on second reading of SB No. 1630 on 8 February 1994. On 24 March 1994, the Senate approved it on second reading and on third reading. 30 That approval on the same day violated Section 26 (2), Article VI of the Constitution. The justification therefor was that on 24 February 1994 the President certified to "the necessity of the enactment of SB No. 1630 . . . to meet a public emergency." 31 I submit, however, that the Presidential certification is void ab initio not necessarily for the reason adduced by petitioner Kilosbayan, Inc., but because it was addressed to the Senate for a bill which is prohibited from originating therein. The only bill which could be properly certified on permissible constitutional grounds even if it had already been transmitted to the Senate is HB No. 11197. As earlier observed, this was not so certified, although HB No. 9210 (one of those consolidated into HB No. 11197) was certified on 1 June 1993. 32 Also, the certification of SB No. 1630 cannot, by any stretch of the immigration, be extended to HB No. 11197 because SB No. 1630 did not substitute HB No. 11197 but SB No. 1129. Considering that the certification of SB No. 1630 is void, its approval on second and third readings in one day violated Section 26 (2), Article VI of the Constitution. Second violation. — It further appears that on 24 June 1994, after the approval of SB No. 1630, the Secretary of the Senate, upon directive of the Senate President, formally notified the House Speaker of the Senate’s approval of thereof and its request for a bicameral conference "in view of the disagreeing provisions of said bill and House Bill No. 11197." 33 It must be stressed again that HB No. 11197 was never submitted for or acted on second and third readings in the Senate, and SB No. 1630 was never sent to the House for its concurrence. Elsewise stated, both were only half-way through the legislative mill. Their submission to a conference committee was not only anomalously premature, but violative of the constitutional rule on three readings. The suggestion that SB No. 1630 was not required to be submitted to the House for otherwise the procedure would be endless, is unacceptable for, firstly, it violates Section 26, Rule XII of the Rules of the Senate and Section 85, Rule XIV of the Rules of the House, and, secondly, it is never endless. If the chamber of origin refuses to accept the amendments of the other chamber, the request for conference shall be made. VIOLATIONS OF THE RULES OF BOTH CHAMBERS; GRAVE ABUSE OF DISCRETION. The erroneous referral to the conference committee needs further discussion. Since S.B. No. 1630 was not a substitute bill for H.B. No. 11197 but for S.B. No. 1129, it (S.B. No. 1630) remained a bill which originated in the Senate. Even assuming arguendo that it could be validly initiated in the Senate, it should have been first transmitted to the House where it would undergo three readings. On the other hand, since HB No. 11197 was never acted upon by the

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Senate on second and third readings, no differences or inconsistencies could as yet arise so as to warrant a request for a conference. It should be noted that under Section 83, Rule XIV of the Rules of the House, it is only when the Senate shall have approved with amendments HB No. 11197 and the House declines to accept the amendments after having been notified thereof that the request for a conference may be made by the House, not by the Senate. Conversely, the Senate’s request for a conference would only be proper if, following the transmittal of SB No. 1630 to the House, it was approved by the latter with amendments but the Senate rejected the amendments.chanrobles.com : virtual law library Indisputably, when the request for a bicameral conference was made by the Senate, SB No. 1630 was not yet transmitted to the House for consideration on three readings and HB No. 11197 was still in the Senate awaiting consideration on three readings and HB no. 11197 was still in the Senate awaiting consideration on second and third readings. Their referral to the bicameral conference committee was palpably premature and, in so doing, both the Senate and the House acted without authority or with grave abuse of discretion. Nothing, and absolutely nothing, could have been validly acted upon by the bicameral conference committee. GRAVE ABUSE OF DISCRETION COMMITTED BY THE BICAMERAL CONFERENCE COMMITTEE. Serious irregularities amounting to lack of jurisdiction or grave abuse of discretion were committed by the bicameral conference committee. First, it assumed, and took for granted that SB No. 1630 could validly originate in the Senate. This assumption is erroneous. Second, it assumed that HB No. 11197 and SB No. 1630 had properly passed both chambers of Congress and were properly and regularly submitted to it. As earlier discussed, the assumption is unfounded in fact. Third, per the bicameral conference committee’s proceedings of 19 April 1994, Representative Exequiel Javier, Chairman of the panel from the House, initially suggested that HB No. 11197 should be the "frame of reference," because it is a revenue measure, to which Senator Ernesto Maceda concurred. However, after an incompletely recorded reaction of Senator Ernesto Herrera, Chairman of the Senate panel, Representative Javier seemed to agree that "all amendments will be coming from the Senate." The issue of what should be the "frame of reference" does not appear to have been resolved. These facts are recorded in this wise, as quoted in the Consolidated Memorandum for Respondents: 34 "CHAIRMAN JAVIER. First of all, what would be the basis, no, or framework para huwag naman mawala yung personality namin dito sa bicameral, no, because the bill originates from the House because this is a revenue bill, so we would just want to ask, we make the House Bill as the frame of reference, and then everything will just be inserted? HON. MACEDA. Yes. That’s true for every revenue measure. There’s no other way. The House Bill has got to be the base. Of course, for the record, we know that this is an administration; this is certified by

the President and I was about to put into the records as I am saying now that your problem about the impact on prices on the people was already decided when the President and the administration sent this to us and certified it. They have already gotten over that political implication of this bill and the economic impact on prices. CHAIRMAN HERRERA. Yung concern mo about the bill as the reference in this discussion is something that we can just . . . CHAIRMAN JAVIER. We will just . . . all the amendments will be coming from the Senate. (BICAMERAL CONFERENCE ON MAJOR DIFFERENCES BETWEEN HB No. 11197 AND SB No. 1630 [Cte. on Ways & Means] APRIL 19, 1994, Ii-6 and II-7; Emphasis supplied)" These exchanges would suggest that Representative Javier had wanted HB No. 11197 to be the principal measure on which reconciliation of the differences should be based. However, since the Senate did not act on this Bill on second and third readings because its Committee on Ways and Means did not deliberate on it but instead proposed SB No. 1630 in substitution of SB No. 1129, the suggestion has no factual basis. Then, when finally he agreed that "all amendments will be coming from the Senate," he in fact withdrew the former suggestion and agreed that SB No. 1630, which is the Senate version of the Value Added Tax (VAT) measure, should be the "frame of reference." But then SB no. 1630 was never transmitted to the House for the latter’s concurrence. Hence, it cannot serve as the "frame of reference" or as the basis for deliberation. The posture taken by Representative Javier also indicates that SB No. 1630 should be taken as the amendment to HB No. 11197. This, too, is unfounded because SB No. 1630 was not proposed in substitution of HB No. 11197. Since the SB No. 1630 did not pass three readings in the House and HB No. 11197 did not pass second and third readings in the Senate, it logically follows that no disagreeing provisions had as yet arisen. The bicameral conference committee erroneously assumed the contrary. Even granting arguendo that both HB No. 11197 and SB No. 1630 had been validly approved by both chambers of Congress and validly referred to the bicameral conference committee, the latter had very limited authority thereon. It was created "in view of the disagreeing provisions of" the two bills. 35 Its duty was limited to the reconciliation of disagreeing provisions or the resolution of differences or inconsistencies. The committee recognized that limited authority in the opening paragraph of its Report 36 when it said:jgc:chanrobles.com.ph "The Conference Committee on the disagreeing provisions of House Bill No. 11197 . . . and Senate Bill No. 1630 . . ."cralaw virtua1aw library Under such limited authority, it could only either (a) restore, wholly or partly, the specific provisions of HB No. 11197 amended by SB No. 1630, (b) sustain, wholly or partly, the Senate’s amendments, or (c) by way of a compromise, to agree that neither provisions in HB No. 11197 amended by the Senate nor the latter’s amendments thereto be carried into the final form of the former. But as pointed out by petitioners Senator Raul Roco and Kilosbayan, Inc., the bicameral

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conference committee not only struck out non-disagreeing provisions of HB No. 11197 and SB No. 1630, i.e., provisions where both bills are in full agreement; it added more activities or transactions to be covered by VAT, which were not within the contemplation of both bills. Since both HB No. 11197 and SB No. 1630 were still half-cooked in the legislative vat, and were not ready for referral to a conference, the bicameral conference committee clearly acted without jurisdiction or with grave abuse of discretion when it consolidated both into one bill which became R.A. No. 7716. APPROVAL BY BOTH CHAMBERS OF CONFERENCE COMMITTEE REPORT AND PROPOSED BILL DID NOT CURE CONSTITUTIONAL INFIRMITIES. I cannot agree with the suggestion that since both the Senate and the House had approved the bicameral conference committee report and the bill proposed by it in substitution of HB No. 11197 and SB No. 1630, whatever infirmities may have been committed by it were cured by ratification. This doctrine of ratification may apply to minor procedural flaws or tolerable breachs of the parameters of the bicameral conference committee’s limited powers but never to violations of the Constitution. Congress is not above the Constitution. In the instant case, since SB No. 1630 was introduced in violation of Section 24, Article VI of the Constitution, was passed in the Senate in violation of the "three readings" rule, and was not transmitted to the House for the completion of the constitutional process of legislation, and HB No. 11197 was not likewise passed by the Senate on second a third readings, neither the Senate nor the House could validly approve the bicameral conference committee report and the proposed bill. In view of the foregoing, the conclusion is inevitable that for non-compliance with mandatory provisions of the Constitution and of the Rules of the Senate and of the House on the enactment of laws, R.A. No. 7716 is unconstitutional and, therefore, null and void. A discussion then of the intrinsic validity of some of its provisions would be unnecessary. The majority opinion, however, invokes the enrolled bill doctrine and wants this Court to desist from looking behind the copy of the assailed measure as certified by the Senate President and the Speaker of the House. I respectfully submit that the invocation is misplaced. First, as to the issue of origination, the certification in this case explicitly states that R.A. No. 7716 is a "consolidation of House Bill No. 11197 and Senate Bill No. 1630." This is conclusive evidence that the measure did not originate exclusively in the House. Second, the enrolled bill doctrine is of American origin, and unquestioned fealty to it may no longer be justified in view of the expanded jurisdiction 37 of this Court under Section 1, Article VIII of our Constitution which now expressly grants authority to this Court to:jgc:chanrobles.com.ph "determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." chanrobles virtual lawlibrary Third, even under the regime of the 1935 Constitution which did not contain the above provision, this Court, through Mr. Chief Justice Makalintal, in Astorga v. Villegas, 38 declared that it cannot be truly said that Mabanag v. Lopez Vito 39 has laid to rest the question of whether the enrolled bill doctrine or the journal entry rule should be adhered to in this jurisdiction, and stated; "As far as Congress itself is concerned, there is nothing sacrosanct in the certification made by the presiding officers. It is merely a mode of authentication. The lawmaking process in

Congress ends when the bill is approved by both Houses, and the certification does not add to the validity of the bill or cure any defect already present upon its passage. In other words, it is the approval of Congress and not the signatures of the presiding officers that is essential. Thus the (1935) Constitution says that ‘[e]very bill passed by the Congress shall, before it becomes law, be presented by the Congress shall, before it becomes law, be presented to the President.’ In Brown v. Morris, supra, the Supreme Court of Missouri, interpreting a similar provision in the State Constitution, said that the same ‘makes it clear that the indispensable step in the passage’ and it follows that if a bill, otherwise fully enacted as a law, is not attested by the presiding officer, other proof that it has ‘passed both houses will satisfy the constitutional requirement.’" Fourth, even in the United States, the enrolled bill doctrine has been substantially undercut. This is shown in the disquisitions of Mr. Justice Reynato S. Puno in his dissenting opinion, citing Sutherland, Statutory Construction.

at bench is as much a test for the legislature as it is for the Judiciary. A backward glance on the Value Added Tax (VAT) is in order at this point. The first codification of the country’s internal revenue laws was effected with the enactment of Commonwealth Act No. 466, commonly known as the ‘National Internal Revenue Code’ which was approved on June 15, 1939 and took effect on July 1, 1939, although the provisions on the income tax were made retroactive to January 1, 1939. "Since 1939 when the turnover tax was prelaced by the manufacture’s sales tax, the Tax Code had provided for a single-stage value-added tax on original sales by manufacturers, procedures and importers computed on the ‘cost deduction method’ and later, on the basis of the ‘tax credit method.’ The turnover tax was re-introduced in 1985 by Presidential Decree No. 1991 (as amended by Presidential Decree No. 2006)." 1

Last, the pleadings of the parties have established beyond doubt that HB No. 11197 was not acted on second and third readings in the Senate and SB No. 1630, which was approved by the Senate on second and third readings in substitution of SB No. 1129, was never transmitted to the House for its passage. Otherwise stated, they were only passed in their respective chamber of origin but not in the other. In no way cano each become a law under paragraph 2, Section 26, Article VI of the Constitution. For the Court to close its eyes to this fact because of the enrolled bill doctrine is to shirk its duty to hold "inviolate what is decreed by the Constitution." 40

In 1986, a tax reform package was approved by the Aquino Cabinet. It contained twenty-nine measures, one of which proposed the adoption of the VAT, as well as the simplification of the sales tax structure and the abolition of the turnover tax.

I vote then to GRANT these petitions and to declare R.A. No. 7716 as unconstitutional.

On July 25, 1987, President Corazon C. Aquino signed into law Executive Order No. 273 which adopted the VAT. From the former single-stage value-added tax, it introduced the multi-stage VAT system where "the value-added tax is imposed on the sale of and distribution process culminating in sale, to the final consumer. Generally described, the taxpayer (the seller) determines his tax liability by computing the tax on the gross selling price or gross receipt ("output tax") and subtracting or crediting the earlier VAT on the purchase or importation of goods or on the sale of service ("input tax") against the tax due on his own sale." 3

ROMERO, J., dissenting:chanrob1es virtual 1aw library Few issues brought before this Court for resolution have roiled the citizenry as much as the instant case brought by nine petitioners which challenges the constitutionality of Republic Act No. 7716 (to be referred to herein as the "Expanded Value Added Tax" or EVAT law to distinguish it from Executive Order No. 273 which is the VAT law proper) that was enacted on May 5, 1994. A visceral issue, it has galvanized the populace into mass action and strident protest even as the EVAT proponents have taken to podia and media in a post facto information campaign.chanrobles virtual lawlibrary The Court is confronted here with an atypical case. Not only is it a vatful of seething controversy but some unlikely petitioners invoke unorthodox remedies. Three Senatorpetitioners would nullify a statute that bore the indispensable stamp of approval of their own Chamber with two of them publicly repudiating what they had earlier endorsed. With two former colleagues, one of them an erstwhile Senate President, making common cause with them, they would stay the implementation by the Executive Department of a law which they themselves have initiated. They address a prayer to a co-equal Department to probe their official acts for any procedural irregularities they have themselves committed lest the effects of these aberrations inflict such damage or irreparable loss as would bring down the wrath of the people on their heads. To the extent that they perceive that a vital cog in the internal machinery of the Legislature has malfunctioned from having operated in blatant violation of the enabling Rules they have themselves laid down, they would now plead that this other Branch of Government step in, invoking the exercise of what is at once a delicate and awesome power. Undoubtedly, the case

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"Up until 1987, the system of taxing goods consisted of (a) an excise tax on certain selected articles (b) fixed and percentage taxes on original and subsequent sales, on importations and on milled articles and (c) mining taxes on mineral products. Services were subjected to percentage taxes based mainly on gross receipts." 2

On January 1, 1988, implementing rules and regulations for the VAT were promulgated. President Aquino then issued Proclamation No. 219 on February 12, 1988 urging the public and private sectors to join the nationwide consumers’ education campaign for VAT. Soon after the implementation of Executive Order No. 273, its constitutionality was assailed before this Court in the case of Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc., Et. Al. v. Tan. 4 The four petitioners sought to nullify the VAT law "for being unconstitutional in that its enactment is not allegedly within the powers of the President; that the VAT is oppressive, discriminatory, regressive, and violates the due process and equal protection clauses and other provisions of the 1987 Constitution." 5 In dismissing the consolidated petitions, this Court stated:jgc:chanrobles.com.ph "The Court, following the time-honored doctrine of separation of powers cannot substitute its judgment for that of the President as to the wisdom, justice and advisability of the VAT. The Court can only look into and determine whether or not Executive Order No. 273 was enacted and made effective as law, in the manner required by and consistent with, the Constitution, and to make sure that it was not issued in grave abuse of discretion amounting to lack of excess of jurisdiction; and, in this regard, the Court find no reason to impede its application or continued implementation." 6

and voted upon with 114 Yeas and Nays November 17, 1993 Although declared constitutional, the VAT law was sought to be amended from 1992 on by a series of bills filed in both Houses of Congress. In chronological sequence, these were:chanrob1es virtual 1aw library

HB No. 11197 was transmitted to the Senate November 18, 1993 Committee on Ways and Means

HB/SB No. Date Filed in Congress submitted Com. Report No. 349 HB No. 253 July 22, 1992 recommending for approval SB HB No. 771 August 10, 1992 No. 1630 in substitution of SB HB No. 2450 September 9, 1992 No. 1129, taking into consideration Senate Res. No. 734 7 September 10, 1992 HB No. 7033 February 3, 1993

PS Res. No. 734 and HB No. 11197 11 February 7, 1994 - Certification by President Fidel V. Ramos

HB No. 1129 8 March 1, 1993

of Senate Bill No. 1630 for immediate

HB No. 8086 March 9, 1993

enactment to meet a public emergency March 22, 1994 - SB No. 1630 was approved by the Senate

HB No. 9030 March 11, 1993 on second and third readings and HB No. 9210 9 May 19, 1993 subsequently vote upon with 13 yeas, HB No. 9297 May 25, 1993 none against and one abstention March 24, 1994 - Transmittal by the Senate to the Lower HB No. 10012 July 28, 1993 House of a request for a conference HB No. 11197 in substitution in view of disagreeing provisions of of HB Nos. 253, 771, SB No. 1630 and HB No. 11197 March 24, 1994 - The Bicameral Conference Committee 2450, 7033, 8086, 9030, conducted various meetings to reconcile 9210, 9297, 10012 and the proposals on the VAT April 13, 19, 20, 21,25cralaw:red 10100 10 November 5, 1993 The House agreed on the Conference We now trace the course taken by H.B. No. 11197 and S.B. No. 1129. Committee Report April 27, 1994 - The Senate agreed on the Conference HB/SB No. Committee Report May 2, 1994 - The President signed Republic Act HB No. 11197 was approved in the No. 7716 — The Expanded Lower House on second reading November 11, 1993 VAT Law 12 May 5, 1994 - Republic Act No. 7716 was published HB No. 11197 was approved in the in two newspapers of general Lower House on third reading circulation May 12, 1994 - Republic Act No. 7716 became effective May 28, 1994 - Republic

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Act No. 7716 merely expanded the base of the VAT law even as the tax retained its multistage character.chanroblesvirtual|awlibrary At the oral hearing held on July 7, 1994, this Court delimited petitioners’ argument to the following culled from their respective petitions. PROCEDURAL ISSUES Does Republic Act No. 7716 violate Article VI, Section 24, of the Constitution? 13 Does it violate Article VI, Section 26, paragraph 2, of the Constitution? 14

This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter exhibit its wonted reticence by claiming that such matters constitute a political question." 22 In the instant petitions, this Court is called upon, not so much to exercise its traditional power of judicial review as to determine whether or not there has indeed been a grave abuse of discretion on the part of the Legislature amounting to lack or excess of jurisdiction. Where there are grounds to resolve a case without touching on its constitutionality, the Court will do so with utmost alacrity in due deference to the doctrine of separation of powers anchored on the respect that must be accorded to the other branches of government which are coordinate, coequal and, as far as practicable, independent of one another.

What is the extent of the power of the Bicameral Conference Committee? SUBSTANTIVE ISSUES Does the law violate the following provisions in Article III (Bill of Rights) of the Constitution:chanrob1es virtual 1aw library

Once it is palpable that the constitutional issue is unavoidable, then it is time to assume jurisdiction, provided that the following requisites for a judicial inquiry are met: that there must be an actual and appropriate case; a personal and substantial interest of the party raising the constitutional question; the constitutional question must be raised at the earliest possible opportunity and the decision of the constitutional question must be necessary to the determination of the case itself, the same being the lis mota of the case. 23

1. Section 1 15 2. Section 4 16

Having assured ourselves that the above-cited requisites are present in the instant petitions, we proceed to take them up.

3. Section 5 17

ARTICLE VI, SECTION 24

4. Section 10 18

Some petitioners assail the constitutionality of Republic Act No. 7716 as being in violation of Article VI, Section 24 of the Constitution which provides:jgc:chanrobles.com.ph

Does the law violate the following other provisions of the Constitution? 1. Article VI, Section 28, paragraph 1 19

"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."cralaw virtua1aw library

2. Article VI, Section 28, paragraph 3 20 In G.R. Nos. 115455 and 115781, petitioners argue:chanrob1es virtual 1aw library As a result of the unedifying experience of the past where the Court had the propensity to steer clear or questions it perceived to be "political" in nature, the present Constitution, in contract, has explicitly expanded judicial power to include the duty of the courts, especially the Supreme Court, "to determine whether or not there has been a grave abuse of discretion amounting to lack of excess of jurisdiction on the part of any branch or instrumentality of the Government." 21 I submit that under this explicit mandate, the Court is empowered to rule upon acts of other Government entitles for the purpose of determining whether there may have been, in fact, irregularities committed tantamount to violation of the Constitution, which case would clearly constitute a grave abuse of discretion on their part.chanroblesvirtual|awlibrary In the words of the sponsor of the above-quoted Article of the Constitution on the Judiciary, the former Chief Justice Roberto R. Concepcion, "the judiciary is the final arbiter on the question of whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature.

(a) The bill which became Republic Act No. 7716 did not originate exclusively in the House of Representatives. The Senate, after receiving H.B. No. 11197, submitted its own bill, S.B. No. 1630, and proceeded to vote and approve the same after second the third readings.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph (b) The Senate exceeded its authority to "propose or concur with amendments" when it submitted its own bill, S.B. No. 1630, recommending its approval "in substitution of S.B. No. 1129, taking into consideration P.S. Res. No. 734 and H.B. No. 11197."cralaw virtua1aw library (c) H.B. No. 11197 was not deliberated upon by the Senate. Neither was it voted upon by the Senate on second and third readings, as what was voted upon was S.B. No. 1630. Article VI, Section 24 is taken word for word from Article VI, Section 18 of the 1935 Constitution which was, in turn, patterned after Article 1, Section 7 (1) of the Constitution of the United States, which states:jgc:chanrobles.com.ph "All bills for raising revenue shall originate in the House of Representatives, but the Senate

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may propose of concur with amendments as on other bills."cralaw virtua1aw library

Resolution No. 38 and later of Resolution No. 73." 25 (Emphasis supplied)

The historical precedent for requiring revenue bills to originate the Congress is explained in the U.S. case of Morgan v. Murray: 24

Thus, the present Constitution is identically worded as its 1935 precursor: "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." (Emphasis supplied)

"The constitutional requirement that all bills for raising revenue shall originate in the House of Representatives stemmed from a remedial outgrowth of the historic conflict between Parliament (i.e., Commons) and the Crown, whose ability to dominate the monarchially appointive and hereditary Lords was patent. See 1 Story, Constitution, S 875 et seq., 5th Ed.; 1 Cooley, Constitutional Limitations, pp. 267, 268, 8th Ed., 1 Sutherland, Statutory Construction, S 806, 3d Ed. There was a measure of like justification for the insertion of the provision of article 1, S 7, cl. 1, of the Federal Constitution. At that time (1787) and thereafter until the adoption (in 1913) of the Seventeenth Amendment providing for the direct election of senators, the members of the United Senate were elected for each state by the joint vote of both houses of the Legislature of the respective states, and hence, were removed from the people. . . ."cralaw virtua1aw library The legislative authority under the 1935 Constitution being unicameral, in the form of the National Assembly, it served no purpose to include the subject provision in the draft submitted by the 1934 Constitution Convention to the Filipino people for ratification. In 1940, however, the Constitution was amended to establish a bicameral Congress of the Philippines composed of a House of Representatives and a Senate. In the wake of the creation of a new legislative machinery, new provisions were enacted regarding the law-making power of Congress. The National Assembly explained how the final formulation of the subject provision came about:jgc:chanrobles.com.ph "The concurrence of both houses would be necessary to the enactment of a law. However, all appropriation, revenue or tariff bills, bills authorizing an increase of the public debt, bills of local application, and private bills, should originate exclusively in the House of Representatives, although the Senate could propose or concur with amendments. In one of the first drafts of the amendments, it was proposed to give both houses equal powers in lawmaking. There was, however, much opposition on the part of several members of the Assembly. In another draft, the following provision, more restrictive than the present provision in the amendment, was proposed and for sometime was seriously considered:chanrob1es virtual 1aw library ‘All bills appropriating public funds, revenue of 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 sessions 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.’ However, the special committee voted finally to report the present amending provision as it is now worded; and in that form it was approved by the National Assembly with the approval of

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That all revenue bills, such as Republic Act No. 7716, should "originate exclusively in the House of Representatives" logically flows from the more representatives and broadly-based character of this Chamber. "It is said that the House of Representatives being the more popular branch of the legislature, being closer to the people, and having more frequent contacts with them then the Senate, should have the privilege of taking the initiative in the proposals of revenue and tax projects, the disposal of the people’s money, and the contracting of public indebtedness. These powers of initiative in the raising and spending of public funds enable the House of Representatives not only to implement but even to determine the fiscal policies of the government. They place on its shoulders much of the responsibility of solving the financial problems of the government, which are so closely related to the economic life of the country, and of deciding on the proper distribution of revenues for such uses as may best advance public interests." 26 The popular nature of the Lower House has been more pronounced with the inclusive of Presidentially-appointed sectoral representatives, as provided in Article VI, Section 5 (2), of the Constitution, thus: "The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector." (Emphasis supplied) This novel provision which was implemented in the Batasang Pambansa during the martial law regime 27 was eventually incorporated in the present Constitution in order to give those from the marginalized and often deprive sector, an opportunity to have their voices heard in the halls of the Legislature, thus giving substance and meaning to the concept of "people empowerment."cralaw virtua1aw library That the Congressmen indeed have access to, and consult their constituencies has been demonstrated often enough by the fact that even a House bill has been transmitted to the Senate for concurrence, some Congressmen have been known to express their desire to change their earlier official position or reverse themselves after having heard their constituents’ adverse reactions to their representations. In trying to determine whether the mandate of the Constitution with regard to the initiation of revenue bills has been preserved inviolate, we have recourse to the tried and tested method of definition of terms. The term "originate" is defined by Webster’s New International Dictionary (3rd Edition, 1986) as follows: "v.i., to come into being; begin; to start."cralaw virtua1aw library On the other hand, the world "exclusively" is defined by the same Webster’s Dictionary as "in

an exclusive manner, to the exclusive of all others; only; as, it is his, exclusively." Black’s Law Dictionary has this definition: "apart from all others; only; solely; substantially all or for the greater part. To the exclusion of all others; without admission of others to participation; in a manner to exclude. Standard Oil Co. of Texas v. State, Tex. Civ. App., 142 S.W. 2d 519, 521, 522, 523."cralaw virtua1aw library

matter. Obviously, bills amendatory of VAT did not originate solely in the House of the exclusion of all others for there were P.S. Res. No. 734 filed in the Senate on September 10, 1992 followed by Senate Bill No. 1129 which was filed on March 1, 1993. About a year later, this was substituted by Senate Bill No. 1630 that eventually became the EVAT law, namely, Republic Act No. 7716.chanrobles law library

This Court had occasion to define the term "exclusive" as follows:jgc:chanrobles.com.ph

Adverting to the passage of the amendatory VAT bills in the Lower House, it is to be noted that House Bill No. 11197 which substituted all the prior bills introduced in said House complied with the required readings, that is, the first reading consisting of the reading of the title and referral to the appropriate Committee, approval on second reading on November 11, 1993 and on third reading on November 17, 1993 before being finally transmitted to the Senate. In the Senate, its identity was preserved and its provisions were taken into consideration when the Senate Committee on Ways and Means submitted Com. Report No. 349 which recommended for approval "S.B. No. 1630 in substitution of S.B. No. 1129, taking into consideration P. S. Res. No. 734 and H.B. No. 11197." At this stage, the subject bill may be considered to have passed first reading in the Senate with the submission of said Committee Report No. 349 by the Senate Committee on Ways and Means to which it had been referred earlier. What remained, therefore, was no longer House Bill No. 11197 but Senate Bill No. 1630. Thence, the Senate, instead of transmitting the bill to the Lower House for its concurrence and amendments, if any, took a "shortcut," bypassed the Lower House and instead, approved Senate Bill No. 1630 on both second and third readings on the same day, March 24, 1994.

". . . In its usual and generally accepted sense, the term means possessed to the exclusive of others; appertaining to the subject alone; not including, admitting or pertaining to another or others; undivided, sole." 28 When this writer, during the oral argument of July 7, 1994, asked the petitioner in G.R. No. 11455 whether he considers the word "exclusively" to be synonymous with "solely," he replied in the affirmative. 29 A careful examination of the legislative history traced earlier in this decision shows that the original VAT law, Executive Order No. 273, was sought to be amended by ten House bill which finally culminated in House Bill No. 11197, as well as two Senate bills, It is to be noted that the first House Bill No. 253 was filed on July 22, 1992, and two other House bills followed in quick succession on August 10 and September 9, 1992 before a Senate Resolution, namely, Senate Res. No. 734, was filed on September 10, 1992 and much later, a Senate Bill proper, viz., Senate Bill No. 11129 on March 1, 1993. Undoubtedly, therefore, these bills originated or had their start in the House and before any Senate bill amending the VAT law was filed. In point of time and venue, the conclusion is ineluctable that Republic Act No. 7716, which is indisputably a revenue measure, originated in the House of Representatives in the form of House Bill No. 253, the firs EVAT bill. Additionally, the content and substance of the ten amendatory House Bills filed over the roughly one-year period from July 1992 to August 1993 reenforce the position that these revenue bills, pertaining as they do, to Executive Order No. 273, the prevailing VAT law, originated in the Lower House. House Bill Nos. 253, 771, 2450, 7033, 8086, 9030, 9210, 9297, 10012 and 10100 were intended to restructure the VAT system by exempting or imposing the tax on certain items or otherwise introducing reforms in the mechanics of implementation. 30 Of these, House Bill No. 9210 was favored with a Presidential certification on the need for its immediate enactment to meet a public emergency. Easily the most comprehensive, it noted that the revenue performance of the VAT, being far from satisfactory since the collections have always fallen short of projections, "the system is rendered inefficient, inequitable and less comprehensive." Hence, the Bill proposed several amendments designed to widen the tax base of the VAT and enhance its administration. 31 That House Bill No. 11197 being a revenue bill, originated from the Lower House was acknowledged, in fact was virtually taken for granted, by the Chairman of the Committee on Ways and Means of both the House of Representatives and the Senate. Consequently, at the April 19, 1994 meeting of the Bicameral Conference Committee, the Members agreed to make the House Bill as the "frame of reference" or "base" of the discussions of the Bicameral Conference Committee with the "amendments" or "insertions to emanate from the senate." 32 As to whether the bills originated exclusively in the Lower House is altogether a different

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The first irregularity, that is, the failure to return Senate Bill No. 1630 to the Lower House for its approval is fatal inasmuch as the other chamber of legislature was not afforded the opportunity to deliberate and make known its views. It is no idle dictum that no less than the Constitution ordains: "The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives. . ." 33 (Emphasis supplied) It is to be pointed out too, that inasmuch as Senate Bill No. 1630 which had "taken into consideration" House Bill No. 11197 was not the Lower House for deliberation, the later Chamber had no opportunity at all to express its views thereon or to introduce any amendment. The customary practice is, after the Senate has considered the Lower House Bill, it returns the same to the House of origin with its amendments. In the event that there may be any differences between the two, the same shall then be referred to a Conference Committee composed of members from both Chambers which shall then proceed to reconcile said differences. In the instant case, the Senate transmitted to the Lower House on March 24, 1994, a letter informing the latter that it had "passed S. No. 1630 entitled . . . (and) in view of the disagreeing provisions of said bill and House Bill No. 11197, entitled . . . the Senate requests a conference . . ." This, in spite of the fact that Com. Report No. 349 of the Senate Committee on Ways and Means had already recommended for approval on February 7, 1994 "S.B. No. 1630 . . . taking into consideration H.B. No. 11197." Clearly, the Conference Committee could only have acted upon Senate Bill No. 1630, for House Bill No. 11197 had already been fused into the former. At the oral hearing of July 7, 1994, petitioner in G.R. No. 115455 admitted, in response to this writer’s query, that he had attempted to rectify some of the perceived irregularities by presenting a motion in the Senate recall the bill from the Conference Committee so that it could revert to the period of amendment, but he was outvoted, in fact "slaughtered." 34

In accordance with the Rules of the House of Representatives and the Senate, Republic Act No. 7716 was duly authenticated after it was signed by the President of the Senate and the Speaker of the House of Representatives followed by the certifications of the Secretary of the Senate and the Acting Secretary General of the House of Representatives. 35 With the signature of President Fidel V. Ramos under the words "Approved: 5 May 1994," it was finally promulgated. Its legislative journey ended, Republic Act No. 7716 attained the status of an enrolled bill which is defined as one "which has been duly introduced, finally passed by both houses, signed by the proper officers of each, approved by the governor (or president) and filed by the secretary of state." 36 Stated differently:jgc:chanrobles.com.ph "It is a declaration by the two houses, through their presiding officers, to the president, that a bill, thus attested, has received in due form, the sanction of the legislative branch of the government, and that it is delivered to him in obedience to the constitutional requirement that all bills which pass Congress shall be presented to him. And when a bill, thus attested, receives his approval, and is deposited in the public archives, its authentication as a bill that has passed Congress should be deemed complete and unimpeachable. As the President has no authority to approve a bill not passed by Congress, an enrolled Act in the custody of the Secretary of State, and having the official attestations of the Speaker of the House of Representatives, of the President of the Senate, and of the President of the United States, carries, on its face, a solemn assurance by the legislative and executive departments of the government, charged, respectively, with the duty of enacting and executing the laws, that it was passed by Congress. The respect due to coequal and independent departments requires the judicial department to act upon that assurance, and to accept, as having passed Congress, all bills authenticated in the manner stated; leaving the courts to determine, when the question properly arises, whether the Act, so authenticated, is in conformity with the Constitution." 37 The enrolled bill assumes importance when there is some variance between what actually transpired in the halls of Congress, as reflected in its journals, and as shown in the test of the law as finally enacted. But suppose the journals of either or both Houses fail to disclose that the law was passed in accordance with what was certified to by their respective presiding officers and the President. Or that certain constitutional requirements regarding its passage were not observed, as in the instant case. Which shall prevail: the journal or the enrolled bill? A word on the journal. "The Journal is the official record of the acts of legislative body. It should be a true record of the proceedings arranged in chronological order. It should be a record of what is done rather than what is said. The journal should be a clear, concise, unembellished statement of all proposals made and all actions taken complying with all requirements of constitutions, statutes, charters of rules concerning what is to be recorded and how it is to be recorded." 38 Article VI, Section 16 (4) of the Constitution ordains:jgc:chanrobles.com.ph "Each house shall keep a Journal of its proceedings, and from time to time publish the same, excepting such parts as may, in its judgment, affect national security; and the yeas and nays on any question shall, at the request of one-fifth of the Members present, be entered in the Journal.

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Each House shall also keep a Record of its proceedings." (Emphasis supplied) The rationale behind the above provision and of the "journal entry rule" is as follows:jgc:chanrobles.com.ph "It is apparent that the object of this provision is to make the legislature show what it has done, leaving nothing whatever to implication. And, when the legislature says what it has done, with regard to the passage of any bill, it negatives the idea that it has done anything else in regard thereto. Silence proves nothing where one is commanded to speak . . . Our constitution commands certain things to be done in regard to the passage of a bill, and says that no bill shall become a law unless these things are done. It seems a travesty upon our supreme law to say that it guaranties to the people the right to have their laws made in this manner only, and that there is no way of enforcing this right, or for the court to say that this is law when the constitution says it is not law. There is one safe course which is in harmony with the constitution, and that is to adhere to the rule that the legislature must show, as commanded by the constitution, that it has done everything required by the constitution to be done in the serious and important matter of making laws. This is the rule of evidence provided by the constitution. It is not presumptuous in the courts, nor disrespectful to the legislature, to judge the acts of the legislature by its own evidence." 39 Confronted with a discrepancy between the journal proceedings and the law as duly enacted, courts have indulged in different theories. The "enrolled bill" and "journal entry" rules, being rooted deep in the Parliamentary practices of England where there is no written constitution, and then transplanted to the United States, it may be instructive to examine which rule prevails in the latter country through which, by a process of legislative osmosis, we adopted them in turn. "There seems to be three distinct and different rules as applicable to the enrolled bill recognized by the various courts of this country. The first of these rules appears to be that the enrolled bill is the ultimate proof and exclusive and conclusive evidence that the bill passed the legislature in accordance with the provisions of the Constitution. Such has been the holding in California, Georgia, Kentucky, Texas, Washington, New Mexico, Mississippi, Indiana, South Dakota, and may be some others. The second of the rules seems to be that the enrolled bill is a verity and resort cannot be had to the journals of the Legislature to show that the constitutional mandates were not complied with by the Legislature, except as to those provisions of the Constitution, compliance and which is expressly required to be shown on the journal. This rule has been adopted in South Carolina, Montana, Oklahoma, Utah, Ohio, New Jersey, United States Supreme Court, and others. The third of the rules seems to be that the enrolled bill raises only a prima facie presumption that the mandatory provisions of the Constitution have been complied with and that resort may be had to the journals to refute that presumption, and if the constitutional provision is one, compliance with which is expressly required by the Constitution to be shown on the journals, then the mere silence of the journals to show a compliance therewith will refute the presumption. This rule has been adopted in Illinois, Florida Kansas, Louisiana, Tennessee, Arkansas, Idaho, Minnesota, Nebraska, Arizona, Oregon, New Jersey, Colorado, and others." 40

In the 1980 case of D & W Auto Supply v. Department of Revenue, the Supreme Court of Kentucky which had subscribed in the past to the first of the three theories, made the pronouncement that it had shifted its stand and would henceforth adopt the third. It justified its changed stance, thus:jgc:chanrobles.com.ph "We believe that a move reasonable rule is the one which Professor Sutherland describes as the ‘extrinsic evidence’ rule . . . Under this approach there is a prima facie presumption that an enrolled bill is valid, but such presumption may be overcome by clear satisfactory and convincing evidence establishing that constitutional requirements have not been met." 41 What rule, if any, has been adopted in this jurisdiction? Advocates of the "journal entry rule" cite the 1916 decision in U.S. v. Pons 42 where this Court placed reliance on the legislative journals to determine whether Act No. 2381 was passed on February 28, 1914 which is what appears in the Journal, or on March 1, 1914 which was closer to the truth. The confusion was caused by the adjournment sine die at midnight of February 28, 1914 of the Philippine Commission. A close examination of the decision reveals that the Court did not apply the "journal entry rule" vis-a-vis the "enrolled bill rule" but the former as against what are "behind the legislative journals."cralaw virtua1aw library "Passing over the question of whether the printed Act (No. 2381), published by authority of law, is conclusive evidence as to the date when it was passed, we will inquire whether the courts may go behind the legislative journals for the purpose of determining the date of adjournment when such journals are clear and explicit." 43 It is to be noted from the above that the Court "passed over" the probative value to be accorded to the enrolled bill. Opting for the journals, the Court proceeded to explain:jgc:chanrobles.com.ph "From their very nature and object, the records of the Legislature are as important as those of the judiciary, and to inquire into the veracity of the journals of the Philippine Legislature, when they are, as we have said clear and explicit, would be to violate both the letter and the spirit of the organic laws by which the Philippine Government was brought into existence, to invade a coordinate and independent department of the Government, and to interfere with the legitimate powers and functions of the Legislature." 44 Following the courts in the United States since the Constitution of the Philippine Government is modeled after that of the Federal Government, the Court did not hesitate to follow the courts in said country, i.e., to consider the journals decisive of the point at issue. Thus: "The journals say that the Legislature adjourned at 12 midnight on February 28, 1914. This settles the question and the court did not err in declining to go behind these journals." 45 The Court made a categorical stand for the "enrolled bill rule" for the first time in the 1947 case of Mabanag v. Lopez Vito 46 where it held that an enrolled bill imports absolute verity and is binding on the courts. This Court held itself bound by an authenticated resolution, despite the fact that the vote of three-fourths of the Members of the Congress (as required by the Constitution to approve proposals for constitutional amendments) was not actually obtained on account of the suspension of some members of the House of Representatives and the Senate.

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In this connection, the Court invoked the "enrolled bill rule" in this wise: "If a political question conclusively binds the judges out of respect to the political departments, a duly certified law or resolution also binds the judges under the ‘enrolled bill rule’ born of that respect." 47 Mindful that the U.S. Supreme Court is on the side of those who favor the rule and for no other reason than that it conforms to the expressed policy of our law making body (i.e., Sec. 313 of the old Code of Civil Procedure, as amended by Act No. 2210), the Court said that "duly certified copies shall be conclusive proof of the provisions of such Act and of the due enactment thereof." Without pulling the legal underpinnings from U.S. v. Pons, it justified its position by saying that if the Court at the time looked into the journals, "in all probability, those were the documents offered in evidence" and that "even if both the journals and authenticated copy of the Act had been presented, the disposal of the issue by the Court on the basis of the journals does not imply rejection of the enrolled theory; for as already stated, the due enactment of a law may be proved in either of the two ways specified in Section 313 of Act No. 190 as amended." 48 Three Justices voiced their dissent from the majority decision. Again, the Court made in position plain in the 1963 case of Casco Philippine Chemical Co., Inc. v. Gimenez 49 when a unanimous Court ruled that: "The enrolled bill is conclusive upon the courts as regards the tenor of the measure passed by Congress and approved by the President. If there has been any mistake in the printing of a bill before it was certified by the officers of Congress and approved by the Executive, the remedy is by amendment of curative legislative not by judicial decree." According to Webster’s New 20th Century Dictionary, 2nd ed., 1983, the word "tenor" means, among others, "the general drift of something spoken or written; intent, purport, substance."cralaw virtua1aw library Thus, the Court upheld the respondent Auditor General’s interpretation that Republic Act No. 2609 really exempted from the margin fee or foreign exchange transactions "urea formaldehyde" as found in the law and not "urea and formaldehyde" which petition insisted were the words contained in the bill and were so intended by Congress. In 1969, the Court similarly placed the weight of its authority behind the conclusiveness of the enrolled bill. In denying the motion for reconsideration, the Court rule in Morales v. Subido that "the enrolled Act in the office of the legislative secretary of the President of the Philippines shows that Section 10 is exactly as it is in the statute as officially published in slip form by the Bureau of Printing. . . . Expressed elsewise, this is matter worthy of the attention not of an Oliver Wendell Holmes but of a Sherlock Holmes." 50 The alleged omission of a phrase in the final Act was made, not at any state of the legislative proceedings, but only in the course of the engrossment of the bill, more specifically in the proofreading thereof. But the Court did include a caveat that qualified the absoluteness of the "enrolled bill" rule stating:jgc:chanrobles.com.ph "By what we have essayed above we are not of course to be understood as holding that in all cases the journals must yield to the enrolled bill. To be sure there are certain matters which the Constitution (Art. VI, secs. 10 [4], 20 [1], and 21 [1]) expressly requires must be entered on the journal of each house. To what extent the validity of a legislative act may be affected by a failure to have such matters entered on the journal, is a question which we do not now decide (Cf. e.g., Wilkes Country Comm’rs. v. Coler, 180 U.S. 506 [1900]). All we hold is that with respect to matters not expressly required to be entered on the journal, the enrolled bill prevails in the event of any discrepancy." 51

More recently, in the 1993 case of Philippine Judges Association v. Prado, 52 this Court, in ruling on the unconstitutionality of Section 35 of Republic Act No. 7354 withdrawing the franking privilege from the entire hierarchy of courts, did not so much adhere to the enrolled bill rule alone as to both "enrolled bill and legislative journals." Through Mr. Justice Isagani A. Cruz, we stated: "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."cralaw virtua1aw library Aware of the shifting sands on which the validity and continuing relevance of the "enrolled bill" theory rests, I have taken pains to trace the history of its applicability in this jurisdiction, as influenced in varying degrees by different Federal rulings.

and Senate versions, the BICAM acted in excess of its jurisdiction or which such grave abuse of discretion as to amount to loss of jurisdiction. . . . In adding to the bill and thus subjecting to VAT, real properties, media and cooperatives despite the contrary decision of both Houses, the BICAM exceeded its jurisdiction or acted with such abuse of discretion as to amount to loss of jurisdiction. . . ." 55 I wish to consider this issue in light of Article VIII, Sec. 1 of the Constitution which provides that" (j)udicial power includes the duty of the courts of justice . . . to determine whether or not there has been a grave abuse of discretion amounting to lack of excess of jurisdiction on the part of any branch or instrumentality of the Government." We are also guided by the principle that a court may interfere with the internal procedures of its coordinate branch only to uphold the Constitution. 56

As applied to the instant petition, the issue posed is whether or not the procedural irregularities that attended the passage of House Bill No. 11197 and Senate Bill No. 1630, outside of the reading and printing requirements which were exempted by the Presidential certification, may no longer be impugned, having been "saved" by the conclusiveness on us of the enrolled bill. I see no cogent reason why we cannot continue to place reliance on the enrolled bill, but only with respect to matters pertaining to the procedure followed in the enactment of bills in Congress and their subsequent engrossment, printing errors, omission of words and phrases and similar relatively minor matters relating more to form and factual issues which do not materially alter the essence and substance of the law itself.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

A conference committee has been defined:jgc:chanrobles.com.ph

Certainly, "courts cannot claim greater ability to judge procedural legitimacy, since constitutional rules on legislative procedure are easily mastered. Procedural disputes are over facts — whether or not the bill had enough votes, or three readings, or whatever — not over the meaning of the constitution. Legislators, as eyewitnesses, are in a better position than a court to rule on the facts. The argument is also made that legislature would be offended if courts examined legislative procedure. 53

From the foregoing definition, it is clear that a bicameral conference committee is a creature, not of the Constitution, but of the legislative body under its power to determine rules of its proceedings under Article VI, Sec. 16 (3) of the Constitution. Thus, it draws its life and vitality from the rules governing its creation. The why, when, how and wherefore of its operations, in other words, the parameters within which it is to function, or to be found in Section 26, Rule XII of the Rules of the Senate and Section 85 of the Rules of the House of Representatives, respectively, which provide:chanrob1es virtual 1aw library

". . . unlike the joint committee is two committees, one appointed by each house. It is normally appointed for a specific bill and its function is to gain accord between the two houses either by the recession of one house from its bill or its amendments or by the further amendment of the existing legislation or by the substitution of an entirely new bill. Obviously the conference committee is always a special committee which considered it together with such other representatives of the house as seem expedient. (Horack, Cases and Materials on Legislation [1940] 220. See also Zinn, Conference Procedure in Congress, 38 ABAJ 864 [1952]; Steiner, The Congressional Conference Committee [U of Ill. Press, 1951])." 57

Such a rationale, however, cannot conceivably apply to substantive changes in a bill introduced towards the end of its tortuous trip through Congress, catching both legislators and the public unawares and altering the same beyond recognition even by it sponsors.

Rule XII, Rules of the Senate

This issue I wish to address forthwith.

"Sec. 26. In the event that the Senate does not agree with the House of Representatives on the provision of any bill or joint resolution, the differences shall be settled by a conference committee of both Houses which shall event meet within ten days after their composition.

EXTENT OF THE POWER OF THE BICAMERAL CONFERENCE COMMITTEE One of the issues raised in these petitions, especially in G.R. Nos. 115781, 115543 and 115754, respectively, is whether or not — "Congress violated Section 26, par. 2, Article VI (of the 1987 Constitution) when it approved the Bicameral Conference Committee Report which embodied, in violation of Rule XII of the Rules of the Senate, a radically altered tax measure containing provisions not reported out or discussed in either House and the Senate and, worse, provisions contrary to what the House and the Senate had approved after three separate readings. "54

The President shall designate the members of the conference committee in accordance with subparagraph (c), Section 8 of Rule III. Each Conference Committee Report shall contain a detailed and sufficiently explicit statement of the changes in or amendments to the subject measure, and shall be signed by the conferees. The consideration of such report shall not be in order unless the report has been filed with the Secretary of the Senate and copies thereof have been distributed to the members."cralaw virtua1aw library

and

Rules of the House of Representatives

"By adding or deleting provisions, when there was no conflicting provisions between the House

"Sec. 85. Conference Committee Reports. — In the event that the House does not agree with

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the Senate on the amendments to any bill or joint resolution, the differences may be settled by conference committee of both Chambers. The consideration of conference committee reports shall always be in order, except when the journal is being read, while the roll is being called or the House is dividing on any question. Each of the pages of such reports shall contain a detailed, sufficiently explicit statement of the changes in or amendments to the subject measure. The consideration of such report shall not be in order unless copies thereof are distributed to the Members: Provided, That in the last fifteen days of each session period it shall be deemed sufficient that three copies of the report, signed as above provided, are deposited in the office of the Secretary General."cralaw virtua1aw library Under these Rules, a bicameral conference committee comes into being only when there are disagreements and differences between the Senate and the House with regard to certain provisions of a particular legislative act have to be reconciled. Jefferson’s Manual, which, according to Section 112, Rule XLIX of the Senate Rules, supplements it, states that a conference committee is usually called "on the occasion of amendments between the Houses" and "in all cases difference of opinion between the two Houses on matters pending between them." 58 It further states:jgc:chanrobles.com.ph "The managers of a conference must confine themselves to the differences committed to them, and may not include subjects not within the disagreements, even though germane to a question in issue. But they may perfect amendments committed to them if they do not in so doing go beyond the differences. . . . Managers may not change the text to which both Houses have agreed." 59 (Emphasis supplied.) Mason’s Manual of Legislative Procedures which is also considered as controlling authority for any situation not covered by a specific legislative rule,60 states that either House may "request a conference with the other on any matter of difference or dispute between them" and that in such a request, "the subject of the conference should always be stated." 61 In the Philippines, as in the United States, the Conference Committee exercises such a wide range of authority that they virtually constitute a third House in the Legislature. As admitted by the Solicitor General, "It was the practice in past Congresses for Conference Committees to insert in bills approved by the two Houses new provisions that were not originally contemplated by them." 62 In Legislative Procedure, Robert Luce gives a graphic description of the milieu and the circumstances which have conspired to transform an initially innocuous mechanism designed to facilitate legislative action into an all-powerful Frankenstein that brooks no challenge to its authority even from its own members. "Their power lies chiefly in the fact that reports of conference committees must be accepted without amendment or else rejected in toto. The impulse is to get done with the matters and so the motion to accept has undue advantage, for some members are sure to prefer swallowing unpalatable provisions rather than prolong controversy. This is the more likely if the report comes in the rush of business toward the end of a session, when to seek further conference might result in the loss of the measure altogether. At any time in the session there is some risk of such a result following the rejection of a conference report, for it may not be possible

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to secure a second conference, or delay may give opposition to the main proposal chance to develop more strength. x

x

x

Entangled in a network of rule and custom, the Representative who resents and would resist this theft to his rights, finds himself helpless. Rarely can be vote, rarely can he voice his mind, in the matter of any fraction of the bill. Usually he cannot even record himself as protesting against some one feature while accepting the measure as whole. Worst of all, he cannot by argument or suggested change, try to improve what the other branch has done. This means more than the subversion of individual rights. It means to a degree the abandonment of whatever advantage the bicameral system may have. By so much it in effect transfers the lawmaking power to small group of members who work out in private a decision that almost always prevails. What is worse, these men are not chosen in a way to ensure the wisest choice. It has become the practice to name as conferees the ranking members of the committee, so that the accident of seniority determines. Exceptions are made, but in general it is not a question of who are most competent to serve. Chance governs, sometimes giving way to favor, rarely to merit. x

x

x

Speaking broadly, the system of legislating by conference committee is unscientific and therefore defective. Usually it forfeits the benefit of scrutiny and judgment by all the wisdom available. Uncontrolled, it is inferior to that process by which every amendment is secured independent discussion and vote. . . ." 63 (Emphasis supplied) Not surprisingly has it been said: "Conference Committee action is the most undemocratic procedure in the legislative process; it is an appropriate target for legislative critics." 64 In the case at bench, petitioners insist that the Conference Committee to which Senate Bill No. 1630 and House Bill No. 11197 were referred for the purpose of harmonizing their differences, overreached themselves in not confining their "reconciliation" function to those areas of disagreement in the two bills but actually making "surreptitious insertions" and deletions which amounted to a grave abuse of discretion. At this point, it becomes imperative to focus on the errant provisions which found their way into Republic Act No. 7716. Below is a breakdown to facilitate understanding the grounds for petitioners’ objections:chanrob1es virtual 1aw library INSERTIONS MADE BY BICAMERAL CONFERENCE COMMITTEE (BICAM) TO SENATE BILL (SB) NO. 1630 AND HOUSE BILL (HB) NO. 11197 1. Sec. 99 of the National Internal Revenue Code (NIRC) (1) Under the HB, this section includes any person who, in the course of trade or business, sells, barters or exchanges goods OR PROPERTIES and any person who LEASES PERSONAL PROPERTIES.

(2) The SB completely changed the said section and defined a number of words and phrases. Also, Section 99-A was added which included one who sells, exchanges, barters PROPERTIES and one who imports PROPERTIES. (3) The BICAM version makes LESSORS of goods OR PROPERTIES and importers of goods LIABLE to VAT (subject of petition in G.R. No. 115754). 2. Section 100 (VAT on Sale of Goods) The term "goods" or "properties" includes the following, which were not found in either the HB or the SB:chanrob1es virtual 1aw library — In addition to radio and television time; SATELLITE TRANSMISSION AND CABLE TELEVISION TIME. — The term "Other similar properties" was deleted, which was present in the HB and the SB. — Real properties held primarily for sale to customers or held for lease in the ordinary course or business were included, which was neither in the HB nor the SB (subject of petition in G.R. No. 115754). 3. Section 102 On what are included in the term "sale of exchange of services," as to make them subject to VAT, the BICAM included/inserted the following (not found in either House or Senate Bills):chanrob1es virtual 1aw library 1. Services of lessors of property, whether personal or real (subject of petition in G.R. No. 115754); 2. Warehousing services; 3. Keepers of resthouses, pension houses, inns, resorts;

Senate Bills. Therefore, under Republic Act No. 7716, the "printing, publication, importation or sale of books and any newspaper, magazine, review, or bulletin which appears at regular intervals with fixed prices for subscription and sale and which is not devoted principally to the publication of advertisements" is subject to VAT (subject of petition in G.R. No. 115931 and G.R. No. 115544). The HB and SB did not touch Subsection (g) but it was amended by the BICAM by changing the word TEN to FIVE. Thus, importation of vessels with tonnage of more than five thousand tons in VAT exempt. Subsection L, which was identical in the HB and the SB that stated that medical, dental hospital and veterinary services were exempted from the VAT was amended by the BICAM by adding the qualifying phrase. EXCEPT THOSE RENDERED BY PROFESSIONALS, thus subjecting doctors, dentists and veterinarians to the VAT. Subsection U which exempts from VAT "transactions which are exempt under special laws," was amended by the BICAM by adding the phrase: EXCEPT THOSE GRANTED UNDER PD Nos. 66, 529, 972, 1491, AND 1590, AND NON-ELECTRIC COOPERATIVES UNDER RA 6938 (subject of petition in G.R. No. 115873), not found in either the HB or the SB, resulting in the inclusion of all cooperatives to the VAT, except non-electric cooperatives. The sale of real properties was included in the exempt transactions under the House Bill, but the BICAM qualified this with the provision:jgc:chanrobles.com.ph "(S) SALE OF REAL PROPERTIES NOT PRIMARILY HELD FOR SALE TO CUSTOMERS OR HELD FOR LEASE IN THE ORDINARY COURSE OF TRADE OR BUSINESS OR REAL PROPERTY UTILIZED FOR LOW-COST AND SOCIALIZED HOUSING AS DEFINED BY RA NO. 7279 OTHERWISE KNOWN AS THE URBAN DEVELOPMENT AND HOUSING ACT OF 1992 AND OTHER RELATED LAWS." (subject of petition in G.R. No. 115754) The BICAM also exempted the sale of properties, the receipts of which are not less than P480,000.00 or more than P720,000.00 Under the SB, no amount was given, but in the HB it was stated that receipts from the sale of properties not less than P350,000.00 nor more than P600,000.00 were exempt.

4. Common carriers by land, air and sea; 5. Services of franchise grantees of telephone and telegraph;

It did not include, as VAT exempt, the sale of transfer of securities, as defined in the Revised Securities Act (BP 178) which was contained in both Senate and House Bills.

6. Radio and television broadcasting;

5. Section 104

7. All other franchise grantees except those under Section 117 of this Code (subject of petition in G.R. No. 115852);

Not included in the HB or the SB is the phrase "INCLUDING PACKAGING MATERIALS" which was inserted by the BICAM in Section 104 (A) (1) (B), thus excluding from creditable input tax packaging materials and the phrase "ON WHICH A VALUE-ADDED TAX HAS BEEN ACTUALLY PAID" in Section 104 (A) (2).

8. Services of surety, fidelity, indemnity, and bonding companies; 9. Also inserted by the BICAM (on page 8 thereof) is the lease or use of or the right to use of satellite transmission and cable television time.

6. Section 107

4. Section 103 (Exempt Transactions)

Both House and Senate Bills provide for the payment of P500.00 VAT registration fee but this was increased by BICAM to P1,000.00.

The BICAM deleted subsection (f) in its entirety, despite its inclusion in both the House and

7. Section 112

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Regarding a person whose sales or receipts are exempt under Section 103 (w), the BICAM inserted the phrase: "THREE PERCENT UPON THE EFFECTIVITY OF THIS ACT AND FOUR PERCENT (4%) TWO YEARS THEREAFTER." although the SB and the HB provide only "three percent of his gross quarterly sales."cralaw virtua1aw library 8. Section 115 The BICAM adopted the HB version which subjects common carriers by land, air or water for the transport of passengers to 3% of their gross quarterly sales, which is not found in the SB. 9. Section 117 The BICAM amended this section by subjecting franchises on electric, gas and water utilities to a tax of two percent (2%) on gross derived . . ., although neither the HB nor the SB has a similar provision. 10. Section 17 (d) (a) The BICAM defers for only 2 years the VAT on services of actors and actresses, although the SB defers it for 3 years. (b) The BICAM uses the word "EXCLUDE" in the section on deferment of VAT collection on certain goods and services. The HB does not contain any counterpart provision and SB only allows deferment for no longer than 3 years. 11. Section 18 on the Tax Administration Development Fund is an entirely new provision not contained in the House/Senate Bills. This fund is supposed to ensure effective implementation of Republic Act No. 7716. 12. Section 19 No period within which to promulgate the implementing rules and regulations is found in the HB or the SB but BICAM provided "within 90 days" which found its way in Republic Act No. 7716.chanroblesvirtual|awlibrary Even a cursory perusal of the above outline will convince one that, indeed, the Bicameral Conference Committee (henceforth to be referred to as BICAM) exceeded the power and authority granted in the Rules of its creation. Both Senate and House Rules limit the task of the Conference Committee in almost identical language to the settlement of differences in the provisions or amendments to any bill or joint resolution. If it means anything at all, it is that there are provisions in subject bill, to start with, which differ and, therefore, need reconciliation. Nowhere in the Rules is it authorized to initiate or propose completely new matter. Although under certain rules on legislative procedure, like those in Jefferson’s Manual, a conference committee may introduce germane matters in a particular bill, such matters should be circumscribed by the committee’s sole authority and function to reconcile differences. Parenthetically, the Senate and in the House, a matter is "germane" to a particular bill if there is a common tie between said matter and provisions which tend to promote the object and purpose of the bill it seeks to amend. If it introduces a new subject matter not within the

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purview of the bill, then it is not "germane" to the bill. 65 The test is whether or not the change represented an amendment or extension of the basic purpose of the original, or the introduction of an entirely new and different subject matter. 66 In the BICAM, however, the germane subject matter must be within the ambit of the disagreement between the two Houses. If the "germane" subject is not covered by the disagreement but it is reflected in the final version of the bill as reported by the Conference Committee or, if what appears to be a "germane" matter in the sense that it is "relevant or closely allied" 67 with the purpose of the bill, was not the subject of a disagreement between the Senate and the House, it should be deemed an extraneous matter or even a "rider" which should never be considered legally passed for not having undergone the three-day reading requirement. Insertion of new matter on the part of the BICAM is, therefore, and ultra vires act which makes the same void. The determination of what is "germane" and what is not may appear to be a difficult task but the Congress, having been confronted with the problem before, resolved it in accordance with the rules. In that case, the Congress approved a Conference Committee’s insertion of new provisions that were not contemplated in any of the provisions in question between the Houses simply because of the provision in Jefferson’s Manual that conferees may report matters "which are germane modifications of subjects in disagreement between the Houses and the committee. 68 In other words, the matter was germane to the points of disagreement between the House and the Senate. As regards inserted amendments in the BICAM, therefore, the task of determining what is germane to a bill is simplified, thus: If the amendments are not circumscribed by the subjects of disagreement between the two Houses, then they are not germane to the purpose of the bill.chanrobles lawlibrary : rednad In the instant case before us, the insertions and deletions made not merely spell an effort at settling conflicting provisions but have materially altered the bill, thus giving rise to the instant petitions on the part of those who were caught unawares by the legislative legerdemain that took place. Going by the definition of the word "amendment" in Black’s Law Dictionary, 5th Ed., 1979, which means "to change or modify for the better, to alter by modification, deletion, or addition," said insertions and deletions constitute amendments. Consequently, these violated Article VI, Section 26 (2) which provides inter alia: "Upon the last reading of a bill, no amendment thereto shall be allowed . . ." This proscription is intended to subject all bills and their amendments to intensive deliberation by the legislators and the ample ventilation of issues to afford the public an opportunity to express their opinions or objections issues to afford the public an opportunity to express their opinions or objections thereon. The same rationale underlies the three-reading requirement to the end that no surprises may be sprung on an unsuspecting citizenry. Provisions of the "now you see it, now you don’t" variety, meaning those which were either in the House and/or Senate versions but simply disappeared or were "bracketed out" of existence in the BICAM Report, were eventually incorporated in Republic Act No. 7716. Worse, some goods, properties or services which were not covered by the two versions and, therefore, were never intended to be so covered, suddenly found their way into the same Report. No advance notice of such insertions prepared the rest of the legislators, much less the public who could be adversely affected, so that they could be given the opportunity to express their views thereon. Well has the final BICAM report been described, therefore, as an instance of "taxation without representation."cralaw virtua1aw library

That the conferees or delegates in the BICAM representing the two Chambers could not possibly be charged with bad faith or sinister motives or, at the very least, unseemly behavior, is of no moment. The stark fact is that items not previously subjected to the VAT now fell under its coverage without interested sectors or parties having been afforded the opportunity to be heard thereon. This is not to say that the Conference Committee Report should have undergone the three readings required in Article VI, Section 26 (2), for this clearly refers only to bills which, after having been initially filed in either House, negotiated the labyrinthine passage therein until its approval. The composition of the BICAM including as it usually does, the Chairman of the appropriate Committee, the sponsor of the bill and other interested members ensures an informed discussion, at least with respect to the disagreeing provisions. The same does not obtain as regards completely new matter which suddenly spring on the legislative horizon. It has been pointed out that such extraneous matters notwithstanding, all Congressmen and Senators were given the opportunity to approve or turn down the Committee Report in toto, thus "curing" whatever defect or irregularity it bore. Earlier in this opinion, I explained that the source of the acknowledged power of this ad hoc committee stems from the precise fact that, the meetings, being scheduled "take it or leave it" basis. It has not been uncommon for legislators who, for one reason or another have been frustrated in their attempt to pass a pet bill in their own chamber, to work for its passage in the BICAM where it may enjoy a more hospitable reception and faster approval. In the instant case, had there been full, open and unfettered discussion on the bills during the Committee sessions, there would not have been as much vociferous objections on this score. Unfortunately, however, the Committee held two of the five sessions behind closed doors, sans stenographers, record-takers and interested observes. To that extent, the proceedings were shrouded in mystery and the public’s right to information on matter of public concern as enshrined in Article III, Section 7 69 and the government’s policy of transparency in transactions involving public interest in Article II, Section 28 of the Constitution 70 are undermined. Moreover, that which is void ab initio such as the objectionable provisions in the Conference Committee Report, cannot be "cured" or ratified. For all intents and purposes, these never existed. Quae ab initio non valent, ex post facto convalescere non possunt. Things that are invalid from the beginning are not made valid by a subsequent act.chanrobles law library : red Should this argument be unacceptable, the "enrolled bill" doctrine, in turn, is invoked to support the proposition that the certification by the presiding officers of Congress, together with the signature of the President, bars further judicial inquiry into the validity of the law. I reiterate my submission that the "enrolled bill ruling" may be applicable but only with respect to questions pertaining to the procedural enactment, engrossment, printing, the insertion or deletion of a word or phrase here and there, but would draw a dividing line with respect to substantial substantive changes, such as those introduced by the BICAM herein. We have before us then the spectacle of a body created by the two Houses of Congress for the very limited purpose of settling disagreements in provisions between bills emanating therefrom, exercising the plenary legislative powers of the parent chambers but holding itself exempt from the mandatory constitutional requirements that are the hallmarks of legislation under the aegis of a democratic political system. From the initial filing, through the three readings which entail detailed debates and discussions in Committee and plenary sessions, and

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on the transmittal to the other House in a repetition of the entire process to ensure exhaustive deliberations — all these have been skipped over. In the proverbial twinkling of an eye, provisions that probably may not have seen the light of day had they but run their full course through the legislative mill, sprang into existence and emerged full-blown laws. Yet our Constitution vests the legislative power in "the Congress of the Philippines which shall consist of a Senate and a House of Representatives. . . . "71 and not in any special, standing or super committee of its own creation, no matter that these have been described, accurately enough, as "the eye, the ear, the hand, and very often the brain of the house."cralaw virtua1aw library Firstly, that usage or custom has sanctioned this abbreviated, if questionable, procedure does not warrant its being legitimized and perpetuated any longer. Consuetudo, contra rationem introducta, potius usurpatio quam consuetudo appellari debet. A custom against reason is rather an usurpation. In the hierarchy of sources of legislative procedure, constitutional rules, statutory provisions and adopted rules (as for example, the Senate and House Rules), rank highest, certainly much ahead of customs and usages. Secondly, is this Court to assume the role of passive spectator or indulgent third party, timorous about exercising its power or more importantly, performing its duty, of making a judicial determination on the issue of whether there has been grave abuse of discretion by the other branches or instrumentalities of government, where the same is properly invoked? The time is past when the court was not loathe to raise the bogeyman of the political question to avert a head-on collision with either the Executive or Legislative Departments. Even the separation of powers doctrine was burnished to a bright sheen as often as it was invoked to keep the judiciary within bounds. No longer does this condition obtain. Article VII, Section 2 of the Constitution partly quoted in this paragraph has broadened the scope of judicial inquiry. This Court can now safely fulfill its mandate of delimiting the powers of co-equal departments like the Congress, its officers or its committees which may have no compunctions about exercising legislative powers in full. Thirdly, dare we close our eyes to the presumptuous assumption by a runaway committee of its progenitor’s legislative powers in derogation of the rights of the people, in the process, subverting the democratic principles we all are sworn to uphold, when a proper case is made out for our intervention? The answers to the above queries are self-evident. I call to mind this exhortation: "We are sworn to see that violations of the constitution — by any person, corporation, state agency or branch of government — are brought to light and corrected. To countenance an artificial rule of law that silences our voices when confronted with violations of our Constitution is not acceptable to this Court." 72 I am not unaware that a rather recent decision of ours brushed aside an argument that a provision in subject law regarding the withdrawal of the franking privilege from the petitioners and this Court itself, not having been included in the original version of Senate Bill No. 720 or of House Bill No. 4200 but only in the Conference Committee Report, was violate of Article VI, Section 26 (2) of the Constitution. Likewise, that said Section 35, never having been a subject of disagreement between both Houses, could not have been validly added as an amendment before the Conference Committee. The majority opinion in said case explained:jgc:chanrobles.com.ph

"While it is true that a conference committee is the mechanism for compromising differences between the Senate and the House, it is not limited in its jurisdiction to this question. Its broader functions is described thus:chanrob1es virtual 1aw library ‘A conference committee may deal generally with the subject matter or it may be limited to resolving the precise differences between the two houses. Even where the conference committee is not by rule limited in its jurisdiction, legislative custom severely limits the freedom with which new subject matter can be inserted into the conference bill. But occasionally a conference committee produces unexpected results, results beyond its mandate. These excursions occur even where the rules impose strict limitations on conference committee jurisdiction. This is symptomatic of the authoritarian power of conference committee (Davies, Legislative Law and Process: In a Nutshell, 1986 Ed., p. 81).’" 73 (Emphasis supplied) At the risk of being repetitious, I wish to point out that the general rule, as quoted above, is: "Even where the conference committee is not by rule limited in its jurisdiction, legislative custom severely limits the freedom with which new subject matter can be inserted into the conference bill." What follows, that is, "occasionally a conference committee produces unexpected results, results beyond its mandate . . ." is the exception. Then it concludes with a declaration that: "This is symptomatic of the authoritarian power of conference committee." Are we about to reinstall another institution that smacks of authoritarianism which, after our past experience, has become anathema to the Filipino people? The ruling above can hardly be cited in support of the proposition that a provision in a BICAM report which was not the subject of differences between the House and Senate versions of a bill cannot be nullified. It submit that such is not authorized in our Basic Law. Moreover, this decision concerns merely one provision whereas the BICAM Report that culminated in the EVAT law has a wider scope as it, in fact, expanded the base of the original VAT law by imposing the tax on several items which were not so covered prior to the EVAT. One other flaw in most BICAM Reports, not excluding this one under scrutiny, is that, hastily drawn up, it often fails to conform to the Senate and House Rules requiring no less than a "detailed" and "sufficiently" explicit statement of the changes in or amendments to the subject measure." The Report of the committee, as may be gleaned from the preceding pages, was no more than the final version of the bill as "passed" by the BICAM. The amendments or subjects of dissension, as well as the reconciliation made by the committee, are not even pointed out, much less explained therein. It may be argued that legislative rules of procedure may properly be suspended, modified, revoked or waived at will by the legislators themselves. 74 This principle, however, does not come into play in interpreting what the record of the proceedings shows was, or was not, done. It is rather designed to test the validity of legislative action where the record shows a final action in violation or disregard of legislative rules. 75 Utilizing the Senate and the House Rules as both guidelines and yardstick, the BICAM here obviously did not adhere to the rule on what the Report should contain. Given all these irregularities that have apparently been engrafted into the BICAM system, and which have been tolerated, if not accorded outright acceptance by everyone involved in or conversant with, the institution, it may be asked: Why not leave well enough alone? That these practices have remained unchallenged in the past does not justify our closing our

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eyes and turning a deaf ear to them. Writ large is the spectacle of a mechanism ensconced in the very heart of the people’s legislative halls, that now stands indicted with the charge of arrogating legislative powers unto itself through the use of dubious "shortcuts." Here, for the people to judge, is the "mother of all shortcuts."cralaw virtua1aw library In the petitions at bench, we are confronted with the enactment of a tax law which was designed to broaden the tax base. It is rote learning for any law student that as an attribute of sovereignty, the power to tax is "the strongest of all the powers of government." 76 Admittedly, "for all its plenitude, the power to tax is not unconfined. There are restrictions." 77 Were there none, then the off-quoted 1803 dictum of Chief Justice Marshall that "the power to tax involves the power to destroy" 78 would be a truism. Happily, we can concur with, and the people can find comfort in, the reassuring words of Mr. Justice Holmes: "The power to tax is not the power to destroy while this Court sits." 79 Manakanaka, mayroong dumudulog dito sa Kataastaasang Hukuman na may kamangha-manghang hinaing. Angkop na halimbawa ay ang mga petisyong iniharap ngayon sa amin. Ang ilan sa kanila ay mga Senador na nais mapawalang bisa ang isang batas ukol sa buwis na ipinasa mismo nila. Diumano ito ay hindi tumalima sa mga itinatadhana sa Saligang Batas. Bukod sa rito, tutol sila sa mga bagong talata na isiningit ng "Bicameral Conference Committee" na nagdagdag ng mga bagong bagay bagay at serbisyo na papatawan ng buwis. Ayon sa kanila, ginampanan ng komiteng iyan ang gawain na nauukol sa buong Kongreso. Kung kaya’t and nararapat na mangyari ay ihatol ng kataastaasang Hukuman na malabis na pagsasamantala sa sariling pagpapasiya ang ginawa ng Kongreso. Bagama’t bantulot kaming makialam sa isang Kapantay na sangay ng Pamahalaan, hindi naman nararapat na kami ay tumangging gampanan ang tungkulin na iniatas sa amin ng Saligang Batas. Lalu’t-lalo nang ang batas na kinauukulan ay maaaring makapinsala sa nakararami sa sambayanan. Sa ganang akin, itong batas na inihaharap sa amin ngayon, at totoong labag sa Saligang Batas, samakatuwid ay walang bisa. Ngunit ito ay nauukol lamang sa mga katiwalian na may kinalaman sa paraan ng pagpapasabatas nito. Hindi namin patakaran ang makialam o humadlang sa itinakdang gawain ng Saligang Batas sa Pangulo at sa Kongreso. Ang dalawang sangay na iyan ng Pamahalaan ang higit na maalam ukol sa kung ang anumang panukalang batas ay nararapat, kanais-nais o magagampanan; kung kaya’t hindi kami nararapat na maghatol o magpapasiya sa mga bagay na iyan. Ang makapapataw ng angkop na lunas sa larangan na iyan ay ang mismong mga kinatawan ng sambayanan sa Kongreso. Faced with this challenge of protecting the rights of the people by striking down a law that I submit is unconstitutional and in the process, checking the wonted excesses of the Bicameral Conference Committee system, I see in this case a suitable vehicle to discharge the Court’s Constitutional mandate and duty of declaring that there has indeed been a grave abuse of discretion amounting to lack of excess of jurisdiction on the part of the Legislature. Republic Act No. 7716, being unconstitutional and void, I find no necessity to rule on the substantive issues as dealt with in the majority opinion as they have been rendered moot and academic. These issues pertain to the intrinsic merits of the law. It is axiomatic that the wisdom, desirability and advisability of enacting certain laws lie, not within the province of the Judiciary but that of the political departments, the Executive and the Legislative. The relief sought by petitioners from what they perceive to be the harsh and onerous effect of the EVAT on the people is within their reach. For Congress, of which Senator-petitioners are a

part, can furnish the solution by either repealing or amending the subject law. For the foregoing reasons, I VOTE to GRANT the petition. BELLOSILLO, J., dissenting:chanrob1es virtual 1aw library With a consensus already reached after due deliberations, silence perhaps should be the better part of discretion, except to vote. The different views and opinions expressed are so persuasive and convincing; they are more than enough to sway the pendulum for or against the subject petitions. The penetrating and scholarly dissertations of my brethren should dispense with further arguments which may only confound and confuse even the most learned of men. But there is a crucial point, a constitutional issue which, I submit, has been belittled, treated lightly, if not almost considered insignificant and purposeless. It is elementary, as much as it is fundamental. I am referring to the word "exclusively" appearing in Sec. 24, Art. VI, of our 1987 Constitution. This is regrettable, to say the least, as it involves a constitutional mandate which, wittingly or unwittingly, has been cast aside as trivial and meaningless. A comparison of the particular provision on the enactment of revenue bills in the U.S. Constitution with its counterpart in the Philippine Constitution will help explain my position.chanroblesvirtuallawlibrary Under the U.S. Constitution," [a]ll bills for raising revenue shall originate in the House of Representatives; but the Senate may propose on concur with amendments as on other bills" (Sec. 7, par. [1], Art. I). In contrast, our 1987 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" (Sec. 24, Art. VI, Emphasis supplied). As may be gleaned from the pertinent provision of our Constitution, all revenue bills are required to originate "exclusively" in the House of Representatives. On the other hand, the U.S. Constitution does not use the word "exclusively;" it merely says," [a]ll bills for raising revenue shall originate in the House of Representatives."cralaw virtua1aw library Since the term "exclusively" has already been adequately defined in the various opinions, as to which there seems to be no dispute, I shall no longer offer my own definition. Verily, the provision in our Constitution requiring that all revenue bills shall originate exclusively from the Lower House is mandatory. The word "exclusively" is an "exclusive word," which is indicative of an intent that the provisions is mandatory. 1 Hence, all American authorities expounding on the meaning and application of Sec. 7, par. (1), Art. I, of the U.S. Constitution cannot be used in the interpretation of Sec. 24, Art. VI, of our 1987 Constitution which has a distinct feature of "exclusiveness" all its own. Thus, when our Constitution absolutely requires — as it is mandatory — that a particular bill should exclusively emanate from the Lower House, there is no alternative to the requirement that the bill to become valid law must originate exclusively from that House. In the interpretation of constitutions, questions frequently arise as to whether particular sections are mandatory or directory. The courts usually hesitate to declare that a constitutional provision is directory merely in view of the tendency of the legislature to disregard provisions which are not said to be mandatory. Accordingly, it is the general rule to

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regard constitutional provisions as mandatory, and not to leave any discretion to the will of the legislature to obey or disregard them. This presumption as to mandatory quality is usually followed unless it is unmistakably manifest that the provisions are intended to be merely directory. So strong is the inclination in favor of giving obligatory force to the terms of the organic law that it has even been said that neither by the courts nor by any other department of the government may any provision of the Constitution be regarded as merely directory, but that each and everyone of its provisions should be treated as imperative and mandatory, without reference to the rules and distinguishing between the directory and the mandatory statutes. 2 The framers of our 1987 Constitution could not have been the term "exclusively" if they only meant to replicate and adopt in toto the U.S. version. By inserting "exclusively" in Sec. 24, Art. VI, of our Constitution, their message is clear: they wanted it different, strong, stringent. There must be a compelling reason for the inclusion of the word "exclusively," which cannot be an act of retrogression but progression, an improvement on its precursor. Thus, "exclusively" must be given its true meaning, its purpose observed and virtue recognized, for it could not have been conceived to be of minor consequence. That construction is to be sought which gives effect to the whole of the statue — its every word. Ut magis valeat quam pereat. Consequently, any reference to American authorities, decisions and opinions, however wisely and delicately put, can only mislead in the interpretation of our own Constitution. to refer to them in defending the constitutionality of R.A. 7716, subject of the present petitions, is to argue on a false premise, i.e., that Sec. 24, Art. VI, of our 1987 Constitution is, or means exactly, the same as Sec. 7, par. (1), Art. I, of the U.S. Constitution, which is not correct. Hence, only a wrong conclusion can be drawn from a wrong premise. For example, it is argued that in the United States, from where our own legislative is patterned, the Senate can practically substitute its own tax measure for that of the Lower House. Thus, according to the Majority, citing an American case, "the validity of Sec. 37 which the Senate had inserted in the Tariff Act of 1909 by imposing an ad valorem tax based on the weight of vessels, was upheld against the claim that the revenue bill originated in the Senate in contravention of Art. I, Sec. 7, of the U.S. Constitution." 3 In an effort to be more convincing, the Majority even quotes the footnote in Introduction to American Government by F.A. Ogg and P.O. Ray which reads — Thus in 1883 the upper house struck out everything after the enacting clause of a tariff bill and wrote its own measure, which the House eventually felt obliged to accept. It likewise added 847 amendments to the Payne-Aldrich tariff act of 1909, dictated the schedules of the emergency tariff act of 1921, rewrote an extension tax revision bill in the same year, and recast most of the permanent tariff bill of 1922 4 — which in fact suggests, very clearly, that the subject revenue bill actually originated from the Lower House and was only amended, perhaps considerably, by the Senate after it was passed by the former and transmitted to the latter. In the cases cited, where the statutes passed by the U.S. Congress were upheld, the revenue bills did not actually originate from the Senate but, in fact, from the Lower House. Thus, the Supreme Court of the United States, speaking through Chief Justice White in Rainey v. United States 5 upheld the revenue bill passed by Congress and adopted the ruling of the lower court that —

. . . the secretion in question is not void as a bill for raising revenue originating in the Senate and not in the House of Representatives. It appears that the section was proposed by the Senate as an amendment to a bill for raising revenue which originated in the House. That is sufficient. Flint v. Stone Tracy Co., 6 on which the Solicitor General heavily leans in his Consolidated Comment as well as in his Memorandum, does not support the thesis of the Majority since the subject bill therein actually originated from the Lower House and not from the Senate, and the amendment merely covered a certain provision in the House bill. In fine, in the cases cited which were lifted from American authorities, it appears that the revenue bills in question actually originated from the House of Representatives and were amended by the Senate only after they were transmitted to it. Perhaps, if the factual circumstances in those cases were exactly the same as the ones at bench, then the subject revenue or tariff bill may be upheld in this jurisdiction on the principle of substantial compliance, as they were in the United States, except possibly in instances where the House bill undergoes what it now referred to as "amendment by substitution," for that would be in derogation of our Constitution which vests solely in the House of Representatives the power to initiate revenue bills. A Senate amendment by substitution simply means that the bill in question did not in effect originate from the lower chamber but from the upper chamber and now disguises itself as a mere amendment of the House version. It is also theorized that in the U.S., amendment by substitution is recognized. That may be true. But the process may be validity effective only under the U.S. Constitution. The cases before us present a totally different factual backdrop. Several months before the Lower House could even pass HB No. 11197, P.S. Res. No. 734 and SB No. 1129 had already been filed in the Senate subsequently approved SB No. 1630 "in substitution of SB No. 1129, taking into consideration P.S. Res. No. 734 and HB No. 11197," and not HB No. 11197 itself "as amended." Here, the Senate could not have proposed or concurred with amendments because there was nothing to concur with or amend except it own bill. It must be stressed that the process of concurring or amending presupposes that there exists a bill upon which concurrence may be based or amendments introduced. The Senate should have reported out HB No. 11197, as amended, even if it the amendment it took into consideration SB No. 1630. It should not have submitted to the Bicameral Conference Committee SB No. 1630 which, admittedly, did not originate exclusively from the Lower House. But even assuming that in our jurisdiction a revenue bill of the Lower House may be amended by substitution by the Senate — although I am not prepared to accept it in view of Sec. 24, Art. VI, of our Constitution — still R.A. 7716 could not have been the result of amendment by substitution since the Senate had no House bill to speak of that it could when the Senate started deliberating on its own version. Be that as it may, I cannot rest easy on the proposition that a constitutional mandate calling for the exclusive power and prerogative of the House of Representatives may just be discarded and ignored by the Senate. Since the Constitution is for the observance of all — the judiciary as well as the other departments of government — and the judges are sworn to support its provisions, the courts are not at liberty to overlook or disregard its commands. And it is not fair and just to impute to them undue interference if they look into the validity of legislative enactments to determine whether the fundamental law has been faithfully observed in the process. It is their duty to give effect to the existing Constitution and to obey all constitutional provisions irrespective of their opinion as to the wisdom of such provisions.

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The rule is fixed that the duty in a proper case to declare a law unconstitutional cannot be declined and must be performed in accordance with the deliberate judgment of the tribunal before which the validity of the enactment is directly drawn into question. When it is clear that a statute transgresses the authority vested in the legislature by the Constitution, it is the duty of the courts to declare the act unconstitutional because they cannot shirk from it without violating their oaths of office. This duty of the courts to maintain the Constitution as the fundamental law of the state is imperative and unceasing; and, as Chief Justice Marshal said, whenever a statute is in violation of the fundamental law, the courts must so adjudge and thereby give effect to the Constitution. Any other course would lead to the destruction of the Constitution. Since the question as to the constitutionality of a statute is a judicial matter, the courts will not decline the exercise of jurisdiction upon the suggestion that action might be taken by political agencies in disregard of the judgment of the judicial tribunals. 7 It is my submission that the power and authority to originate revenue bills under our Constitution is vested exclusively in the House of Representatives. Its members being more numerous than those of the Senate, elected more frequently, and more directly represent the people, are therefore considered better aware of the economic life of their individual constituencies. It is just proper that revenue bills originate exclusively from them.chanroblesvirtuallawlibrary:red In this regard, we do not have to devote much time delving into American decisions and opinions and invoke them in the interpretation of our own Constitution which is different from the American version, particularly on the enactment of revenue bills. We have our own Constitution couched in a language our own legislators thought best. Insofar as revenue bills are concerned, our Constitution is not American; it is distinctively Filipino. And no amplitude of legerdemain can detract from our constitutional requirement that 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, although the Senate may propose or concur with amendments. In this milieu, I am left no option but to vote to grant the petitions and strike down R.A. 7716 as unconstitutional. PUNO, J., dissenting:chanrob1es virtual 1aw library Petitioners plead that we affirm the self-evident proposition that they who make law should not break the law. There are many evils whose elimination can be trusted to time. The evil of lawlessness in lawmaking cannot. It must be slain on slight for it subverts the sovereignty of the people. First, a fast snapshot of the facts. On November 17, 1993, the House of Representatives passed on third reading House Bill (H.B.) No. 11197 entitled "An Act Restructuring the Value Added Tax (VAT) System to Widen its Tax Base and Enhance its Administration, Amending for These Purposes Sections 99, 100, 102 to 108 and 110 Title V and 236, 237 and 238 of Title V, all of the National Internal Revenue Code as Amended." The vote was 114 Yeas and 12 Nays. The next day, November 18, 1993, H.B. No. 11197 was transmitted to the Senate for its concurrence by the Hon. Camilo L. Sabio, Secretary General of the House of Representatives. On February 7, 1994, the Senate Committee on Ways and Means submitted Senate Bill (S.B.) No. 1630, recommending its approval "in substitution of Senate Bill No. 1129 taking into

consideration P.S. Res. No. 734 and House Bill No. 11197." On March 24, 1994, S.B. No. 1630 was approved on second and third readings. On the same day, the Senate, thru Secretary Edgardo E. Tumangan, requested the House for a conference "in view of the disagreeing provisions of S.B. No. 1630 and H.B. No. 11197." It designated the following as members of its Committee: Senators Ernesto F. Herrera, Leticia R. Shahani, Alberto S. Romulo, John H. Osmeña, Ernesto M. Maceda, Blas F. Ople, Francisco S. Tatad, Rodolfo G. Biazon, and Wigberto S. Tañada. On the part of the House, the members of the Committee were: Congressmen Exequiel B. Javier, James L. Chiongbian, Renato V. Diaz, Arnulfo P. Fuentebella, Mariano M. Tajon, Gregorio Andolong, Thelma Almario, and Catalino Figueroa. After five (5) meetings, 1 the Bicameral Conference Committee submitted its Report to the Senate and the House stating:jgc:chanrobles.com.ph "CONFERENCE COMMITTEE REPORT The Conference Committee on the disagreeing provisions of House Bill No. 11197, entitled:chanrob1es virtual 1aw library AN ACT RESTRUCTURING THE VALUE ADDED TAX (VAT) SYSTEM TO WIDEN ITS TAX BASE AND ENHANCE ITS ADMINISTRATION, AMENDING FOR THESE PURPOSES SECTIONS 99, 100, 102, 103, 104, 105, 106, 107, 108 AND 110 OF TITLE IV, 112, 115 AND 116 OF TITLE V, AND 236, 237, AND 238 OF TITLE IX, AND REPEALING SECTIONS 113 AND 114 OF TITLE V, ALL OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED

(AMENDMENTS TO THE VAT LAW [EO 273]) SHOWING ADDITIONS/INSERTIONS MADE BY BICAMERAL CONFERENCE COMMITTEE TO SB 1630 7 HB 11197 I On Sec. 99 of the NIRC H.B. 11197 amends this section by including, as liable to VAT, any person who in the course of trade of business, sells, barters, or exchanges goods and PROPERTIES and any person who LEASES PERSONAL PROPERTIES. Senate Bill 1630 deleted Sec. 99 to give way for a new Section 99 — DEFINITION OF TERMS — where eleven (11) terms were defined. A new Section, Section 99-A was incorporated which included as subject to VAT, one who sells, exchanges, barters PROPERTIES and one who imports PROPERTIES. The BCC version (R.A. 7716) makes LESSORS of goods OR PROPERTIES and importers of goods LIABLE to VAT. II On Section 100 (VAT on sale of goods) A. The H.B., S.B., and the BCC (R.A. 7716) all included sale of PROPERTIES as subject to VAT.

and Senate Bill No. 1630 entitled:chanrob1es virtual 1aw library

The term GOODS or PROPERTIES includes the following:chanrob1es virtual 1aw library

AN ACT RESTRUCTURING THE VALUE ADDED TAX (VAT) SYSTEM TO WIDEN ITS TAX BASE AND ENHANCE ITS ADMINISTRATION, AMENDING FOR THESE PURPOSES SECTIONS 99, 100, 102, 103, 104, 106, 107, 108 AND 110 OF TITLE IV, 112, 115, 117 AND 121 OF TITLE V, AND 236, 237 AND 238 OF TITLE IX, AND REPEALING SECTIONS 113, 114, 116, 119 AND 120 OF TITLE V, ALL OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED AND FOR OTHER PURPOSES

HB (pls. refer SB (pls. refer BCC (RA 7716 to Sec. 2) to Sec. 1(4) (Sec. 2) 1. Right or the privilege to use 1. The same 1. The same patent, copyright, design, or

having met, after full and free conference, has agreed to recommended and do hereby recommend to their respective Houses that House Bill No. 11197, in consolidation with Senate Bill No. 11197, in consolidation with Senate Bill No. 1630, be approved in accordance with the attached copy of the bill as reconciled and approved by the conferees.chanrobles virtual lawlibrary

model, plan, secret formula or process, goodwill trademark, tradebrand or other

Approved."cralaw virtua1aw library like property or right. The Report was approved by the House on April 27, 1994. The Senate approved it on May 2, 1994. On May 5, 1994, the President signed the bill into law as R.A. No. 7716.

2. Right or the privilege to use 2. The same 2. The same

There is no question that the Bicameral Conference Committee did more than reconcile differences between House Bill No. 11197 and Senate Bill No. 1630. In several instances, it either added new provisions or deleted provisions already approved in House Bill No. 11197 and Senate Bill No. 1630. These insertions/deletions numbering twenty four (24) are specified in detail by petitioner Tolentino as follows: 2

in the Philippines of any

"SOME SALIENT POINTS ON THE

3. Right or the privilege to use 3. The same 3. The same

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industrial, commercial, or scientific equipment.

motion picture films, films, 2. WAREHOUSING SERVICES (Ibid.,) tapes anddiscs. 3. Keepers of RESTHOUSES, PENSION HOUSES, INNS, RESORTS (Ibid.,) 4. Radio and Television time 4. The same 4. In addition to radio and 4. Common carries by LAND, AIR AND SEA (Ibid.,) television time the 5. SERVICES OF FRANCHISE GRANTEES OF TELEPHONE AND TELEGRAPH; following were included:chanrob1es virtual 1aw library 6. RADIO AND TELEVISION BROADCASTING SATELLITE TRANSMISSION and

7. ALL OTHER FRANCHISE GRANTEES EXCEPT THOSE UNDER SECTION 117 OF THIS CODE

CABLE TELEVISION

8. SERVICES OF SURETY, FIDELITY, INDEMNITY, AND BONDING COMPANIES.

TIME

9. Also inserted by the BCC (on page B thereof) is the LEASE OR USE OF OR THE RIGHT TO USE OF SATELLITE TRANSMISSION AND CABLE TELEVISION TIME

5. Other Similar 5. The same 5.’Other properties IV. On Section 103 (Exempt Transactions) similar properties’ was deleted 6. — 6. — 6. Real properties held

The BCC deleted subsection (f) in its entirety, despite its retention in both the House and Senate Bills, thus under RA 7716, the ‘printing, publication, importation or sale of books and any newspaper, magazine, review, or bulletin which appears at regular intervals with fixed prices for subscription and sale and which is not devoted principally to the publication of advertisements’ is subject to VAT.

primarily for sale to customers or held for lease in the ordinary

Subsection (g) was amended by the BCC (both Senate and House Bills did not) by changing the word TEN to FIVE, thus: "Importation of passenger and/or cargo vessel of more than five thousand ton to ocean going, including engine and spare parts of said vessel to be used by the importer himself as operator thereof." In short, importation of vessels with tonnage of more than 5 thousand is VAT exempt.

course or business. B. The HB and the BCC Bills has each provision which included THE SALE OF GOLD TO BANGKO SENTRAL NG PILIPINAS as falling under the term Export Sales, hence subject to 0% VAT. The Senate Bill does not contain such provision (See Section 102-A thereof). III On Section 102 This section was amended to include as subject to a 10% VAT the gross receipts derived from THE SALE OR EXCHANGE OF SERVICES, INCLUDING THE USE OR LEASE OF PROPERTIES. The SB, HB, and BCC have the same provisions on this.

Subsection L, was amended by the BCC by adding the qualifying phrase: EXCEPT THOSE RENDERED BY PROFESSIONALS. Subsection U which exempts from VAT "Transactions which are exempt under special laws", was amended by BCC by adding the phrase: EXCEPT THOSE GRANTED UNDER PD Nos. 66, 529, 972, 1491, and 1590, and NON-ELECTRIC COOPERATIVES under RA 6938. This is the reason why cooperatives are now subject to VAT. While the SALE OF REAL PROPERTIES was included in the exempt transactions under the House Bill, the BCC made a qualification by stating:chanrob1es virtual 1aw library

However, on what are included in the term SALE OR EXCHANGE OF SERVICES, the BCC included/inserted the following (not found in either the House or Senate Bills):chanrob1es virtual 1aw library

‘(S) SALE OF REAL PROPERTIES NOT PRIMARILY HELD FOR SALE TO CUSTOMERS OR HELD FOR LEASE IN THE ORDINARY COURSE OF TRADE OR BUSINESS OR REAL PROPERTY UTILIZED FOR LOW-COST AND SOCIALIZED HOUSING AS DEFINED BY R.A. NO. 7279 OTHERWISE KNOWN AS THE URBAN DEVELOPMENT AND HOUSING ACT OF 1992 AND OTHER RELATED LAWS.

1. Services of lessors of property WHETHER PERSONAL OR REAL; (See BCC Report/Bill p. 7)

Under the Senate Bill, the sale of real property utilized for low cost and socialized housing as

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defined by RA 7279, is one of the exempt transactions. X On Section 121 Under the House Bill, also exempt from VAT, is the SALE OF PROPERTIES OTHER THAN THE TRANSACTIONS MENTIONED IN THE FOREGOING PARAGRAPHS WITH A GROSS ANNUAL SALES AND/OR RECEIPTS OF WHICH DOES NOT EXCEED THE AMOUNT PRESCRIBED IN THE REGULATIONS TO BE PROMULGATED BY THE SECRETARY OF FINANCE WHICH SHALL NOT BE LESS THAN P350,000.00 OR HIGHER THAN P600,000.00 . . . Under the Senate Bill, the amount is P240,000.00. The BCC agreed at the amount of not less than P480,000.00 or more than P720,000.00 SUBJECT TO TAX UNDER SEC. 112 OF THIS CODE. The BCC did not include, as VAT exempt, the sale or transfer of securities as defined in the Revised Securities Act (BP 178) which was contained in both Senate and House Bills. V On Section 104 The phrase INCLUDING PACKAGING MATERIALS was included by the BCC on Section 104 (A) (1) (B), and the phrase ON WHICH A VALUE-ADDED TAX HAS BEEN ACTUALLY on Section 104 (A) (2). These phrases are not contained in either House and Senate Bills. VI On Section 107 Both House and Senate Bills provide for the payment of P500.00 VAT registration fee. The BCC provides for P1,000.00 VAT fee.

The BCC adopted the Senate Bills’ amendment to this section by subjecting to 5% premium tax on life insurance business. The House Bill does not contain this provision. XI Others A) The House Bill does not contain any provision on the deferment of VAT collection on Certain Goods and Services as does the Senate Bill (Section 19, SB 1630). But although the Senate Bill authorizes the deferment on certain goods and services for no longer than 3 years, there is no specific provision that authorizes the President to EXCLUDE from VAT any of these. The BCC uses the word EXCLUDE. B) Moreover, the Senate Bill defers the VAT on services of actors and actresses etc. for 3 years but the BCC defers it for only 2 years. C) Section 18 of the BCC Bill (RA 7716) is an entirely new provision not contained in the House/Senate Bills. D) The period within which to promulgate the implementing rules and regulations is within 60 days under SB 1630; No specific period under the House Bill, within 90 days under RA 7716 (BCC).

VII On Section 112

E) The House Bill provides for a general repealing clause i.e., all inconsistent laws etc. are repealed. Section 16 of the Senate Bill expressly repeals Sections 113, 114, 116, 119 and 120 of the code. The same Senate Bill however contains a general repealing clause in Sec. 21 thereof.

While both the Senate and House Bills provide that a person whose sales or receipts and are exempt under Section 103[w] of the Code, and who are not VAT registered shall pay a tax equivalent to THREE (3) PERCENT of his gross quarterly sales or receipts, the BCC inserted the phrase: THREE PERCENT UPON THE EFFECTIVITY OF THIS ACT AND FOUR PERCENT (4%) TWO YEARS THEREAFTER.

RA 7716 (BCC’s Bill) expressly repeals Sections 113, 114 and 116 of the NIRC; Article 39 (c) (d) and (e) of EO 226 and provides the repeal of Sec. 119 and 120 of the NIRC upon the expiration of two (2) years unless otherwise excluded by the President."cralaw virtua1aw library

VIII On Section 115 Sec. 17 of SB 1630 Sec. 12 of House Bill 11197 amends this Section by clarifying that common carriers by land, air or water FOR THE TRANSPORT OF PASSENGERS are subject to Percentage Tax equivalent to 3% of their quarterly gross sales. The BCC adopted this and the House Bill’s provision that the GROSS RECEIPTS OF COMMON CARRIERS DERIVED FROM THEIR INCOMING AND OUTGOING FREIGHT SHALL NOT BE SUBJECTED TO THE LOCAL TAXES IMPOSED UNDER RA 7160. The Senate Bill has no similar provision. IX On Section 117 This Section has not been touched by either Senate and House Bills. But the BCC amended it by subjecting franchises on ELECTRIC, GAS and WATER UTILITIES A TAX OF TWO PERCENT (2%) ON GROSS RECEIPTS DERIVED . . .

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The charge that the Bicameral Conference Committee added new provisions in the bill of the two chambers is hardly disputed by respondents. Instead, respondents justify them. According to respondents: (1) the Bicameral Conference Committee has an ex post veto power or a veto after the fact of approval of the bill by both Houses; (2) the bill prepared by the Bicameral Conferences Committee, with its additions and deletions, was anyway approved by both Houses; (3) it was the practice in past Congresses for conference committees to insert in bills approved by the two Houses new provisions that were not originally contemplated by them; and (4) the enrolled bill doctrine precludes inquiry into the regularity of the proceedings that led to the enactment of R.A. 7716. With due respect, I reject these contentions which will cave in on closer examination. First. There is absolutely no legal warrant for the bold submission that a Bicameral Conference Committee possesses the power to add/delete provisions in bills already approved on third reading by both Houses or an ex post veto power. To support this postulate that can enfeeble Congress itself, respondents cite no constitutional provision, no law, not even any rule or regulation. 3 Worse, there stance is categorically repudiated by the rules of both the Senate

and the House of Representatives which define with precision the parameters of power of a Bicameral Conference Committee.chanrobles virtual lawlibrary Thus, Section 209, Rule XII of the Rules of the Senate provides:jgc:chanrobles.com.ph "In the event that the Senate does not agree with the House of Representatives on the provisions of any bill or joint resolution, the differences shall be settled by a conference committee of both Houses which shall meet within ten days after their composition. Each Conference Committee Report shall contain a detailed and sufficiently explicit statement of the changes in or amendments to the subject measure, and shall be signed by the conferees." (Emphasis supplied) The counterpart rule of the House of Representatives is cast in near identical language. Section 85 of the Rules of the House of Representatives pertinently provides:jgc:chanrobles.com.ph "In the event that the House does not agree with the Senate on the amendments to any bill or joint resolution, the differences may be settled by a conference committee of both chambers. . . . Each report shall contain a detailed, sufficiently explicit statement of the changes in or amendments to the subject measure." (Emphasis supplied) The Jefferson’s Manual has been adopted 4 as a supplement to our parliamentary rules and practices. Section 456 of Jefferson’s Manual similarly confines the powers of a conference committee, viz: 5 "The managers of a conference must confine themselves to the differences committed to them . . . and may not include subjects not within the disagreements, even though germane to a question in issue."cralaw virtua1aw library This rules of antiquity has been honed and honored in practice by the Congress of the United States. Thus, it is chronicled by Floyd Biddick, Parliamentarian Emeritus of the United States Senate, viz: 6 "Committees of conferences are appointed for the sole purpose of compromising and adjusting the differing and conflicting opinions of the two Houses and the committees of conference alone can grant compromises and modify propositions of either Houses within the limits of the disagreement. Conferees are limited to the consideration of differences between the two Houses. Conferees shall not insert in their report matters not committed to them by either House, nor shall they strike from the bill matters agreed to by both Houses. No matter on which there is nothing in either the Senate or House passed versions of a bill may be included in the conference report and actions to the contrary would subject the report to a point of order." (Emphasis ours) In fine, there is neither a sound nor a syllable in the Rules of the Senate and the House of Representative to support the thesis of the respondents that a bicameral conference committee is clothed with an ex post veto power.

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But the thesis that a Bicameral Conference Committee can wield ex post veto power does not only contravene the rules of both the Senate and the House. It wages war against our settled ideals of representative democracy. For the inevitable, catastrophic effect of the thesis is to install a Bicameral Conference Committee as the Third Chamber of our Congress, similarly vested with the power to make laws but with the dissimilarity that its laws are not the subject of a free and full discussion of both Houses of Congress. With such a vagrant power, a Bicameral Conference Committee acting as a Third Chamber will be a constitutional monstrosity. It needs no omniscience to perceive that our Constitution did not provide for a Congress composed of three chambers. On the contrary, section 1, Article VI of the Constitution provides in clear and certain language: "The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives . . ." Note that in vesting legislative power exclusively to the Senate and the House, the Constitution used the word "shall." Its command for a Congress of two houses is mandatory. It is not mandatory sometimes. In vesting legislative power to the Senate, the Constitution means the Senate." . . composed of twenty-four Senators . . . elected at large by the qualified voters of the Philippines. . ." 7 Similarly, when the Constitution vested the legislative power to the House, it means the House." . . composed of not more than two hundred and fifty members . . . who shall be elected from legislative districts . . . and those who . . . shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations." 8 The Constitution thus, did not vest on a Bicameral Conference Committee with an ad hoc membership the power to legislate for it exclusively vested legislative power to the Senate and the House as co-equal bodies. To be sure, the Constitution does not mention the Bicameral Conference Committee with an ad hoc membership the power to legislate for it exclusively vested legislative power to the Senate and the House as co-equal bodies. To be sure, the Constitution does not mention the Bicameral Conference Committees of Congress. No constitutional status in accorded to them. They are not even statutory creations. They owe their existence from the internal rules of the two Houses of Congress. Yet, respondents peddle the disconcerting idea that they should be recognized as a Third Chamber of Congress and with ex post veto power at that. The thesis that a Bicameral Conference Committee can exercise law making power with ex post veto power is freighted with mischief. Law making is a power that can be used for good or for ill, hence, our Constitution carefully laid out a plan and a procedure for its exercise. Firstly, it vouchsafed that the power to make laws should be exercised by no other body except the Senate and the House. It ought to be indubitable that what is contemplated is the Senate acting as a full Senate and the House acting as a full House. It is only when the Senate and the House act as whole bodies that they truly represent the people. And it is only when they represent the people that they can legitimately pass laws. Laws that are not enacted by the people’s rightful representatives subvert the people’s sovereignty. Bicameral Conference Committees, with their ad hoc character and limited membership, cannot pass laws for they do not represent the people. The Constitution does not allow the tyranny of the majority. Yet, the respondents will impose the worst kind of tyranny — the tyranny of the minority over the majority. Secondly, the Constitution delineated in deft strokes the steps to be followed in making laws. The overriding purpose of these procedural rules is to assure that only bills that successfully survive the searching scrutiny of the power committees of Congress and the full and unfettered deliberations of both Houses can become laws. For this reason, a bill has to undergo three (3) mandatory separate readings in each House. In the case at bench, the additions and deletions made by the Bicameral Conference Committee did not enjoy the

enlightened studies of appropriate committees. It is meet to note that the complexities of modern day legislations have made our committee system a significant part of the legislative process. Thomas Reed called the committee system as "the eye, the ear, the hand, and very often the brain of the house." President Woodrow Wilson of the United States once referred to the government of the United States as "a government by the Chairman of the Standing Committees of Congress. . ." 9 Neither did these additions and deletions of the Bicameral Conference Committee pass through the coils of collective deliberation of the members of the two Houses acting separately. Due to this shortcircuiting of the constitutional procedure of making laws, confusion shrouds the enactment of R.A. no. 7716. Who inserted the additions and deletions remains a mystery. Why then were inserted is a riddle. To use a Churchillian phrase, lawmaking should not be a riddle wrapped in an enigma. It cannot be, for Article II, section 28 of the Constitution mandates the States to adopt and implement a "policy of full public disclosure of all its transactions involving public interest." The Constitution could not have contemplated a Congress of invisible and unaccountable John and Mary Does. A law whose rationale is a riddle and whose authorship is obscure cannot bind the people. All these notwithstanding, respondents resort to the legal cosmetology that these additions and deletions should govern the people as laws because the Bicameral Conference Committee Report was anyway submitted to and approved by the Senate and the House of Representatives. The submission may have some merit with respect to provisions agreed upon by the Committee in the process of reconciling conflicts between S.B. No. 1630 and H.B. No. 11197. In these instances, the conflicting provisions had been previously screened by the proper committees, deliberated upon by both Houses and approved by them. It is, however, a different matter with respect to additions and deletions which were entirely new and which were made not to reconcile inconsistencies between S.B. No. 1630 and H.B. No. 11197. The members of the Bicameral Conference Committee did not have any authority to add new provisions or delete provisions already approved by both Houses as it was not necessary to discharge their limited task of reconciling differences in bills. At that late stage of law making, the Conference Committee cannot add/delete provisions which can become laws without undergoing the study and deliberation of both chambers given to bills on 1st, 2nd, and 3rd readings. Even the Senate and the house cannot enact a law which will not undergo these mandatory three (3) readings required by the Constitution. If the Senate and the House cannot enact such a law, neither can the lesser Bicameral Conference Committee.chanroblesvirtual|awlibrary Moreover, the so-called choice given to the members of both Houses to either approve or disapprove the said additions and deletions is more of an optical illusion. These additions and deletions are not submitted separately for approval. They are tucked to the entire bill. The vote is on the bill as a package, i.e., together with the insertions and deletions. And the vote is either "aye" or "nay," without any further debate and deliberation. Quite often, legislators vote "yes" because they approve of the bill as a whole although they may object to its amendments by the Conference Committee. This lack of real choice is well observed by Robert Luce: 10 "Their power lies chiefly in the fact that reports of conference committees must be accepted without amendment or else rejected in toto. The impulse is to get done with the matter and so the motion to accept has undue advantage, for some motion to accept has undue advantage, for some members are sure to prefer swallowing unpalatable provisions rather than prolong controversy. This is the more likely if the report comes in the rush of business toward the end of the session, when to seek further conference might result in the loss of the measure altogether. At any time in the session there is some risk of such a result following the

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rejection of a conference report, for it may not be possible to secure a second conference, or delay may give opposition to the main proposal chance to develop more strength."cralaw virtua1aw library In a similar vein, Prof. Jack Davies commented that "conference reports are returned to assembly and Senate on a take-it or leave-it-basis, and the bodies are generally placed in the position that to leave-it is a practical impossibility." 11 Thus, he concludes that "conference committee action is the most undemocratic procedure in the legislative process." 12 The respondents also contend that the additions and deletions made by the Bicameral Conference Committee were in accord with legislative customs and usages. The argument does not persuade for it misappreciates the value of customs and usages in the hierarchy of sources of legislative rules of procedure. To be sure, every legislative assembly has the inherent right to promulgate its own internal rules. In our jurisdiction, Article VI, section 16(3) of the Constitution provides that "Each House may determine the rules of its proceedings . . ." But it is hornbook law that the sources of Rules of Procedure are many and hierarchical in character. Mason laid them down as follows: 13 ". . . 1. Rules of Procedure are derived from several sources. The principal sources are as follows:chanrob1es virtual 1aw library a. Constitutional rules. b. Statutory rules or charter provisions. c. Adopted rules. d. Judicial decisions. e. Adopted parliamentary authority. f. Parliamentary law. g. Customs and usages. 2. The rules from the different sources take precedence in the order listed above except that judicial decisions, since they are interpretations of rules from one of the other sources, take the same precedence as the source interpreted. Thus, for example, an interpretation of a constitutional provision takes precedence over a statute. 3. Whenever there is conflict between rules from these sources the rule from source listed earlier prevails over the rule from the source listed, later. Thus, where the Constitution requires three readings of bills, this provision controls over any provision of statue, adopted rules, adopted manual, or of parliamentary law, and a rule of parliamentary law controls over a local usage but must give way to any rule from a higher source of authority." (Emphasis ours) As discussed above, the unauthorized additions and deletions made by the Bicameral Conference Committee violated the procedure fixed by the Constitution in the making of laws. It is reasonless for respondents therefore to justify these insertions as sanctioned by

customs and usages. Finally, respondents seek sanctuary in the conclusiveness of an enrolled bill to bar any judicial inquiry on whether Congress observed our constitutional procedure in the passage of R.A. No. 7716. The enrolled bill theory is a historical relic that should not continuously rule us from the fossilized past. It should be immediately emphasized that the enrolled bill theory originated in England where there is no written constitution and where Parliament is supreme. 14 In this jurisdiction, we have a written constitution and the legislature is a body of limited powers. Likewise, it must be pointed out that starting from the decade of the 40’s, even American courts have veered away from the rigidity and unrealism of the conclusiveness of an enrolled bill. Prof. Sutherland observed: 15 ". . . . Where the failure of constitutional compliance in the enactment of statutes is not discoverable from the face of the act itself but may be demonstrated by recourse to the legislative journals, debates, committee reports or papers of the governor, courts have used several conflicting theories with which to dispose of the issue. They have held: (1) that the enrolled bill is conclusive and like the sheriff’s return cannot be attacked; (2) that the enrolled bill is prima facie correct and only in case the legislative journal shows affirmative contradiction of the constitutional requirement will the bill be held invalid, (3) that although the enrolled bill is prima facie correct, evidence from the journals, or other extrinsic sources is admissible to strike the bill down; (4) that the legislative journal is conclusive and the enrolled bill is valid only if it accords with the recital in the journal and the constitutional procedure."cralaw virtua1aw library Various jurisdictions have adopted these alternative approaches in view of strong dissent and dissatisfaction against the philosophical underpinnings of the conclusiveness of an enrolled bill. Prof. Sutherland further observed:jgc:chanrobles.com.ph ". . . Numerous reasons have been given for this rule. Traditionally, an enrolled bill was ‘a record’ and as such was not subject of attack at common law. Likewise, the rule of conclusiveness was similar to the common law rule of the inviolability of the sheriff’s return. Indeed, they have the same origin, that is, the sheriff was an officer of the king and likewise the parliamentary act was a regal act and no official might dispute the king’s word. Transposed to our democratic system of government, courts held that as the legislature was an official branch of government the court must indulge every presumption that the legislative act was valid. The doctrine of separation of powers was advanced as a strong reason why the court should treat the acts of a co-ordinate branch of government with the same respect as it treats the action of its own officers; indeed, it was thought that it was entitled to even greater respect, else the court might be in the position of reviewing the work of a supposedly equal branch of government. When these arguments failed, as they frequently did, the doctrine of convenience was advanced, that is, that it was not only an undue burden upon the legislature to preserve its records to meet the attack of persons not affected by the procedure of enactment, but also that it unnecessarily complicated litigation and confused the trial of substantive issues. Although many of these arguments are persuasive and are indeed the basis for the rule in many states today, they are not invulnerable to attack. The rule most relied on — the sheriff’s return or sworn official rule — did not in civil litigation deprive the injured party of an action, for always he could sue the sheriff upon his official bond. Likewise, although collateral attack

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was not permitted, direct attack permitted raising the issue of fraud, and at a later date attack in equity was also available; and that the evidence of the sheriff was not of unusual weight was demonstrated by the fact that in an action against the sheriff no presumption of its authenticity prevailed. The argument that the enrolled bill is a ‘record’ and therefore unimpeachable is likewise misleading, for the correction of records is a matter of established judicial procedure. Apparently, the justification is either the historical one that the king’s word could not be questioned or the separation of powers principle that one branch of the government must treat as valid the acts of another. Persuasive as these arguments are, the tendency today is to avoid reaching results by artificial presumptions and thus it would seem desirable to insist that the enrolled bill stand or fall on the basis of the relevant evidence which may be submitted for or against it." (Emphasis ours) Thus, as far back as the 1940’s, Prof. Sutherland confirmed that." . . the tendency seems to be toward the abandonment of the conclusive presumption rule and the adoption of the third rule leaving only a prima facie presumption of validity which may be attacked by any authoritative source of information." 16 I am not unaware that this Court has subscribed to the conclusiveness of an enrolled bill as enunciated in the 1947 lead case of Mabanag v. Lopez Vito, and reiterated in subsequent cases. 17 With due respect, I submit that these rulings are no longer good law. Part of the ratiocination in Mabanag states:jgc:chanrobles.com.ph ". . . If for no other reason than that it conforms to the expressed policy of our law making body, we choose to follow the rule. Section 313 of the old Code of Civil Procedure, as amended by Act No. 2210, provides: ‘Official documents’ may be proved as follows: . . . (2) the proceedings of the Philippine Commission, or of any legislative body that may be provided for in the Philippine Islands, or of Congress, by the journals of those bodies or of either house thereof, or by published statutes or resolutions or by published statutes or resolutions, or by copies certified by the clerk or secretary, or printed by their order; Provided, That in the case of Acts of the Philippine Commission or the Philippine Legislature, when there is an existence of a copy signed by the presiding officers and secretaries of said bodies, it shall be conclusive proof of the provisions of such Acts and of the due enactment thereof."cralaw virtua1aw library Suffice to state that section 313 of the Old Code of Civil Procedure as amended by Act No. 2210 is no longer in our statute books. It has long been repealed by the Rules of Court. Mabanag also relied on jurisprudence and authorities in the United States which are under severe criticisms by modern scholars. Hence, even in the United States the conclusiveness of an enrolled bill has been junked by most of the States. It is also true that as late as last year, in the case of Philippine Judges Association v. Prado, op. cit., this Court still relied on the conclusiveness of an enrolled bill as it refused to invalidate a provision of law on the ground that it was merely inserted by the bicameral conference committee of both Houses. Prado, however, is distinguishable. In Prado, the alleged insertion of the second paragraph of section 35 of R.A. No. 7354 repealing the franking privilege of the judiciary does not appear to be an uncontested fact. In the case at bench, the numerous additions/deletions made by the

Bicameral Conference Committee as detailed by petitioners Tolentino and Salonga are not disputed by the respondents. In Prado, the Court was not also confronted with the argument that it can no longer rely on the conclusiveness of an enrolled bill in light of the new provision in the Constitution defining judicial power. More specifically, section 1 of Article VIII now provides:jgc:chanrobles.com.ph "Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." (Emphasis supplied) Former Chief Justice Roberto R. Concepcion, the sponsor of this provision in the Constitutional Commission explained the sense and the reach of judicial power as follows: 18 ". . . . . . In other words, the judiciary is the final arbiter on the question of whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature. This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute political question." (Emphasis ours) The Constitution cannot be any clearer. What it granted to this Court is not a mere power which it can decline to exercise. Precisely to deter this disinclination, the Constitution imposed it as a duty of this Court to strike down any act of a branch or instrumentality of government or any of its officials done with grave abuse of discretion amounting to lack of excess of jurisdiction. Rightly or wrongly, the Constitution has elongated the checking powers of this Court against the other branches of government despite their more democratic character, the President and the legislators being elected by the people. It is, however, theorized that this provision is nothing new. 19 I beg to disagree for the view misses the significant changes made in our constitutional canvass to cure the legal deficiencies we discovered during martial law. One of the areas radically changed by the framers of the 1987 Constitution is the imbalance of power between and among the three great branches of our government — the Executive, the Legislative and the Judiciary. To upgrade the powers of the Judiciary, the Constitutional Commission strengthened some more the independence of courts. Thus, it further protected the security of tenure of the members of the Judiciary by providing "No law shall be passed reorganizing the Judiciary when it undermines the security to tenure of its Members." 20 It also guaranteed fiscal autonomy to the Judiciary. 21 More, it depoliticalized appointments in the judiciary by creating the Judicial and Bar Council which was tasked with screening the list of prospective appointees to the judiciary. 22 The power of confirming appointments to the judiciary was also taken away from Congress. 23 The President was likewise given a specific time to fill up vacancies in the judiciary — ninety (90)

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days from the occurrence of the vacancy in case of the Supreme Court 24 and ninety (90) days from the submission of the list of recommendees by the Judicial and Bar Council in case of vacancies in the lower courts. 25 To further insulate appointments in the judiciary from the virus of politics, the Supreme Court was given the power to "appoint all officials and employees of the Judiciary in accordance with the Civil Service Law." 26 And to made the separation of the judiciary from the other branches of government more watertight, it prohibited members of the judiciary to be." . . designated to any agency performing quasi judicial or administrative functions." 27 While the Constitution strengthened the sinews of the Supreme Court, it reduced the powers of the two other branches of government, especially the Executive. Notable of the powers of the President clipped by the Constitution is his power to suspend the writ of habeas corpusand to proclaim martial law. The exercise of this power is now subject to revocation by Congress. Likewise, the sufficiency of the factual basis for the exercise of said power may be reviewed by this Court in an appropriate proceeding filed by any citizen. 28 The provision defining judicial power as including the "duty of the courts of justice . . . to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government" constitutes the capstone of the efforts of this Court vis-a-vis the other branches of government. This provision was dictated by our stronger and more independent judiciary is needed to abort abuses in government. As sharply stressed by petitioner Salonga, this provision is distinctly Filipino and its interpretation should not be depreciated by undue reliance on inapplicable foreign jurisprudence. It is thus crystal clear that unlike other Supreme Courts, this Court has been mandated by our new Constitution to be a more active agent in annulling acts of grave abuse of discretion committed by a branch of government or any of its officials. This new role, however, will be compel the Court, appropriately defined by Prof. A. Bickel as the least dangerous branch of government, to assume imperial powers and run roughshod over the principle of separation of power for that is judicial tyranny by any language. But while respecting the essentials of the principle of separation of power, the Court is not to be restricted by its non-essentials. Applied to the case at bench, by voiding R.A. No. 7716 on the ground that its enactment violated the procedure imposed by the Constitution in lawmaking, the Court is not by any means wrecking the wall separating the powers between the legislature and the judiciary. For in so doing, the Court is not engaging in lawmaking which is the essence of legislative power. But the Court’s interposition of the enrolled bill. A resort to this fiction will result in the enactment of laws not properly deliberated upon the passed by Congress. Certainly, the enrolled bill theory was not conceived to cover up violations of the constitutional procedure in law making, a procedure intended to assure the passage of good laws. The conclusiveness of the enrolled bill can, therefore, be disregarded for it is not necessary to preserve the principle of separation of powers. In sum, I submit that in imposing to this Court the duty to annul acts of government committed with grave abuse of discretion, the new Constitution transformed this Court from passivity to activism. This transformation, dictated by our distinct experience as a nation, is not merely evolutionary but revolutionary. Under the 1935 and 1973 Constitutions, this Court approached constitutional violations by initially determining what it cannot do; under the 1987 Constitution, there is a shift in stress — this Court is mandated to approach constitutional violations not by fining out what it should not do but what it must do. The Court must discharge this solemn duty by not resuscitating a past that petrifies the present. I vote to declare R.A. No. 7716 unconstitutional. VITUG, J., concuring:chanrob1es virtual 1aw library

Lest we be lost by a quagmire of trifles, the real threshold and prejudicial issue, to mind, is whether or not this Court is ready to assume and to take upon itself with an overriding authority the awesome responsibility of overseeing the entire bureaucracy. Far from it, ours is merely to construe and to apply the law regardless of its wisdom and salutariness, and to strike it down only when it clearly disregards constitutional proscriptions. It is what the fundamental law mandates, and it is what the Court must do.chanrobles virtual lawlibrary I cannot yet concede to the novel theory, so challengingly provocative as it might be, that under the 1987 Constitution the Court may now at good liberty intrude, in the guise of the people’s imprimatur, into every affair of government. What significance can still then remain, I ask, of the time honored and widely acclaimed principle of separation of powers, if at every turn the Court allows itself to pass upon, at will, the disposition of a co-equal, independent and coordinate branch in our system of government. I dread to think of the so varied uncertainties that such an undue interference can lead to. The respect for long standing doctrines in our jurisprudence, nourished through time, is one of maturity not timidity, of stability rather than quiescence. It has never occurred to me, and neither do I believe it has been intended, that judicial tyranny is envisioned, let alone institutionalized, by our people in the 1987 Constitution. The test of tyranny is not solely on how it is wielded but on how, in the first place, it can be capable of being exercised. it is time that any such perception of judicial omnipotence is corrected. Against all that has been said, I see, in actuality in these cases at bench, neither a constitutional infringement of substance, judging from precedents already laid down by this Court in previous cases, nor a justiciability even now of the issues raised, more than an attempt to sadly highlight the perceived shortcomings in the procedural enactment of laws, a matter which is internal to Congress and an area that is best left to its own basic concern. The fact of the matter is that the legislative enactment, in its final form, has received the ultimate approval of both houses of Congress. the finest rhetoric, indeed fashionable in the early part of this closing century, would still be a poor substitute for tangibility. I join, nonetheless, some of my colleagues in respectfully inviting the kind attention of the honorable members of our Congress in the suggested circumspect observance of their own rules. A final remark. I should like to make it clear that this opinion does not necessarily foreclose the right, peculiar to any taxpayer adversely affected, to pursue at the proper time, in appropriate proceedings, and in proper fora, the specific remedies prescribed therefor by the National Internal Revenue Code, Republic Act 1125, and other laws, as well as rules of procedure, such as may be pertinent. Some petitions filed with this Court are, in essence, although styled differently, in the nature of declaratory relief over which this Court is bereft of original jurisdiction. All considered, I, therefore, join my colleagues who are voting for the dismissal of the petitions.

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EN BANC

The questions ask, to wit:jgc:chanrobles.com.ph

[G.R. No. L-44640. October 12, 1976.]

"(1) Do your want martial law to be continued?

PABLITO V. SANIDAD, Petitioner, v. HONORABLE COMMISSION ON ELECTIONS and HONORABLE NATIONAL TREASURER, Respondents. [G.R. No. L-44684. October 12, 1976.] VICENTE M. GUZMAN, Petitioner, v. COMMISSION ELECTIONS, Respondents. [G.R. No. L-44714. October 12, 1976.] RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO SALAPANTAN, Petitioner, v. HONORABLE COMMISSION ON ELECTIONS and HONORABLE NATIONAL TREASURER, Respondents.

D E C I S I O N

MARTIN, J.:

The capital question raised in these prohibition suits with preliminary injunction relates to the power of the incumbent President of the Philippines to propose amendments to the present Constitution in the absence of the interim National Assembly which has not been convened.chanrobles.com:cralaw:red On September 2, 1976, President Ferdinand E. Marcos issued Presidential Decree No. 991 calling for a national referendum on October 16, 1976 for the Citizens Assemblies ("barangays") to resolve, among other things, the issues of martial law, the interim assembly, its replacement, the powers of such replacement, the period of its existence, the length of the period for the exercise by the President of his present powers. 1 Twenty days after or on September 22, 1976, the President issued another related decree, Presidential Decree No. 1031, amending the previous Presidential Decree No. 991, by declaring the provisions of Presidential Decree No. 229 providing for the manner of voting and canvass of votes in "barangays" (Citizens Assemblies) applicable to the national referendum-plebiscite of October 16, 1976. Quite relevantly, Presidential Decree No. 1031 repealed inter alia, Section 4, of Presidential Decree No. 991, the full text of which (Section 4) is quoted in the footnote below. 2 On the same date of September 22, 1976, the President issued Presidential Decree No. 1033, stating the questions to be submitted to the people in the referendum-plebiscite on October 16, 1976. The Decree recites in its "whereas" clauses that the people’s continued opposition to the convening of the interim National Assembly evinces their desire to have such body abolished and replaced thru a constitutional amendment, providing for a new interim legislative body, which will be submitted directly to the people in the referendum-plebiscite of October 16.

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(2) Whether or not you want martial law to be continued, do you approve the following amendments to the Constitution? For the purpose of the second question, the referendum shall have the effect of a plebiscite within the contemplation of Section 2 of Article XVI of the Constitution. PROPOSED AMENDMENTS:chanrob1es virtual 1aw library 1. There shall be, in lieu of the interim National Assembly, an interim Batasang Pambansa. Members of the interim Batasang Pambansa which shall not be more than 120, unless otherwise provided by law, shall include the incumbent President of the Philippines, representatives elected from the different regions of the nation, those who shall not be less than eighteen years of age elected by their respective sectors, and those chosen by the incumbent President from the members of the Cabinet. Regional representatives shall be apportioned among the regions in accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio while the sectors shall be determined by law. The number of representatives from each region or sector and the, manner of their election shall be prescribed and regulated by law. 2. The interim Batasang Pambansa shall have the same powers and its members shall have the same functions, responsibilities, rights, privileges, and disqualifications as the interim National Assembly and the regular National Assembly and the members thereof. However, it shall not exercise the power provided in Article VIII, Section 14(1) of the Constitution. 3. The incumbent President of the Philippines shall, within 30 days from the election and selection of the members, convene the interim Batasang Pambansa and preside over its sessions until the Speaker shall have been elected. The incumbent President of the Philippines shall be the Prime Minister and he shall continue to exercise all his powers even after the interim Batasang Pambansa is organized and ready to discharge its functions and likewise be shall continue to exercise his powers and prerogatives under the nineteen hundred and thirty five. Constitution and the powers vested in the President and the Prime Minister under this Constitution. 4. The President (Prime Minister) and his Cabinet shall exercise all the powers and functions, and discharge the responsibilities of the regular President (Prime Minister) and his Cabinet, and shall be subject only to such disqualifications as the President (Prime Minister) may prescribe. The President (Prime Minister) if he so desires may appoint a Deputy Prime Minister or as many Deputy Prime Ministers as he may deem necessary. 5. The incumbent President shall continue to exercise legislative powers until martial law shall have been lifted. 6. Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action, he may, in order to meet the exigency, issue the necessary decrees, orders or letters of instructions, which shall form part of the law of the land.

7. The barangays and sanggunians shall continue as presently constituted but their functions, powers, and composition may be altered by law. Referenda conducted thru the barangays and under the supervision of the Commission on Elections may be called at any time the government deems it necessary to ascertain the will of the people regarding any important matter whether of national or local interest.

the submission of the proposed amendments in such a short period of time for deliberation renders the plebiscite a nullity; to lift Martial Law, the President need not consult the people via referendum; and allowing 15-year olds to vote would amount to an amendment of the Constitution, which confines the right of suffrage to those citizens of the Philippines 18 years of age and above. We find the petitions in the three entitled cases to be devoid of merit.

8. All provisions of this Constitution not inconsistent with any of these amendments shall continue in full force and effect. 9. These amendments shall take effect after the incumbent President shall have proclaimed that they have been ratified by a majority of the votes cast in the referendumplebiscite."cralaw virtua1aw library The Commission on Elections was vested with the exclusive supervision and control of the October 1976 National Referendum-Plebiscite. On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD, father and son, commenced L-44640 for Prohibition with Preliminary Injunction seeking to enjoin the Commission on Elections from holding and conducting the Referendum Plebiscite on October 16; to declare without force and effect Presidential Decree Nos. 991 and 1033, insofar as they propose amendments to the Constitution, as well as Presidential Decree No. 1031, insofar as it directs the Commission on Elections to supervise, control, hold, and conduct the ReferendumPlebiscite scheduled on October 16, 1976. Petitioners contend that under the 1935 and 1973 Constitutions there is no grant to the incumbent President to exercise the constituent power to propose amendments to the new Constitution. As a consequence, the Referendum-Plebiscite on October 16 has no constitutional or legal basis. On October 5, 1976, the Solicitor General filed the comment for respondent Commission on Elections. The Solicitor General principally maintains that petitioners have no standing to sue; the issue raised is political in nature, beyond judicial cognizance of this Court; at this state of the transition period, only the incumbent President has the authority to exercise constituent power; the referendum-plebiscite is a step towards normalization. On September 30, 1976, another action for Prohibition with Preliminary Injunction, docketed as L-44684, was instituted by VICENTE M. GUZMAN, a delegate to the 1971 Constitutional Convention, asserting that the power to propose amendments to, or revision of the Constitution during the transition period is expressly conferred on the interim National Assembly under action 16, Article XVII of the Constitution. 3 Still another petition for Prohibition with Preliminary Injunction was filed on October 5, 1976 by RAUL M. GONZALES, his son RAUL, JR., and ALFREDO SALAPANTAN, docketed as L44714, to restrain the implementation of Presidential Decrees relative to the forthcoming Referendum-Plebiscite of October 16. These last petitioners argue that even granting him legislative powers under Martial Law, the incumbent President cannot act as a constituent assembly to propose amendments to the Constitution; a referendum-plebiscite is untenable under the Constitutions of 1935 and 1973;

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I

Justiciability of question raised. 1. As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo C. Sanidad and Pablito V. Sanidad) possess locus standi to challenge the constitutional premise of Presidential Decree Nos. 991, 1031, and 1033. It is now an ancient rule that the valid source of a statute — Presidential Decrees are of such nature — may be contested by one who will sustain a direct injury as a result of its enforcement. At the instance of taxpayers, laws providing for the disbursement of public funds may be enjoined, upon the theory that the expenditure of public funds by an officer of the State for the purpose of executing an unconstitutional act constitutes a misapplication of such funds. 4 The breadth of Presidential Decree No. 991 carries an appropriation of Five Million Pesos for the effective implementation of its purposes. 5 Presidential Decree No. 1031 appropriates the sum of Eight Million Pesos to carry out its provisions. 6 The interest of the aforenamed petitioners as taxpayers in the lawful expenditure of these amounts of public money sufficiently clothes them with that personality to litigate the validity of the Decrees appropriating said funds. Moreover, as regards taxpayer’s suits, this Court enjoys that open discretion to entertain the same or not. 7 For the present case, We deem it sound to exercise that discretion affirmatively so that the authority upon which the disputed Decrees are predicated may be inquired into. 2. The Solicitor General would consider the question at bar as a pure political one, lying outside the domain of judicial review. We disagree. The amending process both as to proposal and ratification, raises a judicial question. 8 This is especially true in cases where the power of the Presidency to initiate the amending process by proposals of amendments, a function normally exercised by the legislature, is seriously doubted. Under the terms of the 1973 Constitution, the power to propose amendments to the Constitution resides in the interim National Assembly during the period of transition (Sec. 15, Transitory Provisions). After that period, and the regular National Assembly in its active session, the power to propose amendments becomes ipso facto the prerogative of the regular National Assembly (Sec. 1, pars. 1 and 2 of Art. XVI, 1973 Constitution). The normal course has not been followed. Rather than calling the interim National Assembly to constitute itself into a constituent assembly, the incumbent President undertook the proposal of amendments and submitted the proposed amendments thru Presidential Decree 1033 to the people in a Referendum-Plebiscite on October 16. Unavoidably, the regularity of the procedure for amendments, written in lambent words in the very Constitution sought to be amended, raises a contestable issue. The implementing Presidential Decree Nos. 991, 1031, and 1033, which commonly purport to have the force and effect of legislation are assailed as invalid, thus the issue of the validity of said Decrees is plainly a justiciable one, within the competence of this Court to pass upon. Section 2 (2) Article X of the new Constitution provides: "All cases involving the constitutionality of a treaty, executive agreement, or law shall be heard and decided by the Supreme Court en banc and no treaty, executive agreement, or law may be declared unconstitutional without the concurrence of at

least ten Members. . . .." The Supreme Court has the last word in the construction not only of treaties and statutes, but also of the Constitution itself. 9 The amending, like all other powers organized in the Constitution, is in form a delegated and hence a limited power, so that the Supreme Court is vested with that authority to determine whether that power has been discharged within its limits.chanrobles law library : red Political questions are neatly associated with the wisdom, not the legality of a particular act. Where the vortex of the controversy refers to the legality or validity of the contested act, that matter is definitely justiciable or non-political. What is in the heels of the Court is not the wisdom of the act of the incumbent President in proposing amendments to the Constitution, but his constitutional authority to perform such act or to assume the power of a constituent assembly. Whether the amending process confers on the President that power to propose amendments is therefore a downright justiciable question. Should the contrary be found, the actuation of the President would merely he a brutum fulmen. If the Constitution provides how it may be amended, the judiciary as the interpreter of that Constitution, can declare whether the procedure followed or the authority assumed was valid or not. 10 We cannot accept the view of the Solicitor General, in pursuing his theory of non-justiciability, that the question of the President’s authority to propose amendments and the regularity of the procedure adopted for submission of the proposals to the people ultimately lie in the judgment of the latter. A clear Descartes fallacy of vicious circle. Is it not that the people themselves, by their sovereign act, provided for the authority and procedure for the amending process when they ratified the present Constitution in 1973? Whether, therefore, that constitutional provision has been followed or not is indisputably a proper subject of inquiry, not by the people themselves — of course — who exercise no power of judicial review, but by the Supreme Court in whom the people themselves vested that power, a power which includes the competence to determine whether the constitutional norms for amendments have been observed or not. And, this inquiry must be done a priori not a posteriori, i.e., before the submission to and ratification by the people. Indeed, the precedents evolved by the Court on prior constitutional cases underline the preference of the Court’s majority to treat such issue of Presidential role in the amending process as one of non-political impression. In the Plebiscite Cases, 11 the contention of the Solicitor General that the issue on the legality of Presidential Decree No. 73 "submitting to the Filipino people (on January 15, 1973) for ratification or rejection the Constitution of the Republic of the Philippines proposed by the 1971 Constitutional Convention and appropriating funds therefor, "is a political one, was rejected and the Court unanimously considered the issue as justiciable in nature. Subsequently, in the Ratification Cases 12 involving the issue of whether or not the validity of Presidential Proclamation No. 1102, "announcing the Ratification by the Filipino people of the Constitution proposed by the 1971 Constitutional Convention," partakes of the nature of a political question, the affirmative stand of the Solicitor General was dismissed, the Court ruled that the question raised is justiciable. Chief Justice Concepcion, expressing the majority view, said," (T)hus, in the aforementioned plebiscite cases, We rejected the theory of the respondents therein that the question-whether Presidential Decree No. 73 calling a plebiscite to be held on January 15, 1973, for the ratification or rejection of the proposed new Constitution, was valid or not, was not a proper subject of judicial inquiry because, they claimed, it partook of a political nature, and We unanimously declared that the issue was a justiciable one. With identical unanimity. We overruled the respondent’s contention in the 1971 habeas corpus cases, questioning Our authority to determine the constitutional sufficiency of the factual bases of the Presidential proclamation suspending the privilege of the writ of habeas corpus on August 21, 1971, despite the opposite view taken by this Court in

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Varcelon v. Baker and Montenegro v. Castañeda, insofar as it adhered to the former case, which view We, accordingly, abandoned and refused to apply. For the same reason, We did not apply and expressly modified, in Gonzales v. Commission on Elections, the political-question thereby adopted in Mabanag v. Lopez Vito." 13 The return to Barcelon v. Baker and Mabanag v. Lopez Vito, urged by the Solicitor General, was decisively refused by the Court. Chief Justice Concepcion continued: "The reasons adduced in support thereof are, however, substantially the same as those given in support of the political question theory advanced in said habeas corpus and plebiscite cases, which were carefully considered by this Court and found by it to be legally unsound and constitutionally untenable. As consequence. Our decisions in the aforementioned habeas corpus cases partakes of the nature and effect of a stare decisis which gained added weight by its virtual reiteration."cralaw virtua1aw library II

The amending process as laid out in the new Constitution. 1. Article XVI of the 1973 Constitution on Amendments ordains:jgc:chanrobles.com.ph "SECTION 1. (1) Any amendment to, or revision of, this Constitution may be proposed by the National Assembly upon a vote of three-fourths of all its Members, or by a constitutional convention. (2) The National Assembly may, by a vote of two-thirds of all its Members, call a constitutional convention or, by a majority vote of all its Members, submit the question of calling such a convention to the electorate in an election. SECTION 2. Any amendment to, or revision of, this Constitution shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not later than three months a after the approval of such amendment or revision."cralaw virtua1aw library In the present period of transition, the interim National Assembly instituted in the Transitory Provisions is conferred with that amending power. Section 15 of the Transitory Provisions reads:jgc:chanrobles.com.ph "SECTION 15. The interim National Assembly, upon special call by the interim Prime Minister, may, by a majority vote of all its Members, propose amendments to this Constitution. Such amendments shall take effect when ratified in accordance with Article Sixteen hereof."cralaw virtua1aw library There are, therefore, two periods contemplated in the constitutional life of the nation, i.e., period of normalcy and period of transition. In times of normalcy, the amending process may be initiated by the proposals of the (1) regular National Assembly upon a vote of three-fourths of all its members; or (2) by a Constitutional Convention called by a vote of two-thirds of all the Members of the National Assembly. However the calling of a Constitutional Convention may be submitted to the electorate in an election voted upon by a majority vote of all the members of the National Assembly. In times of transition, amendments may be proposed by a majority vote of all the Members of the interim National Assembly upon special call by the interim Prime Minister.

2. This Court in Aquino v. COMELEC, 14 had already settled that the incumbent President is vested with that prerogative of discretion as to when he shall initially convene the interim National Assembly. Speaking for the majority opinion in that case, Justice Makasiar said: "The Constitutional Convention intended to leave to the President the determination of the time when he shall initially convene the interim National Assembly, consistent with the prevailing conditions of peace and order in the country." Concurring, Justice Fernandez, himself a member of that Constitutional Convention, revealed:" (W)hen the Delegates to the Constitutional Convention voted on the Transitory Provisions, they were aware of the fact that under the same, the incumbent President was given the discretion as to when he could convene the interim National Assembly; it was so stated plainly by the sponsor, Delegate Yaneza; as a matter of fact, the proposal that it be convened ‘immediately’, made by Delegate Pimentel (V), was rejected." 15 The President’s decision to defer the convening of the interim National Assembly soon found support from the people themselves. In the plebiscite of January 10-15, 1973, at which the ratification of the 1973 Constitution was submitted, the people voted against the convening of the interim National Assembly. In the referendum of July 24, 1973, the Citizens Assemblies ("bagangays") reiterated their sovereign will to withhold the convening of the interim National Assembly. Again, in the referendum of February 27, 1975, the proposed question of whether the interim National Assembly shall be initially convened was eliminated, because some of the members of Congress and delegates of the Constitutional Convention, who were deemed automatically members of the interim National Assembly, were against its inclusion since in that referendum of January, 1973, the people had already resolved against it. 3. In sensu striciore, when the legislative arm of the state undertakes the proposals of amendment to a Constitution, that body is not in the usual function of lawmaking. It is not legislating when engaged in the amending process. 16 Rather, it is exercising a peculiar power bestowed upon it by the fundamental charter itself. In the Philippines, that power is provided for in Article XVI of the 1973 Constitution (for the regular National Assembly) or in Section 15 of the Transitory Provisions (for the interim National Assembly). While ordinarily it is the business of the legislating body to legislate for the nation by virtue of constitutional conferment, amending of the Constitution is not legislative in character. In political science a distinction is made between constitutional content of an organic character and that of a legislative character. The distinction, however, is one of policy, not of law. 17 Such being the case, approval of the President of any proposed amendment is a misnomer. 18 The prerogative of the President to approve or disapprove applies only to the ordinary cases of legislation. The President has nothing to do with proposition or adoption of amendments to the Constitution. 19 III

Concentration of Powers in the President during crisis government. 1. In general, the governmental powers in crisis government — the Philippines is a crisis government today — are more or less concentrated in the President. 20 According to Rossiter," (t)he concentration of government power in a democracy faced by an emergency is a corrective to the crisis inefficiencies inherent in the doctrine of the separation of powers. In most free

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states it has generally been regarded as Imperative that the total power of the government be parceled out among three mutually independent branches — executive, legislature, and judiciary. It is believed to be distructive of constitutionalism if any one branch should exercise any two or more types of power, and certainly a total disregard of the separation of powers is, as Madison wrote in the Federalist, No. 47, ‘the very definition of tyranny.’ In normal times the separation of powers forms a distinct obstruction to arbitrary governmental action. By this same token, in abnormal times it may form an insurmountable barrier to a decisive emergency action in behalf of the state and its independent existence. There are moments in the life of any government when all powers must work together in unanimity of purpose and action, even if this means the temporary union of executive, legislative, and judicial power in the hands of one man. The more complete the separation of powers in a constitutional system, the more difficult and yet the more necessary will be their fusion in time of crisis." This is evident in a comparison of the crisis potentialities of the cabinet and presidential systems of government. In the former the all-important harmony of legislature and executive is taken for granted; in the latter it is neither guaranteed nor to be to confidently expected. As a result, cabinet is more easily established and more trustworthy than presidential dictatorship. The power of the state in crisis must not only be concentrated and expanded; it must also be freed from the normal system of constitutional and legal limitations. 21 John Locke, on the other hand, claims for the executive in its own right a broad discretion capable even of setting aside the ordinary laws in the meeting of special exigencies for which the legislative power had not provided. 22 The rationale behind such broad emergency powers of the Executive is the release of the government from "the paralysis of constitutional restraints" so that the crisis may be ended and normal times restored. 2. The presidential exercise of legislative powers in times of martial law is now a conceded valid act. That sun clear authority of the President is saddled on Section 3 (pars. 1 and 2) of the Transitory Provisions, thus: 23 "The incumbent President of the Philippines shall initially convene the interim National Assembly and shall preside over its sessions until the interim Speaker shall have been elected. He shall continue to exercise his powers and prerogatives under the nineteen hundred and thirty-five Constitution and the powers vested in the President and the Prime Minister under this Constitution until 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. All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the incumbent President shall be part of the law of the land, and shall remain valid, binding, and effective even after lifting of martial law or the ratification of this Constitution, unless modified, revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or other acts of the incumbent President, or unless expressly and explicitly modified or repealed by the regular National Assembly."cralaw virtua1aw library "It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention delegate, "that the Constitutional Convention, while giving to the President the discretion when to call the interim National Assembly to session, and knowing that it may not be convened soon, would create a vacuum in the exercise of legislative powers. Otherwise, with no one to exercise the lawmaking powers, there would be paralyzation of the entire governmental machinery." 24 Paraphrasing Rossiter, this is an extremely important factor in any constitutional dictatorship which extends over a period of time. The separation of executive — and legislature ordained in the Constitution presents a distinct obstruction to efficient crisis government. The steady

increase in executive power is not too much a cause for worry as the steady increase in the magnitude and complexity of the problems the President has been called upon by the Filipino people to solve in their behalf, which involve rebellion, subversion, secession, recession, inflation, and economic crisis — a. crisis greater than war. In short, while conventional constitutional law just confines the President’s power as Commander-in-Chief to the direction of the operation of the national forces, yet the facts of our political, social, and economic disturbances had convincingly shown that in meeting the same, indefinite power should be attributed to the President to take emergency measures.25cralaw:red IV

Authority of the incumbent President to propose amendments to the Constitution. 1. As earlier pointed out, the power to legislate is constitutionally consigned to the interim National Assembly during the transition period. However, the initial convening of that Assembly is a matter fully addressed to the judgment of the incumbent President. And, in the exercise of that judgment, the President opted to defer convening of that body in utter recognition of the people’s preference. Likewise, in the period of transition, the power to propose amendments to the Constitution lies in the interim National Assembly upon special call by the President (Sec. 15 of the Transitory Provisions). Again, harking to the dictates of the sovereign will, the President decided not to call the interim National Assembly. Would it then be within the bounds of the Constitution and of law for the President to assume that constituent power of the interim Assembly vis-a-vis his assumption of that body’s legislative functions? The answer is yes. If the President has been legitimately discharging the legislative functions of the interim Assembly, there is no reason why he cannot validly discharge the function of that Assembly to propose amendments to the Constitution, which is but adjunct, although peculiar, to its gross legislative power. This, of course, is not to say that the President has converted his office into a constituent assembly of that nature normally constituted by the legislature. Rather, with the interim National Assembly not convened and only the Presidency and the Supreme Court in operation, the urges of absolute necessity render it imperative upon the President to act as agent for and in behalf of the people to propose amendments to the Constitution. Parenthetically, by its very constitution, the Supreme Court possesses no capacity to propose amendments without constitutional infractions. For the President to shy away from that actuality and decline to undertake the amending process would leave the governmental machinery at a stalemate or create in the powers of the State a destructive vacuum, thereby impeding the objective of a crisis government "to end the crisis and restore normal times." In these parlous times, that Presidential initiative to reduce into concrete forms the constant voices of the people reigns supreme. After all, constituent assemblies or constitutional conventions, like the President now, are mere agents of the people. 26 2. The President’s action is not a unilateral move. As early as the referendums of January 1973 and February 1975, the people had already rejected the calling of the interim National Assembly. The Lupong Tagapagpaganap of the Katipunan ng mga Sanggunian, the Pambansang Katipunan ng mga Barangay, and the Pambansang Katipunan ng mga Barangay, representing 42,000 barangays, about the same number of Kabataang Barangay organizations, Sanggunians in

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1,458 municipalities, 72 provinces, 3 sub-provinces, and 60 cities had informed the President that the prevailing sentiment of the people is for the abolition of the interim National Assembly. Other issues concerned the lifting of martial law and amendments to the Constitution. 27 The national organizations of Sangguniang Bayan presently proposed to settle the issues of martial law, the interim Assembly, its replacement, the period of its existence, the length of the period for the exercise by the President of its present powers in a referendum to be held on October 16. 28 The Batasang Bayan (legislative council) created under Presidential Decree 995 of September 10, 1976, composed of 19 cabinet members, 9 officials with cabinet rank, 91 members of the Lupong Tagapagpaganap (executive committee) of the Katipunan ng mga Sangguniang Bayan voted in session to submit directly to the people in a plebiscite on October 16, the previously quoted proposed amendments to the Constitution, including the issue of martial law. 29 Similarly, the "barangays" and the "sanggunians" endorsed to the President the submission of the proposed amendments to the people on October 16. All the foregoing led the President to initiate the proposal of amendments to the Constitution and the subsequent issuance of Presidential Decree No. 1033 on September 22, 1976 submitting the questions (proposed amendments) to the people in the National Referendum-Plebiscite on October 16. V

The People as Sovereign. 1. Unlike in a federal state, the location of sovereignty in a unitary state is easily seen. In the Philippines, a republican and unitary state, sovereignty "resides in the people and all government authority emanates from them. 30 In its fourth meaning, Savigny would treat "people" as "that particular organized assembly of individuals in which, according to the Constitution, the highest power exists." 31 This is the concept of popular sovereignty. It means that the constitutional legislator, namely, the people, is sovereign. 32 In consequence, the people may thus write into the Constitution their convictions on any subject they choose in the absence of express constitutional prohibition. 33 This is because, as Holmes said, the Constitution "is an experiment, as all life is an experiment." 34 "The necessities of orderly government," wrote Rottschaefer, "do not require that one generation should be permitted to permanently fetter all future generations." A constitution is based, therefore, upon a selflimiting decision of the people when they adopt it. 35 2. The October 16 referendum-plebiscite is a resounding call to the people to exercise their sovereign power as constitutional legislator. The proposed amendments, as earlier discussed, proceed not from the thinking of a single man. Rather, they are the collated thoughts of the sovereign will reduced only into enabling forms by the authority who can presently exercise the powers of the government. In equal vein, the submission of those proposed amendments and the question of martial law in a referendum-plebiscite expresses but the option of the people themselves implemented only by the authority of the President. Indeed, it may well be said that the amending process is a sovereign act, although the authority to initiate the same and the procedure to be followed reside somehow in a particular body. VI

Referendum-Plebiscite not

rendered nugatory by the participation of the 15-year olds. 1. October 16 is in parts a referendum and a plebiscite. The question — (1) Do you want martial law to be continued? — is a referendum question, wherein the 15-year olds may participate. This was prompted by the desire of the Government to reach the larger mass of the people so that their true pulse may be felt to guide the President in pursuing his program for a New Order. For the succeeding question on the proposed amendments, only those of voting age of 18 years may participate. This is the plebiscite aspect, as contemplated in Section 2, Article XVI of the new Constitution. 36 On this second question, it would only be the votes of those 18 years old and above which will have valid bearing on the results. The fact that the voting populace are simultaneously asked to answer the referendum question and the plebiscite question does not infirm the referendum-plebiscite. There is nothing objectionable in consulting the people on a given issue, which is of current one and submitting to them for ratification of proposed constitutional amendments. The fear of commingled votes (15-year olds and 18-year olds above) is readily dispelled by the provision of two ballot boxes for every barangay center, one containing the ballots of voters fifteen years of age and under eighteen, and another containing the ballots of voters eighteen years of age and above. 37 The ballots in the ballot box for voters fifteen years of age and under eighteen shall be counted ahead of the ballots of voters eighteen years and above contained in another ballot box. And, the results of the referendum-plebiscite shall be separately prepared for the age groupings, i.e., ballots contained in each of the two boxes. 38 2. It is apt to distinguish here between a "referendum" and a "plebiscite." A "referendum" is merely consultative in character. It is simply a means of assessing public reaction to the given issues submitted to the people for their consideration, the calling of which is derived from or within the totality of the executive power of the President. 39 It is participated in by all citizens from the age of fifteen, regardless of whether or not they are illiterates, feebleminded, or ex-convicts. 40 A "plebiscite," on the other hand, involves the constituent act of those "citizens of the Philippines not otherwise disqualified by law, who are eighteen years of age or over, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months preceding the election." 41 Literacy, property, or any other substantive requirement is not imposed. It is generally associated with the amending process of the Constitution, more particularly, the ratification aspect. VII

Freedoms of expression and assembly not disturbed. 1. There appears to be no valid basis for the claim that the regime of martial law stultifies in main the freedom to dissent. That speaks of a bygone fear. The martial law regime which, in the observation of Justice Fernando, "is impressed with a mild character" recorded no State imposition for a muffled voice. To be sure, there are restraints of the individual liberty, but on certain grounds no total suppression of that liberty is aimed at. The machinery for the referendum-plebiscite on October 16 recognizes all the embracing freedoms of expression and assembly. The President himself had announced that he would not countenance any suppression of dissenting views on the issues, as he is not interested in winning a "yes" or "no" vote, but on

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the genuine sentiment of the people on the issues at hand. 42 Thus, the dissenters soon found their way to the public forums, voicing out loud and clear their adverse views on the proposed amendments and even on the valid ratification of the 1973 Constitution, which is already a settled matter. 43 Even government employees have been held by the Civil Service Commission free to participate in public discussion and even campaign for their stand on the referendumplebiscite issues. 44 VIII

Time for deliberation is not short. 1. The period from September 21 to October 16 or a period of 3 weeks is not too short for free debates or discussions on the referendum-plebiscite issues. The questions are not new. They are the issues of the day. The people have been living with them since the proclamation of martial law four years ago. The referendums of 1973 and 1975 carried the same issue of martial law. That notwithstanding, the contested brief period for discussion is not without counterparts in previous plebiscites for constitutional amendments. Justice Makasiar, in the Referendum Case, recalls: "Under the old Society, 15 days were allotted for the publication in three consecutive issues of the Official Gazette of the women’s suffrage amendment to the Constitution before the scheduled plebiscite on April 30, 1937 (Com. Act No. 34). The constitutional amendment to append as ordinance the complicated Tydings-Kocialskowski was published in only three consecutive issues of the Official Gazette for 10 days prior to the scheduled plebiscite (Com. Act 492). For the 1940 Constitutional amendments providing for the bicameral Congress, the re-election of the President and Vice-President, and the creation of the Commission on Elections, 20 days of publication in three consecutive issues of the Official Gazette was fixed (Com. Act No. 517). And the Parity Amendment, an involved constitutional amendment affecting the economy as well as the independence of the Republic was publicized in three consecutive issues of the Official Gazette for 20 days prior to the plebiscite (Rep. Act No. 73)." 45 2. It is worthy to note that Article XVI of the Constitution makes no provision as to the specific date when the plebiscite shall be held, but simply states that it "shall be held not later than three months after the approval of such amendment or revision." In Coleman v. Miller, 46 the United States Supreme court held that this matter of submission involves "an appraisal of a great variety of relevant conditions, political, social and economic," which "are essentially political and not justiciable." The constituent body or in the instant cases, the President, may fix the time within which the people may act. This is because, first, proposal and ratification are not treated as unrelated acts, but as succeeding steps in a single endeavor, the natural inference being that they are not to be widely separated in time; second, it is only when there is deemed to be a necessity therefor that amendments are to be proposed, the reasonable implication being that when proposed, they are to be considered and disposed of the presently, and third, ratification is but the expression of the approbation of the people, hence, it must be done contemporaneously. 47 In the words of Jameson," (a)n alteration of the Constitution proposed today has relation to the sentiment and the felt needs of today, and that, if not ratified early while that sentiment may fairly be supposed to exist, it ought to be regarded as waived, and not again to be voted upon, unless a second time proposed by [proper body]." 48 IN RESUME

Separate Opinions The three issues are:chanrob1es virtual 1aw library 1. Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and 1033 political or justiciable? 2. During the present stage of the transition period, and under the environmental circumstances now obtaining, does the President possess power to propose amendments to the Constitution as well as set up the required machinery and prescribe the procedure for the ratification of his proposals by the people? 3. Is the submission to the people of the proposed amendments within the time frame allowed therefor a sufficient and proper submission? Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices Enrique M. Fernando, Claudio Teehankee, Antonio P. Barredo, Cecilia Muñoz Palma, Hermogenes Concepcion Jr. and Ruperto G. Martin are of the view that the question posed is justiciable, while Associate Justices Felix V. Makasiar, Felix Q. Antonio and Ramon C. Aquino hold the view that the question is political. Upon the second issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino, Concepcion Jr. and Martin voted in the affirmative, while Associate Justices Teehankee and Muñoz Palma voted in the negative. Associate Justice Fernando, conformably to his concurring and dissenting opinion in Aquino v. Enrile (59 SCRA 183), specifically dissents from the proposition that there is concentration of powers in the Executive during periods of crisis, thus raising serious doubts as to the power of the President to propose amendments. Upon the third issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Aquino, Concepcion Jr. and Martin are of the view that there is a sufficient and proper submission of the proposed amendments for ratification by the people. Associate Justices Barredo and Makasiar expressed the hope, however, that the period of time may be extended. Associate Justices Fernando, Makasiar and Antonio are of the view that the question is political and therefore beyond the competence and cognizance of this Court. Associate Justice Fernando adheres to his concurrence in the opinion of Chief Justice Concepcion in Gonzales v. COMELEC (21 SCRA 774). Associate Justices Teehankee and Muñoz Palma hold that precinding from the President’s lack of authority to exercise the constituent power to propose the amendments, etc., as above stated, there is no fair and proper submission with sufficient information and time to assure intelligent consent or rejection under the standards set by this Court in the controlling cases of Gonzales, supra and Tolentino v. COMELEC (41 SCRA 702). Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino, Concepcion Jr. and Martin voted to dismiss the three petitions at bar. For reasons as expressed in his separate opinion, Associate Justice Fernando concurs in the result. Associate Justices Teehankee and Muñoz Palma voted to grant the petitions. ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are hereby dismissed. This decision is immediately executory. SO ORDERED. Aquino, J., concurs in the result.

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CASTRO, C.J., concurring:chanrob1es virtual 1aw library From the challenge as formulated in the three petitions at bar and the grounds advanced by the Solicitor General in opposition thereto, as well as the arguments adduced by the counsels of the parties at the hearing had on October 7 and 8, 1976, three vital issues readily project themselves as the centers of controversy, namely:chanrob1es virtual 1aw library (1) Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and 1033 political or justiciable? (2) During the present stage of the transition period, and under the environmental circumstances now obtaining, does the President possess power to propose amendments to the Constitution as well as set up the required machinery and Prescribe the procedure for the ratification of his proposals by the people? (3) Is the submission to the people of the proposed amendments within the time frame allowed therefor a sufficient and proper submission? I

First Issue The threshold question is not at all one of first impression. Specifically on the matter of proposals to amend the Constitution, this Court, in Mabanag v. Lopez Vito (78 Phil. 1), inceptively announced the dictum that — "Proposal to amend the Constitution is a highly political function performed by the Congress in its sovereign legislative capacity and committed to its charge by the Constitution itself. The exercise of this power is even independent of any intervention by the Chief Executive. If on grounds of expediency scrupulous attention of the judiciary be needed to safeguard public interest, there is less reason for judicial inquiry into the validity of a proposal than into that of a ratification."cralaw virtua1aw library In time, however, the validity of the said pronouncement was eroded. In the assessment of the Court itself — "The force of this precedent has been weakened, however, by Suanes v. Chief Accountant of the Senate (81 Phil. 818), Avelino v. Cuenco (L-2581, March 4 and 14, 1949), Tañada v. Cuenco (L-10520, February 28, 1957), and Macias v. Commission on Elections (L-18684, September 14, 1961). x

x

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"In short, the issue whether or not a Resolution of Congress — acting as a constituent assembly — violates the Constitution is essentially justiciable, not political, and, hence, subject to judicial review, and, to the extent that this view may be inconsistent with the stand taken in

Mabanag v. Lopez Vito (supra), the latter should be deemed modified accordingly. The Members of the Court are unanimous on this point." (Gonzales v. Commission on Elections, et al, L-28196, November 9, 1967, 21 SCRA 774, 786-787). The abandonment of the Mabanag v. Lopez Vito doctrine appears to have been completed when, in Javellana v. Executive Secretary, Et. Al. (L-36142, March 31, 1973, 50 SCRA 30), six members of the Court concurred in the view that the question of whether the 1973 Constitution was ratified in accordance with the provisions of Article XV (Amendments) of the 1935 Constitution is inherently and essentially justiciable. As elucidated therein, with extensive quotations from Tañada v. Cuenco (103 Phil. 1051) — "‘. . . the term ‘political question’ connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy in matters concerning the government of a State, as a body politic. In other words, in the language of Corpus Juris Secundum (supra), it refers to ‘those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the government.’ It is concerned with issues dependent upon the wisdom, not legality, of a particular measure.’ "Accordingly, when the grant of power is qualified, conditional or subject to limitations, the issue on whether or not the prescribed qualifications or conditions have been met, or the limitations respected, is justiciable or non-political, the crux of the problem being one of legality or validity of the contested act, not its wisdom. Otherwise, said qualifications, conditions or limitations — particularly those prescribed or imposed by the Constitution — would be set at naught." (Javellana v. Executive Secretary, supra). So it is in the situation here presented. The basic issue is the constitutional validity of the presidential acts of proposing amendments to the Constitution and of calling a referendumplebiscite for the ratification of the proposals made. Evidently, the question does not concern itself with the wisdom of the exercise of the authority claimed or of the specific amendments proposed. Instead the inquiry vel non is focused solely on the existence of the said power in the President — a question purely of legality determinable thru interpretation and construction of the letter and spirit of the Constitution by the Court as the final arbiter in the delineation of constitutional boundaries and the allocation of constitutional powers.chanrobles law library : red For the Court to shun cognizance of the challenge herein presented, especially in these parlous years, would be to abdicate its constitutional powers, shirk its constitutional responsibility, and deny the people their ultimate recourse for judicial determination. I have thus no hesitancy in concluding that the question here presented is well within the periphery of judicial inquiry. II

Second Issue The main question stands on a different footing; it appears unprecedented both here and elsewhere. Its solution, I believe, can be found and unraveled only by a critical assessment of

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the existing legal order in the light of the prevailing political and factual milieu. To be sure, there is an impressive array of consistent jurisprudence on the proposition that, normally or under normal conditions, a Constitution may be amended only in accord with the procedure set forth therein. Hence, if there be any such prescription for the amendatory process — as invariable there is because one of the essential parts of a Constitution is the socalled "constitution of sovereignty" which comprises the provision or provisions on the modes in accordance with which formal changes in the fundamental law may be effected — the same would ordinarily be the controlling criterion for the validity of the amendments sought. Unfortunately, however, during the present transition period of our political development, no express provision is extant in the Constitution regarding the agency or agent by whom and the procedure by which amendments thereto may be proposed and ratified — a fact overlooked by those who challenge the validity of the presidential acts in the premises. This is so because there are at least two distinctly perceptible stages in the transition from the old system of government under the 1935 Constitution to the new one established by the 1973 Constitution. The first stage comprises the period from the effectivity of the Constitution on January 17, 1973 to the time the Interim National Assembly is convened by the incumbent President and the interim President and the interim Prime Minister are chosen (Article XVII, Sections 1 and 3[1]. The existence of this stage as an obvious fact of the nation’s political life was recognized by the Court in Aquino v. Commission on Elections, Et. Al. (L-40004, January 31, 1975, 62 SCRA 275), when it rejected the claim that, under the 1973 Constitution, the President was in duty bound to convene the interim National Assembly soon after the Constitution took effect. The second stage embraces the period from the date the interim National Assembly is convened to the date the Government described in Articles VII to IX of the Constitution is inaugurated, following the election of the members of the regular National Assembly (Article XVII, Section 1) and the election of the regular President and Prime Minister. This is as it should be because it is recognized that the President has been accorded the discretion to determine when he shall initially convene the interim National Assembly, and his decision to defer the convocation thereof has found overwhelming support by the sovereign people in two previous referenda, thereby giving reality to an interregnum between the effectivity of the Constitution and the initial convocation of the interim National Assembly, which interregnum, as aforesaid, constitutes the first stage in the transition period.cralawnad Against this factual backdrop, it is readily discernible that neither of the two sets of provisions embodied in the Constitution on the amendatory process applied during the said first stage. Thus, Section 15, Article XVII (Transitory Provisions) provides — "Sec. 15. The interim National Assembly, upon special call by the interim Prime Minister, may, by a majority vote of all its Members, propose amendments to this Constitution. Such amendments shall take effect when ratified in accordance with Article Sixteen hereof."cralaw virtua1aw library Patently, the reference to the "interim National Assembly" and the "interim Prime Minister" limits the application thereof to the second stage of the transition period, i.e., after the interim National Assembly shall have been convened and the interim Prime Minister shall have been chosen. Upon the other hand, the provisions of Article XVI (Amendments), to wit —

"SECTION 1. (1) Any amendment to, or revision of, this Constitution may be proposed by the National Assembly upon a vote of three-fourths of all its Members, or by a constitutional convention. "(2.) The National Assembly may, by a vote of two-thirds of all its Members, call a constitutional convention or, by a majority vote of all its Members, submit the question of calling such a convention to the electorate in an election. "SEC. 2. Any amendment to, or revision of, this Constitution shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not later than three months after the approval of such amendment or revision."cralaw virtua1aw library unequivocally contemplate amendments after the regular Government shall have become fully operative, referring as they do to the National Assembly which will come Into being only at that time. In the face of this constitutional hiatus, we are confronted with the dilemma whether amendments to the Constitution may be effected during the aforesaid first stage and, if in the affirmative, by whom and in what manner such amendments may be proposed and ratified. Susceptibility to change is one of the hallmarks of an ideal Constitution. Not being a mere declaration of the traditions of a nation but more the embodiment of a people’s hopes and aspirations, its strictures are not unalterable. They are, instead, dynamic precepts intended to keep in stride with and attuned to the living social organism they seek to fashion and govern. If it is conceded that "the political or philosophical aphorism of one generation is doubted by the next and entirely discarded by the third," then a Constitution must be able to adjust to the changing needs and demands of society so that the latter may survive, progress and endure. On these verities, there can be no debate. During the first stage of the transition period in which the Government is at present — which is understandably the most critical — the need for change may be most pressing and imperative, and to disavow the existence of the right to amend the Constitution would be sheer political heresy. Such view would deny the people a mechanism for effecting peaceful change, and belie the organic conception of the Constitution by depriving it of its means of growth. Such a result obviously could not have been intended by the framers of the fundamental law.chanrobles law library : red It seems, however, that the happenstance that the first period would come to pass before the convocation of the interim National Assembly was not anticipated, hence, the omission of an express mandate to govern the said situation in so far as amendments are concerned. But such omission through inadvertence should not, because it cannot, negate the sovereign power of the people to amend the fundamental charter that governs their lives and their future and perhaps even the very survival of the nation. Upon the other hand, it is clear from the afore-quoted provisions on the amendatory process that the intent was, instead, to provide a simpler and more expeditious mode of amending the Constitution during the transition period. For, while under Article XVI thereof, proposals for amendment may be made directly by the regular National Assembly by a vote of at least threefourths of all its members, under Section 15 of Article XVII, a bare majority vote of all the members of the interim National Assembly would suffice for the purpose. The relaxation and

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the disparity in the vote requirement are revealing. They can only signify a recognition of the need to facilitate the adoption of amendments during the second state of the transition period so that the interim National Assembly will be able, in a manner of speaking, to iron out the kinks in the new Constitution, remove imperfections therein, and provide for changed or changing circumstances before the establishment of the regular Government. In this context, therefore, it is inutile speculation to assume that the Constitution was intended to render impotent or bar the effectuation of needful change at an even more critical period — the first stage. With greater reason, therefore, must the right and power to amend the Constitution during the first stage of the transition period be upheld, albeit within its express and implied constraints.chanrobles virtual lawlibrary Neither can it be successfully argued, in the same context and in the present posture, that the Constitution may be amended during the said first stage only by convening the interim National Assembly. That is to say and require that the said stage must first be brought to an end before any amendment may be proposed and ratified. Settled jurisprudence does not square with such a proposition. As aptly noted in Aquino v. Commission on Elections, Et Al., supra, the framers of the Constitution set no deadline for the convening of the interim National Assembly because they could not have foreseen how long the crises which impelled the proclamation and justify the continued state of martial law would last. Indeed, the framers committed to the sound judgment or the President the determination of the time when the interim National Assembly should be convoked. That judgment is not subject to judicial review, save possibly to determine whether arbitrariness has infected such exercise; absent such a taint, the matter is solely in the keeping of the President. To thus contend that only by convening the interim Nation Assembly may the Constitution be amended at this. time would effectively override the judgment vested in the President, even in default of any showing that in not convoking the interim National Assembly he has acted arbitrarily or gravely abused his discretion. Furthermore, to sustain such a contention would not only negate the mandate so resoundingly expressed by the people in two national referenda against the immediate convening of the interim National Assembly, but as well deride the President has exercised the legislative power to issue proclamations, orders decrees and instructions having the stature and force of law. Given the constitutional stalemate or impasse spawned by these supervening developments, the logical query that compels itself for resolution is: By whom, then, may proposals for the amendment of the Constitution be made and in what manner may said proposals be ratified by the people? It is conventional wisdom that, conceptually, the constituent power is not to be confused with legislative power in general because the prerogative to propose amendments to the Constitution is not in any sense embraced within the ambit of ordinary law-making. Hence, there is much to recommend the proposition that, in default of an express grant thereof, the legislature — traditionally the delegated repository thereof — may not claim it under a general grant of legislative authority. In the same vein, neither would it be altogether unassailable to say that because by constitutional tradition and express allocation the constituent power under the Constitution is located in the law-making agency and at this stage of the transition period the law-making authority is firmly recognized as being lodged in the President, the said constituent power should now logically be in the hands of the President, who may thus exercise it in place of the interim National Assembly. Instead, as pointed out in Gonzales v. Commission on Elections, Et Al., supra, the power to amend the Constitution or to propose amendments thereto ". . . is part of the inherent powers of the people — as the reposition of sovereignty in a

republican state, such as ours — to make, and, hence, to amend their own Fundamental Law."cralaw virtua1aw library As such it is undoubtedly a power that only the sovereign people, either directly by themselves or through their chosen delegate, can wield. Since it has been shown that the people, inadvertently or otherwise, have not delegated that power to any instrumentality during the current stage of our hegira from crisis to normalcy, it follows of necessity that the same remains with them for them to exercise in the manner they see fit and through the agency they choose. And, even if it were conceded that — as it is reputedly the rule in some jurisdictions — a delegation of the constituent authority amounts to a complete divestiture from the people of the power delegated which they may not thereafter unilaterally reclaim from the delegate, there would he no violence done to such rule, assuming it to be applicable here, inasmuch as that power, under the environmental circumstances adverted to, has not been delegated to anyone in the first place. The constituent power during the first stage of the transition period belongs to and remains with the people, and accordingly may be exercised by them — how and when — at their pleasure. At this juncture, a flashback to the recent and contemporary political ferment in the country proves revelatory. The people, shocked and revolted by the "obvious immorality" of the unabashed manner by which the delegates to the Constitutional Convention virtually legislated themselves into office as ipso facto members of the interim National Assembly by the mere fiat of voting for the transitory provisions of the Constitution, and the stark reality that the unwieldy political monstrosity that the interim Assembly portended to be would have proven to be a veritable drain on the meager financial resources of a nation struggling for survival, have unequivocally put their foot down, as it were, on the convocation thereof. But this patently salutary decision of the people proved to be double-edged. It likewise bound the political machinery of the Government in a virtual straight-jacket and consigned the political evolution of the nation into a state of suspended animation. Faced with the ensuing dilemma, the people understandably agitated for a solution. Through consultations in the barangays and sanggunian assemblies, the instrumentalities through which the people’s voice is articulated in the unique system of participatory democracy in the country today, the underpinnings for the hastening of the return to constitutional normalcy quickly evolved into an overwhelming sentiment to amend the Constitution in order to replace the discredited interim National Assembly with what the people believe will be an appropriate agency to eventually take over the law-making power and thus pave the way for the early lifting of martial rule. In pursuit of this sentiment, and to translate its constraints into concrete action, the Pambansang Katipunan ng mga Barangay, the Pambansang Katipunan ng mga Kabataang Barangay, the Lupong Tagapagpaganap of the Katipunan ng mga Sanggunian, and finally the Batasang Bayan, to a man and as one voice, have come forward with definitive proposals for the amendment of the Constitution, and, choosing the President — the only political arm of the State at this time through which that decision could be implemented and the end in view attained — as their spokesman, proposed the amendments under challenge in the cases at bar.chanrobles lawlibrary : rednad In the light of this milieu and its imperatives, one thing is inescapable: the proposals now submitted to the people for their ratification in the forthcoming referendum-plebiscite are factually not of the President; they are directly those of the people themselves speaking thru their authorized instrumentalities. The President merely formalized the said proposals in Presidential Decree No. 1033. It being conceded in all quarters that sovereignty resides in the people and it having been demonstrated that their constituent power to amend the Constitution has not been delegated by them to any instrumentality of the Government during the present stage of the transition period of our political development, the conclusion is ineluctable that

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their exertion of that residuary power cannot be vulnerable to any constitutional challenge as being ultra vires. Accordingly, without venturing to rule on whether or not the President is vested with constituent power — as it does not appear necessary to do so in the premises — the proposals here challenged, being acts of the sovereign people no less, cannot be said to be afflicted with unconstitutionality. A fortiori, the concomitant authority to call a plebiscite and to appropriate funds therefor is even less vulnerable not only because the President, in exercising said authority, has acted as a mere alter ego of the people who made the proposals, but likewise because the said authority is legislative in nature rather than constituent. III

Third Issue Little need be said of the claimed insufficiency and impropriety of the submission of the proposed amendments for ratification from the standpoint of time. The thesis cannot be disputed that a fair submission presupposes an adequate time lapse to enable the people to be sufficiently enlightened on the merits or demerits of the amendments presented for their ratification or rejection. However, circumstances there are which unmistakably demonstrated that the desideratum is met. Even if the proposal appear to have been formalized only upon the promulgation of Presidential Decree No. 1033 on September 22, 1976, they are actually the crystallization of sentiments that for so long have preoccupied the minds of the people and their authorized representatives, from the very lowest level of the political hierarchy Hence, unlike proposals emanating from a legislative body, the same cannot but be said to have been mulled over, pondered upon, debated, discussed and sufficiently understood by the great masses of the nation long before they ripened into formal proposals. Besides, it is a fact of which judicial notice may well be taken that in the not so distant past when the 1973 Constitution was submitted to the people for ratification, an all-out campaign, in which all the delegates of the Constitutional Convention reportedly participated, was launched to acquaint the people with the ramifications and working of the new system of government sought to be inaugurated thereunder. It may thus well be assumed that the people in general have since acquired, in the very least, a working knowledge of the entirety of the Constitution. The changes now proposed — the most substantial of which being merely the replacement of the interim National Assembly with another legislative arm for the Government during the transition period until the regular National Assembly shall have been constituted — do not appear to be of such complexity as to require considerable time to be brought home to the full understanding of the people. And, in fact, the massive and wide-ranging informational and educational campaign to this end has been and still is in full swing, with all the media, the barangays, the civic and sectoral groups, and even the religious all over the land in active and often enthusiastic if not frenetic involvement. Indeed, when the people cast their votes on October 16, a negative vote could very well mean an understanding of the proposals which they reject; while an affirmative vote could equally be indicative of such understanding and/or an abiding credence in the fidelity with which the President has kept the trust they have confided to him as President and administrator of martial rule. IV

Conclusion It is thus my considered view that no question viable for this Court to pass judgment upon is posed. Accordingly, I vote for the outright dismissal of the three petitions at bar. FERNANDO, J., concurring and dissenting:chanrob1es virtual 1aw library These three petitions, the latest in a series of cases starting from Planas v. Commission on Elections, 1 continuing with the epochal resolution in Javellana v. Executive Secretary, 2 and followed successively in three crucial decisions, Aquino v. Ponce Enrile, 3 Aquino v. Commission on Elections, 4 and Aquino v. Military Commission, 5 manifest to the same degree the delicate and awesome character of the function of judicial review. While previous rulings supply guidance and enlightenment, care is to be taken to avoid doctrinaire rigidity unmindful of altered circumstances and the urgencies of the times. It is inappropriate to resolve the complex problems of a critical period without full awareness of the consequences that flow from whatever decision is reached. Jural norms must be read in the context of social facts. There is need therefore of adjusting inherited principles to new needs. For law, much more so constitutional law, is simultaneously a reflection of and a force in the society that it controls. No quality then can be more desirable in constitutional adjudication than that intellectual and imaginative insight which goes into the heart of the matter. The judiciary must survey things as they are in the light of what they must become. It must inquire into the specific problem posed not only in terms of the teaching of the past but also of the emerging political and legal theory, especially so under a leadership notable for its innovative approach to social problems and the vigor of its implementation. This, on the one side. It must equally be borne in mind through that this Court must ever be conscious of the risk inherent in its being considered as a mere subservient instrument of government policy, however admittedly salutary or desirable. There is still the need to demonstrate that the conclusion reached by it in cases appropriate for its determination has support in the law that must be applied. To my mind that was the norm followed, the conclusion reached being that the three petitions be dismissed. I am in agreement. It is with regret however that based on my reading of past decisions, both Philippine and American, and more specifically my concurring opinion in Aquino v. Ponce Enrile, I must dissent from the proposition set forth in the able and scholarly opinion of Justice Martin that there is concentration of power in the President during a crisis government. Consequently, I cannot see my way clear to accepting the view that the authority to propose amendments is not open to question. At the very least, serious doubts could be entertained on the matter.chanroblesvirtualawlibrary 1. With due respect then, I have to dissociate myself from my brethren who would rule that governmental powers in a crisis government, following Rossiter, "are more or less concentrated in the President." Adherence to my concurring and dissenting opinion in Aquino v. Ponce Enrile 6 leaves me no choice. It must be stated at the outset that with the sufficiency of doctrines supplied by our past decisions to point the way to what I did consider the appropriate response to the basic issue raised in the Aquino and the other habeas corpus petitions resolved jointly, it was only in the latter portion of my opinion that reference was made to United States Supreme Court pronouncements on martial law, at the most persuasive in character and rather few in number "due no doubt to the absence in the American Constitution of any provision concerning it." 7 It was understandable then that it was only after the landmark Ex parte Milligan case, that commentators like Cooley in 1868 and Watson in 1910 paid attention, minimal at that, to the subject. 8 It was next set forth that in the works on American constitutional law published in

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this century especially after the leading cases of Sterling v. Constantin and Duncan v. Kahanamoku, "there was a fuller treatment of the question of martial law." 9 While it is the formulation of Willoughby that for me is most acceptable, my opinion did take note that another commentator, Burdick, came out earlier with a similar appraisal. 10 Thus: "So-called martial law, except in occupied territory of an enemy, is merely the calling in of the aid of military forces by the executive, who is charged with the enforcement of the law, with or without special authorization by the legislature. Such declaration of martial law does not suspend the civil law, though it may interfere with the exercise of one’s ordinary rights. The right to call out the military forces to maintain order and enforce the law is simply part of the police power. It is only justified when it reasonably appears necessary, and only justifies such acts as reasonably appear necessary to meet the exigency, including the arrest, or in extreme cases the killing of those who create the disorder or oppose the authorities. When the exigency is over the members of the military forces are criminally and civilly liable for acts done beyond the scope of reasonable necessity. When honestly and reasonably coping with a situation of insurrection or riot a member of the military forces cannot be made liable for his acts, and persons reasonably arrested under such circumstances will not, during the insurrection or riot, be free by writ of habeas corpus." 11 When the opinion cited Willoughby’s concept of martial law, stress was laid on his being "partial to the claims of liberty." 12 This is evident in the explicit statement from his work quoted by me: "There is, then, strictly speaking, no such thing in American law as a declaration of martial law whereby military law is substituted for civil law. So-called declarations of martial law are, indeed, often made but their legal effect goes no further than to warn citizens that the military powers have been called upon by the executive to assist him in the maintenance of law and order, and that, while the emergency lasts, they must, upon pain of arrest and punishment not commit any acts which will in any way render more difficult the restoration of order and the enforcement of law. Some of the authorities stating substantially this doctrine are quoted in the footnote below." 13 Nor did I stop there. The words of Willis were likewise cited: "Martial law proper, that is, military law in case of insurrection, riots, and invasions, is not a substitute for the civil law, but is rather an aid to the execution of civil law. Declarations of martial law go no further than to warn citizens that the executive has called upon the military power to assist him in the maintenance of law and order. While martial law is in force, no new powers are given to the executive and no civil rights of the individual, other than the writ of habeas corpus, are suspended. The relations between the citizen and his state are unchanged." 14 The conclusion reached by me as to the state of American federal law on the question of martial law was expressed thus: "It is readily evident that even when Milligan supplied the only authoritative doctrine, Burdick and Willoughby did not ignore the primacy of civil liberties. Willis wrote after Sterling. It would indeed be surprising if his opinion were otherwise. After Duncan, such an approach becomes even more strongly fortified. Schwartz, whose treatise is the latest to be published, has this summary of what he considers the present state of American law: ‘The Milligan and Duncan cases show plainly that martial law is the public law of necessity. Necessity alone calls it forth; necessity justifies its exercise; and necessity measures the extent and degree to which it may be employed. It is, the high Court has affirmed, an unbending rule of law that the exercise of military power, where the rights of the citizen are concerned, may never be pushed beyond what the exigency requires. If martial law rule survives the necessity on which alone it rests, for even a single minute, it becomes a mere exercise of lawless violence.’ Further: ‘Sterling v. Constantin is of basic importance. Before it, a number of decisions, including one by the highest Court, went on the theory that the executive had a free hand in taking martial-law measures. Under them, it has been widely supposed that a martial-law proclamation was so far conclusive that any action taken under it was immune from judicial scrutiny. Sterling v. Constantin definitely discredits these earlier decisions and the

doctrine of conclusiveness derived from them. Under Sterling v. Constantin, where martial law measures impinge upon personal or property rights -normally beyond the scope of military power, whose intervention is lawful only because an abnormal situation has made it necessary — the executive’s ipse dixit is not of itself conclusive of the necessity.’" 15 There was likewise an effort on my part to show what for me is the legal effect of martial law being expressly provided for in the Constitution rather than being solely predicated on the common law power based on the urgent need for it because of compelling circumstances incident to the state of actual clash of arms: "It is not to be lost sight of that the basis for the declaration of martial law in the Philippines is not mere necessity but an explicit constitutional provision. On the other hand, Milligan, which furnished the foundation for Sterling and Duncan had its roots in the English common law. There is pertinence therefore in ascertaining its significance under that system. According to the noted English author, Dicey: ‘Martial law,’ in the proper sense of that term, in which it means the suspension of ordinary law and the temporary government of a country or parts of it by military tribunals, is unknown to the law of England. We have nothing equivalent to what is called in France the "Declaration of the State of Siege," under which the authority ordinarily vested in the civil power for the maintenance of order and police passes entirely to the army (autorite militaire). This is an unmistakable proof of the permanent supremacy of the law under our constitution.’ There was this qualification: ‘Martial law is sometimes employed as a name for the common law right of the Crown and its servants to repel force by force in the case of invasion, insurrection, riot, or generally of any violent resistance to the law, This right, or power, is essential to the very existence of orderly government, and is most assuredly recognized in the most ample manner by the law of England. It is a power which has in itself no special connection with the existence of an armed force. The Crown has the right to put down breaches of the peace. Every subject, whether a civilian or a soldier, whether what is called a ‘servant of the government,’ such for example as a policeman, or a person in no way connected with the administration, not only has the right, but is, as a matter of legal duty, bound to assist in putting down breaches of the peace. No doubt policemen or soldiers are the persons who, as being specially employed in the maintenance of order, are most generally called upon to suppress a riot, but it is clear that all loyal subjects are bound to take their part in the suppression of riots." 16 Commitment to such an approach results in my inability to subscribe to the belief that martial law in terms of what is provided both in the 1935 and the present Constitution, affords sufficient justification for the concentration of powers in the Executive during periods of crisis. The better view, considering the juristic theory on which our fundamental law rests is that expressed by Justice Black in Duncan v. Kahanamoku: "Legislatures and courts are not merely cherished American institutions; they are indispensable to our government." 17 If there has been no observance of such a cardinal concept at the present, it is due to the fact that before the former Congress could meet in regular session anew, the present Constitution was adopted, abolishing it and providing for an interim National Assembly, which has not been convened. 18 So I did view the matter. 2. Nor did I ignore Rossiter in my Aquino v. Ponce Enrile opinion. Reference was made to the first chapter on his work on Constitutional Dictatorship where he spoke of martial rule as "a device designed for use in the crisis of invasion or rebellion. It may be most precisely defined as an extension of military government to the civilian population, the substitution of the will of a military commander for the will of the people’s elected government." 19 Since, for me at least, the Rossiter characterization of martial law has in it more of the common law connotation, less than duly mindful of the jural effects of its inclusion in the Constitution itself as a legitimate device for coping with emergency conditions in times of grave danger, but

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always subject to attendant limitations in accordance with the fundamental postulate of a charter’s supremacy, I felt justified in concluding: "Happily for the Philippines, the declaration of martial law lends itself to the interpretation that the Burdick, Willoughby, Willis, Schwartz formulations paying due regard to the primacy of liberty possess relevance. It cannot be said that the martial rule concept of Rossiter, latitudinarian in scope, has been adopted, even on the assumption that it can be reconciled with our Constitution. What is undeniable is that President Marcos has repeatedly maintained that Proclamation No. 1081 was precisely based on the Constitution and that the validity of acts taken thereunder could be passed upon by the Supreme Court. For me, that is quite reassuring, persuaded as I am likewise that the view of Rossiter is opposed to the fundamental concept of our polity, which puts a premium on freedom." 20 3. Candor and accuracy compel the admission that such a conclusion has to be qualified. For in the opinion of the Court in the aforecited Aquino v. Commission on Elections, penned by Justice Makasiar, the proposition was expressly affirmed "that as Commander-in-Chief and enforcer or administrator of martial law, the incumbent President of the Philippines can 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." 21 To that extent, Rossiter’s view, mainly relied upon, now possesses juristic significance in this jurisdiction. What, for me at least, gives cause for concern is that with the opinion of the Court this intrusion of what I would consider an alien element in the limited concept of martial law as set forth in the Constitution would be allowed further incursion into the corpus of the law, with the invocation of the view expressed in the last chapter of his work, approving the "concentration of governmental power in a democracy [as] a corrective to the crisis inefficiencies inherent in the doctrine of the separation of powers." 22 It is to the credit of the late Professor Rossiter as an objective scholar that in the very same last chapter, just three pages later, he touched explicitly on the undesirable aspect of a constitutional dictatorship. Thus: "Constitutional Dictatorship is a dangerous thing. A declaration of martial law or the passage of an enabling act is a step which must always be feared and sometimes bitterly resisted, for it is at once an admission of the incapacity of democratic institutions to defend the order within which they function and a too conscious employment of powers and methods long ago outlawed as destructive of constitutional government. Executive legislation, state control of popular liberties, military courts, and arbitrary executive action were governmental features attacked by the men who fought for freedom not because they were inefficient or unsuccessful, but because they were dangerous and oppressive. The reinstitution of any of these features is a perilous matter, a step to be taken only when the dangers to a free state will be greater if the dictatorial institution is not adopted." 23 4. It is by virtue of such considerations that I find myself unable to share the view of those of my brethren who would accord recognition to the Rossiter concept of concentration of governmental power in the Executive during periods of crisis. This is not to lose sight of the undeniable fact that in this country through the zeal, vigor, and energy lavished on projects conducive to the general welfare, considerable progress has been achieved under martial rule. A fair summary may be found in a recent address of the First Lady before the delegates to the 1976 International Monetary Fund-World Bank Joint Annual Meeting: "The wonder is that so much has been done in so brief a time. Since September 1972, when President Marcos established the crisis government, peace and order have been restored in a country once

avoided as one of the most unsafe in the world. We have liberated millions of Filipino farmers from the bondage of tenancy, in the most vigorous and extensive implementation of agrarian reform." 24 Further, she said: "A dynamic economy has replaced a stagnant order, and its rewards are distributed among the many, not hoarded by a few. Our foreign policy, once confined by fear and suspicion to a narrow alley of self-imposed isolation, now travels the broad expressways of friendship and constructive interaction with the whole world, these in a new spirit of confidence and self-reliance. And finally, forced to work out our own salvation, the Filipino has re-discovered the well-springs of his strength and resiliency. As Filipinos, we have found our true identity. And having broken our crisis of identity, we are no longer apologetic and afraid." 25 The very idea of a crisis, however, signifies a transitory, certainly not a permanent, state of things. President Marcos accordingly has not been hesitant in giving utterance to his conviction that full implementation of the modified parliamentary system under the present Constitution should not be further delayed. The full restoration of civilian rule can thus be expected. That is more in accord with the imperatives of a constitutional order. It should not go unnoticed either that the President has referred to the present regime as one of "constitutional authoritarianism." That has a less objectionable ring, authority being more identified with the idea of law, as based on right, the very antithesis of naked force, which to the popular mind is associated with dictatorship, even if referred to as "constitutional."cralaw virtua1aw library For me likewise, that equally eminent scholar Corwin, also invoked in the opinion of the Court, while no doubt a partisan of a strong Presidency, was not averse to constitutional restraints even during periods of crisis. So I would interpret this excerpt from the fourth edition of his classic treatise on the Presidency: "A regime of martial law may be compendiously, if not altogether accurately, defined as one in which the ordinary law, as administered by the ordinary courts, is superseded for the time being by the will of a military commander. It follows that, when martial law is instituted under national authority, it rests ultimately on the will of the President of the United States in his capacity as Commander-in-Chief. It should be added at once, nevertheless, that the subject is one in which the record of actual practice fails often to support the niceties of theory. Thus, the employment of the military arm in the enforcement of the civil law does not invariably, or even usually, involve martial law in the strict sense, for, as was noted in the preceding section, soldiers are often placed simply at the disposal and direction of the civil authorities as a kind of supplementary police, or posse comitatus; on the other hand by reason of the discretion that the civil authorities themselves are apt to vest in the military in any emergency requiring its assistance, the line between such an employment of the military and a regime of martial law is frequently any but a hard and fast one. And partly because of these ambiguities the conception itself of martial law today bifurcates into two conceptions, one of which shades off into military government and the other into the situation just described, in which the civil authority remains theoretically in control although dependent on military aid. Finally, there is the situation that obtained throughout the North during the Civil War, when the privilege of the writ of habeas corpus was suspended as to certain classes of suspects, although other characteristics of martial law were generally absent." 26 It is by virtue of the above considerations that, with due respect to the opinion of my brethren, I cannot yield assent to the Rossiter view of concentration of governmental powers in the Executive during martial law. 5. There is necessity then, for me at least, that the specific question raised in all three petitions be squarely faced. It is to the credit of the opinion of the Court that it did so. The basic issue posed concerns the boundaries of the power of the President during this period of

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martial law, more precisely whether it covers proposing amendments to the Constitution. There is the further qualification if the stand of respondents be taken into account that the interim National Assembly has not been convened and is not likely to be called into session in deference to the wishes of the people as expressed in three previous referenda. It is the ruling of the majority that the answer be in the affirmative, such authority being well within the area of presidential competence. Again I find myself unable to join readily in that conviction. It does seem to me that the metes and bounds of the executive domain, while still recognizable, do appear blurred. This is not to assert that there is absolutely no basis for such a conclusion, sustained as it is by a liberal construction of the principle that underlies Aquino v. Commission on Elections as to the validity of the exercise of the legislative prerogative by the President as long as the interim National Assembly is not convened. For me, the stage of certitude has not been reached. I cannot simply ignore the vigorous plea of petitioners that there is a constitutional deficiency consisting in the absence of any constituent power on the part of the President, the express provision of the Constitution conferring it on the interim National Assembly. 27 The learned advocacy reflected in the pleadings as well as the oral discourse of Solicitor General Estelito P. Mendoza 28 failed to erase the grave doubts in my mind that the Aquino doctrine as to the possession of legislative competence by the President during this period of transition with the interim lawmaking body not called into session be thus expanded. The majority of my brethren took that step. I am not prepared to go that far. I will explain why. The way, for me, is beset with obstacles. In the first place, such an approach would lose sight of the distinction between matters legislative and constituent. That is implicit in the treatise on the 1935 Constitution by Justices Malcolm and Laurel. 29 In their casebook 30 published the same year, one of the four decisions on the subject of constitutional amendments is Ellingham v. Dye 31 which categorically distinguished between constituent and legislative powers. Dean Sinco, a well-known authority on the subject, was quite explicit. Thus: "If there had been no express provision in the Constitution granting Congress the power to propose amendments, it would be outside its authority to assume that power. Congress may not claim it under the general grant of legislative power for such grant does not carry with it the right ‘to erect the state, institute the form of its government,’ which is considered a function inherent in the people. Congressional law-making authority is limited to the power of approving the laws ‘of civil conduct relating to the details and particulars of the government instituted,’ the government established by the people." 32 If that distinction he preserved, then for me the aforecited Aquino decision does not reach the heart of the matter. Nor is this all. In the main opinion of Justice Makasiar as well as that of the then Justice, now Chief Justice, Castro, support for the ruling that the President cannot he deemed as devoid of legislative power during this transition stage is supplied by implications from explicit constitutional provisions. 33 That is not the case with the power to propose amendments. It is solely the interim National Assembly that is mentioned. That is the barrier that for me is wellnigh insurmountable. If I limit myself to entertaining doubts rather than registering a dissent on this point, it is solely because of the consideration, possessed of weight and significance, that there may be indeed in this far-from-quiescent and static period a need for amendments. I do not feel confident therefore that a negative vote on my part would be warranted. What would justify the step taken by the President, even if no complete acceptance be accorded to the view that he was a mere conduit of the barangays on this matter, is that as noted in both qualified concurrences by Justices Teehankee and Muñoz Palma in Aquino, as far as the legislative and appropriation powers are concerned is the necessity that unless such authority be recognized, there may be paralyzation of governmental activities. While not squarely applicable, such an approach has, to my mind, a persuasive quality as far as the power to

propose amendments is concerned. Thus I would confine myself to the expression of serious doubts on the question rather than a dissent. 6. The constitutional issue posed as thus viewed leaves me free to concur in the result that the petitions be dismissed. That is to accord respect to the principle that judicial review goes no further than to checking clear infractions of the fundamental law, except in the field of human rights where a much greater vigilance is required. That is to make of the Constitution a pathway to rather than a barrier against a desirable objective. As shown by my concurring and dissenting opinion in Tolentino v. Commission on Elections, 34 a pre-martial law decision, the fundamental postulate that sovereignty resides in the people 35 exerts a compelling force requiring the judiciary to refrain as much as possible from denying the people the opportunity to make known their wishes on matters of the utmost import for the life of the nation, Constitutional amendments fall in that category. I am fortified in that conviction by the teaching of persuasive American decisions. 36 There is reinforcement to such a conclusion from retired Chief Justice Concepcion’s concurring and dissenting opinion in Aytona v. Castillo, 37 which I consider applicable to the present situation. These are his words: "It is well settled that the granting of writs of prohibition and mandamus is ordinarily within the sound discretion of the courts, to be exercised on equitable principles, and that said writs should be issued when the right to the relief is clear . . .." 38 As he noted in his ponencia in the later case of Gonzales v. Hechanova, 39 an action for prohibition, while petitioner was sustained in his stand, no injunction was issued. This was evident in the dispositive portion where judgment was rendered "declaring that respondent Executive Secretary had and has no power to authorize the importation in question; that he exceeded his jurisdiction in granting said authority; that said importation is not sanctioned by law and is contrary to its provisions; and that, for lack of the requisite majority, the injunction prayed for must be and is, accordingly, denied." 40 With the illumination thus supplied, it does not necessarily follow that even a dissent on my part would necessarily compel that I vote for the relief prayed for. Certainly this is not to belittle in any way the action taken by petitioners in filing these suits. That, for me, is commendable. It attests to their belief in the rule of law. Even if their contention as to lack of presidential power be accepted in their entirety, however, there is still discretion that may be exercised on the matter, prohibition being an equitable remedy. There are, for me, potent considerations that argue against acceding to the plea. With the prospect of the interim National Assembly being convened being dim, if not nonexistent, if only because of the results in three previous referenda, there would be no constitutional agency other than the Executive who could propose amendments, which, as noted, may urgently press for adoption. Of even greater weight, to my mind, is the pronouncement by the President that this plebiscite is intended not only to solve a constitutional anomaly with the country devoid of a legislative body but also to provide the machinery by which the termination of martial law could be hastened. That is a consummation devoutly to be wished. That does militate strongly against the stand of petitioners. The obstruction they would pose may be fraught with pernicious consequences.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph It may not be amiss to refer anew to what I deem the cardinal character of the jural postulate explicitly affirmed in both the 1935 and the present Constitutions that sovereignty resides in the people. So I made clear in Tolentino v. Commission on Elections and thereafter in my dissent in Javellana v. The Executive Secretary 41 and my concurrence in Aquino v. Commission on Elections. 42 The destiny of the country lies in their keeping. The role of leadership is not

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to be minimized. It is crucial; it is of the essence. Nonetheless, it is their will, if given expression in a manner sanctioned by law and with due care that there he no mistake in its appraisal, that should be controlling. There is all the more reason then to encourage their participation in the power process. That is to make the regime truly democratic. Constitutional orthodoxy requires, however, that the fundamental law be followed. So I would interpret Laski, 43 Corwin, 44 Lerner, 45 Bryn-Jones, 46 and McIver. 47 7. There is reassurance in the thought that this Court has affirmed its commitment to the principle that the amending process gives rise to a justiciable rather than a political question. So it has been since the leading case of Gonzales v. Commission on Elections. 48 It has since then been followed in Tolentino v. Commission on Elections, 49 Planas v. Commission On Elections, 50 and lastly, in Javellana v. The Executive Secretary. 51 This Court did not heed the vigorous plea of the Solicitor General to resurrect the political question doctrine announced in Mabanag v. Lopes Vito. 52 This is not to deny that the federal rule in the United States as set forth in the leading case of Coleman v. Miller, 53 a 1939 decision, and relatively recent State court decisions, supply ammunition to such a contention. 54 That may be the case in the United States, but certainly not in this jurisdiction. Philippine constitutional tradition is to the contrary. It can trace its origin to these words in the valedictory address before the 1934-35 Constitutional Convention by the illustrious Claro M. Recto: "It is one of the paradoxes a democracy that the people of times place more confidence in instrumentalities of the State other than those directly chosen by them for the exercise of their sovereignty." 55 It can be said with truth, therefore, that there has invariably been a judicial predisposition to activism rather than self-restraint. The thinking all these years has been that it goes to the heart of constitutionalism. It may be said that this Court has shunned the role of a mere interpreter; it did exercise at times creative power. It has to that extent participated in the molding of policy. It has always recognized that in the large and undefined field of constitutional law, adjudication partakes of the quality of statecraft. The assumption has been that just because it cannot by itself guarantee the formation, much less the perpetuation of democratic values or, realistically, it cannot prevail against the pressure of political forces if they are bent in other directions, it does not follow that it should not contribute its thinking to the extent that it can. It has been asked, it will continue to be asked, to decide momentous questions at each critical stage of this nation’s life. There must be, however, this caveat. Judicial activism gives rise to difficulties in an era of transformation and change. A society in flux calls for dynamism in the law, which must be responsive to the social forces at work. It cannot remain static. It must be sensitive to life. This Court then must avoid the rigidity of legal ideas. It must resist the temptation of wallowing in the wasteland of meaningless abstractions. It must face stubborn reality. It has to have a feel for the complexities of the times. This is not to discount the risk that it may be swept too far and too fast in the surge of novel concepts. The past too is entitled to a hearing; it cannot just be summarily ignored. History still has its uses. It is not for this Court to renounce the virtue of systematic jural consistency. It cannot simply yield to the sovereign sway of the accomplished fact. It must be deaf to the dissonant dialectic of what appears to be a splintered society. It should strive to be a factor for unity under a rule of law. There must be, on its part, awareness of the truth that a new juridical age born before its appointed time may be the cause of unprecedented travail that may not end at birth. It is by virtue of such considerations that I did strive for a confluence of principle and practicality. I must confess that I did approach the matter with some misgivings and certainly without any illusion of omniscience. I am comforted by the thought that immortality does not inhere in judicial opinions.cralawnad

8. I am thus led by my studies on the subject of constitutional law and, much more so, by previous judicial opinions to concur in the dismissal of the petitions. If I gave expression to views not currently fashionable, it is solely due to deeply-ingrained beliefs. Certainly, I am the first to recognize the worth of the social and economic reforms so needed by the troubled present that have been introduced and implemented. There is no thought then of minimizing, much less of refusing to concede, the considerable progress that has been made and the benefits that have been achieved under this Administration. Again, to reiterate one of my cherished convictions, I certainly approve of the adherence to the fundamental principle of popular sovereignty, which, to be meaningful however, requires both freedom in its manifestation and accuracy in ascertaining what it wills. Then, too, it is fitting and proper that a distinction was made between two aspects of the coming poll, the referendum and the plebiscite. It is only the latter that is impressed with authoritative force. So the Constitution requires. Lastly, there should be, as I did mention in my concurrence in Aquino v. Commission on Elections, 56 full respect for free speech and press, free assembly and free association. There should be no thought of branding the opposition as the enemy and the expression of its views as anathema. Dissent, it is fortunate to note, has been encouraged. It has not been identified with disloyalty. That ought to be the case, and not solely due to presidential decrees. Constructive criticism is to be welcomed not so much because of the right to be heard but because there may be something worth hearing. That is to ensure a true ferment of ideas, an interplay of knowledgeable minds. There are though well-defined limits. One may not advocate disorder in the name of protest, much less preach rebellion under the cloak of dissent. What i mean to stress is that except on a showing of clear and present danger, there must be respect for the traditional liberties that make a society truly free.chanrobles virtual lawlibrary TEEHANKEE, J., dissenting:chanrob1es virtual 1aw library I. On the merits: I dissent from the majority’s dismissal of the petitions for lack of merit and vote to grant the petitions for the following reasons and considerations:chanrob1es virtual 1aw library 1. It is undisputed that neither the 1935 Constitution nor the 1973 Constitution grants to the incumbent President the constituent power to propose and approve amendments to the Constitution to be submitted to the people for ratification in a plebiscite. The 1935 Constitution expressly vests the constituent power in Congress, by a three-fourths vote of all its members, to propose amendments or call a constitutional convention for the purpose. 1 The 1973 Constitution expressly vests the constituent power in the regular National Assembly to propose amendments (by a three-fourths vote of all its members) or "call a constitutional convention" (by a two-thirds vote of all its members) or "submit the question of calling such convention to the electorate in an election" (by a majority vote of all its members). 2

withheld from the President or Prime Minister, it follows that the President’s questioned decrees 5 proposing and submitting constitutional amendments directly to the people (without the intervention of the interim National Assembly in whom the power is expressly vested) are devoid of constitutional and legal basis. 2. The doctrine in the leading case of Tolentino v. Comelec is controlling in the case at bar. In therein declaring null and void the acts of the 1971 Constitutional Convention and of the Comelec in calling a plebiscite with the general elections scheduled for November 8, 1971 for the purpose of submitting for the people’s ratification an advance amendment reducing the voting age from 21 years to 18 years, and issuing writs of prohibition and injunction against the holding of the plebiscite, this Court speaking through Mr. Justice Barredo ruled that — The Constitutional provisions on amendments 6 "dealing with the procedure or manner of amending the fundamental law are binding upon the Convention and the other departments of the government, (and) are no less binding upon the people" ; 7 — "As long as any amendment is formulated and submitted under the aegis of the present Charter, any proposal for such amendment which is not in conformity with the letter, spirit and intent of the Charter for effecting amendments, cannot receive the sanction of this Court" ; 8 — "The real issue here cannot be whether or not the amending process delineated by the present Constitution may be disregarded in favor of allowing the sovereign people to express their decision on the proposed amendments, if only because it is evident that the very idea of departing from the fundamental law is anachronistic in the realm of constitutionalism and repugnant to the essence of the rule of law" ; 9 and — Accordingly barred the plebiscite as improper and premature, since "the provisional nature of the proposed amendment and the manner of its submission to the people for ratification or rejection" did not "conform with the mandate of the people themselves in such regard, as expressed in the Constitution itself", 10 i.e. the mandatory requirements of the amending process as set forth in the Article on Amendments. 3. Applying the above rulings of Tolentino to the case at bar, mutatis mutandis, it is clear that where the proposed amendments are violative of the Constitutional mandate on the amending process not merely for being a "partial amendment" of a "temporary or provisional character" (as in Tolentino) but more so for not being proposed and approved by the department vested by the Constitution with the constituent power to do so, and hence transgressing the substantive provision that it is only the interim National Assembly, upon special call of the interim Prime Minister, by a majority vote of all its members that may propose the amendments, the Court must declare the amendment proposals null and void.

The transitory provisions of the 1973 Constitution expressly vest the constituent power during the period of transition in the interim National Assembly "upon special call by the interim Prime Minister (the incumbent President 3). by a majority vote of all its members (to) propose amendments." 4

4. This is so because the Constitution is a "superior paramount law, unchangeable by ordinary means" 11 but only by the particular mode and manner prescribed therein by the people. As stressed by Cooley, "by the Constitution which they establish, (the people) not only tie up the hands of their official agencies but their own hands as well; and neither the officers of the State, nor the whole people as an aggregate body, are at liberty to take action in opposition to this fundamental law." 12

Since the Constitution provides for the organization of the essential departments of government, defines and delimits the powers of each and prescribes the manner of the exercise of such powers, and the constituent power has not been granted to but has been

The vesting of the constituent power to propose amendments in the legislative body (the regular National Assembly or the interim National Assembly during the transition period) or in a constitutional contention called for the purpose is in accordance with universal practice.

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"From the very necessity of the case" Cooley points out "amendments to an existing constitution, or entire revisions of it, must be prepared and matured by some body of representatives chosen for the purpose. It is obviously impossible for the whole people to meet, prepare, and discuss the proposed alterations, and there seems to be no feasible mode by which an expression of their will can be obtained, except by asking it upon the single point of assent or disapproval." This body of representatives vested with the constituent power "submits the result of their deliberations" and "puts in proper form the questions of amendment upon which the people are to pass" — for ratification or rejection. 13 5. The Court in Tolentino thus rejected the argument "that the end sought to be achieved is to be desired" and in denying reconsideration, in paraphrase of the late Claro M. Recto, declared that "let those who would put aside, invoking grounds at best controversial, any mandate of the fundamental law purportedly in order to attain some laudable objective bear in mind that someday somehow others with purportedly more laudable objectives may take advantage of the precedent and continue the destruction of the Constitution, making those who laid down the precedent of justifying deviations from the requirements of the Constitution the victims of their own folly."cralaw virtua1aw library This same apprehension was echoed by now retired Justice Calixto O. Zaldivar in his dissenting opinion in the Ratification cases 14 that "we will be opening the gates for a similar disregard to the Constitution in the future. What I mean is that if this Court now declares that a new Constitution is now in force because the members of the citizens assemblies had approved said new Constitution, although that approval was not in accordance with the procedure and the requirements prescribed in the 1935 Constitution, it can happen again in some future time that some amendments to the Constitution may be adopted, even in a manner contrary to the existing Constitution and the law, and then said proposed amendments is submitted to the people in any manner and what will matter is that a basis is claimed that there was approval by the people. There will not be stability in our constitutional system, and necessarily no stability in our government."cralaw virtua1aw library 6. It is not legally tenable for the majority, without overruling the controlling precedent of Tolentino (and without mustering the required majority vote to so overrule) to accept the proposed; amendments as valid notwithstanding their being ‘not in conformity with the letter, spirit and intent of the provision of the Charter for effecting amendments" on the reasoning that "If the President has been legitimately discharging the legislative functions of the interim National Assembly, there is no reason why he cannot validly discharge the function of that Assembly to propose amendments to the Constitution, which is but adjunct, although peculiar, to its gross legislative functions." 15 In the earlier leading case of Gonzales v. Comelec 16 , this Court speaking through now retired Chief Justice Roberto Concepcion, pointed out that "Indeed, the power to amend the Constitution or to propose amendments thereto is not included in the general grant of legislative powers to Congress" 17 or to the National Assembly. 18 Where it not for the express grant in the Transitory Provisions of the constituent power to the interim National Assembly, the interim National Assembly could not claim the power under the general grant of legislative power during the transition period. The majority’s ruling in the Referendum cases 19 that the Transitory Provisions in section 3(2) recognized the existence of the authority to legislate in favor of the incumbent President during the period of martial law manifestly cannot be stretched to encompass the constituent power as expressly vested in the interim National Assembly in derogation of the allotment of

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powers defined in the Constitution. Paraphrasing Cooley on the non-delegation of legislative power as one of the settled maxims of constitutional law, 20 the constituent power has been lodged by the sovereign power of the people with the interim National Assembly during the transition period and there it must remain as the sole constitutional agency until the Constitution itself is changed. As was aptly stated by Justice Jose P. Laurel in the 1936 landmark case of Angara v. Electoral Commission 21" (T)he Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels, for then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere political apothegms. Certainly, the limitations and restrictions embodied in our Constitution are real as they should be in any living Constitution." chanrobles law library : red 7. Neither is the justification of "constitutional impasse" tenable. The sentiment of the people against the convening of the interim National Assembly and to have no elections for "at least seven (7) years" concededly could not amend the Constitution insofar as the interim National Assembly is concerned (since it admittedly came into existence "immediately" upon the proclamation of ratification of the 1973 Constitution), much less remove the constituent power from said interim National Assembly. As stressed in the writer’s separate opinion in the Referendum cases 22 ," (W)hile 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 the interim National Assembly for at least seven years, such sentiment cannot be given any legal force and effect in the light of the State’s admission at the hearing that such referendums are merely consultative and cannot amend the Constitution or any provision which call for the ‘immediate existence’ and ‘initial convening of the interim National Assembly to ‘give priority to measures for the orderly transition from the presidential to the parliamentary system’ and the other urgent measures enumerated in section 5 thereof." While the people reportedly expressed their mandate against the convening of the interim National Assembly to discharge its legislative tasks during the period of transition under martial law, they certainly had no opportunity and did not express themselves against convening the interim National Assembly to discharge the consistent power to propose amendments likewise vested in it by the people’s official mandate in the Constitution. In point of fact, when the holding of the October 16, 1976 referendum was first announced, the newspapers reported that among the seven questions proposed by the sanggunian and barangay national executive committees for the referendum was the convening of the interim National Assembly. 23 It was further reported that the proposals which were termed tentative "will be discussed and studied by (the President), the members of the cabinet, and the security council" and that the barangays felt, notwithstanding the previous referenda on the convening of the interim National Assembly that "it is time to again ask the people’s opinion of this matter." 24

8. If proposals for constitutional amendments are now deemed necessary to be discussed and adopted for submittal to the people, strict adherence with the mandatory requirements of the amending process as provided in the Constitution must be complied with. This means, under the teaching of Tolentino that the proposed amendments must validly come from the constitutional agency vested with the constituent power to do so, namely, the interim National Assembly, and not from the executive power as vested in the Prime Minister (the incumbent President) with the assistance of the Cabinet 25 from whom such power has been withheld.

government in the discharge of the functions with which it is entrusted have no choice but to yield obedience to its commands. Whatever limits it imposes must be observed. Congress in the enactment of statutes must ever be on guard lest the restrictions on its authority, whether substantive or formal, be transcended. The Presidency in the execution of the laws cannot ignore or disregard what it ordains. In its task of applying the law to the facts as found in deciding cases, the judiciary is called upon to maintain inviolate what is decreed by the fundamental law."cralaw virtua1aw library

It will not do to contend that these proposals represent the voice of the people for as was aptly stated by Cooley "The voice of the people, acting in their sovereign capacity, can be of legal force only when expressed at the times and under the conditions which they themselves have prescribed and pointed out by the Constitution. . . .." 26

This is but to give meaning to the plain and clear mandate of section 15 of the Transitory Provisions (which allows of no other interpretation) that during the stage of transition the interim National Assembly alone exercises the constituent power to propose amendments, upon special call therefor. This is reinforced by the fact that the cited section does not grant to the interim National Assembly the same power granted to the regular National Assembly of calling a constitutional convention, thus expressing the will of the Convention (and presumably of the people upon ratification) that if ever the need to propose amendments arose during the limited period of transition, the interim National Assembly alone would discharge the task and no constitutional convention could be called for the purpose.

The same argument was put forward and rejected by this Court in Tolentino which rejected the contention that the "Convention being a legislative body of the highest order (and directly elected by the people to speak their voice) is sovereign, and as such, its acts impugned by petitioner are beyond the control of Congress and the Courts" and ruled that the constitutional article on the amending process "is nothing more than a part of the Constitution thus ordained by the people. Hence, in construing said section, We must read it as if the people had said, ‘The Constitution may be amended, but it is our will that the amendment must be proposed and submitted to Us for ratification only in the manner herein provided’." 27 This Court therein stressed that "This must be so, because it is plain to Us that the framers of the Constitution took care that the process of amending the same should not be undertaken with the same ease and facility in changing an ordinary legislation. Constitution making is the most valued power, second to none, of the people in a constitutional democracy such as the one our founding fathers have chosen for this nation, and which we of the succeeding generations generally cherish. And because the Constitution affects the lives, fortunes, future and every other conceivable aspect of the lives of all the people within the country and those subject to its sovereignty, every degree of care is taken in preparing and drafting it. A constitution worthy of the people for which it is intended must not be prepared in haste without adequate deliberation and study. It is obvious that correspondingly, any amendment of the Constitution is of no less importance than the whole Constitution itself, and perforce must be conceived and prepared with as much care and deliberation;" and that "written constitutions are supposed to be designed so as to last for some time, if not for ages, or for, at least, as long as they can be adopted to the needs and exigencies of the people, hence, they must be insulated against precipitate and hasty actions motivated by more or less passing political moods or fancies. Thus, as a rule, the original constitutions carry with them limitations and conditions, more or less stringent, made so by the people themselves, in regard to the process of their amendment." 28 9. The convening of the interim National Assembly to exercise the constituent power to proposed amendments is the only way to fulfill the express mandate of the Constitution. As Mr. Justice Fernando emphasized for this Court in Mutuc v. Comelec 29 in the setting aside of a Comelec resolution banning the use of political taped jingles by candidates for Constitutional Convention delegates in the special 1970 elections, "the concept of the Constitution as the fundamental law. setting forth the criterion for the validity of any public act whether proceeding from the highest official or the lowest functionary, is a postulate of our system of government. That is to manifest fealty to the rule of law, with priority accorded to that which occupies the topmost rung in the legal hierarchy. The three departments of

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As to the alleged costs involved in convening the interim National Assembly to propose amendments, among them its own abolition, (P24 million annually in salaries alone for its 400 members at P60,000.00 per annum per member, assuming that its deliberations could last for one year), suffice it to recall this Court’s pronouncement in Tolentino (in rejecting a similar argument on the costs of holding a plebiscite separately from the general elections for elective officials) that "it is a matter of public knowledge that bigger amounts have been spent or thrown to waste for many lesser objectives. . . . Surely, the amount of seventeen million pesos or even more is not too much a price to pay for fealty and loyalty to the Constitution . . ." 30 and that "while the financial costs of a separate plebiscite may be high, it can never be as much as the dangers involved in disregarding clear mandate of the Constitution, no matter how laudable the objective" and "no consideration of financial costs shall deter Us from adherence to the requirements of the Constitution." 31 10. The imposition of martial law (and "the problems of rebellion, subversion, secession, recession, inflation and economic crisis -a crisis greater than war") 32 cited by the majority opinion as justifying the concentration of powers in the President, and the recognition now of his exercising the constituent power to propose amendments to the Fundamental Law "as agent for and in behalf of the people" 33 has no constitutional basis. In the post-war Emergency Powers 33* , former Chief Justice Ricardo Paras reaffirmed for the Court the principle that emergency in itself cannot and should not create power. "In our democracy the hope and survival of the nation lie in the wisdom and unselfish patriotism of all officials and in their faithful adherence to the Constitution." The martial law clause of the 1973 Constitution found in Article IX, section 12, as stressed by the writer in his separate opinion in the Referendum Cases, 34 "is a verbatim reproduction of Article VII, section 10 (2) of the 1935 Constitution and provides for the imposition of martial law only ‘in case of invasion, insurrection or rebellion, or imminent danger thereof, when the public safety requires it’ and hence the use of the legislative power or more accurately ‘military power’ under martial rule is limited to such necessary measures as will safeguard the Republic and suppress the rebellion (or invasion)." 35 11. Article XVII, section 3 (2) of the 1973 Constitution which has been held by the majority in

the Referendum Cases to be the recognition or warrant for the exercise of legislative power by the President during the period of martial law is but a transitory provision. Together with the martial law clause, they constitute hut two provisions which are not to be considered in isolation from the Constitution but as mere integral parts thereof which must he harmonized consistently with the entire Constitution.

defender and preserver." 40

As Cooley restated the rule: "effect is to be given, if possible, to the whole instrument, and to every section and clause. If different portions seem to conflict, the courts must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make some words idle and nugatory.

The trail was blazed for the Court since the benchmark case of Angara v. Electoral commission when Justice Jose P. Laurel echoed U.S. Chief Justice Marshall’s "climactic phrase" that "we must never forget that it is a Constitution we are expounding" and declared the Court’s "solemn and sacred" constitutional obligation of judicial review and laid down the doctrine that the Philippine Constitution as "a definition of the powers of government" placed upon the judiciary the great burden of "determining the nature, scope and extent of such powers" and stressed that "when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments. but only asserts the solemn and sacred obligation entrusted to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which the instrument secures and guarantees to them."

"This rule is applicable with special force to written constitutions, in which the people will be presumed to have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, leaving as little as possible to implication. It is scarcely conceivable that a case can arise where a court would be justified in declaring any portion of a written constitution nugatory because of ambiguity. One part may qualify another so as to restrict its operation, or apply it otherwise than the natural construction would require if it stood by itself; but one part is not to be allowed to defeat another, if by any reasonable construction the two can be made to stand together." 36 The transcendental constituent power to propose and approve amendments to the Constitution as well as set up the machinery and prescribe the procedure for the ratification of his proposals has been withheld from the President (Prime Minister) as sole repository of the Executive Power, presumably in view of the immense powers already vested in him by the Constitution but just as importantly, because by the very nature of the constituent power, such amendments proposals have to be prepared, deliberated and matured by a deliberative assembly of representatives such as the interim National Assembly and hence may not be antithetical entrusted to one man. Former Chief Justice Roberto Concepcion had observed before the election of the 1971 Constitutional Convention that the records of past plebiscites show that the constitutional agency vested with the exercise of the constituent power (Congress or the Constitutional Convention) really determine the amendments to the Constitution since the proposals were invariably ratified by the people, 37 thus: "although the people have Convention, such power is not, in view of the circumstances attending its exercise, as effective as one might otherwise think; that, despite the requisite ratification by the people, the actual contents of our fundamental law will really be determined by the Convention; that accordingly the people should exercise the greatest possible degree of circumspection in the election of delegates thereto . . .." 38 12 Martial law concededly does not abrogate the Constitution nor obliterate its constitutional boundaries and allocation of powers among the Executive, Legislative and Judicial Departments. 39 It has thus been aptly observed that "Martial law is an emergency regime, authorized by and subject to the Constitution. Its basic premise is to preserve and to maintain the Republic against the dangers that threaten it Such premise imposes constraints and limitations. For the martial law regime fulfills the constitutional purpose only if, by reason of martial law measures, the Republic is preserved. If by reason of such measures the Republic is so transformed that it is changed in its nature and becomes a State other than republican, then martial law is a failure; worse, martial law would have become the enemy of the Republic rather than its

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II. On the question of the Court’s jurisdiction to pass upon the constitutionality of the questioned presidential decrees: let it be underscored that the Court has long set at rest the question.

At the same time, the Court likewise adhered to the constitutional tenet that political questions, i.e. questions which are intended by the Constitutional and relevant laws to be conclusively determined by the" political", i.e. elective, branches of government (namely, the Executive and the Legislative) are outside the Court’s jurisdiction. 41 Thus, in Gonzales, 42 (by a unanimous Court) and in Tolentino 43 (by the required constitutional majority), the Court has since consistently ruled that when proposing and approving amendments to the Constitution, the members of Congress, acting as a constituent assembly or the members of the Constitutional Convention elected directly for the purpose "do not have the final say on whether or not their acts are within or beyond constitutional limits. Otherwise, they could brush aside and set the same at naught, contrary to the basic tenet that ours is a government of laws, not of men, and to the rigid nature of our Constitution. Such rigidity is stressed by the fact that, the Constitution expressly confers upon the Supreme Court, the power to declare a treaty unconstitutional, despite the eminently political character of treatymaking power." 44 As amplified by former Chief Justice Conception in Javellana v. Executive Secretary 45 (by a majority vote), "when the grant of power is qualified, conditional or subject to limitations, the issue on whether or not the prescribed qualifications or conditions have been met, or the limitations respected, is justiciable or non-political, the crux of the problem being one of legality or validity of the contested act, not its wisdom. Otherwise, said qualifications, conditions and limitations-particularly those prescribed or imposed by the Constitution-would be set at naught." The fact that the proposed amendments are to be submitted to the people for ratification by no means makes the question political and non-justiciable, since as stressed even in Javellana, the issue of validity of the President’s proclamation of ratification of the 1973 Constitution presented a justiciable and non-political question. Stated otherwise, the question of whether the Legislative acting as a constituent assembly or the Constitutional Convention called for the purpose, in proposing amendments to the people for ratification followed the constitutional procedure and requirements on the amending process is perforce a justiciable question and does not raise a political question of policy or

wisdom of the proposed amendments, which if properly submitted, are reserved for the people’s decision. The substantive question presented in the case at bar of whether the President may legally exercise the constituent power vested in the interim National Assembly (which has not been granted to his office) and propose constitutional amendments is prominently a justiciable issue. Justice Laurel in Angara had duly enjoined that "in times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof." To follow the easy way out by disclaiming jurisdiction over the issue as a political question would be judicial abdication. III. On the question of whether there is a sufficient and proper submittal of the proposed amendments to the people: Prescinding from the writer’s view of the nullity of the questioned decrees for lack of authority on the President’s part to exercise the constituent power, I hold that the doctrine of fair and proper submission first enunciated by a simple majority of six Justices in Gonzales and subsequently officially adopted by the required constitutional twothirds majority of the Court in Tolentino is controlling in the case at bar. 1. There cannot be said to be fair and proper submission of the proposed amendments. As ruled by this Court in Tolentino, where "the proposed amendment in question is expressly saddled with reservations which naturally impair, in great measure, its very essence as a proposed constitutional amendment" and where "the way the proposal is worded, read together with the reservations tacked to it by the Convention thru Section 3 of the questioned resolution, it is too much of a speculation to assume what exactly the amendment would really amount to in the end. All in all, as already pointed out in our discussion of movants’ first ground, if this kind of amendment is allowed, the Philippines will appear before the world to be in the absurd position of being the only country with a constitution containing a provision so ephemeral no one knows until when it will be actually in force", there can be no proper submission. In Tolentino a solitary amendment reducing the voting age to 18 years was struck down by this Court which ruled that "in order that a plebiscite for the ratification of an amendment to the Constitution may be validly held, it must provide the voter not only sufficient time but ample basis for an intelligent appraisal of the nature of the amendment per se as well as its relation to the other parts of the Constitution with which it has to form a harmonious whole," and that there was no proper submission "wherein the people are in the dark as to frame of reference they can base their judgment on." 2. The now Chief Justice and Mr. Justice Makasiar with two other member 46 graphically pointed out in their joint separate opinion that the solitary question "would seem to be uncomplicated and innocuous. But it is one of life’s verities that things which appear to be simple may turn out not to be so simple after all." 47 They further expressed "essential agreement" with Mr. Justice Conrado V. Sanchez’ separate opinion in Gonzales "on the minimum requirements that must be met in order that there can be a proper submission to the people of a proposed constitutional amendment" which reads thus:jgc:chanrobles.com.ph

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". . . we take the view that the words ‘submitted to the people for their ratification’, if constrained in the light of the nature of the Constitution a fundamental charter that is legislation direct from the people, an expression of their sovereign will — is that it can only be amended by the people expressing themselves according to the procedure ordained by the Constitution. Therefore, amendments must be fairly laid before the people for their blessing or spurning. The people are rot to be mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunity to mull over the original provisions, compare them with the proposed amendments, and try to reach a conclusion as the dictates of their conscience suggest, free from the incubus of extraneous or possibly insidious influences. We believe the word ‘submitted’ can only mean that the government, within its maximum capabilities, should strain every effort to inform every citizen of the provisions to be amended, and the proposed amendments and the meaning, nature and effects thereof. By this, we are not to be understood as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be reached, then there is no submission within the meaning of the word as intended by the framers of the Constitution. What the Constitution in effect directs is that the government, in submitting an amendment for ratification, should put every instrumentality or agency within its structural framework to enlighten the people, educate them with respect to their act of ratification or rejection. For, as we have earlier stated, one thing is submission and another is ratification. There must be fair submission, intelligent, consent or rejection. If with all these safeguards the people still approve the amendment no matter how prejudicial it is to them, then so be it. For the people decree their own fate." 48 Justice Sanchez therein ended the passage with an apt citation that." . . The great men who builded the structure of our state in this respect had the mental vision of a good Constitution voiced by Judge Cooley, who has said ‘A good Constitution should be beyond the reach of temporary excitement and popular caprice or passion. It is needed for stability and steadiness; it must yield to the thought of the people; not to the whim of the people, or the thought evolved in excitement or hot blood, but the sober second thought, which alone, if the government is to be safe, can be allowed efficiency. . . . Changes in government are to be feared unless the benefit is certain. As Montaign says: ‘All great mutations shake and disorder a state. Good does not necessarily succeed evil: another evil may succeed and a worse.’" 49 Justice Sanchez thus stated the rule that has been adopted by the Court in Tolentino that there is no proper submission "if the people are not sufficiently informed of the amendments to be voted upon, to conscientiously deliberate thereon, to express their will in a genuine manner. . . .." 50 3. From the complex and complicated proposed amendments set forth in the challenged decree and the plethora of confused and confusing clarifications reported in the daily newspapers, it is manifest that there is no proper submission of the proposed amendments. Nine (9) proposed constitutional amendments were officially proposed and made known as per Presidential Decree No. 1033 dated September 22, 1976 for submittal at the "referendumplebiscite" called for this coming Saturday, October 16, 1976 wherein the 15-year and under 18-year-olds are enjoined to vote 51 notwithstanding their lack of qualification under Article VI of the Constitution. Former Senator Arturo Tolentino, an acknowledged parliamentarian of the highest order, was reported by the newspapers last October 3 to have observed that "there is no urgency in approving the proposed amendments to the Constitution and suggested that the question

regarding charter changes be modified instead of asking the people to vote on hurriedly prepared amendments." He further pointed out that "apart from lacking the parliamentary style in the body of the Constitution, they do not indicate what particular provisions are being repealed or amended." 52 As of this writing, October 11, 1976, the papers today reported his seven-page analysis questioning among others the proposed granting of dual legislative powers to both the President and the Batasang Pambansa and remarking that "This dual legislative authority can give rise to confusion and serious constitutional questions." 53 Aside from the inadequacy of the limited time given for the people’s consideration of the proposed amendments, there can be no proper submission because the proposed amendments are not in proper form and violate the cardinal rule of amendments of written constitutions that the specific provisions of the Constitution being repealed or amended as well as how the specific provisions as amended would read, should be clearly stated in careful and measured terms. There can be no proper submission because the vagueness and ambiguity of the proposals do not sufficiently inform the people of the amendments for conscientious deliberation and intelligent consent or rejection. 4. While the press and the Solicitor General at the hearing have stated that the principal thrust of the proposals is to substitute the interim National Assembly with an interim Batasang Pambansa, a serious study thereof in detail would lead to the conclusion that the whole context of the 1973 Constitution proper would be affected and grave amendments and modifications thereof would apparently be made, among others, as follows:chanrob1es virtual 1aw library Under Amendment No. 1, the qualification age of members of the interim Batasang Pambansa is reduced to 18 years; Under Amendment No. 2, the treaty-concurring power of the Legislature is withheld from the interim Batasang Pambansa; Under Amendment No. 3, notwithstanding the convening of the interim Batasang Pambansa within 30 days from the election and selection of the members (for which there is no fixed date) the incumbent President apparently becomes a regular President and Prime Minister (not ad interim); Under Amendment No. 4, the disqualifications imposed on members of the Cabinet in the Constitution such as the prohibition against the holding of more than one office in the government including government-owned or controlled corporations would appear to be eliminated, if not prescribed by the President; Under Amendment No. 5, the President shall continue to exercise legislative powers until martial law is lifted; Under Amendment No. 6, there is a duality of legislative authority given the President and the interim Batasang Pambansa as well as the regular National Assembly, as pointed out by Senator Tolentino, with the President continuing to exercise legislative powers in case of "grave emergency or a threat or imminence thereof" (without definition of terms) or when said Assemblies "fail or are unable to act adequately on any matter for any reason that in his judgment requires immediate action", thus radically affecting provisions of the Constitution

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governing the said departments; Under Amendment No. 7, the barangays and Sanggunians would apparently be constitutionalized, although their functions, powers and composition may be altered by law. Referendums (which are not authorized in the present 1973 Constitution) would also be constitutionalized, giving rise to the possibility fraught with grave consequences, as acknowledged at the hearing, that amendments to the Constitution may thereafter be effected by referendum, rather than by the rigid and strict amending process provided presently in Article XVI of the Constitution; Under Amendment No. 8, there is a general statement in general that the unspecified provisions of the Constitution "not inconsistent with any of these amendments" shall continue in full force and effect; and Under Amendment No. 9, the incumbent President is authorized to proclaim the ratification of the amendments by the majority of votes cast. It has likewise been stressed by the officials concerned that the proposed amendments come in a package and may not be voted upon separately but on an "all or nothing" basis. 5. Whether the people can normally express their will in a genuine manner and with due circumspection on the proposed amendments amidst the constraints of martial law is yet another question. That a period of free debate and discussion has to be declared of itself shows the limitations on free debate and discussion. The facilities for free debate and discussion over the mass media, print and otherwise are wanting. The President himself is reported to have observed the timidity of the media under martial law and to have directed the press to air the views of the opposition. 54 Indeed, the voice of the studentry as reflected in the editorial of the Philippine Collegian issue of September 23, 1976 comes as a welcome and refreshing model of conscientious deliberation, as our youth analyzes the issues "which will affect generations yet to come" and urge the people to "mull over the pros and cons very carefully", as follows:jgc:chanrobles.com.ph "THE REFERENDUM ISSUES "On October 16, the people may be asked to decide on two important national issues — the creation of a new legislative body and the lifting of martial law. "On the first issue, it is almost sure that the interim National Assembly will not be convened, primarily because of its membership. Majority of the members of the defunct Congress, who are mandated by the Constitution to become members of the interim National Assembly, have gained so widespread a notoriety that the mere mention of Congress conjures the image of a den of thieves who are out to fool the people most of the time. Among the three branches of government, it was the most discredited. In fact, upon the declaration of martial law, some people were heard to mutter that a ‘regime that has finally put an end to such congressional shenanigans could not be all that bad.’ "A substitute legislative body is contemplated to help the President in promulgating laws, and perhaps minimize the issuance of ill-drafted decrees which necessitate constant amendments. But care should be taken that this new legislative body would not become a mere rubber stamp akin to those of other totalitarian countries. It should he given real powers, otherwise we will

just have another nebulous creation having the form but lacking the substance. Already the President has expressed the desire that among the powers he would like to have with regard to the proposed legislative body is that of abolishing it in case ‘there is a need to do so’. As to what would occasion such a need, only the President himself can determine. This would afford the Chief Executive almost total power over the legislature, for he could always offer the members thereof a carrot and a stick. "On the matter of lifting martial law, the people have expressed ambivalent attitudes. Some of them, remembering the turmoil that prevailed before the declaration of martial law, have expressed the fear that its lifting might precipitate the revival of the abuses of the past, and provide an occasion for evil elements to resurface with their usual tricks. Others say that it is about time martial law was lifted, since the peace and order situation has already stabilized and the economy seems to have been perked up. "The regime of martial law has been with us for four years now. No doubt, martial law has initially secured some reforms for the country. The people were quite willing to participate in the new experiment, thrilled by the novelty of it all. After the euphoria, however, the people seem to have gone back to the old ways, with the exception that some of our freedoms were taken away, and an authoritarian regime established. "We must bear in mind that martial law was envisioned only to cope with an existing national crisis. It was not meant to be availed of for a long period of time, otherwise it would undermine our adherence to a democratic form of government. In the words of the Constitution, martial law shall only be declared in times of ‘rebellion, insurrection invasion, or imminent danger thereof, when the public safety requires it’. Since we no longer suffer from internal disturbances of a gargantuan scale, it is about time we seriously rethink the ‘necessity’ of prolonging the martial law regime. If we justify the continuance of martial law by economic or other reasons other than the foregoing constitutional grounds, then our faith in the Constitution might be questioned. Even without martial law, the incumbent Chief Executive still holds vast powers under the Constitution. After all, the gains of the New Society can be secured without sacrificing the freedom of our people. If the converse is true, then we might have to conclude that the Filipinos deserve a dictatorial form of government. The referendum results will show whether the people themselves have adopted this sad conclusion. "The response of the people to the foregoing issues will affect generations yet to come, so they should mull over the pros and cons very carefully."cralaw virtua1aw library 6. This opinion is written in the same spirit as the President’s exhortations on the first anniversary of proclamation of the 1973 Constitution that we "let the Constitution remain firm and stable" so that it may "guide the people", and that we "remain steadfast on the rule of law and the Constitution" as he recalled his rejection of the "exercise (of) power that can be identified merely with a revolutionary government" that makes its own law, thus:jgc:chanrobles.com.ph ". . . Whoever he may be and whatever position he may happen to have, whether in government or outside government, it is absolutely necessary now that we look solemnly and perceptively into the Constitution and try to discover for ourselves what our role is in the successful implementation of that Constitution. With this thought, therefore, we can agree on one thing and that is: Let all of us age, let all of us then pass away as a pace in the development of our country, but let the Constitution remain firm and stable and let institutions grow in strength from day to day, from achievement to achievement, and so long as that Constitution stands,

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whoever may the man in power be, whatever may his purpose be, that Constitution will guide the people and no man, however, powerful he may be, will dare to destroy and wreck the foundation of such a Constitution. "These are the reasons why I personally, having proclaimed martial law, having been often induced to exercise power that can be identified merely with a revolutionary government, have remained steadfast on the rule of law and the Constitution." 54* IV. A final word on the Court’s resolution of October 5, 1976 which in reply to the Comelec query allowed by a vote of 7 to 3, judges of all courts, after office hours, "to accept invitations to act as resource speakers under Section 5 of Presidential Decree No. 991, as amended, as well as to take sides in discussions and debates on the referendum-plebiscite questions under Section 7 of the same Decree." 55 The writer with Mr. Justice Makasiar and Madame Justice Muñoz Palma had dissented from the majority resolution, with all due respect, on the ground that the non-participation of judges in such public discussions and debates on the referendum-plebiscite questions would preserve the traditional non-involvement of the judiciary in public discussions of controversial issues. This is essential for the maintenance and enhancement of the people’s faith and confidence in the judiciary. The questions of the validity of the scheduled referendumplebiscite and of whether there is proper submission of the proposed amendments were precisely subjudice by virtue of the cases at bar. The lifting of the traditional inhibition of judges from public discussion and debate might blemish the image and independence of the judiciary. Aside from the fact that the fixing of a time limit for the acceptance of their courtesy resignations to avoid an indefinite state of insecurity of their tenure in office still pends, litigants and their relatives and friends as well as a good sector of the public would be hesitant to air views contrary to that of the Judge. Justices Makasiar and Muñoz Palma who share these views have agreed that we make them of record here, since we understand that the permission given in the resolution is nevertheless addressed to the personal decision and conscience of each judge, and these views may be of some guidance to them. BARREDO, J., concurring:chanrob1es virtual 1aw library While I am in full agreement with the majority of my brethren that the herein petitions should he dismissed, as in fact I vote for their dismissal, I deem it imperative that I should state separately the considerations that have impelled me to do so. Perhaps, it is best that I should start by trying to disabuse the minds of those who I have doubts as to whether or not I should have taken part in the consideration and resolution of these cases. Indeed, it would not be befitting my position in this Highest Tribunal of the land for me to leave unmentioned the circumstances which have given cause, I presume, for others to feel apprehensive that my participation in these proceedings might detract from that degree of faith in the impartiality that the Court’s judgment herein should ordinarily command. In a way, it can be said, of course, that I am the one most responsible for such a rather problematical situation, and it is precisely for this reason that I have decided to begin this opinion with a discussion of why I have not inhibited myself, trusting most confidently that what I have to say will be taken in the same spirit of good faith, sincerity and purity of purpose in which I am resolved to offer the same.

Plain honesty dictates that I should make of record here the pertinent contents of the official report of the Executive Committee of the Katipunan ng mga Sanggunian submitted to the Katipunan itself about the proceedings held on August 14, 1976. It is stated in that public document that:jgc:chanrobles.com.ph "THE ISSUE WITH REGARDS TO THE CONVENING OF A LEGISLATIVE body came out when the President expressed his desire to share his powers with other people. Aware of this, a five-man Committee members of the Philippine Constitution Association (PHILCONSA) headed by Supreme Court Justice Antonio Barredo proposed on July 28, the establishment of ‘Sangguniang Pambansa’ or ‘Batasang Pambansa’ which would help the President in the performance of his legislative functions. The proposed new body will take the place of the interim National Assembly which is considered not practical to convene at this time considering the constitution of its membership. Upon learning the proposal of Justice Barredo, the country’s 42,000 barangay assemblies on August 1 suggested that the people be consulted on a proposal to create a new legislative body to replace the interim assembly provided for by the Constitution. The suggestion of the barangay units was made through their national association, Pambansang Katipunan ng mga Barangay headed by Mrs. Nora Z. Petines. She said that the people have shown in at least six instances including in the two past referenda that they are against the convening of the interim National Assembly. She also said that since the people had ruled out the calling of such assembly and that they have once proposed that the President create instead the Sangguniang Pambansa or a legislative advisory body, then the proposal to create a new legislative must necessarily be referred to the people. The federation of Kabataang Barangay, also numbering 42,000 units like their elder counterparts in the Katipunan ng mga Barangay also asserted their own right to be heard on whatever plans are afoot to convene a new legislative body. On August 6, a meeting of the national directorate of PKB was held to discuss matters pertaining to the stand of the PKB with regards to the convening of a new legislative body. The stand of the PKB is to create a legislative advisory council in place of the old assembly. Two days after, August 8, the Kabataang Barangay held a symposium and made a stand which is the creation of a body with full legislative powers. A nationwide clamor for the holding of meeting in their respective localities to discuss more intelligently the proposal to create a new legislative body was made by various urban and rural Sangguniang Bayans. Numerous requests made by some members coming from 75 provincial and 61 city SB assemblies, were forwarded to the Department of Local Government and Community Development (DLGCD). On August 7, Local Government Secretary, Jose A. Roño granted the request by convening the 91 member National Executive Committee of the Pambansang Katipunan ng mga Sanggunian on August 14 which was held at Session Hall, Quezon City. Invited also to participate were 13 Regional Federation Presidents each coming from the PKB and the PKKB."cralaw virtua1aw library

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Actually, the extent of my active participation in the events and deliberations that have culminated in the holding of the proposed referendum-plebiscite on October 16, 1976, which petitioners are here seeking to enjoin, has been more substantial and meaningful than the above report imparts. Most importantly, aside from being probably the first person to publicly articulate the need for the creation of an interim legislative body to take the place of the interim National Assembly provided for in the Transitory Provisions of the Constitution, as suggested in the above report, I might say that I was the one most vehement and persistent in publicly advocating and urging the authorities concerned to directly submit to the people in a plebiscite whatever amendments of the Constitution might be considered necessary for the establishment of such substitute interim legislature. In the aforementioned session of the Executive Committee of the Katipunan, I discoursed on the indispensability of a new interim legislative body as the initial step towards the early lifting of martial law and on the fundamental considerations why in our present situation a constitutional convention would be superfluous in amending the Constitution. Moreover, it is a matter of public knowledge that in a speech I delivered at the Coral Ballroom of the Hilton Hotel in the evening of August 17, 1976, I denounced in no uncertain terms the plan to call a constitutional convention. I reiterated the same views on September 7, 1976 at the initial conference called by the Comelec in the course of the information and educational campaign it was enjoined to conduct on the subject. And looking back at the subsequent developments up to September 22, 1976, when the Batasang Bayan approved and the President signed the now impugned Presidential Decree No. 1033, it is but human for me to want to believe that to a certain extent my strong criticisms and resolute stand against any other alternative procedure of amending the Constitution for the purpose intended had borne fruit. I must hasten to add at this point, however, that in a larger sense, the initiative for all I have done, was not altogether mine alone. The truth of the matter is that throughout the four years of this martial law government, it has always been my faith, as a result of casual and occasional exchanges of thought with President Marcos, that when the appropriate time does come, the President would somehow make it known that in his judgment, the situation has already so improved as to permit the implementation, if gradual, of the constitutionally envisioned evolution of our government from its present state to a parliamentary one. Naturally, this would inevitably involve the establishment of a legislative body to replace the abortive interim National Assembly. I have kept tract of all the public and private pronouncements of the President, and it was the result of my reading thereof that furnished the immediate basis for my virtually precipitating, in one way or another, the materialization of the forthcoming referendum-plebiscite. In other words, in the final analysis, it was the President’s own attitude on the matter that made it opportune for me to articulate my own feelings and ideas as to how the nation can move meaningfully towards normalization and to publicly raise the issues that have been ventilated by the parties in the instant cases.chanrobles law library : red I would not be human, if I did not consider myself privileged in having been afforded by Divine Providence the opportunity to contribute a modest share in the formulation of the steps that should lead ultimately to the lifting of martial law in our country. Indeed, I am certain every true Filipino is anxiously looking forward to that eventuality. And if for having voiced the sentiments of our people, where others would have preferred to be comfortably silent, and if for having made public what every Filipino must have been feeling in his heart all these years, I should be singled out as entertaining such preconceived opinions regarding the issues before the Court in the cases at bar as to preclude me from taking part in their disposition, I can only say that I do not believe there is any other Filipino in and out of the Court today who is not equally situated as I am.

The matters that concern the Court in the instant petitions to not involve merely the individual interests of any single person or group of persons. Besides, the stakes in these cases affect everyone commonly, not individually. The current of history that has passed through the whole country in the wake of martial law has swept all of us, sparing none, and the problem of national survival and of restoring democratic institutions and ideals is seeking solution in the minds of all of us. That I have preferred to discuss publicly my own thoughts on the matter cannot mean that my colleagues in the Court have been indifferent and apathetic about it, for they too are Filipinos. Articulated or not, all of us must have our own preconceived ideas and notions in respect to the situation that confronts the country. To be sure, our votes and opinions in the major political cases in the recent past should more or less indicate our respective basic positions relevant to the issues now before Us. Certainly, contending counsels cannot be entirely in the dark in this regard. I feel that it must have been precisely because of such awareness that despite my known public participation in the discussion of the question herein involved, none of the parties have sought my inhibition or disqualification. Actually, although it may be difficult for others to believe it, I have never allowed my preconceptions and personal inclinations to affect the objectivity needed in the resolution of any judicial question before the Court. I feel I have always been able to appreciate, fully consider and duly weight arguments and points raised by all counsels, even when they conflict with my previous views. I am never beyond being convinced by good and substantial ratiocination. Nothing has delighted me more than to discover that somebody else has thought of more weighty arguments refuting my own, regardless of what or whose interests are at stake. I would not have accepted my position in the Court had I felt I would not be able to be above my personal prejudices. To my mind, it is not that a judge has preconceptions that counts, it is his capacity and readiness to absorb contrary views that are indispensable for justice to prevail. That suspicions of pre-judgment may likely arise is unavoidable; but I have always maintained that whatever improper factors might influence a judge will unavoidably always appear on the face of the decision. In any event, is there better guarantee of justice when the preconceptions of a judge are concealed? Withal, in point of law, I belong to the school of though that regards members of the Supreme Court as not covered by the general rules relative to disqualification and inhibition of judges in cases before them. If I have in practice actually refrained from participating in some cases, it has not been because of any legal ground founded on said rules, but for purely personal reasons, specially because, anyway, my vote would not have altered the results therein. It is my considered opinion that unlike in the cases of judges in the lower courts, the Constitution does not envisage compulsory disqualification or inhibition in any case by any member of the Supreme Court. The Charter establishes a Supreme Court "composed of a Chief Justice and fourteen Associate Justices", with the particular qualifications therein set forth and to be appointed in the manner therein provided. Nowhere in the Constitution is there any indication that the legislature may designate by law instances wherein any of the justices should not or may not take part in the resolution of any justices should not or may not take part in the resolution of any case, much less who should take his place. Members of the Supreme Court and definite constitutional officers; it is not within the power of the lawmaking body to replace them even temporarily for any reason. To put it the other way, nobody who has not been duly appointed as a member of the Supreme Court can sit in it at any time or for any reason. The Judicial power is vested in the Supreme Court composed as the Constitution ordains — that power cannot be exercised by a Supreme Court constituted otherwise. And so, when as in the instant cases where, if any of the member of Court is to abstain from taking

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part, there would be no quorum — and no court to render the decision — it is the ineludible duty of all the incumbent justices to participate in the proceedings and to cast their votes, considering that for the reasons stated above, the provisions of Section 9 of the Judiciary Act do not appear to conform with the concept of the office of Justice of the Supreme Court contemplated in the Constitution.chanroblesvirtualawlibrary The very nature of the office of Justice of the Supreme Court as the tribunal of last resort and bulwark of the rights and liberties of all the people demands that only one of dependable and trustworthy probity should occupy the same. Absolute integrity, mental and otherwise, must be possessed by everyone who is appointed thereto. The moral character of every member of the Court must be assumed to be such that in no case whatsoever, regardless of the issues and the parties involved, may it be feared that anyone’s life, liberty or property, much less the national interests, would ever be in jeopardy of being unjustly and improperly subjected to any kind of judicial sanction. In sum, every Justice of the Supreme Court is expected to be capable of rising above himself in every case and of having full control of his emotions and prejudices, such that with the legal training and experience he must of necessity be adequately equipped with, it would be indubitable that his judgment cannot be but objectively impartial, Indeed, even the appointing power, to whom the Justices owe their positions, should never hope to be unduly favored by any action of the Supreme Court. All appointments to the Court are based on these considerations, hence the ordinary rules on inhibition and disqualification do not have to be applied to its members. With the preliminary matter of my individual circumstances out of the way, I shall now address myself to the grave issues submitted for Our resolution. -IIn regard to the first issue as to whether the questions posed in the petitions herein are political or justiciable, suffice it for me to reiterate the fundamental position I took in the Martial Law cases, 1 thus:jgc:chanrobles.com.ph "As We enter the extremely delicate task of resolving the grave issues thus thrust upon Us. We are immediately encountered by absolute verities to guide Us all the way. The first and most important of them is that the Constitution (Unless expressly stated otherwise, all references to the Constitution in this discussion are to both the 1935 and 1973 charters, since, after all, the pertinent provisions are practically identical in both.) is the supreme law of the land. This means among other things that all the powers of the government and of all its officials from the President down to the lowest emanate from it. None of them may exercise any power unless it can be traced thereto either textually or by natural and logical implication. "The second is that it is settled that the Judiciary provisions of the Constitution point to the Supreme Court as the ultimate arbiter of all conflicts as to what the Constitution or any part thereof means. While the other Departments may adopt their own construction thereof, when such construction is challenged by the proper party in an appropriate case wherein a decision would be impossible without determining the correct construction, the Supreme Court’s word on the matter controls. x

x

x

"The fifth is that in the same manner that the Executive power conferred upon the Executive

by the Constitution is complete, total and unlimited, so also, the judicial power vested in the Supreme Court and the inferior courts, is the very whole of that power, without any limitation or qualification. "x

x

x

"From these incontrovertible postulates, it results, first of all, that the main question before Us is not in reality one of jurisdiction, for there can be no conceivable controversy, especially one involving a conflict as to the correct construction of the Constitution, that is not contemplated to be within the judicial authority of the courts to hear and decide. The judicial power of the courts being unlimited and unqualified, it extends over all situations that call for the ascertainment and protection of the rights of any party allegedly violated, even when the alleged violator is the highest official of the land or the government itself. It is, therefore, evidence that the Court’s jurisdiction to take cognizance of and to decide the instant petitions on their merits is beyond challenge. "In this connection, however, it must be borne in mind that in the form of government envisaged by the farmers of the Constitution and adopted by our people, the Court’s indisputable and plenary authority to decide does not necessarily impose upon it the duty to interpose its fiat as the only means of setting the conflicting claims of the parties before it. It is ingrained in the distribution of powers in the fundamental law that hand in hand with the vesting of the judicial power upon the Court, the Constitution has coevally conferred upon it the discretion to determine, in consideration of the constitutional prerogatives granted to the other Departments, when to refrain from imposing judicial solutions and instead defer to the judgment of the latter. It is in the very nature of republican governments that certain matters are left in the residual power of the people themselves to resolve, either directly at the polls or thru their elected representatives in the political Departments of the government. And these reserved matters are easily distinguishable by their very nature, when one studiously considers the basic functions and responsibilities entrusted by the charter to each of the great Departments of the government. To cite an obvious example, the protection, defense and preservation of the state against internal or external aggression threatening its very existence is far from being within the ambit of judicial responsibility. The distinct role then of the Supreme Court of being the final arbiter in the determination of constitutional controversies does not have to be asserted in such contemplated situations, thereby to give way to the ultimate prerogative of the people articulated thru suffrage or thru the acts of their political representatives they have elected for the purpose. Indeed, these fundamental considerations are the ones that lie at the base of what is known in American constitutional law as the political question doctrine, which in that jurisdiction is unquestionably deemed to be part and purse of the rule of law, exactly like its apparently more attractive or popular opposite, judicial activism, which is the fullest exertion of judicial power, upon the theory that unless the courts intervene injustice might prevail. It has been invoked and applied by this Court in varied forms and modes of projection in several momentous instances in the past, (Barcelon v. Baker, 5 Phil. 87; Severino v. Governor-General, 16 Phil. 366; Abueva v. Wood, 45 Phil. 612; Alejandrino v. Quezon, 46 Phil. 85; Vera v. Avelino, 77 Phil. 192; Mabanag v. Lopez Vito, 78 Phil. 1; Cabili v. Francisco, 88 Phil. 654; Montenegro v. Castañeda, 91 Phil. 882; Santos v. Yatco, 55 O.G. 8641 [Minute Resolution of Nov. 6, 1959]; Osmeña v. Pendatun, Oct. 28, 1960.) and it is the main support of the stand of the Solicitor General on the issue of jurisdiction in the cases at bar. It is also referred to as the doctrine of judicial self-restraint or abstention. But as the nomenclatures themselves imply, activism and selfrestraint are both subjective attitudes, not inherent imperatives. The choice of alternatives in

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any particular eventuality is naturally dictated by what in the Court’s considered opinion is what the Constitution envisions should be done in order to accomplish the objectives of government and of nationhood. And perhaps it may be added here to avoid confusion of concepts, that We are not losing sight of the traditional approach based on the doctrine of separation of powers. In truth, We perceive that even under such mode of rationalization, the existence of power is secondary, respect for the acts of a co-ordinate, co-equal and co-independent Department being the general rule, particularly when the issue is not encroachment of delimited areas of functions but alleged abuse of a Department’s own basic prerogatives. (59 SCRA, pp. 379-383.) Applying the foregoing considerations to the cases at bar, I hold that the Court has jurisdiction to pass on the merits of the various claims of petitioners. At the same time, however, I maintain that the basic nature of the issues herein raised requires that the Court should exercise its constitutionally endowed prerogative to refrain from exerting its judicial authority in the premises.chanrobles virtual lawlibrary Stripped of incidental aspects, the constitutional problem that confronts Us stems from the absence of any clear and definite express provision in the Charter applicable to the factual milieu herein involved. The primary issue is, to whom, under the circumstances, does the authority to propose amendments to the Constitution property belong? To say, in the light of Section 15 of Article XVII of the Charter, that faculty lies in the interim National Assembly is to beg the main question. Indeed, there could be no occasion for doubt or debate, if it could only be assumed that the interim National Assembly envisaged in Sections 1 and 2 of the same Article XVII may be convoked. But precisely, the fundamental issue We are called upon to decide is whether or not it is still constitutionally possible to convene that body. And relative to that question, the inquiry centers on whether or not the political developments since the ratification of the Constitution indicate that the people have in effect enjoined the convening of the interim National Assembly altogether. On this score, it is my assessment that the results of the referenda of January 10-15, 1973, July 27-28, 1973 and February 27, 1975 clearly show that the great majority of our people, for reasons plainly obvious to anyone who would consider the composition of that Assembly, what with its more than 400 members automatically voted into it by the Constitutional Convention together with its own members, are against its being convoked at all. Whether or not such a manifest determination of the sentiments of the people should be given effect without a formal amendment of the Constitution is something that constitutional scholars may endlessly debate on. What cannot be disputed, however, is that the government and the nation have acquiesced to it and have actually operated on the basis thereof. Proclamation 1103 which, on the predicate that the overwhelming majority of the people desire that the interim Assembly be not convened, has ordained the suspension of its convocation, has not been assailed either judicially or otherwise since the date of its promulgation on January 17, 1973. In these premises, it is consequently the task of the Court to determine what, under these circumstances, is the constitutional relevance of the interim National Assembly to any proposal to amend the Constitution at this time. It is my considered opinion that in resolving that question, the Court must have to grapple with the problem of what to do with the will of the people, which although manifested in a manner not explicitly provided for in the Constitution, was nevertheless official, and reliable, and what is more important clear and unmistakable, despite the known existence of well-meaning, if insufficiently substantial dissent. Such being the situation, I hold that it is not proper for the Court to interpose its judicial authority against the evident decision of the people and should leave it to the political department of the

government to devise the ways and means of resolving the resulting problem of how to amend the Constitution, so long as in choosing the same, the ultimate constituent power is left to be exercised by the people themselves in a well-ordered plebiscite as required by the fundamental law.

Constitution. Most importantly, he can and does legislate alone. But to be more accurate, I should say that he legislates alone in spite of the existence of the interim National Assembly unequivocally ordained by the Constitution, for the simple reason that he has suspended the convening of said assembly by issuing Proclamation No. 1103 purportedly ‘in deference to the sovereign will of the Filipino people’ expressed in the January 10-15, 1973 referendum.

-2Assuming We have to inquire into the merits of the issue relative to the constitutional authority behind the projected amendment of the Charter in the manner provided in Presidential Decree 1033, I hold that in the peculiar situation in which the government is today, it is not incompatible with the Constitution for the President to propose the subject amendments for ratification by the people in a formal plebiscite under the supervision of the Commission on Elections. On the contrary, in the absence of any express prohibition in the letter of the Charter, the Presidential Decree in question is entirely consistent with the spirit and the principles underlying the Constitution. The correctness of this conclusion should become even more patent, when one considers the political developments that the people have brought about since the ratification of the Constitution on January 17, 1973. I consider it apropos at this juncture to repeat my own words in a speech I delivered on the occasion of the celebration of Law Day on September 18, 1975 before the members of the Philippine Constitution Association and their guests:jgc:chanrobles.com.ph "To fully comprehend the constitutional situation in the Philippines today, one has to bear in mind that, as I have mentioned earlier, the martial law proclaimed under the 1935 Constitution overtook the drafting of the new charter by the Constitutional Convention of 1971. It was inevitable, therefore, that the delegates had to take into account not only the developments under it but, most of all, its declared objectives and what the President, as its administrator, was doing to achieve them. In this connection, it is worthy of mention that an attempt to adjourn the convention was roundly voted down to signify the determination of the delegates to finish earliest their work, thereby to accomplish the mission entrusted to them by the people to introduce meaningful reforms in our government and society. Indeed, the constituent labors gained rapid tempo, but in the process, the delegates were to realize that the reforms they were formulating could be best implemented if the martial law powers of the President were to be allowed to subsist even after the ratification of the Constitution they were approving. This denouement was unusual. Ordinarily, a constitution born out of a crisis is supposed to provide all the needed cures and can, therefore, be immediately in full force and effect after ratification. Not so, with our 1973 Constitution, Yes, according to the Supreme Court, ‘there is no more judicial obstacle to the new Constitution being considered in force and effect’, but in truth, it is not yet so in full. Let me explain. To begin with, in analyzing the new Constitution, we must be careful to distinguish between the body or main part thereof and its transitory provisions. It is imperative to do so because the transitory provisions of our Constitution are extraordinary in the sense that obviously they have been designed to provide not only for the transition of our government from the presidential form under the past charter to a parliamentary one as envisaged in the new fundamental law, but also to institutionalize, according to the President, the reforms introduced thru the exercise of his martial law powers. Stated differently, the transitory provisions, as it has turned out, has in effect established a transition government, not, I am sure, perceived by many. It is a government that is neither presidential nor parliamentary. It is headed, of course, by President Marcos who not only retains all his powers under the 1935 Constitution but enjoys as well those of the President and the Prime Minister under the new

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Thus, we have here the unique case of a qualified ratification. The whole Constitution was submitted for approval or disapproval of the people, and after the votes were counted and the affirmative majority known, we were told that the resulting ratification was subject to the condition that the interim National Assembly evidently established in the Constitution as the distinctive and indispensable element of a parliamentary form of government should nevertheless be not convened and that no elections should be held for about seven years, with the consequence that we have now a parliamentary government without a parliament and a republic without any regular election of its officials. And as you can see, this phenomenon came into being not by virtue of the Constitution but of the direct mandate of the sovereign people expressed in a referendum. In other words, in an unprecedented extra-constitutional way, we have established, wittingly or unwittingly, a direct democracy through the Citizens Assemblies created by Presidential Decree No. 86, which later on have been transformed into barangays, a system of government proclaimed by the President as ‘a real achievement in participatory democracy.’ What I am trying to say, my friends, is that as I perceive it, what is now known as constitutional authoritarianism means, in the final analysis, that the fundamental source of authority of our existing government may not be necessarily found within the four corners of the Constitution but rather in the results of periodic referendums conducted by the Commission on Elections in a manner well known to all of us. This, as I see it, is perhaps what the President means by saying that under the new Constitution he has extra-ordinary powers independently of martial law — powers sanctioned directly by the people which may not even be read in the language of the Constitution. In brief, when we talk of the rule of law nowadays, our frame of reference should not necessarily be the Constitution but the outcome of referendums called from time to time by the President. The sooner we imbibe this vital concept the more intelligent will our perspective be in giving our support and loyalty to the existing government. What is more, the clearer will it be that except for the fact that all the powers of government are being exercised by the President, we do not in reality have a dictatorship but an experimental type of direct democracy."cralaw virtua1aw library In the foregoing disquisition, I purposely made no mention of the referendum of February 27, 1975. It is important to note, relative to the main issue now before Us, that it was originally planned to ask the people in that referendum whether or not they would like the interim National Assembly to convene, but the Comelec to whom the task of preparing the questions was assigned was prevailed upon not to include any such question anymore, precisely because it was the prevalent view even among the delegates to the Convention as well as the members of the old Congress concerned that matter had already been finally resolved in the previous referenda of January and July 1973 in the sense that the Assembly should not be convened comparable to res adjudicata. It is my position that as a result of the political developments since January 17, 1973 the transitory provisions envisioning the convening of the interim National Assembly have been rendered legally inoperative. There is no doubt in my mind that for the President to convoke the interim National Assembly as such would be to disregard the will of the people — something no head of a democratic republican state like ours should do. And I find it simply logical that the reasons that motivated the people to enjoin the convening of the Assembly — the unusually large and unmanageable number of its members and the controversial morality of

its automatic composition consisting of all the incumbent elective national executive and legislative officials under the Old Constitution who would agree to join it and the delegates themselves to the Convention who had voted in favor of the Transitory Provisions — apply not only to the Assembly as an ordinary legislature but perhaps more to its being a constituent body. And to be more realistic, it is but natural to conclude that since the people are against politicians in the old order having anything to do with the formulation of national policies, there must be more reasons for them to frown on said politicians taking part in amendment of the fundamental law, specially because the particular amendment herein involved calls for the abolition of the interim National Assembly to which they belong and its substitution by the Batasang Pambansa. It is argued that in law, the qualified or conditional ratification of a constitution is not contemplated. I disagree. It is inconsistent with the plenary power of the people to give or withhold their assent to a proposed Constitution to maintain that they can do so only wholly. I cannot imagine any sound principle that can be invoked to support the theory that the proposing authority can limit the power of ratification of the people. As long as there are reliable means by which only partial approval can be manifested, no cogent reason exists why the sovereign people may not do so. True it is that no proposed Constitution can be perfect and it may therefore be taken with the good and the bad in it, but when there are feasible ways by which it can be determined which portions of it, the people disapprove, it would be stretching technicality beyond its purported office to render the final authority — the people — impotent to act according to what they deem best suitable to their interests. In any event, I feel it would be of no consequence to debate at length regarding the legal feasibility of qualified ratification. Proclamation 1103 categorically declares that:jgc:chanrobles.com.ph "WHEREAS, fourteen million nine hundred seventy six thousand five hundred sixty-one (14,976.561) members of all the Barangays voted for the adoption of the proposed Constitution, as against seven hundred forty-three thousand eight hundred sixty-nine (743,869) who voted for its rejection; but a majority of those who approved the new Constitution conditioned their votes on the demand that the interim National Assembly provided in its Transitory Provisions should not be convened."cralaw virtua1aw library and in consequence, the President has acted accordingly by not convening the Assembly. The above factual premises of Proclamation 1103 is not disputed by petitioners. Actually, it is binding on the Court, the same being a political act of a coordinate department of the government not properly assailed as arbitrary or whimsical. At this point, it must be emphasized in relation to the contention that a referendum is only consultative, that Proclamation 1103, taken together with Proclamation 1102 which proclaimed the ratification of the Constitution, must be accorded the same legal significance as the latter proclamation, as indeed it is part and parcel of the act of ratification of the Constitution, hence not only persuasive but mandatory. In the face of the incontrovertible fact that the sovereign people have voted against the convening of the interim National Assembly, and faced with the problem of amending the Constitution in order precisely to implement the people’s rejection of that Assembly, the problem of constitutional dimension that confronts Us, is how can any such amendment be proposed for ratification by the people? To start with, it may not be supposed that just because the office or body designed by the constitutional convention to perform the constituent function of formulating proposed amendments has been rendered inoperative by the people themselves, the people have thereby

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foreclosed the possibility of amending the Constitution no matter how desirable or necessary this might be. In this connection, I submit that by the very nature of the office of the Presidency in the prevailing scheme of government we have — it being the only political department of the government in existence — it is consistent with basic principles of constitutionalism to acknowledge the President’s authority to perform the constituent function, there being no other entity or body lodged with the prerogative to exercise such function. There is another consideration that leads to the same conclusion. It is conceded by petitioners that with the non-convening of the interim Assembly, the legislative authority has perforce fallen into the hands of the President, if only to avoid a complete paralysis of law-making and resulting anarchy and chaos. It is likewise conceded that the provisions of Section 3 (2) of Article XVII invest the President with legislative power for the duration of the transition period. From these premises, it is safe to conclude that in effect the President has been substituted by the people themselves in place of the interim Assembly. Such being the case, the President should be deemed as having been granted also the cognate prerogative of proposing amendments to the Constitution. In other words, the force of necessity and the cognate nature of the act justify that the department exercising the legislative faculty be the one to likewise perform the constituent function that was attached to the body rendered impotent by the people’s mandate. Incidentally, I reject most vehemently the proposition that the President may propose amendments to the Constitution in the exercise of his martial law powers. Under any standards, such a suggestion cannot be reconciled with the ideal that a Constitution is the free act of the people. It was suggested during the oral argument that instead of extending his legislative powers by proposing the amendment to create a new legislative body, the President should issue a decree providing for the necessary apportionment of the seats in the Regular National Assembly and call for an election of the members thereof and thus effect the immediate normalization of the parliamentary government envisaged in the Constitution. While indeed procedurally feasible, the suggestion overlooks the imperative need recognized by the constitutional convention as may be inferred from the obvious purpose of the transitory provisions, for a period of preparation and acquaintance by all concerned with the unfamiliar distinctive features and practices of the parliamentary system. Accustomed as we are to the presidential system, the Convention has seen to it that there should be an interim parliament under the present leadership, which will take the corresponding measures to effectuate the efficient and smooth transition from the present system to the new one. I do not believe this pattern set by the convention should be abandoned. The alternative of calling a constitutional convention has also been mentioned. But, in the first place, when it is considered that whereas, under Section 1 (1) and (2) of Article XVI, the regular National Assembly may call a Constitutional Convention or submit such a call for approval of the people, Section 15 of Article XVII, in reference to interim National Assembly, does not grant said body the prerogative of calling a convention, one can readily appreciate that the spirit of the Constitution does not countenance or favor the calling of a convention during the transition, if only because such a procedure would be time consuming, cumbersome and expensive. And when it is further noted that the requirement as to the number of votes needed for a proposal is only a majority, whereas it is three-fourths in respect to regular Assembly, and, relating this point to the provision of Section 2 of Article XVI to the effect that all ratification plebiscites must be held "not later than three months after the approval" of the proposed amendment by the proposing authority, the adoption of the most simple manner of amending the charter, as that provided for in the assailed Presidential Decree 1033

suggests itself as the one most in accord with the intent of the fundamental law. There is nothing strange in adopting steps not directly based on the letter of the Constitution for the purpose of amending or changing the same. To cite but one important precedent, as explained by Mr. Justice Makasiar in his concurring opinion in Javellana 2 , the present Constitution of the United States was neither proposed nor ratified in the manner ordained by the original charter of that country, the Articles of Confederation and Perpetual Union. In brief, if the convening and operation of the interim National Assembly has been effectuated through a referendum-plebiscite in January, 1973, and ratified expressly and impliedly in two subsequent referenda, those of July, 1973 and February, 1975, why may not a duly held plebiscite suffice for the purpose of creating a substitute for that Assembly? It should be borne in mind that after all, as indicated in the whereas of the impugned Presidential Decree, actually, the proposed amendments were initiated by the barangays and sanggunian members. In other words, in submitting the amendments for ratification, the President is merely acting as the conduit thru whom a substantial portion of the people, represented in the Katipunan ng Mga Sanggunian, Barangay at Kabataang Barangay, seek the approval of the people as a whole of the amendments in question. If all these mean that the sovereign people have arrogated unto themselves the functions relative to the amendment to the Constitution, I would regard myself as totally devoid of legal standing to question it, having in mind that the most fundamental tenet on which our whole political structure rests is that "sovereignty resides in the people and all government authority emanates from them."cralaw virtua1aw library In the light of the foregoing considerations, I hold that Presidential Decree No. 1033 does not infringe the Constitution, if only because the specific provision it is supposed to infringe does not exist in legal contemplation since it was coevally made inoperative when the people ratified the Constitution on January 17, 1973. I am fully convinced that there is nothing in the procedure of amendment contained in said decree that is inconsistent with the fundamental principles of constitutionalism. On the contrary, I find that the Decree, in issue conforms admirably with the underlying tenet of our government — the sovereignty and plenary power of the people. On the issue of whether or not October 16, 1976 is too proximate to enable the people to sufficiently comprehend the issues and intelligently vote in the referendum and plebiscite set by Presidential Decree 1033, all I can say is that while perhaps my other colleagues are right in holding that the period given to the people is adequate, I would leave it to the President to consider whether or not it would be wiser to extend the same. Just to avoid adverse comments later I wish the President orders a postponement. But whether such postponement is ordered or not, date of the referendum-plebiscite anywhere from October 16, 1976 to any other later date, would be of no vital import. In conclusion, I vote to dismiss all the three petitions before Us. MAKASIAR, J., concurring and dissenting:chanrob1es virtual 1aw library Since the validity or effectivity of the proposed amendments is to be decided ultimately by the people in their sovereign capacity, the question is political as the term is defined in Tañada, Et. Al. v. Cuenco, Et. Al. (103 Phil. 1051), which is a bar to any judicial inquiry, for the reasons stated in Our opinion in Javellana, Et. Al. v. Executive Secretary, Et. Al. (L-36142); Tan, Et. Al. v. Executive Secretary, Et. Al. (L-36164); Roxas, Et. Al. v. Executive Secretary, Et. Al. (L36165); Monteclaro, etc., Et. Al. v. Executive Secretary, Et. Al. (L-36236); and Dilag, Et. Al. v.

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Executive Secretary, Et. Al. (L-36283, March 31, 1973, 50 SCRA 30, 204-283). The procedure for amendment is not important. Ratification by the people is all that is indispensable to validate an amendment. Once ratified, the method of making the proposal and the period for submission become irrelevant. The contrary view negates the very essence of a republican democracy — that the people are sovereign — and renders meaningless the emphatic declaration in the very first provision of Article II of the 1973 Constitution that the Philippines is a republican state, sovereignty resides in the people and all government authority emanates from them. It is axiomatic that sovereignty is illimitable. The representatives cannot dictate to the sovereign people. They may guide them; but they cannot supplant their judgment. Such an opposite view likewise distrusts the wisdom of the people as much as it despises their intelligence. It evinces a presumptuous pretension to intellectual superiority. There are thousands upon thousands among the citizenry, who are not in the public service, who are more learned and better skilled than many of their elected representatives. Moreover, WE already ruled in Aquino, Et. Al. v. Comelec, Et. Al. (L-40004, Jan. 31, 1975, 62 SCRA 275, 298-302) that the President as enforcer or administrator of martial rule during the period of martial law can legislate; and that he has the discretion as to when the convene the interim National Assembly depending on prevailing conditions of peace and order. In view of the fact that the interim National Assembly has not been convoked in obedience to the desire of the people clearly expressed in the 1973 referenda, the President therefore remains the lone law-making authority while martial law subsists. Consequently, he can also exercise the power of the interim National Assembly to propose amendments to the New Constitution (Sec. 15, Art. XVII). If, as conceded by petitioner Vicente Guzman (L-44684), former delegate to the 1971 Constitutional Convention which drafted the 1973 Constitution, the President, during the period of martial law, can call a constitutional convention for the purpose, admittedly a constituent power, it stands to reason that the President can likewise legally propose amendments to the fundamental law.chanrobles law library : red ANTONIO, J., concurring:chanrob1es virtual 1aw library I.

At the threshold, it is necessary to clarify what is a "political question." It must be noted that this device has been utilized by the judiciary "to avoid determining questions it is ill equipped to determine or that could be settled in any event only with the effective support of the political branches." 1 According to Weston, judges, whether "personal representatives of a truly sovereign king, or taking their seats as the creatures of a largely popular sovereignty speaking through a written constitution, derive their power by a delegation, which clearly or obscurely as the case may be, delineates and delimits their delegated jurisdiction. . . . Judicial questions . . . are those which the sovereign has set to be decided in the courts. Political question, similarly, are those which the sovereign has entrusted to the so-called political departments of government or has reserved to be settled by its own extra-governmental action." 2 Reflecting a similar concept, this Court has defined a "political question" as a "matter which is to be exercised by the people in their primary political capacity or that has been specifically delegated to some other department or particular officer of the government, with discretionary power to act." 3 In other words, it refers to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of

government. 4 In determining whether an issue falls within the political question category, the absence of a satisfactory criterion for a judicial determination or the appropriateness of attributing finality to the action of the political departments of government is a dominant consideration. This was explained by Justice Brennan in Baker v. Carr, 5 thus:jgc:chanrobles.com.ph "Prominent on the surface of any case held to involve political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. . . ."cralaw virtua1aw library To decide whether a matter has in a measure been committed by the Constitution to another branch of government or retained by the people to be decided by them in their sovereign capacity, or whether that branch exceeds whatever authority has been committed, is indeed a delicate exercise in constitutional interpretation. In Coleman v. Miller, 6 the United States Supreme Court held that the efficacy of the ratification by state legislatures of a constitutional amendment is a political question. On the question of whether the State Legislature could constitutionally ratify an amendment, after the same had been previously rejected by it, it was held that the ultimate authority over the question was in Congress in the exercise of its control over the promulgation of the adoption of the amendment. And in connection with the second question of whether the amendment has lost its vitality through the lapse of time, the Court held that the question was likewise political, involving "as it does . . . an appraisal of a great variety of relevant conditions, political, social and economic, which can hardly be said to be within the appropriate range of evidence receivable in a court of justice and as to which it would be an extravagant extension of juridical authority to assert judicial notice as the basis of deciding a controversy with respect to the validity of an amendment actually ratified. On the other hand, these conditions are appropriate for the consideration of the political departments of the Government. The questions they involve are essentially political and not justiciable."cralaw virtua1aw library ‘In their concurring opinions, Justices Black, Roberts, Frankfurter and Douglas stressed that:jgc:chanrobles.com.ph "The Constitution grants Congress exclusive power to control submission of constitutional amendments. Final determination by Congress that ratification by three-fourths of the States has taken place ‘is conclusive upon the courts.’ In the exercise of that power, Congress, of course, is governed by the Constitution. However, whether submission, intervening procedure for Congressional determination of ratification conforms to the commands of the Constitution, call for decisions by a ‘political department’ of questions of a type which this Court has frequently designated ‘political.’ And decision of a ‘political question’ by the political department’ to which the Constitution has committed it ‘conclusively binds the judges, as well as all other officers, citizens and subjects of . . . government. Proclamation under authority of Congress that an amendment has been ratified will carry with it a solemn assurance by the Congress that ratification has taken place as the Constitution commands. Upon this assurance a

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proclaimed amendment must be accepted as a part of the Constitution, leaving to the judiciary its traditional authority of interpretation. To the extent that the Court’s opinion in the present case even impliedly assumes a power to make judicial interpretation of the exclusive constitutional authority of Congress over submission and ratification of amendments, we are unable to agree."cralaw virtua1aw library Relying on this doctrine enunciated in Coleman v. Miller, supra, this Court, in Mabanag v. Lopez Vito, 7 speaking through Mr. Justice Pedro Tuason, ruled that the process of constitutional amendment, involving proposal and ratification, is a political question. In the Mabanag case, the petitioners sought to prevent the enforcement of a resolution of Congress proposing the "Parity Amendment" to the Philippine Constitution on the ground that it had not been approved by the three-fourths vote of all the members of each house as required by Article XV of the 1935 Constitution. It was claimed that three (3) Senators and eight (8) members of the House of Representatives had been suspended and that their membership was not considered in the determination of the three-fourths vote. In dismissing the petition on the ground that the question of the validity of the proposal was political, the Court stated:jgc:chanrobles.com.ph "If ratification of an amendment is a political question, a proposal which leads to ratification has to be a political question. The two steps complement each other in a scheme intended to achieve a single objective. It is to be noted that amendatory process as provided in Section 1 of Article XV of the Philippine Constitution ‘consists of (only) two distinct parts: proposal and ratification.’ There is no logic in attaching political character to one and withholding that character from the other. Proposal to amend the Constitution is highly political function performed by the Congress in its sovereign legislative capacity and committed to its charge by the Constitution itself. . . ." (At pages 4-5, Emphasis supplied.) It is true that in Gonzales v. Comelec, 8 this Court held that "the issue whether or not a Resolution of Congress, acting as a constituent assembly — violates the Constitution is essentially justiciable, not political, and hence, subject to judicial review." What was involved in Gonzales, however, was not a proposed amendment to the Constitution but an act of Congress, 9 submitting proposed amendments to the Constitution. Similarly, in Tolentino v. Commission on Elections. 10 what was involved was not the validity of the proposal to lower the voting age but rather that of the resolution of the Constitutional Convention submitting the proposal for ratification. The question was whether piecemeal amendments to the Constitution could be submitted to the people for approval or rejection. II

Here, the point has been stressed that the President is acting as agent for and in behalf of the people in proposing the amendment. There can be no question that in the referendums of January, 1973 and in the subsequent referendums the people had clearly and categorically rejected the calling of the interim National Assembly. As stated in the main opinion, the Lupang Tagapagpaganap of the Katipunan ng mga Sanggunian, the Pambansang Katipunan ng mga Barangay, representing 42,000 barangays, the Kabataang Barangay organizations and the various sectoral groups had proposed the replacement of the interim National Assembly. These barangays and the Sanggunian assemblies are effective instrumentalities through which the desires of the people are articulated and expressed. The Batasang Bayan (Legislative Council), composed of nineteen (19) cabinet members and nine (9) officials with cabinet rank, and ninetyone (91) members of the Lupang Tagapagpaganap (Executive Committee) of the Katipunan ng mga Sangguniang Bayan voted in their special session to submit directly to the people in a

plebiscite on October 16, 1976 the afore-mentioned constitutional amendments. Through the Pambansang Katipunan ng mga Barangay and the Pampurok na Katipunan ng mga Sangguniang Bayan, the people have expressed their desire not only to abolish the interim National Assembly, but to replace it with a more representative body acceptable to them in order to effect the desirable constitutional changes necessary to hasten the political evolution of the government towards the parliamentary system, while at the same time ensuring that the gains of the New Society, which are vital to the welfare of the people, shall be safeguarded. The proposed constitutional amendments, therefore, represent a consensus of the people. It would be futile to insist that the interim National Assembly should have been convened to propose those amendments pursuant to Section 15 of Article XVII of the Constitution. This Court, in the case of Aquino v. Commission, on Elections, 11 took judicial notice of the fact that in the referendum of January, 1973, a majority of those who approved the new Constitution conditioned their votes on the demand that the interim National Assembly provided in the Transitory Provisions should not be convened, and the President "in deference to the sovereign will of the Filipino people" declared that the convening of said body shall be suspended. 12 As this Court observed in the Aquino case:jgc:chanrobles.com.ph "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 facto members 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 endless debates without relieving the suffering of the general mass of citizenry" (p. 302.) The action of the President in suspending the convening of the interim National Assembly has met the overwhelming approval of the people in subsequent referenda. Since it was the action by the people that gave binding force and effect to the new Constitution, then it must be accepted as a necessary consequence that their objection against the immediate convening of the interim National Assembly must be respected as a positive mandate of the sovereign. In the Philippines, which is a unitary state, sovereignty "resides in the people and all government authority emanates from them." 13 The term "people" as sovereign is comprehensive in its context. The people, as sovereign creator of all political reality, is not merely the enfranchised citizens but the political unity of the people. 14 It connotes, therefore, a people which exists not only in the urgent present but in the continuum of history. The assumption that the opinion of The People as voters can be treated as the expression of the interests of The People as a historic community was, to the distinguished American journalist and public philosopher, Walter Lippmann, unwarranted. "‘Because of the discrepancy between The People as Voters and The People as the corporate nation, the voters have no title to consider themselves the proprietors of the commonwealth and to claim that their interests are identical to the public interest. A prevailing plurality of the voters are not The People. The claim that they are is a bogus title invoked to justify the

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usurpation of the executive power by representative assemblies and the intimidation of public men by demagogic politicians. In fact demagoguery can be described as the sleight of hand by which a faction of The People as voters are invested with the authority of The People. That is why so many crimes are committed in the People’s name.’" 15 In Gonzales v. Comelec, supra, the Court clearly emphasized that the power to propose amendments or to amend the Constitution is part of the inherent power of the people as the repository of sovereignty in a republican state. While Congress may propose amendments to the Constitution, it acts pursuant to authority granted to it by the people through the Constitution. Both the power to propose and the authority to approve, therefore, inhere in the people as the bearer of the Constitution making power. Absent an interim National Assembly upon whom the people, through the Constitution, have delegated the authority to exercise constituent powers, it follows from necessity that either the people should exercise that power themselves or through any other instrumentality they may choose. For Law, like Nature, abhors a vacuum (natura vacuum abhorret). The question then is whether the President has authority to act for the people in submitting such proposals for ratification at the plebiscite of October 16. The political character of the question is, therefore, particularly manifest, considering that ultimately it is the people who will decide whether the President has such authority. It certainly involves a matter which is to be exercised by the people in their sovereign capacity, hence, it is essentially political, not judicial. While it is true that the constituent power is not to be confused with legislative power in general because the prerogative to propose amendments is not embraced within the context of ordinary lawmaking, it must be noted that the proposals to be submitted for ratification in the forthcoming referendum are, in the final analysis, actually not of the President but directly of the people themselves, speaking through their authorized instrumentalities. As the Chief Justice aptly stated in his concurring opinion in this case:jgc:chanrobles.com.ph ". . . The President merely formalized the said proposals in Presidential Decree No. 1033. It being conceded in all quarters that sovereignty resides in the people and it having been demonstrated that their constituent power to amend the Constitution has not been delegated by them to any instrumentality of the Government during the present stage of the transition period of our political development, the conclusion is ineluctable that their exertion of that residuary power cannot be vulnerable to any constitutional challenge as being ultra vires. Accordingly, without venturing to rule on whether or not the President is vested with constituent power — as it does not appear necessary to do so in the premises — the proposals here challenged, being acts of the sovereign people no less, cannot be said to be afflicted with unconstitutionality. A fortiori, the concomitant authority to call a plebiscite and to appropriate funds therefor is even less vulnerable not only because the President, in exercising said authority, has acted as a mere alter ego of the people who made the proposals, but likewise because the said authority is legislative in nature rather than constituent. This is but a recognition that the People of the Philippines have the inherent, sole and exclusive right of regulating their own government, and of altering or abolishing their Constitution whenever it may be necessary to their safety or happiness. There appears to be no justification, under the existing circumstances, for a Court to create by implication a limitation on the sovereign power of the people. As has been clearly explained in a previous case: 16

law." (Cooley’s Constitutional Limitations, 7th Ed. p. 56, Emphasis Supplied) "‘There is nothing in the nature of the submission which should cause the free exercise of it to be obstructed, or that could render it dangerous to the stability of the government; because the measure derives all its vital force from the action of the people at the ballot box, and there can never be danger in submitting in an established form, to a free people, the proposition whether they will change their fundamental law. The means provided for the exercise of their sovereign right of changing their constitution should receive such a construction as not to trammel the exercise of the right. Difficulties and embarrassments in its exercise are in derogation of the right of free government, which is inherent in the people; and the best security against tumult and revolution is the free and unobstructed privilege to the people of the State to change their constitution in the mode prescribed by the instrument."cralaw virtua1aw library III

The paramount consideration that impelled Us to arrive at the foregoing opinion is the necessity of ensuring popular control over the constituent power. "If the people are to control the constituent power — the power to make and change the fundamental law of the State," observed Wheeler, 17 "the process of Constitutional change must not be based too heavily upon existing agencies of government." Indeed, the basic premise of republicanism is that the ordinary citizen, the common man, can be trusted to determine his political destiny. Therefore, it is time that the people should be accorded the fullest opportunity to decide the laws that shall provide for their governance. For in the ultimate analysis, the success of the national endeavor shall depend on the vision, discipline and firmness of the moral will of every Filipino. IN VIEW OF THE FOREGOING CONSIDERATIONS, We vote to dismiss the petitions. Aquino, J., concur. MUÑOZ PALMA, J., dissenting:chanrob1es virtual 1aw library I concur fully with the remarkably frank (so characteristic of him) dissenting opinion of my distinguished colleague, Justice Claudio Teehankee. If I am writing this brief statement it is only to unburden myself of some thoughts which trouble my mind and leave my conscience with no rest nor peace. Generally, one who dissents from a majority view of the Court takes a lonely and at times precarious road, the burden being lightened only by the thought that in this grave task of administering justice, when matters of conscience are at issue, one must be prepared to espouse and embrace a rightful cause however unpopular it may be. 1. That sovereignty resides in the people and all government authority emanates from them is a fundamental, basic principle of government which cannot be disputed, but when the people have opted to govern themselves under the mantle of a written constitution, each and every citizen, from the highest to the lowliest has the sacred duty to respect and obey the Charter they have so ordained. "By the Constitution which they establish, they not only tie up the hands of their official agencies, but their own hands as well; and neither the officers of the state, nor the whole people as an aggregate body, are at liberty to take action in opposition to this fundamental

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The afore-quoted passage from the eminent jurist and author Judge Cooley, although based on declarations of law of more than a century ago, lays down a principle which to my mind is one of the enduring cornerstones of the Rule of Law. It is a principle with which I have been familiar as a student of law under the tutelage of revered Professors, Dr. Vicente G. Sinco and Justice Jose P. Laurel, and which I pray will prevail at all times to ensure the existence of a free, stable, and civilized society. The Filipino people, wanting to ensure to themselves a democratic republican form of government, have promulgated a Constitution whereby the power to govern themselves has been entrusted to and distributed among three branches of government; they have also mandated in clear and unmistakable terms the method by which provisions in their fundamental Charter may be amended or revised. Having done so, the people are bound by these constitutional limitations. For while there is no surrender or abdication of the people’s ultimate authority to amend, revise, or adopt a new Constitution, sound reason demands that they keep themselves within the procedural bounds of the existing fundamental law. The right of the people to amend or change their Constitution if and when the need arises is not to be denied, but we assert that absent a revolutionary state or condition in the country, the change must be accomplished through the ordinary, regular and legitimate processes provided for in the Constitution. 1 I cannot subscribe therefore to the view taken by the Solicitor General that the people, being sovereign, have the authority to amend the Constitution even in a manner different from and contrary to that expressly provided for in that instrument, and that the amendatory process is intended more as a limitation of a power rather than a grant of power to a particular agency and it should not be construed as limiting the ultimate sovereign will of the people to decide on amendments to the Constitution. 2 Such a view will seriously undermine the very existence of a constitutional government and will permit anarchy and/or mob rule to set afoot and prevail. Was it the Greek philosopher Plato who warned that the rule of the mob is a prelude to the rule of the tyrant? I would use the following excerpt from Bernas, S.J., "The 1973 Philippine Constitution, Notes and Cases" as relevant to my point:jgc:chanrobles.com.ph ". . . the amendatory provisions are called a ‘constitution of sovereignty’ because they define the constitutional meaning of ‘sovereignty of the people.’ Popular sovereignty, as embodied in the Philippine Constitution, is not extreme popular sovereignty. As one American writer put it:chanrob1es virtual 1aw library ‘A constitution like the American one serves as a basic check upon the popular will at any given time. It is the distinctive function of such written document to classify certain things as legal fundamentals; these fundamentals may not be changed except by the slow and cumbersome process of amendment. The people themselves have decided, in constitutional convention assembled, to limit themselves and future generations in the exercise of the sovereign power which they would otherwise possess. And it is precisely such limitation that enables those subject to governmental authority to appeal from the people drunk to the people sober, in time of excitement and hysteria. The Constitution, in the neat phrase of the Iowa court, is the protector of the people against injury by the people.’" * Truly, what need is there for providing in the Constitution a process by which the fundamental

law may be amended if, after all, the people by themselves can set the same at naught even in times of peace when civil authority reigns supreme? To go along with the respondents’ theory in this regard is to render written Constitutions useless or mere "ropes of sand", allowing for a government of men instead of one of laws. For it cannot be discounted that a situation may arise where the people are heralded to action at a point of a gun or by the fiery eloquence of a demagogue, and where passion overpowers reason, and mass action overthrows legal processes. History has recorded such instances, and I can think of no better example than that of Jesus Christ of Judea who was followed and loved by the people while curing the sick, making the lame walk and the blind see, but shortly was condemned by the same people turned into fanatic rabble crying out "Crucify Him, Crucify Him" upon being incited into action by chief priests and elders of Jerusalem. Yes, to quote once more from Judge Cooley:jgc:chanrobles.com.ph "A good Constitution should be beyond the reason of temporary excitement and popular caprice or passion. It is needed for stability and steadiness; it must yield to the thought of the people; not to the whim of the people, or the thought evolved in excitement or hot blood, but the sober second thought, which alone, if the government is to be safe, can be allowed efficiency. . . . Changes in government are to be feared unless the benefit is certain." (quoted in Ellingham v. Dye, 99 N.E. 1, 15) 3 2. Presidential Decrees Nos. 991 and 1033 which call for a national referendum-plebiscite on October 16, 1976 for the purpose, among other things, of amending certain provisions of the 1973 Constitution are null and void; as they contravene the express provisions on the amending process of the 1973 Constitution laid down in Article XVI, Section 1(1) and Article XVII, Section 15, more particularly the latter which applies during the present transition period. The Opinion of Justice Teehankee discusses in detail this particular matter. I would just wish to stress the point that although at present there is no interim National Assembly which may propose amendments to the Constitution, the existence of a so-called "vacuum" or "hiatus" does not justify a transgression of the constitutional provisions on the manner of amending the fundamental law. We cannot cure one infirmity — the existence of a "vacuum" caused by the non-convening of the interim National Assembly — with another infirmity, that is, doing violence to the Charter. "‘All great mutations shake and disorder a state. Good does not necessarily succeed evil; another evil may succeed and a worse.’" (Am. Law Rev. 1889, p. 311., quoted in Ellingham v. Dye, supra, p. 15) Respondents contend that the calling of the referendum-plebiscite for the purpose indicated is a step necessary to restore the state of normalcy in the country. To my mind, the only possible measure that will lead our country and people to a condition of normalcy is the lifting or ending of the state of martial law. If I am constrained to make this statement it is because so much stress was given during the hearings of these cases on this particular point, leaving one with the impression that for petitioners to contest the holding of the October 16 referendumplebiscite is for them to assume a position of blocking or installing the lifting of martial law, which I believe is unfair to the petitioners. Frankly, I cannot see the connection between the two. My esteemed colleagues should pardon me therefore if I had ventured to state that the

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simple solution to the present dilemma is the lifting of martial law and the implementation of the constitutional provisions which will usher in the parliamentary form of government ordained in the Constitutional, which, as proclaimed in Proclamation 1102, the people themselves have ratified. If the people have indeed ratified the 1973 Constitution, then they are bound by their act and cannot escape from the pretended unfavorable consequences thereof, the only remedy being to set in motion the constitutional machinery by which the supposed desired amendments may properly be adopted and submitted to the electorate for ratification. Constitutional processes are to be observed strictly, if we have to maintain and preserve the system of government decreed under the fundamental Charter. As said by Justice Enrique Fernando in Mutuc v. Commission on Elections:jgc:chanrobles.com.ph ". . . The concept of the Constitution as the fundamental law, setting forth the criterion for the validity of any public act whether proceeding from the highest official or the lowest functionary, is a postulate of our system of government. That is to manifest fealty to the rule of law, with priority accorded to that which occupies the topmost rung in the legal hierarchy.." . . (36 SCRA, 228, 234, Emphasis supplied) A contrary view would lead to disastrous consequences for, in the words of Chief Justice Cox of the Supreme Court of Indiana in Ellingham v. Dye, (supra, p. 7) liberty and popular sovereignty are not meant to give rein to passion or thoughtless impulse but to allow the exercise of power by the people for the general good under constant restraints of law. 3. The true question before Us is one of power: Does the incumbent President of the Philippines possess constituent powers? Again, the negative answer is explained in detail in the dissenting opinion of Justice Teehankee. Respondents would justify the incumbent President’s exercise of constituent powers on theory that he is vested with legislative powers as held by this Court in Benigno S. Aquino, Jr., Et. Al. v. Commission on Elections, Et Al., L-40004, January 31, 1975. I wish to stress that although in my separate opinion in said case I agreed that Section 3 (2) of the Transitory provisions grants to the incumbent President legislative powers, I qualified my statement as follows:jgc:chanrobles.com.ph ". . . As to, whether, or not, this unlimited legislative power of the President continues 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." (62 SCRA, pp. 275, 347) I believe it is not disputed that legislative power is essentially different from constituent power; one does not encompass the other unless so specified in the Charter, and the 1973 Constitution contains provisions in this regard. This is well-explained in Justice Teehankee’s

Opinion. The state of necessity brought about by the current political situation, invoked by the respondents, provides no source of power to propose amendments to the existing Constitution. Must we "bend the Constitution to suit the law of the hour?" 4 or cure its defects "by inflicting upon it a wound which nothing can heal," commit one assault after the other "until all respect for the fundamental law is lost and the powers of government are just what those in authority please to call them?" 5 Or can we now ignore what this Court, speaking through Justice Barredo, said in Tolentino v. Comelec:jgc:chanrobles.com.ph

Jose P. Laurel who served his people as Justice of the Supreme Court of this country gave this reminder; the grave and perilous task of halting transgressions and vindicating cherished rights is reposed mainly on the judiciary and therefore let the Courts be the vestal keepers of the purity and sanctity of our Constitution. 8

". . . let those who would put aside, invoking. grounds at best controversial, any mandate of the fundamental law purportedly in order to attain some laudable objective bear in mind that someday somehow others with purportedly more laudable objectives may take advantage of the precedent and continue the destruction of the Constitution, making those who laid down the precedent of justifying deviations from the requirements of the Constitution the victims of their own folly." 6

CONCEPCION, JR., J., concurring:chanrob1es virtual 1aw library

Respondents emphatically assert that the final word is the people’s word and that ultimately it is in the hands of the people where the final decision rests. (Comment, pp. 18, 19, 22) Granting in gratia argumenti that it is so, let it be an expression of the will of the people under a normal political situation and not under the aegis of martial rule for as I have stated in Aquino v. Comelec, Et Al., supra, a referendum (and now a plebiscite) held under a regime of martial law can be of no far reaching significance because it is being accomplished under an atmosphere or climate of fear as it entails a wide area of curtailment and infringement of individual rights, such as, human liberty, property rights, rights of free expression and assembly, protection against unreasonable searches and seizures, liberty of abode and of travel, and so on. 4. The other issues such as the sufficiency and proper submission of the proposed amendments for ratification by the people are expounded in Justice Teehankee’s Opinion. I wish to stress indeed that it is incorrect to state that the thrust of the proposed amendments is the abolition of the interim National Assembly and its substitution with an "interim Batasang Pambansa", for that is not all. Proposed amendment No. 6 will permit or allow the concentration of power in one man — the Executive — Prime Minister or President or whatever you may call him — for it gives him expressly (which the 1973 Constitution or the 1935 Constitution does not) legislative powers even during the existence of the appropriate legislative body, dependent solely on the executive’s judgment on the existence of a grave emergency or a threat or imminence thereof. ** I must be forgiven if, not concerned with the present, I am haunted however by what can happen in the future, when we shall all be gone. Verily, this is a matter of grave concern which necessitates full, mature, sober deliberation of the people but which they can do only in a climate of freedom without the restraints of martial law. I close, remembering what Claro M. Recto, President of the Constitutional Convention which drafted the 1935 Philippine Constitution, once said:jgc:chanrobles.com.ph ". . . Nor is it enough that our people possess a written constitution in order that their government may be called constitutional. To be deserving of this name, and to drive away all danger of anarchy as well as of dictatorship whether by one man or a few, it is necessary that both the government authorities and the people faithfully observe and obey the constitution, and that the citizens be duly conversant not only with their rights but also with their duties." 7

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On the basis of the foregoing, I vote to declare Presidential Decrees Nos. 991 and 1033 unconstitutional and enjoin the implementation thereof.

I vote for the dismissal of the petitions. 1. The issue is not political and therefore justiciable. The term "political question", as this Court has previously defined, refers to those questions which, under the constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the Government It is concerned with the issues dependent upon the wisdom, not legality, of a particular measure. 1 Here, the question raised is whether the President has authority to propose to the people amendments to the Constitution which the petitioners claim is vested solely upon the National Assembly, the constitutional convention called for the purpose, and the interim National Assembly. This is not a political question since it involves the determination of conflicting claims of authority under the constitution. In Gonzales v. Comelec, 2 this Court, resolving the issue of whether or not a Resolution of Congress, acting as a constituent assembly, violates the Constitution, ruled that the question is essentially justiciable, not political, and hence, subject to judicial review. In Tolentino v. Comelec, 3 this Court finally dispelled all doubts as to its position regarding its jurisdiction vis-a-vis the constitutionality of the acts of Congress, acting as a constituent assembly, as well as those of a constitutional convention called for the purpose of proposing amendments to the constitution. Insofar as observance of constitutional provisions on the procedure for amending the constitution is concerned, the issue is cognizable by this Court under its powers of judicial review. 2. As to the merits, a brief backdrop of the decision to hold the referendum-plebiscite will help resolve the issue. It is to be noted that under the 1973 Constitution, an interim National Assembly was organized to bring about an orderly transition from the presidential to the parliamentary system of government. 4 The people, however, probably distrustful of the members who are old-time politicians and constitutional delegates who had voted themselves into membership in the interim National Assembly, voted against the convening of the said interim assembly for at least seven years, 5 thus creating a political stalemate and a consequent delay’ in the transformation of the government into the parliamentary system. To resolve the impasse, the President, at the instance of the barangays and sanggunian assemblies through their duly authorized instrumentalities who recommended a study of the feasibility of abolishing and replacing the interim National Assembly with another interim body truly representative of the people in a reformed society, issued Presidential Decree No. 991, on September 2, 1976, calling for a national referendum on October 16, 1976 to ascertain the wishes of the people as to the ways and means that may be available to attain the objective;

providing for a period of educational and information campaign on the issues; and establishing the mechanics and manner for holding thereof. But the people, through their barangays, addressed resolutions to the Batasang Bayan, expressing their desire to have the constitution amended, thus prompting the President to issue Presidential Decree No. 1033, stating the questions to be submitted to the people in the referendum-plebiscite on October 16, 1976. As will be seen, the authority to amend the Constitution was removed from the interim National Assembly and transferred to the seat of sovereignty itself. Since the Constitution emanates from the people who are the repository of all political powers, their authority to amend the Constitution through the means they have adopted, aside from those mentioned in the Constitution, cannot be gainsaid. Not much reflection is also needed to show that the President did not exercise his martial law legislative powers when he proposed the amendments to the Constitution. He was merely acting as an instrument to carry out the will of the people. Neither could he convene the interim National Assembly, as suggested by the petitioners, without doing violence to the people’s will expressed overwhelmingly when they decided against convening the interim assembly for at least seven years. 3. The period granted to the people to consider the proposed amendments is reasonably long and enough to afford intelligent discussion of the issues to be voted upon. PD 991 has required the barangays to hold assemblies or meetings to discuss and debate on the referendum questions, which in fact they have been doing. Considering that the proposed amendments came from the representatives of the people themselves, the people must have already formed a decision by this time on what stand to take on the proposed amendments come the day for the plebiscite. Besides, the Constitution itself requires the holding of a plebiscite for the ratification of an amendment not later than three (3) months after the approval of such amendment or revision, 6 but without setting a definite period within which such plebiscite shall not be held. From this I can only conclude that the framers of the Constitution desired that only a short period shall elapse from the approval of such amendment or resolution to its ratification by the people.

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DEFENSE, THE HONORABLE BUDGET COMMISSIONER, THE HONORABLE AUDITOR GENERAL, Respondents. Ramon A. Gonzales for petitioner Josue Javellana. Lorenzo M. Tañada & Associates for petitioners Vidal Tan, Et. Al. Tañada, Salonga, Ordoñez, Rodrigo, Sanidad Roxas Gonzales and Arroyo for petitioners Gerardo Roxas, Et. Al. EN BANC

Joker P. Arroyo and Rogelio B. Padilla for petitioner Eddie Monteclaro.

[G.R. No. L-36142. March 31, 1973.]

Raul M. Gonzales & Associates for petitioners Napoleon V. Dilag, Et. Al.

JOSUE JAVELLANA, Petitioner, v. THE EXECUTIVE SECRETARY, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF JUSTICE and THE SECRETARY OF FINANCE, Respondents.

Arturo M. Tolentino for respondents Gil J. Puyat and Jose Roy. Solicitor General Estelito P. Mendoza, Solicitor Vicente V . Mendoza and Solicitor Reynato S. Puno for other respondents.

[G.R. No. L-36164. March 31, 1973.] VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES, MANUEL CRUDO, ANTONIO U. MIRANDA, EMILIO DE PERALTA and LORENZO M. TAÑADA, Petitioners, v. THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE, THE SECRETARY OF JUSTICE, THE SECRETARY OF LAND REFORM, THE SECRETARY OF NATIONAL DEFENSE, THE AUDITOR GENERAL, THE BUDGET COMMISSIONER, THE CHAIRMAN OF PRESIDENTIAL COMMISSION ON REORGANIZATION, THE TREASURER OF THE PHILIPPINES, THE COMMISSION ON ELECTIONS and THE COMMISSIONER OF CIVIL SERVICE, Respondents.

R E S O L U T I O N

CONCEPCION, J.:

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

[G.R. No. L-36165. March 31, 1973.] Background of the Plebiscite Cases GERARDO ROXAS, AMBROSIO PADILLA, JOVITO R. SALONGA, SALVADOR H. LAUREL, RAMON V. MITRA, JR. and EVA ESTRADA-KALAW, Petitioners, v. ALEJANDRO MELCHOR, in his capacity as Executive Secretary; JUAN PONCE ENRILE, in his capacity as Secretary of National Defense; General ROMEO ESPINO, in his capacity as Chief of Staff of the Armed Forces of the philippines; CONSTANCIO E. CASTAÑEDA, in his capacity as Secretary of General Services; Senator GIL J. PUYAT, in his capacity as President of the Senate; and Senator JOSE ROY, in his capacity as President Pro Tempore of the Senate, Respondents. [G.R. No. L-36236. March 31, 1973.] EDDIE B. MONTECLARO, [personally and in his capacity President of the National Press Club of the Philippines], Petitioner, vs, THE EXECUTIVE SECRETARY, THE SECRETARY OF PUBLIC INFORMATION, THE AUDITOR GENERAL, THE BUDGET COMMISSIONER & THE NATIONAL TREASURER, Respondent. [G.R. No. L-36283. March 31, 1973.] NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., LEONARDO ASODISEN, JR., and RAUL M. GONZALEZ, Petitioners, v. THE HONORABLE SECRETARY OF NATIONAL

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The factual setting thereof is set forth in the decision rendered, from which We quote:jgc:chanrobles.com.ph "On March 16, 1967, Congress of the Philippines passed Resolution No. 2, which was amended by Resolution No. 4 of said body, adopted on June 17, 1969, calling a convention to propose amendments to the Constitution of the Philippines. Said Resolution No. 2, as amended, was implemented by Republic Act No. 6132, approved on August 24, 1970, pursuant to the provisions of which the election of delegates to said Convention was held on November 10, 1970, and the, 1971 Constitutional Convention began to perform its functions on June 1, 1971. While the Convention was in session on September 21, 1972, the President issued Proclamation No. 1081 placing the entire Philippines under Martial Law. On November 29, 1972, the Convention approved its Proposed Constitution of the Republic of the Philippines. The next day, November 30, 1972, the President of the Philippines issued Presidential Decree No. 73, ‘submitting to the Filipino people for ratification or rejection the Constitution of the Republic of the Philippines proposed by the 1971 Constitutional Convention, and appropriating funds therefor,’ as well as setting the plebiscite for said ratification or rejection of the Proposed Constitution on January 15, 1973. "Soon after, or on December 7, 1972, Charito Planas filed, with this Court, Case G.R. No. L-

35925, against the Commission on Elections, the Treasurer of the Philippines and the Auditor General, to enjoin said ‘respondents or their agents from implementing Presidential Decree No. 73, in any manner, until further orders of the Court,’ upon the grounds, inter alia that said Presidential Decree ‘has no force and effect as law because the calling . . . of such plebiscite, the setting of guidelines for the conduct of the same, the prescription of the ballots to be used and the question to be answered by the voters, and the appropriation of public funds for the purpose, are, by the Constitution, lodged exclusively in Congress . . .,’ and ‘there is no proper submission to the people of said Proposed Constitution set for January 15, 1973, there being no freedom of speech, press and assembly, and there being sufficient time to inform the people of the contents thereof.’ "Substantially identical actions were filed, on December 8, 1972, by Pablo C. Sanidad against the Commission on Elections (Case G.R. No. L-35929); on December 11, 1972, by Gerardo Roxas, Et Al., against the Commission on Elections, Director of Printing, the National Treasurer and the Auditor General (Case G.R. L-35940), by Eddie B. Monteclaro against the Commission on Elections and the Treasurer of the Philippines (Case G.R. No L-35941), and by Sedfrey A. Ordoñez, Et. Al. against the National Treasurer and the Commission on Elections (Case G.R. No. L-35942); on December 12, 1972, by Vidal Tan, Et Al., against the Commission on Elections, the Treasurer of the Philippines, the Auditor General and the Director of Printing (Case G.R. No. L35948), and by Jose W. Diokno and Benigno S. Aquino against the Commission on Elections (Case G R No. L-35953); on December 14, 1972, by Jacinto Jimenez against the Commission on Elections, the Auditor General, the Treasurer of the Philippines and the Director of the Bureau of Printing (Case G.R. No. L-35961), and by Raul M. Gonzales against the Commission on Elections, the Budget Commissioner, the National Treasurer and the Auditor General (Case G.R. No. L-35965), and on December 16, 1972, by Ernesto C. Hidalgo against the Commission on Elections, the Secretary of Education, the National Treasurer and the Auditor General (Case G.R. No. L-35979). "In all these cases, except the last (G.R. No. L-35979), the respondents were required to file their answers ‘not later than 12:00 (o’clock) noon of Saturday, December 16, 1972.’ Said cases were, also, set for hearing and partly heard on Monday, December 18, 1972, at 9:30 a.m. The hearing was continued on December 19, 1972. By agreement of the parties, the aforementioned last case — G.R. No. L-35979 — was, also, heard, jointly with the others, on December 19, 1972. At the conclusion of the hearing, on that date, the parties in all of the aforementioned cases were given a short period of time within which ‘to submit their notes on the points they desire to stress.’ Said notes were filed on different dates, between December 21, 1972, and January 4, 1973.

or announced officially. Then, again, Congress was, pursuant to the 1935 Constitution, scheduled to meet in regular session on January 22, 1973, and since the main objection to Presidential Decree No. 73 was that the President does not have the legislative authority to call a plebiscite and appropriate funds therefor, which Congress unquestionably could do, particularly in view of the formal postponement of the plebiscite by the President — reportedly after consultation with, among others, the leaders of Congress and the Commission on Elections — the Court deemed it more imperative to defer its final action on these cases. "In the afternoon of January 12, 1973, the petitioners in Case G.R. No. L-35948 filed an ‘urgent motion,’ praying that said case be decided ‘as soon as possible, preferably not later than January 15, 1973.’ It was alleged in said motion, inter alia. ‘6. That the President subsequently announced the issuance of Presidential Decree No. 86 organizing the so-called Citizens Assemblies, to be consulted on certain public questions [Bulletin Today, January 1, 1973]; ‘7. That thereafter it was later announced that "the Assemblies will be asked if they favor or oppose — " [1] The New Society; " [2] Reforms instituted under Martial Law; " [3] The holding of a plebiscite on proposed new Constitution and when (the tentative new dates given following postponement of the plebiscite from the original date of January 15 are February 19 and March 5); " [4] The opening of the regular session on January 22 in accordance with the existing Constitution despite Martial Law." [Bulletin Today, January 3, 1973.] ‘8. That it was later reported that the following are to be the forms of the questions to be asked to the Citizens Assemblies: — " [1] Do you approve of the New Society? " [2] Do you approve of the reform measures under martial law? " [3] Do you think that Congress should meet again in regular session?

"Meanwhile, or on December 17, 1972, the President had issued an order temporarily suspending the effects of Proclamation No. 1081, for the purpose of free and open debate on the Proposed Constitution. On December 23, the President announced the postponement of the plebiscite for ratification or rejection of the Proposed Constitution. No formal action to this effect was taken until January 7, 1973, when General Order No. 20 was issued, directing ‘that the plebiscite scheduled to be held on January 15, 1973 be postponed until further notice.’ Said General Order No. 20, moreover, ‘suspended in the meantime’ the ‘order of December 17, 1972, temporarily suspending the effects of Proclamation No. 1081 for purposes of free and open debate on the proposed Constitution.’ "In view of these events relative to the postponement of the aforementioned plebiscite, the Court deemed it fit to refrain, for the time being, from deciding the aforementioned cases, for neither the date nor the conditions under which said plebiscite would be held were known

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" [4] How soon would you like the plebiscite on the new Constitution to be held?" [Bulletin Today, January 5, 1973]. ‘9. That the voting by the so-called Citizens Assemblies was announced to take place during the period from January 10 to January 15, 1973; ‘10. That on January 10, 1973, it was reported that one more question would be added to the four (4) questions previously announced, and that the forms of the questions would be as follows: — " [1] Do you like the New Society?

" [2] Do you like the reforms under martial law? QUESTION No. 4 " [3] Do you like Congress again to hold sessions? " [4] Do you like the plebiscite to be held later? " [5] Do you like the way President Marcos is running the affairs of the government?" [Bulletin Today, January 10, 1973; additional question italics.] ‘11. That on January 11, 1973, it was reported that six (6) more questions would be submitted to the so called Assemblies: —

We are sick and tired of too frequent elections. We are fed up with politics, of so many debates and so much expenses. QUESTION No. 5 Probably a period of at least seven (7) years moratorium on elections will be enough for stability to be established in the country, for reforms to take root and normalcy to return. QUESTION No. 6

" [1] Do you approve of the citizens assemblies as the base of popular government to decide issues of national interests? " [2] Do you approve of the New Constitution? " [3] Do you want a plebiscite to be called to ratify the new Constitution? " [4] Do you want the elections to be held in November, 1973 in accordance with the provisions of the 1935 Constitution?

We want President Marcos to continue with Martial Law. We want him to exercise his powers with more authority. We want him to be strong and firm so that he can accomplish all his reform programs and establish normalcy in the country. If all other measures fail, we want President Marcos to declare a revolutionary government along the lines of the new Constitution without the ad interim Assembly."cralaw virtua1aw library ‘Attention is respectfully invited to the comments on "Question No. 3," which reads: — "QUESTION No. 3

" [5] If the elections would not be held, when do you want the next elections to be called? " [6] Do you want martial law to continue?" [Bulletin Today, January 11, 1973; Italics supplied.]

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

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

If the Citizens Assemblies approve of the New Constitution, then the new Constitution should be deemed ratified."cralaw virtua1aw library

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

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

"COMMENTS ON QUESTION No. 1 In order to broaden the base of citizen participation in government.

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

QUESTION No. 2 "Do you approve of the New Constitution?" — But we do not want the Ad Interim Assembly to be convoked. Or if it is to be convened at all, it should not be done so until after at least seven (7) years from the approval of the New Constitution by the Citizens Assemblies.

in relation to the question following it: — "Do you still want a plebiscite to becalled to ratify the new Constitution?" —

QUESTION No. 3 The vote of the Citizens Assemblies should already be considered the plebiscite on the Constitution. If the Citizens Assemblies approve of the Constitution, then the new Constitution should be deemed ratified.

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would be an attempt to by-pass and short-circuit this Honorable Court before which the question of the validity of the plebiscite on the proposed Constitution is now pending; ‘16. That petitioners have reason to fear, and therefore allege, that if an affirmative answer to the two questions just referred to will be reported then this Honorable Court and the entire nation will be confronted with a fait accompli which has been attained in a highly

unconstitutional and undemocratic manner; ‘17. That the fait accompli would consist in the supposed expression of the people approving the proposed Constitution;

and their deputies, subordinates and/or substitutes, from collecting certifying, announcing and reporting to the President the supposed Citizens’ Assemblies referendum results allegedly obtained when they were supposed to have met during the period between January 10 and January 15, 1973, particularly on the two questions quoted in paragraph 1 of this Supplemental Urgent Motion;

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

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

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

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

‘20. That the crisis mentioned above can only be avoided if this Honorable Court will immediately decide and announce its decision on the present petition; ‘21. That with the withdrawal by the President of the limited freedom of discussion on the proposed Constitution which was given to the people pursuant to See. 3 of Presidential Decree No. 73, the opposition of respondents to petitioners’ prayer that the proposed plebiscite be prohibited has now collapsed and that a free plebiscite can no longer be held.’ "At about the same time, a similar prayer was made in a ‘manifestation’ filed by the petitioners in L-35949, ‘Gerardo Roxas, et al, v. Commission on Elections, Et Al., ‘ and L-35942, ‘Sedfrey Ordoñez, Et. Al. v. The National Treasurer, Et. Al.’ "The next day, January 13, 1973, which was a Saturday, the Court issued a resolution requiring the respondents in said three (3) cases to comment on said ‘urgent motion’ and ‘manifestation,’ ‘not later that Tuesday noon, January 16, 1973.’ Prior thereto, or on January 15, 1973, shortly before noon, the petitioners in said Case G.R. No. L-35948 filed a ‘supplemental motion for issuance of restraining order and inclusion of additional respondents,’ praying — ‘. . . that a restraining order be issued enjoining and restraining respondent Commission on Elections, as well as the Department of Local Governments and its head, Secretary Jose Roño; the Department of Agrarian Reforms and its head, Secretary Conrado Estrella; the National Ratification Coordinating Committee and its Chairman, Guillermo de Vega; their deputies, subordinates and substitutes, and all other officials and persons who may be assigned such task, from collecting, certifying, and announcing and reporting to the President or other officials concerned, the so-called Citizens’ Assemblies referendum results allegedly obtained when they were supposed to have met during the period comprised between January 10 and January 15, 1973, on the two questions quoted in paragraph 1 of this Supplemental Urgent Motion.’ "In support of this prayer, it was alleged — ‘3. That petitioners are now before this Honorable Court in order to ask further that this Honorable Court issue a restraining order enjoining herein respondents, particularly respondent Commission on Elections as well as the Department of Local Governments and its head, Secretary Jose Roño; the Department of Agrarian Reforms and its head, Secretary Conrado Estrella; the National Ratification Coordinating Committee and its Chairman, Guillermo de Vega;

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[b] Elections or plebiscites for the ratification of constitutional amendments contemplated in Article XV of the Constitution have provisions for the secrecy of choice and of vote, which is one of the safeguards of freedom of action, but votes in the Citizens’ Assemblies were open and were cast by raising hands; [c] The Election Code makes ample provisions for free, orderly and honest elections, and such provisions are a minimum requirement for elections or plebiscites for the ratification of constitutional amendments, but there were no similar provisions to guide and regulate proceedings of the so called Citizens’ Assemblies; [d] It is seriously to be doubted that, for lack of material time, more than a handful of the so called Citizens’ Assemblies have been actually formed, because the mechanics of their organization were still being discussed a day or so before the day they were supposed to begin functioning — ‘Provincial governors and city and municipal mayors had been meeting with barrio captains and community leaders since last Monday [January 8, 1973] to thresh out the mechanics in the formation of the Citizens’ Assemblies and the topics for discussion.’ [Bulletin Today, January 10, 1973]. ‘It should be recalled that the Citizens’ Assemblies were ordered formed only at the beginning of the year [Daily Express, January 1, 1973], and considering the lack of experience of the local organizers of said assemblies, as well as the absence of sufficient guidelines for organization, it is too much to believe that such assemblies could be organized at such a short notice. ‘5. That for lack of material time, the appropriate amended petition to include the additional officials and government agencies mentioned in paragraph 3 of this Supplemental Urgent Motion could not be completed because, as noted in the Urgent Motion of January 12, 1973, the submission of the proposed Constitution to the Citizens’ Assemblies was not made known to the public until January 11, 1973. But be that as it may, the said additional officials and agencies may be properly included in the petition at bar because: — [a] The herein petitioners have prayed in their petition for the annulment not only of Presidential Decree No. 73, but also of "any similar decree, proclamation, order or

instruction."cralaw virtua1aw library so that Presidential Decree No. 86, insofar at least as it attempts to submit the proposed Constitution to a plebiscite by the so-called Citizens’ Assemblies, is properly in issue in this case, and those who enforce, implement, or carry out the said Presidential Decree No. 86, and the instructions incidental thereto clearly fall within the scope of this petition; [b] In their petition, petitioners sought the issuance of a writ of preliminary injunction restraining not only the respondents named in the petition but also their "agents" from implementing not only Presidential Decree No. 73, but also "any other similar decree, order, instruction, or proclamation in relation to the holding of a plebiscite on January 15, 1973 for the purpose of submitting to the Filipino people for their ratification or rejection the 1972 Draft or proposed Constitution approved by the Constitutional Convention on November 30, 1972" ; and finally, [c] Petitioners prayed for such other relief which may be just and equitable. [p. 39, Petition]. ‘Therefore, viewing the case from all angles, the officials and government agencies mentioned in paragraph 3 of this Supplemental Urgent Motion, can lawfully he reached by the processes of this Honorable Court by reason of this petition, considering, furthermore, that the Commission on Elections has under our laws the power, among others, of: — "(a) Direct and immediate supervision and control over national, provincial, city, municipal and municipal district officials required by law to perform duties relative to the conduct of elections on matters pertaining to the enforcement of the provisions of this Code . . ." [Election Code of 1971, Sec. 3]. ‘6. That unless the petition at bar is decided immediately and the Commission on Elections, together with the officials and government agencies mentioned in paragraph 3 of this Supplemental Urgent Motion are restrained or enjoined from collecting, certifying, reporting or announcing to the President the results of the alleged voting of the so-called Citizens’ Assemblies, irreparable damage will be caused to the Republic of the Philippines, the Filipino people, the cause of freedom and democracy, and the petitioners herein because:chanrob1es virtual 1aw library [a] After the result of the supposed voting on the questions mentioned in paragraph 1 hereof shall have been announced, a conflict will arise between those who maintain that the 1935 Constitution is still in force, on the one hand, and those who will maintain that it has been superseded by the proposed Constitution, on the other, thereby creating confusion, if not chaos; [b] Even the jurisdiction of this Court will be subject to serious attack because the advocates of the theory that the proposed Constitution has been ratified by reason of the announcement of the results of the proceedings of the so-called Citizens’ Assemblies will argue that, General Order No. 3, which shall also be deemed ratified pursuant to the Transitory Provisions of the proposed Constitution, has placed Presidential Decree Nos. 73 and 86 beyond the reach and jurisdiction of this Honorable Court.’ "On the same date — January 15, 1973 — the Court passed a resolution requiring the respondents in said case G.R. No. L-35948 to file ‘file an answer to the said motion not later than 4 P.M., Tuesday, January 16, 1973,’ and setting the motion for hearing ‘on January 17,

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1973, at 9:30 a.m.’ While the case was being heard, on the date last mentioned, at noontime, the Secretary of Justice called on the writer of this opinion and said that, upon instructions of the President, he (the Secretary of Justice) was delivering to him (the writer) a copy of Proclamation No. 1102, which had just been signed by the President. Thereupon, the writer returned to the Session Hall and announced to the Court, the parties in G.R. No. L-35948 — inasmuch as the hearing in connection therewith was still going on — and the public there present that the President had, according to information conveyed by the Secretary of Justice, signed said Proclamation No. 1102, earlier that morning. Thereupon, the writer read Proclamation No. 1102 which is of the following tenor:chanrob1es virtual 1aw library ‘BY THE PRESIDENT OF THE PHILIPPINES ‘PROCLAMATION NO. 1102 ‘ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION. ‘WHEREAS, the Constitution proposed by the nineteen hundred seventy-one Constitutional Convention is subject to ratification by the Filipino people; ‘WHEREAS, Citizens Assemblies were created in barrios, in municipalities and in districts/wards in chartered cities pursuant to Presidential Decree No. 86, dated December 31, 1972, composed of all persons who are residents of the barrio, district or ward for at least six months, fifteen years of age or over, citizens of the Philippines and who are registered in the list of Citizen Assembly members kept by the barrio, district or ward secretary; ‘WHEREAS, the said Citizens Assemblies were established precisely to broaden the base of citizen participation in the democratic process and to afford ample opportunity for the citizenry to express their views on important national issues; ‘WHEREAS, responding to the clamor of the people and pursuant to Presidential Decree No. 86-A, dated January 5, 1973, the following questions were posed before the Citizens Assemblies or Barangays: Do you approve of the New Constitution? Do you still want a plebiscite to be called to ratify the new Constitution? ‘WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty-one (14,976,561) members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed Constitution, as against seven hundred forty-three thousand eight hundred sixty-nine (743,869) who voted for its rejection; while on the question as to whether or not the people would still like a plebiscite to be called to ratify the new Constitution, fourteen million two hundred ninety-eight thousand eight hundred fourteen (14,298,814) answered that there was no need for a plebiscite and that the vote of the Barangays (Citizens Assemblies) should be considered as a vote in a plebiscite; ‘WHEREAS, since the referendum results show that more than ninety-five (95) per cent of the members of the Barangays (Citizens Assemblies) are in favor of the new Constitution, the Katipunan ng Mga Barangay has strongly recommended that the new Constitution should already be deemed ratified by the Filipino people; ‘NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the Constitution, do hereby certify and proclaim that the Constitution

proposed by the nineteen hundred and seventy-one (1971) Constitutional Convention has been ratified by an overwhelming majority of all of the votes cast by the members of all the Barangays (Citizens Assemblies) throughout the Philippines, and has thereby come into effect. ‘IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the Philippines to be affixed. ‘Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen hundred and seventy-three. (Sgd.) FERDINAND E. MARCOS

become moot and academic, whereas Justices Barredo, Makasiar and Antonio voted to uphold the validity of said Decree. "3. On the authority of the 1971 Constitutional Convention to pass the proposed Constitution or to incorporate therein the provisions contested by the petitioners in L-35948, Justices Makalintal, Castro, Teehankee and Esguerra opine that the issue has become moot and academic. Justices Fernando, Barredo, Makasiar, Antonio and myself have voted to uphold the authority of the Convention. "4. Justice Fernando, likewise, expressed the view that the 1971 Constitutional Convention had authority to continue in the performance of its functions despite the proclamation of Martial Law. In effect, Justices Barredo, Makasiar and Antonio hold the same view.

‘President of the Philippines ‘By the President:chanrob1es virtual 1aw library ‘ALEJANDRO MELCHOR ‘Executive Secretary’ "Such is the background of the cases submitted for Our determination. After admitting some of the allegations made in the petition in L-35948 and denying the other allegations thereof, respondents therein alleged in their answer thereto, by way of affirmative defenses: 1) that the ‘questions raised’ in said petition ‘are political in character’; 2) that ‘the Constitutional Convention acted freely and had plenary authority to propose not only amendments but a Constitution which would supersede the present Constitution’ as that ‘the President’s call for a plebiscite and the appropriation of funds for this purpose are valid’; 4) that ‘there is not an improper submission’ and there can be a plebiscite under Martial Law’; and 5) that the ‘argument that the Proposed Constitution is vague and incomplete, makes an unconstitutional delegation of power, includes a referendum on the proclamation of Martial Law and purports to exercise judicial power’ is ‘not relevant and . . . without merit.’ Identical defenses were set up in the other cases under consideration. "Immediately after the hearing held on January 17, 1973, or since the afternoon of that date, the Members of the Court have been deliberating on the aforementioned cases and, after extensive discussions on the merits thereof, have deemed it best that each Member write his own views thereon and that thereafter the Chief Justice should state the result or the votes thus cast on the points in issue. Hence, the individual views of my brethren in the Court are set forth in the opinions attached hereto, except that, instead of writing their separate opinions, some Members have preferred to merely concur in the opinion of one of our colleagues."cralaw virtua1aw library Then the writer of said decision expressed his own opinion on the issues involved therein, after which he recapitulated the views of the Members of the Court, as follows:jgc:chanrobles.com.ph "1. There is unanimity on the justiciable nature of the issue on the legality of Presidential Decree No. 73. "2. On the validity of the decree itself, Justices Makalintal, Castro, Fernando, Teehankee, Esguerra and myself, or six (6) Members of the Court, are of the opinion that the issue has

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"5. On the question whether the proclamation of Martial Law affected the proper submission of the proposed Constitution to a plebiscite, insofar as the freedom essential therefor is concerned Justice Fernando is of the opinion that there is a repugnance between the election contemplated under Art. XV of the 1935 Constitution and the existence of Martial Law, and would, therefore, grant the petitions were they not moot and academic. Justices Barredo, Antonio and Esguerra are of the opinion that issue involves questions of fact which cannot be predetermined, and that Martial Law per se does not necessarily preclude the factual possibility of adequate freedom for the purposes contemplated. "6. On Presidential Proclamation No. 1102, the following views were expressed:jgc:chanrobles.com.ph "a. Justices Makalintal, Castro, Fernando, Teehankee, Makasiar, Esguerra and myself are of the opinion that the question of validity of said Proclamation has not been properly raised before the Court, which, accordingly, should not pass upon such question. "b. Justice Barredo holds that the issue on the constitutionality of Proclamation No. 1102 has been submitted to and should be determined by the Court, and that the purported ratification of the Proposed Constitution . . . based on the referendum among Citizens’ Assemblies falls short of being in strict conformity with the requirements of Article XV of the 1935 Constitution,’ but that such unfortunate drawback notwithstanding, ‘considering all other related relevant circumstances, . . . the new Constitution is legally recognizable and should be recognized as legitimately in force.’ "c. Justice Zaldivar maintains unqualifiedly that the Proposed Constitution has not been ratified in accordance with Article XV of the 1935 Constitution, and that, accordingly, it has no force and effect whatsoever. "d. Justice Antonio feels ‘that the Court is not competent to act’ on the issue whether the Proposed Constitution has been ratified by the people or not, ‘in the absence of any judicially discoverable and manageable standards,’ since the issue ‘poses a question of fact.’ "7. On the question whether or not these cases should be dismissed, Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra voted in the affirmative, for the reasons set forth in their respective opinions. Justices Fernando, Teehankee, and the writer similarly voted, except as regards Case No. L-35948 as to which they voted to grant to the petitioners therein a reasonable period of time within which to file appropriate pleadings should they wish to contest the legality of Presidential Proclamation No. 1102. Justice Zaldivar favors the

granting of said period to the petitioners in said Case No. L-35948 for the aforementioned purpose, but he believes, in effect, that the Court should go farther and decide on the merits everyone of the cases under consideration."cralaw virtua1aw library Accordingly, the Court — acting in conformity with the position taken by six (6) of its members, 1 with three (3) members dissenting, 2 with respect to G.R. No. L-35948, only, and another member 3 dissenting, as regards all of the cases — dismissed the same, without special pronouncement as to costs. The Present Cases Prior thereto, or on January 20, 1973, Josue Javellana filed Case G.R. No. L-36142 against the Executive Secretary and the Secretaries of National Defense, Justice and Finance, to restrain said respondents "and their subordinates or agents, from implementing any of the provisions of the proposed Constitution not found in the present Constitution’ — referring to that of 1935. The petition therein, filed by Josue Javellana, as a "Filipino citizen, and a qualified and registered voter" and as "a class suit, for himself, and in behalf of all citizens and voters similarly situated," was amended on or about January 24, 1973. After reciting in substance the facts set forth in the decision in the plebiscite cases, Javellana alleged that the President had announced "the immediate implementation of the New Constitution, thru his Cabinet, respondents including," and that the latter "are acting without, or in excess of jurisdiction in implementing the said proposed Constitution" upon the ground: "that the President, as Commander-in-Chief of the Armed Forces of the Philippines, is without authority to create the Citizens Assemblies" ; that the same "are without power to approve the proposed Constitution . . ." ; "that the President is without power to proclaim the ratification by the Filipino people of the proposed Constitution" ; and "that the election held to ratify the proposed Constitution was not a free election, hence null and void."cralaw virtua1aw library Similar actions were filed, on January 23, 1973, by Vidal Tan, J. Antonio Araneta, Alejandro Roces, Manuel Crudo, Antonio U. Miranda, Emilio de Peralta and Lorenzo M. Tañada against the Executive Secretary, the Secretaries of Finance Justice, Land Reform, and National Defense, the Auditor General, Budget Commissioner, the Chairman of the Presidential Commission on Reorganization, the Treasurer of the Philippines, the Commission on Elections and the Commissioner of Civil Service 4; on February 3, 1973, by Eddie Monteclaro, personally and as President of the National Press Club of the Philippines, against the Executive Secretary, the Secretary of Public Information, the Auditor General, Budget Commissioner and the National Treasurer 5; and on February 12, 1973, by Napoleon V. Dilag, Alfredo Salapantan, Jr., Leonardo Asodisen, Jr. and Raul M. Gonzales, 6 against the Executive Secretary, the Secretary of National Defense, the Budget Commissioner and the Auditor General. Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio Padilla, Jovito R. Salonga, Salvador H. Laurel, 7 Ramon V. Mitra, Jr. and Eva Estrada-Kalaw, the first as "duly elected Senator and Minority Floor Leader of the Senate," and the others as "duly elected members" thereof, filed Case G.R. No. L-36165, against the Executive Secretary, the Secretary of National Defense, the Chief of Staff of the Armed Forces of the Philippines, the Secretary of General Services, the President and the President Pro Tempore of the Senate. In their petition — as amended on January 26, 1973 — petitioners Gerardo Roxas, Et. Al. allege, inter alia, that the term of office of three (3) of the aforementioned petitioners 8 would expire en December 31, 1975, and that of the others 9 on December 31, 1977; that pursuant to our 1935 Constitution, "which is still in force," Congress of the Philippines "must convene for its 8th Session on Monday, January 22, 1973, at 10:00 A.M., which is the regular customary hour of its opening session" ;

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that "on said day, from 10:00 A.M. up to the afternoon," said petitioner "along with their other colleagues, were unlawfully prevent from using the Senate Session Hall, the same having be closed by the authorities in physical possession and control of the Legislative Building’; that" (a)t about 5:00 to 6:00 P.M. of the said day, the premises of the entire Legislative Building were ordered cleared by the same authorities, and no one was allowed to enter and have access to said premises" ; that" (r)espondent Senate President Gil J. Puyat and, in his absence, respondent President Pro Tempore Jose Roy were asked by petitioning Senators to perform their duties under the law and the Rules of the Senate, but unlawfully refrained and continue to refrain from doing so" ; that the petitioners "are ready and willing to perform their duties as duly elected members of the Senate of the Philippines," but respondents Secretary of National Defense, Executive Secretary and Chief of Staff, "through their agents and representatives, are preventing petitioners from performing their duties as duly elected Senators of the Philippines" ; that "the Senate premises in the Congress of the Philippines Building . . . are occupied by and are under the physical control of the elements of military organizations under the direction of said respondents" ; that, as per "official reports, the Department of General Services . . . is now the civilian agent in custody of the premises of the Legislative Building" ; that respondents "have unlawfully excluded and prevented, and continue to so exclude and prevent" the petitioners from the performance of their sworn duties, invoking the alleged approval of the 1972 (1973) Constitution of the Philippines by action of the so-called Citizens’ Assemblies on January 10, 1973 to January 15, 197 ‘, as stated in and by virtue of Proclamation No. 1102 signed and issued by the President of the Philippines" ; that "the alleged creation of the Citizens’ Assemblies as instrumentalities for the ratification of the Constitution of the Republic of the Philippines" is inherently illegal and palpably unconstitutional; that respondents Senate President and Senate President Pro Tempore "have unlawfully refrained and continue to refrain from and/or unlawfully neglected and continue to neglect the performance of their duties and functions as such officers under the law and the Rules of the Senate" quoted in the petition; that because of events supervening the institution of the plebiscite cases, to which reference has been made in the preceding pages" the Supreme Court dismissed said cases on January 22, 1973, by a majority vote, upon the ground that the petitions therein had become moot and academic; that the alleged ratification of the 1972 (1973) Constitution "is illegal, unconstitutional and void and . . . can not have superseded and revoked the 1935 Constitution," for the reasons specified in the petition as amended; that, by acting as they did, the respondents and their "agents, representatives and subordinates . . . have excluded the petitioners from an office to which" they "are lawfully entitled" ; that "respondents Gil J. Puyat and Jose Roy have unlawfully refrained from convening the Senate for its 8th session, assuming general jurisdiction over the Session Hall and the premises of the Senate and . . . continue such inaction up to this time and . . . a writ of mandamus is warranted in order to compel them to comply with the duties and functions specifically enjoined by law" ; and that "against the above mentioned unlawful acts of the respondents, the petitioners have no appeal nor other speedy and adequate remedy in the ordinary course of law except by invoking the equitable remedies of mandamus and prohibition with the provisional remedy of preliminary mandatory injunction."cralaw virtua1aw library Premised upon the foregoing allegations, said petitioners prayed that, "pending hearing on the merits, a writ of preliminary mandatory injunction be issued ordering the respondents Executive Secretary, the Secretary of National Defense, the Chief of Staff of the Armed Forces of the Philippines, and the . . . Secretary of General Services, as well as all their agents, representatives and subordinates to vacate the premises of the Senate of the Philippines and to deliver physical possession of the same to the President of the Senate or his authorized representative" ; and that "after hearing, judgment be rendered declaring null and void Proclamation No. 1102 . . . and any order, decree, or proclamation having the same import and

objective, issuing the writs of prohibition and mandamus, as prayed for against the abovementioned respondents, and making the writ of injunction permanent; and that a writ of mandamus be issued against the respondents Gil J. Puyat and Jose Roy directing them to comply with their duties and functions as President and President Pro Tempore, respectively, of the Senate of the Philippines, as provided by law and the Rules of the Senate."cralaw virtua1aw library Required to comment on the above-mentioned petitions and/or amended petitions, respondents filed, with the leave of Court first had and obtained, a consolidated comment on said petitions and/or amended petitions, a consolidated comment on said petitions and/or amended petitions, alleging that the same ought to have been dismissed outright; controverting petitioners’ allegations concerning the alleged lack or impairment of the freedom of the 1971 Constitutional Convention to approve the proposed Constitution, its alleged lack of authority to incorporate certain contested provisions thereof, the alleged lack of authority of the President to create and establish Citizens’ Assemblies "for the purpose of submitting to them the matter of ratification of the new Constitution," the alleged "improper or inadequate submission of the proposed constitution," the "procedure for ratification adopted . . . through the Citizens Assemblies" ; and maintaining that: 1)" (t)he Court is without jurisdiction to act on these petitions" ; 2) the questions raised therein are "political in character and therefore nonjusticiable" ; 3) "there was substantial compliance with Article XV of the 1935 Constitution" ; 4)" (t)he Constitution was properly submitted to the people in a free, orderly and honest election" ; 5) "Proclamation No. 1102, certifying the results of the election, is conclusive upon the courts" ; and 6)" (t)he amending process outlined in Article XV of the 1935 Constitution is not exclusive of other modes of amendment."cralaw virtua1aw library Respondents Puyat and Roy, in said Case G.R. No. L-36165, filed their separate comment therein, alleging that" (t)he subject matter" of said case "is a highly political question which, under the circumstances, this . . . Court would not be in a position to act upon judicially," and that, in view of the opinions expressed by three members of this Court in its decision in the plebiscite cases, in effect upholding the validity of Proclamation No. 1102, "further proceedings in this case may only be an academic exercise in futility."cralaw virtua1aw library On February 5, 1973, the Court issued a resolution requiring respondents in L 36236 to comment on the petition therein not later than Saturday, February 10, 1973, and setting the case for hearing on February 12, 1973, at 9:30 a.m. By resolution dated February 7, 1973, this Court resolved to consider the comments of the respondents in cases G.R. Nos. L-36142, L36161, L-36165, as motions to dismiss the petitions therein, and to set said cases for hearing on the same date and time as L-36236. On that date, the parties in G.R. No. L-36283 10 agreed that the same be, likewise, heard, as it was, in fact, heard jointly with the aforementioned cases G.R. Nos. L-36142, L-36164, L-36165 and L 36236. The hearing, which began on February 12, shortly after 9:30 a.m., was continued not only that after but, also, on February 13, 14, 15 and 16, morning and afternoon, after which the parties were granted up to February 24, 1973, noon, within which to submit their notes arguments and additional arguments, as well as the documents required of them or whose presentation was reserved by them. The same resolution granted the parties until March 1, 1973, to reply to the notes filed by their respective opponents. Counsel for the petitioners in G.R. Nos. L-36164 and L-36165 filed their aforementioned notes on February 24, 1973, on which date the Solicitor General sought an extension of time up to March 3, 1973, within which to file his notes, which was granted, with the understanding that said notes shall include his reply to the notes already filed by the petitioners in G.R. Nos. L-36164 and L-36165. Counsel for the petitioners, likewise, moved and were granted an extension of time, to expire on March 10, 1973, within which to file, as they

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did, their notes in reply to those submitted by the Solicitor General on March 3, 1973. On March 21, 1973, petitioners in l-36165 filed a "Manifestation and Supplemental Rejoinder," whereas the Office of the Solicitor General submitted in all these cases a "Rejoinder to Petitioners’ Replies."cralaw virtua1aw library After deliberating on these cases, the members of the Court agreed that each would write his own opinion and serve a copy thereof on his colleagues, and this they did. Subsequently, the Court discussed said opinions and votes were cast thereon. Such individual opinions are appended hereto. Accordingly, the writer will first express his personal opinion on the issues before the Court. After the exposition of his aforesaid opinion, the writer will make, concurrently with his colleagues in the Court, a resume of summary of the votes cast by them in these cases. Writer’s Personal Opinion I

Alleged academic futility of further proceedings in G.R. No. L-36165. This defense or theory, set up by counsel for respondents Gil J. Puyat and Jose Roy in G.R. No. L-36165, and, also, by the Solicitor General, is predicated upon the fact that, in Our decision in the plebiscite cases, Mr. Justice Barredo expressed the view that the 1935 Constitution had "pro tanto passed into history" and "been legitimately supplanted by the Constitution now in force by virtue of Proclamation No. 1102 . . ." ; that Mr. Justice Antonio did not feel "that this Court is competent to act" in said cases "in the absence of any judicially discoverable and manageable standards" and because "the access to relevant information is insufficient to assure the correct determination of the issue," apart from the circumstance that "the new constitution has been promulgate and great interests have already arisen under it" and that the political organ of the Government has recognized its provisions; whereas, Mr. Justice Esguerra had postulated that" (w)ithout any competent evidence . . . about the circumstances attending the holding" of the referendum or plebiscite" thru the Citizens’ Assemblies, he "cannot say that it was not lawfully held" and that, accordingly, he assumed "that what the proclamation (No. 1102) says on its face is true and until overcome by satisfactory evidence" he could not "subscribe to the claim that such plebiscite was not held accordingly" ; and that he accepted "as a fait accompli that the Constitution adopted (by the 1971 Constitutional Convention) on November 30, 1972, has been duly ratified."cralaw virtua1aw library Counsel for respondents Gil J. Puyat and Jose Roy goes on to say that, under these circumstances, "it seems remote or improbable that the necessary eight (8) votes under the 1935 Constitution, and much less the ten (10) votes required by the 1972 (1973) Constitution, can be obtained for the relief sought in the Amended Petition" in G.R. No. L-36165. I am unable to share this view. To begin with, Mr. Justice Barredo announced publicly, in open court, during the hearing of these cases, that he was and is willing to be convinced that his aforementioned opinion in the plebiscite cases should be reconsidered and changed. In effect, he thus declared that he had an open mind in connection with the cases at bar, and that in deciding the same he would not necessarily adhere to said opinion if the petitioners herein succeeded in convincing him that their view should be sustained.

Secondly, counsel for the aforesaid respondents had apparently assumed that, under the 1935 Constitution, eigth (8) votes are necessary to declare invalid the contested Proclamation No. 1102. I do not believe that this assumption is borne out by any provision of said Constitution. Section 10 of Article VIII thereof reads:jgc:chanrobles.com.ph "All cases involving the constitutionality of a treaty or law shall be heard and decided by the Supreme Court in banc, and no treaty or law may be declared unconstitutional without the concurrence of two thirds of all the members of the Court."cralaw virtua1aw library Pursuant to this section, the concurrence of two thirds of all the Members of the Supreme Court is required only to declare a "treaty or law" unconstitutional. Construing said provision, in a resolution dated September 16, 1949, then Chief Justice Moran, voicing the unanimous view of the Members of this Court, postulated:jgc:chanrobles.com.ph ". . . There is nothing either in the Constitution or in the Judiciary Act requiring the vote of eight Justices to nullify a rule or regulation or an executive order issued by the President. It is very significant that in the previous drafts of section 10, Article VIII of the Constitution, ‘execution order’ and ‘regulation’ were included among those that required for their nullification the vote of two-thirds of all the members of the Court. But ‘executive order’ and ‘regulation’ were later deleted from the final draft (Aruego, The Framing of the Philippine Constitution, Vol. I, pp. 495, 496), and thus a mere majority of six members of this Court is enough to nullify them." 11 The distinction is not without reasonable foundation. The two thirds vote (eight [8] votes) requirement, indeed, was made to apply only to treaty and law, because, in these cases, the participation of the two other departments of the government — the Executive and the Legislative — is present, which circumstance is absent in the case of rules, regulations and executive orders. Indeed, a law(statute) passed by Congress is subject to the approval or veto of the President, whose disapproval cannot be overridden except by the vote of two-thirds (2/3) of all members of each House of Congress. 12 A treaty is entered into by the President with the concurrence of the Senate, 13 which is not required in the case of rules, regulations or executive orders which are exclusive acts of the President. Hence, to nullify the same, a lesser number of votes is necessary in the Supreme Court than that required to invalidate a law or treaty. Although the foregoing refers to rules, regulations and executive orders issued by the President, the dictum applies with equal force to executive proclamations, like said Proclamation No. 1102, inasmuch as the authority to issue the same is governed by section 63 of the Revised Administrative Code, which provides:jgc:chanrobles.com.ph "Administrative acts and commands of the (Governor-General) President of the Philippines touching the organization or mode of operation of the Government or rearranging or readjusting any of the districts, divisions, parts, or ports of the (Philippine Islands) Philippines and all acts and commands governing the general performance of duties by public employees or disposing of issues of general concern shall be made effective in executive orders. "Executive orders fixing the dates when specific laws, resolutions, or orders are to have or cease to (have) effect and any information concerning matters of public moment determined by law, resolution, or executive orders, may be promulgated in an executive proclamation, with all the force of an executive order." 14

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In fact, while executive orders embody administrative acts or commands of the President, executive proclamations are mainly informative and declaratory in character, and so does counsel for respondents Gil J. Puyat and Jose Roy maintain in G.R. No. L-36165. 15 As consequence, an executive proclamation has no more than "the force of an executive order," so that, for the Supreme Court to declare such proclamation unconstitutional, under the 1935 Constitution, the same number of votes needed to invalidate an executive order, rule of regulation — namely, six (6) votes — would suffice. As regards the applicability of the provisions of the proposed new Constitution, approved by the 1971 Constitutional Convention, in the determination of the question whether or not it is now in force, it is obvious that such question depends upon whether or not the said new Constitution has been ratified in accordance with the requirements of the 1935 Constitution, upon the authority of which said Constitutional Convention was called and approved the proposed Constitution. It is well settled that the matter of ratification of an amendment to the Constitution should be settled by applying the provisions of the Constitution in force at the time of the alleged ratification, or the old Constitution. 16 II

Does the issue on the validity of Proclamation No. 1102 partake of the nature of a political, and, hence, non-justiciable question? The Solicitor General maintains in his comment the affirmative view and this is his main defense. In support thereof, he alleges that "petitioners would have this Court declare as invalid the New Constitution of the Republic" from which — he claims — "this Court now derives its authority" ; that "nearly 15 million of our body politic from the age of 15 years have mandated this Constitution to be the New Constitution and the prospect of unsettling acts done in reliance on it caution against interposition of the power of judicial review" ; that "In the case of the New Constitution, the government has been recognized in accordance with the New Constitution" ; that "the country’s foreign relations are now being conducted in accordance with the new charter" ; that "foreign governments have taken note of it" ; that the "plebiscite cases" are "not precedents for holding questions regarding proposal and ratification justiciable" ; and that "to abstain from judgment on the ultimate issue of constitutionality is not to abdicate duty."cralaw virtua1aw library At the outset, it is obvious to me that We are not being asked to "declare" the new Constitution invalid. What petitioners dispute is the theory that it has been validly ratified by the people, especially that they have done so in accordance with Article XV of the 1935 Constitution. The petitioners maintain that the conclusion by the Chief Executive in the dispositive portion of Proclamation No. 1102 is not borne out by the whereases preceding the same, as the predicates from which said conclusion was drawn; that the plebiscite or "election" required in said Article XV has not been held; that the Chief Executive has not authority, under the 1935 Constitution, to dispense with said election or plebiscite; that the proceedings before the Citizens’ Assemblies did not constitution and may not be considered as such plebiscite; that the facts of record abundantly show that the aforementioned Assemblies could not have been held throughout the Philippines from January 10 to January 15, 1973; and that, in any event, the proceedings in said Assemblies are null and void as an alleged ratification of the new Constitution proposed by the 1971 Constitutional Convention, not only because of the circumstances under which said Assemblies had been created and held, but, also, because persons disqualified to vote under Article V of the Constitution were allowed to participate

therein, because the provisions of our Election Code were not observed in said Assemblies, because the same were not held under the supervision of the Commission on Elections, in violations of section 2 of Article X of the 1935 Constitution, and because the existence of Martial Law and General Order No. 20, withdrawing or suspending the limited freedom to discuss the merits and demerits of said proposed Constitution, impaired the people’s freedom in voting thereon, particularly, a viva voce, as it was done in many instances, as well as their ability to have a reasonable knowledge of the contents of the document on which they were allegedly called upon to express their views. Referring now more specifically to the issue on whether the new Constitution proposed by the 1971 Constitutional Convention has been ratified in accordance with the provisions of Article XV of the 1935 Constitution is a political question or not, I do not hesitate to state that the answer must be in the negative. Indeed, such is the position taken by this Court, 17 in an endless line of decisions, too long to leave any room for possible doubt that said issue is inherently and essentially justiciable. Such, also, has been the consistent position of the courts of the United States of America, whose decisions have a persuasive effect in this jurisdiction, our constitutional system in the 1935 Constitution being patterned after that of the United States. Besides, no plausible reason has, to my mind, been advanced to warrant a departure from said position, consistently with the form of government established under said Constitution. Thus, in the aforementioned plebiscite cases, 18 We rejected the theory of the respondents therein that the question whether Presidential Decree No. 73 calling a plebiscite to be held on January 15, 1973, for the ratification or rejection of the proposed new Constitution, was valid or not, was not a proper subject of judicial inquiry because, they claimed, it partook of a political nature; and We unanimously declared that the issue was a justiciable one. With identical unanimity, We overruled the respondents’ contention in the 1971 habeas corpus cases, 19 questioning Our authority to determine the constitutional sufficiency of the factual bases of the Presidential proclamation suspending the privileges of the writ of habeas corpus on August 21, 1971, despite the opposite view taken by this Court in Barcelona v. Baker 20 and Montenegro v. Castañeda, 21 insofar as it adhered to the former case, which view We, accordingly abandoned and refused to apply. For the same reason, We did not apply and expressly modified, in Gonzales v. Commission on Elections, 22 the political-question theory adopted in Mabanag v. Lopez Vito. 23 Hence, respondents herein urge Us to reconsider the action thus taken by the Court and to revert to and follow the views expressed in Barcelon v. Baker and Mabanag v. Lopez Vito. 24 The reasons adduced in support thereof are, however, substantially the same as those given in support of the political-question theory advanced in said habeas corpus and plebiscite cases, which were carefully considered by this Court and found by it to be legally unsound and constitutionally untenable. As a consequence, Our decision in the aforementioned habeas corpus cases partakes of the nature and effect of a stare decisis, which gained added weight by its virtual reiteration in the plebiscite cases. The reason why the issue under consideration and other issues of similar character are justiciable, not political, is plain and simple. One of the principal bases of the non-justiciability of so-called political questions is the principle of separation of powers — characteristic of the Presidential system of government — the functions of which are classified or divided, by reason of their nature, into three (8) categories, namely: 1) those involving the making of laws, which are allocated to the legislative department; 2) those concerned mainly with the enforcement of such laws and of judicial decisions applying and/or interpreting the same, which

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belong to the executive department; and 3) those dealing with the settlement of disputes, controversies or conflicts involving rights, duties or prerogatives that are legally demandable and enforceable, which are apportioned to courts of justice. Within its own sphere — but only within such sphere — each department is supreme and independent of the others, and each is devoid of authority, not only to encroach upon the powers or field of action assigned to any of the other departments, but, also, to inquire into or pass upon the advisability or wisdom of the acts performed, measures taken or decisions made by the other departments — provided that such acts, measures or decisions are within the area allocated thereto by the Constitution.25cralaw:red This principle of separation of powers under the Presidential system goes hand in hand with the system of checks and balances, under which each department is vested by the Fundamental Law with some powers to forestall, restrain or arrest a possible or actual misuse or abuse of powers by the other departments. Hence, the appointing power of the Executive, his pardoning power, his veto power, his authority to call the Legislature or Congress to special sessions and even to prescribe or limit the object or objects of legislation that may be taken up in such sessions, etc. Conversely, Congress or an agency or arm thereof — such as the Commission on Appointments; — may approve or disapprove some appointments made by the President, It, also, has the power of appropriation, to "define, prescribe, and apportion the jurisdiction of the various courts," as well as that of impeachment. Upon the other hand, under the judicial power vested by the Constitution, the "Supreme Court and . . . such inferior courts as may be established by law," may settle or decide with finality, not only justiciable controversies between private individuals or entities, but, also, disputes or conflicts between a private individual or entity, on the one hand, and an officer or branch of the government, on the other, or between two (2) officers or branches of service, when the latter officer or branch is charged with acting without jurisdiction or in excess thereof or in violation of law. And so, when a power vested in said officer or branch of the government is absolute or unqualified, the acts in the exercise of such power are said to be political in nature, and, consequently, nonjusticiable beyond judicial review. Otherwise, courts of justice would be arrogating upon themselves a power conferred by the Constitution upon another branch of the service to the exclusion of the others. Hence, in Tañada v. Cuenco, 26 this Court quoted with approval from In re McConaughy, 27 the following:jgc:chanrobles.com.ph "‘At the threshold of the case we are met with the assertion that the questions involved are political, and not judicial. If this is correct, the court has no jurisdiction as the certificate of the state canvassing board would then be final, regardless of the actual vote upon the amendment. The question thus raised is a fundamental one; but it has been so often decided contrary to the view contended for by the Attorney General that it would seem to be finally settled. x

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"‘. . . What is generally meant, when it is said that a question is political, and not judicial, is that it is a matter which is to be exercised by the people in their primary political capacity, or that it has been specifically delegated to some other department or particular officer of the government, with discretionary power to act. See State v. Cunningham, 81 Wis. 497, N.W. 724, 15 L.R.A. 561; In re Gunn, 50 Kan. 155; 32 Pac. 470, 948, 19 L.R.A. 519; Green v. Mills, 69 Fed. 852, 16 C.C.A. 516, 30 L.R.A. 90; Fletcher v. Tuttle, 151 Ill. 41 37 N.E. 683, 25 L.R.A. 143, 42 Am. St. Rep. 220. Thus the Legislature may in its discretion determine whether it will pass a law or submit a proposed constitutional amendment to the people. The courts have no judicial

control over such matters, not merely because they involve political questions, but because they are matters which the people have by the Constitution delegated to the Legislature. The Governor may exercise the powers delegated to him, free from judicial control, so long as he observes the laws and acts within the limits of the power conferred. His discretionary acts cannot be controllable, not primarily because they are of a political nature, but because the Constitution and laws have placed the particular matter under his control. But every officer under a constitutional government must act according to law and subject to its restrictions, and every departure therefrom or disregard thereof must subject him to that restraining and controlling power of the people, acting through the agency of the judiciary; for it must be remembered that the people act through courts, as well as through the executive or the Legislature. One department is just as representative as the other, and the judiciary is the department which is charged with the special duty of determining the limitations which the law places upon all official action. The recognition of this principle, unknown except in Great Britain and America, is necessary, to "the end that the government may be one of laws and not of men" — words which Webster said were the greatest contained in any written constitutional document.’ (Italics supplied.)" and, in an attempt to describe the nature of a political question in terms, it was hoped, understandable to the laymen, We added that." . . the term ‘political question’ connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy" in matters concerning the government of a State, as a body politic. "In other words, in the language of Corpus Juris Secundum (supra), it refers to ‘those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the government.’ It is concerned with issues dependent upon the wisdom, not legality, of a particular measure."cralaw virtua1aw library Accordingly, when the grant of power is qualified, conditional or subject to limitations, the issue on whether or not the prescribed qualifications or conditions have been met, or the limitations respected, it justiciable or non-political, the crux of the problem being one of legality or validity of the contested act, not its wisdom. Otherwise, said qualifications, conditions or limitations — particularly those prescribed or imposed by the Constitution — would be set at naught. What is more, the judicial inquiry into such issue and the settlement thereof are the main functions of courts of justice under the Presidential form of government adopted in our 1935 Constitution, and the system of checks and balances, one of its basic predicates. As a consequence, We have neither the authority nor the discretion to decline passing upon said issue, but are under the ineluctable obligation — made particularly more exacting and peremptory by our oath, as members of the highest Court of the land, to support and defend the Constitution — to settle it. This explains why, in Miller v. Johnson, 28 it was held that courts have a "duty, rather than a power", to determine whether another branch of the government has "kept within constitutional limits." Not satisfied with this postulate, the court went farther and stressed that, if the Constitution provides how it may be amended — as it is in our 1935 Constitution — "then, unless the manner is followed, the judiciary as the interpreter of that constitution, will declare the amendment invalid." 29 In fact, this very Court — speaking through Justice Laurel, an outstanding authority on Philippine Constitutional Law, as well as one of the highly respected and foremost leaders of the Convention that drafted the 1935 Constitution — declared, as early as July 15, 1936, that" (i)n times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments" of the government. 30

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The Solicitor General has invoked Luther v. Borden 31 in support of his stand that the issue under consideration is non-justiciable in nature. Neither the factual background of that case nor the action taken therein by the Federal Supreme Court has any similarity with or bearing on the cases under consideration. Luther v. Borden was an action for trespass filed by Luther with the Circuit Court of the United States against Borden and others for having forcibly entered into Luther’s house, in Rhode Island, sometime in 1842. The defendants who were in the military service of said former colony of England, alleged in their defense that they had acted in obedience to the commands of a superior officer, because Luther and others were engaged in a conspiracy to overthrow the government by force and the state had been placed by competent authority under Martial Law. Such authority was the charter government of Rhode Island at the time of the Declaration of Independence, for — unlike other states which adopted a new Constitution upon secession from England — Rhode Island retained its form of government under a British Charter, making only such alterations, by acts of the Legislature, as were necessary to adapt it to its subsequent condition as an independent state. It was under this form of government when Rhode Island joined other American states in the Declaration of Independence and, by subsequently ratifying the Constitution of the United States, became a member of the Union. In 1843, it adopted a new Constitution. Prior thereto, however, many citizens had become dissatisfied with the charter government. Memorials addressed by them to the Legislature having failed to bring about the desired effect, meetings were held and associations formed — by those who belonged to this segment of the population — which eventually resulted in a convention called for the drafting of a new Constitution to be submitted to the people for their adoption or rejection. The convention was not authorized by any law of the existing government. The delegates to such convention framed a new Constitution which was submitted to the people. Upon the return of the votes cast by them, the convention declared that said Constitution had been adopted and ratified by a majority of the people and became the paramount law and Constitution of Rhode Island. The charter government, which was supported by a large number of citizens of the state, contested, however, the validity of said proceedings. This notwithstanding, one Thomas W. Dorr, who had been elected governor under the new Constitution of the rebels, prepared to assert authority by force of arms, and many citizens assembled to support him. Thereupon, the charter government passed an Act declaring the state under Martial Law and adopted measures to repel the threatened attack and subdue the rebels. This was the state of affairs when the defendants, who were in the military service of the charter government and were to arrest Luther, for engaging in the support of the rebel government — which was never able to exercise any authority in the state — broke into his house. Meanwhile, the charter government had taken measures to call its own convention to revise the existing form of government. Eventually, a new constitution was drafted by a convention held under the authority of the charter government, and thereafter was adopted and ratified by the people." (T)he times and places at which the votes were to be persons who were to be given, the receive and return them qualifications of the voters having all been previously authorized and provided for by law passed by the charter government," the latter formally surrendered all of its power to the new government, established under its authority, in May 1843, which had been in operation uninterruptedly since then. About a year before, or in May 1842, Dorr, at the head of a military force, had made an

unsuccessful attempt to take possession of the state arsenal in Providence, but he was repulsed, and, after an "assemblage of some hundreds of armed men under his command at Chepatchet in the June following which dispersed upon approach of the troops of the old government, no further effort was made to establish" his government.." . . until the Constitution of 1843" — adopted under the auspices of the charter government — "went into operation, the charter government continued to asset its authority and exercise its powers and to enforce obedience throughout the state . . ."cralaw virtua1aw library Having offered to introduce evidence to prove that the constitution of the rebels had been ratified by the majority of the people, which the Circuit Court rejected, apart from rendering judgment for the defendants, the plaintiff took the case for review to the Federal Supreme Court which affirmed the action of the Circuit Court, stating:jgc:chanrobles.com.ph "It is worthy of remark, however, when we are referring to the authority of State decisions, that the trial of Thomas W. Dorr took place after the constitution of 1843 when into operation. The judges who decided that the case held their authority under that constitution; and it is admitted on all hands that it was adopted by the people of the State, and is the lawful and established government. It is the decision, therefore, of a State court, whose judicial authority to decide upon the constitution and laws of Rhode Island is not questioned by either party to this controversy, although the government under which it acted was framed and adopted under the sanction and laws of the charter government. "The point, then, raised here has been already decided by the courts of Rhode Island. The question relates, altogether, to the constitution and laws of that State; and the well settled rule in this court is, that the courts of the United States adopt and follow the decisions of the State courts in questions which concern merely the constitution and laws of the State. "Upon what ground could the Circuit Court of United States which tried this case have departed from this rule, and disregarded and overruled the decisions of the courts of Rhode Island? Undoubtedly the courts of the United States have certain powers under the Constitution and laws of the United States which do not government has been lawfully established, which the courts of State disown and repudiate, is not one of them. Upon such a question the courts of the United States are bound to follow the decisions of the State tribunals, and must therefore regard the charter government as the lawful and established government during the time of this contest." 32 It is thus apparent that the context within which the case of Luther v. Borden was decided is basically and fundamentally different from that of the cases at bar. To begin with, the case did not involve a federal question, but one purely municipal in nature. Hence, the Federal Supreme Court was "bound to follow the decisions of the State tribunals" of Rhode Island upholding the constitution adopted under the authority of the charter government. Whatever else was said in that case constitutes, therefore, an obiter dictum. Besides, no decision analogous to that rendered by the State Court of Rhode Island exists in the cases at bar. Secondly, the states of the Union have a measure of internal sovereignty upon which the Federal Government may not encroach, whereas ours is a unitary form of government, under which our local governments derive their authority from the national government. Again, unlike our 1935 Constitution, the charter or organic law of Rhode Island contained no provision on the manner, procedure or conditions for its amendment. Then, too, the case of Luther v. Borden hinged more on the question of recognition of government, than on recognition of constitution, and there is a fundamental difference

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between these two (2) types of recognition, the first being generally conceded to be a political question, whereas the nature of the latter depends upon a number of factors, one of them being whether the new Constitution in force at the time of the purported ratification of the former, which is essentially a justiciable question. There was, in Luther v. Borden, a conflict between two (2) rival governments, antagonistic to each other, which is absent in the present cases. Here, the Government established under the 1935 Constitution is the very same government whose Executive Department has urged the adoption of the new or revised Constitution proposed by the 1971 Constitutional Convention and now alleges that it has been ratified by the people. In short, the views expressed by the Federal Supreme Court in Luther v. Borden, decided in 1849, on matters other than those referring to its power to review decisions of a state court concerning the constitution and government of that state, not the Federal Constitution or Government, are manifestly neither controlling, nor even persuasive in the present cases, having — as the Federal Supreme Court admitted — no authority whatsoever to pass upon such matters or to review decisions of said state court thereon. In fact, referring to that case, the Supreme Court of Minnesota had the following to say:jgc:chanrobles.com.ph "Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always cited by those who assert that the courts have no power to determine questions of a political character. It is interesting historically, but it has not the slightest application to the case at bar. When carefully analyzed, it appears that it merely determines that the federal courts will accept as final and controlling a decision of the highest court of a state upon a question of the construction of the Constitution of the state . . ." 33 Baker v. Carr, 34 cited by respondents, involved an action to annul a Tennessee statute apportioning the seats in the General Assembly among the counties of the State, upon the theory that the legislation violated the equal protection clause. A district court dismissed the case upon the ground, among others, that the issue was a political one, but, after a painstaking review of the jurisprudence on the matter, the Federal Supreme Court reversed the appealed decision and held that said issue was justiciable and non-political, inasmuch as: ". . . (d)eciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution . . ."cralaw virtua1aw library Similarly, in Powell v. McCormack, 35 the same Court, speaking through then Chief Justice Warren, reversed a decision of the Court of Appeals of New York affirming that of a Federal District Court, dismissing Powell’s action for a declaratory judgment declaring thereunder that he — whose qualifications were uncontested — had been unlawfully excluded from the 90th Congress of the U.S. Said dismissal was predicated upon the ground, inter alia, that the issue was political, but the Federal Supreme Court held that it was clearly a justiciable one. The Supreme Court of Minnessota undertook a careful review of American jurisprudence on the matter. Owing to the lucidity of its appraisal thereof, We append the same to this opinion as Annex A thereof. After an exhaustive analysis of the cases on this subject, the Court concluded:jgc:chanrobles.com.ph "The authorities are thus practically uniform in holding that whether a constitutional

amendment has been properly adopted according to the requirements of an existing Constitution is a judicial question. There can be little doubt that the consensus of judicial opinion is to the effect that it is the absolute duty of the judiciary to determine whether the Constitution has been amended in the manner required by the Constitution, unless a special tribunal has been created to determine the question; and even then many of the courts hold that the tribunal cannot be permitted to illegally amend the organic law . . ." 36 In the light of the foregoing, and considering that Art. XV of our 1935 Constitution prescribes the method or procedure for its amendment, it is clear to my mind that the question whether or not the revised Constitution drafted by the 1971 Constitutional Convention has been ratified in accordance with said Art. XV is a justiciable one and non-political in nature, and that it is not only subject to judicial inquiry, but, also, that it is the Court’s bounden duty to decide such question. The Supreme Court of the United States has meaningfully postulated that "the courts cannot reject as ‘no law suit’" — because it allegedly involves a political question — "a bona fide controversy as to whether some action denominated ‘political’ exceeds constitutional authority.’" 37 III

Has the proposed new or revised Constitution been ratified conformably to said Art. XV of the 1935 Constitution? Petitioners in L-36142 maintain the negative view, upon the ground: 1) that the President "is without authority to create the Citizens’ Assemblies" through which, respondents maintain, the proposed new Constitution has been ratified; 2) that said Assemblies "are without power to approve the proposed Constitution" ; 3) that the President "is without power to proclaim the ratification by the Filipino people of the proposed Constitution" ; and 4),that "the election held (in the Citizens’ Assemblies) to ratify the proposed Constitution was not a free election, hence null and void."cralaw virtua1aw library Apart from substantially reiterating these grounds support of said negative view, the petitioners in L-36164 contend: 1) that the President "has no power to call a plebiscite for the ratification or rejection" of the proposed Constitution or "to appropriate funds for the holding of said plebiscite" ; 2) that the proposed new or revised Constitution "is vague and incomplete," as well as "contains provisions which are beyond the powers of the 1971 Convention to enact," thereby rendering it "unfit for . . . submission to the people;" 3) that" (t)he period of time between November 30, 1972 when the 1972 draft was approved and January 11-15, 1973," when the Citizens’ Assemblies supposedly ratified said draft, "was too short, worse still, there was practically no time for the Citizens’ Assemblies to discuss the merits of the Constitution which the majority of them have not read and which they never knew would be submitted to them for ratification until they were asked the question — ‘do you approve of the New Constitution?’ during the said days of the voting" ; and that" (t)here was altogether no freedom of discussion and no opportunity to concentrate on the matter submitted to them when the 1972 draft was supposedly submitted to the Citizens’ Assemblies for ratification."cralaw virtua1aw library Petitioner in L-36236 added, as arguments in support of the negative view, that: 1)" (w)ith a government-controlled press, there can never be a fair and proper submission of the proposed Constitution to the people" ; and 2) Proclamation No. 1102 is null and void" (i)nasmuch as the

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ratification process" prescribed "in the 1935 Constitution was not followed."cralaw virtua1aw library Besides adopting substantially some of the grounds relied upon by the petitioners in the above mentioned cases, the petitioners in L-36283 argue that" (t)he creation of the Citizens’ Assemblies as the vehicle for the ratification of the Constitution was a deception upon the people since the President announced the postponement of the January 15, 1973 plebiscite to either February 19 or March 5, 1973." 38 The reasons adduced by the petitioners in L-36165 in favor of the negative view have already been set forth earlier in this opinion. Hence, it is unnecessary to reproduce them here. So it is, with respect to the positions taken in L-36165 by counsel for therein respondents Gil J. Puyat and Jose Roy — although more will be said later about them — and by the Solicitor General, on behalf of the other respondents in that case and the respondents in the other cases. 1. What is the procedure prescribed by the 1935 Constitution for its amendment? Under section 1 of Art. XV of said Constitution, three (3) steps are essential, namely:chanrob1es virtual 1aw library 1. That the amendments to the Constitution be proposed either by Congress or by a convention called for that purpose, "by a vote of three-fourths of all the Members of the Senate and the House of Representatives voting separately," but "in joint session assembled" ; 2. That such amendments be "submitted to the people for their ratification" at an "election" ; and 3. That such amendments be "approved by a majority of the votes cast" in said election. Compliance with the first requirement is virtually conceded, although the petitioners in L36164 question the authority of the 1971 Constitutional Convention to incorporate certain provisions into the draft of the new or revised Constitution The main issue in these five (5) cases hinges, therefore, on whether or not the last two (2) requirements have been complied with. 2. Has the contested draft of the new or revised Constitution been "submitted to the people for their ratification" conformably to Art. XV of the Constitution? In this connection, other provisions of the 1935 Constitution concerning "elections" must, also, be taken into account, namely, section 1 of Art. V and Art. X of said Constitution. The former reads:jgc:chanrobles.com.ph "Section 1. Suffrage may be exercised by male citizens of the Philippines not otherwise disqualified by law, who are twenty-one years of age or over and are able to read and write, and who shall have resided in the Philippines for one year and in the municipality wherein they propose to vote for at least six months preceding the election. The National Assembly shall extend the right of suffrage to women, if in a plebiscite which shall be held for that purpose within two years after the adoption of this Constitution, not less than three hundred thousand women possessing the necessary qualifications shall vote affirmatively on the question."cralaw virtua1aw library

Sections 1 and 2 of Art. X of the Constitution ordain in part:jgc:chanrobles.com.ph "Section 1. There shall be an independent Commission on Elections composed of a Chairman and two other Members to be appointed by the President with the consent of the Commission on Appointments, who shall hold office for a term of nine years and may not be reappointed . . . "x

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"Sec. 2. The Commission on Elections shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections and shall exercise all other functions which may be conferred upon it by law. It shall decide, save those involving the right to vote, all administrative questions, affecting elections, including the determination of the number and location of polling places, and the appointment of election inspectors and of other election officials. All law enforcement agencies and instrumentalities of the Government, when so required by the Commission, shall act as its deputies for the purpose of insuring free, orderly, and honest elections. The decisions, orders, and rulings the Commission shall be subject to review by the Supreme Court. "x

x

x" 39

a. Who may vote in a plebiscite under Art. V of the Constitution? Petitioners maintain that section 1 of Art. V of the Constitution is a limitation upon the exercise of the right of suffrage. They claim that no other persons than "citizen of the Philippines not otherwise disqualified by law, who are twenty-one years of age or over and are able to read and write, and who shall have resided in the Philippines for one year and in the municipality wherein they propose to vote for at least six months preceding the election," may exercise the right of suffrage in the Philippines. Upon the other hand, the Solicitor General contends that said provision merely guarantees the right of suffrage to persons possessing the aforementioned qualifications and none of the disqualifications, prescribed by law, and that said right may be vested by competent authorities in persons lacking some or all of the aforementioned qualifications, and possessing some of the aforesaid disqualifications. In support of this view, he invokes the permissive nature of the language —" (s)uffrage may be exercised" — used in section 1 of Art. V of the Constitution, and the provisions of the Revised Barrio Charter, Republic Act No. 3590, particularly sections 4 and 6 thereof, providing that citizens of the Philippines "eighteen years of age or over," who are registered in the list of barrio assembly members, shall be members thereof and may participate as such in the plebiscites prescribed in said Act. I cannot accept the Solicitor General’s theory. Art. V of the Constitution declares who may exercise the right of suffrage, so that those lacking the qualifications therein prescribed may not exercise such right. This view is borne out by the records of the Constitutional Convention that drafted the 1935 Constitution. Indeed, section 1 of Art. V of the 1935 Constitution was largely based on the report of the committee on suffrage of the Convention that drafted said Constitution, which report was, in turn, "strongly influenced by the election laws then in force in the Philippines . . ." 40 Said committee had recommended: 1) "That the right of suffrage should be exercised only by male citizens of the Philippines." 2) "That it should be limited to those who could read and write." 3) "That the duty to vote should be made obligatory." It appears that the first recommendation was discussed extensively in the Convention, and that, by way of compromise, it was eventually agreed to include, in section 1 of Art. V of the Constitution, the second sentence thereof imposing upon the National Assembly, established by

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the original Constitution — instead of the bicameral Congress subsequently created by amendment of said Constitution — the duty to "extend the right of suffrage to women, if in a plebiscite to be held for that purpose within two years after the adoption of this Constitution, not less than three hundred thousand women possessing the necessary qualifications shall vote affirmatively on the question." 41 The third recommendation on "compulsory" voting was, also, debated upon rather extensively, after which it was rejected by the Convention. 42 This accounts, in my opinion, for the permissive language used in the first sentence of said Art. V. Despite some debates on the age qualification — amendments having been proposed to reduce the same to 18 or 20, which were rejected, and the residence qualification, as well as the disqualifications to the exercise of the right of suffrage — the second recommendation limiting the right of suffrage who could "read and write" was — in the language of Dr. Jose M. Aruego, one of the Delegates to said Convention — "readily approved in the Convention without any dissenting vote," although there was some debate on whether the Fundamental Law should specify the language or dialect that the voter could read and write, which was decided in the negative. 43 What is relevant to the issue before Us is the fact that the constitutional provision under consideration was meant to be and is a grant or conferment of a right to persons possessing the qualifications and none of the disqualifications therein mentioned, which in turn, constitute a limitation of or restriction to said right, and cannot, accordingly, be dispensed with, except by constitutional amendment. Obviously, every such constitutional grant or conferment of a right is necessarily a negation of the authority of Congress or of any other branch of the Government to deny said right to the subject of the grant — and, in this sense only, may the same partake of the nature of a guarantee. But, this does not imply not even remotely, that the Fundamental Law allows Congress or anybody else to vest in those lacking the qualifications and having the disqualifications mentioned in the Constitution the right of suffrage. At this juncture, it is noteworthy that the committee on suffrage responsible for the adoption of section 1 of Art. V of the Constitution was "strongly influenced by the election laws then in force in the Philippines." Our first Election Law was Act 1582, passed on January 9, 1907, which was partly amended by Acts 1669, 1709, 1726 and 1768, and incorporated into the Administrative Code of 1916 — Act 2657 — as chapter 20 thereof, and then in the Administrative Code of 1971 — Act 2711 — as chapter 18 thereof, which, in turn, was amended by Act 3387, approved on December 3, 1927. Sections 431 and 432 of said Code of 1917, prescribing, respectively, the qualifications for and disqualifications from voting, are quoted below. 44 In all of these legislative acts, the provisions concerning the qualifications of voters partook of the nature of a grant or recognition of the right of suffrage, and. hence, of a denial thereof to those who lacked the requisite qualifications and possessed any of the statutory disqualifications. In short, the history of section 1, Art. V of the Constitution, shows beyond doubt that the same conferred — not guaranteed — the authority to exercise the right of suffrage to persons having the qualifications prescribed therein and none of the disqualifications to be specified in ordinary laws and, by necessary implication, denied such right to those lacking any of said qualifications or having any of the aforementioned disqualifications. This view is further bolstered by the fact that the 1971 Constitutional Convention sought the submission to a plebiscite of a "partial amendment" to said section 1 of Art. V of the 1935 Constitution, by reducing the voting age from twenty-one (21) years to eighteen (18) years, which, however, did not materialize on account of the decision of this Court in Tolentino v. Commission on Elections, 45 granting the writs of prohibition and injunction therein applied for,

upon the ground that, under the Constitution, all of the amendments adopted by the Convention should be submitted in "an election" or a single election, not separately or in several or distinct elections, and that the proposed amendment sought to be submitted to a plebiscite was not even a complete but a "partial amendment" of said section 1, which could be amended further, after its ratification had the same taken place, so that the aforementioned partial amendment was, for legal purposes, no more than a provisional or temporary amendment. Said partial amendment was predicated upon the generally accepted contemporary construction that, under the 1935 Constitution, persons below twenty-one (21) years of age could not exercise the right of suffrage, without a previous amendment of the Constitution. Upon the other hand, the question, whether 18-year-old members of barrio assemblies may vote in barrio as plebiscites is, to say the least, a debatable one. Indeed, there seems to be a conflict between the last paragraph of said section 6 of Rep. Act No. 3590, 46 pursuant to which the "majority vote of all the barrio assembly members" (which include all barrio residents 18 years of age or over, duly registered in the list of barrio assembly members) is necessary for the approval, in an assembly plebiscite, of "any budgetary, supplemental appropriations or special tax ordinances," whereas, according to the paragraph preceding the penultimate one of said section, 47" (a)ll duly registered barrio assembly members qualified to vote" — who, pursuant to section 10 of the same Act, must be citizens "of the Philippines, twenty-one years of age or over, able to read and write," and residents of the barrio "during the six months immediately preceding the election, duly registered in the list of voters" and "not otherwise disqualified . . ." — just like the provisions of the present and past election codes of the Philippines and Art. V of the 1935 Constitution — "may vote in the plebiscite."cralaw virtua1aw library I believe, however, that the apparent conflict should be resolved in favor of the 21-year-old members of the assembly, not only because this interpretation is in accord with Art. V of the Constitution, but, also, because provisions of a Constitution — particularly of a written and rigid one, like ours — are generally accorded a mandatory status — unless the intention to the contrary is manifest, which is not so as regards said Art. V — for otherwise they would not have been considered sufficiently important to be included in the Fundamental Law of the land. 48 Besides, it would be illogical, if not absurd, to believe that Republic Act No. 3590 requires, for the most important measures for which it demands — in addition to the favorable action of the barrio council — the approval of the barrio assembly through a plebiscite, lesser qualifications than those prescribed in dealing with ordinary measures for which such plebiscite need not be held. It is similarly inconceivable that those who drafted the 1935 Constitution intended section 1 of Art. V thereof to apply only to elections of public officers, not to plebiscites for the ratification of amendments to the Fundamental Law or a revision thereof, or of an entirely new Constitution, and to permit the legislature to require lesser qualifications for such ratification, notwithstanding the fact that the subject thereof is much more important — if not fundamental, such as the basic changes introduced in the draft of the revised Constitution adopted by the 1971 Constitutional Convention, which are intended to be in force permanently, or, at least, for many decades, and to affect the way of life of the nation — and, accordingly demands greater experience and maturity on the part of the electorate than that required for the election of public officers, 49 whose average term ranges from 2 to 6 years. It is admitted that persons 15 years of age or over, but below 21 years, regardless of whether or not they possessed the other qualifications laid down in both the Constitution and the present Election Code, 50 and of whether or not they are disqualified under the provisions of

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said Constitution and Code, 51 or those of Republic Act No. 3590, 52 have participated and voted in the Citizens’ Assemblies that have allegedly ratified the new or revised Constitution drafted by the 1971 Constitutional Convention. In fact, according to the latest official data, the total number of registered voters 21 years of age or over in the entire Philippines, available in January 1973, was less than 12 million. Yet, Proclamation No. 1102 states that 14,976,561 "members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed Constitution, as against . . . 743,869 who voted for its rejection," whereas, on the question whether or not the people still wanted a plebiscite to be called to ratify the new Constitution,." . . 14,298,814 answered that there was no need for a plebiscite and that the vote of the Barangays (Citizens Assemblies) should be considered as a vote in a plebiscite." In other words, it is conceded that the number of people who allegedly voted at the Citizens’ Assemblies for exceeded the number of registered voters under the Election Code in force in January 1973. It is thus clear that the proceedings held in such Citizens’ Assemblies — and We have more to say on this point in subsequent pages — were fundamentally irregular, in that persons lacking the qualifications prescribed in section 1 of Art. V of the Constitution were allowed to vote in said Assemblies. And, since there is no means by which the invalid votes of those less than 21 years of age can be separated or segregated from those of the qualified voters, the proceedings in the Citizens’ Assemblies must be considered null and void. 53 It has been held that" (t)he power to reject an entire poll . . . should be exercised . . . in a case where it is impossible to ascertain with reasonable certainty the true vote," as where "it is impossible to separate the legal votes from the illegal or spurious . . ." 54 In Usman v. Commission on Elections, Et Al., 55 We held:jgc:chanrobles.com.ph "Several circumstances, defying exact description and dependent mainly on the factual milieu of the particular controversy, have the effect of destroying the integrity and authenticity of disputed election returns and of avoiding their prima facie value and character. If satisfactorily proven, although in a summary proceeding, such circumstances as alleged by the affected or interested parties, stamp the election returns with the indelible mark of falsity and irregularity, and, consequently, of unreliability, and justify their exclusion from the canvass."cralaw virtua1aw library Then, too, the 1935 Constitution requires "a majority of the votes cast" for a proposed amendment to the Fundamental Law to be "valid" as part thereof, and the term "votes cast" has a well-settled meaning. "The term ‘votes cast’ . . . was held in Smith v. Renville County Commissioners, 65 N.W. 956, 64 Minn. 16, to have been used as an equivalent of ‘ballots cast.’" 56 "The word ‘cast’ is defined as ‘to deposit formally or officially.’" 57 "It seems to us that a vote is cast when a ballot is deposited indicating a ‘choice.’ . . . The word ‘cast’ means ‘deposit (a ballot) formally or officially . . .’ ". . . In simple words, we would define a ‘vote cast’ as the exercise on a ballot of the choice of the voter on the measure proposed." 58

In short, said Art. XV envisages — with the term "votes cast" — choices made on ballots — not orally or by raising hands — by the persons taking part in plebiscites. This is but natural and logical, for, since the early years of the American regime, we had adopted the Australian Ballot System, with its major characteristics, namely, uniform official ballots prepared and furnished by the Government and secrecy in the voting, with the advantage of keeping records that permit judicial inquiry, when necessary, into the accuracy of the election returns. And the 1935 Constitution has been so consistently interpreted in all plebiscites for the ratification or rejection of proposed amendments thereto, from 1935 to 1967. Hence, the viva voce voting in the Citizens’ Assemblies was and is null and void ab initio. b. How should the plebiscite be held? (COMELEC supervision indispensable; essential requisites) Just as essential as compliance with said Art. V of the 1935 Constitution is that of Art. X thereof, particularly its sections 1 and 2. Indeed, section 1 provides that" (t)here shall be an independent Commission on Elections . . ." The point to be stressed here is the term "independent." Indeed, why was the term used? In the absence of said constitutional provision as to the independence of the Commission, would it have been dependent upon either Congress or the Judiciary? The answer must be in the negative, because the functions of the Commission — "enforcement and administration" of election laws — are neither legislative nor judicial in nature, and, hence, beyond the field allocated to either Congress or courts of justice. Said functions are by their nature essentially executive, for which reason, the Commission would be under the "control" of the President, pursuant to section 10, paragraph (1) of Art. VII of the Constitution, if Art. X thereof did not explicitly declare that it (the Commission) is an "independent" body. In other words, in amending the original 1935 Constitution, by inserting therein said Art. X, on the Commission on Elections, the purpose was to make said Commission independent principally of the Chief Executive. And the reason therefor is, also, obvious. Prior to the creation of the Commission on Elections as a constitutional organ, election laws in the Philippines were enforced by the then Department of the Interior, through its Executive Bureau, one of the offices under the supervision and control of said Department. The same — like other departments of the Executive Branch of the Government — was, in turn, under the control of the Chief Executive, before the adoption of the 1935 Constitution, and had been — until the abolition of said Department, sometime ago — under the control of the President of the Philippines, since the effectivity of said Fundamental Law. Under the provisions thereof, the Executive could so use his power of control over the Department of the Interior and its Executive Bureau as to place the minority party at such a great, if not decisive, disadvantage, as to deprive it, in effect, of the opportunity to defeat the political party in power, and, hence, to enable the same to perpetuate itself therein. To forestall this possibility, the original 1935 Constitution was amended by the establishment of the Commission on Elections as a constitutional body independent primarily of the President of the Philippines. The independence of the Commission was sought to be strengthened by the long term of office of its members — nine (9) years, except those first appointed 59 — the longest under the Constitution, second only to that of the Auditor General 60; by providing that they may not be removed from office except by impeachment, placing them, in this respect, on the same plane as the President, the Vice-President, the Justices of the Supreme Court and the Auditor General; that they may not be reappointed; that their salaries "shall be neither increased nor

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diminished during their term of office" ; that the decisions of the Commission "shall be subject to review by the Supreme Court" only 61; that" (n)o pardon, parole, or suspension of sentence for the violation of any election law may be granted without the favorable recommendation of the Commission" 62; and that its chairman and members "shall not, during their continuance in office, engage in the practice of any profession, or intervene, directly or indirectly, in the management or control of any private enterprise which in anyway may be affected by the functions of their office; nor shall they, directly or indirectly, be financially interested in any contract with the Government or any subdivision or instrumentality thereof." 63 Thus, the framers of the amendment to the original Constitution of 1935 endeavored to do everything possible to protect and insure the independence of each member of the Commission. With respect to the functions thereof as a body, section 2 of said Art. X ordains that" (t)he Commission on Elections shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections," apart from such other "functions which may be conferred upon it by law." It further provides that the Commission "shall decide, save those involving the right to vote, all administrative questions, affecting elections, including the determination of the number and location of polling places, and the appointment of election inspectors and of other election officials." And, to forestall possible conflicts or frictions between the Commission, on the one hand, and the other offices or agencies of the executive department, on the other, said section 2 postulates that" (a)ll law enforcement agencies and instrumentalities of the Government, when so required by the Commission, shall act as its deputies for the purpose of insuring free, orderly, and honest elections." Not satisfied with this, it declares, in effect, that" (t)he decisions, orders, and rulings of the Commission" shall not be subject to review, except by the Supreme Court. In accordance with the letter and spirit of said Art. X of the Constitution, Rep. Act No. 6388, otherwise known as Election Code of 1971, implements the constitutional powers of the Commission on Elections and grants additional powers thereto, some of which are enumerated in sections 5 and 6 of said Act, quoted below. 64 Moreover, said Act contains, inter alia, detailed provisions regulating contributions and other (corrupt) practices; the establishment of election precincts; the designation and arrangement of polling places, including voting booths, to protect the secrecy of the ballot; the formation of lists of voters, the identification and registration of voters, the proceedings therefor, as well as for the inclusion in, or exclusion or cancellation from said list and the publication thereof; the establishment of municipal, provincial and national files of registered voters; the composition and appointment of boards of election inspectors; the particulars of the official ballots to be used and the precautions to be taken to insure the authenticity thereof; the procedure for the casting of votes; the counting of votes by boards of inspectors; the rules for the appreciation of ballots and the preparation and disposition of election returns; the constitution and operation of municipal, provincial and national boards of canvassers; the representation of political parties and/or their candidates in each election precinct; the proclamation of the results, including, in the case of election of public officers, election contests; and the jurisdiction of courts of justice in cases of violations of the provisions of said Election Code and penalties for such violations. Few laws may be found with such a meticulous and elaborate set of provisions aimed at "insuring free, orderly, and honest elections," as envisaged in section 2 of Art. X of the Constitution. Yet, none of the foregoing constitutional and statutory provisions was followed by the so-called Barangays or Citizens’ Assemblies. And no reasons have been given, or even sought to be given therefor. In many, if not most, instances, the elections were held a viva voce, thus depriving the electorate of the right to vote secretly — one of the most fundamental and critical features of our election laws from time immemorial — particularly at a

time when the same was of utmost importance, owing to the existence of Martial Law. In Glenn v. Gnau, 65 involving the casting of many votes, openly, without complying with the requirements of the law pertinent thereto, it was held that the "election officers" involved "cannot be too strongly condemned" therefor and that if they ‘could legally dispense with such requirement xxx they could with equal propriety dispense with all of them, including the one that the vote shall be by secret ballot, or even by ballot at all . . ."cralaw virtua1aw library Moreover, upon the formal presentation to the Executive of the proposed Constitution drafted by the 1971 Constitutional Convention, or on December 1, 1972, Presidential Decree No. 73 (on the validity of which — was contested in the plebiscite cases, as well as in the 1972 habeas corpus case 66 — We need not, in the cases at bar, express any opinion) was issued, calling a plebiscite, to be held on January 15, 1973, at which the proposed Constitution would be submitted to the people for ratification or rejection; directing the publication of said proposed Constitution; and declaring, inter alia, that" (t)he provisions of the Election Code of 1971, insofar as they are not inconsistent" with said decree — excepting those "regarding rights and obligations of political parties and candidates" — "shall apply to the conduct of the plebiscite." Indeed, section 2 of said Election Code of 1971 provides that" (a)ll elections of public officers except barrio officials and plebiscites shall be conducted in the manner provided by this Code." General Order No. 20, dated January 7, 1973, postponing, until further notice, "the plebiscite scheduled to be held on January 15, 1973," said nothing about the procedure to be followed in the plebiscite to take place at such notice, and no other order or decree has been brought to Our attention, expressly or impliedly repealing the provisions of Presidential Decree No. 73, insofar as said procedure is concerned. Upon the other hand, said General Order No. 20 expressly suspended "the provisions of Section 3 of Presidential Decree No. 73 insofar as they allow free public discussion of the proposed Constitution . . . temporarily suspending the effects of Proclamation No. 1081 for the purposes of free and open debate on the proposed Constitution . . ." This specific mention of the portions of the decrees or orders or instructions suspended by General Order No. 20 necessarily implies that all other portions of said decrees, orders or instructions — and, hence, the provisions of Presidential Decree No. 73 outlining the procedure to be followed in the plebiscite for the ratification or rejection of the proposed Constitution — remained in force, assuming that said Decree is valid. It is claimed that by virtue of Presidential Decree No. 86-A — the text of which is quoted below 67 — the Executive declared, inter alia, that the collective views expressed in the Citizens’ Assemblies "shall be considered in the formulation of national policies or programs and, wherever practicable, shall be translated into concrete and specific decision" ; that such Citizens’ Assemblies "shall consider vital national issues . . . like the holding of the plebiscite on the new Constitution . . . and others in the future, which shall serve as guide or basis for action or decision by the national government" ; and that the Citizens’ Assemblies "shall conduct between January 10 and 15, 1973, a referendum on important national issues, including those specified in paragraph 2 hereof, and submit the results thereof to the Department of Local Governments and Community Development immediately thereafter, . . ." As in Presidential Decree No. 86, this Decree No. 86-A does not and cannot exclude the exercise of the constitutional supervisory power of the Commission on elections or its participation in the proceedings in said Assemblies, if the same had been intended to constitute the "election" or plebiscite required in Art. V of the 1935 Constitution. The provision of Presidential Decree No. 86-A directing the immediate submission of the result thereof to the Department of Local Governments and Community Development is not necessarily inconsistent with, and must be

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subordinate to the constitutional power of the Commission on Elections to exercise its "exclusive" authority over the "enforcement and administration of all laws relative to the conduct of elections," if the proceedings in the Assemblies would partake of the nature of an "election" or plebiscite for the ratification or rejection of the proposed Constitution. We are told that Presidential Decree No. 86 was further amended by Presidential Decree No. 86-B, dated January 7, 1973, ordering "that important national issues shall from time to time be referred to the Barangays (Citizens Assemblies) for resolution in accordance with Presidential Decree No. 86-A dated January 5, 1973 and that the initial referendum shall include the matter of ratification of the Constitution proposed by the 1971 Constitutional Convention" and that" (t)he Secretary of the Department of Local Governments and Community Development shall insure the implementation of this order." As in the case of Presidential Decrees Nos. 86 and 86-A, the foregoing directives do not necessarily exclude the exercise of the powers vested by the 1935 Constitution in the Commission on Elections, even if the Executive had the authority to repeal Art. X of our Fundamental Law — which he does not possess. Copy of Presidential Decree No. 86-B is appended hereto as Annex B hereof. The point is that, such of the Barrio Assemblies as were held took place without the intervention of the Commission on Elections, and without complying with the provisions of the Election Code of 1971 or even of those of Presidential Decree No. 73. What is more, they were held under the supervision of the very officers and agencies of the Executive Department sought to be excluded therefrom by Art. X of the 1935 Constitution. Worse still, said officers and agencies of the Executive Department, who had been publicly urged and ostensibly promised to work for the ratification of the proposed revised Constitution would be favored thereby, owing to the practically indefinite extension of their respective terms of office in consequence of section 9 of the Transitory Provisions, found in Art. XVII of the proposed Constitution, without any elections therefor. And the procedure therein mostly followed is such that there is no reasonable means of checking the accuracy of the returns filed by the officers who conducted said plebiscites. This is another patent violation of Art. X of the Constitution which can hardly be sanctioned. And, since the provisions of this article form part of the fundamental scheme set forth in the 1935 Constitution, as amended, to insure the "free, orderly, and honest" expression of the people’s will, the aforementioned violation thereof renders null and void the contested proceedings or alleged plebiscite in the Citizens’ Assemblies, insofar as the same are claimed to have ratified the revised Constitution proposed by the 1971 Constitutional Convention.." . . (a)ll the authorities agree that the legal definition of an election, as well as that which is usually and ordinarily understood by the term, is a choosing or a selection by those having a right to participate (in the selection) of those who shall fill the offices, or of the adoption or rejection of any public measures affecting the territory involved. 15 Cyc. 279; Lewis v. Boynton, 25 Colo. 486, 55 Pac. 732; Saunders v. Haynes, 13 Cal. 145; Seaman v. Baughman, 82 Iowa 216, 47 N.W. 1091, 11 L.R.A. 354; State v. Hirsh, 125 Ind. 207, 24 N.E. 1062, 9 L.R.A. 170; Bouvier’s Law Dictionary." 68 IV

Has the proposed Constitution aforementioned been approved by a majority of the people in the Citizen’s Assemblies allegedly held

throughout the Philippines? Respondents maintain the affirmative, relying upon Proclamation No. 1102, the validity of which is precisely being contested by petitioners herein. Respondents claim that said proclamation is "conclusive" upon this Court, or is, at least, entitled to full faith and credence, as an enrolled bill; that the proposed Constitution has been, in fact, ratified, approved or adopted by the "overwhelming" majority of the people; that Art. XV of the 1935 Constitution has thus been "substantially" complied with; and that the Court should refrain from passing upon the validity of Proclamation No. 1102, not only because such question is political in nature, but, also, because should the Court invalidate the proclamation, the former would, in effect, veto the action of the people in whom sovereignty resides and from whom its powers are derived. The major flaw in this process of rationalization is that it assumes, as a fact, the very premise on which it is predicated, and which, moreover, is contested by the petitioners. As the Supreme Court of Minnessota has aptly put it — ". . . every officer under a constitutional government must act according to law and subject to its restrictions, and every departure therefrom or disregard thereof must subject him to the restraining and controlling power of the people, acting through the agency of the judiciary; for it must be remembered that the people act through courts, as well as through the executive or the Legislature. One department is just as representative as the other, and the judiciary is the department which is charged with the special duty of determining the limitations which the law places upon all official action. . . ."cralaw virtua1aw library Accordingly, the issue boils down to whether or not the Executive acted within the limits of his authority when he certified in Proclamation No. 1102 "that the Constitution proposed by the nineteen hundred and seventy-one (1971) Constitutional Convention has been ratified by an overwhelming majority of all of the votes cast by the members of all the Barangays (Citizens Assemblies) throughout the Philippines, and has thereby come into effect."cralaw virtua1aw library In this connection, it is not claimed that the Chief Executive had personal knowledge of the data he certified in said proclamation. Moreover, Art. X of the 1935 Constitution was precisely inserted to place beyond the Executive the power to supervise or even exercise any authority whatsoever over "all laws relative to the conduct of elections," and, hence, whether the elections are for the choice or selection of public officers or for the ratification or rejection of any proposed amendment, or revision of the Fundamental Law, since the proceedings for the latter are, also, referred to in said Art. XV as "elections."cralaw virtua1aw library The Solicitor General stated, in his argument before this Court, that he had been informed that there was in each municipality a municipal association of presidents of the citizens’ assemblies for each barrio of the municipality; that the president of each such municipal association formed part of a provincial or city association of presidents of such municipal associations; that the president of each one of these provincial or city associations in turn formed part of a National Association or Federation of Presidents of such Provincial or City Associations; and that one Francisco Cruz from Pasig, Rizal, as President of said National Association or Federation, reported to the President of the Philippines, in the morning of January 17, 1973, the total result of the voting in the citizens’ assemblies all over the country from January 10 to January 15, 1973. The Solicitor General further intimated that the said municipal associations had reported the results of the citizens’ assemblies in their respective municipalities to the corresponding Provincial Association, which, in turn, transmitted the

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results of the voting in the province to the Department of Local Governments and Community Development, which tabulated the results of the voting in the citizens’ assemblies throughout the Philippines and then turned them over to Mr. Francisco Cruz, as President or acting President of the National Association or Federation, whereupon Mr. Cruz, acting in a ceremonial capacity, reported said results (tabulated by the Department of Local Governments and Community Development) to the Chief Executive, who, accordingly, issued Proclamation No. 1102. The record shows, however, that Mr. Cruz was not even a member of any barrio council since 1972, 80 that he could not possibly have been a member on January 17, 1973, of a municipal association of presidents of barrio or ward citizens’ assemblies, much less of a Provincial, City or National Association or Federation of Presidents of any such provincial or city associations. Secondly, at the conclusion of the hearing of these cases on February 16, 1973, and in the resolution of this Court of the same date, the Solicitor General was asked to submit, together with his notes on his oral argument, a true copy of the aforementioned report of Mr. Cruz to the President and of the" (p)roclamation, decree, instruction, order, regulation or circular, if any, creating or directing or authorizing the creation, establishment or organization" of said municipal, provincial and national associations, but neither a copy of said alleged report to the President, nor a copy of any said" (p)roclamation, decree, instruction, order, regulation or circular," has been submitted to this Court. In the absence of said report," (p)roclamation, decree, instruction," etc., Proclamation No. 1102 is devoid of any factual and legal foundation. Hence, the conclusion is set forth in the dispositive portion of said Proclamation No. 1102, to the effect that the proposed new or revised Constitution had been ratified by the majority of the votes cast by the people, cannot possibly have any legal effect or value. The theory that said proclamation is "conclusive" upon the Court is clearly untenable. If it were, acts of the Executive and those of Congress could not possibly be annulled or invalidated by courts of justice. Yet, such is not the case. In fact, even a resolution of Congress declaring that a given person has been elected President or Vice-President of the Philippines as provided in the Constitution 69 is not conclusive upon the courts. It is no more than prima facie evidence of what is attested to by said resolution. 70 If assailed directly in appropriate proceedings, such as an election protest, if and when authorized by law, as it is in the Philippines, the Court may receive evidence and declare, in accordance therewith, who was duly elected to the office involved. 71 If prior to the creation of the Presidential Electoral Tribunal, no such protest could be filed, it was not because the resolution of Congress declaring those had been elected President or Vice-President was conclusive upon courts of justice, but because there was no law permitting the filing of such protest and declaring what court or body would hear and decide the same. So, too, a declaration to the effect that a given amendment to the Constitution or revised or new Constitution has been ratified by a majority of the votes cast therefor, may be duly assailed in court and be the object of judicial inquiry, in direct proceedings therefor — such as the cases at bar — and the issue raised therein may and should be decided in accordance with the evidence presented. The case of In re McConaughy 72 is squarely in point. "As the Constitution stood from the organization of the state" — of Minnesota — "all taxes were required to be raised under the system known as the ‘general property tax.’ Dissatisfaction with the results of this method and the development of more scientific and satisfactory methods of raising venue induced the Legislature to submit to the people an amendment to the Constitution which provided merely that taxes shall be uniform upon the same class of subjects. This proposed amendment was submitted at the general election held in November, 1906, and in due time it was certified by

the state canvassing board and proclaimed by the Governor as having been legally adopted. Acting upon the assumption that the amendment had become a part of the Constitution, the Legislature enacted statutes providing for a State Tax Commission and a mortgage registry tax, and the latter statute, upon the same theory, was held constitutional" by said Court. "The district court found that the amendment had not in fact been adopted, and on this appeal" the Supreme Court was "required to determine the correctness of that conclusion."cralaw virtua1aw library Referring to the effect of the certification of the State Board of Canvassers created by the Legislature and of the proclamation made by the Governor based thereon, the Court held: "It will be noted that this board does no more than tabulate the reports received from the various county boards and add up and certify the results. State v. Mason, 45 Wash. 234, 88 Pac. 126, 9 L.R.A. (U.S.) 1221. It is settled law that the decisions of election officers, and canvassing boards are not conclusive and that the final decision must rest with the courts, unless the law declares that the decisions of the board shall be final" — and there is no such law in the cases at bar.." . . The correctness of the conclusion of the state board rests upon the correctness of the returns made by the county boards and it is inconceivable that it was intended that this statement of result should be final and conclusive regardless of the actual facts. The proclamation of the Governor adds nothing in the way of conclusiveness to the legal effect of the action of the canvassing board. Its purpose is to formally notify the people of the state of the result of the voting as found by the canvassing board. James on Const. Conv. (4th Ed.) sec. 523."cralaw virtua1aw library In Bott v. Wartz, 73 the Court reviewed the statement of results of the election made by the canvassing board, in order that the true results could be judicially determined. And so did the court in Rice v. Palmer. 74 Inasmuch as Art. X of the 1935 Constitution places under the "exclusive" charge of the Commission on Elections, "the enforcement and administration of all laws relative to the conduct of elections," independently of the Executive, and there is not even a certification by the Commission in support of the alleged results of the citizens’ assemblies relied upon in Proclamation No. 1102 — apart from the fact that on January 17, 1973 neither the alleged president of the Federation of Provincial or City Barangays nor the Department of Local Governments had certified to the President of the alleged result of the citizen’s assemblies all over the Philippines — it follows necessarily that, from a constitutional and legal viewpoint, Proclamation No. 1102 is not even prima facie evidence of the alleged ratification of the proposed Constitution. Referring particularly to the cases before Us, it will be noted that, as pointed out in the discussion of the preceding topic, the new or revised Constitution proposed by the 1971 Constitutional Convention was not ratified in accordance with the provisions of the 1935 Constitution. In fact, it has not even been ratified in accordance with said proposed Constitution, the minimum age requirement therein for the exercise of the right of suffrage being eighteen (18) years, apart from the fact that Art. VI of the proposed Constitution requires "secret" voting, which was not observed in many, if not most, Citizens’ Assemblies. Besides, both the 1935 Constitution and the proposed Constitution require a "majority of the votes cast" in an election or plebiscite called for the ratification of an amendment or revision of the first Constitution or the effectivity of the proposed Constitution, and the phrase "votes cast" has been construed to mean "votes made in writing," not orally, as it was in many Citizens’ Assemblies. 75

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Even counsel for Gil J. Puyat and Jose Roy, as respondents in L-36165, asserts openly that Art. XV of the Constitution has not been complied with, and since the alleged substantial compliance with the requirements thereof partakes of the nature of a defense set up by the other respondents in these cases, the burden of proving such defense — which, if true, should be within their peculiar knowledge — is clearly on such respondents. Accordingly, if despite the extensive notes and documents submitted by the parties herein, the members of the Court do not know or are not prepared to say whether or not the majority of the people or of those who took part in the Citizens’ Assemblies have assented to the proposed Constitution, the logical step would be to give due course to these cases, require the respondents to file their answers, and the plaintiffs their reply, and, thereafter, to receive the pertinent evidence and then proceed to the determination of the issues raised thereby. Otherwise, we would be placing upon the petitioners the burden of disproving a defense set up by the respondents, who have not so far established the truth of such defense. Even more important, and decisive, than the foregoing is the circumstance that there is ample reason to believe that many, if not most, of the people did not know that the Citizens’ Assemblies were, at the time they were held, plebiscites for the ratification or rejection of the proposed Constitution. Hence, in Our decision in the plebiscite cases, We said, inter alia:jgc:chanrobles.com.ph "Meanwhile, or on December 17, 1972, the President had issued an order temporarily suspending the effects of Proclamation No. 1081, for the purpose of free and open debate on the Proposed Constitution. On December 23, the President announced the postponement of the plebiscite for the ratification or rejection of the Proposed Constitution. No formal action to this effect was taken until January 7, 1973, when General Order No. 20 was issued, directing ‘that the plebiscite scheduled to be held on January 15, 1973, he postponed until further notice.’ Said General Order No. 20, moreover, ‘suspended in the meantime’ the ‘order of December 17, 1972, temporarily suspending the effects of Proclamation No. 1081 for purposes of free and open debate on the proposed Constitution.’ "In view of these events relative to the postponement of the aforementioned plebiscite, the Court deemed it fit to refrain, for the time being, from deciding the aforementioned cases, for neither the date nor the conditions under which said plebiscite would be held were known or announced officially. Then again, Congress was, pursuant to the 1935 Constitution, scheduled to meet in regular session on January 22, 1973,and since the main objection to Presidential Decree No. 73 was that the President does not have the legislative authority to call a plebiscite and appropriate funds therefor, which Congress unquestionably could do, particularly in view of the formal postponement of the plebiscite by the President — reportedly after consultation with, among others, the leaders of Congress and the Commission on Elections — the Court deemed it more imperative to defer its final action on these cases."cralaw virtua1aw library And, apparently, the parties in said cases entertained the same belief, for, on December 23, 1972 — four (4) days after the last hearing of said cases 76 — the President announced the postponement of the plebiscite scheduled by Presidential Decree No. 73 to be held on January 15, 1973, after consultation with the Commission on Elections and the leaders of Congress, owing to doubts on the sufficiency of the time available to translate the proposed Constitution into some local dialects and to comply with some pre-electoral requirements, as well as to afford the people a reasonable opportunity to be posted on the contents and implications of said transcendental document. On January 7, 1973, General Order No. 20 was issued formally, postponing said plebiscite "until further notice." How can said postponement be reconciled with

the theory that the proceedings in the Citizens’ Assemblies scheduled to be held from January 10, to January 15, 1973, were "plebiscites," in effect, accelerated, according to the theory of the Solicitor General, for the ratification of the proposed Constitution? If said Assemblies were meant to be the plebiscites or elections envisaged in Art. XV of the Constitution, what, then, was the "plebiscite" postponed by General Order No. 20? Under these circumstances, it was only reasonable for the people who attended such assemblies to believe that the same were not an "election" or plebiscite for the ratification or adoption of said proposed Constitution. And, this belief is further bolstered up by the questions propounded in the Citizens’ Assemblies, namely:jgc:chanrobles.com.ph " [1] Do you like the New Society?

than one plebiscite could be held for the ratification or rejection of the proposed Constitution. In short, the insertion of said two (2) questions — apart from the other questions adverted to above — indicates strongly that the proceedings therein did not partake of the nature of a plebiscite or election for the ratification or rejection of the proposed Constitution. Indeed, I can not, in good conscience, declare that the proposed Constitution has been approved or adopted by the people in the citizens’ assemblies all over the Philippines, when it is, to my mind, a matter of judicial knowledge that there have been no such citizens’ assemblies in many parts of Manila and suburbs, not to say, also, in other parts of the Philippines. In a letter of Governor Efren B. Pascual of Bataan, dated January 15, 1973, to the Chief Executive, the former reported:jgc:chanrobles.com.ph

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

". . . This report includes a resume (sic) of the activities we undertook in effecting the referendum on the eleven questions you wanted our people consulted on and the Summary of Results thereof for each municipality and for the whole province.

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

"x

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

". . . Our initial plans and preparations, however, dealt only on the original five questions. Consequently, when we received an instruction on January 10 to change the questions, we urgently suspended all scheduled Citizens’ Assembly meetings on that day and called all Mayors, Chiefs of Offices and other government officials to another conference to discuss with them the new set of guidelines and materials to be used.

" [5] Do you like the way President Marcos is running the affairs of the government? [Bulletin Today, January 10, 1973; additional question italics.] " [6] Do you approve of the citizens assemblies as the base of popular government to decide issues of national interests? " [7] Do you approve of the new Constitution? " [8] Do you want a plebiscite to be called to ratify the new Constitution? " [9] Do you want the elections to be held in November, 1973 in accordance with the provisions of the 1935 Constitution?

x

x

"On January 11, . . . another instruction from the top was received to include the original five questions among those to be discussed and asked in the Citizens’ Assembly meetings. With this latest order, we again had to make modifications in our instructions to all those managing and supervising the holding of the Citizens’ Assembly meetings throughout the province . . . Aside from the coordinators we had from the Office of the Governor, the splendid cooperation and support extended by almost all government officials and employees in the province, particularly of the Department of Education, PC and PACD personnel, provided us with enough hands to trouble shoot and implement sudden changes in the instructions anytime and anywhere needed . ..

" [10] If the elections would not be held, when do you want the next elections to be called? " [11] Do you want martial law to continue?" [Bulletin Today, January 11, 1973] To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11 are not proper in a plebiscite for the ratification of a proposed Constitution or of a proposed amendment thereto. Secondly, neither is the language of question No. 7 — "Do you approve of the new Constitution?" One approves "of" the act of another, which does not need such approval for the effectivity of said act, which the first person, however, finds to be good, wise or satisfactory. The approval of the majority of the votes cast in a plebiscite is, however, essential for an amendment to the Constitution to be valid as part thereof. Thirdly, if the proceedings in the Citizens’ Assemblies constituted a plebiscite, question No. 8 would have been unnecessary and improper, regardless of whether question No. 7 were answered affirmatively or negatively. If the majority of the answers to question No. 7 were in the affirmative, the Constitution would have become effective and no other plebiscite could be held thereafter in connection therewith, even if the majority of the answers to question No. 8 were, also, in the affirmative. If the majority of the answers to question No. 7 were in the negative, neither may another plebiscite be held, even if the majority of the answers to question No. 8 were in the affirmative. In either case, not more

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". . . As to our people, in general, their enthusiastic participation showed their preference and readiness to accept this new method of government to people consultation in shaping up government policies."cralaw virtua1aw library Thus, as late as January 10, 1973, the Bataan officials had to suspend "all scheduled Citizens’ Assembly meetings . . ." and call all available officials." . . to discuss with them the new set of guidelines and materials to be used . . ." Then, "on January 11 . . . another instruction from the top was received to include the original five questions among those to be discussed and asked in the Citizens’ Assembly meetings. With this latest order, we again had to make modifications in our instructions to all those managing and supervising the holding of the Citizens’ Assembly meetings throughout the province . . . As to our people, in general, their enthusiastic participation showed their preference and readiness to accept the new method of government to people consultation in shaping up government policies."cralaw virtua1aw library This communication manifestly shows: 1) that, as late as January 11, 1973, the Bataan officials had still to discuss — not put into operation — means and ways to carry out the changing instructions from the top on how to organize the citizens’ assemblies, what to do therein and

even what questions or topics to propound or touch in said assemblies; 2) that the assemblies would involve no more than consultations or dialogues between people and government — not decisions to be made by the people; and 3) that said consultations were aimed only at "shaping up government policies" and, hence, could not, and did not, partake of the nature of a plebiscite for the ratification or rejection of a proposed amendment of a new or revised Constitution for the latter does not entail the formulation of a policy of the Government, but the making of a decision by the people on the new way of life, as a nation, they wish to have, once the proposed Constitution shall have been ratified. If this was the situation in Bataan — one of the provinces nearest to Manila — as late as January 11, 1973, one can easily imagine the predicament of the local officials and people in the remote barrios in northern and southern Luzon, in the Bicol region, in the Visayan Islands and Mindanao. In fact, several members of the Court, including those of their immediate families and their household, although duly registered voters in the area of Greater Manila, were not even notified that citizens’ assemblies would be held in the places where their respective residences were located. In the Prohibition and Amendment case, 77 attention was called to the "duty cast upon the court of taking judicial cognizance of anything affecting the existence and validity of any law or portion of the Constitution . . ." In line with its own pronouncement in another case, the Federal Supreme Court of the United States stressed, in Baker v. Carr, 78 that "a court is not at liberty to shut its eyes to an obvious mistake, when the validity of the law depends upon the truth of what is declared."cralaw virtua1aw library In the light of the foregoing, I cannot see how the question under consideration can be answered or resolved otherwise than in the negative. V

Have the people acquiesced in the proposed Constitution? It is urged that the present Government of the Philippines is now and has been run, since January 17, 1973, under the Constitution drafted by the 1971 Constitutional Convention; that the political department of the Government has recognized said revised Constitution; that our foreign relations are being conducted under such new or revised Constitution; that the Legislative Department has recognized the same, and that the people, in general, have, by their acts or omissions, indicated their conformity thereto. As regards the so called political organs of the Government, I gather that respondents refer mainly to the offices under the Executive Department. In a sense, the latter performs some functions which, from a constitutional viewpoint, are political in nature, such as in recognizing a new state or government, in accepting diplomatic representatives accredited to our Government, and even in devising administrative means and ways to better carry into effect Acts of Congress which define the goals or objectives thereof, but are either imprecise or silent on the particular measures to be resorted to in order to achieve the said goals or delegate the power to do so, expressly or impliedly, to the Executive. This, notwithstanding, the political organ of a government that purports to be republican is essentially the Congress or Legislative Department. Whatever may be the functions allocated to the Executive Department — specially under a written, rigid Constitution, with a republican system of Government like ours — the role of that Department is inherently, basically and fundamentally executive in nature — to "take care that the laws be faithfully executed," in the language of our 1935 Constitution. 79

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Consequently, I am not prepared to concede that the acts of the officers and offices of the Executive Department, in line with Proclamation No. 1102, connote a recognition thereof or an acquiescence thereto. Whether they recognized the proposed Constitution or acquiesce thereto or not is something that cannot legally, much less necessarily or even normally, be deduced from their acts in accordance therewith, because they are bound to obey and act in conformity with the orders of the President, under whose "control" they are, pursuant to the 1935 Constitution. They have absolutely no other choice, specially in view of Proclamation No. 1081 placing the Philippines under Martial Law. Besides, by virtue of the very decrees, orders and instructions issued by the President thereafter, he had assumed all powers of Government — although some question his authority to do so — and, consequently, there is hardly anything he has done since the issuance of Proclamation No. 1102, on January 17, 1973 — declaring that the Constitution proposed by the 1971 Constitutional Convention has been ratified by the overwhelming majority of the people — that he could not do under the authority he claimed to have under Martial Law, since September 21, 1972, except the power of supervision over inferior courts and its personnel, which said proposed Constitution would place under the Supreme Court, and which the President has not ostensibly exercised, except as to some minor routine matters, which the Department of Justice has continued to handle, this Court having preferred to maintain the status quo in connection therewith pending final determination of these cases, in which the effectivity of the aforementioned Constitution is disputed. Then, again, a given department of the Government cannot generally be said to have "recognized" its own acts. Recognition normally connotes the acknowledgment by a party of the acts of another. Accordingly, when a subordinate officer or office of the Government complies with the commands of a superior officer or office, under whose supervision and control he or it is, the former merely obeys the latter. Strictly speaking, and from a legal and constitutional viewpoint, there is no act of recognition involved therein. Indeed, the lower officer or office, if he or it acted otherwise, would just be guilty of insubordination. Thus, for instance, the case of Taylor v. Commonwealth 80 — cited by respondents herein in support of the theory of the people’s acquiescence — involved a constitution ordained in 1902 and "proclaimed by a convention duly called by a direct vote of the people of the state to revise and amend the Constitution of 1869. The result of the work of that Convention has been recognized, accepted and acted upon as the only valid Constitution of the State" by — 1. The "Governor of the State in swearing fidelity to it and proclaiming it, as directed thereby" ; 2. The "Legislature in its formal official act adopting a joint resolution, July 15, 1902, recognizing the Constitution ordained by the Convention . . ." ; 3. The "individual oaths of its members to support it, and by its having been engaged for nearly a year, in legislating under it and putting its provisions into operation . . ." ; 4. The "judiciary in taking the oath prescribed thereby to support it and by enforcing its provisions . . ." ; and 5. The "people in their primary capacity by peacefully accepting it and acquiescing in it, by registering as voters under it to the extent of thousands throughout the State, and by voting, under its provisions, at a general election for their representatives in the Congress of the United States."cralaw virtua1aw library

Note that the New Constitution of Virginia, drafted by a convention whose members were elected directly by the people, was not submitted to the people for ratification or rejection thereof. But, it was recognized, not by the convention itself, but by other sectors of the Government, namely, the Governor; the Legislature — not merely by individual acts of its members, but by formal joint resolution of its two (2) chambers; by the judiciary; and by the people, in the various ways specified above. What is more, there was no martial law. In the present cases, none of the foregoing acts of acquiescence was present. Worse still, there is martial law, the strict enforcement of which was announced shortly before the alleged citizens’ assemblies. To top it all, in the Taylor case, the effectivity of the contested amendment was not contested judicially until about one (1) year after the amendment had been put into operation in all branches of the Government, and complied with by the people who participated in the elections held pursuant to the provisions of the new Constitution. In the cases under consideration, the legality of Presidential Decree No. 73 calling a plebiscite to be held on January 15, 1973, was impugned as early as December 7, 1972, or five (5) weeks before the scheduled plebiscite, whereas the validity of Proclamation No. 1102 declaring on January 17, 1973, that the proposed Constitution had been ratified — despite General Order No. 20, issued on January 7, 1972, formally and officially suspending the plebiscite until further notice — was impugned as early as January 20, 1973, when L-36142 was filed, or three (3) days after the issuance of Proclamation No. 1102. It is further alleged that a majority of the members of our House of Representatives and Senate have acquiesced in the new or revised Constitution, by filing written statements opting to serve in the Ad Interim Assembly established in the Transitory Provisions of said Constitution. Individual acts of recognition by members of our legislature, as well as of other collegiate bodies under the government, are invalid as acts of said legislature or bodies, unless its members have performed said acts in session duly assembled, or unless the law provides otherwise, and there is no such law in the Philippines. This is a well-established principle of Administrative Law and of the Law of Public Officers, and no plausible reason has been adduced to warrant departure therefrom. 81 Indeed, if the members of Congress were generally agreeable to the proposed Constitution, why did it become necessary to padlock its premises to prevent its meeting in session on January 22, 1973, and thereafter as provided in the 1935 Constitution? It is true that, theoretically, the members of Congress, if bent on discharging their functions under said Constitution, could have met in any other place, the building in which they perform their duties being immaterial to the legality of their official acts. The force of this argument is, however, offset or dissipated by the fact that, on or about December 27, 1972, immediately after a conference between the Executive, on the one hand, and members of Congress, on the other, some of whom expressed the wish to meet in session on January 22, 1973, as provided in the 1935 Constitution, a Daily Express columnist (Primitivo Mijares) attributed to Presidential Assistant Guillermo de Vega a statement to the effect that" ‘certain members of the Senate appear to be missing the point in issue’ when they reportedly insisted on taking up first the question of convening Congress." The Daily Express of that date, 82 likewise, headlined, on its front page, a "Senatorial Plot Against ‘Martial Law Government’ Disclosed." Then, in its issue of December 29, 1972, the same paper imputed to the Executive an appeal "to diverse groups involved in a conspiracy to undermine" his powers "under martial law to desist from provoking a constitutional crisis . . . which may result in the exercise by me of authority I have not exercised."cralaw virtua1aw library No matter how good the intention behind these statements may have been, the idea implied

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therein was too clear and ominous for any member of Congress who thought of organizing, holding or taking part in a session of Congress, not to get the impression that he could hardly do so without inviting or risking the application of Martial Law to him. Under these conditions, I do not feel justified in holding that the failure of the members of Congress to meet since January 22, 1973, was due to their recognition, acquiescence in or conformity with the provisions of the aforementioned Constitution, or its alleged ratification. For the same reasons, especially because of Proclamation No. 1081, placing the entire Philippines under Martial Law, neither am I prepared to declare that the people’s inaction as regards Proclamation No. 1102, and their compliance with a number of Presidential orders, decrees and/or instructions — some or many of which have admittedly had salutary effects — issued subsequently thereto amounts, constitutes or attests to a ratification, adoption or approval of said Proclamation No. 1102. In the words of the Chief Executive, "martial law connotes power of the gun, meant coercion by the military, and compulsion and intimidation." 83 The failure to use the gun against those who comply with the orders of the party wielding the weapon does not detract from the intimidation that Martial Law necessarily connotes. It may reflect the good, reasonable and wholesome attitude of the person who has the gun, either pointed at others, without pulling the trigger, or merely kept in its holster, but not without warning that he may or would use it if he deemed it necessary. Still, the intimidation is there, and inaction or obedience of the people, under these conditions, is not necessarily an act of conformity or acquiescence. This is specially so when we consider that the masses are, by and large, unfamiliar with the parliamentary system, the new form of government introduced in the proposed Constitution, with the particularity that it is not even identical to that existing in England and other parts of the world, and that even experienced lawyers and social scientists find it difficult to grasp the full implications of some provisions incorporated therein. As regards the applicability to these cases of the "enrolled bill" rule, it is well to remember that the same refers to a document certified to the President — for his action under the Constitution — by the Senate President and the Speaker of the House of Representatives, and attested to by the Secretary of the Senate and the Secretary of the House of Representatives, concerning legislative measures approved by the two Houses of Congress. The argument of the Solicitor General is, roughly, this: If the enrolled bill is entitled to full faith and credence and, to this extent, it is conclusive upon the President and the judicial branch of the Government, why should Proclamation No. 1102 merit less consideration than in enrolled bill? Before answering this question, I would like to ask the following: If, instead of being certified by the aforementioned officers of Congress, the so-called enrolled bill were certified by, say, the President of the Association of Sugar Planters and/or Millers of the Philippines, and the measure in question were a proposed legislation concerning Sugar Plantations and Mills sponsored by said Association, which even prepared the draft of said legislation, as well as lobbied actually for its approval, for which reason the officers of the Association, particularly, its aforementioned president — whose honesty and integrity are unquestionable — were present at the deliberations in Congress when the same approved the proposed legislation, would the enrolled bill rule apply thereto? Surely, the answer would have to be in the negative. Why? Simply, because said Association President has absolutely no official authority to perform in connection therewith, and, hence, his certification is, legally, as good as nonexistent. Similarly, a certification, if any, of the Secretary of the Department of Local Governments and Community Development about the tabulated results of the voting in the Citizens’ Assemblies

allegedly held all over the Philippines — and the records do not show that any such certification, either to the President of the Philippines or to the President of the Federation or National Association of presidents of Provincial Associations of presidents of municipal associations of presidents of barrio or ward assemblies of citizens — would not, legally and constitutionally, be worth the paper on which it is written. Why? Because said Department Secretary is not the officer designated by law to superintend plebiscites or elections held for the ratification or rejection of a proposed amendment or revision of the Constitution and, hence, to tabulate the results thereof. Worse still, it is the officer or department which, according to Article X of the 1935 Constitution, should not and must not be allowed to participate in said plebiscite — if plebiscite there was. After citing approvingly its ruling in United States v. Sandoval, 84 the Highest Court of the United States declared that courts "will not stand impotent before an obvious instance of a manifestly unauthorized exercise of power." 85 I cannot honestly say, therefore, that the people have impliedly or expressly indicated their conformity to the proposed Constitution. VI

of said judgment had not been sufficiently discussed and argued as the nature and importance thereof demanded. The parties in the cases at bar were accordingly given every possible opportunity to do so and to elucidate on and discuss said question. Thus, apart from hearing the parties in oral argument for five (5) consecutive days — morning and afternoon, or a total of exactly 26 hours and 31 minutes — their respective counsel filed extensive notes on their oral arguments, as well as on such additional arguments as they wished to submit, and reply notes or memoranda, in addition to rejoinders thereto, aside from a sizeable number of documents in support of their respective contentions, or as required by the Court. The arguments, oral and written, submitted have been so extensive and exhaustive, and the documents filed in support thereof so numerous and bulky, that, for all intents and purposes, the situation is as if — disregarding forms — the petitions had been given due course and the cases had been submitted for decision. Accordingly, the majority of the members of the Court believe that they should express their views on the aforementioned issues as if the same were being decided on the merits, and they have done so in their individual opinions attached hereto. Hence, the resume of the votes east and the tenor of the resolution, in the last pages hereof, despite the fact that technically the Court has not, as yet, formally given due course to the petitions herein.

Are the Parties entitled to any relief?

And, now, here are my views on the reliefs sought by the parties.

Before attempting to answer this question, a few words must be said about the procedure followed in these five (5) cases. In this connection, it should be noted that the Court has not as yet decided whether or not to give due course to the petitions herein or to require the respondents to answer thereto. Instead, it has required the respondents to comment on the respective petitions — with three (3) members of the Court voting to dismiss them outright — and then considered the comments thus submitted by the respondents as motions to dismiss, as well as set the same for hearing. This was due to the transcendental nature of the main issue raised, the necessity of deciding the same with utmost dispatch, and the main defense set up by respondents herein, namely, the alleged political nature of said issue, placing the same, according to respondents, beyond the ambit of judicial inquiry and determination. If this defense was sustained, the cases could readily be dismissed; but, owing to the importance of the questions involved, a reasoned resolution was demanded by public interest. At the same time, respondents had cautioned against a judicial inquiry into the merits of the issues posed on account of the magnitude of the evil consequences, it was claimed, which would result from a decision thereon, if adverse to the Government.

In L-36165, it is clear that we should not issue the writ of mandamus prayed for against Gil J. Puyat and Jose Roy, as President and President Pro Tempore respectively of the Senate, it being settled in our jurisdiction, based upon the theory of separation of powers, that the judiciary will not issue such writ to the head of a co-equal department, like the aforementioned officers of the Senate.

As a matter of fact, some of those issues had been raised in the plebiscite cases, which were dismissed as moot and academic, owing to the issuance of Proclamation No. 1102 subsequently to the filing of said cases, although before the rendition of judgment therein. Still one of the members of the Court (Justice Zaldivar) was of the opinion that the aforementioned issues should be settled in said cases, and he, accordingly, filed an opinion passing upon the merits thereof. On the other hand, three (3) members of the Court — Justices Barredo, Antonio and Esguerra — filed separate opinions favorable to the respondents in the plebiscite cases, Justice Barredo holding "that the 1935 Constitution has pro tanto passed into history and has been legitimately supplanted by the Constitution in force by virtue of Proclamation 1102." 86 When the petitions at bar were filed, the same three (3) members of the Court, consequently, voted for the dismissal of said petitions. The majority of the members of the Court did not share, however, either view, believing that the main question that arose before the rendition

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In all other respects and with regard to the other respondents in said case, as well as in eases L-36142, L-36164, L-36236 and L-36283, my vote is that the petitions therein should be given due course, there being more than prima facie showing that the proposed Constitution has not been ratified in accordance with Article XV of the 1935 Constitution, either strictly, or substantially, or has been acquiesced in by the people or a majority thereof; that said proposed Constitution is not in force and effect; and that the 1935 Constitution is still the Fundamental Law of the Land, without prejudice to the submission of said proposed Constitution to the people at a plebiscite for its ratification or rejection in accordance with Articles V, X and XV of the 1935 Constitution and the provisions of the Revised Election Code in force at the time of such plebiscite. Perhaps others would feel that my position in these cases overlooks what they might consider to be the demands of "judicial statesmanship," whatever may be the meaning of such phrase. I am aware of this possibility, if not probability; but "judicial statesmanship," though consistent with Rule of Law, cannot prevail over the latter. Among consistent ends or consistent values, there always is a hierarchy, a rule of priority. We must realize that the New Society has many achievements which would have been very difficult, if not impossible, to accomplish under the old dispensation. But, in and for the judiciary, statesmanship should not prevail over the Rule of Law. Indeed, the primacy of the law or of the Rule of Law and faithful adherence thereto are basic, fundamental and essential parts of statesmanship itself.

Resume of the Votes Cast and the Court’s Resolution As earlier stated, after the submittal by the members of the Court of their individual opinions and/or concurrences as appended hereto, the writer will now make, with the concurrence of his colleagues, a resume or summary of the votes cast by each of them. It should be stated that by virtue of the various approaches and views expressed during the deliberations, it was agreed to synthesize the basic issues at bar in broad general terms in five questions for purposes of taking the votes. It was further agreed of course that each member of the Court would expound in his individual opinion and/or concurrence his own approach to the stated issues and deal with them and state (or not) his opinion thereon singly or jointly and with such priority, qualifications and modifications as he may deem proper, as well as discuss thereon other related issues which he may consider vital and relevant to the cases at bar. The five questions thus agreed upon as reflecting the basic issues herein involved are the following:chanrob1es virtual 1aw library 1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and therefore non-justiciable, question? 2. Has the Constitution proposed by the 1971 Constitutional Convention been ratified validly (with substantial, if not strict, compliance) conformably to the applicable constitutional and statutory provisions? 3. Has the aforementioned proposed Constitution been acquiesced in (with or without valid ratification) by the people?

Constitution proposed by the 1971 Constitutional Convention was not validly ratified in accordance with Article XV, section 1 of the 1935 Constitution, which provides only one way for ratification, i.e., "in an election or plebiscite held in accordance with law and participated in only by qualified and duly registered voters." 87 Justice Barredo qualified his vote, stating that" (A)s to whether or not the 1973 Constitution has been validly ratified pursuant to Article XV, I still maintain that in the light of traditional concepts regarding the meaning and intent of said Article, the referendum in the Citizens’ Assemblies, specially in the manner the votes therein were cast, reported and canvassed, falls short of the requirements thereof. In view, however, of the fact that I have no means of refusing to recognize as a judge that factually there was voting and that the majority of the votes were for considering as approved the 1973 Constitution without the necessity of the usual form of plebiscite followed in past ratifications, I am constrained to hold that, in the political sense, if not in the orthodox legal sense, the people may be deemed to have cast their favorable votes in the belief that in doing so they did the part required of them by Article XV, hence, it may be said that in its political aspect, which is what counts most, after all, said Article has been substantially complied with, and, in effect, the 1973 Constitution has been constitutionally ratified."cralaw virtua1aw library Justices Makasiar, Antonio and Esguerra, or three (3) members of the Court hold that under their view there has been in effect substantial compliance with the constitutional requirements for valid ratification. 3. On the third question of acquiescence by the Filipino people in the aforementioned proposed Constitution, no majority vote has been reached by the Court. Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold that "the people have already accepted the 1973 Constitution." 88

4. Are petitioners entitled to relief? and 5. Is the aforementioned proposed Constitution in force? The results of the voting, premised on the individual views expressed by the members of the Court in their respective opinions and/or concurrences, are as follows:chanrob1es virtual 1aw library 1. On the first issue involving the political-question doctrine, Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee and myself, or six (6) members of the Court, hold that the issue of the validity of Proclamation No. 1102 presents a justiciable and non-political question. Justices Makalintal and Castro did not vote squarely on this question, but, only inferentially, in their discussion of the second question. Justice Barredo qualified his vote, stating that "inasmuch as it is claimed that there has been approval by the people, the Court may inquire into the question of whether or not there has actually been such an approval, and, in the affirmative, the Court should keep its hands-off out of respect to the people’s will, but, in the negative, the Court may determine from both factual and legal angles whether or not Article XV of the 1935 Constitution has been complied with." Justices Makasiar, Antonio and Esguerra, or three (3) members of the Court hold that the issue is political and "beyond the ambit of judicial inquiry."cralaw virtua1aw library 2. On the second question of validity of the ratification, Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee and myself, or six (6) members of the Court also hold that the

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Two (2) members of the Court, namely, Justice Zaldivar and myself hold that there can be no free expression, and there has even been no expression, by the people qualified to vote all over the Philippines, of their acceptance or repudiation of the proposed Constitution under Martial Law. Justice Fernando states that" (I)f it is conceded that the doctrine stated in some American decisions to the effect that independently of the validity of the ratification, a new Constitution once accepted or acquiesced in by the people must be accorded recognition by the Court, I am not at this stage prepared to state that such doctrine calls for application in view of the shortness of time that has elapsed and the difficulty of ascertaining what is the mind of the people in the absence of the freedom of debate that is a concomitant feature of martial law."cralaw virtua1aw library Three (3) members of the Court express their lack of knowledge and/or competence to rule on the question. Justices Makalintal and Castro are joined by Justice Teehankee in their statement that "Under a regime of martial law, with the free expression of opinions through the usual media vehicles restricted, (they) have no means of knowing, to the point of judicial certainty, whether the people have accepted the Constitution." 89 4. On the fourth question of relief, six (6) members of the Court, namely, Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra voted to DISMISS the petition. Justices Makalintal and Castro so voted on the strength of their view that" (T)he effectivity of the said Constitution, in the final analysis, is the basic and ultimate question posed by these cases to resolve which considerations other than judicial, and therefore beyond the competence of

this Court, 90 are relevant and unavoidable." 91 DECISION Four (4) members of the Court, namely, Justices Zaldivar, Fernando, Teehankee and myself voted to deny respondents’ motion to dismiss and to give due course to the petitions. 5. On the fifth question of whether the new Constitution of 1973 is in force:chanrob1es virtual 1aw library Four (4) members of the Court, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold that it is in force by virtue of the people’s acceptance thereof; Four (4) members of the Court, namely, Justices Makalintal, Castro, Fernando and Teehankee cast no vote thereon on the premise stated in their votes on the third question that they could not state with judicial certainty whether the people have accepted or not accepted the Constitution; and Two (2) members of the Court, namely, Justice Zaldivar and myself voted that the Constitution proposed by the 1971 Constitutional Convention is not in force; with the result that there are not enough votes to declare that the new Constitution is not in force. ACCORDINGLY, by virtue of the majority of six (6) votes of Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra with the four (4) dissenting votes of the Chief Justice and Justices Zaldivar, Fernando and Teehankee, all the aforementioned cases are hereby dismissed. This being the vote of the majority, there is no further judicial obstacle to the new Constitution being considered in force and effect. It is so ordered. Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra, JJ., concur. Concepcion, C.J., dissents. Zaldivar, J., dissents in line with the personal opinion of the Chief Justice, and also dissents in a separate opinion. Fernando, J., dissents in conformity with the personal views of the Chief Justice, except as to such portions thereof on which he expresses his own thoughts as set forth in his dissenting opinion. Teehankee, J., dissents in conformity with the Chief Justice’s personal opinion and files a separate dissent. ANNEX A PERTINENT PORTIONS OF THE MINNESSOTA SUPREME COURT

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ON THE CASE IN RE McCONAUGHY "(a) An examination of the decisions shows that the courts have almost uniformly exercised the authority to determine the validity of the proposal, submission, or ratification of constitutional amendments. It has been judicially determined whether a proposed amendment received the constitutional majority of votes (Dayton v. St. Paul, 22 Minn. 400; Rice v. Palmer, 78 Ark. 432, 96 S.W. 396; Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 45 L.R.A. 251; State v. Foraker, 46 Ohio St. 677, 23 N.E. 491; 6 L.R.A. 422; Tecumseh National Bank v. Saunders, 51 Neb. 801, 71 N.W. 779; Green v. State Board, 5 Idaho, 130, 47 Pac. 259, 95 Am. St. Rep. 169; In re Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Knight v. Shelton [C.C.] 134 Fed. 423); whether a proposed amendment is a single amendment, within the constitutional requirement that every amendment must be separately submitted (State v. Powell, 77 Miss. 543, 27 South. 927; Gabbert v. Chicago, etc., R. Co., 171 Mo. 84, 70 S.W. 891; State v. Timme, 54 Wis. 318,11 N.W. 785; In re Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722; Lobaugh v. Cook, 127 Iowa, 181,102 N.W. 1121; People v. Sours, 31 Colo. 369, 74 Pac. 167,102 Am. St. Rep. 34; State v. Board, 34 Mont. 426, 87 Pac. 450; State v. Winnett [Neb.] 110 N.W. 1113, 10 L.R.A. [N.S.] 149); whether the failure to enter the resolution of submission upon the legislative journals invalidates the amendment (Koehler v. Hill, 60 Iowa, 543, 14 N.W. 738,15 N.W. 609; Oakland Paving Co. v. Hilton, 69 Cal. 479,11 Pac. 3; West v. State, 50 Fla. 154, 39 South. 412; Durfee v. Harper, 22 Mont. 354, 56 Pac. 582; State v. Tufly, 19 Nev. 391, 12 Pac. 835, 3 Am. St. Rep. 895); whether the description of the amendment and the form of the ballot are sufficient (Rugsell v. Croy, 164 Mo. 69, 63 S.W. 849; State v. Winnett [ Neb.] 110 N.W. 1113, 10 L.R.A. [N.S.] 149; Murphy Chair Co. v. Attorney General [Mich.] 112 N.W. 127); whether the method of submission is sufficient (Lovett v. Ferguson, 10 S.D. 44, 71 N.W. 765; Russell v. Croy, 164 Mo. 69, 63 S.W. 849); whether the publication of the amendment or of a notice relative to it is sufficient (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R.A. 568; Russell v. Croy, 164 Mo. 69, 63 S.W. 849); whether the submission may be as well by resolution as by a legislative act approved by the executive (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L.R.A. 568; Warfield v. Vandiver, 101 Md. 78, 60 Atl. 538; Edward v. Lesueur, 132 Mo. 410, 33 S.W. 1130, 31 L.R.A. 815; Hays v. Hays, 5 Idaho, 154, 47 Pac. 732; State v. Dahl, 6 N.D. 81, 68 N.W. 418, 34 L.R.A. 97); at what election the amendment must be submitted (People v. Curry, 130 Cal. 82, 62 Pac. 516). "In Rich v. Board of Canvassers, 100 Mich. 458, 59 N.W. 183, the court said: ‘It is contended that the determination of the question whether an amendment to the Constitution has been carried involves the exercise of political, and not judicial, power. If this be so, it follows that the promulgation of any purported amendment by the executive or any executive department is final, and that the action cannot be questioned by the judiciary; but, with reference to the conditions precedent to submitting a proposed amendment to a vote of the people, it has been repeatedly held, by courts of the highest respectability, that it is within the power of the judiciary to inquire into the question, even in a collateral proceeding. . . . It is to be noted that under section 1 of article 20 of the Constitution of the state no amendment can become a part of the Constitution until ratified by a vote of the people. One prerequisite is equally as essential as the other. The amendment must first receive the requisite majority in the Legislature, and afterwards be adopted by the requisite vote . . . It is the fact of a majority vote which makes the amendment a part of the Constitution.’

"In considering the cases it is necessary to note whether in the particular case the court was called upon to determine between rival governments, or whether the Legislature, or some board or official, had legally performed the duty imposed by the Constitution or statutes. In re State v. McBride, 4 Mo. 303, 29 Am. Dec. 636, it was held that the General Assembly, under the power granted by the Constitution, could change the Constitution only in the manner prescribed by it, and that it was the duty of the court to determine whether all prerequisites had been complied with. In Collier v. Frierson, 24 Ala. 100, it was held that a Constitution can be changed only by the people in convention or in a mode described by the Constitution itself, and that if the latter mode is adopted every requisite of the Constitution must be observed.’It has been said,’ says the court,’ that certain acts are to be done, certain requisitions are to be observed, before a change can be effected; but to what purpose are these acts required, or these requisitions enjoined, if the Legislature or any other department of the government can dispense with them. To do so would be to violate the instrument which they are sworn to support; and every principle of public law and sound constitutional policy requires the court to pronounce against every amendment which is shown not to have been made in accordance with the rules prescribed by the fundamental law.’ "In State v. Swift, 69 Ind. 505, it was said that: ‘The people of a state may form an original Constitution, or abrogate an old one and form a new one, at any time, without any political restriction, except the Constitution of the United States; but if they undertake to add an amendment, by the authority of legislation to a Constitution already in existence, they can do it only by the method pointed out by the Constitution to which the amendment is added. The power to amend a Constitution by legislative action does not confer the power to break it, any more than it confers the power to legislate on any other subject contrary to its prohibitions.’ So, in State v. Timme, 54 Wis. 318, 11 N.W. 785, it was held that no amendments can be made to the Constitution of the state without a compliance with the provisions thereof, both in the passage of such amendment by the Legislature and the manner of submitting it to the people. The courts have not all agreed as to the strictness of compliance which should be required. "In the Prohibition and Amendment Case, 24 Kan. 100, the court determined judicially whether an amendment to the Constitution had been legally adopted. After approving the statement quoted from Collier v. Frierson, supra, that ‘we entertain no doubt that, to change the Constitution in any other mode than by a convention, every requisite which is demanded by the instrument itself must be observed, and the omission of any one is fatal to the amendment,’ the court held that, ‘as substance of right is grander and more potent than methods of form,’ there had been substantial compliance with the constitutional requirement that a proposed amendment to the Constitution must be entered at length on the legislative journal. It appears that the joint resolution making a submission simply provided that a proposition should be submitted to the electors at the general election of 1880. It did not declare that the machinery of the general election law should control, or that any particular officers or board would receive, count, or canvass the votes cast. But the existing election machinery was adequate, and the votes were received, counted, and canvassed, and the result declared as fully as though it had been in terms so ordered. These methods had been followed in the adoption of previous amendments, and it was held that, conceding the irregularity of the proceedings of the Legislature and the doubtful scope of the provisions for the election, yet in view of the very uncertainty of such provisions, the past legislative history of similar propositions, the universal prior acquiescence in the same forms of procedure, and the popular and unchallenged acceptance of the legal pendency before the people of the question of the amendment for decision, and in view of the duty cast upon the court of taking judicial knowledge of anything affecting the existence and validity of any law or portion of the Constitution, it must be

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adjudged that the proposed amendment became part of the Constitution. The effect was to hold that a provision of the Constitution requiring the proposed amendment to be entered in full on the journals was directory, and not mandatory. This liberal view was approved in State v. Winnett (Neb.) 110 N.W. 1113, 10 L.R.A. (N.S.) 149, and People v. Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34. But it has not been universally accepted. "In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3, the court, in commenting upon the Kansas case said: ‘The reasoning by which the learned court reached the conclusion it did is not based on any sound legal principles, but contrary to them. Neither the argument nor the conclusion can command our assent or approval. The argument is illogical, and based on premises which are without any sound foundation, and rests merely on assumption.’ See, also, the wellconsidered case of Kadderly v. Portland, 44 Or. 118, 74 Pac. 710, 75 Pac. 222. All these cases concede the jurisdiction of the court to determine whether, in submitting a proposed amendment to the people, the Legislature legally observed the constitutional provisions as to the manner of procedure. In Livermore v. Waite, 102 Cal. 113, 36 Pac. 424, 25 L.R.A. 312, the court, at the instance of a citizen and a taxpayer, restrained the Secretary of State from taking steps to submit to the people a proposed amendment to the Constitution agreed to by the Legislature on the ground that the Legislature had not acted in conformity with the Constitution and that the proposed amendment was of such a character that it could not properly become a part of the Constitution. The Supreme Court of Colorado, in People v Sours, supra, refused to exercise this authority. "The entire question received elaborate consideration in Koehler v. Hill, 60 Iowa, 543, 14 N.W. 738, 15 N.W. 609. The amendment, which concededly had been adopted by the people, had not, before its submission, been entered in full upon the legislative journals, as required by the Constitution, and it was held that this was a material variance in both form and substance from the constitutional requirements, and that the amendment did not, therefore, become a part of the Constitution. As to the claim that the question was political, and not judicial, it was said that, while it is not competent for courts to inquire into the validity of the Constitution and the form of government under which they themselves exist, and from which they derive their powers, yet, where the existing Constitution prescribes a method for its own amendment, an amendment thereto, to be valid, must be adopted in strict conformity to that method; and it is the duty of the courts in a proper case, when an amendment does not relate to their own power or functions, to inquire whether, in the adoption of the amendment, the provisions of the existing Constitution have been observed, and, if not, to declare the amendment invalid and of no force. This case was followed in State v. Brookhart, 113 Iowa, 250, 84 N.W. 1064. "In University v. McIver, 72 N.C.?6, the question whether a proposed amendment to the Constitution had been legally adopted was treated as a judicial question. By the Constitution a proposed amendment was required to be approved by two Legislatures before its submission to the people. In this instance a bill was passed which contained 17 amendments. The next Legislature rejected 9 and adopted 8 of these amendments, and submitted them to the people. The majority of the people voted for their adoption; but it was contended that the Constitution contemplated and required that the same bill and the same amendments, without change, should be approved by both Legislatures, and that it did not follow that, because the second Legislature adopted separately 8 out of the 17 amendments adopted by the first Legislature, it would have adopted the 17, or any of them, if they had been voted upon by the second in the form adopted by the first body. The substance of the contention was that there had not been a concurrence of the two Legislatures on the same amendments, according to the letter and spirit of the Constitution. The court held that the power of the Legislature in submitting amendments could not be distinguished from the powers of the convention, and

that, as the people had spoken and ratified the amendments, they became a part of the Constitution. "In Westinghausen v. People, 44 Mich. 265, 6 N.W. 641, it was held that prior to 1876 a proposed amendment to the Constitution could not be submitted to the people at any other than a general election; but, as the amendment under consideration had been submitted after the Constitution had been changed, it had been legally submitted and adopted. "In State v. Powell, 77 Miss. 543, 27 South. 927, the question whether an amendment to the Constitution had been legally submitted and adopted by the people was held to be judicial, and not political, in its nature. The amendment under consideration changed the Constitution by providing for an elective, instead of an appointive, judiciary. It was contended that the amendments had been improperly submitted, and not adopted by a majority of the qualified voters voting at the election, as required by the Constitution. The law did not direct how the result of the election should be determined. The Legislature by joint resolution recited that the election had been duly held throughout the state, and, as it appeared from the returns made to the Secretary of State, that 21,169 votes were cast in favor of, and 8,643 votes against, the amendment, it resolved ‘that said amendment be, and hereby is, inserted into the Constitution of the state of Mississippi as a part of the Constitution.’ In fact, the amendment was not submitted in the manner prescribed by the Constitution, and it did not receive a majority of all the qualified voters voting at the election. It was argued that the rules prescribed by the Constitution ‘are all for the guidance of the Legislature, and from the very nature of the thing the Legislature must be the exclusive judge of all questions to be measured or determined by these rules. Whether the question be political, and certainly a legislative one, or judicial, to be determined by the courts, this section of rules, not only of procedure, but of final judgment as well, confides to the separate magistracy of the legislative department full power to hear, consider, and adjudge that question. The Legislature puts the question to the qualified electors. The qualified electors answer back to the Legislature. "If it shall appear" to the Legislature that its question has been answered in the affirmative, the amendment is inserted and made a part of the Constitution. The Governor and the courts have no authority to speak at any stage of the proceedings between the sovereign and the Legislature, and when the matter is thus concluded it is closed, and the judiciary is as powerless to interfere as the executive.’ But it was held that the question whether the proposition submitted to the voters constituted one, or more than one, amendment, whether the submission was according to the requirements of the Constitution, and whether the proposition was in fact adopted, were all judicial, and not political, questions.’We do not,’ said Chief Justice Whitfield, ‘seek a jurisdiction not imposed upon us by the Constitution. We could not, if we would, escape the exercise of that jurisdiction which the Constitution has imposed upon us. In the particular instance in which we are now acting, our duty to know what the Constitution of the state is, and in accordance with our oaths to support and maintain it in its integrity, imposed on us a most difficult and embarrassing duty, one which we have not sought, but one which, like all others, must be discharged.’ "In Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 46 L.R.A. 251, it was held that it was the duty of the judicial department of the government to determine whether the legislative department or its officers had observed the constitutional injunctions in attempting to amend the Constitution, and to annul their acts if they had not done so. The case is an interesting and well-considered one. The Constitution provided the manner in which proposed amendments should be submitted to the people, but did not provide a method for canvassing the votes. The Legislature, having agreed to certain proposed amendments, passed an act for submitting the same to the people. This statute provided for the transmission to the Secretary of State of

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certificates showing the result of the voting throughout the state, and made it the duty of the Governor at the designated time to summon four or more Senators, who, with the Governor, should constitute a board of state canvassers to canvass and estimate the votes for and against each amendment. This board was to determine and declare which of the proposed amendments had been adopted and to deliver a statement of the results to the Secretary of State, and ‘any proposed amendment, which by said certificate and determination of the board of canvassers shall appear to have received in its favor the majority of all the votes cast in the state for and against said proposed amendment, shall from the time of filing such certificate be and become an amendment to and a part of the Constitution of the state; and it shall be the duty of the Governor of the state forthwith, after such a determination, to issue a proclamation declaring which of the said proposed amendments have been adopted by the people.’ This board was required to file a statement of the result of the election, and the Governor to issue his proclamation declaring that the amendment had been adopted and become a part of the Constitution. At the instance of a taxpayer the Supreme Court allowed a writ of certiorari to remove into the court for review the statement of the results of the election made by the canvassing board, in order that it might be judicially determined whether on the facts shown in that statement the board had legally determined that the proposed amendment had been adopted. The Supreme Court decided that the concurrence of the board of state canvassers and the executive department of the government in their respective official functions placed the subject-matter beyond the cognizance of the judicial department of the state. The Court of Appeals, after a full review of the authorities, reversed this decision, and held that the questions were of a judicial nature, and properly determinable by the court on their merits. Mr. Justice Dixon, after stating the facts, said: ‘It thus becomes manifest that there was present in the Supreme Court, and is now pending in this court, every element tending to maintain jurisdiction over the subject-matter, unless it be true, as insisted, that the judicial department of the government has not the right to consider whether the legislative department and its agencies have observed constitutional injunctions in attempting to amend the Constitution, and to annul their acts in case that they have not done so. That such a proposition is not true seems to be indicated by the whole history of jurisprudence in this country.’ The court, after considering the case on the merits, held that the proper conclusion had been drawn therefrom, and that the amendment in question was legally submitted and adopted. "The recent case of Rice v. Palmer, 78 Ark. 432, 96 S.W. 396, presented the identical question which we have under consideration. In reference to the contention that the Constitution intended to delegate to the Speaker of the House of Representatives the power to determine whether an amendment had been adopted, and that the question was political, and not judicial, the court observed: ‘The argument has often been made in similar cases to the courts, and it is found in many dissenting opinions; but, with probably a few exceptions, it is not found in any prevailing opinion.’ "In State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560, it was held that the constitutional requirement of publication of a proposed constitutional provision for three months prior to the election at which it is to be submitted to the people is mandatory and that noncompliance therewith renders the adoption of an amendment of no effect."cralaw virtua1aw library ANNEX B MALACAÑANG MANILA

BY THE PRESIDENT OF THE PHILIPPINES PRESIDENTIAL DECREE NO. 86-B Defining Further the Role of Barangays (Citizens Assemblies) WHEREAS, since their creation pursuant to Presidential Decree No. 86 dated December 31, 1972, the Barangays (Citizens Assemblies) have petitioned the Office of the President to submit to them for resolution important national issues; WHEREAS, one of the questions persistently mentioned refers to the ratification of the Constitution proposed by the 1971 Constitutional Convention; WHEREAS, on the basis of the said petitions, it is evident that the people believe that the submission of the proposed Constitution to the Citizens Assemblies or Barangays should be taken as a plebiscite in itself in view of the fact that freedom of debate has always been limited to the leadership in political, economic and social fields, and that it is now necessary to bring this down to the level of the people themselves through the Barangays or Citizens Assemblies; NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the Constitution, do hereby order that important national issues shall from time to time be referred to the Barangays (Citizens Assemblies) for resolution in accordance with Presidential Decree No. 86-A dated January 5, 1973 and that the initial referendum shall include the matter of ratification of the Constitution proposed by the 1971 Constitutional Convention. The Secretary of the Department of Local Government and Community Development shall insure the implementation of this Order. Done in the City of Manila, this 7th day of January in the year of Our Lord, nineteen hundred and seventy-three.

afternoon, and could not have been more exhaustive if the petitions had been given due course from the beginning. The major thrust of the petitions is that the act of the Citizens Assemblies as certified and proclaimed by the President on January 17, 1973 (Proclamation No 1102) was not an act of ratification, let alone a valid one, of the proposed Constitution, because it was not in accordance with the existing Constitution (of 1935) and the Election Code of 1971. Other grounds are relied upon by the petitioners in support of their basic proposition, but to our mind they are merely subordinate and peripheral. Article XV, Section 1, of the 1935 Constitution provides that amendments (proposed either by Congress in joint session or by a Convention called by it for the purpose) "shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification." At the time that Constitution was approved by the Constitutional Convention on February 8, 1935, and ratified in a plebiscite held on the following May 14, the word "election" had already a definite meaning in our law and jurisprudence. It was not a vague and amorphous concept, but a procedure prescribed by statute for ascertaining the people’s choices among candidates for public offices, or their will on important matters submitted to them, pursuant to law, for approval. It was in this sense that the word was used by the framers in Article XV (also in Articles VI and VII), and in accordance with such procedure that plebiscites were held to ratify the very same Constitution in 1935 as well as the subsequent amendments thereto, thus: in 1939 (Ordinance appended to the Constitution); 1940 (establishment of a bicameral legislature; eligibility of the President and the Vice President for re election: creation of the Commission of Elections); 1947 (Parity Amendment); and 1967 (increase in membership of the House of Representatives and eligibility of members of Congress to run for the Constitutional Convention without forfeiture of their offices). The Election Code of 1971, in its Section 2, states that "all elections of public officers except barrio officials and plebiscites shall be conducted in the manner provided by this Code." This is a statutory requirement designed, as were the other election laws previously in force, to carry out the constitutional mandate relative to the exercise of the right of suffrage, and with specific reference to the term "plebiscites," the provision of Article XV regarding ratification of constitutional amendments.

(SGD.) FERDINAND E. MARCOS By the President:chanrob1es virtual 1aw library (SGD.) ALEJANDRO MELCHOR Executive Secretary MAKALINTAL and CASTRO, JJ., :chanrob1es virtual 1aw library The preliminary question before this Court was whether or not the petitioners had made out a sufficient prima facie case in their petitions to justify their being given due course. Considering on the one hand the urgency of the matter and on the other hand its transcendental importance, which suggested the need for hearing the side of the respondents before that preliminary question was resolved, We required them to submit their comments on the petitions. After the comments were filed We considered them as motions to dismiss so that they could be orally argued. As it turned out, the hearing lasted five days, morning and

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The manner of conducting elections and plebiscites provided by the Code is spelled out in other sections thereof. Section 99 requires that qualified voters be registered in a permanent list, the qualifications being those set forth in Article V, Section 1, of the 1935 Constitution on the basis of age (21), literacy and residence. These qualifications are reiterated in Section 101 of the Election Code. Section 102 enumerates the classes of persons disqualified to vote. Succeeding sections prescribe the election paraphernalia to be used, the procedure for registering voters, the records of registration and the custody thereof, the description and printing of official ballots, the actual casting of votes and their subsequent counting by the boards of inspectors, the rules for appreciation of ballots, and then the canvass and proclamation of the results. With specific reference to the ratification of the 1972 draft Constitution, several additional circumstances should be considered:chanrob1es virtual 1aw library (1) This draft was prepared and approved by a Convention which had been convened pursuant to Resolution No. 2 passed by Congress on March 16, 1967, which provides:jgc:chanrobles.com.ph

in the Election Law. "Sec. 7. The amendments proposed by the Convention shall be valid and considered part of the Constitution when approved by a majority of the votes cast in an election at which they are submitted to the people for their ratification pursuant to Article XV of the Constitution."cralaw virtua1aw library (2) Article XVII, Section 16, of the draft itself states:jgc:chanrobles.com.ph "Sec. 16. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called for the purpose and, except as herein provided, shall supersede the Constitution of nineteen hundred and thirty-five and all amendments thereto."cralaw virtua1aw library The same procedure is prescribed in Article XVI, Section 2, for the ratification of any future amendment to or revision of the said Constitution. (3) After the draft Constitution was approved by the Constitutional Convention on November 30, 1972 the said body adopted Resolution No. 5843, proposing "to President Ferdinand E. Marcos that a decree be issued calling a plebiscite for the ratification of the proposed New Constitution on such appropriate date as he shall determine and providing for the necessary funds therefor." Pursuant to said Resolution the President issued Decree No. 73 on the same day, calling a plebiscite to be held on January 15, 1973, at which the proposed Constitution "shall be submitted to the people for ratification or rejection." The Decree had eighteen (18) sections in all, prescribing in detail the different steps to be taken to carry out the process of ratification, such as: (a) publication of the proposed Constitution in English and Pilipino; (b) freedom of information and discussion; (c) registration of voters: (d) appointment of boards of election inspectors and designation of watchers in each precinct; (e) printing of official ballots; (f) manner of voting to insure freedom and secrecy thereof; (g) canvass of plebiscite returns; and (h) in general, compliance with the provisions of the Election Code of 1971, with the Commission on Elections exercising its constitutional and statutory powers of supervision of the entire process. There can hardly be any doubt that in everybody’s view — from the framers of the 1935 Constitution through all the Congresses since then to the 1971 Constitutional Convention — amendments to the Constitution should be ratified in only one way, that is, in an election or plebiscite held in accordance with law and participated in only by qualified and duly registered voters. Indeed, so concerned was this Court with the importance and indispensability of complying with the mandate of the (1935) Constitution in this respect that in the recent case of Tolentino v. Commission on Elections, No. L-34150, October 16, 1971 (41 SCRA 702), a resolution of the (1971) Constitutional Convention submitting a proposed amendment for ratification to a plebiscite to be held in November 1971 was declared null and void. The amendment sought to reduce the voting age from twenty-one to eighteen years and was approved by the Convention for submission to a plebiscite ahead of and separately from other amendments still being or to be considered by it, so as to enable the youth to be thus enfranchised to participate in the plebiscite for the ratification of such other amendments later. This Court held that such separate submission was violative of Article XV, Section 1, of the Constitution, which contemplated that "all the amendments to be proposed by the same Convention must be submitted to the people in a single ‘election’ or plebiscite." * Thus a grammatical construction based on a singular, instead of plural, rendition of the word "election" was considered a sufficient ground to rule out the plebiscite which had been called to ratify a proposed amendment in accordance with the procedure and under all the safeguards provided

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In the cases now before Us what is at issue is not merely the ratification of just one amendment, as in Tolentino v. COMELEC, but the ratification of an entire charter setting up a new form of government; and the issue has arisen not because of a disputed construction of one word or one provision in the 1935 Constitution but because no election or plebiscite in accordance with that Constitution and with the Election Code of 1971 was held for the purpose of such ratification. The Citizens Assemblies which purportedly ratified the draft Constitution were created by Presidential Decree No. 86 dated December 31, 1972, "to broaden the base of citizen participation in the democratic process and to afford ample opportunities for the citizenry to express their views on important national issues." The Assemblies "shall consist of all persons who are residents of the barrio, district or ward for at least six months, fifteen years of age or over, citizens of the Philippines and who are registered in the lists of Citizen Assembly members kept by the barrio, district or ward secretary." By Presidential Decree No. 86-A, dated January 5, 1973, the Assemblies were convened for a referendum between January 10 and 15, to "consider vital national issues now confronting the country, like the holding of the plebiscite on the new Constitution, the continuation of martial rule, the convening of Congress on January 22, 1973, and the holding of elections in November 1973."cralaw virtua1aw library On January 5, 1973 the newspapers came out with a list of four questions to be submitted to the Citizens Assemblies, the fourth one being as follows: "How soon would you like the plebiscite on the new Constitution to be held?" It should be noted in this connection that the President had previously announced that he had ordered the postponement of the plebiscite which he had called for January 15, 1973 (Presidential Decree No. 73) for the ratification of the draft Constitution, and that he was considering two new dates for the purpose — February 19 or March 5; that he had ordered that the registration of voters (pursuant to Decree No. 73) be extended to accommodate new voters; and that copies of the new Constitution would be distributed in eight dialects to the people. (Bulletin Today, December 24, 1972.) On January 10, 1973 it was reported that one more question would be added to the original four which were to be submitted to the Citizens Assemblies. The question concerning the plebiscite was reworded as follows: "Do yon like the plebiscite to be held later?" The implication, it may likewise be noted, was that the Assemblies should express their views as to when the plebiscite should be held, not as to whether or not it should be held at all. The next day, January 11, it was reported that six additional questions would be submitted, namely:jgc:chanrobles.com.ph "(1) Do you approve of the citizens assemblies as the base of popular government to decide issues of national interest? "(2) Do you approve of the new Constitution? "(3) Do you want a plebiscite to be called to ratify the new Constitution? "(4) Do you want the elections to be held in November, 1973 in accordance with the provisions of the 1935 Constitution? "(5) If the elections would not be held, when do you want the next elections to be called?

"(6) Do you want martial law to continue?" [Bulletin Today, January 11, 1973: Italics supplied]. Appended to the six additional questions above quoted were the suggested answers, thus:jgc:chanrobles.com.ph "COMMENTS ON QUESTION No. 1 In order to broaden the base of citizens’ participation in government. QUESTION No. 2 But we do not want the Ad Interim Assembly to be convoked. Or if it is to be convened at all, it should not be done so until after at least seven (7) years from the approval of the New Constitution by the Citizens Assemblies. QUESTION No. 3 If the Citizens Assemblies approve of the New Constitution, then the new Constitution should be deemed ratified. The vote of the Citizens Assemblies should already be considered the plebiscite on the New Constitution. QUESTION No. 4 We are sick and tired of too frequent elections. We are fed up with politics, of so many debates and so much expenses.

conducted in the Citizens’ Assemblies, assuming that such voting was held, was not within the intendment of Article XV, Section 1, of the 1935 Constitution nor in accordance with the Election Code of 1971. The referendum can by no means be considered as the plebiscite contemplated in Section 2 of said Code and in Article XVII, Section 16, of the draft Constitution itself, or as the election intended by Congress when it passed Resolution No. 2 on March 16, 1967 calling a Convention for the revision of the 1935 Constitution. The Citizens Assemblies were not limited to qualified, let alone registered, voters, but included all citizens from the age of fifteen, and regardless of whether or not they were illiterates, feebleminded, or ex-convicts * — these being the classes of persons expressly disqualified from voting by Section 102 of the Election Code. In short, the constitutional and statutory qualifications were not considered in the determination of who should participate. No official ballots were used in the voting; it was done mostly by acclamation or open show of hands. Secrecy, which is one of the essential features of the election process, was not therefore observed. No set of rules for counting the votes or of tabulating them and reporting the figures was prescribed or followed. The Commission on Elections, which is the constitutional body charged with the enforcement and administration of all laws relative to the conduct of elections, took no part at all, either by way of supervision or in the assessment of the results. It has been suggested that since according to Proclamation No. 1102 the overwhelming majority of all the members of the Citizens Assemblies had voted for the adoption of the proposed Constitution there was a substantial compliance with Article XV, Section 1, of the 1935 Constitution and with the Election Code of 1971. The suggestion misses the point entirely. It is of the essence of a valid exercise of the right of suffrage that not only must a majority or plurality of the voters carry the day but that the same must be duly ascertained in accordance with the procedure prescribed by law. In other words the very existence of such majority or plurality depends upon the manner of its ascertainment, and to conclude that it exists even if it has not been ascertained according to law is simply to beg the issue, or to assume the very fact to be established. Otherwise no election or plebiscite could be questioned for non-compliance with the provisions of the Election Law as long as it is certified that a majority of the citizens had voted favorably or adversely on whatever it was that was submitted to them to vote upon.

QUESTION No. 5 Probably a period of at least seven (7) years moratorium on elections will be enough for stability to be established in the country, for reforms to take root and normalcy to return. QUESTION No. 6 We want President Marcos to continue with Martial Law. We want him to exercise his powers with more authority. We want him to be strong and firm so that he can accomplish all his reform program and establish normalcy in the country. If all other measures fail, we want President Marcos to declare a revolutionary government along the lines of the new Constitution without the ad interim Assembly."cralaw virtua1aw library So it was that on January 11, 1973, the second day of the purported referendum, the suggestion was broached, for the first time, that the plebiscite should be done away with and a favorable vote by the Assemblies deemed equivalent to ratification. This was done, not in the questionnaire itself, but in the suggested answer to question No. 3. Strangely, however, it was not similarly suggested that an unfavorable vote be considered as rejection. There should be no serious dispute as to the fact that the manner in which the voting was

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However, a finding that the ratification of the draft Constitution by the Citizens Assemblies, as certified by the President in Proclamation No. 1102, was not in accordance with the constitutional and statutory procedure laid down for the purpose does not quite resolve the questions raised in these cases. Such a finding, in our opinion, is on a matter which is essentially justiciable, that is, within the power of this Court to inquire into. It imports nothing more than a simple reading and application of the pertinent provisions of the 1935 Constitution, of the Election Code and of other related laws and official acts. No question of wisdom or of policy is involved. But from this finding it does not necessarily follow that this Court may justifiably declare that the Constitution has not become. effective, and for that reason give due course to these petitions or grant the writs herein prayed for. The effectivity of the said Constitution, in the final analysis, is the basic and ultimate question posed by these cases, to resolve which considerations other than judicial, and therefore beyond the competence of this Court, are relevant and unavoidable. Several theories have been advanced respectively by the parties. The petitioners lay stress on the invalidity of the ratification process adopted by the Citizens Assemblies and on that premise would have this Court grant the reliefs they seek. The respondents represented by the Solicitor General, whose theory may be taken as the official position of the Government, challenge the jurisdiction of this Court on the ground that the questions raised in the petitions

are political and therefore non-justiciable, and that in any case popular acquiescence in the new Constitution and the prospect of unsettling acts done in reliance thereon should caution against interposition of the power of judicial review. Respondents Gil J. Puyat and Jose Roy (in L 36165) in their respective capacities as President and President Pro Tempore of the Senate of the Philippines, and through their counsel, Senator Arturo Tolentino, likewise invoke the political question doctrine, but on a ground not concurred in by the Solicitor General, namely, that "the approval of the 1973 Constitution by the people was made under a revolutionary government, in the course of a successful political revolution, which was converted by act of the people to the present de jure government under the 1973 Constitution."cralaw virtua1aw library Heretofore, constitutional disputes which have come before this Court for adjudication proceeded on the assumption, conceded by all, that the Constitution was in full force and effect, with the power and authority of the entire Government behind it; and the task of this Court was simply to determine whether or not the particular act or statute that was being challenged contravened some rule or mandate of that Constitution. The process employed was one of interpretation and synthesis. In the cases at bar there is no such assumption: the Constitution (1935) has been derogated and its continued existence as well as the validity of the act of derogation is the issue. The legal problem posed by the situation is aggravated by the fact that the political arms of the Government — the Executive Departments and the two Houses of Congress — have accepted the new Constitution as effective: the former by organizing themselves and discharging their functions under it, and the latter by convening on January 22, 1973 or at any time thereafter, as ordained by the 1935 Constitution, and in the case of a majority of the members by expressing their option to serve in the Interim National Assembly in accordance with Article XVII, Section 2, of the 1973 Constitution. * The theory advanced by Senator Tolentino, as counsel for respondents Puyat and Roy, may be taken up and restated at some length if only because it would constitute, if sustained, the most convenient ground for the invocation of the political-question doctrine. In support of his theory, Senator Tolentino contends that after President Marcos declared martial law on September 21, 1972 (Proclamation No. 1081) he established a revolutionary government when he issued General Order No. 1 the next day, wherein he proclaimed "that I shall govern the nation and direct the operation of the entire government, including all its agencies and instrumentalities, in my capacity, and shall exercise all the powers and prerogatives appurtenant and incident to my position as such Commander-in-Chief of all the Armed Forces of the Philippines." By this order, it is pointed out, the Commander-in-Chief of the Armed Forces assumed all the powers of government — executive, legislative, and judicial; and thereafter proceeded to exercise such powers by a series of Orders and Decrees which amounted to legislative enactments not justified under martial law and, in some instances, trenched upon the domain of the judiciary, by removing from its jurisdiction certain classes of cases, such as "those involving the validity, legality, or constitutionality of Proclamation No. 1081, or of any decree, order or act issued, promulgated or performed by me or by my duly designated representative pursuant thereto." (General Order No. 3 as amended by General Order No. 3-A, dated September 24, 1972.) The ratification by the Citizens Assemblies, it is averred, was the culminating act of the revolution, which thereupon converted the government into a de jure one under the 1973 Constitution. If indeed it be accepted that the Citizens Assemblies had ratified the 1973 Constitution and that such ratification as well as the establishment of the government thereunder formed part of a revolution, albeit peaceful, then the issue of whether or not that Constitution has become effective and, as a necessary corollary, whether or not the government legitimately functions

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under it instead of under the 1935 Constitution, is political and therefore non- judicial in nature. Under such a postulate what the people did in the Citizens Assemblies should be taken as an exercise of the ultimate sovereign power. If they had risen up in arms and by force deposed the then existing government and set up a new government in its place, there could not be the least doubt that their act would be political and not subject to judicial review but only to the judgment of the same body politic act, in the context just set forth, is based on realities. If a new government gains authority and dominance through force, it can be effectively challenged only by a stronger force; no judicial dictum can prevail against it. We do not see that the situation would be any different, as far as the doctrine of judicial review is concerned, if no force had been resorted to and the people, in defiance of the existing Constitution not peacefully because of the absence of any appreciable opposition, ordained a new Constitution and succeeded in having the government operate under it. Against such a reality there can be no adequate judicial relief; and so courts forbear to take cognizance of the question but leave it to be decided through political means. The logic of the political-question doctrine is illustrated in a statement of the U.S. Supreme Court in a case relied upon, curiously enough, by the Solicitor General, who disagrees with the revolutionary government theory of Senator Tolentino. The case involved the issue of which of two opposing governments struggling for supremacy in the State of Rhode Island was the lawful one. The issue had previously come up in several other cases before the courts of the State, which uniformly held that the inquiry belonged to the political power and not to the judicial. Commenting on the ruling thus arrived at, the U.S. Supreme Court said: "And if a State court should enter upon the inquiry proposed in this case, and should come to the conclusion that the government under which it acted had been put aside and displaced by an opposing government, it would cease to be a court, and incapable of pronouncing a judicial decision upon the question it undertook to try. If it decides at all as a court, it necessarily affirms the existence and authority of the government under which it is exercising judicial power." In other words, since the court would have no choice but to decide in one way alone in order to be able to decide at all, the question could not be considered proper for judicial determination. It should be noted that the above statement from Luther v. Borden would be applicable in the cases at bar only on the premise that the ratification of the Constitution was a revolutionary act and that the government now functioning under it is the product of such revolution. However, we are not prepared to agree that the premise is justified. In the first place, with specific reference to the questioned ratification, several significant circumstances may be noted. (1) The Citizens Assemblies were created, according to Presidential Decree No. 86, "to broaden the base of citizen participation in the democratic process and to afford ample opportunities for the citizenry to express their views on important national issues." (2) The President announced, according to the Daily Express of January 2, 1973, that "the referendum will be in the nature of a loose consultation with the people." (3) The question, as submitted to them on the particular point at issue here, was "Do you approve of the Constitution?" (4) President Marcos, in proclaiming that the Constitution had been ratified, stated as follows:" (S)ince the referendum results show that more than ninety-five (95) per cent of the members of the Barangays (Citizens Assemblies) are in favor of the new Constitution, the Katipunan ng mga Barangay has strongly recommended that the new Constitution should already be deemed ratified by the Filipino people." (5) There was not enough time for the Citizens Assemblies to really familiarize themselves with the Constitution, much less with the many other subjects that were submitted to them. In fact the plebiscite planned for January 15, 1973 under Presidential Decree No. 73 had been postponed to an indefinite date, the reasons for the postponement being, as attributed to the President in the

newspapers, that "there was little time to campaign for or against ratification" (Daily Express, Dec. 22, 1972); that he would base his decision (as to the date of the plebiscite) on the compliance by the Commission (on Elections) on the publication requirement of the new Charter and on the position taken by national leaders" (Daily Express, Dec. 23, 1972); and that "the postponement would give us more time to debate on the merits of the Charter." (Bulletin Today, Dec. 24, 1972.) The circumstances above enumerated lead us to the conclusion that the Citizens Assemblies could not have understood the referendum to be for the ratification of the Constitution, but only for the expression of their views on a consultative basis. Indeed, if the expression of those views had been intended as an act of ratification (or of rejection as a logical corollary) — there would have been no need for the Katipunan ng mga Barangay to recommend that the Constitution should already be deemed ratified, for recommendation imports recognition of some higher authority in whom the final decision rests. But then the President, pursuant to such recommendation, did proclaim that the Constitution had been ratified and had come into effect. The more relevant consideration, therefore, as far as we can see, should be as to what the President had in mind in convening the Citizens Assemblies, submitting the Constitution to them and proclaiming that the favorable expression of their views was an act of ratification. In this respect subjective factors, which defy judicial analysis and adjudication, are necessarily involved. In positing the problem within an identifiable frame of reference we find no need to consider whether or not the regime established by President Marcos since he declared martial law and under which the new Constitution was submitted to the Citizens Assemblies was a revolutionary one. The pivotal question is rather whether or not the effectivity of the said Constitution by virtue of Presidential Proclamation No. 1102, upon the recommendation of the Katipunan ng mga Barangay, was intended to be definite and irrevocable, regardless of non-compliance with the pertinent constitutional and statutory provisions prescribing the procedure for ratification. We must confess that after considering all the available evidence and all the relevant circumstances we have found no reasonably reliable answer to the question. On one hand we read, for instance, the following public statements of the President:chanrob1es virtual 1aw library Speaking about the proclamation of martial law, he said:jgc:chanrobles.com.ph

the form of government which the people want . . . The implications of disregarding the people’s will are too awesome to be even considered. For if any power in government should even dare to disregard the people’s will there would be valid ground for revolt."cralaw virtua1aw library ". . . Let it be known to everybody that the people have spoken and they will no longer tolerate any attempt to undermine the stability of their Republic; they will rise up in arms not in revolt against the Republic but in protection of the Republic which they have installed. It is quite clear when the people say, we ratify the Constitution, that they mean they will not discard, the Constitution."cralaw virtua1aw library On January 19, 1973 the Daily Express published a statement of the President made the day before, from which the following portion is quoted:jgc:chanrobles.com.ph ". . . the times are too grave and the stakes too high for us to permit the customary concessions to traditional democratic process to hold back our people’s clear and unequivocal resolve and mandate to meet and overcome the extraordinary challenges presented by these extraordinary times."cralaw virtua1aw library On the same occasion of the signing of Proclamation No. 1102 the President made pointed reference to "the demand of some of our citizens . . . that when all other measures should fail, that the President be directed to organize and establish a Revolutionary Government," but in the next breath added: ". . . if we do ratify the Constitution how can we speak of a Revolutionary Government? They cannot be compatible . . ." "(I)t is my feeling," he said, "that the Citizens’ Assemblies which submitted this recommendation merely sought to articulate their impatience with the status quo that has brought about anarchy, confusion and misery to the masses . . ." The only alternatives which the President clearly implied by the foregoing statements were the ratification of the new Constitution and the establishment of a revolutionary government, the latter being unnecessary, in his opinion, because precisely the Constitution had been ratified. The third obvious alternative was entirely ruled out, namely, a return to the 1935 Constitution, for it was the status quo under that Constitution that had caused "anarchy, confusion and misery." The message seems clear: rather than return to such status quo, he would need the recommendation of the Citizens’ Assemblies to establish a revolutionary government, because that would be the only other way to carry out the reforms he had envisioned and initiated — reforms which, in all fairness and honesty, must be given credit for the improved quality of life in its many aspects, except only in the field of civil liberties.

"I reiterate what I have said in the past: there is no turning back for our people. "We have committed ourselves to this revolution. We have pledged to it our future, our fortunes, our lives, our destiny. We have burned our bridges behind us. Let no man misunderstand the strength of our resolution." (A Report to the National, Jan. 7, 1913.) On the occasion of the signing of Proclamation No. 1102 on January 17, 1973, President said the following, among other things:jgc:chanrobles.com.ph ". . . We can, perhaps delimit the power of the people to speak on legal matters, on justiciable matters, on matters that may come before the experts and interpreters of the law. But we cannot disqualify the people from speaking on what we and the people consider purely political matters especially those that affect the fundamental law of the land. ". . . The political questions that were presented to the people are exactly those that refer to

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If there is any significance, both explicit and implicit, and certainly unmistakable, in the foregoing pronouncements, it is that the step taken in connection with the ratification of the Constitution was meant to be irreversible, and that nothing anyone could say would make the least difference. And if this is a correct and accurate assessment of the situation, then we would say that since it has been brought about by political action and is now maintained by the government that is in undisputed authority and dominance, the matter lies beyond the power of judicial review. On the other hand, by avowals no less significant if not so emphatic in terms, President Marcos has professed fealty to the Constitution. In "Today’s Revolution: Democracy" he says:jgc:chanrobles.com.ph "I believe, therefore, in the necessity of Revolution as an instrument of individual and social change . . . but that in a democratic society, revolution is of necessity, constitutional, peaceful,

and legal."cralaw virtua1aw library In his TV address of September 23, 1972, President Marcos told the nation:jgc:chanrobles.com.ph "I have proclaimed martial law in accordance with the powers vested in the President by the Constitution of the Philippines. "x

x

x

"I repeat, this is not a military takeover of civil government functions. The Government of the Republic of the Philippines which was established by our people in 1946 continues. "x

x

x

"I assure you that I am utilizing this power vested in me by the Constitution to save the Republic and reform our society . . . "I have had to use this constitutional power in order that we may not completely lose the civil rights and freedom which we cherish . . . ". . . We are against the wall. We must now defend the Republic with the stronger powers of the Constitution."cralaw virtua1aw library (Vital Documents, pp. 1-12; Italics supplied)

the 1973 Constitution to the successful implementation of the social and economic reforms he has started or envisioned. If he should decide that there is no turning back, that what the people recommended through the Citizens Assemblies, as they were reported to him, demanded that the action he took pursuant thereto be final and irrevocable, then judicial review is out of the question. In articulating our view that the procedure of ratification that was followed was not in accordance with the 1935 Constitution and related statutes, we have discharged our sworn duty as we conceive it to be. The President should now perhaps decide, if he has not already decided, whether adherence to such procedure is weighty enough a consideration, if only to dispel any cloud of doubt that may now and in the future shroud the nation’s Charter. In the deliberations of this Court one of the issues formulated for resolution is whether or not the new Constitution, since its submission to the Citizens Assemblies, has found acceptance among the people, such issue being related to the political question theory propounded by the respondents. We have not tarried on the point at all since we find no reliable basis on which to form a judgment. Under a regime of martial law, with the free expression of opinions through the usual media vehicles restricted, we have no means of knowing, to the point of judicial certainty, whether the people have accepted the Constitution. In any event, we do not find the issue decisive insofar as our vote in these cases is concerned. To interpret the Constitution — that is judicial. That the Constitution should be deemed in effect because of popular acquiescence — that is political, and therefore beyond the domain of judicial review. We therefore vote not to give due course to the instant petitions. Separate Opinions

In the report of an interview granted by the President to the Newsweek Magazine (published in the issue of January 29, 1973), the following appears:jgc:chanrobles.com.ph "x

x

x

"Q. Now that you have gotten off the constitutional track, won’t you be in serious trouble if you run into critical problems with your programs? "A. I have never gotten off the constitutional track. Everything I am doing is in accordance with the 1930 Constitution. The only thing is that instead of 18 year olds voting, we have allowed 15-year-olds the night to vote. But the 15-year-olds of today are high school students, if not graduates, and they are better informed than my contemporaries at that age. On the matter of whether it is constitutional to proclaim martial law, it is constitutional because the Constitution provides for it in the event of invasion, insurrection, rebellion or immediate danger thereof. We may quarrel about whether what we have gone through is sufficient cause to proclaim martial law but at the very least there is a danger of rebellion because so many of our soldiers have been killed. You must remember this (martial law provision) was lifted from the American legislation that was the fundamental law of our country. "x

x

x"

In the light of this seeming ambivalence, the choice of what course of action to pursue belongs to the President We have earlier made reference to subjective factors on which this Court, to our mind, is in no position to pass judgment. Among them is the President’s own assessment of the will of the people as expressed through the Citizens Assemblies and of the importance of

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BARREDO, J.:

As far as I am concerned, I regard the present petitions as no more than mere reiterations of the Supplemental Petitions filed by Counsel Lorenzo M. Tañada on January 15, 1973 in the so called Plebiscite Cases decided by this Court on January 22, 1973. Of course, there are amplifications of some of the grounds previously alleged, and in the course of the unprecedented five day hearing that was held from February 12 to 16 last, more extensive and illuminating arguments were heard by Us, but, in my estimation, and with due recognition of the sincerity, brilliance and eloquence of counsels, nothing more cogent and compelling than what had already been previously presented by Counsel Tañada is before Us now. Accordingly, I cannot see any reason why I should change the position I took in regard to the earlier cases. I reiterate, therefore, the vote I cast when these petitions were initially considered by the Court, namely, to dismiss them. In view, however, of the transcendental importance of the issues before the Court and the significance to our people and in history of the individual stands of the members of the Court in relation to said issues and to the final outcome of these cases, and considering that I reserved before the filing of a more extended opinion, I will take this opportunity to explain further why I hold that the 1973 Constitution is already in force, if only to clarify that apart from the people’s right of revolution to which I made pointed reference in my previous opinion, r can see now, after further reflection, that the vote of the people in the referendum in the Citizens Assemblies held on January 10 to 15, 1973, upon the result of which Proclamation 1102

is based, may be viewed more importantly as a political act than as a purely legal one, with the result that such vote to consider the 1973 Constitution as ratified without the necessity of holding a plebiscite in the form followed in the previous ratification plebiscites in 1935 of the Constitution itself, 1937 of women’s suffrage, 1939 of the amendments to the Ordinance Appended to the Constitution, 1940 of the reelection of the President, the bicameral legislature and the Commission on Elections, 1947 of the parity amendments and 1967, rejecting the proposed increase in the members of the House of Representatives and eligibility of members of Congress to the Constitutional Convention, may be deemed as a valid ratification substantially in compliance with the basic intent of Article XV of the 1935 Constitution. If indeed this explanation may be considered as a modification of my rationalization then, I wish to emphasize that my position as to the fundamental issue regarding the enforceability of the new Constitution is even firmer now than ever before. As I shall elucidate anon, paramount considerations of national import have led me to the conviction that the best interests of all concerned would be best served by the Supreme Court holding that the 1973 Constitution is now in force, not necessarily as a consequence of the revolutionary concept previously suggested by me, but upon the ground that as a political, more than as a legal, act of the people, the result of the referendum may be construed as a compliance with the substantiality of Article XV of the 1935 Constitution. I.

The facts that gave rise to these proceedings are historical and well known. Generally, they may be taken judicial notice of. They revolve around the purported ratification of the Constitution of 1973 declared in Proclamation 1102 issued by the President on January 17, 1973. Pursuant to a joint resolution of the Congress sitting as a constituent assembly approved on March 16, 1967, delegates to a constitutional convention to propose amendments to the Constitution of 1935 were elected in accordance with the implementing law, Republic Act 6132, on November 10, 1970. Known as the Constitutional Convention of 1971, the assembly began its sessions on June 1, 1971. After encountering a lot of difficulties, due to bitter rivalries over important positions and committees and an incomprehensible fear of overconcentrating powers in their officers, the delegates went about their work in comparatively slow pace, and by the third quarter of 1972 had finished deliberations and second-reading voting only on an insignificant number of proposals — until September 21, 1972, when the President, not altogether unexpectedly, yet abruptly, issued Proclamation 1081 declaring martial law throughout the country. An attempt was made to have the Convention recessed until after the lifting of martial law, and not long after the motion of Delegate Kalaw to such effect was turned down, the activities within the assembly shifted to high gear. As if unmindful of the arrest and continued detention of several of its members, the convention gathered swift momentum in its work, and on November 30, 1972, it approved by overwhelming vote the draft of a complete constitution, instead of mere specific amendments of particular portions of the Constitution of 1935. Needless to say, before martial law was declared, there was full and unlimited coverage of the workings in the convention by the mass media. At the same time, public debates and discussions on various aspects of proposed amendments were not uncommon. Earlier, on November 22, 1972, the Convention had approved Resolution No. 5843 proposing "to President Ferdinand E. Marcos that a decree be issued calling a plebiscite for the ratification of the proposed new Constitution on such appropriate date as he shall determine and providing for the necessary funds there for." Acting under this authority, on December 1, 1972, the

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President issued Presidential Decree No. 73 submitting the draft constitution for ratification by the people at a plebiscite set for January 15, 1973. This order contained provisions more or less similar to the plebiscite laws passed by Congress relative to the past plebiscites held in connection with previous proposed amendments. In connection with the plebiscite thus contemplated, General Order No. 17 was issued ordering and enjoining the authorities to allow and encourage public and free discussions on the proposed constitution. Not only this, subsequently, under date of December 17, 1972, the President ordered the suspension of the effects of martial law and lifted the suspension of the privilege of the writ of habeas corpus insofar as activities connected with the ratification of the draft constitution were concerned. These two orders were not, however, to last very long. On January 7, 1973, the President, invoking information related to him that the area of public debate and discussion he had opened by his previous orders was being taken advantage of by subversive elements to defeat the purposes for which they were issued and to foment public confusion, withdrew said orders and enjoined full and stricter implementation of martial law. In the meantime, the President had issued on December 31, 1972 Presidential Decree No. 86 creating Citizens Assemblies "so as to afford ample opportunities for the citizenry to express their views on important national issues" and one of the questions presented to said assemblies was: "Do you like the plebiscite on the proposed Constitution to be held later" So, in the same order of January 7, 1973, General Order No. 20, the President ordered, "that the plebiscite scheduled to be held on January 15, 1973, be postponed until further notice."cralaw virtua1aw library In the meanwhile also, on January 5, 1973, the President issued Presidential Decree No. 86-A providing as follows:jgc:chanrobles.com.ph "PRESIDENTIAL DECREE NO. 86-A STRENGTHENING AND DEFINING THE ROLE OF BARANGAYS (CITIZENS ASSEMBLIES) WHEREAS, on the basis of preliminary and initial reports from the field as gathered from barangays (citizens assemblies) that have so far been established, the people would like to decide for themselves questions or issues, both local and national, affecting their day to day lives and their future; WHEREAS, the barangays (citizens assemblies) would like themselves to be the vehicle for expressing the views of the people on important national issues; WHEREAS, such barangays (citizens assemblies) desire that they be given legal status and due recognition as constituting the genuine, legitimate and valid expression of the popular will; and WHEREAS, the people would like the citizens assemblies to conduct immediately a referendum on certain specified questions such as the ratification of the new Constitution, continuance of martial law, the convening of Congress on January 22, 1973, and the elections in November 1973 pursuant to the 1935 Constitution. NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the

powers vested in me by the constitution as Commander-in-Chief of all Armed Forces of the Philippines, do hereby declare as part of the law of the land the following:chanrob1es virtual 1aw library

accordance with Presidential Decree No. 86-A dated January 5, 1973 and that the initial referendum shall include the matter of ratification of the Constitution proposed by the 1971 Constitutional Convention.

1. The present barangays (citizens assemblies) are created under Presidential Decree No. 86 dated December 31, 1972, shall constitute the base for citizen participation in governmental affairs and their collective views shall be considered in the formulation of national policies or programs and, wherever practicable, shall be translated into concrete and specific decision;

The Secretary of the Department of Local Governments and Community Development shall insure the implementation of this Order.

2. Such barangays (citizens assemblies) shall consider vital national issues now confronting the country, like the holding of the plebiscite on the new Constitution, the continuation of martial rule, the convening of Congress on January 22, 1973, and the holding of elections in November 1973, and others in the future, which shall serve as guide or basis for action or decision by the national government;

Done in the City of Manila, this 7th day of January in the year of Our Lord, nineteen hundred and seventy three."cralaw virtua1aw library And so it was that by January 10, 1973, when the Citizens Assemblies thus created started the referendum which was held from said date to January 15, 1973, the following questions were submitted to them:jgc:chanrobles.com.ph "(1) Do you like the New Society?

3. The barangays (citizens assemblies) shall conduct between January 10 and 15, 1973, a referendum on important national issues, including those specified in paragraph 2 hereof, and submit the results thereof to the Department of Local Governments and Community Development immediately thereafter, pursuant to the express will of the people as reflected in the reports gathered from the many thousands of barangays (citizens assemblies) throughout the country. 4. This Decree shall take effect immediately.

(2) Do you like the reforms under martial law? "(3) Do you like Congress again to hold sessions? "(4) Do you like the plebiscite to be held later? "(5) Do you like the way President Marcos is running the affairs of the government?."cralaw virtua1aw library

Done in the City of Manila, this 5th day of January, in the year of Our Lord, nineteen hundred and seventy three."cralaw virtua1aw library

but on January 11, 1973, six questions were added as follows:jgc:chanrobles.com.ph

And on January 7, 1973, this was followed by Presidential Decree No. 86-B reading thus:jgc:chanrobles.com.ph

"(1) Do you approve of the citizens assemblies as the base of popular government to decide issues of national interests?

"PRESIDENTIAL DECREE NO. 86-B

(2) Do you approve of the new Constitution?

DEFINING FURTHER THE ROLE OF BARANGAYS (CITIZENS ASSEMBLIES)

(3) Do you want a plebiscite to be called to ratify the new Constitution?

WHEREAS, since their creation pursuant to Presidential Decree No. 86 dated December 31, 1972, the Barangays (Citizens Assemblies) have petitioned the Office of the President to submit to them for resolution important national issues;

"(4) Do you want the elections to be held in November, 1973 in accordance with the provisions of the 1935 Constitution? "(5) If the elections would not be held, when do you want the next elections to be called?

WHEREAS, one of the questions persistently mentioned refers to the ratification of the Constitution proposed by the 1971 Constitutional Convention; "WHEREAS, on the basis of the said petitions, it is evident that the people believe that the submission of the proposed Constitution to the Citizens Assemblies or Barangays should be taken as a plebiscite in itself in view of the fact that freedom of debate has always been limited to the leadership in political, economic and social fields, and that it is now necessary to bring this down to the level of the people themselves through the Barangays or Citizens Assemblies;

"(6) Do you want martial law to continue?" It is not seriously denied that together with the questions, the voters were furnished "comments" on the said questions more or less suggestive of the answer desired. It may be assumed that the said "comments" came from official sources, albeit specifically unidentified. As petitioners point out, the most relevant of these "comments" were the following:jgc:chanrobles.com.ph "COMMENTS ON

NOW THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the Constitution, do hereby order that important national issues shall from time to time be referred to the Barangays (Citizens Assemblies) for resolution in

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QUESTION No. 2

But we do not want the Ad Interim Assembly to be convoked. Or if it is to be convened at all, it should not be done so until after at least seven (7) years from the approval of the New Constitution by the Citizens Assemblies. QUESTION No. 3 The vote of the Citizens Assemblies should already be considered the plebiscite on the New Constitution. If the Citizens Assemblies approve of the new Constitution, then the new Constitution should be deemed ratified" The Solicitor General claims, and there seems to be no showing otherwise, that the results of the referendum were determined in the following manner:jgc:chanrobles.com.ph "Thereafter, the results of the voting were collated and sent to the Department of Local Governments. The transmission of the results was made by telegram, telephone, the provincial government SSB System in each province connecting all towns; the SSB communication of the PACD connecting most provinces; the Department of Public Information Network System; the Weather Bureau Communication System connecting provincial capitals and the National Civil Defense Network connecting all provincial capitals. The certificates of results were then flown to Manila to confirm the previous figures received by the aforementioned means of transmission. The certificates of results tallied with the previous figures taken with the exception of few cases of clerical errors. "The Department adopted a system of regionalizing the receiving section of the Citizens Assemblies operation at the Department wherein the identity of the barrio and the province was immediately given to a staff in charge of each region. Every afternoon at 2:00 o’clock, the 11 regions submitted the figures they received from the field to the central committee to tabulate the returns. The last figures were tabulated at 12 midnight of January 16, 1973 and early morning of January 17, 1973 and were then communicated to the President by the Department of Local Governments."cralaw virtua1aw library The development culminated in the issuance by the President of Proclamation 1102 on January 17, 1978. Said proclamation reads:jgc:chanrobles.com.ph "PROCLAMATION NO. 1102 ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION. WHEREAS, the Constitution proposed by the nineteen hundred seventy-one Constitutional Convention is subject to ratification by the Filipino people; "WHEREAS, Citizens Assemblies were created in barrios in municipalities and in districts/wards in chartered cities pursuant to Presidential Decree No. 6, dated December 31, 1972, composed of all persons who are residents of the barrio, district or ward for at least six months, fifteen years of age or over, citizens of the Philippines and who are registered in the list of Citizen Assembly members kept by the barrio, district or ward secretary; WHEREAS, the said Citizens Assemblies were established precisely to broaden the base of citizen participation in the democratic process and to afford ample opportunity for the citizenry to express their views on important national issues;

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WHEREAS, responding to the clamor of the people and pursuant to Presidential Decree No. 86A, dated January 5, 1973, the following questions were posed before Citizens’ Assemblies or Barangays: Do you approve of the New Constitution? Do you still want a plebiscite to be called to ratify the new Constitution? WHEREAS, fourteen million nine hundred seventy six thousand five hundred sixty one (14,976,561) members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed Constitution, as against seven hundred forty-three thousand eight hundred sixty nine (743,869) who voted for its rejection; while on the question as to whether or not the people would still like a plebiscite to be called to ratify the new Constitution, fourteen million two hundred ninety eight thousand eight hundred fourteen (14,298,814) answered that there was no need for a plebiscite and that the vote of the Barangays (Citizens Assemblies) should be considered as a vote in a plebiscite; WHEREAS, since the referendum results show that more than ninety five (95) percent of the members of the Barangays (Citizens Assemblies) are in favor of the New Constitution, the Katipunan ng Mga Barangay has strongly recommended that the new Constitution should already be deemed ratified by the Filipino people; "NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the Constitution, do hereby certify and proclaim that the Constitution proposed by the nineteen hundred and seventy-one (1971) Constitutional Convention has been ratified by an overwhelmingly majority of all of the votes cast by the members of all the Barangays (Citizens Assemblies) throughout the Philippines, and has thereby come into effect. IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the Philippines to be affixed. Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen hundred and seventy-three."cralaw virtua1aw library The first attempt to question the steps just enumerated taken by the President was in the so called Plebiscite Cases, ten in number, which were filed by different petitioners during the first half of December 1972. 1 Their common target then was Presidential Decree No. 73, but before the said cases could be decided, the series of moves tending in effect to make them moot and academic insofar as they referred exclusively to the said Presidential Decree began to take shape upon the issuance of Presidential Decree No. 86-A, quoted above. And when Presidential Decree No. 86-B, also above quoted, was issued and the six additional questions which were first publicized on January 11, 1973 were known, together with the "comments", petitioners sensed that a new and unorthodox procedure was being adopted to secure approval by the people of the new Constitution, hence Counsel Tañada, not being satisfied with the fate of his urgent motion for early decision of the above ten cases dated January 12, 1973, filed on January 15, 1973, his supplemental motion seeking the prohibition against and injunction of the proceedings going on. Principal objective was to prevent that the President be furnished the report of the results of the referendum and thereby disable him from carrying out what petitioners were apprehensively foreseeing would be done — the issuance of some kind of proclamation, order or decree, declaring that the new Constitution had been ratified. Reacting swiftly, the Court resolved on the same day, January 15, which was Monday, to consider the supplemental motion as a supplemental petition and to require the respondents to answer the

same the next Wednesday, January 17th, before the hour of the hearing of the petition which was set for 9:30 o’clock in the morning of that day. The details of what happened that morning form part of the recital of facts in the decision rendered by this Court in the ten cases on January 22, 1973 and need not be repeated here. Suffice it to state now that before the hearing could be closed and while Counsel Tañada was still insisting on his payer for preliminary injunction or restraining order, the Secretary of Justice arrived and personally handed to the Chief Justice a copy of Proclamation 1102 which had been issued at about 11:00 o’clock that same morning. In other words, the valiant and persistent efforts of petitioners and their counsels were overtaken by adverse developments, and in the mind of the majority of the members of the Court, the cases had become academic. For my part, I took the view that even on the basis of the supplemental petition and the answer thereto filed by respondents, the Court could already decide on the fundamental issue of the validity of Proclamation 1102, as Justices Zaldivar, Antonio and Esguerra also believed, inasmuch as Counsel Tañada’s pleading and argument had anticipated its issuance, but the majority felt it was not ready to resolve the matter, for lack, according to them, of full ventilation, and so, the decision reserved to petitioners the filing of the "appropriate" cases, evidently, the present ones. II.

At the threshold, I find myself confronted by a matter which, although believed to be inconsequential by my learned brethren, I strongly feel needs special attention. I refer to the point raised by Counsel Arturo M. Tolentino for respondents Gil J. Puyat and Jose Roy, who have been sued as President and President Pro Tempore of the Senate, to the effect that the change in the composition of the Supreme Court provided for in the 1973 Constitution, from the 11-man tribunal under the 1935 Constitution to a 15-man Court, makes of these cases which were filed after January 17, 1973, the date when Proclamation 1102 declared the new Constitution as ratified, political in nature and beyond our jurisdiction. The main consideration submitted in this connection is that inasmuch as the number of votes needed for a decision of this Court has been increased from six to eight in ordinary cases and from eight to ten for the declaration of unconstitutionality of a treaty, executive agreement 2 or law, the Court would have to resolve first as a prejudicial question whether the Court is acting in these cases as the 15-man or the 11-man Court, in which event, it would be faced with the dilemma that if it acts either as the former or as the latter, it would be prejudging the very matter in issue one way or the other, and, in effect, it would be choosing between two constitutions, which is a political determination not within the Court’s competence. While I agree that the problem is at first blush rather involved, I do not share the view that the premises laid down by counsel necessarily preclude this Court from taking a definite stand on whether the Court is acting in these cases as the 15-man or the 11-man Court. I feel very strongly that the issue should not be ignored or dodged, if only to make the world know that the Supreme Court of the Philippines is never incognizant of the capacity in which it is acting, much less lacking in courage or wisdom to resolve an issue that relates directly to its own composition. What a disgrace it would be to admit that this Supreme Court does not know, to use a common apt expression, whether it is fish or fowl. Withal, scholars and researchers who might go over our records in the future will inevitably examine minutely how each of us voted and upon what considerations we have individually acted, and, indeed, doubts may arise as to whether or not, despite the general result we might announce, there had been the requisite number of votes for a valid collegiate action. For instance, it may be argued that the present cases do not involve an issue of

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unconstitutionality, hence, if we are acting as the 11-man Court, only six votes would suffice to declare Proclamation 1102 ineffective, and if upon analysis of our respective opinions it should be inferable therefrom that six of us have considered the matter before the Court as justiciable and at the same time have found the procedure of ratification adopted in Presidential Decrees 86A and 86-B and related orders of the President as not being in conformity with Article XV of the old Constitution, a cloud would exist as to the efficacy of the dispositive portion of Our decision dismissing these cases, even if we have it understood that by the vote of six justices in favor of such dismissal, We intended to mean that the implementation or enforcement of the new Constitution now being done could continue Be that as it may, I am against leaving such an important point open to speculation. By nature I am averse to ambiguity and equivocation, and as a member of the Supreme Court, the last thing I should knowingly countenance is uncertainty as to the juridical significance of any decision of the Court which is precisely being looked upon as the haven in which doubts are supposed to be authoritatively dispelled. Besides, from the very nature of things, one thing is indubitably beyond dispute — we cannot act in both capacities of a 15-man and an 11-man Court at the same time, in like manner that it is inconceivable that the 1935 and 1973 Constitution can be considered by Us as both in force. Our inescapable duty is to make a choice between them, according to what law and other considerations inherent to our function dictate. I cannot bear the thought that someone may someday say that the Supreme Court of the Philippines once decided a case without knowing the basis of its authority to act or that it was ever wanting in judicial courage to define the same. Accordingly, with full consciousness of my limitations but compelled by my sense of duty and propriety to straighten out this grave issue touching on the capacity in which the Court is acting in these cases, I hold that we have no alternative but to adopt in the present situation the orthodox rule that when the validity of an act or law is challenged as being repugnant to a constitutional mandate, the same is allowed to have effect until the Supreme Court rules that it is unconstitutional. Stated differently, We have to proceed on the assumption that the new Constitution is in force and that We are acting in these present cases as the 15-man Supreme Court provided for therein. Contrary to counsel’s contention, there is here no prejudgment for or against any of the two constitutions. The truth of the matter is simply that in the normal and logical conduct of governmental activities, it is neither practical nor wise to defer the course of any action until after the courts have ascertained their legality, not only because if that were to be the rule, the functioning of government would correspondingly be undesirably hesitative and cumbersome, but more importantly, because the courts must at the first instance accord due respect to the acts of the other departments, as otherwise, the smooth running of the government would have to depend entirely on the unanimity of opinions among all its departments, which is hardly possible, unless it is assumed that only the judges have the exclusive prerogative of making and enforcing the law, aside from being its sole interpreter, which is contrary to all norms of juridical and political thinking. To my knowledge, there is yet no country in the world that has recognized judicial supremacy as its basic governmental principle, no matter how desirable we might believe the idea to be. Indeed, it is not hard to visualize the difficulty if not absurdity of Our acting on the assumption that this Court is still functioning under the 1935 Constitution. It is undeniable that the whole government, including the provincial, municipal and barrio units and not excluding the lower courts up to the Court of Appeals, is operating under the 1973 Constitution. Almost daily, presidential orders and decrees of the most legislative character affecting practically every aspect of governmental and private activity as well as the relations between the government and the citizenry are pouring out from Malacañang under the authority of said

Constitution. On the other hand, taxes are being exacted and penalties in connection therewith are being imposed under said orders and decrees. Obligations have been contracted and business and industrial plans have been and are being projected pursuant to them. Displacements of public officials and employees in big numbers are going on in obedience to them. For the ten justices of the Supreme Court to constitute an island of resistance in the midst of these developments, which even unreasoning obstinacy cannot ignore, much less impede, is unimaginable, let alone the absurd and complicated consequences such a position entails in the internal workings within the judiciary amount its different components, what with the lower courts considering such orders and decrees as forming part of the law of the land in making their orders and decisions, whereas the Supreme Court is holding, as it were, their effectivity at bay if it is not being indifferent to or ignoring them. It is suggested that the President, being a man of law, is committed to abide by the decision of the Supreme Court, and if the Court feels that it cannot in the meantime consider the enforcement of the new Constitution, he can wait for its decision. Accepting the truth of this assertion, it does not necessarily follow that by this attitude of the President, he considers the Supreme Court as still operating under the Old Constitution. Quite on the contrary, it is a fact that he has given instructions for the payment of the justices in accordance with the rate fixed in the New Constitution. Not only that, his official alter ego, the Secretary of Justice, has been shoving to this Court, since January 18, 1973, all matters related to the administrative supervision of the lower courts which by the new charter has been transferred from the Department of Justice to the Supreme Court, and as far as I know, the President has not countermanded the Secretary’s steps in that direction. That, on the other hand, the President has not augmented the justices of the Court to complete the prescribed number of fifteen is, in my appraisal, of no consequence, considering that with the presence of ten justices who are in the Court now, there is a working quorum, and the addition of new justices cannot in anyway affect the voting on the constitutional questions now before Us because, while there are sufficient justices to declare by their unanimous vote the illegality of Proclamation 1102, the votes of the justices to be added would only be committed to upholding the same, since they cannot by any standard be expected to vote against the legality of the very Constitution under which they would be appointed. Moreover, what makes the premise of presumptive validity preferable and, even imperative, is that We are dealing here with a whole constitution that radically modifies or alters not only the form of our government from presidential to parliamentary but also other constitutionally based institutions vitally affecting all levels of society. It is, to my mind, unrealistic to insist on that, fundamentally, the 1973 Constitution is the same 1935 Constitution. with a few improvements. A cursory perusal of the former should convince anyone that it is in essence a new one. While it does retain republicanism as the basic governmental tenet, the institutional changes introduced thereby are rather radical and its social orientation is decidedly more socialistic, just as its nationalistic features are somewhat different in certain respects. One cannot but note that the change embraces practically every part of the old charter, from its preamble down to its amending and effectivity clauses, involving as they do the statement of general principles, the citizenship and suffrage qualifications, the articles on the form of government, the judiciary provisions, the spelling out of the duties and responsibilities not only of citizens but also of officers of the government and the provisions on the national economy as well as the patrimony of the nation, not to mention the distinctive features of the general provisions. What is more, the transitory provisions notably depart from traditional and orthodox views in that, in general, the powers of government during the interim period are more or less concentrated in the President, to the extent that the continuation or discontinuance of what is now practically a one-man-rule, is even left to his discretion. Notably,

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the express ratification of all proclamations, orders, decrees and acts previously issued or done by the President, obviously meant to encompass those issued during martial law, is a commitment to the concept of martial law powers being implemented by president Marcos, in defiance of traditional views and prevailing jurisprudence, to the effect that the Executive’s power of legislation during a regime of martial law is all inclusive and is not limited to the matters demanded by military necessity. In other words, the new constitution unlike any other constitution countenances the institution by the executive of reforms which normally is the exclusive attribute of the legislature. Withal, the best proofs that by its expressed and implied intent, the Constitution of 1973 is a new one, are that (1) Section 16 of its Article XVII which provides that this constitution shall "supersede the Constitution of nineteen hundred and thirty-five and all amendments thereto" and (2) its transitory provisions expressly continue the effectivity of existing laws, offices and courts as well as the tenure of all incumbent officials, not adversely affected by it, which would have been unnecessary if the old constitution were being merely amended. The new Constitution, in its Section 10, Article XVII, provides that" (T)he incumbent members of the Judiciary (which include the Chief Justice and Associate Justices of the Supreme Court) may continue in office (under the new constitution) until they reach the age of seventy years, etc." By virtue of the presumptive validity of the new charter, all of Us form part of the 15-man-Court provided for therein and, correspondingly, We have in legal contemplation, ceased in the meanwhile to be members of the 11-man-Court in the 1935 Constitution. Should the Court finally decide that the new Constitution is invalid, then We would automatically revert to our positions in the 11-man Court, otherwise, We would just continue to be in our membership in the 15 man-Court, unless We feel We cannot in conscience accept the legality of its existence. On the other hand, if it is assumed that We are still the 11-man-Court and it happens that Our collective decision is in favor of the new constitution, it would be problematical for any dissenting justice to consider himself as included automatically in the 15man-Court, since that would be tantamount to accepting a position he does not honestly believe exists. III

In brief, the main contention of the petitioners is that Proclamation 1102 is invalid because the ratification of the 1973 Constitution it purports to declare as having taken place as a result of the referendum above-referred to is ineffective. Since it cannot be said on the basis of the said referendum that said Constitution has been "approved by a majority of the votes cast at an election" in the manner prescribed by Article XV of the Constitution of 1935. More specifically, they maintain that the word "election" in the said Article has already acquired a definite accepted meaning out of the consistent holding in the past of ratification plebiscites, and accordingly, no other form of ratification can be considered contemplated by the framers of the Old Constitution than that which had been followed in 1935, 1937, 1939, 1940, 1946 and 1967, the last three or four of which were held under the supervision of the Commission on Elections. Furthermore, they emphatically deny the veracity of the proclaimed results of the referendum because, according to them the referendum was a farce and its results were manufactured or prefabricated, considering that Mr. Francisco Cruz, who is supposed to have submitted the final report to the President, which served as basis for Proclamation 1102, had no official authority to render the same, and it is inconceivable and humanly impossible for anyone to have been able to gather, tabulate and canvass the 15 million votes allegedly reported within the short period of time employed. Of course, they also contend that in any

event, there was no proper submission because martial law per se creates constructive duress which deprives the voters of the complete freedom needed for the exercise of their right of choice and actually, there was neither time nor opportunity for real debate before they voted. On the other hand, the position of the Solicitor General as counsel for the respondents is that the matter raised in the petitions is a political one which the courts are not supposed to inquire into, and, anyway, there has been a substantial compliance with Article XV of the 1935 Constitution, inasmuch as, disregarding unessential matters of form, the undeniable fact is that the voting in the referendum resulted in the approval by the people of the New Constitution. I need not dwell at length on these variant positions of the parties. In my separate opinion in the Plebiscite Cases, I already made the observation that in view of the lack of solemnity and regularity in the voting as well as in the manner of reporting and canvassing conducted in connection with the referendum, I cannot say that Article XV of the Old Constitution has been complied with, albeit I held that nonetheless, the Constitution of 1973 is already in force. In order, however, to make myself clearer on some relevant points, I would like to add a few considerations to what I have already said in the former cases. In my opinion in those cases, the most important point I took into account was that in the face of the Presidential certification through Proclamation 1102 itself that the New Constitution has been approved by a majority of the people and having in mind facts of general knowledge which I have taken judicial notice of, I am in no position to deny that the result of the referendum was as the President had stated. I can believe that the figures referred to in the proclamation may not be accurate, but I cannot say in conscience that all of them are manufactured or prefabricated, simply because I saw with my own eyes that people did actually gather and listen to discussions, if brief and inadequate for those who are not abreast of current events and general occurrences, and that they did vote. I believe I can safely say that what I have seen have also been seen by many others throughout the country and unless it can be assumed, which honestly, I do not believe to be possible, that in fact there were actually no meetings held and no voting done in more places than those wherein there were such meetings and votings, I am not prepared to discredit entirely the declaration that there was voting and that the majority of the votes were in favor of the New Constitution. If in fact there were substantially less than 14 million votes of approval, the real figure, in my estimate, could still be significant enough and legally sufficient to serve as basis for a valid ratification. It is contended, however, that the understanding was that the referendum among the Citizens Assemblies was to be in the nature merely of a loose consultation and not an outright submission for purposes of ratification. I can see that at the outset, when the first set of questions was released, such may have been the idea. It must not be lost sight of, however, that if the newspaper reports are to be believed, and I say this only because petitioners would consider the newspapers as the official gazettes of the administration, the last set of six questions were included precisely because the reaction to the idea of mere consultation was that the people wanted greater direct participation, thru the Citizens Assemblies, in decisionmaking regarding matters of vital national interest. Thus, looking at things more understandingly and realistically, the two questions emphasized by counsel, namely, (1) Do you approve of the New Constitution? and (2) Do you want a plebiscite to be called to ratify the new Constitution? should be considered no longer as loose consultations but as direct inquiries about the desire of the voters regarding the matters mentioned. Accordingly, I take it that if the majority had expressed disapproval of the new Constitution, the logical consequence would have been the complete abandonment of the idea of holding any plebiscite at all. On the other

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hand, it is very plain to see that since the majority has already approved the new Constitution, a plebiscite would be superfluous. Clear as these rationalizations may be, it must have been thought that if the holding of a plebiscite was to be abandoned, there should be a direct and expressed desire of the people to such effect in order to forestall as much as possible any serious controversy regarding the non-holding of the plebiscite required by the letter of Section 16 of Article XVII, the effectivity clause, of the new Constitution. Oddly enough, the "comments" accompanying the questions do strongly suggest this view. And as it turned out, the majority found no necessity in holding a plebiscite. In connection with the question, Do you approve of the New Constitution? capital is being made of the point that as so framed, the thrust of the said question does not seek an answer of fact but of opinion. It is argued that it would have been factual were it worded categorically thus — Do you approve the New Constitution? The contention would have been weighty were it not unrealistic. I remember distinctly that the observation regarding the construction of the subject question was not originally made by any of the talented counsels for petitioners. It came from Mr. Justice Fred Ruiz Castro whose mastery of the English language can rightly be the cause of envy of even professors of English. None of the other members of the Court, as far as I can recall, ever noticed how the said question is phrased, or if anyone of Us did, I am not aware that he gave it more than passing attention. What I mean is that if neither any of the distinguished and learned counsels nor any member of the Court understood the said question otherwise than calling for a factual answer instead of a mere opinion, how could anyone expect the millions of unlettered members of the Citizens Assemblies to have noticed the point brought out by Justice Castro? Truth to tell, I myself did not realize the difference until Justice Castro gave it emphasis. Besides, reading the question in the light of the accompanying "comment" corresponding to it in particular, I am certain that any one who answered the same understood it in no other sense than a direct inquiry as to whether or not, as a matter of fact, he approves the New Constitution, and naturally, his affirmative answer must be taken as a categorical vote of approval thereof, considering, particularly, that according to the reported result of the referendum said answer was even coupled with the request that the President defer the convening of the Interim National Assembly. It is also contended that because of this reference in the answer to that question to the deferment of the convening of the interim assembly, the said answer is at best a conditional approval not proper nor acceptable for purposes of a ratification plebiscite. The contention has no basis. In the interest of accuracy, the additional answer proposed in the pertinent "comment" reads as follows: "But we do not want the Ad Interim Assembly to be convoked etc." On the assumption that the actual answer, as reported, was of similar tenor, it is not fair to ascribe to it the imposition of a condition. At the most, the intention is no more than a suggestion or a wish. As regards said "comments", it must be considered that after martial law was declared, the circumstances surrounding the making of the Constitution acquired a different and more meaningful aspect, namely, the formation of a new society. From the point of view of the President and on the basis of intelligence reports available to him, the only way to meet the situation created by the subversive elements was to introduce immediately effective reforms calculated to redeem the people from the depth of retrogression and stagnation caused by rampant graft and corruption in high places, influence peddling, oligarchic political practices, private armies, anarchy, deteriorating conditions of peace and order, the social inequalities widening the gap between the rich and the poor, and many other deplorable long standing maladies crying for early relief and solution. Definitely, as in the case of the rebellious movement that threatened the Quirino Administration, the remedy was far from using bullets

alone. If a constitution was to be approved as an effective instrument towards the eradication of such grave problems, it had to be approved without loss of time and sans the cumbersome processes that, from the realistic viewpoint, have in the past obstructed rather than hastened the progress of the people. Stated otherwise, in the context of actualities, the evident objective in having a new constitution is to establish new directions in the pursuit of the national aspirations and the carrying out of national policies. Only by bearing these considerations in mind can the "comments" already referred to be properly appreciated. To others said "comments" may appear as evidence of corruption of the will of those who attended the assemblies, but actually, they may also be viewed in the same light as the sample ballots commonly resorted to in the elections of officials, which no one can contend are per se means of coercion. Let us not forget that the times are abnormal, and prolonged dialogue and exchange of ideas are not generally possible, nor practical, considering the need for faster decisions and more resolute action. After all voting on a whole new constitution is different from voting on one, two or three specific proposed amendments, the former calls for nothing more than a collective view of all the provisions of the whole charter, for necessarily, one has to take the good together with the bad in it. It is rare for anyone to reject a constitution only because of a few specific objectionable features, no matter how substantial, considering the ever present possibility that after all it may be cured by subsequent amendment. Accordingly, there was need to indicate to the people the paths open to them in their quest for the betterment of their conditions, and as long as it is not shown that those who did not agree to the suggestions in the "comments" were actually compelled to vote against their will, I am not convinced that the existence of said "comments" should make any appreciable difference in the court’s appraisal of the result of the referendum. I must confess that the fact that the referendum was held during martial law detracts somehow from the value that the referendum would otherwise have had. As I intimated, however, in my former opinion, it is not fair to condemn and disregard the result of the referendum barely because of martial law per se. For one thing, many of the objectionable features of martial law have not actually materialized, if only because the implementation of martial law since its inception has been generally characterized by restraint and consideration, thanks to the expressed wishes of the President that the same be made "Philippine style", which means without the rigor that has attended it in other lands and other times. Moreover, although the restrictions on the freedom of speech, the press and movement during martial law do have their corresponding adverse effects on the area of information which should be open to a voter, in its real sense what "chills" his freedom of choice and mars his exercise of discretion is the suspension of the privilege of the writ of habeas corpus. The reason is simply that a man may freely and correctly vote even if the needed information he possesses as to the candidates or issues being voted upon is more or less incomplete, but when he is subject to arrest and detention without investigation and without being informed of the cause thereof, that is something else which may actually cause him to cast a captive vote. Thus it is the suspension of the writ of habeas corpus accompanying martial law that can cause possible restraint on the freedom of choice in an election held during martial law. It is a fact, however, borne by history and actual experience, that in the Philippines, the suspension of the privilege of the writ of habeas corpus has never produced any chilling effect upon the voters, since it is known by all that only those who run afoul of the law, saving inconsequential instances, have any cause for apprehension in regard to the conduct by them of the normal activities of life. And so it is recorded that in the elections of 1951 and 1971, held while the privilege of writ of habeas corpus was under suspension, the Filipino voters gave the then opposition parties overwhelming if not sweeping victories, in defiance of the respective administrations that ordered the suspensions.

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At this juncture, I think it is fit to make it clear that I am not trying to show that the result of the referendum may be considered as sufficient basis for declaring that the New Constitution has been ratified in accordance with the amending clause of the 1935 Constitution. I reiterate that in point of law, I find neither strict nor substantial compliance. The foregoing discussion is only to counter, if I may, certain impressions regarding the general conditions obtaining during and in relation to the referendum which could have in one way or another affected the exercise of the freedom of choice and the use of discretion by the members of the Citizens Assemblies, to the end that as far as the same conditions may be relevant in my subsequent discussions of the acceptance by the people of the New Constitution they may also be considered. IV

It is my sincere conviction that the Constitution of 1973 has been accepted or adopted by the people. And on this premise, my considered opinion is that the Court may no longer decide these cases on the basis of purely legal considerations. Factors which are non-legal but nevertheless ponderous and compelling cannot be ignored, for their relevancy is inherent in the issue itself to be resolved. In my opinion in the Plebiscite Cases, I joined my colleagues in holding that the question of whether or not there was proper submission under Presidential Decree No. 73 is justiciable, and I still hold that the propriety of submission under any other law or in any other form is constitutionally a fit subject for inquiry by the courts. The ruling in the decided cases relied upon by petitioners are to this effect. In view, however, of the factual background of the cases at bar which include ratification itself, it is necessary for me to point out that when it comes to ratification, I am persuaded that there should be a boundary beyond which the competence of the courts no longer has any reason for being, because the other side is exclusively political territory reserved for their own dominion by the people. The main basis of my opinion in the previous cases was acceptance by the people. Others may feel there is not enough indication of such acceptance in the record and in the circumstances the Court can take judicial notice of. For my part, I consider it unnecessary to be strictly judicial in inquiring into such fact. Being personally aware, as I have already stated, that the Citizens Assemblies did meet and vote, if irregularly and crudely, it is not for me to resort, for the purposes of these cases, to judicial tape and measure, to find out with absolute precision the veracity of the total number of votes actually cast. After all, the claims that upon a comparison of conflicting reports, cases of excess votes may be found, even if extrapolated will not, as far as I can figure out, suffice to overcome the outcome officially announced. Rather than try to form a conclusion out of the raw evidence before Us which the parties did not care to really complete, I feel safer by referring to the results announced in the proclamation itself. Giving substantial allowances for possible error and downright manipulation, it must not be overlooked that, after all, their having been accepted and adopted by the President, based on official reports submitted to him in due course of the performance of duty of appropriate subordinate officials, has elevated them to the category of an act of a coordinate department of the government which under the principle of separation of powers is clothed with presumptive correctness or at least entitled to a high degree of acceptability, until overcome by better evidence, which in these cases does not exist. In any event, considering that due to the unorthodoxy of the procedure adopted and the difficulty of an accurate checking of all the figures, I am unable to conceive of any manageable means of acquiring information upon which to predicate a denial, I have no alternative but to rely on what

has been officially declared. At this point, I would venture to express the feeling that if it were not generally conceded that there has been sufficient showing of the acceptance in question, by this time, there would have been already demonstrative and significant indications of a rather widespread, if not organized resistance in one form or another. Much as they are to be given due recognition as magnificent manifestations of loyalty and devotion to principles, I cannot accord to the filing of these cases as indicative enough of the general attitude of the people. It is true that in the opinion I had the privilege of penning for the Court in Tolentino v. Comelec, 41 SCRA 702, I made strong and unequivocal pronouncements to the effect that any amendment to the Constitution of 1935, to be valid, must appear to have been made in strict conformity with the requirements of Article XV thereof. What is more, that decision asserted judicial competence to inquire into the matter of compliance or non compliance as a justiciable matter. I still believe in the correctness of those views and I would even add that I sincerely feel it reflects the spirit of the said constitutional provision. Without trying to strain any point, however, I submit the following considerations in the context of the peculiar circumstances of the cases now at bar, which are entirely different from those in the backdrop of the Tolentino rulings I have referred to.

2. When an entirely new constitution is proposed to supersede the existing one, we cannot but take into consideration the forces and the circumstances dictating the replacement. From the very nature of things, the proposal to ordain a new constitution must be viewed as the most eloquent expression of a people’s resolute determination to bring about a massive change of the existing order, a meaningful transformation of the old society and a responsive reformation of the contemporary institutions and principles. Accordingly, should any question arise as to its effectivity and there is some reasonable indication that the new charter has already received in one way or another the sanction of the people, I would hold that the better rule is for the courts to defer to the people’s judgment, so long as they are convinced of the fact of their approval, regardless of the form by which it is expressed, provided it be reasonably feasible and reliable. Otherwise stated, in such instances, the courts should not bother about inquiring into compliance with technical requisites, and as a matter of policy should consider the matter non-justiciable.

No less than counsel Tolentino for herein respondents Puyat and Roy, who was himself the petitioner in the case I have just referred to is, now inviting Our attention to the exact language of Article XV and suggesting that the said Article may be strictly applied to proposed amendments but may hardly govern the ratification of a new Constitution. It is particularly stressed that the Article specifically refers to nothing else but "amendments to this Constitution" which if ratified "shall be valid as part of this Constitution." Indeed, how can a whole new constitution be by any manner of reasoning an amendment to any other constitution and how can it, if ratified, form part of such other constitution? In fact, in the Tolentino case I already somehow hinted this point, when I made reference in the resolution denying the motion for reconsideration to the fact that Article XV must be followed "as long as any amendment is formulated and submitted under the aegis of the present Charter." Said resolution even added." (T)his is not to say that the people may not, in the exercise of their inherent revolutionary powers, amend the Constitution or promulgate an entirely new one otherwise."cralaw virtua1aw library

3. There is still another circumstance which I consider to be of great relevancy. I refer to the ostensible reaction of the component elements, both collective and individual, of the Congress of the Philippines. Neither the Senate nor the House of Representatives has been reported to have even made any appreciable effort or attempt to convene as they were supposed to do under the Constitution of 1935 on January 22, 1973 for the regular session. It must be assumed that being composed of experienced, knowledgeable and courageous members, it would not have been difficult for said parliamentary bodies to have conceived some ingenious way of giving evidence of their determined adherence to the Constitution under which they were elected. Frankly, much as I admire the efforts of the handful of senators who had their picture taken in front of the padlocked portals of the Senate chamber, I do not feel warranted to accord such act as enough token of resistance. As counsel Tolentino has informed the court, there was noting to stop the senators and the congressmen to meet in any other convenient place and somehow officially organize themselves in a way that can logically be considered as a session, even if nothing were done than to merely call the roll and disperse. Counsel Tolentino even pointed out that if there were not enough members to form a quorum, any smaller group could have ordered the arrest of the absent members. And with particular relevance to the present cases, it was not constitutionally indispensable for the presiding officers to issue any call to the members to convene, hence the present prayers for mandamus have no legal and factual bases. And to top it all, quite to the contrary, the records of the Commission on Elections show that at least 15 of 24 senators and over 95 out of less than 120 members of the House of Representatives, have officially and in writing exercised the option given to them to join the Interim National Assembly under the New Constitution, thereby manifesting their acceptance of the new charter.

It is not strange at all to think that the amending clause of a constitution should be confined in its application only to proposed changes in any part of the same constitution itself, for the very fact that a new constitution is being adopted implies a general intent to put aside the whole of the old one, and what would be really incongrous is the idea that in such an eventuality, the new Constitution would subject its going into effect to any provision of the constitution it is to supersede, to use the language precisely of Section 6, Article XVII, the effectivity clause, of the New Constitution. My understanding is that generally, constitutions are self-born, they very rarely, if at all, come into being, by virtue of any provision of another constitution. 3 This must be the reason why every constitution has its own effectivity clause, so that if, the Constitutional Convention had only anticipated the idea of the referendum and provided for such a method to be used in the ratification of the New Constitution, I would have had serious doubts as to whether Article XV could have had priority of application.

Now, having these facts in mind, and it being obvious that of the three great departments of the government under the 1935 Constitution, two, the Executive and the Legislative, have already accepted the New Constitution and recognized its enforceability and enforcement, I cannot see how this Supreme Court can by judicial fiat hold back the political developments taking place and for the sake of being the guardian of the Constitution and the defender of its integrity and supremacy make its judicial power prevail against the decision of those who were duly chosen by the people to be their authorized spokesmen and representatives. It is not alone the physical futility of such a gesture that concerns me. More than that, there is the stark reality that the Senators and the Congressmen, no less than the President, have taken the same oath of loyalty to the Constitution that we, the Justices, have taken and they are, therefore, equally bound with Us to preserve and protect the Constitution. If as the elected representatives of the people, they have already opted to accept the New Constitution as the

1. Consider that in the present case what is involved is not just an amendment or a particular provision of an existing Constitution; here, it is, as I have discussed earlier above, an entirely new Constitution that is being proposed. This important circumstance makes a great deal of difference.

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more effective instrument for the fulfillment of the national destiny, I really wonder if there is even any idealistic worth in Our desperately clinging by Ourselves alone to Our sworn duty vis-a-vis the 1935 Constitution. Conscious of the declared objectives of the new dispensation and cognizant of the decisive steps being taken, with the least loss of time, towards their accomplishment, I cannot but feel apprehensive that instead of serving the best interests of our people, which to me is in reality the real meaning of our oath of office, the Court might be standing in the way of the very thing our beloved country needs to retrieve its past glory and greatness. In other words, it is my conviction that what these cases demand most of all is not a decision demonstrative of our legal erudition and Solomonic wisdom, but an all rounded judgment resulting from the consideration of all relevant circumstances, principally the political, or, in brief, a decision more political than legal, which a court can render only by deferring to the apparent judgment of the people and the announcement thereof by the political departments of the government and declaring the matter non-justiciable. 4. Viewed from the strictly legal angle and in the light of judicial methods of ascertainment, I cannot agree with the Solicitor General that in the legal sense, there has been at least substantial compliance with Article XV of the 1935 Constitution, but what I can see is that in a political sense, the answers to the referendum questions were not given by the people as legal conclusions. I take it that when they answered that by their signified approval of the New Constitution, they do not consider it necessary to hold a plebiscite, they could not have had in mind any intent to do what was constitutionally improper. Basically accustomed to proceed along constitutional channels, they must have acted in the honest conviction that what was being done was in conformity with prevailing constitutional standards. We are not to assume that the sovereign people were indulging in a futile exercise of their supreme political right to choose the fundamental charter by which their lives, their liberties and their fortunes shall be safeguarded. In other words, we must perforce infer that they meant their decision to count, and it behooves this Court to render judgment herein in that context. It is my considered opinion that viewed understandingly and realistically, there is more than sufficient ground to hold that, judged by such intent and, particularly, from the political standpoint, the ratification of the 1973 Constitution declared in Proclamation 1102 complies substantially with Article XV of the 1935 Charter, specially when it is considered that the most important element of the ratification therein contemplated is not in the word "election", which conceivably can be in many feasible and manageable forms but in the word "approved" which may be said to constitute the substantiality of the whole article, so long as such approval is reasonably ascertained. In the last analysis, therefore, it can be rightly said, even if only in a broad sense, that the ratification here in question was constitutionally justified and justifiable. 5. Finally, if any doubt should still linger as to the legitimacy of the New Constitution on legal grounds, the same should be dispelled by viewing the situation in the manner suggested by Counsel Tolentino and by the writer of this opinion in his separate opinion, oft-referred to above, in the Plebiscite Cases — that is, as an extra constitutional exercise by the people, under the leadership of President Marcos, of their inalienable right to change their fundamental charter by any means they may deem appropriate, the moment they are convinced that the existing one is no longer responsive to their fundamental, political and social needs nor conducive to the timely attainment of their national destiny. This is not only the teaching of the American Declaration of Independence but is indeed, a truth that is self-evident. More, it should be regarded as implied in every constitution that regardless of the language of its amending clause, once the people have given their sanction to a new charter, the latter may be deemed as constitutionally permissible even from the point of view of the preceding constitution. Those who may feel restrained to consider this view out of respect to the import

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of Tolentino v. Comelec, supra., would be well advised to bear in mind that that case was decided in the context of submission, not of accomplished ratification. V

The language of the disputed amending clause of the 1935 Constitution should not be deemed as the be all and end all of the nation. More important than even the Constitution itself, with all its excellent features, are the people living under it — their happiness, their posterity and their national destiny. There is nothing that cannot be sacrificed in the pursuit of these objectives, which constitute the totality of the reasons for national existence. The sacred liberties and freedoms enshrined in it and the commitment and consecration thereof to the forms of democracy we have hitherto observed are mere integral parts of this totality; they are less important by themselves. What seems to me to be bothering many of our countrymen now is that by denying the present petitions, the Court would be deemed as sanctioning, not only the deviations from traditional democratic concepts and principles but also the qualified curtailment of individual liberties now being practiced, and this would amount, it is feared, to a repudiation of our oath to support and defend the Constitution of 1935. This is certainly something one must gravely ponder upon. When I consider, however, that the President, the Vice President, the members of both Houses of Congress, not to speak of all executive departments and bureaus under them, as well as all the lower courts, including the Court of Appeals, have already accepted the New Constitution as an instrument of a meaningful nationwide-all-level change in our government and society purported to make more realistic and feasible, rather than idealistic and cumbersomely deliberative, the attainment of our national aspirations, I am led to wonder, whether or not we, as members of the Supreme Court are being true to our duty to our people by refusing to follow suit and to accept the realities of the moment, despite our being convinced of the sincerity and laudableness of their objectives, only because we feel that by the people’s own act of ratifying the Constitution of 1935, they have so encased themselves within its provisions and may, therefore, no longer take measures to redeem themselves from the situation brought about by the deficiencies of the old order, unless they act in strict conformity therewith. I cannot believe that any people can be so stifled and enchained. In any event, I consider it a God-given attribute of the people to disengage themselves, if necessary, from any covenant that would obstruct their taking what subsequently appears to them to be the better road to the promotion and protection of their welfare. And once they have made their decision in that respect, whether sophisticatedly or crudely, whether in legal form or otherwise, certainly, there can be no court or power on earth that can reverse them. I would not be human if I should be insensitive to the passionate and eloquent appeals of Counsels Tañada and Salonga that these cases be decided on the basis of conscience. That is exactly what I am doing. But if counsel mean that only by granting their petitions can this Court be worthily the bulwark of the people’s faith in the government, I cannot agree, albeit my admiration and respect are all theirs for their zeal and tenacity, their industry and wisdom, their patriotism and devotion to principle. Verily, they have brought out everything in the Filipino that these cases demand. In times of national emergencies and crises, not arising from foreign invasion, we need not fear playing opposite roles, as long as we are all animated by sincere love of country and aim exclusively at the attainment of the national destiny. Our heroes of the past, Rizal, Bonifacio, Aguinaldo, Antonio Luna, Mabini and so also with our patriots of the recent generations,

Quezon, Osmeña, Roxas, Laurel and Recto, to mention only some of them, had their differences of views — and they did not hesitate to take diametrically opposing sides — that even reached tragic proportions, but all of them are admired and venerated. It is my faith that to act with absolute loyalty to our country and people is more important than loyalty to any particular precept or provision of the Constitution or to the Constitution itself. My oath to abide by the Constitution binds me to whatever course of action I feel sincerely is demanded by the welfare and best interests of the people. In this momentous juncture of our history, what is imperative is national unity. May God grant that the controversies the events leading to these cases have entailed will heal after the decision herein is promulgated, so that all of us Filipinos may forever join hands in the pursuit of our national destiny. IN VIEW OF ALL THE FOREGOING, I vote to dismiss all these petitions for mandamus and prohibition without costs. MAKASIAR, J.:

Assuming, without conceding, that Article XV of the 1935 Constitution prescribes a procedure for the ratification of constitutional amendments or of a new Constitution and that such procedure was no complied with, the validity of Presidential Proclamation No. 1102 is a political, not a justiciable, issue; for it is inseparably or inextricably linked with and strikes at, because it is decisive of, the validity of the ratification and adoption of, as well as acquiescence of the people in, the 1973 Constitution and the legitimacy of the government organized and operating thereunder. And being political, it is beyond the ambit of judicial inquiry, tested by the definition of a political question enunciated in Tañada, Et. Al. v. Cuenco, Et. Al. (103 Phil. 1051), aside from the fact that this view will not do violence to rights vested under the new Constitution, to international commitments forged pursuant thereto and to decisions rendered by the judicial as well as quasi-judicial tribunals organized and functioning or whose jurisdiction has been altered by the 1973 Constitution and by the government established thereunder, and will dissipate any confusion in the minds of the citizenry, who have been obeying the mandates of the new Constitution, as well as exercising the rights and performing the obligations defined by the new Constitution, and decrees and orders issued in implementation of the same and cooperating with the administration in the renovation of our social, economic and political system as re-structured by the 1973 Constitution and by the implementing decrees and orders (see Miller v. Johnson, 18 SW 522, 522-526, 1892). In 1957, Mr. Chief Justice Roberto Concepcion, then Associate Justice, in behalf as the court, defined a political question as one which, under the Constitution, is "to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority had been delegated to the Legislature or Executive branch of the government." (Tañada, Et. Al. v. Cuenco, Et Al., supra). Article XV of the 1935 Constitution provides: "Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for ratification." Under Article XV of the 1935 Constitution, the power to propose constitutional amendments is vested in Congress or in a constitutional convention; while the power to ratify or reject such proposed amendments or new Constitution is reserved by the sovereign people. The nullification of Proclamation No. 1102

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would inevitably render inoperative the 1973 Constitution, which is in fact the express prayer of the petitioners in G.R. No. L-36164. Regardless of the modality of submission or ratification or adoption — even if it deviates from or violates the procedure delineated there for by the old Constitution — once the new Constitution is ratified, adopted and/or acquiesced in by the people or ratified even by a body or agency not duly authorized there for but is subsequently adopted or recognized by the people and by the other official organs and functionaries of the government established under such a new Constitution, this Court is precluded from inquiring into the validity of such ratification, adoption or acquiescence and of the consequent effectivity of the new Constitution. This is as it should be in a democracy, for the people are the repository of all sovereign powers as well as the source of all governmental authority (Pole v. Gray, 104 SO 2nd 841 [1958]). This basic democratic concept is expressly restated in Section 1 of Article II of the Declaration of Principles of the 1935 and 1973 Constitutions, thus: "Sovereignty resides in the people and all government authority emanates from them."cralaw virtua1aw library The legality of the submission is no longer relevant; because the ratification, adoption and/or acquiescence by the people cures any infirmity in its submission or any other irregularities therein which are deemed mandatory before submission as they are considered merely directory after such ratification or adoption or acquiescence by the people. As Mr. Justice Brewer, then of the Kansas State Supreme Court and later Associate Justice of the Federal Supreme Court, stated in re Prohibitory Amendment Cases (24 Kansas 700 & 710, Reprint 499, 506): "The two important, vital elements of the Legislature, and a majority of the popular vote. Beyond these, other provisions are mere machineries and forms. They may not be disregarded, because by them certainty as to the essential is secured. But they are not themselves the essentials." (Cited in Lark en v. Gronna, 285 N W 59, 61-64, 1939). This was the ruling by the American Supreme Court in the 1939 case of Coleman v. Miller (307 U.S. 433, 83 L.ed. 1385), where Chief Justice Hughes, speaking for the majority, stated that:jgc:chanrobles.com.ph ". . . Thus the political departments of the government dealt with the effect of both previous rejection and attempted withdrawal and determined that both were ineffectual in the presence of an actual ratification . . . This decision by the political departments of the Government as to the validity of the adoption of the Fourteenth amendment has been accepted. "We think that in accordance with this historic precedent the question of the efficacy of ratifications by state legislatures, in the light of previous rejection or attempted withdrawal, should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the amendment."cralaw virtua1aw library This view was likewise emphasized by Mr. Justice Black in his concurring opinion, in which Mr. Justices Roberts, Frankfurter, and Douglas join, thus:jgc:chanrobles.com.ph "The Constitution grants Congress exclusive power to control submission of constitutional amendments. Final determination by Congress that ratification by three-fourths of the States has taken place ‘is conclusive upon the courts.’ In the exercise of that power Congress, of course, is governed by the Constitution. However, whether submission, intervening procedure or Congressional determination of ratification conforms to the commands of the Constitution, calls for decisions by a ‘political department’ of questions of a type which this Court has

frequently designated ‘political.’ And decision of a ‘political question’ by the ‘political department’ to which the Constitution has committed it ‘conclusively binds the judges, as well as all other officers, citizens and subjects of . . . government.’ Proclamation under authority of Congress that an amendment has been ratified via carry with it a solemn assurance by the Congress that ratification has taken place as the Constitution commands. Upon this assurance a proclaimed amendment must be accepted as a part of the Constitution, leaving to the judiciary its traditional authority of interpretation. To the extent that the Court’s opinion in the present case even impliedly assumes a power to make judicial interpretation of the exclusive constitutional authority of Congress over submission and ratification of amendments, we are unable to agree . . ." (American Constitutional Issues, by Pritchett, 1962 Ed., p. 44). The doctrine in the aforesaid case of Coleman v. Miller was adopted by Our Supreme Court in toto in Mabanag v. Lopez Vito (78 Phil. 1). The ruling in the cases of Gonzales v. Comelec, Et. Al. (L-28224, Nov. 29, 1967, 21 SCRA 774) and Tolentino v. Comelec, Et. Al. (L-34150, Oct. 16, 1971, 41 SCRA 702) —on which petitioners place great reliance — that the courts may review the propriety of a submission of a proposed constitutional amendment before the ratification or adoption of such proposed amendment by the sovereign people, hardly applies to the cases at bar; because the issue involved in the aforesaid cases refers to only the propriety of the submission of a proposed constitutional amendment to the people for ratification, unlike the present petitions, which challenge inevitably the validity of the 1973 Constitution after its ratification or adoption thru acquiescence by the sovereign people. As heretofore stated, it is specious and pure sophistry to advance the reasoning that the present petitions pray only for the nullification of the 1973 Constitution and the government operating thereunder. It should be stressed that even in the Gonzales case, supra, We held that:jgc:chanrobles.com.ph "Indeed, the power to amend the Constitution or to propose amendments thereto is not included in the general grant of legislative powers to Congress. It is part of the inherent powers of the people — as the repository of sovereignty in a republicans state, such as ours — to make, and hence, to amend their own Fundamental Law. Congress may propose amendments to the Constitution merely because the same explicitly grants such power. Hence, when exercising the same, it is said that Senators ad Members of the House of Representatives act, not as members of Congress, but as component elements of a constituent assembly. When acting as such, the members of Congress derive their authority from the Constitution, unlike the people, when performing the same function, for their authority does not emanate from the Constitution — they are the source of all powers of government including the Constitution itself." (21 SCRA 787) WE did not categorically and entitle overturn the doctrine in Mabanag v. Lopez Vito (78 Phil. 1) that both the proposal to amend and the ratification of such a constitutional amendment are political in nature forming as they do the essential parts of one political scheme — the amending process. WE merely stated therein that the force of the ruling in the said case of Mabanag v. Lopez Vito has been weakened by subsequent cases. Thus, We pronounced therein. "It is true that in Mabanag v. Lopez Vito, this Court characterizing the issue submitted thereto as a political one, declined to pass upon the question whether or not a given number of votes cast in Congress in favor of a proposed amendment to the Constitution — which was being submitted to the people for ratification — satisfied the three fourths vote requirement of the

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fundamental law. The force of this precedent has been weakened, however, by Suanes us. Chief Accountant of the Senate, Avelino v. Cuenco, Tañada v. Cuenco, and Macias v. Commission on Elections. In the first, we held that the Officers and employees of the Senate Electoral Tribunal are supervision and control, not of that of the Senate President, as claimed by the latter; in the second, this Court proceeded to determine the number of Senators necessary for a quorum in the Senate; in the third we nullified the election, by Senators belonging to the party having the largest number of votes in said chamber, purporting to act on behalf of the party having the second largest number of votes therein, of two (2) Senators belonging to the first party, as members, for the second party, of the Senate Electoral Tribunal; and in the fourth, we declared unconstitutional an act of Congress purporting to apportion the representative districts of the House of Representatives, upon the ground that the apportionment had not been made as may be possible according to the number of inhabitants of each province. Thus we rejected the theory advanced in these four (4) cases, that the issues therein raised were political questions the determination of which is beyond judicial review." (21 SCRA pp. 785-786); for which reason We concluded In short, the issue whether or not a resolution of Congress — before acting as a constituent assembly — violates the Constitution is essentially justiciable, not political, and, hence, subject to judicial review, and to the extent that this view may be consistent with the stand taken in Mabanag v. Lopez Vito, the latter should be deemed modified accordingly." (p. 787, Italics supplied.) In the Tolentino case, supra, We reiterated the foregoing comments (41 SCRA 703-714). The inevitable consequence therefore is that the validity of the ratification or adoption of or acquiescence by the people in the 1973 Constitution, remains a political issue removed from the jurisdiction of this Court to review. One more word about the Gonzales and Tolentino cases. Both primarily stressed on the impropriety of the submission of a proposed constitutional amendment. Courts do not deal with propriety or wisdom or absence of either of an official act or of a law. Judicial power concerns only with the legality or illegality, constitutionality or unconstitutionality of an act; it inquires into the existence of power or lack of it. Judicial wisdom is not to be pitted against the wisdom of the political department of the government. The classic example of an illegal submission that did not impair the validity of the ratification or adoption of a new Constitution is the case of the Federal Constitution of the United States. It should be recalled that the thirteen (13) original states of the American Union — which succeeded in liberating themselves from England after the revolution which began on April 19, 1775 with the skirmish at Lexington, Massachusetts and ended with the surrender of General Cornwall is at Yorktown, Virginia, on October 19, 1781 (Encyclopedia Brit., Vol. I, 1933 Ed., p. 776) — adopted their Articles of Confederation and Perpetual Union, that was written from 1776 to 1777 and ratified on March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed., p. 525). About six years thereafter, the Congress of the Confederation passed a resolution on February 21, 1787 calling for a Federal Constitutional Convention" for the sole and express purpose of revising the articles of confederation . . ." (Appendix I, The Federalist, Modern Library ed., p. 577, Italics supplied). The Convention convened at Philadelphia on May 14, 1787. Article XIII of the Articles of

Confederation and Perpetual Union stated specifically:jgc:chanrobles.com.ph

case of Marbury v. Madison (1803, 1 Cranch 137).

"The articles of this confederation shall be inviolably observed by every state, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united states, and be afterwards confirmed by the legislatures of every statute." (See the Federalist, Appendix II, Modern Library Ed., 1937, p.584; Italics supplied.)

Until this date, no challenge has been launched against the validity of the ratification of the American Constitution, or against the legitimacy of the government organized and functioning thereunder.

But the foregoing requirements prescribed by the Articles of Confederation and Perpetual Union for the alteration and for the ratification of the Federal Constitution as drafted by the Philadelphia Convention were not followed. Fearful that the said Federal Constitution would not be ratified by the state legislatures as prescribed, the Philadelphia Convention adopted a resolution requesting the Congress of the Confederation to pass a resolution providing that the Federal Constitution should be submitted to elected state conventions and if ratified by the conventions in nine (9) states, not necessarily in all thirteen (13) states, the said Constitution shall take effect. Thus, history Professor Edward Earle Mead of Princeton University recorded that "It would have been a counsel of perfection to consign the new Constitution to the tender mercies of the legislatures of each and all of the 13 states. Experience clearly indicated that ratification then would have had the some chance as the scriptural camel passing thru the eye of a needle. It was therefore determined to recommend to Congress that the new Constitution be submitted to conventions as in the several states specially elected to pass upon it and that, furthermore, the new government should go into effect if and when it should be ratified by nine of the thirteen states . . ." (The Federalist, Modern Library Ed., 1937, Introduction by Edward Earle Mead, pp. viii-ix; Italics supplied). Historian Samuel Eliot Morison similarly recounted:jgc:chanrobles.com.ph "The Convention, anticipating that the influence of many state politicians would be Antifederalist, provided for ratification of the Constitution by popularly elected conventions in each state. Suspecting that Rhode Island, at least, would prove recalcitrant, it declared that the Constitution would go into effect as soon as nine states ratified. The convention method had the further advantage that judges, ministers, and others ineligible to state legislatures, could be elected to a convention. The nine-state provision was, of course, mildly revolutionary. But the Congress of the Confederation, still sitting in New York to carry on federal government until relieved, formally submitted the new constitution to the states and politely faded out before the first presidential inauguration." (The Oxford History of the Am. People, by Samuel Eliot Morison, 1965 ed., p. 312). And so the American Constitution was ratified by nine (9) states on June 21, 1788 and by the last four states on May 29, 1790 (12 C.J. p. 679 footnote, 16 C.J.S. 27 — by the state conventions and not by all thirteen (13) state legislatures as required by Article XIII of the Articles of Confederation and Perpetual Union aforequoted — and in spite of the fact that the Federal Constitution as originally adopted suffers from two basic infirmities, namely, the absence of a bill of rights and of a provision affirming the power of judicial review. The liberties of the American people were guaranteed by subsequent amendments to the Federal Constitution. The doctrine of judicial review has become part of American constitutional law only by virtue of a judicial pronouncement by Chief Justice Marshall in the

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In the 1946 case of Wheeler v. Board of Trustees (37 SE 2nd 322, 326-330), which enunciated the principle that the validity of a new or revised Constitution does not depend on the method of its submission or ratification by the people, but on the fact of fiat or approval or all option or acquiescence by the people, which fact of ratification or adoption or acquiescence is all that is essential, the Court cited precisely the case of the irregular revision and ratification by state conventions of the Federal Constitution, thus:jgc:chanrobles.com.ph "No case identical in its facts with the case now under consideration has been called to our attention, and we have found none. We think that the principle which we apply in the instant case was very clearly applied in the creation of the constitution of the United States. The convention created by a resolution of Congress had authority to do one thing, and one only, to wit, amend the articles of confederation. This they did not do, but submitted to the sovereign power, the people, a new constitution. In this manner was the constitution of the United States submitted to the people and it became operative as the organic law of this nation when it ‘had been properly adopted by the people. "Pomeroy’s Constitutional Law, p. 55, discussing the convention that formulated the constitution of the United States, has this to say: ‘The convention proceeded to do, and did accomplish, what they were not authorized to do by a resolution of Congress that called them together. That resolution plainly contemplated amendments to the articles of confederation, to be submitted to and passed by the Congress, and afterwards ratified by all the State legislatures, in the manner pointed out by the existing organic law. But the convention soon became convinced that any amendments were powerless to effect a cure; that the disease was too deeply seated to be reached by such tentative means. They saw that the system they were called to improve must be totally abandoned, and that the national idea must be re-established at the center of their political society. It was objected by some members, that they had no power, no authority, to construct a new government. They had no authority, if their decisions were to be final; and no authority whatever, under the articles of confederation, to adopt the course they did. But they knew that their labors were only to be suggestions; and that they as well as any private individuals, and any private individuals as well as they, had a right to propose a plan of government to the people for their adoption. They were, in fact, a mere assemblage of private citizens, and their work had no more binding sanction than a constitution drafted by Mr. Hamilton in his office, would have had. The people, by their expressed will, transformed this suggestion, this proposal, into an organic law, and the people might have done the same with a constitution submitted to them by a single citizen.’ x

x

x

". . . When the people adopt a completely revised or new Constitution, the framing or submission of the instrument is not what gives it binding force and effect. The fiat of the people, and only the that of the people, can breathe life into a constitution. x

x

x

". . . We do not hesitate to say that a court is never justified in placing by implication a limitation upon the sovereign. This would be an authorized exercise of sovereign power by the court. In State v. Swift, 69 Ind. 505, 519, the Indiana Supreme Court said: ‘The people of a State may form an original constitution, or abrogate an old one and form a new one, at any time, without any political restriction except the constitution of the United States; . . ." (37 SE 327328, 329, Italics supplied.) In the 1903 case of Weston v. Ryan, the Court held:jgc:chanrobles.com.ph "It remains to be said that if we felt at liberty to pass upon this question, and were compelled to hold that the act of February 23, 1887, is unconstitutional and void, it would not, in our opinion, by any means follow that the amendment is not a part of our state Constitution. In the recent case of Taylor v. Commonwealth (Va.) 44 S.E. 754, the Supreme Court of Virginia hold that their state Constitution of 1902, having been acknowledged and accepted by the officers administering the state government, and by the people, and being in force without opposition, must be regarded as an existing Constitution, irrespective of the question as to whether or not the convention which promulgated it had authority so to do without submitting it to a vote of the people. In Brittle v. People, 2 Neb. 198, is a similar holding as to certain provisions of the Nebraska Constitution of 1886, which were added by the Legislature at the requirement of Congress, though never submitted to the people for their approval." (97 NW 349-350; Italics supplied). Against the decision in the Wheeler case, supra, confirming the validity of the ratification and adoption of the American Constitution, in spite of the fact that such ratification was a clear violation of the prescription on alteration and ratification of the Articles of Confederation and Perpetual Union, petitioners in G.R. No. L-36165 dismissed this most significant historical fact by calling the Federal Constitution of the United States as a revolutionary one, invoking the opinion expressed in Vol. 16, Corpus Juris Secundum, p. 27, that it was a revolutionary constitution because it did not obey the requirement that the Articles of Confederation and Perpetual Union can be amended only with the consent of all thirteen (13) state legislatures. This opinion does not cite any decided case, but merely refers to the footnotes on the brief historical account of the United States Constitution on p. 679 of Vol. 12, CJS. Petitioners, on p. 18 of their main Notes, refer US to pp. 270-316 of the Oxford History of the American People, 1965 Ed. by Samuel Eliot Morison, who discusses the Articles of Confederation and Perpetual Union in Chapter XVIII captioned "Revolutionary Constitution Making, 1775 1781" (pp. 270-281). In Chapter XX on "The Creative Period in Politics, 1785-1788," Professor Morison delineates the generals of the Federal Constitution, but does not refer to it even implicitly as a revolutionary constitution (pp. 297-316). However, the Federal Constitution may be considered revolutionary from the view point of McIver if the term revolution is understood in "its wider sense to embrace decisive changes in the character of government, even though they do not involve the violent overthrow of an established order, . . ." (R.M. MacIver, The Web of Government, 1965 ed., p. 203). It is rather ridiculous to refer to the American Constitution as a revolutionary constitution. The Articles of Confederation and Perpetual Union that was in force from July 12, 1776 to 1788, forged as it was during the war of independence was a revolutionary constitution of the thirteen (13) states. In the existing Federal Constitution of the United States which was adopted seven (7) or nine (9) years after the thirteen (13) states won their independence and long after popular support for the government of the Confederation had stabilized was not a

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product of a revolution. The Federal Constitution was a "creation of the brain and purpose of man" in an era of peace. It can only be considered revolutionary in the sense that it is a radical departure from its predecessor, the Articles of Confederation and Perpetual Union. It is equally absurd to affirm that the present Federal Constitution of the United States is not the successor to the Articles of Confederation and Perpetual Union. The fallacy of the statement is so obvious that no further refutation is needed. As heretofore stated, the issue as to the validity of Proclamation No. 1102 strikes at the validity and enforceability of the 1973 Constitution and of the government established and operating thereunder. Petitioners pray for a declaration that the 1973 Constitution is inoperative (L-36164). If Proclamation No. 1102 is nullified, then there is no valid ratification of the 1973 Constitution and the inevitable conclusion is that the government organized and functioning thereunder is not a legitimate government. That the issue of the legitimacy of a government is likewise political and not justiciable, had long been decided as early as the 1849 case of Luther v. Borden (7 How. 1, 12 L.ed., 581), affirmed in the 1900 case of Taylor v. Beckham (178 U.S. 548, 44 L.ed. 1187) and reenunciated in 1912 in the case of Pacific States Telephone and Telegraph Company v. Oregon (223 U.S. 118, 133-151, 56 L.ed. 377-386). Because it reaffirmed the pronouncements in both Borden and Beckham cases, it is sufficient for us to quote the decision in Pacific States Telephone and Telegraph Co., supra, penned by Mr. Chief Justice White, who restated:jgc:chanrobles.com.ph "In view of the importance of the subject, the apparent misapprehension on one side and seeming misconception on the other, suggested by the argument as to the full significance of the previous doctrine, we do not content ourselves with a mere citation of the cases, but state more at length than we otherwise would the issues and the doctrine and the doctrine expounded in the leading and absolutely controlling case — Luther v. Borden, 7 How. 1, 12 L. ed 581. x

x

x

". . . On this subject it was said (p. 38):jgc:chanrobles.com.ph "‘For, if this court is authorized to enter upon this inquiry, as proposed by the plaintiff, and it should be decided that the charter government had no legal existence during the period of time above mentioned, — if it had been annulled by the adoption of the opposing government, — then the laws passed by its legislature during that time were nullities; its taxes wrongfully collected; its salaries and compensation to its officers illegally paid; its public accounts improperly settled; and the judgments and sentences of its courts in civil and criminal cases null and void, and the officers who carried their decisions into operation answerable as trespassers, if not in some cases as criminals.’ x

x

x

"‘The fourth section of the fourth article of the Constitution of the United States shall guarantee to every state in the Union a republican form of government, and shall protect each of them against invasion; and on the application of the Legislature or of the Executive (when

the legislature cannot be convened) against domestic violence. "‘Under this article of the Constitution it rests with Congress to decide what government is the established one in a state. For, as the United State guarantee to each state a republican government, Congress must necessarily decide what government is established in the state before it can determine whether it is republican or not. And when the senators and representatives of a state are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal. It is true that the contest in this case did not last long enough to bring the matter to this issue; and as no senators or representatives were elected under the authority of the government of which Mr. Dorr was the head, Congress was not called upon to decide the controversy. Yet the right to decide is placed there, and not in the courts.’ x

x

x

". . . We do not stop to cite other cases which indirectly or incidentally refer to the subject, but conclude by directing attention to the statement by the court, speaking through Mr. Chief Justice Fuller, in Taylor v. Beckham, 178 U.S. 548, 44 L.ed. 1187, 20 Sup. Ct. Rep. 890, 1009, where, after disposing of a contention made concerning the 14th Amendment, and coming to consider a proposition which was necessary to be decided concerning the nature and effect of the guaranty of S 4 of article 4, it was said (p. 578):jgc:chanrobles.com.ph "‘But it is said that the 14th Amendment must be read with S 4 of article 4, of the Constitution, providing that ‘the United States shall guarantee to every state in this Union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or the Executive (when the legislature cannot be convened), against domestic violence.’ x

x

x

"‘It was long ago settled that the enforcement of this guaranty belonged to the political department. Luther v. Borden, 7 How. 1,12 L.ed. 581. In that case it was held that the question, which of the two opposing governments of Rhode Island, namely, the charter government or the government established by a voluntary convention, was the legitimate one, was a question for the determination of the political department; and when that department had decided, the courts were bound to take notice of the decision and follow it ‘ x

x

x

"As the issues presented, in their very essence, are, and have long since by this court been, definitely determined to be political and governmental, and embraced within the scope of the powers conferred upon Congress, and not, therefore, within the reach of judicial power, it follows that the case presented is not within our jurisdiction, and the writ of error must therefore be, and it is, dismissed for want of jurisdiction." (223 U.S. pp. 142-151; Italics supplied).

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Even a constitutional amendment that is only promulgated by the Constitutional Convention without authority there for and without submitting the same to the people for ratification, becomes valid, when recognized, accepted and acted upon by the Chief of State an a other government functionaries as well as by the people. In the 1903 case of Taylor v. Commonwealth (44 SE 754-755), the Court ruled:jgc:chanrobles.com.ph "The sole ground urged in support of the contention that the Constitution proclaimed in 1902 is invalid is that it was ordained and promulgated by the convention without being submitted for ratification or rejection by the people of the commonwealth. "The Constitution of 1902 was ordained and proclaimed by a convention duly called by direct vote of the people of the state to revise and amend the Constitution of 1869. The result of the work of that convention has been recognized, accepted, and acted upon as the only valid Constitution of the state by the Governor in swearing fidelity to it and proclaiming it, as directed thereby; by the Legislature in its formal official act adopting a joint resolution, July 15, 1902, recognizing the Constitution ordained by the convention which assembled in the city of Richmond on the 12th day of June, 1901, as the Constitution of Virginia; by the individual oaths of its members to support it, and by its having been engaged for nearly a year in legislating under it and putting its provisions into operation; but the judiciary in taking the oath prescribed thereby to support it, and by enforcing its provisions; and by the people in their primary capacity by peacefully accepting it and acquiescing in it, by registering as voters under it to the extent of thousands throughout the state, and by voting, under its provisions, at a general election for their representatives in the Congress of the United States." (p. 755). The Court in the Taylor case above-mentioned further said:jgc:chanrobles.com.ph "While constitutional procedure for adoption or proposal to amend the constitution must be duly followed, without omitting any requisite steps, courts should uphold amendment, unless satisfied that the constitution was violated in submitting the proposal . . . Substance more than form must be regarded in considering whether the complete constitutional system or submitting the proposal to amend the constitution was observed."cralaw virtua1aw library In the 1925 case of Taylor v. King (130 A 407, 408 410), the Court stated:jgc:chanrobles.com.ph "There may be technical error in the manner in which a proposed amendment is adopted or in its advertisement, act, yet if followed, unobjected to, by approval of the electors, it becomes part of the Constitution. Legal complaints to the submission may be made prior to taking the vote but, if once sanctioned, the amendment is embodied therein and cannot be attacked, either directly or collaterally, because of any mistake antecedent thereto. Even though it be submitted at an improper time, it is effective for all purposes when accepted by the majority. Armstrong v. King, 281 Pa. 207, 126 A. 263." (130 A 409). Even if the act of the Constitutional Convention is beyond its authority, such act becomes valid upon ratification or adoption or acquiescence by the people. Thus, in the 1905 case of Ex parte Birmingham and A.R. Company (42 SO pp. 118 & 123), the Alabama Supreme Court upheld this principle and stated that: "The authorities are almost uniform that this ratification of an unauthorized act by the people (and the people are the principal in this instance) renders the act valid and binding."cralaw virtua1aw library It has likewise been held that it is not necessary that voters ratifying the new Constitution are

registered in the book of voters; it is enough that they are electors voting on the new Constitution. (Bott v. Wurts, 40 A 740 [1899]; 45 LRA 251, Italics supplied). In the 1956 case of Thomson v. Peoples State Bank (75 NW 2nd 370, 375), the Supreme Court of Wisconsin ruled that "irregularity in the procedure for the submission of the proposed constitutional amendment will not defeat the ratification by the people."cralaw virtua1aw library Again, in the 1958 case of Swaim v. Tuscaloosa County (103 SO 2nd 769), the Alabama Supreme Court pronounced that "the irregularity in failing to publish the proposed constitutional amendment once in each of the 4 calendar weeks next preceding the calendar week in which the election was held or once in each of the 7-day periods immediately preceding the day of the election as required by the Constitution, did not invalidate the amendment which was ratified by the people."cralaw virtua1aw library The same principle was reiterated in 1961 by the Mississippi Supreme Court in Barnes, Et. Al. v. Ladner (131) SO 2nd 458, 462), where the admitted irregularities or illegalities committed in the procedure for submission of the proposed constitutional amendment to the people for ratification consisted of:" (a) the alleged failure of the county election commissioners of the several counties to provide a sufficient. number of ballot boxes ‘secured by good and substantial locks,’ as provided by Section 3249, Code of 1942, Rec., to be used in the holding of the special election on the constitutional amendment, and (b) the alleged failure of the State Election Commissioners to comply with the requirements of Code Sections 3204 and 3205 in the appointment of election commissioners in each of the 82 counties. The irregularities complained of, even if proved, were not such irregularities as would have invalidated the election." (Italics supplied; see also Sylvester v. Tindall, 8 SO 2nd 892; 154 Fla. 663). Even prior to the election in November, 1970 of delegates to the Constitutional Convention and during the deliberations of the Constitutional Convention from June 1, 1971 until martial law was proclaimed on Sept. 21, 1972, the salient reforms contained in the 1973 Constitution which have long been desired by the people, had been thoroughly discussed in the various committees of the Constitutional Convention, on the floor of the convention itself, in civic forums and in all the media of information. Many of the decrees promulgated by the Chief Executive from Sept. 22, 1972 to Jan. 17, 1973 implement some of the reforms and had been ratified in Sec. 3(2) of Article XVII of the Constitution. Petitioners cannot safely state that during martial law the majority of the people cannot freely vote for these reforms and are not complying with the implementing decrees promulgated by the President. Free election is not inevitably incompatible with martial law. We had free elections in 1951 and 1971 when the opposition won six out of eight senatorial seats despite the suspension of the privileges of the writ of habeas corpus (see Lansang v. Garcia, Et Al., Dec. 14, 1971, 42 SCRA 448), which suspension implies constraint on individual freedom as the proclamation of martial law. In both situations, there is no total blackout of human rights and civil liberties. All the local governments, dominated either by Nacionalistas or Liberals, as well as officials of the Legislative and Executive branches of the government elected and/or appointed under the I935 Constitution have either recognized or are now functioning under the 1973 Constitution, aside from the fact of its ratification by the sovereign people through the Citizens’ Assemblies. Ninety-five (95) of a total of one hundred ten (110) members of the House of

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Representatives including the Speaker and the Speaker Pro Tempore as well as about eleven (11) Congressmen who belong to the Liberal Party and fifteen (15) of a total of twenty-four (24) senators including Liberal senators Edgar U. Ilarde and John Osmeña opted to serve in the Interim Assembly, according to the certification of the Commission on Elections dated February 19, 1973 (Annex Rejoinder-3 to Consolidated Rejoinder of petitioners in L-36165). Only the five (5) petitioners in L-36165 close their eyes to a fait accompli. All the other functionaries recognize the new government and are performing their duties and exercising their powers under the 1973 Constitution, including the lower courts. The civil courts, military tribunals and quasi-judicial bodies created by presidential decrees have decided some criminal, civil and administrative cases pursuant to such decrees. The foreign ambassadors who were accredited to the Republic of the Philippines before martial law continue to serve as such in our country; while two new ambassadors have been accepted by the Philippines after the ratification of the 1973 Constitution on January 17, 1973. Copies of the 1973 Constitution had been furnished the United Nations Organization and practically all the other countries with which the Philippines has diplomatic relations. No adverse reaction from the United Nation or from the foreign states has been manifested. On the contrary, our permanent delegate to the United Nations Organization and our diplomatic representatives abroad appointed before martial law continue to remain in their posts and are performing their functions as such under the 1973 Constitution. Even the Commission on Elections is now implementing the provisions of the 1973 Constitution by requiring all election registrars to register 18-year olds and above whether literates or not, who are qualified electors under the 1973 Constitution (see pars. 1-A(c), (d), & (e) of Annex A to Notes of respondents Puyat and Roy in L 36165). In brief, it cannot be said that the people are ignoring the 1973 Constitution and the government which is enforcing the same for over 10 weeks now. With the petitioners herein, secessionists, rebels and subversives as the only possible exceptions, the rest of the citizenry are complying with the decrees, orders and circulars issued by the incumbent President implementing the 1973 Constitution Of happy relevance on this point is the holding in Miller v. Johnson 18 SW 522):jgc:chanrobles.com.ph "If a set of men, not selected by the people according to the forms of law, were to formulate an instrument and declare it the constitution, it would undoubtedly be the duty of the courts to declare its work a nullity. This would be revolution, and this the courts of the existing government must resist until they are overturned by power, and a new government established. The convention, however, was the offspring of law. The instrument which we are asked to declare invalid as a constitution has been made and promulgated according to the forms of law. It is a matter of current history that both the executive and legislative branches of the government have recognized its validity as a constitution, and are now daily doing so. Is the question, therefore, one of a judicial characters It is our undoubted duty, if a statute be unconstitutional, to so declare it; also, if a provision of the state constitution be in conflict with the federal constitution, to hold the former invalid. But this is a very different case. It may be said, however, that, for every violation of or non-compliance with the law, there should be a remedy in the courts. This is not, however, always the case. For instance, the power of a court as to the acts of other departments of the government is not an absolute one, but merely to determine whether they have kept within constitutional limits, it is a duty, rather than a power. The judiciary cannot compel a co-equal department to perform a duty. It is responsible to the people; but if it does act, then, when the question is properly presented, it

is the duty of the court to say whether it has conformed to the organic law. While the judiciary should protect the rights of the people with great care and jealousy, because this is its duty, and also because, in times of great popular excitement, it is usually their last resort, yet it should at the same time be careful to overstep the proper bounds of its power, as being perhaps equally dangerous; and especially where such momentous results might follow as would be likely in this instance, if the power of the judiciary permitted, and its duty required, the overthrow of the work of the convention. "After the American Revolution the state of Rhode Island retained its colonial character as its constitution, and no law existed providing for the making of a new one. In 1841 public meetings were held, resulting in the election of a convention to form a new one, — to be submitted to a popular vote. The convention framed one, submitted it to a vote, and declared it adopted. Elections were held for state officers, who proceeded to organize a new government. The charter government did not acquiesce in these proceedings, and finally declared the state under martial law. It called another convention, which in 1843 formed a new constitution. Whether the charter government, or the one established by the voluntary convention, was the legitimate one, was uniformly held by the courts of the state not to be a judicial, but a political, question; and, the political department having recognized the one, it was held to be the duty of the judiciary to follow its decision. The Supreme Court of the United States, in Luther v. Borden, 7 How. 1, while not expressly deciding the principle, as it held the federal court, yet in the argument approves it, and in substance says that where the political department has decided such a matter the judiciary should abide by it. "Let us illustrate the difficulty of a court deciding the question: Suppose this court were to hold that the convention, when it reassembled, had no power to make any material amendment, and that such as were made are void by reason of the people having theretofore approved the instrument Then, next, this court must determine what amendments were material; and we find the court, in effect, making a constitution. This would be arrogating sovereignty to itself. Perhaps the members of the court might differ as to what amendments are material, and the result would be confusion and anarchy. One judge might say that all the amendments, material and immaterial, were void; another, that the convention had then the implied power to correct palpable errors, and then the Court might differ as to what amendments are material. If the instrument as ratified by the people could not be corrected or altered at all or if the court must determine what changes were material, then the instrument, as passed upon by the people or as fixed by the court could be lacking a promulgation by the convention; and, if this be essential, then the question would arise, what constitution are we now living under, and what is the organic law of the state? A suggestion of these matters shows what endless confusion and harm to the state might and likely would arise. If, through error of opinion, the convention exceeded its powers, and the people are dissatisfied, they have ample remedy, without the judiciary being asked to overstep the proper limits of its power. The instrument provides for amendment and change. If a wrong has been done, it can, and the proper way in which it should be remedied, is by the people acting as a body politic. It is not a question of whether merely an amendment to a constitution, made without calling a convention, has been adopted, as required by that constitution. If it provides how it is to be done, then, unless the manner be followed, the judiciary, as the interpreter of that constitution, will declare the amendment invalid. Koehler v. Hill, 60 Iowa, 54.3,14 N.W. Rep. 738, and 15 N.W. Rep. 609; State v. Tuffy, 19 Nev. .391, 12 Pac. Rep. 835. But it is a case where a new constitution has been formed and promulgated according to the forms of law. Great interests have already arisen under it; important rights exist by virtue of it; persons have been convicted of the highest crimes known to the law, according to its provisions; the political power of the government has in many ways recognized it; and, under such circumstances, it is our duty to treat and regard it as a valid

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constitution, and now the organic law of our commonwealth. "We need not consider the validity of the amendments made after the convention reassembled. If the making of them was in excess of its powers, yet, as the entire instrument has been recognized as valid in the manner suggested, it would be equally an abuse of power by the judiciary and violative of the rights of the people, — who can and properly should remedy the matter, if not to their liking, — if it were to declare the instrument of a portion invalid, and bring confusion and anarchy upon state." (Italics supplied). If this Court inquires into the validity of Proclamation No. 1102 and consequently of the adoption of the 1973 Constitution, it would be exercising a veto power on the act of the sovereign people, of whom this Court is merely an agent, which to say the least, would be anomalous. This Court cannot dictate to our principal, the sovereign people, as to how the approval of the new Constitution should be manifested or expressed. The sovereign people have spoken and we must abide by their decision, regardless of our notion as to what is the proper method of giving assent to the new Charter. In this respect, WE cannot presume to know better than the incumbent Chief Executive, who, unlike the members of this Court, only last January 8, 1973, We affirmed in Osmeña v. Marcos (Pres. Election Contest No. 3, Jan. 8, 1973), was re-elected by the vote of over 5 million electors in 1969 for another term of four years until noon of December 30, 1973 under the 1935 Constitution. This Court, not having a similar mandate by direct fiat from the sovereign people, to execute the law and administer the affairs of government, must restrain its enthusiasm to sally forth into the domain of political action expressly and exclusively reserved by the sovereign people themselves. The people in Article XV of the 1935 Constitution did not intend to tie their hands to a specific procedure for popular ratification of their organic law. That would be incompatible with their sovereign character of which We are reminded by Section 1, of Article II of both the 1935 and the 1973 Constitutions. The Opinion of Judge Thomas McIntire Cooley that the sovereign people cannot violate the procedure for ratification which they themselves define in their Constitution, cannot apply to a unitary state like the Republic of the Philippines. His opinion expressed in 1868 may apply to a Federal State like the United States, in order to secure and preserve the existence of the Federal Republic of the United States against any radical innovation initiated by the citizens of the fifty (50) different states of the American Union, which states may be jealous of the powers of the Federal government presently granted by the American Constitution. This dangerous possibility does not obtain in the case of our Republic. Then again, Judge Cooley advanced the aforesaid opinion in 1868 when he wrote his opus "Constitutional Limitations." * (Vol. 6, Encyclopedia Brit., 1969 ed. pp. 445-446). It is possible that, were he live today, in a milieu vastly different from 1868 to 1898, he might have altered his views on the matter. Even if conclusiveness is to be denied to the truth of the declaration by the President in Proclamation No. 1102 that the people through their Citizens’ Assemblies had overwhelmingly approved the new Constitution, due regard to a separate, coordinate and co-equal branch of the government demands adherence to the presumption of correctness of the President’s declaration. Such presumption is accorded under the law and jurisprudence to officials in the lower levels of the Executive branch; there is no over-riding reason to deny the same to the Chief of State as head of the Executive Branch. WE cannot reverse the rule on presumptions, without being presumptuous, in the face of the certifications by the Office of the Secretary

of the Department of Local Government and Community Development. (Annexes 1, to 1-E, Annexes 2 to 2-O to the compliance with manifestation filed by the Solicitor General on behalf of the respondents public officers dated March 7,1973). There is nothing in the record that contradicts, much less overthrow the results of the referendum as certified. Much less are We justified in reversing the burden of proof — by shifting it from the petitioners to the respondents. Under the rules on pleadings, the petitioners have the duty to demonstrate by clear and convincing evidence their claim that the people did not ratify through the Citizens’ Assemblies nor adopt by acquiescence the 1973 Constitution. And petitioners have failed to do so. No member of this Tribunal is justified in resolving the issues posed by the cases at bar on the basis of reports relayed to him from private sources which could be biased and hearsay, aside from the fact that such reports are not contained in the record. Proclamation No. 1102 is not just an ordinary act of the Chief Executive. It is a well-nigh solemn declaration which announces the highest act of the sovereign people — their imprimatur to the basic Charter that shall govern their lives hereafter — may be for decades, if not for generations. Petitioners decry that even 15-year olds, ex-convicts and illiterates were allowed to vote in the Citizens’ Assemblies, despite their admission that the term "Filipino people" in the preamble as well as "people" in Sections 1 and 5 of Article II of the 1935 Constitution and in Section 1(3) of Article III of the Bill of Rights includes all Filipino citizens of all ages, of both sexes, whether literate or illiterate, whether peaceful citizens, rebels, secessionists, convicts or ex-convicts. Without admitting that ex-convicts voted in the referendum, about which no proof was even offered, these sectors of our citizenry, whom petitioners seem to regard with contempt or derision and whom petitioners would deny their sovereign right to pass upon the basic Charter that shall govern their lives and the lives of their progenies, are entitled as much as the educated, the law abiding, and those who are 21 years of age or above to express their conformity or non-conformity to the proposed Constitution, because their stake under the new Charter is not any less than the stake of the more fortunate among us. As a matter of fact, these citizens, whose juridical personality or capacity to act is limited by age, civil interdiction or ignorance deserve more solicitude from the State than the rest of the citizenry. In the ultimate analysis, the inclusion of those from 15 years up to below 21 years old, the ex-convicts and the ignorant, is more democratic as it broadens the base of democracy and therefore more faithful to the express affirmation in Section 1 of Article II of the Declaration of Principles that "sovereignty resides in the people and all government authority emanates from them."cralaw virtua1aw library Moreover, ex-convicts granted absolute pardon are qualified to vote. Not all ex-convicts are banned from voting. Only those who had been sentenced to at least one year imprisonment are disenfranchised but they recover their right of suffrage upon expiration of ten years after service of sentence (Sec. 102, 1971 Rev. Elec. Code). Furthermore, ex-convicts and imbeciles constitute a very negligible number in any locality or barrio, including the localities of petitioners. Included likewise in the delegated authority of the President, is the prerogative to proclaim the results of the plebiscite or the voting the Citizens’ Assemblies. Petitioners deny the accuracy or correctness of Proclamation No. 1102 that the 1973 Constitution was ratified by the overwhelming vote of close to 15 million citizens because there was no official certification as to the results of the same from the Department of Local Governments. But there was such certification as per Annexes 1 to 1-A to the Notes submitted by the Solicitor General as counsel for respondents public officers. This should suffice to dispose of this point. Even in

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the absence of such a certification, in much the same way that in passing laws, Congress or the legislative body is presumed to be in possession of the facts upon which such laws are predicated (Justice Fernando, The Power of Judicial Review, 1967 Ed., pp. 112-113, citing Lorenzo v. Dir., etc., [1927] 50 Phil. 595 and O’Gonmore, et al: v. Hartford, etc., [1931] 282 U.S. 251), it should likewise be presumed that the President was in possession of the facts upon which Proclamation No. 1102 was based. This presumption is further strengthened by the fact that the Department of Local Governments, the Department of National Defense and the Philippine Constabulary as well as the Bureau of Posts are all under the President, which offices, as his alter ego, are presumptively acting for and in behalf of the President and their acts are valid until disapproved or reprobated by the President (Planas v. Gil, 67 Phil. 62, Villena v. Secretary of Interior, 67 Phil. 451). To deny the truth of the proclamation of the President as to the overwhelming majority vote in the Citizens’ Assemblies in favor of the new Constitution, is to charge the President with falsification, which is a most grievous accusation. Under the rules of pleadings and evidence, the petitioners have the burden of proof by preponderance of evidence in civil cases and by proof beyond reasonable doubt in criminal prosecutions, where the accused is always presumed to be innocent. Must this constitutional right be reversed simply because the petitioners all assert the contrary? Is the rule of law they pretend to invoke only valid as long as it favors them? The presumption of regularity in the performance of official functions is accorded by the law and jurisprudence to acts of public officers whose category in the official hierarchy is very much lower than that of the Chief of State. What reason is there to withhold such a presumption in favor of the President? Does the fact that the President belong to the party in power and that four (4) of the five (5) senators who are petitioners in L-36165 belong to the opposition party, justify a discrimination against the President in matters of this nature? Unsupported as their word is by any credible and competent evidence under the rules of evidence, must the word of the petitioners prevail over that of the Chief Executive, because they happen to be former senators and delegates to the Constitutional Convention? More than any of the petitioners herein in all these cases, the incumbent President realizes that he risks the wrath of his people being visited upon him and the adverse or hostile verdict of history; because of the restrictions on the civil liberties of his people, inevitable concomitants of martial law, which necessarily entail some degree of sacrifice on the part of the citizenry. Until the contrary is established or demonstrated, herein petitioners should grant that the Chief Executive is motivated by what is good for the security and stability of the country, for the progress and happiness of the people. All the petitioners herein cannot stand on the proposition that the rights under the 1935 Constitution are absolute and invulnerable to limitations that may be needed for the purpose of bringing about the reforms for which the petitioners pretend to be clamoring for and in behalf of the people. The five (5) petitioners in L-36165 and four (4) of the seven (7) petitioners in L-36164 were all participants in the political drama of this country since 1946. They are witness to the frustrations of well-meaning Presidents who wanted to effect the reforms, especially for the benefit of the landless and the laboring class — how politics and political bargaining had stymied the effectuation of such reforms thru legislation. The eight (8) petitioners in L-36164 and L-36165 may not have participated in the systematic blocking of the desired reforms in Congress or outside of it; but the question may be asked as to what exactly they did to support such reforms. For the last seven (7) decades since the turn of the century, for the last thirty-five (35) years since the establishment of the Commonwealth government in 1935 and for the last twenty seven (27) years since the inauguration of the Republic on July 4, 1946, no tangible substantial reform had been effected, funded and seriously implemented, despite the violent uprisings in the thirties, and from 1946 to 1952, and the violent demonstrations of recent memory. Congress and the oligarchs acted like ostriches, "burying their heads in timeless sand." Now the hopes for the

long-awaited reforms to be effected within a year or two are brighter. It would seem therefore to be the duty of everyone including herein petitioners to give the present leadership the opportunity to institute and carry out the needed reforms as provided for in the new or 1973 Constitution and thru the means prescribed in that same Constitution. As stated in Wheeler v. Board of Trustees, "a court is never justified in placing by implication a limitation upon the sovereign."cralaw virtua1aw library This Court in the Gonzales and Tolentino cases transcended its proper sphere and encroached upon the province exclusively reserved to and by the sovereign people. This Court did not pay heed to the principle that the courts are not the fountain spring of all remedies for all wrongs. WE cannot presume that we alone can speak with wisdom as against the judgment of the people on the basic instrument which affects their very lives. WE cannot determine what is good for the people or what ought to be their fundamental law. WE can only exercise the power delegated to Us by the sovereign people, to apply or interpret the Constitution and the laws for the benefit of the people, not against them nor to prejudice them. WE cannot perform an act inimical to the interest of Our principal, who at any time may directly exercise their sovereign power of ratifying a new Constitution in the manner convenient to them It is pertinent to ask whether the present Supreme Court can function under the 1935 Constitution without being a part of the government established pursuant thereto. Unlike in the Borden case, supra, where there was at least another government claiming to be the legitimate organ of the state of Rhode Island (although only on paper as it had no established organ except Dorr who represented himself to be its head; in the cases at bar there is no other government distinct from and maintaining a position against the existing government headed by the incumbent Chief Executive. (See Taylor v. Commonwealth, supra). There is not even a rebel government duly organized as such even only for domestic purposes, let alone a rebel government engaged in international negotiations. As heretofore stated, both the executive branch and the legislative branch established under the 1935 Constitution had been supplanted by the government functioning under the 1973 Constitution as of January 17, 1973. The vice president elected under the 1935 Constitution does not asset any claim to the leadership of the Republic of the Philippines. Can this Supreme Court legally exist without being part of any government? Brilliant counsel for petitioners in L-36165 has been quite extravagant in his appraisal of Chief Justice Roger Brooke Taney whom he calls the "hero of the American Bar," because during the American civil war he apparently had the courage to nullify the proclamation of President Lincoln suspending the privileges of the writ of habeas corpus in Ex parte Merryman (Federal Case No. 9487 [1861]). But who exactly was Chief Justice Roger Brooke Taney? The Editorial Board of Vol. 21 of the Encyclopedia Brit., 1966 ed. (pp. 778-779, 1969 ed., pp. 654-657), briefly recounts that he was born in 1777 in Calvert County, Maryland, of parents who were landed aristocrats as well as slave owners. Inheriting the traditional conservatism of his parents who belonged to the landed aristocracy, Taney became a lawyer in 1799, practiced law and was later appointed Attorney General of Maryland. He also was a member of the Maryland state legislature for several terms. He was a leader of the Federalist Party, which disintegrated after the war of 1812, compelling him to join the Democratic Party of Andrew Jackson, also a slave owner and landed aristocrat, who later appointed him first as Attorney General of the United States, then Secretary of the Treasury and in 1836 Chief Justice of the United States Supreme Court to succeed Chief Justice John Marshall, in which position he continued for 28 years until he died on October 21, 1864. His death "went largely unnoticed and unregretted." Because he himself was a slave owner and a landed aristocrat, Chief Justice

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Taney sympathized with the Southern States and, even while Chief Justice, hoped that the Southern States would be allowed to secede peacefully from the Union. That he had no sympathy for the Negroes was revealed by his decision in Dred Scott v. Sandford (19 How. 398 [1857]) where he pronounced that the American Negro is not entitled to the rights of an American citizen and that his status as a slave is determined by his returning to a slave state. Once can therefore discern his hostility towards President Lincoln when he decided Ex parte Merryman, which animosity to say the least does not befit a judicial mind. Such a man could hardly be spoken of as a hero of the American Bar, least of all of the American nation. The choice of heroes should not be expressed indiscriminately just to embellish one’s rhetoric. Distinguished counsel in L-36165 appears to have committed another historical error, which may be due to his rhetorical in the Encyclopedia Britannica (Vol. 9, 1969 ed., pp. 508-509) to this effect. On the contrary, Encyclopedia Britannica (Vol. 17, Encyclopedia Brit., 1966 & 1969 eds., 732-733), refers to Marshal Henri Philippe Petain as the genuine hero or "Saviour of Verdun" ; because he held Verdun against the 1916 offensive 0f the German army at the cost of 350,000 of his French soldiers, who were then demoralized and plotting mutiny. Certainly, the surviving members of the family of Marshal Petain would not relish the error. And neither would the members of the clan of Marshal Foch acknowledge the undeserved accolade, although Marshal Foch has a distinct place in history on his own merits. The foregoing clarification is offered in the interest of true scholarship and historical accuracy, so that the historians, researchers and students may not be led astray or be confused by esteemed counsel’s eloquence and mastery of the spoken and written word as well as by his eminence as law professor, author of law books, political leader, and member of the newly integrated Philippine Bar. It is quite intriguing why the eminent counsel and co-petitioner in L-36164 did not address likewise his challenge to the five (5) senators who are petitioners in L-36165 to also act as "heroes and idealists," to defy the President by holding sessions by themselves alone in a hotel or in their houses if they can muster a quorum or by causing the arrest of other senators to secure a quorum and thereafter remove respondents Puyat and Roy (Avelino, Et. Al. v. Cuenco, Et. Al. [1949] 83 Phil. 17), if they believe most vehemently in the justice and correctness of their position that the 1973 Constitution has not been validly ratified, adopted or acquiesced in by the people since January 18, 1973 until the present. The proclaimed conviction of petitioners in L 36165 on this issue would have a ring of credibility, if they proceeded first to hold a rump session outside the legislative building; because it is not unreasonable to demand or to exact that he who exhorts others to be brave must first demonstrate his own courage. Surely, they will not affirm that the mere filing of their petition in L-36165 already made them "heroes and idealists." The challenge likewise seems to insinuate that the members of this Court who disagree with petitioners’ views are materialistic cowards or mercenary fencesitters. The Court need not be reminded of its solemn duty and how to perform it. WE refuse to believe that petitioners and their learned as well as illustrious counsels, scholars and liberal thinkers that they are, do not recognize the sincerity of those who entertain opinions that clash with their own. Such an attitude does not sit well with the dictum that "We can differ without being difficult; we can disagree without being disagreeable," which distinguished counsel in L 36165 is wont to quote. WE reserve the right to prepare an extensive discussion of the other points raised by petitioners, which We do not find now necessary to deal with in view of Our opinion on the main issue. IN VIEW OF THE FOREGOING, ALL THE PETITIONS IN THESE FIVE CASES SHOULD BE

DISMISSED. MAKASIAR, J.:

Pursuant to Our reservation, We now discuss the other issues raised by the petitioners. II

EVEN IF ISSUE IS JUSTICIABLE, PEOPLE’S RATIFICATION, ADOPTION OR ACQUIESCENCE CREATES STRONG PRESUMPTION OF VALIDITY OF 1973 CONSTITUTION. As intimated in the aforecited cases, even the courts, which affirm the proposition that the question as to whether a constitutional amendment or the revised or new Constitution has been validly submitted to the people for ratification in accordance with the procedure prescribed by the existing Constitution, is a justiciable question, accord all the presumption of validity to the constitutional amendment or the revised or new Constitution after the government officials or the people have adopted or ratified or acquiesced in the new Constitution or amendment, although there was an illegal or irregular or no submission at all to the people. (Collier v. Gray, 4th Dec. Dig. 935 [1934]; Hammond v. Clark, 71 SE 479, 482-483; People v. Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34; Thompson v. Winneth, 78 Neb. 379, 110 NW 1113, 10 L.R.A. [N.S.] 149; State v. Laylin, 69 Ohio St. Rep. 1, 68 NE 574; Weston v. Ryan, 70 Neb. 211, 97 NW 347; Combs v. State, 81 Ga. 780, 8 SE 318; Woodward v. State, 103 Ga. 496, 30 SE 522; Corre v. Cooney, 70 Mont. 355, 225 P 1007, 1009). As late as 1971, the courts stressed that the constitutional amendment or the new Constitution should not be condemned "unless in our judgment its nullity is manifest beyond reasonable doubt" (1971 case of Moore v. Shanahan, 486 Pac. 2d 506, 207 Karl. 1, 645; and the 1956 case of Tipton v. Smith, Et Al., supra). Mr. Justice Enrique M. Fernando, speaking for the Court, pronounced that the presumption of constitutionality must persist in the absence of factual foundation of record to overthrow such presumption (Ermita-Malate Hotel, etc. v. City Mayor, L-24698, July 31, 1967, 20 SCRA 849). III

CONSTITUTIONAL CONVENTION — CO-EQUAL WITH AND INDEPENDENT OF CONGRESS, EXECUTIVE AND JUDICIARY. The Constitutional Convention is co-ordinate and co-equal with, as well as independent of, the three grand departments of the Government, namely, the legislative, the executive and the judicial. As a fourth separate and distinct branch, to emphasize its independence, the Convention cannot be dictated to by either of the other three departments as to the content as well as form of the Charter that it proposes. It enjoys the same immunity from interference or supervision by any of the aforesaid branches of the Government in its proceedings, including the printing of its own journals (Tañada and Fernando, Constitution of the Philippines, 1952 ed., Vol. I, pp. 8-9; Malcolm and Laurel, Phil. Const. Law, p. 22; Frantz v. Autry, 91 Pac. 193). Implicit in that independence, for the purpose of maintaining the same unimpaired and in order that its work will not be frustrated, the Convention has the power to fix the date for the plebiscite and to provide funds therefor. To deny the Convention such

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prerogative, would leave it at the tender mercy of both legislative and executive branches of the Government. An unsympathetic Congress would not be disposed to submit the proposed Constitution drafted by the Constitutional Convention to the people for ratification, much less appropriate the necessary funds therefor. That could have been the fate of the 1973 Constitution, because the same abolished the Senate by creating a unicameral National Assembly to be presided by a Prime Minister who wields both legislative and executive powers and is the actual Chief Executive, for the President contemplated in the new Constitution exercises primarily ceremonial prerogatives. The new Constitution likewise shortened abruptly the terms of the members of the present Congress (whose terms end on December 31, 1913, 1975 and 1977) which provides that the new Constitution shall take effect immediately upon its ratification (Sec. 16, Article XVII, 1973 Constitution). The fact that Section 2 of the same Article XVII secures to the members of Congress membership in the interim National Assembly as long as they opt to serve therein within thirty (30) days after the ratification of the proposed Constitution, affords them little comfort; because the convening of the interim National Assembly depends upon the incumbent President (under Sec. 3[1], Art. XVII, 1973 Constitution). Under the foregoing circumstances, the members of Congress, who were elected under the 1935 Constitution, would not be disposed to call a plebiscite and appropriate funds therefor to enable the people to pass upon the 1973 Constitution, ratification of which means their elimination from the political scene. They will not provide the means for their own liquidation. Because the Constitutional Convention, by necessary implication as it is indispensable to its independence and effectiveness, possesses the power to call a plebiscite and to appropriate funds for the purpose, it inescapably must have the power to delegate the same to the President, who, in the estimation of the Convention can better determine the appropriate time for such a referendum as well as the amount necessary to effect the same, for which reason the Convention thru Resolution No. 29 approved on November 22, 1972, which superseded Resolution No. 5843 adopted on November 16, 1972, proposed to the President "that a decree be issued calling a plebiscite for the ratification of the proposed new Constitution on such appropriate date as he shall determine and providing for the necessary funds therefor, . . .," after stating in its "whereas" clauses that the 1971 Constitutional Convention is expected to complete its work by the end of November, 1972, that the urgency of instituting reforms rendered imperative the early approval of the new Constitution, and that the national and local leaders desire that there be continuity in the immediate transition from the old to the new Constitution. If Congress can legally delegate to the Chief Executive or his subaltern the power to promulgate subordinate rules and regulations to implement the law, this authority to delegate implementing rules should not be denied to the Constitutional Convention, a co-equal body. Apart from the delegation to the Chief Executive of the power to call a plebiscite and to appropriate funds therefor by the Constitutional Convention thru its Resolution No. 29, the organization of the Citizens’ Assemblies for consultation on national issues, is comprehended within the ordinance-making power of the President under Section 63 of the Revised Administrative Code, which expressly confers on the Chief Executive the power to promulgate administrative acts and commands touching on the organization or mode of operation of the government or re-arranging or re-adjusting any district, division or part of the Philippines "or disposing of issues of general concern . . ." (Italics supplied). Hence, as consultative bodies representing the localities including the barrios, their creation by the President thru Presidential Decree No. 86 of December 31, 1972, cannot be successfully challenged.

The employment by the President of these Citizens’ Assemblies for consultation on the 1973 Constitution or on whether there was further need of a plebiscite thereon, — both issues of national concern — is still within the delegated authority reposed in him by the Constitutional Convention as aforesaid. It should be noted that Resolution No. 29, which superseded Resolution No. 5843, does not prescribe that the plebiscite must be conducted by the Commission on Elections in accordance with the provisions of the 1971 Revised Election Code. If that were the intention of the Constitutional Convention in making the delegation, it could have easily included the necessary phrase for the purpose, some such phrase like "to call a plebiscite to be supervised by the Commission on Elections in accordance with the provisions of the 1971 Revised Election Code (or with existing laws)." That the Constitutional Convention omitted such phrase, can only mean that it left to the President the determination of the manner by which the plebiscite should be conducted, who shall supervise the plebiscite, and who can participate in the plebiscite. The fact that said Resolution No. 29 expressly states "that copies of this resolution as approved in plenary session be transmitted to the President of the Philippines and the Commission on Elections for implementation," did not in effect designate the Commission on Elections as supervisor of the plebiscite. The copies of said resolution that were transmitted to the Commission on Elections at best serve merely to notify the Commission on Elections about said resolution, but not to direct said body to supervise the plebiscite. The calling as well as conduct of the plebiscite was left to the discretion of the President, who, because he is in possession of all the facts funnelled to him by his intelligence services, was in the superior position to decide when the plebiscite shall be held, how it shall be conducted and who shall oversee it. It should be noted that in approving said Resolution No. 29, the Constitutional Convention itself recognized the validity of, or validated Presidential Proclamation No. 1081 placing the entire country under martial law by resolving to "propose to President Ferdinand E. Marcos that a decree be issued calling a plebiscite . . ." The use of the term "decree" is significant for the basic orders regulating the conduct of all inhabitants are issued in that form and nomenclature by the President as the Commander in Chief and enforcer of martial law. Consequently, the issuance by the President of Presidential Decree No. 73 on December 1, 1972 setting the plebiscite on January 15, 1973 and appropriating funds therefor pursuant to said Resolution No. 29, is a valid exercise of such delegated authority. Such delegation, unlike the delegation by Congress of the rule- making power to the Chief Executive or to any of his subalterns, does not need sufficient standards to circumscribe the exercise of the power delegated, and is beyond the competence of this Court to nullify. But even if adequate criteria should be required, the same are contained in the "Whereas" clauses of the Constitutional Convention Resolution No. 29, thus:jgc:chanrobles.com.ph "WHEREAS, the 1971 Constitutional Convention is expected to complete its work of drafting a proposed new Constitution for the Republic by the end of November, 1972; "WHEREAS, in view of the urgency of instituting reforms, the early approval of the New Constitution has become imperative; "WHEREAS, it is the desire of the national and local leaders that there be continuity in the immediate political transition from the old to the New Constitution;" (Annex "1" of Answer, Res. No. 29, Constitutional Convention).

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As Mr. Justice Fernando, with whom Messrs. Justices Barredo, Antonio and the writer concurred in the Plebiscite Cases, stated:jgc:chanrobles.com.ph ". . . Once its work of drafting has been completed, it could itself direct the submission to the people for ratification as contemplated in Article XV of the Constitution. Here it did not do so. With Congress not being in session, could the President, by the decree under question, call for such a plebiscite? Under such circumstances, a negative answer certainly could result in the work of the Convention being rendered nugatory. The view has been repeatedly expressed in many American state court decisions that to avoid such undesirable consequence, the task of submission becomes ministerial, with the political branches devoid of any discretion as to the holding of an election for that purpose. Nor is the appropriation by him of the amount necessary to be considered as offensive to the Constitution. If it were done by him in his capacity as President, such an objection would indeed have been formidable, not to say insurmountable. If the appropriation were made in his capacity as agent of the Convention to assure that there be submission to the people, then such an argument loses force. The Convention itself could have done so. It is understandable why it should be thus. If it were otherwise, then a legislative body, the appropriating arm of the government, could conceivably make use of such authority to compel the Convention to submit to its wishes, on pain of being rendered financially distraught. The President then, if performing his role as its agent, could be held as not devoid of such competence." (pp. 2-3, concurring opinion of J. Fernando in L35925, etc., Italics supplied). IV

VAGUENESS OR AMBIGUITY DOES NOT INVALIDATE 1973 CONSTITUTION (1) Petitions challenge the 1973 draft as vague and incomplete, and alluded to their arguments during the hearings on December 18 and 19, 1972 on the Plebiscite Cases. But the inclusion of questionable or ambiguous provisions does not affect the validity of the ratification or adoption of the 1973 Constitution itself (Pope v. Gray, 104 SO, 2d 841; 7th Dec. pp. 212-219, 1956-1966). Alexander Hamilton, one of the leading founders and defenders of the American Constitution, answering the critics of the Federal Constitution, stated that: "I never expect to see a perfect work from imperfect man. The result of the deliberations of all collective bodies must necessarily be a compound, as well of the errors and prejudices as of the good sense and wisdom, of the individuals of whom they are composed. The compacts which are to embrace thirteen distinct States in a common bond of amity and union, must necessarily be a compromise of as many dissimilar interests and inclinations. How can perfection spring from such materials?" (The Federalist, Modern Library Ed., pp. xx-xxi). (2) The 1973 Constitution is likewise impugned on the ground that it contains provisions which are ultra vires or beyond the power of the Constitutional Convention to propose. This objection relates to the wisdom of changing the form of government from Presidential to Parliamentary and including such provisions as Section 3 of Article IV, Section 15 of Article XIV and Sections 3(2) and 12 of Article XVII in the 1973 Constitution. Article IV —

"Sec. 3. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall not be violated, and no search warrant or warrant of arrest shall issue except upon probable case to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized."cralaw virtua1aw library Article XIV — "Sec. 15. Any provision of paragraph one, Section fourteen, Article Eight and of this Article notwithstanding, the Prime Minister may enter into international treaties or agreements as the national welfare and interest may require." (Without the consent of the National Assembly.)

Constitution and propose an entirely new Constitution based on an ideology foreign to the democratic system . . .; because the same will be submitted to the people for ratification. Once ratified by the sovereign people, there can be no debate about the validity of the new Constitution."cralaw virtua1aw library Mr. Justice Fernando, concurring in the same Plebiscite Cases, cited the foregoing pronouncement in the Del Rosario case, supra, and added: ". . . it seems to me a sufficient answer that once convened, the area open for deliberation to a constitutional convention . . ., is practically limitless" (citing Cf. Koehler v. Hill, 14 NW 738, 60 Iowa 543 [1883]; Hatch v. Stoneman, 6 P 734, 66 Cal. 632 [1885]; MacMillan v. Blattner, 25 NW 245, 67 Iowa 287 [1895]; State v. Powell, 27 SO 297, 77 Miss. 543 [1900]; Hammond v. Clark, 71 SE 479, 136 Ga. 313 [1911]; Hamilton v. Vaughan, 179 NW 533, 212 Mich. 31 [1920]; State v. Smith, 138 NE 881, 105 Ohio St. 570 [1922]; Looney v. Leeper, 292 P 365, 145 Okl. 202 [1930]; School District v. City of Pontiac, 247 NW 474, 262 Mich. 338 [1933]).

Article XVII — "Sec. 3(2) All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the incumbent President shall be part of the law of the land, and shall remain valid, legal, binding and effective even after lifting of martial law or the ratification of this Constitution, unless modified, revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or other acts of the incumbent President, or unless expressly and explicitly modified or repealed by the regular National Assembly. x

x

x

Mr. Justice Barredo, in his concurring opinion in said Plebiscite Cases, expressed the view "that when the people elected the delegates to the Convention and when the delegates themselves were campaigning, such limitation of the scope of their function and objective was not in their minds" V

1973 CONSTITUTION DULY ADOPTED AND PROMULGATED.

"Sec. 12. All treaties, executive agreements, and contracts entered into by the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations, are hereby recognized as legal, valid and binding. When the national interest so requires, the incumbent President of the Philippines or the interim Prime Minister may review all -contracts, concessions, permits, or other forms of privileges for the exploration, development, exploitation, or utilization of natural resources entered into, granted, issued or acquired before the ratification of this Constitution."cralaw virtua1aw library In the Plebiscite Cases (L-35925, L-35929, L-35940, L-35942, L-35948, L-35953, L-35961, L35965, & L-35979), Chief Justice Roberto Concepcion, concurred in by Justices Fernando, Barredo, Antonio and the writer, overruled this objection, thus:jgc:chanrobles.com.ph ". . . Regardless of the wisdom and moral aspects of the contested provisions of the proposed Constitution, it is my considered view that the Convention was legally deem fit to propose — save perhaps what is or may be insistent with what is now known, particularly in international law, as Jus Cogens — not only because the Convention exercised sovereign powers delegated thereto by the people — although insofar only as the determination of the proposals to be made and formulated by said body is concerned — but also, because said proposals cannot be valid as part of our Fundamental Law unless and until ‘approved by the majority of the votes cast at an election which’ said proposals ‘are submitted to the people for their ratification,’ as provided in Section 1 of Article XV of the 1935 Constitution." (Pp. 11-18, Decision in L-35925, etc.). This Court likewise enunciated in Del Rosario v. Comelec (L- 32476, Oct. 20, 1970, 35 SCRA 367) that the Constitutional Convention has the authority to "entirely overhaul the present

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Petitioners next claim that the 1971 Constitutional Convention adjourned on November 30,1972 without officially promulgating the said Constitution in Filipino as required by Sections 3(1) of Article XV on General Provisions of the 1973 Constitution. This claim is without merit because their very Annex "M" is the Filipino version of the 1973 Constitution, and, like the English version, contains the certification by President Diosdado Macapagal of the Constitutional Convention, duly attested by its Secretary, that the proposed Constitution was approved on second reading on the 27th day of November, 1972 and on third reading in the Convention’s 291st plenary session on November 29,1972 and accordingly signed on November 30, 1972 by the delegates whose signatures are thereunder affixed. It should be recalled that Constitutional Convention President Diosdado Macapagal was, as President of the Republic from 1962 to 1965, then the titular head of the Liberal Party to which four (4) of the petitioners in L 36165 including their counsel, former Senator Jovito Salonga, belong. Are they repudiating and disowning their former party leader and benefactor? VI

ARTICLE XV OF 1935 CONSTITUTION DOES NOT PRESCRIBE ANY PROCEDURE FOR RATIFICATION OF 1973 CONSTITUTION. (1) Article XV of the 1935 Constitution simply provides that "such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for ratification."cralaw virtua1aw library

But petitioners construe the aforesaid provision to read: "Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election called by Congress at which the amendments are submitted for ratification by the qualified electors defined in Article V hereof supervised by the Commission on Elections in accordance with the existing election law and after such amendments shall have been published in all the newspapers of general circulation for at least four months prior to such election."cralaw virtua1aw library This position certainly imposes limitation on the sovereign people, who have the sole power of ratification, which Imposition by the Court is never justified (Wheeler v. Board of Trustees, supra). In effect, petitioners and their counsels are amending by a strained and tortured construction Article XV of the 1935 Constitution. This is a clear case of usurpation of sovereign power they do not possess — through some kind of escamotage. This Court should not commit such a grave error in the guise of judicial interpretation. In all the cases where the court held that illegal or irregular submission, due to absence of substantial compliance with the procedure prescribed by the Constitution and/or the law nullifies the proposed amendment or the new Constitution, the procedure prescribed by the state Constitution is so detailed that it specifies that the submission should be at a general or special election, or at the election for members of the State legislature only or of all state officials only or of local officials only, or of both state and local officials; fixes the date of the election or plebiscite limits the submission to only electors or qualified electors; prescribes the publication of the proposed amendment or a new Constitution for specific period prior to the election or plebiscite, and designates the officer to conduct the plebiscite, to canvass and to certify the results, including the form of the ballot which should so state the substance of the proposed amendments to enable the voter to vote on each amendment separately; or authorizes expressly the Constitutional Convention or the legislature to determine the procedure or certain details thereof. See the State Constitutions of Alabama [1901]; Arizona [1912]; Arkansas [1874]; Colorado [1976]; Connecticut [1818]; Florida [1887]; Georgia [1945]; Illinois [1970]; Indiana [1851]; Iowa [1857]; Kansas [1861]; Kentucky [1891]; Louisiana [1921]; Maryland [1867]; Massachusetts [1790]; Michigan [1909]; Minnesota [1857]; Mississippi [1890]; and Missouri [1945]). As typical examples:chanrob1es virtual 1aw library Constitution of Alabama (1901):jgc:chanrobles.com.ph "Article XVIII. Mode of Amending the Constitution "Sec. 284. Legislative Proposals. Amendments may be proposed to this Constitution by the legislature in the manner following: The proposed amendments shall be read in the house in which they originate on three several days, and, if upon the third reading three-fifths of all the members elected to that house shall vote in favor thereof, the proposed amendments shall be sent to the other house, in which they shall likewise be read on three several days, and if upon the third reading three-fifths of all the members elected to that house shall vote in favor of the proposed amendments, the legislature shall order an election by the qualified electors of the state upon such proposed amendments to be held either at the general election next succeeding the session of the legislature at which the amendments are proposed or upon another day appointed by the legislature, not less than three months after the final

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adjournment of the session of the legislature at which the amendments were proposed. Notice of such election, together with the proposed amendments, shall be given by proclamation of the governor, which shall be published in every county in such manner as the legislature shall direct, for at least eight successive weeks next preceding the day appointed for such election. On the day so appointed an election shall be held for the vote of the qualified electors of the state upon the proposed amendments. If such election be held on the day of the general election, the officers of such general election shall open a poll for the vote of the qualified electors upon the proposed amendments; If it be held on a day other than that of a general election, officers for such election shall be appointed; and the election shall be held in all things in accordance with the law governing general elections. In all elections upon such proposed amendments, the votes cast thereat shall be canvassed, tabulated, and returns thereof be made to the secretary of state, and counted, in the same manner as in elections for representatives to the legislature; and if it shall thereupon appear that a majority of the qualified electors who voted at such election upon the proposed amendments voted in favor of the same, such amendments shall be valid to all intents and purposes as parts of this Constitution. The result of such election shall be made known by proclamation of the governor. Representation in the legislature shall be based upon population, and such basis of representation shall not be changed by constitutional amendments. "Sec. 285. Form of ballot for amendment. Upon the ballots used at all elections provided for in section 284 of this Constitution the substance or subject matter of each proposed amendment shall be so printed that the nature thereof shall be clearly indicated. Following each proposed amendment on the ballot shall be printed the word "Yes" and immediately under that shall be printed the word "No." The choice of the elector shall be indicated by a cross mark made by him or under his direction, opposite the word expressing his desire, and no amendment shall be adopted unless it receives the affirmative vote of a majority of all the qualified electors who vote at such election."cralaw virtua1aw library Constitution of Arkansas (1874):jgc:chanrobles.com.ph "Article XIX. Miscellaneous Provisions. "Sec. 22. Constitutional amendments. Either branch of the General Assembly at a regular session thereof may propose amendments to this Constitution, and, if the same be agreed to by a majority of all the members elected to each house, such proposed amendments shall be entered on the journal with the yeas and nays, and published in at least one newspaper in each county, where a newspaper is published, for six months immediately preceding the next general election for Senators and Representatives, at which time the same shall be submitted to the electors of the State for approval or rejection; and if a majority of the electors voting at such election adopt such amendments the same shall become a part of this Constitution; but no more than three amendments shall be proposed or submitted at the same time. They shall be so submitted as to enable the electors to vote on each amendment separately."cralaw virtua1aw library Constitution of Kansas (1861):jgc:chanrobles.com.ph "Article XIV. Amendments. "Sec. 1. Proposal of amendments; publications; elections. Propositions for the amendment of this constitution may he made by either branch of the legislature; and if two thirds of all the members elected to each house shall concur therein, such proposed amendments, together with

the yeas and nays, shall be entered on the journal; and the secretary of state shall cause the same to be published in at least one newspaper in each county of the state where a newspaper is published, for three months preceding the next election for representatives, at which time, the same shall be submitted to the electors, for their approval or rejection; and if a majority of the electors voting on said amendments, at said election, shall adopt the amendments, the same shall become a part of the constitution. When more than one amendment shall be submitted at the same time, they shall be so submitted as to enable the electors to vote on each amendments separately; and not more than three propositions to amend shall be submitted at the same election."cralaw virtua1aw library Constitution of Maryland (1867):jgc:chanrobles.com.ph "Article XIV. Amendments to the Constitution. "Sec. 1. Proposal in general assembly; publication; submission to voters; governor’s proclamation. The General Assembly may propose Amendments to this Constitution; provided that each Amendment shall be embraced in a separate bill, embodying the Article or Section, as the same will stand when amended and passed by three fifths of all the members elected to each of the two Houses, by yeas and nays, to be entered on the Journals with the proposed Amendment. The bill or bills proposing amendment or amendments shall be published by order of the Governor, in at least two newspapers, in each County, where so many may be published, and where not more than one may be published, then in the newspaper, and in three newspapers published in the City of Baltimore, once a week for four weeks immediately preceding the next ensuing general election, at which the proposed amendment or amendments shall be submitted, in a form to be prescribed by the General Assembly, to the qualified voters of the State for adoption or rejection. The votes cast for and against said proposed amendment or amendments, severally, shall be returned to the Governor, in the manner prescribed in other cases, and if it shall appear to the Governor that a majority of the votes cast at said election on said amendment or amendments, severally, were cast in favor thereof, the Governor shall, by his proclamation, declare the said amendment or amendments having received said majority of votes, to have been adopted by the people of Maryland as part of the Constitution thereof, and thenceforth said amendment or amendments shall be part of the said Constitution. When two or more amendments shall be submitted in manner aforesaid, to the voters of this State at the same election, they shall be so submitted as that each amendment shall be voted on separately."cralaw virtua1aw library Constitution of Missouri (1945):jgc:chanrobles.com.ph "Article XII. Amending the Constitution. "Sec. 2(b). Submission of amendments proposed by general assembly or by the initiative. All amendments proposed by the general assembly or by the initiative shall be submitted to the electors for their approval or rejection by official ballot title as may be provided by law, on a separate ballot without party designation, at the next general election, or at a special election called by the governor prior thereto, at which he may submit any of the amendments. No such proposed amendment shall contain more than one amended and revised article of this constitution, or one new article which shall not contain more than one subject and matters properly connected therewith. If possible, each proposed amendment shall be published once a week for two consecutive weeks in two newspapers of different political faith in each county, the last publication to be not more than thirty nor less than fifteen days next preceding the election. If there be but one newspaper in any county, publication of four consecutive weeks

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shall be made. If a majority of the votes cast thereon is in favor of any amendment, the same shall take effect at the end of thirty days after the election. More than one amendment at the same election shall be so submitted as to enable the electors to vote on each amendment separately."cralaw virtua1aw library Article XV of the 1935 Constitution does not require a specific procedure, much less a detailed procedure for submission or ratification. As heretofore stated, it does not specify what kind of election at which the new Constitution shall be submitted; nor does it designate the Commission on Elections to supervise the plebiscite. Neither does it limit the ratification to the qualified electors as defined in Article V of the 1935 Constitution. Much less does it require the publication of the proposed Constitution for any specific period before the plebiscite nor does it even insinuate that the plebiscite should be supervised in accordance with the existing election law. (2) As aforequoted, Article XV does not indicate the procedure for submission of the proposed Constitution to the people for ratification. It does not make any reference to the Commission on Elections as the body that shall supervise the plebiscite. And Article XV could not make any reference to the Commission on Elections because the original 1935 Constitution as ratified on May 14, 1935 by the people did not contain Article X on the Commission on Elections, which article was included therein pursuant to an amendment by the National Assembly proposed only about five (5) years later — on April 11, 1940, ratified by the people on June 18, 1940 and approved by the President of the United States on December 2, 1940 (see Sumulong v. Commission, 70 Phil. 703, 713, 715; Gonzales, Phil. Const. Law, 1966 ed., p. 13). So it cannot be said that the original framers of the 1935 Constitution as ratified on May 14, 1935 intended that a body known as the Commission on Elections should be the one to supervise the plebiscite, because the Commission on Elections was not in existence then as it was created only by Commonwealth Act No. 607 approved on August 22, 1940 and amended by Commonwealth Act No. 657 approved on June 21, 1941 (see Tañada & Carreon, Political Law of the Philippines, Vol. I, 1961 ed., pp. 475-476; Sumulong v. Commission, 170 Phil. 703, 708-715; 73 Phil. 288, 290300; Tañada & Fernando, Constitution of the Philippines, 1953 ed., Vol. I, p. 5, Vol. II, pp. 1119). Because before August, 1940 the Commission on Elections was not yet in existence, the former Department of Interior (now Department of Local Governments and Community Development) supervised the plebiscites on the 1937 amendment on woman’s suffrage, the 1939 amendment to the Ordinance appended to the 1935 Constitution (Tydings- Kocialkowski Act of the U.S. Congress) and the three 1940 amendments on the establishment of a bicameral Congress, the re-election of the President and the Vice-President, and the creation of the Commission on Elections (ratified on June 18, 1940). The supervision of said plebiscites by the then Department of Interior was not axiomatic, but by virtue of an express authorization in Commonwealth Act Nos. 34, 49 and 517. If the National Assembly then intended that the Commission on Elections should also supervise the plebiscite for ratification of constitutional amendments or revision, it should have likewise proposed the corresponding amendment to Article XV by providing therein that the plebiscite on amendments shall be supervised by the Commission on Elections. 3) If the framers of the 1935 Constitution and the people in ratifying the same on May 14, 1935 wanted that only the qualified voters under Article V of the 1935 Constitution should participate in the referendum on any amendment or revision thereof, they could have provided the same in 1935 or in the 1940 amendment by just adding a few words to Article XV by

changing the last phrase to "submitted for ratification to the qualified electors as defined in Article V hereof," or some such similar phrases. Then again, the term "people" in Article XV cannot be understood to exclusively refer to the qualified electors under Article V of the 1935 Constitution; because the said term "people" as used in several provisions of the 1935 Constitution, does not have a uniform meaning. Thus in the preamble, the term "Filipino people" refers to all Filipino citizens of all ages of both sexes. In Section 1 of Article II on the Declaration of Principles, the term "people" in whom sovereignty resides and from whom all government authority emanates, can only refer also to Filipino citizens of ail ages and of both sexes. But in Section 5 of the same Article II on social justice, the term "people" comprehends not only Filipino citizens but also all aliens residing in the country of all ages and of both sexes. Likewise, that is the same connotation of the term "people" employed in Section 1(3) of Article III on the Bill of Rights concerning searches and seizures. When the 1935 Constitution wants to limit action or the exercise of a right to the electorate, it does so expressly as in the case of the election of senators and congressmen. Section 2, Article VI expressly provides that the senators "shall be chosen at large by the qualified electors of the Philippines as may be provided by law." Section 5 of the same Article VI specifically provides that congressmen shall "be elected by the qualified electors." The only provision that seems to sustain the theory of petitioners that the term "people" in Article XV should refer to the qualified electors as defined in Article V of the 1935 Constitution is the provision that the President and Vice-President shall be elected "by direct vote of the people." (Sec. 2 of Art. VII of the 1935 Constitution). But this alone cannot be conclusive as to such construction; because of the explicit provisions of Sections 2 and 5 of Article VI, which specifically prescribes that the senators and congressmen shall be elected by the qualified electors. As aforesaid, most of the constitutions of the various states of the United States, specifically delineate in detail the procedure of ratification of amendments to or revision of state Constitutions and expressly require ratification by qualified electors, not by the generic term "people." The proposal submitted to the Ozamis Committee on the Amending Process of the 1934-35 Constitutional Convention, specified that the amendment shall be submitted to qualified electors for ratification. This proposal was not accepted, indicating that the 1934-35 Constitutional Convention did not intend to limit the term "people" in Article XV of the 1935 Constitution to qualified electors only. As above demonstrated, the 1934-35 Constitutional Convention limits the use of the term "qualified electors" to elections of public officials. It did not want to tie the hands of succeeding or future constitutional conventions as to who should ratify the proposed amendment or revision. (4) It is not exactly correct to opine that Article XV of the 1935 Constitution on constitutional amendment contemplates the automatic applicability of election laws to plebiscites on proposed constitutional amendments or revision. The very phraseology of the specific laws enacted by the National Assembly and later by Congress, indicates that there is need of a statute expressly authorizing the application of the election laws to plebiscites of this nature. Thus, Com. Act No. 34 on the woman’s suffrage amendment enacted on September 30, 1936, consists of 12 sections and, aside from providing that "there shall be held a plebiscite on Friday, April 30, 1937, on the question of woman’s

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suffrage . . . and that said amendment shall be published in the Official Gazette in English and Spanish for three consecutive issues at least fifteen (15) days prior to said election, . . . and shall be posted in a conspicuous place in its municipal and provincial office building and in its polling place not later than April 22, 1937" (Sec. 12, Com. Act No. 34), specifies that the provisions of the Election Law regarding the holding of a special election, insofar as said provisions are not in conflict with it, should apply to the said plebiscite (Sec. 3, Com. Act No. 34); and that the votes cast according to the returns of the board of inspectors shall be counted by the National Assembly (Sec. 10, Com. Act No. 34). The election laws then in force before 1938 were found in Sections 392-483 of the Revised Administrative Code. Sec. 1 of Com. Act No. 357, the previous Election Code enacted on August 22, 1938, makes it expressly applicable to plebiscites. Yet the subsequent laws, namely, Com. Act Nos. 492 and 517 and Rep. Act No.?3 calling for the plebiscite on the constitutional amendments in 1939, 1940 and 1946, including the amendment creating the Commission on Elections, specifically provided that the provisions of the existing election law shall apply to such plebiscites insofar as they are not inconsistent with the aforesaid Com. Act Nos. 492 and 517, as well as Rep. Act No. 73. Thus — Commonwealth Act No. 492, enacted on September 19, 1939, calling for a plebiscite on the proposed amendments to the Constitution adopted by the National Assembly on September 15, 1939, consists of 8 sections and provides that the proposed amendments to the Constitution adopted in Resolution No. 39 on September 15, 1939 "shall be submitted to the Filipino people for approval or disapproval at a general election to be held throughout the Philippines on Tuesday, October 24, 1939" ; that the amendments to said Constitution proposed in "Res. No. 38, adopted on the same date, shall be submitted at the following election of local officials," (Sec. 1, Com. Act No. 492); that the said amendments shall be published in English and Spanish in three consecutive issues of the Official Gazette at least ten (10) days prior to the election; that copies thereof shall be posted not later than October 20, 1939 (Sec. 2, Com. Act No. 492); that the election shall be conducted according to the provisions of the Election Code insofar as the same may be applicable; that within thirty (30) days after the election, the Speaker of the National Assembly shall request the President to call a special session of the Assembly for the purpose of canvassing the returns and certify the results thereof (Sec. 6, Com. Act No. 492). Commonwealth Act No. 617, consisting of 11 sections, was approved on April 25,1940 and provided, among others: that the plebiscite on the constitutional amendments providing for a bicameral Congress, re- election of the President and Vice-President, and the creation of a Commission on Elections shall be held at a general election on June 18, 1940 (Sec. 1); that said amendments shall be published in three consecutive issues of the Official Gazette in English and Spanish at least 20 days prior to the election and posted in every local government office building and polling place not later than May 18, 1940 (Sec. 2); that the election shall be conducted in conformity with the Election Code insofar as the same may be applicable (Sec. 3); that copies of the returns shall be forwarded to the Secretary of National Assembly and the Secretary of Interior (Sec. 7); and that the National Assembly shall canvass the returns and certify the results at a special session to be called by the President (Sec. 8). Republic Act No. 73 approved on October 21, 1946 calling for a plebiscite on the parity amendment consists of 8 sections and provides that the Amendment "shall be submitted to the people, for approval or disapproval, at a general election which shall be held on March 11, 1947,

in accordance with the provisions of this Act" (Sec. 1, R.A. No. 73); that the said amendment shall be published in English and Spanish in three consecutive issues of the Official Gazette at least 20 days prior to the election; that copies of the same shall be posted in a conspicuous place and in every polling place not later than February 11, 1947 (Section 2, R.A. No. 73); that the provisions of Com. Act No. 357 (Election Code) and Com. Act No. 657 creating the Commission on Elections, shall apply to the election insofar as they are not inconsistent with this Act (Sec. 3, R.A. No. 73); and that within 30 days after the election, the Senate and House of Representatives shall hold a joint session to canvass the returns and certify the results thereof (Section 6, R.A. No. 73). From the foregoing provisions, it is patent that Article XV of the 1935 Constitution does not contemplate nor envision the automatic application of the election law; and even at that, not all the provisions of the election law were made applicable because the various laws aforecited contain several provisions which are inconsistent with the provisions of the Revised Election Code (Com. Act No. 357). Moreover, it should be noted that the period for the publication of the copies of the proposed amendments was about 10 days, 15 days or 20 days, and for posting at least 4 days, & days or 30 days.

meeting except in matters involving public safety or security in which case notice within a reasonable time shall be sufficient. The barrio captain, or in his absence, the councilman acting as barrio captain, or any assembly member selected during the meeting, shall act as presiding officer at all meetings of the barrio assembly. The barrio secretary or in his absence, any member designated by the presiding officer to act as secretary shall discharge the duties of secretary of the barrio assembly. "For the purpose of conducting business and taking any official action in the barrio assembly, It is necessary that at least one-fifth of the members of the barrio assembly be present to constitute a quorum. All actions shall require a majority vote of these present at the meeting there being a quorum. "Sec. 5. Powers of the barrio assembly. — The powers of the barrio assembly shall be as follows:jgc:chanrobles.com.ph "a. To recommend to the barrio council the adoption of measures for the welfare of the barrio; "b. To decide on the holding of a plebiscite as provided for in Section 6 of this Act;

Republic Acts Nos. 180 and 6388 likewise expressly provide that the Election Code shall apply to plebiscites (Sec. 2, R.A. No. 180, as amended, and Section 2, Rep. Act No. 6388). If the Election Code ipso facto applies to plebiscites under Article XV of the 1935 Constitution, there would be no need for Congress to expressly provide therefor in the election laws enacted after the inauguration of the Commonwealth government under the 1935 Constitution. (5) Article XV of the 1935 Constitution does not specify who can vote and how they shall vote. Unlike the various State Constitutions of the American Union (with few exceptions), Article XV does not state that only qualified electors can vote in the plebiscite. As above-intimated, most of the Constitutions of the various states of the United States provide for very detailed amending process and specify that only qualified electors can vote at such plebiscite or election. Congress itself, in enacting Republic Act No. 3590, otherwise known as the Barrio Charter, which was approved on June 17, 1967 and superseded Republic Act No. 2370, expanded the membership of the barrio assembly to include citizens who are at least 18 years of age, whether literate or not, provided they are also residents of the barrio for at least 6 months (Sec. 4, R.A. No. 3590). "Sec. 4. The barrio assembly. — The barrio assembly shall consist of all persons who are residents of the barrio for at least six months, eighteen years of age or over, citizens of the Republic of the Philippines and who are duly registered in the list of barrio assembly members kept by the Barrio Secretary. "The barrio assembly shall meet at least once a year to hear the annual report of the barrio counsel concerning the activities and finances of the barrio. "It shall meet also at the case of the barrio council or upon written petition of at least OneTenth of the members of the barrio assembly. "No meeting of the barrio assembly shall take place unless notice is given one week prior to the

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"c. To act on budgetary and supplemental appropriations and special tax ordinances submitted for its approval by the barrio council; and "d. To bear the annual report council concerning the activities and finances of the assembly. "Sec. 6. Plebiscite. — A plebiscite may be held in the barrio when authorized by a majority vote of the members present in the barrio assembly, there being a quorum, or when called by at least four members of the barrio council; Provided, however, That no plebiscite shall be held until after thirty days from its approval by either body, and such plebiscite has been given the widest publicity in the barrio, stating the date, time, and place thereof, the questions or issues to be decided, action to be taken by the voters, and such other information relevant to the holding of the plebiscite. "All duly registered barrio assembly members qualified to vote may vote in the plebiscite. Voting procedures may be made either in writing as in regular election, and/or declaration by the voters to the board of election tellers. The board of election tellers shall be the same board envisioned by section 8, paragraph 2 of this Act, in case of vacancies in this body, the barrio council may fill the same. "A plebiscite may be called to decide on the recall of any member of the barrio council. A plebiscite shall be called to approve any budgetary, supplemental appropriations or special tax ordinances. "For taking action on any of the above enumerated measures, majority vote of all the barrio assembly members registered in the list of barrio secretary is necessary. x

x

x

"Sec. 10. Qualifications of voters and candidates. — Every citizen of the Philippines, twentyone years of age or over, able to read and write, who has been a resident of the barrio during the six months immediately preceding the election, duly registered in the list of voters kept by

the barrio secretary, who is not otherwise disqualified, may vote or be a candidate in the barrio elections. "The following persons shall not be qualified to vote:jgc:chanrobles.com.ph "a. Any person who has been sentenced by final judgment to suffer one year or more of imprisonment, within two years after service of his sentence; "b. Any person who has violated his allegiance to the Republic of the Philippines; and "c. Insane or feeble-minded persons."cralaw virtua1aw library All these barrio assembly members, who are at least 18 years of age, although illiterate, may vote at the plebiscite on the recall of any member of the barrio council or on any budgetary, supplemental appropriation, or special tax ordinances, a valid action on which requires "a majority vote of all of the barrio assembly members registered in the list of the barrio secretary" (par. 5, Sec. 6, R.A. No. 3590). Such plebiscite may be authorized by a majority vote of the members present in the barrio assembly, there being a quorum (par. 1, Sec. 6). However, in the case of election of barrio officials, only Filipino citizens, who are at least 21 years of age, able to read and write, residents of the barrio during the 6 months immediately preceding the election and duly registered in the list of voters kept by the barrio secretary, not otherwise disqualified, may vote (Sec. 10, R.A. No. 3590). Paragraph 2 of Section 6 likewise authorizes open voting as it provides that "voting procedures may be made xxx either in writing as in regular elections, and/or declaration by the voters to the board of election tellers."cralaw virtua1aw library That said paragraph 2 of Section 6 provides that "all duly registered barrio assembly members qualified to vote may vote in the plebiscite," cannot sustain the position of petitioners in G.R. No. L- 36165 that only those who are 21 years of age or above and who possess all other qualifications of a voter under Section 10 of R.A. No. 3590, can vote on the plebiscites referred to in Section 6; because paragraph 3 of Section 6 does not expressly limit the voting to those with the qualifications under Section 10 as said Section 6 does not distinguish between those who are 21 or above on the one hand and those 18 or above but below 21 on the other, and whether literate or not, to constitute a quorum of the barrio assembly. Consequently, on questions submitted for plebiscite, all the registered members of the barrio assembly can vote as long as they are 18 years of age or above; and that only those who are 21 years of age or over and can read and write, can vote in the elections of barrio officials. Otherwise there was no sense in extending membership in the barrio assembly to those who are at least 18 years of age, whether literate or not Republic Act No. 3590 could simply have restated Section 4 of Republic Act No. 2370, the old Barrio Charter, which provided that only those who are 21 and above can be members of the barrio assembly. Counsels Salonga and Tañada as well as all the petitioners in L- 36165 and two of the petitioners in L-36164 participated in the enactment of Republic Act No. 3590 and should have known the intendment of Congress in expanding the membership of the barrio assembly to include all those 18 years of age and above, whether literate or not.

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If Congress in the exercise of its ordinary legislative power, not as a constituent assembly, can include 18-years old as qualified electors for barrio plebiscites, this prerogative can also be exercised by the Chief Executive as delegate of the Constitutional Convention in regard to the plebiscite on the 1973 Constitution. As heretofore stated, the statement by the President in Presidential Proclamation No. 1102 that the 1973 Constitution was overwhelmingly ratified by the people through the Citizens’ Assemblies in a referendum conducted from January 10 to 15, 1973, should be accorded the presumption of correctness; because the same was based on the certification by the Secretary of the Department of Local Government and Community Development who tabulated the results of the referendum all over the country. The accuracy of such tabulation and certification by the said Department Secretary should likewise be presumed; because it was done in the regular performance of his official functions aside from the fact that the act of the Department Secretary, as an alter ego of the President, is presumptively the act of the President himself unless the latter disapproves or reprobates the same (Villena v. Secretary of Interior, 67 Phil. 451). The truth of the certification by the Department Secretary and the Chief Executive on the results of the referendum, is further strengthened by the affidavits and certifications of Governor Isidro Rodriguez of Rizal, Mayor Norberto S. Amoranto of Quezon City and Councilor Eduardo T. Paredes of Quezon City. The procedure for the ratification of the 1937 amendment on woman suffrage, the 1939 amendment to the ordinance appended to the 1935 Constitution, the 1940 amendments establishing the bicameral confess, creating the Commission on Elections and providing for two consecutive terms for the President, and the 1947 parity amendment, cannot be invoked; because those amendments were proposed by the National Assembly as expressly authorized by Article V of the 1935 Constitution respecting woman suffrage and as a constituent assembly in all the other amendments aforementioned and therefore as such, confess had also the authority to prescribe the procedure for the submission of the proposed amendments to the 1935 Constitution. In the cases at bar, the 1973 Constitution was proposed by an independent Constitutional Convention, which as heretofore discussed, has the equal power to prescribe the modality for the submission of the 1973 Constitution to the people for ratification or delegate the same to the President of the Republic. The certification of Governor Isidro Rodriguez of Rizal and Mayor Norberto Amoranto could be utilized as the basis for the extrapolation of the Citizens’ Assemblies in all the other provinces, cities and municipalities in all the other provinces, cities and municipalities, and the affirmative votes in the Citizens’ Assemblies resulting from such extrapolation would still constitute a majority of the total votes cast in favor of the 1973 Constitution. As claimed by petitioners in L-36165, against the certification of the Department of Local Government and Community Development that in Rizal there were 1,126,000 Yes votes and 100,310 No votes, the certification of Governor Isidro Rodriguez of Rizal, shows only 614,157 Yes votes as against 292,530 No votes. In Cavite province, there were 249,882 Yes votes against 12,269 No votes as disclosed in Annex 1-A of respondents’ Compliance (the certification by the Department of Local Government and Community Development), while the alleged certification of Governor Lino Bocalan of Cavite shows only 126,163 Yes votes and 5,577 No votes. If such a ratio is extended by way of extrapolation to the other provinces, cities and towns of the country, the result would still be an overwhelming vote in favor of the 1973 Constitution.

The alleged certification by Governor Lino Bocalan of Cavite, is not true; because in his duly acknowledged certification dated March 16, 1973, he states that since the declaration of martial law and up to the present time, he has been under house arrest in his residence in Urdaneta Village, Makati, Rizal; that he never participated in the conduct of the Citizens’ Assemblies on January 10 to 15, 1973 in the province of Cavite; that the acting chairman and coordinator of the Citizens’ Assemblies at that time was Vice-Governor Dominador Camerino; and that he was shown a letter for his signature during the conduct of the Citizens’ Assemblies, which he did not sign but which he referred to Vice-Governor Camerino (Annex 1Rejoinder of the Sol. Gen. dated March 20, 1973). Mayor Pablo Cuneta likewise executed an affidavit dated March 16, 1973 stating that on January 15, 1973, he caused the preparation of a letter addressed to Secretary Jose Roño of the Department of Local Government and Community Development showing the results of the referendum in Pasay City; that on the same day, there were still many Citizens’ Assemblies holding referendum in Pasay City, for which reason he did not send the aforesaid letter pending submittal of the other results from the said Citizens’ Assemblies; and that in the afternoon of January 15, 1973, he indorsed the complete certificate of results on the referendum in Pasay City to the Office of the President (Annex 5-Rejoinder of Sol. Gen. dated March 20, 1973). Pablo F. Samonte, Assistant City Treasurer and Officer in Charge of Pasay City also issued an affidavit dated March 15, 1973 stating that a certain Atty. Delia Sutton of the Salonga Law Office asked him for the results of the referendum; that he informed her that he had in his possession unsigned copies of such results which may not be considered official as they had then no knowledge whether the original thereof had been signed by the mayor; and that in spite of his advice that said unsigned copies were not official, she requested him if she could give her the unofficial copies thereof, which he gave in good faith (Annex C-Rejoinder to the Sol. Gen.). There were 118,010 Yes votes as against 5,588 No votes in the Citizens’ Assemblies of Quezon city (Annex V to Petitioners’ Notes in L-36165). The fact that a certain Mrs. Remedio Gutierrez, wife of alleged barrio treasurer Faustino Gutierrez, of barrio South Triangle, Quezon City, states that "as far as we know, there has been no Citizens’ Assembly meeting in our Area, particularly in January of this year," does not necessarily mean that there was no such meeting in said barrio; for she may not have been notified thereof and as a result she was not able to attend said meeting. Much less can it be a basis for the claim that there was no meeting at all in the other barrios of Quezon City. The barrio captain or the secretary of the barrio assembly could have been a credible witness. Councilor Eduardo T. Paredes, chairman of the Secretariat of Quezon City Ratification and Coordinating Council, certified on March 12, 1973 that as such chairman he was in charge of the compilation and tabulation of the results of the referendum among the Citizens’ Assemblies in Quezon City based on the results submitted to the Secretariat by the different Citizens’ Assemblies; but many results of the referendum were submitted direct to the national agencies having to do with such activity and all of which he has no knowledge, participation and control (Annex 4 Rejoinder of the Sol. Gen.). Governor Isidro Rodriguez of Rizal issued a certification dated March 16, 1973 that he prepared a letter to the President dated January 15, 1973 informing him of the results of the referendum in Rizal, in compliance with the instruction of the National Secretariat to submit such letter 2 or 3 days from January 10 to show the trend of voting in the Citizens’

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Assemblies; that the figures 614,157 and 292,530 mentioned in said letter were based on the certificates of results in his possession as of January 14, 1973, which results were made the basis of the computation of the percentage of voting trend in the province; that his letter was never intended to show the final or complete result in the referendum in the province as said referendum was then still going on from January 14-17, 1973, for which reason the said letter merely stated that it was only a "summary result; and that after January 15, 1973, he sent to the National Secretariat all the certificates of results in 26 municipalities of Rizal for final tabulation (Annex 3-Rejoinder of the Sol. Gen.; Italics supplied). Lydia M. Encarnacion, acting chief of the Records Section, Department of Local Government and Community Development, issued a certificate dated March 16, 1973 that she was shown xerox copies of unsigned letters allegedly coming from Governor Lino Bocalan dated January 15, 1973 and marked "Rejoinder Annex Cavite" addressed to the President of the Philippines through the Secretary of the Department of Local Government and Community Development and another unsigned letter reportedly from Mayor Pablo Cuneta dated January 15, 1973 and marked "Rejoinder Annex Pasay City" addressed to the Secretary of the Department of Local Government and Community Development; that both xerox copies of the unsigned letters contain figures showing the results of the referendum of the Citizens’ Assemblies in those areas; and that the said letters were not received by her office and that her records do not show any such documents received by her office (Annex 2-Rejoinder of the Sol. Gen.). Thus it would seem that petitioners in L-36165 have attempted to deceive this Court by representing said unsigned letters and/or certificates as duly signed and/or containing the complete returns of the voting in the Citizens’ Assemblies. The observation We made with respect to the discrepancy between the number of Yes votes and No votes contained in the summary report of Governor Rodriguez of Rizal as well as those contained in the alleged report of Governor Lino Bocalan of Cavite who repudiated the same as not having been signed by him for he was then under house arrest, on the one hand, and the number of votes certified by the Department of Local Government and Community Development, on the other, to the effect that even assuming the correctness of the figures insisted on by counsel for petitioners in L-36165, if the same were extrapolated and applied to the other provinces and cities of the country, the Yes votes would still be overwhelmingly greater than the No votes, applies equally to the alleged discrepancy between the figures contained in the certification of the Secretary of the Department of Local Government and Community Development and the figures furnished to counsel for petitioners in L-36165 concerning the referendum in Camarines Sur, Bataan and Negros Occidental. The fact that the referendum in the municipality of Pasacao, Camarines Sur, shows that there were more votes in favor of a plebiscite to be held later than those against, only serves to emphasize that there was freedom of voting among the members of the Citizens’ Assemblies all over the country during the referendum from January 10 to 15, 1973 (Annex-6 Cam. Sur to Rejoinder of Petitioners in L-36165). If there was no such freedom of choice, those who wanted a plebiscite later would not outnumber those against holding such plebiscite. The letter of Governor Felix O. Alfelor, Sr. dated January 14, 1973 confirms the "strong manifestation of approval of the new Constitution by almost 97% by the members of the Citizens’ Assemblies in Camarines Sur" (Annex-Camarines Sur to Rejoinder of Petitioners in L36165). The report of Governor Efren B. Pascual of Bataan shows that the members of the Citizens’

Assemblies voted overwhelmingly in favor of the new Constitution despite the fact that the second set of questions including the question "Do you approve of the new Constitution?" was received only on January 10. Provincial Governor Pascual stated that the "orderly conduct and favorable results of the referendum" were due not only to the coordinated efforts and cooperation of all teachers and government employees in the area but also to the enthusiastic participation by the people, showing "their preference and readiness to accept this new method of government to people consultation in shaping up government policies." (Annex-Bataan to Rejoinder of Petitioners in L-36165). As heretofore stated, it is not necessary that voters ratifying the new Constitution are registered in the book of voters; it is enough that they are electors voting on the new Constitution (Bott v. Wurts, 40 A 740 [1898]; 43 A 744, 881 [1899]; 45 LRA 251). The fact that the number of actual voters in the referendum in certain localities may exceed the number of voters actually registered for the 1971 elections, can only mean that the excess represents the qualified voters who are not yet registered including those who are at least 15 years of age and the illiterates. Although ex-convicts may have voted also in the referendum, some of them might have been granted absolute pardon or were sentenced to less than one year imprisonment to qualify them to vote (Sec. 201, 1971 Rev. Election Code). At any rate, the ex-convicts constitute a negligible number, discounting which would not tilt the scale in favor of the negative votes. Similarly, the fact that Mayor Marcial F. Samson of Caloocan City, who belongs to the Liberal Party, stated in his letter dated March 13, 1973 that he does not "feel authorized by the proper authorities to confirm or deny the data" concerning the number of participants, the Yes votes and No votes in the referendum on the new Constitution among the members of the Citizens’ Assemblies in Caloocan City, does not necessarily give rise to the inference that Mayor Samson of Caloocan City is being intimidated, having been recently released from detention; because in the same letter of Mayor Samson, he suggested to counsel for petitioners in L-36165 that he can secure "the true and legitimate results of the referendum" from the Office of the President (Annex Caloocan-B to Rejoinder of Petitioners in L-36165). Why did not learned and eminent counsel heed such suggestion? Counsel for petitioners in L-36165, to sustain their position, relies heavily on the computation of the estimated turnover in the Citizens’ Assemblies referendum on January 10 to 15, 1973 by a certain Professor Benjamin R. Salonga, of the Mapua Institute of Technology, ostensibly a close relative of former Senator Jovito R. Salonga, eminent counsel for petitioners in L-36165 (Annex M-as amended, to Consolidated Rejoinder of petitioners in L-36165 to the Notes of Arguments and Memorandum of respondents). Professor Salonga is not a qualified statistician, which all the more impairs his credibility. Director Tito A. Mijares of the Bureau of Census and Statistics, in his letter dated March 16, 1973 addressed to the Secretary of the Department of Local Government and Community Development, refutes the said computation of Professor Benjamin R. Salonga, thus:jgc:chanrobles.com.ph "1) I do not quite understand why (Problem I) all qualified registered voters and the 15-20year-old youths (1972) will have to be estimated in order to give a 101.9% estimate of the percentage participation of the ‘15-20 year old plus total number of qualified voters’ which does not deem to answer the problem. This computation apparently fails to account for some 5.6 million persons ‘21 years old and over’ who were not registered voters (COMELEC), but who might be qualified to participate at the Citizen’s Assembly. "2) The official population projection of this office (medium assumption) for ‘15 year olds and

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over’ as of January 1, 1973 is 22.506 million. If total number of participants at the Citizens’ Assembly Referendum held on January 10-15, 1973 was 16.702 million, participation rate will therefore be the ratio of the latter figure to the former which gives 74.2%. "3) I cannot also understand c-2 ‘Solution to Problem 11.’ The ‘difference or implied number of 15-20 year olds’ of 5,039,906 would represent really not only all 15 year olds and over who participated at the Citizens’ Assembly but might not have been registered voters at the time, assuming that all the 11,661,909 registered voted at the Citizens’ Assembly. Hence, the ‘estimate percentage participation of 15-20 years olds’ of 105.6% does not seem to provide any meaningful information. "To obtain the participation rate of ‘15-20 years old’ one must divide the number in this age group, which was estimated to be 4.721 million as of January 1, 1973 by the population of ‘15 years old and over’ for the same period which was estimated to be 22.506 million, giving 21.0%. "In Problem III, it should be observed that registered voters also include names of voters who are already dead. It cannot therefore be assumed that all of them participated at the Citizens’ Assembly. It can therefore be inferred that ‘a total number of persons 15 and over unqualified/disqualified to vote’ will be more than 10,548,197 and hence the ‘difference or implied number of registered voters that participated’ will be less than 6,153,618. "I have reservations on whether an ‘appropriate number of qualified voters that supposedly voted’ could be meaningfully estimated. "5) The last remark will therefore make the ratio: (a) [Solution to Problem] more than 1.71 and that for (b), accordingly, will also be less than 36.8%." (Annex F Rejoinder). From the foregoing analysis of the Director of Census and Statistics as of January 21, 1973, the official population projection for 15-year olds and over is 22,506,000. If 16,702,000 voted in the referendum, the participation ratio would be 74.2% of 22,506,000. If the registered electors as of the election of November 8, 1971 numbered 11,661,909, the difference between 16,702,000 who participated in the referendum and the registered electors of 11,661,909 for the November 8, 1971 elections, is 5,040,091, which may include not only the 15-year olds and above but below 21 but also the qualified electors who were not registered before the November 8, 1971 elections as well as illiterates who are 15 years old and above but below 21. Moreover, in the last Presidential election in November, 1969, We found that the incumbent President obtained over 5,000,000 votes as against about 3,000,000 votes for his rival LP Senator Sergio Osmeña, Jr., garnering a majority of from about 896,498 to 1,436,118 (Osmeña, Jr. v. Marcos, Presidential Election Contest No. 3, Jan. 8, 1973). The petitioners in all the cases at bar cannot state with justification that those who voted for the incumbent President in 1969 did not vote in favor of the 1973 Constitution during the referendum from January 10 to 15, 1973. It should also be stressed that many of the partisans of the President in the 1969 Presidential elections, have several members in their families and relatives who are qualified to participate in the referendum because they are 15 years or above including illiterates, which fact should necessarily augment the number of votes who voted for the 1973 Constitution.

(6) It is also urged that martial law being the rule of force, is necessarily inconsistent with freedom of choice, because the people fear to disagree with the President as Commander-inChief of the Armed Forces of the Philippines and therefore cannot voice views opposite to or critical of the position of the President on the 1973 Constitution and on the mode of its ratification. It is also claimed or urged that there can be no free choice during martial law which inevitably generates fear in the individual. Even without martial law, the penal, civil or administrative sanction provided for the violation of the law ordinarily engenders fear in the individual which fear persuades the individual to comply with or obey the law. But before martial law was proclaimed, many individuals did not fear such sanctions of the law because of lack of effective or equal enforcement or implementation thereof — in brief, compartmentalized justice and extraneous pressures and influences frustrated the firm and just enforcement of the laws. The fear that is generated by martial law is merely the fear of immediate execution and swift enforcement of the law and therefore immediate infliction of the punishment or sanction prescribed by the law whenever it is transgressed during the period of martial law. This is not the fear that affects the voters’ freedom of choice or freedom to vote for or against the 1973 Constitution. Those who cringe in fear are the criminals or the law violators. Surely, petitioners do not come under such category. (7) Petitioners likewise claim that open voting by viva voce or raising of hands violates the secrecy of the ballot as secured by the election laws. But the 1935 Constitution does not require secret voting. We search in vain for such guarantee or prescription in said organic law. The Commission on Elections under the 1940 Amendment, embodied as Article X is merely mandated to insure "free, orderly and honest election." Congress, under its plenary law-making authority, could have validly prescribed in the election law open voting in the election of public officers, without trenching upon the Constitution. Any objection to such a statute concerns its wisdom or propriety, not its legality or constitutionality. Secret balloting was demanded by partisan strife in elections for elective officials. Partisanship based on party or personal loyalties does not generally obtain in a plebiscite on proposed constitutional amendments or on a new Constitution. We have seen even before and during martial law that voting in meetings of government agencies or private organizations is usually done openly. This is specially true in sessions of Congress, provincial boards, city councils, municipal boards and barrio councils when voting on national or local issues, not on personalities. Then again, open voting was not a universal phenomenon in the Citizens’ Assemblies. It might have been true in certain areas, but that does not necessarily mean that it was done throughout the country. The recent example of an open voting is the last election on March 3, 1973 of the National Press Club officers who were elected by acclamation presided over by its former president, petitioner Eduardo Monteclaro in L-36236 (see Bulletin Today, p. 8, March 3, 1973 issue). There can be no more hardboiled group of persons than newspapermen, who cannot say that voting among them by acclamation was characterized by fear among the members of the National Press Club. Moreover, petitioners would not be willing to affirm that all the members of the citizenry of this country are against the new Constitution. They will not deny that there are those who favor the same, even among the 400,000 teachers among whom officers of the Department of Education campaigned for the ratification of the new Constitution.

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Not one of the petitioners can say that the common man — farmer, laborer, fisherman, lowly employee, jeepney driver, taxi driver, bus driver, pedestrian, salesman, or salesgirl — does not want the new Constitution, or the reforms provided for therein. (8) Petitioners likewise claim that there was no sufficient publicity given to the new Constitution. This is quite inaccurate; because even before the election in November, 1970 of delegates to the Constitutional Convention, the proposed reforms were already discussed in various forums and through the press as well as other media of information. Then after the Constitutional Convention convened in June, 1971, specific reforms advanced by the delegates were discussed both in committee hearings as well as in the tri-media — the press, radio and television. Printed materials on the proposed reforms were circulated by their proponents. From June, 1971 to November 29, 1972, reforms were openly discussed and debated except for a few days after the proclamation of martial law on September 21, 1972. From the time the Constitutional Convention reconvened in October, 1972 until January 7, 1973, the provisions of the new Constitution were debated and discussed in forums sponsored by private organizations and universities and debated over the radio and on television. The Philippines is a literate country, second only to Japan in the Far East, and more literate perhaps than many of the midwestern and southern states of the American Union and Spain. Many residents in about 1,500 towns and 33,000 barrios of the country have radios. Even the illiterates listened to the radio broadcasts on and discussed the provisions of the 1973 Constitution. As reported by the eminent and widely read columnist Teodoro Valencia in his column in Bulletin Today, March 4, 1973 issue, "Otto Lang, Hollywood producer director (Tora, Tora, Tora) went around the country doing a 30-minute documentary on the Philippines for American television and stated that what impressed him most in his travel throughout the country was the general acceptance of the New Society by the people which he saw in his 6-week travel from Aparri to Jolo."cralaw virtua1aw library The report of Frank Valeo (Bulletin Today, March 3 and 4, 1973 and Daily Express, March 3, and Sunday Express, March 4), Secretary of the United States Senate, who conducted a personal survey of the country as delegate of Senator Mike Mansfield, Chairman, Committee on US-Philippine relations, states:jgc:chanrobles.com.ph "Martial law has paved the way for a re-ordering of the basic social structure of the Philippines. President Marcos has been prompt and sure-footed in using the power of presidential decree under martial law for this Purpose. He has zeroed in on areas which have been widely recognized as prime sources of the nation’s difficulties — land tenure, official corruption, tax evasion and abuse of oligarchic economic power. Clearly, he knows the targets. What is not yet certain is how accurate have been his shots. Nevertheless, there is marked public support for his leadership and tangible alternatives have not been forthcoming. That would suggest that he may not be striking too far from the mark. "The United States business community in Manila seems to have been reassured by recent developments . . . (Italics supplied.) Petitioners cannot safely assume that all the peaceful citizens of the country, who constitute the majority of the population, do not like the reforms stipulated in the new Constitution, as well as the decrees, orders and circulars issued to implement the same. It should be recalled, as herein before stated, that all these reforms were the subject of discussion both in the committee hearings and on the floor of the Constitutional Convention, as well as in public forums sponsored by concerned citizens or civic organizations at which Con-Con delegates as

well as other knowledgeable personages expounded their views thereon and in all the media of information before the proclamation of martial law on September 21, 1972. This is the reason why the Constitutional Convention, after spending close to P30 million during the period from June 1, 1971 to November 29, 1972, found it expedient to accelerate their proceedings in November, 1972 because all views that could possibly be said on the proposed provisions of the 1973 Constitution were already expressed and circulated. The 1973 Constitution may contain some unwise provisions. But this objection to such unwise or vague provisions, as heretofore stated, refers to the wisdom of the aforesaid provisions, which issue is not for this Court to decide; otherwise We will be substituting Our judgment for the judgment of the Constitutional Convention and in effect acting as a constituent assembly.

government to preserve order and insure the public safety in times of emergency, when other branches of the government are unable to function, or their functioning would itself threaten the public safety." (Italics supplied). There is an implied recognition in the aforesaid definition of martial law that even in places where the courts can function, such operation of the courts may be affected by martial law should their "functioning . . . threaten the public safety." It is possible that the courts, in asserting their authority to pass upon questions which may adversely affect the conduct of the punitive campaign against rebels, secessionists, dissidents as well as subversives, martial law may restrict such judicial function until the danger to the security of the state and of the people shall have been decimated. The foregoing view appears to be shared by Rossiter when he stated:jgc:chanrobles.com.ph

VI

PRESIDENT AS COMMANDER IN CHIEF EXERCISES LEGISLATIVE POWERS DURING MARTIAL LAW. The position of the respondent public officers that under martial law, the President as Commander-in-Chief is vested with legislative powers, is sustained by the ruling in the 1949 case of Kuroda v. Jalandoni, Et. Al. (83 Phil. 171, 177-178), which reiterates the 1945 case of Yamashita v. Styer (75 Phil. 563, 571-72). The trial of General Kuroda was after the surrender of Japan on October 2, 1945 (23 Encyc. Brit. 1969 ed., p. 799) and hence no more martial law in the Philippines. ". . . Consequently, in the promulgation and enforcement of Executive Order No. 68, the President of the Philippines has acted in conformity with the generally accepted principles and policies of international law which are part of our Constitution. "The promulgation of said executive order is an exercise by the President of his powers as Commander in Chief of all our armed forces, as upheld by this Court in the case of Yamashita v. Styer (L-129, 42 Off. Gaz., 664) when we said — "‘War is not ended simply because hostilities have ceased. After cessation of armed hostilities, incidents of war may remain pending which should be disposed of as in time of war.’An important incident to a conduct of war is the adoption of measures by the military command not only to repel and defeat the enemies but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war.’ (Ex parte Quirin, 317 U.S., 1; 63 Sup. Ct., 2.) Indeed, the power to create a military commission for the trial and punishment of war criminals is an aspect of waging war. And, in the language of a writer, a military commission ‘has jurisdiction so long as a technical state of war continues. This includes the period of an armistice, or military occupation, up to the effective date of a treaty of peace, and may extend beyond, by treaty agreement.’ (Cowles, Trial of War Criminals by Military Tribunals, American Bar Association Journal, June, 1944).’ ‘’Consequently, the President as Commander in Chief is fully empowered to consummate this unfinished aspect of war, namely, the trial and punishment of war criminals, through the issuance and enforcement of Executive Order No. 68." (83 Phil. 177-178; Italics supplied). Chief Justice Stone of the United States Supreme Court likewise appears to subscribe to this view, when, in his concurring opinion in Duncan v. Kahanamoku (327 U.S. 304 [1946]), he defined martial law as "the exercise of the power which resides in the executive branch of the

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

registered approval of the legislature. Permanent laws, whether adopted in regular or irregular times, are for parliaments to enact. By this same token, the decisions and sentences of extraordinary courts should be reviewed by the regular courts after the termination of the crisis. "But what if a radical act of permanent character, one working lasting changes in the political and social fabric, is indispensable to the successful prosecution of the particular constitutional dictatorship? The only answer can be: it must be resolutely taken and openly acknowledged. President Lincoln found it necessary to proceed to the revolutionary step of emancipation in aid of his conservative purpose of preserving the Union; as a constitutional dictator he had a moral right to take this radical action. Nevertheless, it is imperative that any action with such last effects should eventually receive the positive approval of the people or of their representatives in the legislature." (P. 303, Italics supplied). From the foregoing citations, under martial law occasioned by severe crisis generated by revolution, insurrection or subversion or even by just severe economic depression or dislocation, the government exercises more powers and respects fewer rights in order "to end the crisis and restore normal times." The government can assume additional powers indispensable to the attainment of that end — the complete restoration of peace. In our particular case, eradication of the causes that incited rebellion and subversion as well as secession, is the sine qua non to the complete restoration of normalcy. Exercise of legislative power by the President as Commander in Chief, upon his proclamation of martial law, is justified because, as he professes, it is directed towards the institution of radical reforms essential to the elimination of the causes of rebellious, insurgent or subversive conspiracies and the consequent dismantling of the rebellious, insurgent or subversive apparatus. Hence, the issuance of Presidential Decree Nos. 86 and 86-A as well as Proclamation No. 1102 is indispensable to the effectuation of the reforms within the shortest possible time to hasten the restoration of normalcy. "Must the government be too strong for the liberties of the people; or must it be too weak to maintain its existence?" That was the dilemma that vexed President Lincoln during the American Civil War, when without express authority in the Constitution and the laws of the United States, he suspended one basic human freedom — the privilege of the writ of habeas corpus — in order to preserve with permanence the American Union, the Federal Constitution of the United States and all the civil liberties of the American people. This is the same dilemma that presently confronts the Chief Executive of the Republic of the Philippines, who, more than the Courts and Congress, must, by express constitutional mandate, secure the safety of our Republic and the rights as well as lives of the against open rebellion, insidious subversion and succession. The Chief Executive announced repeatedly that in choosing to proclaim martial law, the power expressly vested in him by the 1935 Constitution (Sec. 10[2], Art. VII, 1935 Constitution) to insure our national and individual survival in peace and freedom, he is in effect waging a peaceful, democratic revolution from the center against the violent revolution and subversion being mounted by the economic oligarchs of the extreme right, who resist reforms to maintain their economic hegemony, and the communist rebels and Moist oriented secessionists of the extreme left who demand swift institution of reforms. In the exercise of his constitutional and statutory powers, to save the state and to protect the citizenry against actual and threatened assaults from insurgents, secessionists and subversives, doctrinaire concepts and principles, no matter how revered they may be by jurisprudence and time, should not be regarded as peremptory commands; otherwise the dead hand of the past will regulate and control the security and happiness of the living present. A

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contrary view would be to deny the self-evident proposition that constitution and laws are mere instruments for the well-being, peace, security and prosperity of the country and its citizenry. The law as a means of social control is not static, but dynamic. Paraphrasing Mr. Justice Frankfurter, the Constitution is neither a printed finality nor the imprisonment of the past, but the unfolding of the future. In the vein of Mr. Justice Holmes, the meaning of the words of the Constitution is not to be determined by merely opening a dictionary. Its terms must be construed in the context of the realities in the life of a nation it is intended to serve. Because experience may teach one generation to doubt the validity and efficacy of the concepts embodied in the existing Constitution and persuade another generation to abandon them entirely, heed should be paid to the wise counsel of some learned jurists that in the resolution of constitutional questions — like those posed before Us — the blending of idealism and practical wisdom or progressive legal realism should be applied (see Alexander M. Bickel, the Supreme Court and the Idea of Progress, 1970 ed., pp. 19-21). To Justice Frankfurter, law is "a vital agency for human betterment" and constitutional law "is applied politics, using the word in its noble sense." (Frankfurter, Law and Politics, 1939 ed., pp. 3 & 6; Italics supplied). Justice Brandeis gave utterance to the truth that "Our Constitution is not a straight jacket. It is a living organism. As such, it is capable of growth — or expansion and adaptation to new conditions. Growth implies changes, political, economic and social." (Brandeis Papers, Harvard Law School; Italics supplied). Harvard Professor Thomas Reed Powell emphasizes "practical wisdom," for "the logic of constitutional law is the common sense of the Supreme Court." (Powell, the Validity of State Legislation, under the Webb-Kenyon Law, 2 Southern Law Quarterly, pp. 112, 138-139, cited in Bickel’s Opus, supra; Italics supplied). The eternal paradox in this finite world of mortal and fallible men is that nothing is permanent except change. Living organisms as well as man-made institutions are not immutable. Civilized men organize themselves into a State only for the purpose of serving their supreme interest — their welfare. To achieve such end, they created an agency known as the government. From the savage era thru ancient times, the Middle Ages, the Dark Ages and the Renaissance to this era of sophisticated electronics and nuclear weaponry, states and governments have mutated in their search for the magic instrument for their well-being. It was trial and error then as it is still now. Political philosophies and constitutional concepts, forms and kinds of government, had been adopted, overturned, discarded, re-adopted or modified to built the needs of a given society at a particular given epoch. This is true of constitutions and laws because they are not "the infallible instruments of a manifest destiny." No matter how we want the law to be stable, it cannot stand still. As Mr. Justice Holmes aptly observed, every "constitution is an experiment as all life is an experiment," (Abrahms v. U.S., 250 US 616, 631) for ‘the life of the law is not logic, but experience." In the pontifical tones of Mr. Justice Benjamin Nathan Cardozo, "so long as society is inconstant, there can be no constancy in law," and "there will be change whether we will it or not." As Justice Jose P. Laurel was wont to say, "We cannot, Canute-like, command the waves of progress to halt."cralaw virtua1aw library Thus, political scientists and jurists no longer exalt with vehemence a "government that governs least." Adherents there are to the poetic dictum of Alexander Pope: "For forms of government let fools contest; whatever is best administered is best." (Poems of Pope, 1931 Cambridge ed., p. 750). In between, the shades vary from direct democracy, representative democracy, welfare states, socialist democracy, mitigated socialism, to outright communism which degenerated in some countries into totalitarianism or authoritarianism. Hence, even the scholar, who advances academic opinions unrelated to factual situations in the seclusion of his ivory tower, must perforce submit to the inexorable law of change in his views, concepts, methods and techniques when brought into the actual arena of conflict as a public

functionary — face to face with the practical problems of state, government and public administration. And so it is that some learned jurists, in the resolution of constitutional issues that immediately affect the lives, liberties and fortunes of the citizens and the nation, recommend the blending of idealism with practical wisdom, which legal thinkers prefer to identify as progressive legal realism. The national leader, who wields the powers of government, must and has to innovate if he must govern effectively to serve the supreme interests of the people. This is especially true in times of great crises where the need for a leader with vision, imagination, capacity for decision and courageous action is greater, to preserve the unity of the people, to promote their well-being, and to insure the safety and stability of the Republic. When the methods of rebellion and subversion have become covert, subtle and insidious, there should be a recognition of the corresponding authority on the part of the Commander-in-Chief of the Armed Forces to utilize all the available techniques to suppress the peril to the security of the government and the State. Over a century and a half ago, Thomas Jefferson, one of the founding fathers of the American Constitution and former President of the United States, who personifies the progressive liberal, spoke the truth when he said that some men "ascribe to men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment . . . But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed and manners and opinions change, with the change of circumstances, institutions must also advance, and keep pace with the times." (Vol. 12, Encyclopedia Britannica, 1969 ed., p. 989). The wisdom of the decision of the Chief Executive can only be judged in the perspective of history. It cannot be adequately and fairly appraised within the present ambiance, charged as it is with so much tension and emotion, if not partisan passion. The analytical, objective historians will write the final verdict in the same way that they pronounced judgment on President Abraham Lincoln who suspended the privilege of the writ of habeas corpus without any constitutional or statutory authority therefor and of President Franklin Delano Roosevelt who approved the proclamation of martial law in 1941 by the governor of Hawaii throughout the Hawaiian territory. President Lincoln not only emancipated the Negro slaves in America, but also saved the Federal Republic of the United States from disintegration by his suspension of the privilege of the writ of habeas corpus, which power the American Constitution and Congress did not then expressly vest in him. No one can deny that the successful defense and preservation of the territorial integrity of the United States was due in part, if not to a great extent, to the proclamation of martial law over the territory of Hawaii — main bastion of the outer periphery or the outpost of the American defense perimeter in the Pacific — which protected the United States mainland not only from actual invasion but also from aerial or naval bombardment by the enemy. Parenthetically, the impartial observer cannot accurately conclude that the American Supreme Court acted with courage in its decision in the cases of Ex parte Milligan and Duncan v. Kahanamoku (filed on May 10, 1865 argued on March 5 to 13, 1866, decided on April 3, 1866, and opinion delivered on December 17, 1866) after the lifting of the proclamation suspending the privilege of the writ of habeas corpus, long after the Civil War and the Second World ended respectively on April 9 or 26, 1865 (Vol. 1, Encyclopedia Britannica, 1969 ed., pp. 730, 742) and on September 2, 1945 (Vol. 23, Encyclopedia Britannica, 1969 ed., p. 799). Was the delay on the part of the American Supreme Court in deciding these cases against the position of the United States President — in suspending the privilege of the writ of habeas corpus in one case and approving the proclamation of martial law in the other — deliberate as an act of judicial statesmanship and recognition on their part that an adverse court ruling during the period of such a grave crisis might jeopardize the survival of the Federal Republic of the United States in its life-and-death struggle against an organized and

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well armed rebellion within its own borders and against a formidable enemy from without its territorial confines during the last global armageddon? VIII

DOCTRINE OF SEPARATION OF POWERS PRECLUDES MANDAMUS AGAINST SENATORS. In G.R. No. L-36165, mandamus will not lie to compel respondents Gil Puyat and Jose Roy to convene the Senate of the Philippines even on the assumption that the 1935 Constitution still subsists; because pursuant to the doctrine of separation of powers under the 1935 Constitution, the processes of this Court cannot legally reach a coordinate branch of the government or its head. This is a problem that is addressed to the Senate itself for resolution; for it is purely an internal problem of the Senate. If a majority of the senators can convene, they can elect a new Senate President and a new Senate President Pro Tempore. But if they have no quorum, those present can order the arrest of the absent members (Sec. 10[2], Art. VI, 1935 Constitution). If this falls, then there is no remedy except an appeal to the people. The dictum ubi jus, ubi remedium, is not absolute and certainly does not justify the invocation of the power of this Court to compel action on the part of a co-equal body or its leadership. This was emphasized with sufficient clarity by this Court in the 1949 case of Avelino v. Cuenco (83 Phil. 17, 22-24), with which the distinguished counsels for the petitioners in L-36164 and L36165 are familiar. WE stress that the doctrine of separation of powers and the political nature of the controversy such as this, preclude the interposition of the Judiciary to nullify an act of a coordinate body or to command performance by the head of such a co-ordinate body of his functions. Mystifying is the posture taken by counsels for petitioners in referring to the political question doctrine — almost in mockery — as a magic formula which should be disregarded by this Court, forgetting that this magic formula constitutes an essential skein in the constitutional fabric of our government, which, together with other basic constitutional precepts, conserves the unity of our people, strengthens the structure of the government and assures the continued stability of the country against the forces of division, if not of anarchy. Moreover, if they have a quorum, the senators can meet anywhere. Validity of the acts of the Senate does not depend on the place of session; for the Constitution does not designate the place of such a meeting. Section 9 of Article VI imposes upon Congress to convene in regular session every year on the 4th Monday of January, unless a different date is fixed by law, or on special session called by the President. As former Senator Arturo Tolentino, counsel for respondents Puyat and Roy in L-36165, stated, the duty to convene is addressed to all members of Congress, not merely to its presiding officers. The fact that the doors of Congress are padlocked, will not prevent the senators — especially the petitioners in L-36165 — if they are minded to do so, from meeting elsewhere — at the Sunken Gardens, at the Luneta Independence Grandstand, in any of the big hotels or theaters, in their own houses, or at the Araneta Coliseum, which is owned by the father-in-law of petitioner Gerardo Roxas in L-36165. However, a session by the Senate alone would be purely an exercise in futility, for it cannot validly meet without the lower House (Sec. 10[5], Art. VI, 1935 Constitution). Hence, this petition by five former senators for mandamus in L-36165 is useless. And as pointed out by former Senator Arturo Tolentino, counsel for respondents Puyat and Roy, mandamus will lie only if there is a law imposing on the respondents the duty to convene

the body. The rule imposing such a duty invoked by petitioners in L-36165 is purely an internal rule of the Senate; it is not a law because it is not enacted by both Houses and approved by the President.

TO NULLIFY PROCLAMATION NO. 1102 AND 1973 CONSTITUTION REQUIRES EIGHT OR TEN VOTES OF SUPREME COURT.

reserves to himself certain rights which constitute limitations on the powers of government. But when there is an inevitable clash between an exertion of governmental authority and the assertion of individual freedom, the exercise of which freedom imperils the State and the civilized society to which the individual belongs, there can be no alternative but to submit to the superior right of the government to defend and preserve the State. In the language of Mr. Justice Holmes — often invoked by herein petitioners — "when it comes to a decision involving its (state life, the ordinary rights of individuals must yield to what he (the President) deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process. (See Keely v. Sanders, 99 U.S. 441, 446, 25 L ed. 327, 328). This was admitted with regard to killing men in the actual clash of arms. And we think it is obvious, although it was disputed, that the same is true of temporary detention to prevent apprehended harm." (Moyer v. Peabody, 212 U.S. 77, 85, 53 L ed., 411, 417).

The petitioners in L-36164 and L-36236 specifically pray for a declaration that the alleged ratification of the 1973 Constitution is null and void and that the said 1973 Constitution be declared unenforceable and inoperative.

The rhetoric of freedom alone is not enough. It must be the rhetoric of freedom with order and security for all, that should be the shibboleth; for freedom cannot be enjoyed in an environment of disorder and anarchy.

As heretofore stated, Proclamation No. 1102 is an enactment of the President as Commanderin-Chief during martial law as directly delegated to him by Section 10(2) of Article VII of the 1935 Constitution.

The incumbent Chief Executive who was trying to gain the support for his reform program long before September 21, 1972, realized almost too late that he was being deceived by his partymates as well as by the opposition, who promised him cooperation, which promises were either offered as a bargaining leverage to secure concessions from him or to delay the institution of the needed reforms. The people have been victimized by such bargaining and dilly-dallying. To overt a terrifying blood bath and the breakdown of the Republic, the incumbent President proclaimed martial law to save the Republic from being overrun by communists, secessionists and rebels by effecting the desired reforms in order to eradicate the evils that plague our society, which evils have been employed by the communists, the rebels and secessionists to exhort the citizenry to rise against the government. By eliminating the evils, the enemies of the Republic will be decimated. How many of the petitioners and their counsels have been utilizing the rebels, secessionists and communists for their own personal or political purposes and how many of them are being used in turn by the aforesaid enemies of the State for their own purposes?

The Constitutional provision on the convening of Congress, is addressed to the individual members of the legislative body (Sec. 9, Art. VI of 1935 Constitution). IX

A declaration that the 1973 Constitution is unenforceable and inoperative is practically deciding that the same is unconstitutional. The proposed Constitution is an act of the Constitutional Convention, which is co-equal and coordinate with as well as independent of either Congress or the Chief Executive. Hence, its final act, the 1973 Constitution, must have the same category at the very least as the act of Congress itself. Consequently, the required vote to nullify Proclamation No. 1102 and the 1973 Constitution should be eight (8) under Section 10 of Article VIII of the 1935 Constitution in relation to Section 9 of the Judiciary Act or Republic Act No. 296, as amended, or should be ten (10) under Section 2(2) of Article X of the 1973 Constitution. Should the required vote of eight (8) or ten (10), as the case may be, for the declaration of invalidity or unconstitutionality be not achieved, the 1973 Constitution must be deemed to be valid, in force and operative. X

ARTICLE OF FAITH WE yield to no man as devotees of human rights and civil liberties. Like Thomas Jefferson, We swear "eternal hostility towards any form of tyranny over the mind of man" as well as towards bigotry and intolerance, which are anathema to a free spirit. But human rights and civil liberties under a democratic or republican state are never absolute and never immune to restrictions essential to the common weal. A civilized society cannot long endure without peace and order, the maintenance of which is the primary function of the government. Neither can civilized society survive without the natural right to defend itself against all dangers that may destroy its life, whether in the form of invasion from without or rebellion and subversion from within. This is the first law of nature and ranks second to none in the hierarchy of all values, whether human or governmental. Every citizen, who prides himself in being a member or a civilized society under an established government, impliedly submits to certain constraints on his freedom for the general welfare and the preservation of the State itself, even as he

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If the petitioners are sincere in their expression of concern for the greater mass of the populace, more than for their own selves, they should be willing to give the incumbent Chief Executive a chance to implement the desired reforms. The incumbent President assured the nation that he will govern within the framework of the Constitution and if at any time, before normalcy is restored, the people thru their Citizens’ Assemblies, cease to believe in his leadership, he will step down voluntarily from the Presidency. But if, as apprehended by the petitioners, he abuses and brutalizes the people, then to the battlements we must go to man the ramparts against tyranny. This, it is believed, he knows only too well; because he is aware that he who rides the tiger will eventually end inside the tiger’s stomach. He who toys with revolution will be swallowed by that same revolution. History is replete with examples of libertarians who turned tyrants and were burned at stake or beheaded or hanged or guillotined by the very people whom they at first championed and later deceived. The most bloody of such mass executions by the wrath of a wronged people, was the decapitation by guillotine of about 15,000 Frenchmen including the leaders of the French revolution, like Robespierre, Danton, Desmoulins and Marat. He is fully cognizant of the lessons of history. HENCE, THE DISMISSAL OF THESE FIVE CASES IS JUSTIFIED. ESGUERRA, J.: For Dismissal of Petitions

These petitions seek to stop and prohibit the respondents Executive Officers from implementing the Constitution signed on November 30, 1972; in L-36165, to compel respondents Gil Puyat and Jose J. Roy, President and President Pro-Tempore, respectively, of the Senate under the 1935 Constitution, to convene the Senate in regular session which should have started on January 22, 1973; to nullify Proclamation No. 1102 of the President issued on January 17, 1973, which declared the ratification of the Constitution on November 30, 1972, by the Filipino people, through the barangays or Citizens Assemblies established under Presidential Decree No. 86 issued on December 31, 1972, which were empowered under Presidential Decree No. 86-A, issued on January 5, 1973, to act in connection with the ratification of said Constitution. Grounds for the petitions are as follows:chanrob1es virtual 1aw library 1. That the Constitutional Convention was not a free forum for the making of a Constitution after the declaration of Martial Law on September 21, 1972. 2. The Convention was not empowered to incorporate certain provisions in the 1972 Constitution because they are highly unwise and objectionable and the people were not sufficiently informed about them. 3. The President had no authority to create and empower the Citizens Assemblies to ratify the new Constitution at the referendum conducted in connection therewith, as said assemblies were merely for consultative purposes, and 4. The provisions of Article XV of the 1935 Constitution prescribing the manner of amending the same were not duly observed. The petitions were not given due course immediately but were referred to the Solicitor General as counsel for the respondents for comment, with three members of the Court, including the undersigned, voting to dismiss them outright. The comments were considered motions to dismiss which were set for hearing and extensively argued. Thereafter both parties submitted their notes and memoranda on their oral arguments. I.

The issues raised for determination, on which the resolution of the Motion to Dismiss hinges, are as follows:chanrob1es virtual 1aw library 1. Is the question presented political and, hence, beyond the competence of this Court to decide, or is it justiciable and fit for judicial determination? 2. Was the new Constitution of November 30, 1972, ratified in accordance with the amending process prescribed by Article XV of the 1935 Constitution? 3. Has the new Constitution been accepted and acquiesced in by the Filipino people? 4. Is the new Constitution actually in force and effect?

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5. If the answers to questions Nos. 3 and 4 be in the affirmative, are petitioners entitled to the reliefs prayed for? II.

The pivotal question in these cases is whether the issue raised is highly political and, therefore, not justiciable. I maintain that this Court should abstain from assuming jurisdiction, but, instead, as an act of judicial statesmanship, should dismiss the petitions. In resolving whether or not the question presented is political, joint discussion of issues Nos. 1, 3 and 4 is necessary so as to arrive at a logical conclusion. For after the acceptance of a new Constitution and acquiescence therein by the people by putting it into practical operation, any question regarding its validity should he foreclosed and all debates on whether it was duly or lawfully ushered into existence as the organic law of the state become political and not judicial in character. The undisputed facts that lead to the issuance of Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A are fully set forth in the majority and dissenting opinions in the Plebiscite cases decided on January 22, 1973, and need not be repeated here. Petitioners seeks to set at naught Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A, claiming that the ratification of the new Constitution pursuant to the said decrees is invalid and of no effect. Presidential Decree No. 86 organized the barangays or Citizens Assemblies composed of all citizens at least fifteen years of age, and through these assemblies the proposed 1972 Constitution was submitted to the people for ratification. Proclamation No. 1102 of the President announced or declared the result of the referendum or plebiscite conducted through the Citizens Assemblies, and that 14,976,561 members thereof voted for the ratification of the new Constitution and 743,869 voted against it. Petitioners assail these two acts of the President as unauthorized and devoid of legal effect. But looking through the veneer of judicial conformity with which the petitions have been adroitly contrived, what is sought to be invalidated is the new Constitution itself — the very framework of the present Government since January 17, 1973. The reason is obvious. The Presidential decrees set up the means for the ratification and acceptance of the new Constitution and Proclamation No. 1102 simply announced the result of the referendum or plebiscite by the people through the Citizens Assemblies. The Government under the new Constitution has been running on its tracks normally and apparently without obstruction in the form of organized resistance capable of jeopardizing its existence and disrupting its operation. Ultimately the issue is whether the new Constitution may be set aside by this Court. But has it the power and authority to assume such a stupendous task when the result of such invalidation would be to subject this nation to divisive controversies that may totally destroy the social order which the Government under the new Constitution has been admirably protecting and promoting under Martial Law? That the new Constitution has taken deep root and the people are happy and contended with it is a living reality which the most articulate critics of the new order cannot deny. 95 out of 108 members of the House of Representatives have opted to serve in the interim National Assembly provided for under the new Constitution. 15 out of 24 Senators have done likewise. The members of the Congress did not meet anymore last January 22, 1973, not because they were really prevented from so doing but because of no serious effort on their parts to assert their offices under the 1935 Constitution. In brief the Legislative Department under the 1935 Constitution is a thing of the past. The Executive Department has been fully reorganized; new appointments of key executive officers including

those of the Armed Forces were extended and they took an oath to support and defend the new Constitution. The courts, except the Supreme Court by reason of these cases, have administered justice under the new Constitution. All government offices have dealt with the public and performed their functions according to the new Constitution and laws promulgated thereunder. If the real purpose of the petitions is to set aside the new Constitution, how can this Court justify its assumption of jurisdiction when no power has . . . conferred upon it the jurisdiction to declare the Constitution or any part thereof null and void? It is the height of absurdity and impudence for a court to wage open war against the organic act to which it owes its existence. The situation in which this Court finds itself does not permit it to pass upon the question whether or not the new Constitution has entered into force and has superseded the 1935 Constitution. If it declares that the present Constitution has not been validly ratified, it has to uphold the 1935 Constitution as still the prevailing organic law. The result would be too anomalous to describe, for then this Court would have to declare that it is governed by one Constitution or the 1935 Constitution, and the legislative and executive branches by another or the 1972 Constitution. If it declares that the 1972 Constitution is now operative, how can it exercise judicial discretion in these cases when it would have no other choice but to uphold the new Constitution as against any other one? In the circumstances it would be bereft of judicial attributes as the matter would then be not meet for judicial determination, but one addressed to the sovereign power of the people who have already spoken and delivered their mandate by accepting the fundamental law on which the government of this Republic is now functioning. To deny that the new Constitution has been accepted and actually is in operation would be flying in the face of reason and pounding one’s bare head against a veritable stone wall or a heavily reinforced concrete, or simply "kicking the deadly pricks" with one’s bare foot in an effort to eliminate the lethal points. When a Constitution has been in operation for sometime, even without popular ratification at that, submission of the people thereto by the organization of the government provided therein and observance of its prescriptions by public officers chosen thereunder, is indicative of approval. Courts should be slow in nullifying a Constitution claimed to have been adopted not in accordance with constitutional or statutory directives [Miller v. Johnson, 92 Ky. 589; 189 S.W. 522; Taylor v. Commonwealth, 101; Va. 829; 44 S.E. 754; Smith v. Good, 34 F 204, 207; Wiston v. Ryan, 70 Neb. 211; 97 N.W. 347]. In Miller v. Johnson, supra, the Court said:jgc:chanrobles.com.ph ". . . But it is a case where a new constitution has been formed and promulgated according to the forms of law. Great interests have already arisen under it; important rights exist by virtue of it; persons have been convicted of the highest crimes known to the law, according to its provisions; the political power of the government has in many ways recognized it; and under such circumstances, it is our duty to treat and regard it as a valid constitution, and now the organic law of our state. We need not consider the validity of the amendments made after the convention reassembled. If the making of them was in excess of its power, yet, as the entire instrument has been recognized as valid in the manner suggested, it would be equally an abuse of power by the judiciary, and violative of the rights of the people, — who can and property should remedy the matter, if not to their liking, — if it were to declare the instrument or a portion invalid, and bring confusion and anarchy upon the state." (Emphasis supplied)

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In Smith v. Good, supra, the Court said:jgc:chanrobles.com.ph "It is said that a state court is forbidden from entering upon such an inquiry when applied to a new constitution, and not an amendment, because the judicial power presupposes an established government, and if the authority of that government is annulled and overthrown, the power of its courts is annulled with it; and therefore, if a state court should enter upon such an inquiry, and come to the conclusion that the government under which it acted had been displaced by an opposing government, it would cease to be a court, and it would be incapable of pronouncing a judicial decision upon the question before it; but, if it decides at all, it must necessarily affirm the existence of the government under which it exercises its judicial powers." (Emphasis supplied) These rules are all traceable to Luther v. Borden, 48 U.S. (7 How.), 12 L. Ed. 581, 598 (1849) where it was held:jgc:chanrobles.com.ph "Judicial power presupposes an established government capable of enacting laws and enforcing their execution, and of appointing judges to expound and administer them. The acceptance of the judicial office is a recognition of the authority of the government from which it is derived. And if the authority of that government is annulled and overthrown, the power of its courts and other officers is annulled with it. And if a State court should enter upon the inquiry proposed in this case, and should come to the conclusion that the government under which it acted had been put aside and displaced by an opposing government it would cease to be a court, and be incapable of pronouncing a judicial decision upon the question it undertook to try. If it decides at all as a court, it necessarily affirms the existence and authority of the government under which it is exercising judicial power."cralaw virtua1aw library The foreign relations of the Republic of the Philippines have been normally conducted on the basis of the new Constitution and no state with which we maintain diplomatic relations has withdrawn its recognition of our government. (For particulars about executive acts done under the new Constitution, see pages 22-25 of the Comments of the Solicitor General, dated February 3, 1973.) Certainly the invalidation of Proclamation No. 1102 and Presidential Decrees Nos. 86 and 86-A by this Court would smack of plain political meddling which is described by the United States Supreme Court as "entering a political thicket" in Colegrove v. Green, 328 U.S. p. 549. At this juncture it would be the part of wisdom for this Court to adopt the proper attitude towards political upheavals and realize that the question before Us is political and not fit for judicial determination. For a political question is one entrusted to the people for judgment in their sovereign capacity (Tañada v. Cuenco, G.R. No. L-10520, Feb. 28, 1967; 100 Phil. 1101), or to a co-equal and coordinate branch of the Government (Vera v. Arellano, 77 Phil. 192; Mabanag v. Lopez Vito, 78 Phil. 1; Alejandrino v. Quezon, 46 Phil. 35; Cabili v. Francisco, G. R. No. 4638, May 8, 1931). A case involves a political question when there would be "the impossibility of undertaking independent resolutions without expressing a lack of respect due to coordinate branches of government", or when there is "the potentiality of embarassment from multifarious pronouncements by various departments on one question."cralaw virtua1aw library To preserve the prestige and eminence that this Court has long enjoyed as the "ultimate organ of the ‘Supreme Law of the Land’ in that vast range of legal problems often strongly entangled in popular feeling on which this Court must pronounce", let us harken to the following admonition of Justice Frankfurter in his dissent in Baker v. Carr, 369 U.S. 186; 82 S. Ct. 691; 7 L. Ed. 2d. 663:jgc:chanrobles.com.ph

"The Court’s authority — possessed neither of the purse nor the sword — ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court’s complete detachment, in fact and appearance, from political entanglements and abstention from injecting itself into the clash of political forces in political settlement . . ." (Emphasis supplied) The people have accepted and submitted to a new Constitution to replace the 1935 Constitution. The new organic law is now in the plenitude of its efficacy and vigor. We are now living under its aegis and protection and only the cynics will deny this. This Court should not in the least attempt to act as a super-legislature or a super- board of canvassers and sow confusion and discord among our people by pontificating that there was no valid ratification of the new Constitution. The sober realization of its proper role and delicate function and its consciousness of the limitations on its competence, especially in situations like this, are more in keeping with the preservation of our democratic tradition than the blatant declamations of those who wish the Court to engage in their brand of activism and would not mind plunging it into the whirlpool of passion and emotion in an effort to capture the entoxicating applause of the multitude. For all the foregoing, I vote to dismiss all petitions. ZALDIVAR, J., concurring and dissenting:chanrob1es virtual 1aw library In these five cases, the main issue to be resolved by this Court is whether or not the Constitution proposed by the Constitutional Convention of 1971 had been ratified in accordance with the provisions of Article XV of the 1935 Constitution. In the plebiscite cases, which were decided by this Court on January 22, 1973 1 , I held the view that this issue could be properly resolved by this Court, and that it was in the public interest that this Court should declare then whether or not the proposed Constitution had been validly ratified. The majority of this Court, however, was of the view that the issue was not squarely raised in those cases, and so the Court, as a body, did make any categorical pronouncement on the question of whether or not the Constitution proposed by the 1971 Convention was validly ratified. I was the only one who expressed the opinion that the proposed Constitution was not validly ratified and therefore "it should not be given force and effect."cralaw virtua1aw library The Court is now called upon to declare, and to inform the people of this country, whether or not that proposed Constitution had been validly ratified and had come into effect. The Solicitor General, however, contends that this Court has no jurisdiction to resolve the issue that we have mentioned because that issue is a political question that cannot be decided by this Court. This contention of the Solicitor General is untenable. A political question relates to "those questions which under the Constitution are to be decided by the people in their sovereign capacity or in regard to which full discretionary authority has been delegated to the legislative, or to the executive, branch of the government. 2 The courts have the power to determine whether the acts of the executive are authorized by the Constitution and the laws whenever they are brought before the court in a judicial proceeding. The judicial department of the government exercises a sort of controlling, or rather restraining, power over the two other departments of the government. Each of the three departments, within its proper constitutional sphere, acts independently of the other, and restraint is only placed on one department when that sphere is actually transcended. While a court may not restrain the executive from committing an unlawful act, it may, when the legality of such an act is brought

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before it in a judicial proceeding, declare it to be void, the same as it may declare a law enacted by the legislature to be unconstitutional. 3 It is a settled doctrine that every officer under a constitutional government must act according to law and subject to its restrictions, and every departure therefrom, or disregard thereof, must subject him to the restraining and controlling power of the people, acting through the agency of the judiciary. It must be remembered that the people act through the courts, as well as through the executive or the legislature. One department is just as representative as the other, and the judiciary is the department which is charged with the special duty of determining the limitations which the law places upon all official actions 4 . In the case of Gonzales v. Commission on Elections 5 , this Court ruled that the issue as to whether or not a resolution of Congress acting as a constituent assembly violates the Constitution is not a political question and is therefore subject to judicial review. In the case of Avelino v. Cuenco 6 , this Court held that the exception to the rule that courts will not interfere with a political question affecting another department is when such political question involves an issue as to the construction and interpretation of the provisions of the constitution. And so, it has been held that the question of whether a constitution shall be amended or not is a political question which is not in the power of the court to decide, but whether or not the constitution has been legally amended is a justiciable question. 7 My study on the subject of whether a question before the court is political or judicial, based on decisions of the courts in the United States — where, after all, our constitutional system has been patterned to a large extent — made me arrive at the considered view that it is in the power of this Court, as the ultimate interpreter of the Constitution, to determine the validity of the proposal, the submission, and the ratification of any change in the Constitution. Ratification or non-ratification of a constitutional amendment is a vital element in the procedure to amend the constitution, and I believe that the Court can inquire into, and decide on, the question of whether or not an amendment to the constitution, as in the present cases, has been ratified in accordance with the requirements prescribed in the Constitution that was amended. And so, in the cases now before Us, I believe that the question of whether or not the Constitution proposed by the 1971 Constitutional Convention had been validly ratified or not is a justiciable question. The Chief Justice, in his opinion, has discussed lengthily the subject on whether or not, the cases, before Us involve a political, or a judicial, question. I fully concur with his conclusion that the question involved in these cases is justiciable. On the question now of whether or not the Constitution proposed by the 1971 Constitutional Convention has been validly ratified, I am reproducing herein pertinent portions of my dissenting opinion in the plebiscite cases:jgc:chanrobles.com.ph "The ratification of the Constitution proposed by the 1971 Constitutional Convention must be done in accordance with the provisions of Section 1, Article XV of the 1935 Constitution of the Philippines, which reads:chanrob1es virtual 1aw library ‘Section 1. The Congress in joint session assembled by a vote of three fourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments to the Constitution or call a convention for that purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification.’ "It is in consonance with the abovequoted provision of the 1935 Constitution that on March 16, 1967, the Congress of the Philippines passed Resolution No. 2 calling a convention to propose

amendments to the Constitution of the Philippines. Sec. 7 of said Resolution No. 2 reads as follows:chanrob1es virtual 1aw library ‘SECTION 7. The amendments proposed by the Convention shall be valid and considered part of the Constitution when approved by a majority of the votes cast in an election at which they are submitted to the people for their ratification pursuant to Article XV of the Constitution.’ "It follows that from the very resolution of the Congress of the Philippines which called for the 1971 Constitutional Convention there was a clear mandate that the amendments proposed by the 1971 Convention, in order to be valid and considered part of the Constitution, must be approved by majority of the votes cast in an election at which they are submitted to the people for their ratification as provided in the Constitution. "This Court, in the case of Tolentino v. Commission on Elections, L-35140, October 16, 1971 (41 SCRA 715), speaking through Mr. Justice Barredo, said:chanrob1es virtual 1aw library ‘The Constitutional Convention of 1971, as any other convention of the same nature, owes its existence and derives all its authority and power from the existing Constitution of the Philippines. This Convention has not been called by the people directly as in the case of a revolutionary convention which drafts the first Constitution of an entirely new government born of either a war of liberation from a mother country or of a revolution against an existing government or of a bloodless seizure of power a la coup d’etat. As to such kind of conventions, it is absolutely true that the convention is completely without restraint and omnipotent all wise, and it is as to such conventions that the remarks of Delegate Manuel Roxas of the Constitutional Convention of 1934 quoted by Senator Pelaez refer. No amount of rationalization can belie the fact that the current convention came into being only because it was called by a resolution of a joint session of Congress acting as a constituent assembly by authority of Section 1, Article XV of the present Constitution . . . x

x

x

‘As to matters not related to its internal operation and the performance of its assigned mission to propose amendments to the Constitution, the Convention and its officers and members are all subject to all the provisions of the existing Constitution. Now we hold that even as to its latter task of proposing amendments to the Constitution, it is subject to the provisions of Section 1 of Article XV.’ "In Proclamation No. 1102, issued on January 17, 1973, the President of the Philippines certified that as a result of the voting before the barangays (Citizens Assemblies) 14,976,561 members of the barangays voted for the adoption of the proposed Constitution, as against 743,869 who voted for its rejection, and on the basis of the overwhelming majority of the votes cast by the members of all the barangays throughout the Philippines the President proclaimed that the Constitution proposed by the 1971 Convention has been ratified and has thereby come into effect. "It is very plain from the very wordings of Proclamation No. 1102 that the provisions of Section 1 of Article XV of the Constitution of 1935 were not complied with. It is not necessary that evidence be produced before this Court to show that no elections were held in accordance with the provisions of the Election Code. Proclamation No. 1102 unequivocably states that the proposed Constitution of 1972 was voted upon by the barangays. It is very clear, therefore,

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that the voting held in these barangays is not the election contemplated in the provisions of Section 1, Article XV, of the 1935 Constitution. The election contemplated in said constitutional provision is an election held in accordance with the provisions of the election law, where only the qualified and registered voters of the country would cast their votes, where official ballots prepared for the purpose are used, where the voters would prepare their ballots in secret inside the voting booths in the polling places established in the different election precincts throughout the country, where the election is conducted by election inspectors duly appointed in accordance with the election law, where the votes are canvassed and reported in a manner provided for in the election law. It was this kind of election that was held on May 14, 1935, when the Constitution of 1935 was ratified; on April 30, 1937, when the amendment to the Constitution providing for Women’s Suffrage was ratified; on June 18, 1940, when the 1940 Amendments to the Constitution were ratified; on March 11, 1947 when the Parity Amendment to the Constitution was ratified; and on November 14, 1967 when the amendments to the Constitution to increase the number of Members of the House of Representatives and to allow the Members of Congress to run in the elections for Delegates to the Constitutional Convention of 1971 were rejected. "I cannot see any valid reason why the practice or procedure in the past, in implementing the constitutional provision requiring the holding of an election to ratify or reject an amendment to the Constitution, has not been followed in the case of the Constitution proposed by the 1971 Constitutional Convention. "It is my view that the President of the Philippines cannot by decree order the ratification of the proposed 1972 Constitution thru a voting in the barangays and make said result the basis for proclaiming the ratification of the proposed constitution. It is very clear, to me, that Proclamation No. 1102 was issued in complete disregard or in violation, of the provisions of Section 1 of Article XV of the 1935 Constitution. "Proclamation No. 1102 mentions, furthermore, that on the question as to whether or not the people would still like a plebiscite to be called to ratify the new Constitution, 14,298,814 members of the barangays answered that there was no need for a plebiscite but that the vote of the barangays should be considered a vote in a plebiscite. It would thus appear that the barangays assumed the power to determine whether a plebiscite as ordained in the Constitution be held or not. Indeed, the provision of Section 1, Article XV of the Constitution was completely disregarded. "The affirmative votes cast in the barangays are not the votes contemplated in Section 1 of Article XV of the 1935 Constitution. The votes contemplated in said constitutional provision are votes obtained through the election processes as provided by law. ‘An election is the embodiment of the popular will, the expression of the sovereign power of the people. In common parlance an election is the act of casting and receiving the ballots, counting them, and making the return.’ (Hontiveros v. Altavas, 24 Phil. 632, 637). ‘Election’ implies a choice by an electoral body at the time and substantially in the manner and with the safeguards provided by law with respect to some question or issue. (Leffel v. Brown, Com. P1., 159 N.E. 2d 807, 808 cited in 29 C.J.S. 13 at footnote 6.5). ‘. . . the statutory method whereby qualified voters or electors pass on various public matters submitted to them — the election of officers, national, state, county, township — the passing on various other questions submitted for their determination.’ (29 C.J.S. 13, citing Iowa-llinois

Gas & Elec. Co. v. City of Bettendorf, 41 N.W. 2d 1, 5, 241 Iowa 358). ‘Election’ is expression of choice by voters of body politic. (Ginsburg v. Giles, 72 S.W. 2d 438, 254 Ky. 720, in Words and Phrases, Permanent Edition, p. 234). "The right to vote may be exercised only on compliance with such statutory requirements as have been set by the legislature.’ (People ex rel. Rago v. Lipsky, 63 N.E. 2d 642, 327 Ill. App. 63; Rothfels v. Southworth, 356 P. 2d 612, 11 Utah 2d 169 in 29 C.J.S. 38). (Italics supplied). "In this connection I herein quote the pertinent provisions of the Election Code of 1971:chanrob1es virtual 1aw library ‘Sec. 2. Applicability of this Act. — All elections of public officers except barrio officials and plebiscites shall be conducted in the manner provided by this Code.’ ‘Sec. 99. Necessity of registration to be entitled to vote. — In order that a qualified voter may vote in any regular or special election or in any plebiscite he must be registered in the permanent list of voters for the city, municipality or municipal district in which he resides: Provided, That no person shall register more than once without first applying for cancellation of his previous registration.’ (Italics supplied). (Please see also Sections 100-102, Election Code of 1971, RA. No. 6388). "It is stated in Proclamation No. 1102 that the voting was done by the members of citizens assemblies who are 15 years of age or over. Under the provision of Section 1 of Article V of the 1935 Constitution the age requirement to be a qualified voter is 21 years or over. "But what is more noteworthy is the fact that the voting in the barangays, except in very few instances, was done by the raising of hands by the persons indiscriminately gathered to participate in the voting, where even children below 15 years of age were included. This is a matter of common observation, or of common knowledge, which the Court may take judicial notice of. To consider the votes in the barangays as expressive of the popular will and use them as the basis in declaring whether a Constitution is ratified or rejected is to resort to a voting by demonstrations, which is would mean the rule of the crowd, which is only one degree higher than the rule by the mob. Certainly, so important a question as to whether the Constitution, which is the supreme law of the land, should be ratified or not, must not be decided by simply gathering people and asking them to raise their hands in answer to the question of whether they vote for or against a proposed Constitution. The election processes as provided by law should be strictly observed in determining the will of the sovereign people in a democracy. In our Republic the will of the people must be expressed through the ballot in a manner that is provided by law. "It is said that in a democracy the will of the people is the supreme law. Indeed, the people are sovereign, but the will of the people must be expressed in a manner as the law and the demands of a well-ordered society require. The rule of law must prevail even over the apparent will of the majority of the people, if that will had not been expressed, or obtained, in accordance with the law. Under the rule of law public questions must be decided in accordance with the Constitution and the law. This is specially true in the case of the adoption of a constitution or in the ratification of an amendment to the Constitution. "The following citations are, to me, very relevant in the effort to determine whether the proposed Constitution of 1972 had been validly ratified, or not:chanrob1es virtual 1aw library

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‘When it is said that ‘the people’ have the right to alter or amend the constitution, it must not be understood that this term necessarily includes all the inhabitants of the state. Since the question of the adoption or rejection of a proposed new constitution or constitutional amendment must be answered by a vote, the determination of it rests with those who, by the existing constitution, are accorded the right of suffrage. But the qualified electors must be understood in this, as in many other cases, as representing those who have not the right to participate in the ballot. If a constitution should be abrogated, and a new one adopted, by the whole mass of people in a state, acting through representatives not chosen by the ‘people’ in the political sense of the term, but by the general body of the populace, the movement would be extra-legal’ (Black’s Constitutional Law, Second Edition, pp. 47-48). ‘The theory of our political system is that the ultimate sovereignty is in the people, from whom springs all legitimate authority. The people of the Union created a national constitution, and conferred upon it powers of sovereignty over certain subjects, and the people of each State created a State government, to exercise the remaining powers of sovereignty so far as they were disposed to allow them to be exercised at all. By the constitution which they establish, they not only tie up the hands of their official agencies, but their own hands as well; and neither the officers of the State, nor the whole people as an aggregate body, are at liberty to take action in opposition to this fundamental law.’ (Cooley’s Constitutional Limitations, 8th Edition, Vol. I, p. 81 cited in Graham v. Jones, 3 So. 2d. 761, 782). ‘The theory that a favorable vote by the electorate, however unanimous, on a proposal to amend a constitution, may cure, render innocuous, all or any antecedent failures to observe commands of that Constitution in respect of the formulation or submission of proposed amendments thereto, does not prevail in Alabama, where the doctrine of the stated theory was denied, in obvious effect, by the pronouncement 60 years ago of broad, wholesome constitutional principles in Collier v. Frierson, supra, as quoted in the original opinion, ante. The people themselves are bound by the Constitution; and, being so bound, are powerless, whatever their numbers, to change or thwart its mandates, except through the peaceful means of a constitutional convention, or of amendment according to the mode therein prescribed, or through the exertion of the original right of revolution.’The Constitution may be set aside by revolution, but it can only be amended in the way it provides,’ said Hobson, C.J., in McCreary v. Speer, 156 Ky. 783, 791, 162 S. W. 99, 103. (Johnson v. Craft, Et Al., 87 So. 375, 385, 387, On Rehearing). ‘The fact that a majority voted for the amendment, unless the vote was taken as provided by the Constitution, is not sufficient to make a change in that instrument. Whether a proposed amendment has been legally adopted is a judicial question, for the court must uphold and enforce the Constitution as written until it is amended in the way which it provides for.’ Wood v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L.R.A. 560; McConaughty v. State, 106 Minn. 409, 119 N.W. 408; Oakland Paving Company v. Hilton, 69 Cal. 499,11 Pac. 3; Utter v. Mosely, 16 Idaho 274, 100 Pac. 1958, 133 Am. St. Rep. 94, 18 Ann. Cas. 723. (McCreary v. Speer, 162 S.W. 99,104). ‘Provisions of a constitution regulating its own amendment, . . . are not merely directory, but are mandatory; and a strict observance of every substantial requirement is essential to the validity of the proposed amendment. These provisions are as binding on the people as on the legislature, and the former are powerless by vote of acceptance to give legal sanction to an amendment the submission of which was made in disregard of the limitations contained in the constitution.’ (16 C.J.S. 35-36 cited in Graham v. Jones, 3 So. 2d 761, 782).

‘It is said that chaos and confusion in the governmental affairs of the State will result from the Court’s action in declaring the proposed constitutional amendment void. This statement is grossly and manifestly inaccurate. If confusion and chaos should ensue, it will not be due to the action of the Court but will be the result of the failure of the drafters of the joint resolution to observe, follow and obey the plain essential provisions of the Constitution. Furthermore, to say that, unless the Court disregards its sworn duty to enforce the Constitution, chaos and confusion will result, is an inherently weak argument in favor of the alleged constitutionality of the proposed amendment. It is obvious that, if the Court were to countenance the violations of the sacramental provisions of the Constitution, those who would thereafter desire to violate it and disregard its clear mandatory provisions would resort to the scheme of involving and confusing the affairs of the State and then simply tell the Court that it was powerless to exercise one of its primary functions by rendering the proper decree to make the Constitution effective.’ (Graham v. Jones, 3 So. 2d. 761, 793-794). "In our jurisprudence I find an instance where this Court did not allow the will of the majority to prevail, because the requirements of the law were not complied with. In the case of Monsale v. Nico, 83 Phil. 758, Monsale and Nico were both candidates for the office of Municipal Mayor of Miagao, Iloilo, in the elections of November 11, 1947. Monsale had duly filed his certificate of candidacy before the expiration of the period for the filing of the same. However, on October 10, 1947, after the period for the filing of certificate of candidacy, Monsale withdrew his certificate of candidacy. But on November 7, 1947 Monsale attempted to revive his certificate of candidacy by withdrawing the withdrawal of his certificate of candidacy. e (The Commission on Elections, on November 8, 1947, ruled that Monsale could no longer be a candidate. Monsale nevertheless proceeded with his candidacy. The boards of inspectors in Miagao, however, did not count the votes cast for Monsale upon the ground that the votes cast for him were stray votes, because he was considered as having no certificate of candidacy. On the other hand, the boards of inspectors credited Nico with 2,291 votes, and Nico was proclaimed elected. Monsale filed a protest against the election of Nico in the Court of First Instance of Iloilo. In the count of the ballots during the proceedings in the trial court it appeared that Monsale had obtained 2,877 votes while Nico obtained 2,276 votes, or a margin of 601 votes in favor of Monsale. The Court of First Instance of Iloilo decided the election protest in favor of Monsale. Upon appeal by Nico, this Court reversed the decision of the lower court. This Court declared that because Monsale withdrew his certificate of candidacy his attempt to revive it by withdrawing his withdrawal of his certificate of candidacy did not restore the effectiveness of his certificate of candidacy, and this Court declared Nico the winner in spite of the fact that Monsale had obtained more votes than he. "We have cited this Monsale case to show that the will of the majority of the voters would not be given effect, as declared by this Court, if certain legal requirements have not been complied with in order to render the votes valid and effective to decide the result of an election. "And so, in the cases now before this Court, the fact that the voting in the citizens assemblies (barangays) is not the election that is provided for in the 1935 Constitution for the ratification of the amendment to the Constitution, the affirmative votes cast in those assemblies can not be made the basis for declaring the ratification of the proposed 1972 Constitution, in spite of the fact that it was reported that 14,976,561 members of the citizens assemblies voted for the adoption as against 743,869 for the rejection, because the votes thus obtained were not in accordance with the provisions of Section 1 of Article XV of the 1935 Constitution of the Philippines. The rule of law must he upheld.

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"My last observation: One of the valid grounds against the holding of the plebiscite on January 15, 1973, as provided in Presidential Decree No. 73, is that there is no freedom on the part of the people to exercise their right of choice, because of the existence of martial law in our country. The same ground holds true as regards the voting of the barangays on January 10 to 15, 1973. More so, because by General Order No. 20, issued on January 7, 1973, the President of the Philippines ordered ‘that the provisions of Section 3 of Presidential Decree No. 73 in so far as they allow free public discussion of the proposed constitution, as well as any order of December 17, 1972 temporarily suspending the effects of Proclamation No. 1081 for the purpose of free and open debate on the proposed constitution, he suspended in the meantime.’ It is, therefore, my view that voting in the barangays on January 10-15, 1973 was not free, and so this is one added reason why the results of the voting in the barangays should not be made the basis for the proclamation of the ratification of the proposed Constitution. "It is my view, therefore, that Proclamation No. 1102 is repugnant to the 1935 Constitution, and so it is invalid, and should not be given effect. The Constitution of 1972 proposed by the 1971 Constitutional Convention should be considered as not yet ratified by the people of this Republic, and so it should not be given force and effect."cralaw virtua1aw library It is urged by the Solicitor General, however, that the voting in the citizens assemblies was a substantial compliance with the provisions of Article XV of the 1935 Constitution. The Solicitor General-maintains that the primary thrust of the provision of Article XV of the 1935 Constitution is that "to be valid, amendments must gain the approval of the majority in recognition of the democratic postulate that sovereignty resides in the people." It is not disputed that in a democracy sovereignty resides in the people. But the term "people" must be understood in its constitutional meaning, and they are "those persons who are permitted by the Constitution to exercise the elective franchise." 8 Thus, in Section 2 of Article VII of the 1935 Constitution, it is provided that "The President shall hold his office during a term of four years and, together with the Vice- President chosen for the same term, shall be elected by direct vote of the people . . ." Certainly under that constitutional provision the "people" who elect directly the President and the Vice-President are no other than the persons who, under the provisions of the same Constitution, are granted the right to vote. In like manner the provision in Section 1 of Article II of the 1935 Constitution which says "Sovereignty resides in the people and all government authority emanates from them", the "people" who exercise the sovereign power are no other than the persons who have the right to vote under the Constitution. In the case of Garchitorena v. Crescini 9 , this Court, speaking through Mr. Justice Johnson, said, "In democracies, the people, combined, represent the sovereign power of the State. Their sovereign authority is expressed through the ballot, of the qualified voters, in duly appointed elections held from time to time, by means of which they choose their officials for definite fixed periods, and to whom they entrust, for the time being, as their representatives, the exercise of the powers of government." In the case of Moya v. Del Fierro, 10 this Court, speaking through Mr. Justice Laurel, said, "As long as popular government is an end to be achieved and safeguarded, suffrage, whatever may be the modality and form devised, must continue to be the means by which the great reservoir of power must be emptied into the receptacular agencies wrought by the people through their Constitution in the interest of good government and the common weal. Republicanism, in so far as it implies the adoption of a representative type of government, necessarily points to the enfranchised citizen as a particle of popular sovereignty and as the ultimate source of the established authority." And in the case of Abanil v. Justice of the Peace of Bacolod, 11 this Court said: "In the scheme of our present republican government, the people are allowed to have a voice therein through the instrumentality of suffrage to be availed of by those possessing certain prescribed qualifications. The people, in clothing a citizen with the elective franchise for the purpose of

securing a consistent and perpetual administration of the government they ordain, charge him with the performance of a duty in the nature of a public trust, and in that respect constitute him a representative of the whole people. This duty requires that the privilege thus bestowed should be exercised, not exclusively for the benefit of the citizen or class of citizens professing it, but in good faith and with an intelligent zeal for the general benefit and welfare of the state. (U.S. v. Cruikshauk, 92 U.S. 588) . . ." There is no question, therefore, that when we talk of sovereign people, what is meant are the people who act through the duly qualified and registered voters who vote during an election that is held as provided in the Constitution or in the law. The term "election" as used in Section 1 of Article XV of the 1935 Constitution should be construed along with the term "election" as used in the provisions of Section 4 of the Philippine Independence Act of the Congress of the United States, popularly known as the TydingsMcDuffie Law (Public Act No. 127). Said Section 4 of the Tydings-McDuffie Law provides as follows:jgc:chanrobles.com.ph "Section 4. After the President of the United States has certified that the constitution conforms with the provisions of this act, it shall be submitted to the people of the Philippine Islands for their ratification or rejection at an election to be held within four months after the date of such certification, on a date to be fixed by the Philippine Legislature, at which election the qualified voters of the Philippine Islands shall have an opportunity to vote directly for or against the proposed constitution and ordinances appended thereto. Such election shall be held in such manner as may be prescribed by the Philippine Legislature, to which the return of the election shall be made. The Philippine Legislature shall by law provide for the canvassing of the return and shall certify the result of the Governor- General of the Philippine Islands, together with a statement of the votes cast, and a copy of said constitution and ordinances. If a majority of the votes cast shall be for the constitution, such vote shall be deemed an expression of the will of the people of the Philippine Independence, and the Governor-General shall, within thirty days after receipt of the certification from the Philippine Legislature, issue a proclamation for the election of officers of the government of the Commonwealth of the Philippine Islands provided for in the Constitution . . ."cralaw virtua1aw library It can safely be said, therefore, that when the framers of the 1935 Constitution used the word "election" in Section 1 of Article XV of the 1935 Constitution they had no other idea in mind except the elections that were periodically held in the Philippines for the choice of public officials prior to the drafting of the 1935 Constitution, and also the "election" mentioned in the Independence Act at which "the qualified voters of the Philippine Islands shall have an opportunity to vote directly for or against the proposed constitution . . ." It is but logical to expect that the framers of the 1935 Constitution would provide a mode of ratifying an amendment to that Constitution similar to the mode of ratifying the original Constitution itself. It is clear, therefore, that the ratification or any amendment to the 1935 Constitution could only he done by holding an election, as the term "election" was understood, and practiced, when the 1935 Constitution was drafted. The alleged referendum in the citizens assemblies — participated in by persons aged 15 years or more, regardless of whether they were qualified voters or not, voting by raising their hands, and the results of the voting reported by the barrio or ward captain to the municipal mayor, who in turn submitted the report to the Provincial Governor, and the latter forwarding the reports to the Department of Local Governments, all without the intervention of the Commission on Elections which is the constitutional body which has exclusive charge of the enforcement and administration of all laws relative to the conduct of elections — was not only a non-substantial compliance with the

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provisions of Section 1 of Article XV of the 1935 Constitution but a downright violation of said constitutional provision. It would be indulging in sophistry to maintain that the voting in the citizens assemblies amounted to a substantial compliance with the requirements prescribed in Section 1 of Article XV of the 1935 Constitution, 1935 Constitution. It is further contended by the Solicitor General, that even if the Constitution proposed by the 1971 Constitutional Convention was not ratified in accordance with the provisions of Section 1 of Article XV of the 1935 Constitution, the fact is that after the President of the Philippines had issued Proclamation No. 1102 declaring that the said proposed Constitution "has been ratified by overwhelming majority of all the votes cast by the members of all the barangays (citizens assemblies) throughout the Philippines and had thereby come into effect" the people have accepted the new Constitution. What appears to me, however, is that practically it is only the officials and employees under the executive department of the Government who have been performing their duties apparently in observance of the provisions of the new Constitution. It could not be otherwise, because the President of the Philippines, who is the head of the executive department, had proclaimed that the new Constitution had come into effect, and his office had taken the steps to implement the provisions of the new Constitution. True it is, that some 92 members of the House of Representatives and 15 members of the Senate, of the Congress of the Philippines had expressed their option to serve in the interim National Assembly that is provided for in Section 2 of Article XVII of the proposed Constitution. It must be noted, however, that of the 15 senators who expressed their option to serve in the interim National Assembly only one of them took his oath of office, and of the 92 members of the House of Representatives who opted to serve in the interim National Assembly, only 22 took their oath of office. The fact, that only one Senator out of 24, and only 22 Representatives out of 110, took their oath of office, is an indication that only a small portion of the members of Congress had manifested their acceptance of the new Constitution. It is in the taking of the oath of office where the affiant says that he swears to "support and defend the Constitution" that the acceptance of the Constitution is made manifest. I agree with counsel for petitioners in 1,36165 (Gerardo Roxas, Et. Al. v. Alejandro Melchor, Et. Al.) when he said that the members of Congress who opted to serve in the interim National Assembly did so only ex abundante cautela, or by way of a precaution, or making sure, that in the event the new Constitution becomes definitely effective and the interim National Assembly is convened they can participate in legislative work in their capacity as duly elected representatives of the people, which otherwise they could not do if they did not manifest their option to serve, and that option had to be made within 30 days from January 17, 1973, the date when Proclamation No. 1102 was issued. Of course, if the proposed Constitution does not become effective, they continue to be members of Congress under the 1935 Constitution. Let it be considered that the members of the House of Representatives were elected in 1969 to serve a term which will yet expire on December 31, 1973. Whereas, of the Senators who opted to serve in the interim National Assembly, the term of some of them will yet expire on December 31, 1973, some on December 31, 1975, and the rest on December 31, 1977. Let if be noted that 9 Senators did not opt to serve in the interim National Assembly, and 18 members of the House of Representatives also did not opt to serve in the interim National Assembly. Neither can it be said that the people have accepted the new Constitution. I cannot, in conscience, accept the reported affirmative votes in the citizens assemblies as a true and correct expression by the people of their approval, or acceptance, of the proposed Constitution. I have my serious doubts regarding the freedom of the people to express their views regarding the proposed Constitution during the voting in the citizens assemblies, and I have also my serious doubts regarding the truthfulness and accuracy of the reports of the voting in the citizens assemblies. This doubt has been engendered in my mind after a careful

examination and study of the records of these cases, particularly with respect to the reports of the voting in the citizens assemblies. Perhaps, it may be said that the people, or the inhabitants of this country, have acquiesced to the new Constitution, in the sense that they have continued to live peacefully and orderly under the government that has been existing since January 17, 1973 when it was proclaimed that the new Constitution came into effect. But what could the people do? In the same way that the people have lived under martial law since September 23, 1972, they also have to live under the government as it now exists, and as it has existed since the declaration of martial law on September 21, 1972, regardless of what Constitution is operative — whether it is the 1935 Constitution or the new Constitution. Indeed, there is nothing that the people can do under the circumstances actually prevailing in our country today — circumstances, known to all, and which I do not consider necessary to state in this opinion I cannot agree, therefore, with my worthy colleagues in the Court who hold the view that the people have accepted the new Constitution, and that because the people have accepted it, the new Constitution should be considered as in force, regardless of the fact that it was not ratified in accordance with the provisions of Section 1 of Article XV of the 1935 Constitution. It is my honest view that the Constitution proposed by the 1971 Constitutional Convention has not come into effect. I do not say, however, that the proposed Constitution is invalid. To me, the validity of the proposed Constitution is not in issue in the cases before Us. What the petitioners assail is not the validity of the proposed Constitution but the validity of Presidential Proclamation No. 1102 which declares the proposed Constitution as having been ratified and has come into effect. It being my considered view that the ratification of the proposed Constitution, as proclaimed in Proclamation No. 1102, is not in accordance with the provisions of Section 1 of Article XV of the 1935 Constitution, I hold that Proclamation No. 1102 is invalid and should not be given force and effect. The proposed Constitution, therefore, should be considered as not yet validly ratified, and so it is not in force. The proposed Constitution may still be submitted to a plebiscite in conformity with Section 1 of Article XV of the 1935 Constitution. Incidentally, I must state that the 1935 Constitution is still in force, and this Court is still functioning under the 1935 Constitution. I sincerely believe that the proposed Constitution may still be submitted to the people in an election or plebiscite held in accordance with the provisions of Section 1 of Article XV of the 1935 Constitution. In fact, as we have adverted to in this opinion, this was the mandate of Congress when, on March 16, 1967, it passed Resolution No. 2 calling a convention to propose amendments to the 1935 Constitution. The Court may take judicial notice of the fact that the President of the Philippines has reassured the nation that the government of our Republic since the declaration of martial law is not a revolutionary government, and that he has been acting all the way in consonance with his powers under the Constitution. The people of this Republic has reason to be happy because, according to the President, we still have a constitutional government. It being my view that the 1935 Constitution is still in force, I believe Congress may still convene and pass a law calling for an election at which the Constitution proposed by the 1971 Constitutional Convention will be submitted to the people for their ratification or rejection. A plebiscite called pursuant to Section 1 of Article XV of the 1935 Constitution is an assurance to our people that we still have in our country the Rule of Law, and that the democratic system of government that has been implanted in our country by the Americans, and which has become part of our social and political fabric, is still a reality. The views that I have expressed in this opinion are inspired by a desire on my part to bring about stability in the democratic and constitutional system in our country. I feel that if this Court would give its imprimatur to the ratification of the proposed Constitution, as announced

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in Proclamation No. 1102, it being very clear that the provisions of Section 1 of Article XV of the 1935 Constitution had not been complied with, We will be opening the gates for a similar disregard of the Constitution in the future. What I mean is that if this Court now declares that a new Constitution is now in force because the members of the citizens assemblies had approved said new Constitution, although that approval was not in accordance with the procedure and the requirements prescribed in the 1935 Constitution, it can happen again in some future time that some amendments to the Constitution may be adopted, even in a manner contrary to the existing Constitution and the law, and then said proposed amendment is submitted to the people in any manner and what will matter is that a basis is claimed that there was approval by the people. There will not be stability in our constitutional system, and necessarily no stability in our government. As a member of this Court I only wish to contribute my humble efforts to prevent the happening of such a situation in the future. It appearing to me that the announced ratification of the proposed Constitution through the voting in the citizens assemblies is a clear violation of the 1935 Constitution, what I say in this opinion is simply an endeavor on my part to be true to my oath of office to defend and support the 1935 Constitution. I am inspired by what the great jurist and statesman, Jose P. Laurel, said:jgc:chanrobles.com.ph "Let our judges be as it were the vestal keepers of the purity and sanctity of our Constitution, and the protection and vindication of popular rights will be safe and secure in their reverential guardianship."cralaw virtua1aw library I only wish to help prevent, if I can, democracy and the liberties of our people from vanishing in our land, because, as Justice George Sutherland of the U. S. Supreme Court said:jgc:chanrobles.com.ph "(t)he saddest epitaph which can be carved in memory of a vanished liberty is that it was lost because its possessors failed to stretch forth a saving hand while yet there was time."cralaw virtua1aw library I concur fully with the personal views expressed by the Chief Justice in the opinion that he has written in these cases. Along with him, I vote to deny the motion to dismiss and to give due course to the petitions in these cases. FERNANDO, J., dissenting:chanrob1es virtual 1aw library No question more momentous, none impressed with such transcendental significance is likely to confront this Court in the near or distant future as that posed by these petitions. For while the specific substantive issue is the validity of Presidential Proclamation No. 1102, an adverse judgment may be fraught with consequences that, to say the least, are far-reaching in its implications. As stressed by respondents, "what petitioners really seek to invalidate is the new Constitution." 1 Strict accuracy would of course qualify such statement that what is in dispute, as noted in the opinion of the Chief Justice, goes only as far as the validity of its ratification. It could very well be though that the ultimate outcome is not confined within such limit, and this is not to deny that under its aegis, there have been marked gains in the social and economic sphere, but given the premise of continuity in a regime under a fundamental law, which itself explicitly recognizes the need for change and the process for bringing it about, 2 it seems to me that the more appropriate course is for this Court to give heed to the plea of petitioners that the most serious attention be paid to their submission that the challenged executive act fails to meet the test of constitutionality. Under the circumstances, with regret

and with due respect for the opinion of my brethren, I must perforce dissent. It would follow therefore that the legal position taken by the Chief Justice as set forth with his usual lucidity and thoroughness has, on the whole, my concurrence, subject, of course, to reservations insofar as it contains views and nuances to which I have in the past expressed doubts. Nonetheless, I feel that a brief expression of the reasons for the stand I take would not be amiss. In coping with its responsibility arising from the function of judicial review, this Court is not expected to be an oracle given to utterances of eternal verities, but certainly it is more than just a keen but passive observer of the contemporary scene. It is, by virtue of its role under the separation of powers concept, involved not necessarily as a participant in the formation of government policy, but as an arbiter of its legality. Even then, there is realism in what Lerner did say about the American Supreme Court as "the focal point of a set of dynamic forces which [could play] havoc with the landmarks of the American state and determine the power configuration of the day." 3 That is why there is this caveat. In the United States as here, the exercise of the power of judicial review is conditioned on the necessity that the decision of a case or controversy before it so requires. To repeat, the Justices of the highest tribunal are not, as Justice Frankfurter made clear, "architects of policy. They can nullify the policy of others, they are incapable of fashioning their own solutions for social problems." 4 Nonetheless, as was stressed by Professors Black 5 and Murphy, 6 a Supreme Court by the conclusion it reaches and the decision it renders does not merely check the coordinate branches, but also by its approval stamps with legitimacy the action taken. Thus in affirming constitutional supremacy, the political departments could seek the aid of the judiciary. For the assent it gives to what has been done conduces to its better support in a regime where the rule of law holds sway. In discharging such a rule, this Court must necessarily take into account not only what the exigent needs of the present demand but what may lie ahead in the unexplored and unknown vistas of the future. It must guard against the pitfall of lack of understanding of the dominant forces at work to seek a better life for all, especially those suffering from the pangs of poverty and disease, by a blind determination to adhere to the status quo. It would be tragic, and a clear case of its being recreant to its trust, if the suspicion can with reason be entertained that its approach amounts merely to a militant vigilantism that is violently opposed to any form of social change. It follows then that it does not suffice that recourse be had only to what passes for scholarship in the law that could be marred by inapplicable erudition and narrow legalism. Even with due recognition of such factors, however, I cannot, for reasons to be set more at length and in the light of the opinion of the Chief Justice, reach the same result as the majority of my brethren. For, in the last analysis, it is my firm conviction that the institution of judicial review speaks too clearly for the point to be missed that official action, even with due allowance made for the good faith that invariably inspires the step taken, has to face the gauntlet of a court suit whenever there is a proper case with the appropriate parties. 1. Respondents are acting in the soundest constitutional tradition when, at the outset, they would seek a dismissal of these petitions. For them, the question raised is political and thus beyond the jurisdiction of this Court. Such an approach cannot be indicted for unorthodoxy. It is implicit in the concept of the rule of law that rights belong to the people and that government possesses powers only. Essentially then, unless such an authority may either be predicated on express or implied grant in the Constitution or the statutes, an exercise thereof cannot survive an inquiry as to its validity. Respondents through Solicitor-General Mendoza would deny our competence to proceed further. It is their view, vigorously pressed and plausibly asserted, that since what is involved is not merely the effectivity of an amendment but the actual coming into effect of a new constitution, the matter is not justiciable. The immediate reaction is that such a contention is to be tested in the light of the fundamental

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doctrine of separation of powers that it is not only the function but the solemn duty of the judiciary to determine what the law is and to apply it in cases and controversies that call for decision. 7 Since the Constitution pre-eminently occupies the highest rung in the hierarchy of legal norms, it is in the judiciary, ultimately this Tribunal, that such a responsibility is vested. With the 1935 Constitution containing, as above noted, an explicit article on the subject of amendments, it would follow that the presumption to be indulged in is that the question of whether there has been deference to its terms is for this Court to pass upon. What is more, the Gonzales, 8 Tolentino 9 and Planas 10 cases speak unequivocally to that effect. Nor is it a valid objection to this conclusion that what was involved in those cases was the legality of the submission and not ratification, for from the very language of the controlling article, the two vital steps are proposal and ratification, which as pointed out in Dillon v. Gloss, 11 "cannot be treated as unrelated acts, but as succeeding steps in a single endeavor." 12 Once an aspect thereof is viewed as judicial, there would be no justification for considering the rest as devoid of that character. It would be for me then an indefensible retreat, deriving no justification from circumstances of weight and gravity, if this Court were to accede to what is sought by respondents and rule that the question before us is political. On this point, it may not be inappropriate to refer to a separate opinion of mine in Lansang v. Garcia. 13 Thus: "The term has been made applicable to controversies clearly non judicial and therefore beyond its jurisdiction or to an issue involved in a case appropriately subject to its cognizance, as to which there has been a prior legislative or executive determination to which deference must be paid. It has likewise been employed loosely to characterize a suit where the party proceeded against is the President or Congress, or any branch thereof. If to be delimited with accuracy, ‘political questions’ should refer to such as would under the Constitution be decided by the people in their sovereign capacity or in regard to which full discretionary authority is vested either in the Presidency or Congress. It is thus beyond the competence of the judiciary to pass upon. Unless clearly falling within the above formulation, the decision reached by the political branches whether in the form of a congressional act or an executive order could be tested in court. Where private rights are affected, the judiciary has no choice but to look into its validity. It is not to be lost sight of that such a power comes into play if there be an appropriate proceeding that may be filed only after either coordinate branch has acted. Even when the Presidency or Congress possesses plenary power, its improvident exercise or the abuse thereof, if shown, may give rise to a justiciable controversy. For the constitutional grant of authority is not usually unrestricted. There are limits to what may be done and how it is to be accomplished. Necessarily then, the courts in the proper exercise of judicial review could inquire into the question of whether or not either of the two coordinate branches has adhered to what is laid down by the Constitution. The question thus posed is judicial rather than political." 14 The view entertained by Professor Dodd is not too dissimilar. For him such a term "is employed to designate certain types of functions committed to the political organs of government (the legislative and executive departments, or either of them), and not subject to judicial investigation." 15 After a thorough study of American judicial decisions, both federal and state, he could conclude: "The field of judicial nonenforceability is important, but is not large when contrasted with the whole body of written constitutional texts. The exceptions from judicial enforceability fall primarily within the field of public or governmental interests." 16 Nor was Professor Weston’s formulation any different. As was expressed by him: "Judicial questions, in what may be thought the more useful sense, are those which the sovereign has set to be decided in the courts. Political questions, similarly, are those which the sovereign has entrusted to the so called political departments of government or has reserved to be settled by its own extra-governmental action." 17 What appears undeniable then both from the standpoint of Philippine as well as American decisions is the care and circumspection required before the conclusion is warranted that the matter at

issue is beyond judicial cognizance, a political question being raised. 2. The submission of respondents on this subject of political question, admittedly one of complexity and importance, deserves to be pursued further. They would derive much aid and comfort from the writings of both Professor Bickel 18 of Yale and Professor Freund 19 of Harvard, both of whom in turn are unabashed admirers of Justice Brandeis. Whatever be the merit inherent in their lack of enthusiasm for a more active and positive role that must be played by the United States Supreme Court in constitutional litigation, it must be judged in the light of our own history. It cannot be denied that from the well nigh four decades of constitutionalism in the Philippines, even discounting an almost similar period of time dating from the inception of American sovereignty, there has sprung a tradition of what has been aptly termed as judicial activism. Such an approach could be traced to the valedictory address before the 1935 Constitutional Convention of Claro M. Recto. He spoke of the trust reposed in the judiciary in these words: "It is one of the paradoxes of democracy that the people at times place more confidence in instrumentalities of the State other than those directly chosen by them for the exercise of their sovereignty." 20 It would thus appear that even then this Court was expected not to assume an attitude of timidity and hesitancy when a constitutional question is posed. There was the assumption of course that it would face up to such a task, without regard to political considerations and with no thought except that of discharging its trust. Witness these words of Justice Laurel in an early landmark case, People v. Vera, 21 decided in 1937: "If it is ever necessary for us to make any vehement affirmance during this formative period of our political history, it is that we are independent of the Executive no less than of the Legislative department of our government — independent in the performance of our functions, undeterred by any consideration, free from politics, indifferent to popularity, and unafraid of criticism in the accomplishment of our sworn duty as we see it and as we understand it." 22 The hope of course was that such assertion of independence and impartiality was not mere rhetoric. That is a matter more appropriately left to others to determine. It suffices to state that what elicits approval on the part of our people of a judiciary ever alert to inquire into alleged breaches of the fundamental law is the realization that to do so is merely to do what is expected of it and that thereby there is no invasion of spheres appropriately belonging to the political branches. For it needs to be kept in kind always that it can act only when there is a suit with proper parties before it, wherein rights appropriate for judicial enforcement are sought to be vindicated. Then, too, it does not approach constitutional questions with dogmatism or apodictic certainty nor view them from the shining cliffs of perfection. This is not to say though that it is satisfied with an empiricism untroubled by the search for jural consistency and rational coherence. A balance has to be struck. So juridical realism requires. Once allowance is made that for all its care and circumspection this Court is manned by human beings fettered by fallibility, but nonetheless earnestly and sincerely striving to do right, the public acceptance of its vigorous pursuit of the task of assuring that the Constitution be obeyed is easy to understand. It has not in the past shirked its responsibility to ascertain whether there has been compliance with and fidelity to constitutional requirements. Such is the teaching of a host of cases from Angara v. Electoral Commission 23 to Planas v. Commission on Elections. 24 It should not start now. It should continue to exercise its jurisdiction, even in the face of a plausible but not sufficiently persuasive insistence that the matter before it is political. Nor am I persuaded that the reading of the current drift in American legal scholarship by the Solicitor-General and his equally able associates presents the whole picture. On the question of judicial review, it is not a case of black and white; there are shaded areas. It goes too far, in my view, if the perspective is one of dissatisfaction, with its overtones of distrust. This expression of disapproval has not escaped Dean Rostow of Yale, who began one of his most

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celebrated legal essays. The Democratic Character of Judicial Review, thus: "A theme of uneasiness, and even of guilt, colors the literature about judicial review. Many of those who have talked, lectured, and written about the Constitution have been troubled by a sense that judicial review is undemocratic." 25 He went on to state: "Judicial review, they have urged, is an undemocratic shoot on an otherwise respectable tree. It should be cut off, or at least kept pruned and inconspicuous." 26 His view was precisely the opposite. Thus: "The power of constitutional review, to be exercised by some part of the government, is implicit in the conception of a written constitution delegating limited powers. A written constitution would promote discord rather than order in society if there were no accepted authority to construe it, at the least in cases of conflicting action by different branches of government or of constitutionally unauthorized governmental action against individuals. The limitation and separation of powers, if they are to survive, require a procedure for independent mediation and construction to reconcile the inevitable disputes over the boundaries of constitutional power which arise in the process of government." 27 More than that, he took pains to emphasize: "Whether another method of enforcing the Constitution could have been devised, the short answer is that no such method has developed. The argument over the constitutionality of judicial review has long since been settled by history. The power and duty of the Supreme Court to declare statutes or executive action unconstitutional in appropriate cases is part of the living Constitution.’The course of constitutional history,’ Mr. Justice Frankfurter recently remarked, ‘has cast responsibilities upon the Supreme Court which it would be "stultification" for it to evade." 28 or is it only Dean Rostow who could point to Fraukfurter, reputed to belong to the same school of thought opposed to judicial activism, if not its leading advocate during his long stay in the United States Supreme Court, as one fully cognizant of the stigma that attaches to a tribunal which neglects to meet the demands of judicial review. There is a statement of similar import from Professor Mason: "In Stein v. New York Frankfurter remarked, somewhat self-consciously perhaps, that the ‘duty of deference cannot be allowed imperceptibly to slide into abdication.’" 29 Professor Konefsky, like Dean Rostow, could not accept the characterization of judicial review as undemocratic. Thus in his study of Holmes and Brandeis, the following appears: "When it is said that judicial review is an undemocratic feature of our political system, it ought also to be remembered that the architects of that system did not equate constitutional government with unbridled majority rule. Out of their concern for political stability and security for private rights, . . ., they designed a structure whose keystone was to consist of barriers to the untrammeled exercise of power by any group. They perceived no contradiction between effective government and constitutional cheeks. To James Madison, who may legitimately be regarded as the philosopher of the Constitution, the scheme of mutual restraints was the best answer to what he viewed as the chief problem in erecting a system of free representative government: ‘In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.’" 30 There is thus an inevitability to the flowering of judicial review. Could it be that the tone of discontent apparent in the writings of eminent authorities on the subject evince at the most fears that the American Supreme Court might overstep the bounds allotted to the judiciary? It cannot be a denial of the fitness of such competence being vested in judges and of their being called upon to fulfill such a trust whenever appropriate to the decision of a case before them. That is why it has been correctly maintained that notwithstanding the absence of any explicit provision in the fundamental law of the United States Constitution, that distinguished American constitutional historian, Professor Corwin, could rightfully state that judicial review "is simply incidental to the power of courts to interpret the law, of which the Constitution is part, in connection with the decision of cases." 31 This is not to deny that there are those who would place the blame or the credit, depending upon one’s predilection, on Marshall’s epochal

opinion in Marbury v. Madison. 32 Curtis belonged to that persuasion. As he put it: "The problem was given no answer by the Constitution. A hole was left where the Court might drive in the peg of judicial supremacy, if it could. And that is what John Marshall did." 33 At any rate there was something in the soil of American juristic thought resulting in this tree of judicial power so precariously planted by Marshall striking deep roots and showing wonderful vitality and hardiness. It now dominates the American legal scene. Through it, Chief Justice Hughes, before occupying that exalted position, could state in a lecture: "We are under a Constitution, but the Constitution is what the judges say it is . . ." 34 The above statement is more than just an aphorism that lends itself to inclusion in judicial anthologies or bar association speeches. It could and did provoke from Justice Jackson, an exponent of the judicial restraint school thought, this meaningful query: "The Constitution nowhere provides that it shall be what the judges say it is. How, then, did it come about that the statement not only could be made but could become current as the most understandable and comprehensive summary of American constitutional law?" 35 It is no wonder that Professor Haines could pithily and succinctly sum up the place of the highest American tribunal in the scheme of things in this wise: "The Supreme Court of the United States has come to be regarded as the unique feature of the American governmental system." 36 Let me not be misunderstood. There is here no attempt to close one’s eyes to a discernible tendency on the part of some distinguished faculty minds to look askance at what for them may be inadvisable extension of judicial authority. For such indeed is the case as reflected in two leading cases of recent vintage, Baker v. Carr, 37 decided in 1962 and Powell v. MacCormack, 38 in 1969, both noted in the opinion of the Chief Justice. The former disregarded the warning of Justice Frankfurter in Colegrove v. Green 39 about the American Supreme Court declining jurisdiction on the question of apportionment as to do so "would cut very deep into the very being of Congress." 40 For him, the judiciary "ought not to enter this political thicket." Baker has since then been followed; it has spawned a host of cases. 41 Powell, on the question of the power of a legislative body to exclude from its ranks a person whose qualifications are uncontested, for many the very staple of what is essentially political, certainly goes even further than the authoritative Philippine decision of Vera v. Avelino, 42 It does look then that even in the United States, the plea for judicial self-restraint, even if given voice by those competent in the field of constitutional law, has fallen on deaf ears. There is in the comments of respondents an excerpt from Professor Freund quoting from one of his essays appearing in a volume published in 1968. It is not without interest to note that in another paper, also included therein, he was less than assertive about the necessity for self-restraint and apparently mindful of the claims of judicial activism. Thus: "First of all, the Court has a responsibility to maintain the constitutional order, the distribution of public power, and the limitations on that power." 43 As for Professor Bickel, it has been said that as counsel for the New York Times in the famous Vietnam papers case, 44 he was less than insistent on the American Supreme Court exercising judicial self restraint. There are signs that the contending forces on such question, for some an unequal contest, are now quiescent. The fervor that characterized the expression of their respective points of view appears to have been minimized. Not that it is to be expected that it will entirely disappear, considering how dearly cherished are, for each group, the convictions, prejudices one might even say, entertained. At least what once was fitly characterized as the booming guns of rhetoric, coming from both directions, have been muted. Of late, scholarly disputations have been centered on the standards that should govern the exercise of the power of judicial review. In his celebrated Holmes lecture in 1959 at the Harvard Law School, Professor Wechsler advocated as basis for decision what he termed neutral principles of constitutional law. 45 It has brought forth a plethora of law review articles, the reaction ranging from guarded conformity to caustic criticism. 46 There was, to be sure, no clear call to a court in effect abandoning the responsibility incumbent on it to keep governmental agencies within constitutional channels. The matter has been put in temperate terms by Professor Frank

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

for more than eight consecutive years, 55 and creating an independent Commission on Elections. 56 Again, it was expressly provided that the election "shall be conducted in conformity with the provisions of the Election Code in so far as the same may be applicable." 57 The approval of the present parity amendment was by virtue of a Republic Act 58 which specifically made applicable the then Election Code. 59 There is a similar provision in the legislation, 60 which in cotemplation of the 1971 Constitutional Convention, saw to it that there be an increase in the membership of the House of Representatives to a maximum of one hundred eighty and assured the eligibility of senators and representatives to become members of such constituent body without forfeiting their seats, as proposed amendments to be voted on in the 1967 elections. 61 That is the consistent course of interpretation followed by the legislative branch. It is most persuasive, if not controlling. The restraints thus imposed would set limits to the Presidential action taken, even on the assumption that either as an agent of the Constitutional Convention or under his martial law prerogatives, he was not devoid of power to specify the mode of ratification. On two vital points, who can vote and how they register their will, Article XV had been given a definitive construction. That is why I fail to see sufficient justification for this Court affixing the imprimatur of its approval on the mode employed for the ratification of the revised Constitution as reflected in Proclamation No. 1102. 4. Nor is the matter before us solely to be determined by the failure to comply with the requirements of Article XV. Independently of the lack of validity of the ratification of the new Constitution, if it be accepted by the people, in whom sovereignty resides according to the Constitution, 62 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." 63 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." 64 From them, as Corwin did stress, emanate "the highest possible embodiment of human will," 65 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.

September, 1890. By April, 1891, it completed a draft of a constitution, submitted it to a popular vote, and then adjourned until September following. Its work was approved by a majority. When the convention reassembled, the delegates made numerous changes in the instrument. As thus amended, it was promulgated by the convention of September 28, 1891, as the new constitution. An action was brought to challenge its validity. It failed in the lower court. In affirming such judgment dismissing the action, Chief Justice Holt stated: "If a set of men, not selected by the people according to the forms of law, were to formulate an instrument and declare it the constitution, it would undoubtedly be the duty of the courts to declare its work a nullity. This would be revolution, and this the courts of the existing government must resist until they are overturned by power, and a new government established. The convention, however, was the offspring of law. The instrument which we are asked to declare invalid as a constitution has been made and promulgated according to the forms of law. It is a matter of current history that both the executive and legislative branches of the government have recognized its validity as a constitution, and are now daily doing so . . . While the judiciary should protect the rights of the people with great care and jealousy, because this is its duty, and also because, in times of great popular excitement, it is usually their last resort, yet it should at the same time be careful not to overstep the proper bounds of its power, as being perhaps equally dangerous; and especially where such momentous results might follow as would be likely in this instance, if the power of the judiciary permitted, and its duty requires, the overthrow of the work of the convention." 67 In Taylor v. Commonwealth, 68 a 1903 decision, it was contended that the Virginia Constitution proclaimed in 1902 is invalid as it was ordained and promulgated by the convention without being submitted for ratification or rejection by the people. The Court rejected such a view. As stated in the opinion of Justice Harrison: "The Constitution of 1902 was ordained and proclaimed by a convention duly called by direct vote of the people of the state to revise and amend the Constitution of 1869. The result of the work of the convention has been recognized, accepted, and acted upon as the only valid Constitution of the state by the Governor in swearing fidelity to it and proclaiming it, as directed thereby; by the Legislature in its formal official act adopting a joint resolution, July 15, 1902, recognizing the Constitution ordained by the convention which assembled in the city of Richmond on the 12th day of June, 1901, as the Constitution of Virginia; by the individual oaths of its members to support it, and by enforcing its provisions; and by the people in their primary capacity by peacefully accepting it and quiescing in it, by registering as voters under it to the extent of thousands throughout the state, and by voting, under its provisions, at a general election for their representatives in the Congress of the United States. The Constitution having been thus acknowledged and accepted by the officers administering the government and by the people of the state, and there being no government in existence under the Constitution of 1869 opposing or denying its validity, we have no difficulty in holding that the Constitution in question, which went into effect at noon on the 10th day of July, 1902, is the only rightful, valid, and existing Constitution of this state, and that to it all the citizens of Virginia owe their obedience and loyal allegiance." 69

There are American State decisions that enunciate such a doctrine. While certainly not controlling, they are not entirely bereft of persuasive significance. In Miller v. Johnson, 66 decided in 1892, it was set forth in the opinion of Chief Justice Holt that on May 3, 1890, an act was passed in Kentucky, providing for the calling of a convention for the purpose of framing a new constitution and the election of delegates. It provided that before any form of constitution made by them should become operative, it should be submitted to the voters of the state and ratified by a majority of those voting. The constitution then in force authorized the legislature, the preliminary steps having been taken, to call a convention "for the purpose of readopting, amending, or changing" it but contained no provision giving the legislature the power to require a submission of its work to a vote of the people. The convention met in

It cannot be plausibly asserted then that premises valid in law are lacking for the claim that the revised Constitution has been accepted by the Filipino people. What is more, so it has been argued, it is not merely a case of its being implied. Through the Citizens Assemblies, there was a plebiscite with the result as indicated in Proclamation No. 1102. From the standpoint of respondents then, they could allege that there was more than just mere acquiescence by the sovereign people. Its will was thus expressed formally and unmistakably. It may be added that there was nothing inherently objectionable in the informal method followed in ascertaining its preference. Nor is the fact that Filipinos of both sexes above the age of fifteen were given the opportunity to vote to be deplored. The greater the base of mass participation, the more there is fealty to the democratic concept. It does logically follow likewise that all such

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circumstances being conceded, then no justiciable question may be raised. This Court is to respect what had thus received the people’s sanction. That is not for me though the whole of it. Further scrutiny even then is not entirely foreclosed. There is still an aspect that is judicial, an inquiry may be had as to whether such indeed was the result. This is no more than what the courts do in election cases. There are other factors to bear in mind. The fact that the President so certified is well-nigh conclusive. There is in addition the evidence flowing from the conditions of peace and stability. There thus appears to be conformity to the existing order of things. The daily course of events yields such a conclusion. What is more, the officials under the 1935 Constitution, including practically all Representatives and a majority of the Senators, have signified their assent to it. The thought persists, however, that as yet sufficient time has not elapsed to be really certain. Nor is this all. There is for me an obstacle to the petitions being dismissed for such ascertainment of popular will did take place during a period of martial law. It would have been different had there been that freedom of debate with the least interference, thus allowing a free market of ideas. If it were thus, it could be truly said that there was no barrier to liberty of choice. It would be a clear-cut decision either way. One could be certain as to the fact of the acceptance of the new or of adherence to the old. This is not to deny that votes are cast by individuals with their personal concerns uppermost in mind, worried about their immediate needs and captive to their existing moods. That is inherent in any human institution, much more so in a democratic polity. Nor is it open to any valid objection because in the final analysis the state exists for the individuals who in their collectivity compose it. Whatever be their views, they are entitled to respect. It is difficult for me, however, at this stage to feel secure in the conviction that they did utilize the occasion afforded to give expression to what was really in their hearts. This is not to imply that such doubt could not be dispelled by evidence to the contrary. If the petitions be dismissed however, then such opportunity is forever lost. 5. With the foregoing legal principles in mind, I find myself unable to join the ranks of my esteemed brethren who vote for the dismissal of these petitions. I cannot yield an affirmative response to the plea of respondents to consider the matter closed, the proceedings terminated once and for all. It is not an easy decision to reach. It has occasioned deep thought and considerable soul-searching. For there are countervailing considerations that exert a compulsion not easy to resist. It can be asserted with truth, especially in the field of social and economic rights, that with the revised Constitution, there is an auspicious beginning for further progress. Then too it could resolve what appeared to be the deepening contradictions of political life, reducing at times governmental authority to near impotence and imparting a sense of disillusionment in democratic processes. It is not too much to say therefore that there had indeed been the revision of a fundamental law to vitalize the very values out of which democracy grows. It is one which has all the earmarks of being responsive to the dominant needs of the times. It represents an outlook cognizant of the tensions of a turbulent era that is the present. That is why for some what was done represented an act of courage and faith, coupled with the hope that the solution arrived at is a harbinger of a bright and rosy future. It is such a comfort then that even if my appraisal of the situation had commanded a majority, there is not, while these lawsuits are being further considered, the least interference with the executive department. The President in the discharge of all his functions is entitled to obedience. He remains the commander-in-chief with all the constitutional power it implies. Public officials can go about their accustomed tasks in accordance with the revised Constitution. They can pursue the even tenor of their ways. They are free to act according to its tenets. That was so these past few weeks, even after that petitions were filed. There was

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not at any time any thought of any restraining order. So it was before. That is how things are expected to remain even if the motions to dismiss were not granted. It might be asked though, suppose the petition should prevail? What then? Even so, the decision of this Court need not be executory right away. Such a disposition of a cast before this Court is not novel. That was how it was done in the Emergency Powers Act controversy. 70 Once compliance is had with the requirements of Article XV of the 1935 Constitution, to assure that the coming force of the revised charter is free from any taint of infirmity, then all doubts are set at rest. For some, to so view the question before us is to be caught in a web of unreality, to cherish illusions that cannot stand the test of actuality. What is more, it may give the impression of reliance on what may, for the practical man of affairs, be no more than gossamer distinctions and sterile refinements unrelated to events. That may be so, but I find it impossible to transcend what for me are the implications of traditional constitutionalism. This is not to assert that an occupant of the bench is bound to apply with undeviating rigidity doctrines which may have served their day. He could at times even look upon them as mere scribblings in the sands to be washed away by the advancing tides of the present. The introduction of novel concepts may be carried only so far though. As Cardozo put the matter: "The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life.’ Wide enough in all conscience is the field of discretion that remains." 71 Moreover what made it difficult for this Court to apply settled principles, which for me have not lost their validity, is traceable to the fact that the revised Constitution was made to take effect immediately upon ratification. If a period of time were allowed to elapse precisely to enable the judicial power to be exercised, no complication would have arisen. Likewise, had there been only one or two amendments, no such problem would be before us. That is why I do not see sufficient justification for the orthodoxies of constitutional law not to operate. Even with full realization then that the approach pursued is not all that it ought to have been and the process of reasoning not without its shortcomings, the basic premises of a constitutional democracy, as I understand them and as set forth in the preceding pages, compel me to vote the way I did. TEEHANKEE, J., dissenting:chanrob1es virtual 1aw library The masterly opinion of the Chief Justice wherein he painstakingly deals with the momentous issues of the cases at bar in all their complexity commands my concurrence. I would herein make an exposition of the fundamental reasons and considerations for my stand. The unprecedented and precedent-setting issue submitted by petitioners for the Court’s resolution is the validity and constitutionality of Presidential Proclamation No. 1102 issued on January 17, 1973, certifying and proclaiming that the Constitution proposed by the 1971 Constitutional Convention "has been ratified by an overwhelming majority of all the votes cast by the members of all the Barangays (Citizens Assemblies) throughout the Philippines, and has thereby come into effect."cralaw virtua1aw library More specifically, the issue submitted is whether the purported ratification of the proposed Constitution by means of the Citizens Assemblies has substantially complied with the mandate

of Article XV of the existing Constitution of 1935 that duly proposed amendments thereto, in toto or parts thereof, "shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification." 1 A necessary corollary issue is whether the purported ratification of the proposed Constitution as signed on November 30, 1972 by the 1971 Constitutional Convention may be said also to have substantially complied with its own mandate that" (T)his Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called for the purpose and except as herein provided, shall supersede the Constitution of Nineteen hundred and thirty-five and all amendments thereto." 2 Respondents contend that" (A)lthough apparently what is sought to be annulled is Proclamation No. 1102, what petitioners really seek to invalidate is the new Constitution", and their actions must be dismissed, because:chanrob1es virtual 1aw library — "the Court may not inquire into the validity of the procedure for ratification" which is "political in character" and that what is sought to be invalidated is not an act of the President but of the people:chanrob1es virtual 1aw library —" (T)he fact of approval of the new Constitution by an overwhelming majority of the votes cast as declared and certified in Proclamation No. 1102 is conclusive on the courts; — "Proclamation No. 1102 was issued by the President in the exercise of legislative power under martial law . . . Alternatively, or contemporaneously, he did so as ‘agent’ of the Constitutional Convention;" — "alleged defects, such as absence of secret voting, enfranchisement of persons less than 21 Years, non supervision (by) the Comelec are matters not required by Article XV of the 1935 Constitution" ; (sic) — "after ratification, whatever defects there might have been in the procedure are overcome and mooted (and muted) by the fact of ratification" ; and —" (A)ssuming finally that Article XV of the 1935 Constitution was not strictly followed, the ratification of the new Constitution must nonetheless be respected. For the procedure outlined in Article XV was not intended to be exclusive of other procedures, especially one which contemplates popular and direct participation of the citizenry . . ." 3 To test the validity of respondents’ submittal that the Court, in annulling Proclamation No. 1102 would really be "invalidating the new Constitution", the terms and premises of the issues have to be defined.

binding upon the Convention and the other departments of the government. It must be added that . . . they are no less binding upon the people." 7 — In the same Tolentino case, this Court further proclaimed that "as long as any amendment is formulated and submitted under the aegis of the present Charter, any proposal for such amendment which is not in conformity with the letter, spirit and intent of the Charter for effecting amendments, cannot receive the sanction of this Court." 8 — As continues to be held by a majority of this Court, proposed amendments to the Constitution "should be ratified in only one way, that is, in an election or plebiscite held in accordance with law and participated in only by qualified and duly registered voters" 9 and under the supervision of the Commission on Elections. 10 — Hence, if the Court declares Proclamation 1102 null and void because on its face, the purported ratification of the proposed Constitution has not faithfully nor substantially observed nor complied with the mandatory requirements of Article XV of the (1935) Constitution, it would not he "invalidating" the proposed new Constitution but would be simply declaring that the announced fact of ratification thereof by means of the Citizens Assemblies referendums does not pass the constitutional test and that the proposed new Constitution has not constitutionally come into existence. — Since Proclamation 1102 is acknowledged by respondent to be "plainly merely declaratory" of the disputed fact of ratification, they cannot assume the very fact to be established and beg the issue by citing the self-same declaration as proof of the purported ratification therein declared. What complicates the cases at bar is the fact that the proposed 1972 Constitution was enforced as having immediately taken effect upon the issuance on January 17, 1973 of Proclamation 1102 and the question of whether "confusion and disorder in government affairs would (not) result" from a judicial declaration of nullity of the purported ratification is raised by the Solicitor-General on behalf of respondents. A comparable precedent of great crisis proportions is found in the Emergency Powers cases, 11 wherein the Court in its Resolution of September 16, 1949 after judgment was initially not obtained on August 26, 1949 for lack of the required six (6) votes, finally declared in effect that the pre-war emergency powers delegated by Congress to the President, under Commonwealth Act 671 in pursuance of Article VI, section 26 of the Constitution, had ceased and became inoperative at the latest in May, 1946 when Congress met in its first regular session on May 25, 1946.

— The measure of the fact of ratification is Article XV of the 1935 Constitution. This has been consistently held by the Court in the Gonzales: 5 and Tolentino 6 cases.

Then Chief Justice Manuel V. Moran recited the great interests and important rights that had arisen under executive orders "issued in good faith and with the best of intentions by three successive Presidents, and some of them may have already produced extensive effects on the life of the nation" — in the same manner as may have arisen under the bona fide acts of the President now in the honest belief that the 1972 Constitution had been validly ratified by means of the Citizens Assemblies referendums — and indicated the proper course and solution therefor, which were duly abided by and confusion and disorder as well as harm to public interest and innocent parties thereby avoided as follows:jgc:chanrobles.com.ph

— In the Tolentino case, this Court emphasized "that the provisions of Section 1 of Article XV of the Constitution, dealing with the procedure or manner of amending the fundamental law are

"Upon the other hand, while I believe that the emergency powers had ceased in June 1945, I am not prepared to hold that all executive orders issued thereafter under Commonwealth Act

— Respondents themselves assert that "Proclamation No. 1102 . . . is plainly merely declaratory of the fact that the 1973 Constitution has been ratified and has come into force." 4

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No. 671, are per se null and void. It must he borne in mind that these executive orders had been issued in good faith and with the best of intentions by three successive Presidents, and some of them may have already produced extensive effects in the life of the nation. We have, for instance, Executive Order No. 73, issued on November 12, 1945, appropriating the sum of P6,750,000 for public works; Executive Order No. 86, issued on January 7, 1946, amending a previous order regarding the organization of the Supreme Court; Executive Order No. 89, issued on January 1, 1946, reorganizing the Courts of First Instance; Executive Order No. 184, issued on November 19, 1948, controlling rice and palay to combat hunger; and other executive orders appropriating funds for other purposes. The consequences of a blanket nullification of all these executive orders will be unquestionably serious and harmful. And I hold that before nullifying them, other important circumstances should be inquired into, as for instance, whether or not they have been ratified by Congress expressly or impliedly, whether their purposes have already been accomplished entirely or partially, and in the last instance, to what extent; acquiescence of litigants; de facto officers; acts and contracts of parties acting in good faith; etc. It is my opinion that each executive order must be viewed in the light of its peculiar circumstances, and , if necessary and possible, before nullifying it, precautionary measures should be taken to avoid harm to public interest and innocent parties." 12 Initially, then Chief Justice Moran voted with a majority of the Court to grant the Araneta and Guerrero petitions holding null and void the executive orders on rentals and export control but to defer judgment on the Rodriguez and Barredo petitions for judicial declarations of nullity of the executive orders appropriating the 1949-1950 fiscal year budget for the government and P6 million for the holding of the 1949 national elections. After rehearing, he further voted to also declare null and void the last two executive orders appropriating funds for the 1949 budget and elections, completing the "sufficient majority" of six against four dissenting justices "to pronounce a valid judgment on that matter." 13 Then Chief Justice Moran, who penned the Court’s majority resolution, explained his vote for annulment despite the great difficulties and possible "harmful consequences" in the following passage, which bears re-reading:jgc:chanrobles.com.ph "However, now that the holding of a special session of Congress for the purpose of remedying the nullity of the executive orders in question appears remote and uncertain, I am compelled to, and do hereby, give my unqualified concurrence in the decision penned by Mr. Justice Tuason declaring that these two executive orders were issued without authority of law. "While in voting for a temporary deferment of the judgment I was moved by the belief that positive compliance with the Constitution by the other branches of the Government, which is our prime concern in all these cases, would be effected, and indefinite deferment will produce the opposite result because it would legitimize a prolonged or permanent evasion of our organic law. Executive orders which are, in our opinion, repugnant to the Constitution, would be given permanent life, opening the way or practices which may undermine our constitutional structure. "The harmful consequences which, as I envisioned in my concurring opinion, would come to pass should the said executive orders by immediately declared null and void are still real. They have not disappeared by reason of the fact that a special session of Congress is not now forthcoming. However, the remedy now lies in the hands of the Chief Executive and of Congress, for the Constitution vests in the former the power to call a special session should the need for one arise, and in the latter, the power to pass a valid appropriations act. "That Congress may again fail to pass a valid appropriation act is a remote possibility, for under

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the circumstances is fully realizes its great responsibility of saving the nation from breaking down; and furthermore, the President in the exercise of his constitutional powers may, if he so desires, compel Congress to remain in special session till it approves the legislative measures most needed by the country. "Democracy is on trial in the Philippines, and surely it will emerge victorious as a permanent way of life in this country, if each of the great branches of the Government, within its own allocated sphere, complies with its own constitutional duty, uncompromisingly and regardless of difficulties. "Our Republic is still young, and the vital principles underlying its organic structure should be maintained firm and strong, hard as the best of steel, so as to insure its growth and development along solid lines of a stable and vigorous democracy." 14 The late Justice Pedro Tuason who penned the initial majority judgment (declaring null and void the rental and export control executive orders) likewise observed that" (T)he truth is that under our concept of constitutional government, in times of extreme perils more than in normal circumstances ‘the various branches, executive, legislative, and judicial,’ given the ability to act, are called upon ‘to perform the duties and discharge the responsibilities committed to them respectively.’" 15 It should be duly acknowledged that the Court’s task of discharging its duty and responsibility has been considerably lightened by the President’s public manifestation of adherence to constitutional processes and of working within the proper constitutional framework as per his press conference of January 20, 1973, wherein he stated that" (T)he Supreme Court is the final arbiter of the Constitution. It can and will probably determine the validity of this Constitution. I did not want to talk about this because actually there is a case pending before the Supreme Court. But suffice it to say that I recognize the power of the Supreme Court. With respect to appointments, the matter falls under a general provision which authorizes the Prime Minister to appoint additional members to the Supreme Court. Until the matter of the new Constitution is decided, I have no intention of utilizing that power." 16 Thus, it is that as in an analogous situation wherein the state Supreme Court of Mississippi held that the questions of whether the submission of the proposed constitutional amendment of the State Constitution providing for an elective, instead of an appointive, judiciary and whether the proposition was in fact adopted, were justiciable and not political questions, we may echo the words therein of Chief Justice Whitfield that" (W)e do not seek a jurisdiction not imposed upon us by the Constitution. We could not, if we would, escape the exercise of that jurisdiction which the Constitution has imposed upon us. In the particular instance in which we are now acting, our duty to know what the Constitution of the state is, and in accordance with our oaths to support and maintain it in its integrity, imposed on us a most difficult and embarrassing duty, one which we have not sought, but one which, like all others, must be discharged.’" 17 In confronting the issues at bar, then, with due regard for my colleagues’ contrary views, we are faced with the hard choice of maintaining a firm and strict — perhaps, even rigid — stand that the Constitution is a "superior paramount law, unchangeable by ordinary means" save in the particular mode and manner prescribed therein by the people, who, in Cooley’s words, so "tied up (not only) the hands of their official agencies, but their own hands as well" 18 in the exercise of their sovereign will or a liberal and flexible stand that would consider compliance with the constitutional article on the amending process as merely directory rather than

mandatory. The first choice of a strict stand, as applied to the cases at bar, signifies that the Constitution may be amended in toto or otherwise exclusively "by approval by a majority of the votes cast an election at which the amendments are submitted to the people for their ratification", 19 participated in only by qualified and duly registered voters twenty-one years of age or over 20 and duly supervised by the Commission on Elections, 21 in accordance with the cited mandatory constitutional requirements. The alternative choice of a liberal stand would permit a disregard of said requirements on the theory urged by respondents that "the procedure outlined in Article XV was not intended to be exclusive of other procedures especially one which contemplates popular and direct participation of the citizenry", 22 that the constitutional age and literacy requirements and other statutory safeguards for ascertaining the will of the majority of the people may likewise be changed as "suggested, if not prescribed, by the people (through the Citizens Assemblies) themselves", 23 and that the Comelec is constitutionally "mandated to oversee . . . elections (of public officers) and not plebiscites." 24 To paraphrase U.S. Chief Justice John Marshall who first declared in the historic 1803 case of Marbury v. Madison 25 the U.S. Supreme Court’s power of judicial review and to declare void laws repugnant to the Constitution, there is no middle ground between these two alternatives. As Marshall expounded it:" (T)he Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act, contrary to the Constitution, is not law; if the latter part be true, then written constitutions are absurd attempts on the part of a people, to limit a power, in its own nature, illimitable."cralaw virtua1aw library

the "climactic phrase," 28 "we must never forget that it is a constitution we are expounding," — termed by Justice Frankfurter as "the single most important utterance in the literature of constitutional law — most important because most comprehensive and comprehending." 29 This enduring concept to my mind permeated this Court’s exposition and rationale in the hallmark case of Tolentino, wherein we rejected the contentions on the Convention’s behalf "that the issue . . . is a political question and that the Convention being a legislative body of the highest order is sovereign, and as such, its acts impugned by petitioner are beyond the control of Congress and the Courts." 30 This Court therein made its unequivocal choice of strictly requiring faithful (which really includes substantial) compliance with the mandatory requirements of the amending process. 1. In denying reconsideration of our judgment of October 16, 1971 prohibiting the submittal in an advance election of the 1971 Constitutional Convention’s Organic Resolution No. 1 proposing to amend Article V, section 1 of the Constitution by lowering the voting age to 18 years (vice 21 years) 30a "without prejudice to other amendments that will be proposed in the future . . . on other portions of the amended section", this Court stated that "the constitutional provision in question (as proposed) presents no doubt which may be resolved in favor of respondents and intervenors. We do not believe such doubt can exist only because it is urged that the end sought to be achieved is to be desired. Paraphrasing no less than the President of the Constitutional Convention of 1934, Claro M. Recto, let those who would put aside, invoking grounds at best controversial, any mandate of the fundamental law purportedly in order to attain some laudable objective bear in mind that someday somehow others with purportedly more laudable objectives may take advantage of the precedent and continue the destruction of the Constitution, making those who laid down the precedent of justifying deviations from the requirements of the Constitution the victims of their own fully." 31 2. This Court held in Tolentino that:jgc:chanrobles.com.ph

As was to be restated by Justice Jose P. Laurel a century and a third later in the 1936 landmark case of Angara v. Electoral Commission, 26" (T)he Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels, for then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere political apothegms. Certainly, the limitations of good government and restrictions embodied in our Constitution are real as they should be in any living Constitution."cralaw virtua1aw library Justice Laurel pointed out that in contrast to the United States Constitution, the Philippine Constitution as "a definition of the powers of government" placed upon the judiciary the great burden of "determining the nature, scope and extent of such powers" and stressed that "when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments . . . but only asserts the solemn and sacred obligation entrusted to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which the instrument secures and guarantees to them."cralaw virtua1aw library II

Marshall was to utter much later in the equally historic 1819 case of McCulloch v. Maryland 27

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". . . as to matters not related to its internal operation and the performance of its assigned mission to propose amendments to the Constitution, the Convention and its officers and members are all subject to all the provisions of the existing Constitution. Now We hold that even as to its latter task of proposing amendments to the Constitution, it is subject to the provisions of Section 1 of Article XV. This must be so, because it is plain to Us that the framers of the Constitution took care that the process of amending the same should not be undertaken with the same ease and facility in changing an ordinary legislation. Constitution making is the most valued power, second to none, of the people in a constitutional democracy such as the one our founding fathers have chosen for this nation, and which we of the succeeding generations generally cherish. And because the Constitution affects the lives, fortunes, future and every other conceivable aspect of the lives of all the people within the country and those subject to its sovereignty, every degree of care is taken in preparing and drafting it. A constitution worthy of the people for deliberation and study. It is obvious that correspondingly, any amendment of the Constitution is of no less importance than the whole Constitution itself, and perforce must be conceived and prepared with as much care and deliberation. From the very nature of things, the drafters of an original constitution, as already observed earlier, operate without any limitations, restraints or inhibitions save those that they may impose upon themselves. This is not necessarily true of subsequent conventions called to amend the original constitution. Generally, the framers of the latter see to it that their handwork is not lightly treated and as easily mutilated or changed, not only for reasons purely personal but more importantly, because written constitutions are supposed to be designed so as to last for some time, if not for ages, or for, at least, as long as they can be

adopted to the needs and exigencies of the people, hence, they must be insulated against precipitate and hasty actions motivated by more or less passing political moods or fancies. Thus, as a rule, the original constitutions carry with them limitations and conditions, more or less stringent, made so in the people themselves, in regard to the process of their amendment. And when such limitations or conditions are so incorporated in the original constitution, it does not lie in the delegates of any subsequent convention to claim that they may ignore and disregard such conditions because they are as powerful and omnipotent as their original counterparts." 32 3. This Court in Tolentino likewise formally adopted the doctrine of proper submission first advanced in Gonzales v. Comelec 33 , thus:jgc:chanrobles.com.ph "We are certain no one can deny that in order that a plebiscite for the ratification of an amendment to the Constitution may be validly held, it must provide the voter not only sufficient time but ample basis for an intelligent appraisal of the nature of the amendment per se as well as its relation to the other parts of the Constitution with which it has to form a harmonious whole. In the context of the present state of things, where the Convention has hardly started considering the merits of hundreds, if not thousands, proposals to amend the existing Constitution, to present to the people any single proposal or a few of them cannot comply with this requirement. We are of the opinion that the present Constitution does not contemplate in Section 1 of Article XV a plebiscite or election’ wherein the people are in the dark as to frame of reference they can base their judgment on. We reject the rationalization that the present Constitution is a possible frame of reference, for the simple reason that intervenors themselves are stating the sole purpose of the proposed amendment is to enable the eighteen year olds to take part in the election for the ratification of the Constitution to be drafted by the Convention. In brief, under the proposed plebiscite, there can be, in the language of Justice Sanchez, speaking for the six members of the Court in Gonzales, supra, ‘no proper submission.’" 34 4. Four other members of the Court 35 in a separate concurrence in Tolentino, expressed their "essential agreement" with Justice Sanchez’ separate opinion in Gonzales on the need for" fair submission (and) intelligent consent or rejection" as "minimum requirement that must be met in order that there can be a proper submission to the people of a proposed constitutional amendment" thus:jgc:chanrobles.com.ph ". . . amendments must be fairly laid before the people for their blessing or spurning. The people are not to be mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunity to mull over the original provisions, compare them with the proposed amendments, and try to reach a conclusion as the dictates of their conscience suggest, free from the incubus of extraneous or possibly insidious influences. We believe the word ‘submitted’ can only mean that the government, within its maximum capabilities, should strain every effort to inform every citizen of the provisions to be amended, and the proposed amendments and the meaning, nature and effects thereof. By this, we are not to be understood as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be reached, then there is no submission within the meaning of the word as intended by the framers of the Constitution. What the Constitution in effect directs is that the government, in submitting an amendment for ratification, should put every instrumentality or agency within its structural framework to enlighten the people, educate them with respect to their act of ratification or rejection. For as we have earlier stated, one thing is submission and another is ratification. There must be fair submission, intelligent consent or rejection" 36

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They stressed further the need for undivided attention, sufficient information and full debate, conformably to the intendment of Article XV, section 1 of the Constitution, in this wise:jgc:chanrobles.com.ph "A number of doubts or misgivings could conceivably and logically assail the average voter. Why should the voting age be lowered at all, in the first place? Why should the new voting age be precisely 18 years, and not 19 or 20? And why not 17? Or even 16 or 15? Is the 18- year old as mature as the 21-year old so that there is no need of an educational qualification to entitle him to vote? In this age of permissiveness and dissent, can the 18-year old be relied upon to vote with judiciousness when the 21-year old, in the past elections, has not performed so well? If the proposed amendment is voted down by the people, will the Constitutional Convention insist on the said amendment? Why is there an unseemly haste on the part of the Constitutional Convention in having this particular proposed amendment ratified at this particular time? Do some of the members of the Convention have future political plans which they want to begin to subserve by the approval this year of this amendment? If this amendment is approved, does it thereby mean that the 18-year old should not also shoulder the moral and legal responsibilities of the 21-year old? Will he be required to render compulsory military service under the colors? Will the age of contractual consent be reduced to 18 years? If I vote against this amendment, will I not be unfair to my own child who will be 18 years old, come 1973? "The above are just samplings from here, there and everywhere — from a domain (of searching questions) the bounds of which are not immediately ascertainable. Surely, many more questions can be added to the already long litany. And the answers cannot be had except as the questions are debated fully, pondered upon purposefully, and accorded undivided attention. "Scanning the contemporary scene, we say that the people are not, and by election time will not be, sufficiently informed of the meaning, nature and effects of the proposed constitutional amendment. They have not been afforded ample time to deliberate thereon conscientiously. They have been and are effectively distracted from a full and dispassionate consideration of the merits and demerits of the proposed amendment by their traditional pervasive involvement in local elections and politics. They cannot thus weigh in tranquility the need for and the wisdom of the proposed amendment." 37 5. This Court therein dismissed the plea of disregarding the mandatory requirements of the amending process "in favor of allowing the sovereign people to express their decision on the proposed amendments" as "anachronistic in the realm of constitutionalism and repugnant to the essence of the rule of law," in the following terms:jgc:chanrobles.com.ph ". . . The preamble of the Constitution says that the Constitution has been ordained by the ‘Filipino people, imploring the aid of Divine Providence.’ Section 1 of Article XV is nothing more than a part of the Constitution thus ordained by the people. Hence, in construing said section, We must read it as if the people had said, ‘This Constitution may be amended, but it is our will that the amendment must be proposed and submitted to Us for ratification only in the manner herein provided.’ . . . Accordingly, the real issue here cannot be whether or not the amending process delineated by the present Constitution may be disregarded in favor of allowing the sovereign people to express their decision on the proposed amendments, if only because it is evident that the very idea of departing from the fundamental law is anachronistic in the realm of constitutionalism and repugnant to the essence of the rule of law; rather, it is whether or not the provisional nature of the proposed amendment and the manner of its submission to the people for ratification or rejection conform with the mandate of the people themselves in such regard, as expressed in the Constitution itself." 38

6. This Court, in not heeding the popular clamor, thus stated its position:" (I)t would be tragic and contrary to the plain compulsion of these perspectives, if the Court were to allow itself in deciding this case to be carried astray by considerations other than the imperatives of the rule of law and of the applicable provisions of the Constitution. Needless to say, in a larger measure than when it binds other departments of the government or any other official or entity, the Constitution imposes upon the Court the sacred duty to give meaning and vigor to the Constitution, by interpreting and construing its provisions in appropriate cases with the proper parties and by striking down any act violative thereof. Here, as in all other cases, We are resolved to discharge that duty." 39 7. The Chief Justice, in his separate opinion in Tolentino concurring with this Court’s denial of the motion for reconsideration, succinctly restated this Court’s position on the fundamentals, as follows:chanrob1es virtual 1aw library — On the premature submission of a partial amendment proposal, with a "temporary provisional or tentative character" : —." . . a partial amendment would deprive the voters of the context which is usually necessary for them to make a reasonably intelligent appraisal of the issue submitted for their ratification or rejection . . . Then, too, the submission to a plebiscite of a partial amendment, without a definite frame of reference, is fraught with possibilities which may jeopardize the social fabric. For one thing, it opens the door to wild speculations. It offers ample opportunities for overzealous leaders and members of opposing political camps to unduly exaggerate the pros and cons of the partial amendment proposed. In short, it is apt to breed false hopes and create wrong impressions. As a consequence, it is bound to unduly strain the people’s faith in the soundness and validity of democratic processes and institutions."cralaw virtua1aw library — On the plea to allow submission to the sovereign people of the "fragmentary and incomplete" proposal, although inconsistent with the letter and spirit of the Constitution: "The view, has, also, been advanced that the foregoing considerations are not decisive on the issue before Us, inasmuch as the people are sovereign, and the partial amendment involved in this case is being submitted to them. The issue before Us is whether or not said partial amendment may be validly submitted to the people for ratification ‘in a plebiscite to coincide with the local elections in November 1971,’ and this particular issue will not be submitted to the people. What is more, the Constitution does not permit its submission to the people. The question sought to be settled in the scheduled plebiscite is whether or not the people are in favor of the reduction of the voting age."cralaw virtua1aw library — On a "political" rather than "legalistic" approach: "Is this approach to the problem too ‘legalistic? This term has several possible connotations. It may mean strict adherence to the law, which in the case at bar is the Supreme Law of the land. On this point, suffice it to say that, in compliance with the specific mandate of such Supreme Law, the members of the Supreme Court have taken the requisite ‘oath to support and defend the Constitution.’ . . . Then, again, the term ‘legalistic’ may be used to suggest inversely that the somewhat strained interpretation of the Constitution being urged upon this Court be tolerated or, at least, overlooked, upon the theory that the partial amendment on the voting age is badly needed and reflects the will of the people, specially the youth. This course of action favors, in effect, the adoption of a political approach, inasmuch as the advisability of the amendment and an appraisal of the people’s feeling thereon are political matters. In fact, apart from the obvious message of the mass media, and, at times, of the pulpit, the Court has been literally bombarded with scores of handwritten letters, almost all of which bear the penmanship and the signature of

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girls, as well as the letterhead of some secretarian educational institutions, generally stating that the writer is 18 years of age and urging that she or he be allowed to vote. Thus, the pressure of public opinion has been brought to bear heavily upon the Court for a reconsideration of its decision in the case at bar. "As above stated, however, the wisdom of the amendment and the popularity thereof are political questions beyond our province. In fact, respondents and the intervenors originally maintained that We have no jurisdiction to entertain the petition herein, upon the ground that the issue therein raised is a political one. Aside from the absence of authority to pass upon political question, it is obviously improper and unwise for the bench to delve into such questions owing to the danger of getting involved in politics, more likely of a partisan nature, and, hence, of impairing the image and the usefulness of courts of justice as objective and impartial arbiters of justiciable controversies. "Then, too, the suggested course of action, if adopted, would constitute a grievous disservice to the people and the very Convention itself. Indeed, the latter and the Constitution it is in the process of drafting stand essentially for the Rule of Law. However, as the Supreme Law of the land, a Constitution would not be worthy of its name, and the Constitution called upon to draft it would he engaged in a futile undertaking, if we did not exact faithful adherence to the fundamental tenets set forth in the Constitution and compliance with its provisions were not obligatory. If we, in effect, approved, consented to or even overlooked a circumvention of said tenets and provisions, because of the good intention with which Resolution No. 1 is animated, the Court would thereby become the Judge of the good or bad intentions of the Convention and thus be involved in a question essentially political in nature. "This is confirmed by the plea made in the motions for reconsideration in favor of the exercise of judicial statesmanship in deciding the present case. Indeed, ‘politics’ is the ward commonly used to epitomize compromise, even with principles, for the sake of political expediency or the advancement of the bid for power of a given political party. Upon the other hand, statesmanship is the expression usually availed of to refer to high politics or parties on the highest level. In any event, qualities, political approach, political expediency and statesmanship are generally associated, and often identified, with the dictum that ‘the end justifies the means.’ I earnestly hope that the administration of justice in this country and the Supreme Court, in particular, will never adhere to or approve or indorse such dictum." 40 Tolentino, he pointed out that although" (M)ovants’ submittal that ‘(T)he primary purpose for the submission of the proposed amendment lowering the voting age to the plebiscite on November 8, 1971 is to enable the youth 18 to 20 years who comprise more than three (3) million of our population to participate in the ratification of the new Constitution in 1972’ so as ‘to allow young people who would be governed by the new Constitution to be given a say on what kind of Constitution they will have’ is a laudable end, . . . those urging the vitality and importance of the proposed constitutional amendment and its approval ahead of the complete and final draft of the new Constitution must seek a valid solution to achieve it in a manner sanctioned by the amendatory process ordained by our people in the present Constitution" 41 — so that there may be "submitted, not piece- meal, but by way of complete and final amendments as an integrated whole (integrated either with the subsisting Constitution or with the new proposed Constitution) . . ."cralaw virtua1aw library 9. The universal validity of the vital constitutional precepts and principles above-enunciated can hardly be gainsaid. I fail to see the attempted distinction of restricting their application to proposals for amendments of particular provisions of the Constitution and not to so-called

entirely new Constitutions. Amendments to an existing Constitution presumably may be only of certain parts or in toto, and in the latter case would give rise to an entirely new Constitution. Where this Court held in Tolentino that "any amendment of the Constitution is of no less importance than the whole Constitution itself and perforce must be conceived and prepared with as much care and deliberation’ it would appeal that the reverse would equally be true; which is to say, that the adoption of a whole new Constitution would be of no less importance than any particular amendment and therefore the necessary care and deliberation as well as the mandatory restrictions and safeguards in the amending process ordained by the people themselves so that "they (may) be insulated against precipitate and hasty actions motivated by more or less passing political moods or fancies" must necessarily equally apply thereto.

voice in government and who yet are entitled to all the immunities and protection established by the Constitution.’People’ in this aspect is coextensive with the body politic. But it is obvious that ‘people’ cannot be used with this broad meaning in a political signification. The ‘people’ in this connection means that part of the entire body of inhabitants who under the Constitution are intrusted with the exercise of the sovereign power and the conduct of government. The ‘people’ in the Constitution in a practical sense means those who under the existing Constitution possess the right to exercise the elective franchise and who, while that instrument remains in force unchanged, will be the sole organs through which the will of the body politic can be expressed.’People’ for political purposes must be considered synonymous with qualified voters.’"

III

As was also ruled by the U.S. Supreme Court,." . . While the people are thus the source of political power, their governments, national and state, have been limited by written constitutions, and they have themselves thereby set bounds to their own power, as against the sudden impulse of mere majorities." 44

1. To restate the basic premises, the people provided in Article XV of the Constitution for the amending process only "by approval by a majority of the votes cast at an election at which the (duly proposed) amendments are submitted to the people for their ratification" The people ordained in Article V, section 1 that only those thereby enfranchised and granted the right of suffrage may speak the "will of the body politic", viz, qualified literate voters twenty one years of age or over with one year’s residence in the municipality where they have registered. The people, not as yet satisfied, further provided by amendment duly approved in 1940 in accordance with Article XV, for the creation of an independent Commission on Elections with "exclusive charge" for the purpose of "insuring free, orderly and honest elections" and ascertaining the true will of the electorate — and more, as ruled by this Court in Tolentino, in the case of proposed constitutional amendments, insuring proper submission to the electorate of such proposals. 42 2. A Massachussets case 43 with a constitutional system and provisions analogous to ours, best defined the uses of the term" people" as a body politic and" people" in the political sense who are synonymous with the qualified voters granted the right to vote by the existing Constitution and who therefore are "the sole organs through which the will of the body politic can be expressed."cralaw virtua1aw library It was pointed out therein that" (T)he word ‘people’ may have somewhat varying significations dependent upon the connection in which it is used. In some connections in the Constitution it is confined to citizens and means the same as citizens. It excludes aliens. It includes men, women, and children. It comprehends not only the sane, competent, law-abiding and educated, but also those who are wholly or in part dependents and charges upon society by reason of immaturity, mental or moral deficiency or lack of the common essentials of education. All these persons are secured by the fundamental guarantees of the Constitution in life, liberty, and property and the pursuit of happiness, except as these may be limited for the protection of society."cralaw virtua1aw library In the sense of "body politic (as) formed by voluntary association of individuals" governed by a constitution and common laws in a "social compact . . . for the common good" and in another sense of "people" in a "practical sense" for "political purposes" it was therein fittingly stated that" (I)n this sense, ‘people’ comprises many who, by reason of want of years, of capacity or of the educational requirements of Article 20 of the amendments of the Constitution, can have no

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From the text of Article XV of our Constitution, requiring approval of amendment proposals "by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification", it seems obvious as above-stated that" people" as therein used must be considered synonymous with "qualified voters" as enfranchised under Article V, section 1 of the Constitution — since only" people" who are qualified voters can exercise the right of suffrage and cast their votes. 3. Sound constitutional policy and the sheer necessity of adequate safeguards as ordained by the Constitution and implementing statutes to ascertain and record the will of the people in free, orderly and honest elections supervised by the Comelec make it imperative that there be strict adherence to the constitutional requirements laid down for the process of amending in toto or in part the supreme law of the land. Even at barrio level 45 the Revised Barrio Charter fixes certain safeguards for the holding of barrio plebiscites thus: "SEC. 6. Plebiscite. — A plebiscite may be held in the barrio when authorized by a majority vote of the members present in the barrio assembly, there being a quorom, or when called by at least four members of the barrio council: Provided, however, That no plebiscite shall be held until after thirty days from its approval by either body, and such plebiscite has been given the widest publicity in the barrio, stating the date, time and place thereof, the questions or issues to be decided, action to be taken by the voters, and such other information relevant to the holding of the plebiscite." 46 As to voting at such barrio plebiscites, the Charter further requires that" (A)ll duly registered barrio assembly members qualified to vote may vote in the plebiscite. Voting procedures may be made either in writing as in regular elections, and/or declaration by the voters to the board of election tellers." 47 The subjects of the barrio plebiscites are likewise delimited thus: "A plebiscite may be called to decide on the recall of any member of the barrio council. A plebiscite shall be called to approve any budgetary, supplemental appropriations or special tax ordinances" and the required majority vote is also specified:" (F)or taking action on any of the above enumerated measures, majority vote of all the barrio assembly members registered in the list of the barrio secretary is necessary." 48 The qualifications for voters in such barrio plebiscites and elections of barrio officials 49

comply with the suffrage qualifications of Article V, section 1 of the Constitution and provide that" (S)EC. 10. Qualifications of Voters and Candidates. — Every citizen of the Philippines, twenty one years of age or over, able to read and write, who has been a resident of the barrio during the six months immediately preceding the election, duly registered in the list of voters kept by the barrio secretary, who is not otherwise disqualified, may vote or be a candidate in the barrio elections." 50 IV

1. Since it appears on the face of Proclamation 1102 that the mandatory requirements under the above-cited constitutional articles have not been complied with and that no election or plebiscite for ratification as therein provided as well as in section 16 of Article XVII of the proposed Constitution itself 51 has been called or held, there cannot be said to have been a valid ratification. 2. Petitioners raised serious questions as to the veracity and genuineness of the reports or certificates of results purportedly showing unaccountable discrepancies in seven figures in just five provinces 52 between the reports as certified by the Department of Local Governments and the reports as directly submitted by the provincial and city executives, which latter reports respondents disclaimed inter alia as not final and complete or as not signed; 53 whether the reported votes of approval of the proposed Constitution conditioned upon the nonconvening of the interim National Assembly provided in Article XVII, section 1 thereof, 54 may be considered as valid; the allegedly huge and uniform votes reported; and many others. 3. These questions only serve to justify and show the basic validity of the universal principle governing written constitutions that proposed amendments thereto or in replacement thereof may be ratified only in the particular mode or manner prescribed therein by the people. Under Article XV, section 1 of our Constitution, amendments thereto may be ratified only in the one way therein provided, i.e. in an election or plebiscite held in accordance with law and duly supervised by the Commission on Elections, and which is participated in only by qualified and duly registered voters. In this manner, the safeguards provided by the election code generally assure the true ascertainment of the results of the vote and interested parties would have an opportunity to thresh out properly before the Comelec all such questions in pre-proclamation proceedings. 4. At any rate, unless respondents seriously intend to question the very statements and pronouncements in Proclamation 1102 itself which shows on its face, as already stated, that the mandatory amending process required by the (1935) Constitution was not observed, the cases at bar need not reach the stage of answering the host of questions, raised by petitioners against the procedure observed by the Citizens Assemblies and the reported referendum results — since the purported ratification is rendered nugatory by virtue of such nonobservance. 5. Finally, as to respondents’ argument that the President issued Proclamation 1102 "as ‘agent’ of the Constitutional Convention" 55 under Resolution No. 5844 approved on November 22, 1973, and "as agent of the Convention the President could devise other forms of plebiscite to determine the will of the majority vis-a-vis the ratification of the proposed Constitution." 56 The minutes of November 22, 1972, of the Convention, however, do not at all support this contention. On the contrary, the said minutes fully show that the Convention’s proposal and

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"agency" was that the President issue a decree precisely calling a plebiscite for the ratification of the proposed new Constitution on an appropriate date, under the charge of the Comelec, and with a reasonable period for an information campaign, as follows:jgc:chanrobles.com.ph "12. Upon recognition by the Chair, Delegate Duavit moved for the approval of the resolution, the resolution portion of which read as follows:chanrob1es virtual 1aw library ‘RESOLVED, AS IT IS HEREBY RESOLVED, that the 1971 Constitutional Convention propose to President Ferdinand E. Marcos that a decree be issued calling a plebiscite for the ratification of the proposed New Constitution on such appropriate date as he shall determine and providing for the necessary funds therefor, and that copies of this resolution as approved in plenary session be transmitted to the President of the Philippines and the Commission on Elections for implementation.’ "He suggested that in view of the expected approval of the final draft of the new Constitution by the end of November 1972 according to the Convention’s timetable, it would be necessary to lay the groundwork for the appropriate agencies of the government to undertake the necessary preparation for the plebiscite. "x

x

x

"12.2 Interpellating, Delegate Pimentel (V.) contended that the resolution was unnecessary because section 15, Article XVII on the Transitory Provision, which had already been approved on second and third readings, provided that the new constitution should be ratified in a plebiscite called for the purpose by the incumbent President. Delegate Duavit replied that the provision referred to did not include the appropriation of funds for the plebiscite and that moreover, the resolution was intended to serve formal notice to the President and the Commission on Elections to initiate the necessary preparations. "x

x

x

"12.4 Interpellating, Delegate Madarang suggested that a reasonable period for an information campaign was necessary in order to properly apprise the people of the implications and significance of the new charter. Delegate Duavit agreed, adding that this was precisely why the resolution was modified to give the President the discretion to choose the most appropriate date for the plebiscite. "12.5 Delegate Laggui asked whether a formal communication to the President informing him of the adoption of the new Constitution would not suffice considering that under Section 15 of the Transitory Provisions, the President would be duty-bound to call a plebiscite forits ratification. Delegate Duavit replied in the negative, adding that the resolution was necessary to serve notice to the proper authorities to prepare everything necessary for the plebiscite. "12.6 In reply to Delegate Britanico, Delegate Duavit stated that the mechanics for the holding of the plebiscite would he laid down by the Commission on Elections, in coordination with the President. "12.7 Delegate Catan inquired if such mechanics for the plebiscite could include a partial lifting of martial law in order to allow the people to assemble peaceably to discuss the new Constitution. Delegate Duavit suggested that the Committee on Plebiscite and Ratification could coordinate with the COMELEC on the matter.

"12.8 Delegate Guzman moved for the previous question. The Chair declared that there was one more interpellant and that a prior reservation had been made for the presentation of such a motion. 1.8a Delegate Guzman withdrew his motion. "12.9 Delegate Astilla suggested in his interpellation that there was actually no need for such a resolution in view of the provision of section 15, Article XVII on the Transitory Provisions. Delegate Duavit disagreed, pointing out that the said provision did not provide for the funds necessary for the purpose. "13. Delegate Ozamiz moved to close the debate and proceed to the period of amendment. "13.1 Floor Leader Montejo stated that there were no reservations to amend the resolution. "13.2 Delegate Ozamiz then moved for the previous question. Submitted to a vote, the motion was approved. "Upon request of the Chair, Delegate Duavit restated the resolution for voting. "14.1. Delegate Ordoñez moved for nominal voting. Submitted to a vote, the motion was lost. "14.2. Thereupon, the Chair submitted the resolution to a vote. It was approved by a show of hands." 57 I, therefore, vote to deny respondents’ motion to dismiss and to give due course to the petitions. Promulgated: June 4, 1973 * ANTONIO, J.:

In conformity with my reservation, I shall discuss the grounds for my concurrence. I

It is my view that to preserve the independence of the State, the maintenance of the existing constitutional order and the defense of the political and social liberties of the people, in times of a grave emergency, when the legislative branch of the government is unable to function or its functioning would itself threaten the public safety, the Chief Executive may promulgate measures legislative in character, for the successful prosecution of such objectives. For the "President’s power as Commander-in-chief has been transformed from a simple power of military command to a vast reservoir of indeterminate powers in time of emergency . . . In other words, the principal canons of constitutional interpretation are . . . set aside so far as concerns both the scope of the national power and the capacity of the President to gather unto himself all constitutionally available powers in order the more effectively to focus them upon the task of the hour." (Corwin, The President: Office & Powers, pp. 317, 318, [1948]).

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1. The proclamation of martial rule, ushered the commencement of a crisis government in this country. In terms of power, crisis government in a constitutional democracy entails the concentration of governmental power. "The more complete the separation of powers in a constitutional system, the more difficult, and yet the more necessary" according to Rossiter, "will be their fusion in time of crisis . . . The power of the state in crisis must not only be concentrated and expanded, it must be freed from the normal system of constitutional and legal limitations. One of the basic features of emergency powers is the release of the government from the paralysis of constitutional restraints" (Rossiter, Constitutional Dictatorship, p. 290). It is clearly recognized that in moments of peril the effective action of the government is channeled through the person of the Chief Executive. "Energy in the executive", according to Hamilton, "is essential to the protection of the community against foreign attacks . . . to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy." (The Federalist, Number 70). "The entire strength of the nation", said Justice Brewer in the Debts ease (158 U.S. 564; 39 L. ed. 1092), "may be used to enforce in any part of the land the full and free exercise of all national powers and the security of all rights entrusted by the Constitution to its care." The marshalling and employment of the "strength of the nation" are matters for the discretion of the Chief Executive. The President’s powers in time of emergency defy precise definition since their extent and limitations are largely dependent upon conditions and circumstances. 2. The power of the President to act decisively in a crisis has been grounded on the broad conferment upon the Presidency of the Executive power, with the added specific grant of power under the "Commander- in-Chief" clause of the constitution. The contours of such powers have been shaped more by a long line of historical precedents of Presidential action in times of crisis, rather than judicial interpretation. Lincoln wedded his powers under the "commander-in- chief" clause with his duty "to take care that the laws be faithfully executed", to justify the series of extraordinary measures which he took — the calling of volunteers for military service, the augmentation of the regular army and navy, the payment of two million dollars from unappropriated funds in the Treasury to persons unauthorized to receive it, the closing of the Post Office to "treasonable correspondence", the blockade of southern ports, the suspension of the writ of habeas corpus, the arrest and detention of persons ‘who were represented to him" as being engaged in or contemplating "treasonable practices" — all this for the most part without the least statutory authorization. Those actions were justified by the imperatives of his logic, that the President may, in an emergency thought by him to require it, partially suspend the constitution. Thus his famous question: "Are all laws but one to be unexecuted, and the Government itself go to pieces lest that one be violated?" The actions of Lincoln "assert for the President", according to Corwin, "an initiative of indefinite scope and legislative in effect in meeting the domestic aspects of a war emergency." (Corwin, The President: Office & Powers, p. 280 [1948]). The facts of the civil war have shown conclusively that in meeting the domestic problems as a consequence of a great war, an indefinite power must be attributed to the President to take emergency measures. The concept of "emergency" under which the Chief Executive exercised extraordinary powers underwent correlative enlargement during the first and second World Wars. From its narrow concept as an "emergency" in time of war during the Civil War and World War I, the concept has been expanded in World War II to include the "emergency" preceding the war and even after it. "The Second World War" observed Corwin and Koenig, was the First World War writ large, and the quasi-legislative powers of Franklin Roosevelt as "Commander-in-Chief in wartime." . . burgeoned correspondingly. The precedents were there to be sure, most of them from the

First World War, but they proliferated amazingly. What is more, Roosevelt took his first step toward war some fifteen months before our entrance into shooting war. This step occurred in September, 1940, when he handed over fifty so-called overage destroyers to Great Britain. The truth is, they were not overage, but had been recently reconditioned and recommissioned . . . Actually, what President Roosevelt did was to take over for the nonce Congress’s power to dispose of property of the United States (Article IV, Section 3) and to repeal at least two statutes." (Corwin & Koenig, The Presidency Today, New York University Press, 1956; sf Corwin, The President: Office and Powers, 1948.) The creation of public offices is a power confided by the constitution to Congress. And yet President Wilson, during World War I on the basis of his powers under the "Commander-inChief" clause created "offices" which were copied in lavish scale by President Roosevelt in World War II. In April 1942, thirty-five "executive agencies" were purely of Presidential creation. On June 7, 1941 on the basis of his powers as "Commander-in-Chief", he issued an executive order seizing the North American Aviation plant of Inglewood, California, where production stopped as a consequence of a strike. This was justified by the government, as the exercise of Presidential power growing out of the "duty constitutionally and inherently resting upon the President to exert his civil and military as well as his moral authority to keep the defense efforts of the United States a going concern" as well as "to obtain supplies for which Congress has appropriated money, and which it has directed the President to obtain." On a similar justification other plants and industries were taken over by the government. It is true that in Youngstown Sheet & Tube v. Sawyer (343 U.S. 579; 72 3. Ct. 863; 96 L. Ed. 1153, [1952]), the Supreme Court of the United States did not sustain the claims that the President could, as the Nation’s Chief Executive and as Commander- in-Chief of the armed forces, validly order the seizure of most of the country’s steel mills. The Court however did not face the naked question of the President’s power to seize steel plants in the absence of any congressional enactment or expressions of policy. The majority of the Court found that this legislative occupation of the field made untenable the President’s claim of authority to seize the plants as an exercise of inherent executive power or as Commander-in-Chief Justice Clerk in his concurrence to the main opinion of the Court, explicitly asserted that the President does possess, in the absence of restrictive legislation, a residual or resultant power above or in consequence of his granted powers, to deal with emergencies that he regards as threatening the national security. The same view was shared with vague qualifications by Justices Frankfurter and Jackson, two of the concurring Justices. The three dissenting Justices, speaking through Chief Justice Vinson, apparently went further by quoting with approval a passage extracted from the brief of the government in the case of United States v. Midwest Oil Co., (236 U.S. 459, 59 L. Ed. 673, 35 S. Ct. 309) where the court sustained the power of the President to order withdrawals from the public domain, not only without Congressional sanction but even contrary to Congressional statutes. It is evident therefore that the Steel Seizure Case, cannot be invoked as an authority to support the view that the President in times of a grave crisis does not possess a residual power above or in consequence of his granted powers, to deal with emergencies that he regards as threatening the national security. The lesson of the Steel Seizure case, according to Corwin and Koenig, "Unquestionably . . . tends to supplement presidential emergency power to adopt temporary remedial legislation when Congress has been, in the judgment of the President, unduly remiss in taking cognizance of and acting on a given situation." (Corwin and Koenig, The Presidency Today, New York University Press, 1956). The accumulation of precedents has thus built up the presidential power under emergency conditions to "dimensions of executive prerogative as described by John Locke, of a power to

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wit, to fill needed gaps in the law, or even to supersede it so far as may be requisite to realize the fundamental law of native and government, namely, that as much as may be all the members of society are to be preserved." (Corwin and Koenig, The Presidency Today). In the light of the accumulated precedents, how could it be reasonably argued therefore, that the President had no power to issue Presidential Decree Nos. 86 and 86-A as well as Proclamation No. 1102, since these measures were considered indispensable to effect the desired reforms at the shortest time possible and hasten the restoration of normalcy? It is unavailing for petitioners to contend that we are not faced by an actual "shooting war" for today’s concept of the emergency which justified the exercise of those powers has of necessity been expanded to meet the exigencies of new dangers and crisis that directly threaten the nation’s continued and constitutional existence. For as Corwin observed: ". . . today the concept of ‘war’ as a special type of emergency warranting the realization of constitutional limitations tends to spread, as it were, in both directions, so that there is not only ‘the war before the war,’ but the ‘war after the war.’ Indeed, in the economic crisis from which the New Deal may be said to have issued, the nation was confronted in the opinion of the late President with an ‘emergency greater than war’; and in sustaining certain of the New Deal measures the Court invoked the justification of ‘emergency.’ In the final result the constitutional practices of wartime have moulded the Constitution to greater or less extent for peacetime as well, and seem likely to do so still more pronouncedly under fresh conditions of crisis." (Corwin, Ibid. p. 318.) The same view was expressed by Rossiter thus:jgc:chanrobles.com.ph "The second crisis is rebellion, when the authority of a constitutional government is resisted openly by large numbers of its citizens who are engaged in violent insurrection against the enforcement of its laws or are bent on capturing it illegally or even destroying it altogether. The third crisis, one recognized particularly in modern times as sanctioning emergency action by constitutional governments, is economic depression. The economic troubles which plagued all the countries of the world in the early thirties invoked governmental methods of an unquestionably dictatorial character in many democracies. It was thereby acknowledged that an economic existence as a war or a rebellion. And these are not the only crisis which have justified extraordinary governmental action in nations like the United States. Fire, flood, drought, earthquake, riots, and great strikes have all been dealt with by unusual and often dictatorial methods. Wars are not won by debating societies, rebellions are not suppressed by judicial injunctions, the reemployment of twelve million jobless citizens will not be effected through a scrupulous regard for the tenets of free enterprise, and hardships caused by the eruptions of nature cannot be mitigated by letting nature take its course. The Civil War, the depression of 1933, and the recent global conflict were not and could not have been successfully resolved by governments similar to those of James Buchanan, William Howard Taft, or Calvin Coolidge." (Rossiter, Constitutional Dictatorship — Crisis of Government in the Modern Democracies, p. 6 [1948;). II

We are next confronted with the insistence of Petitioners that the referendum in question not having been done in accordance with the provisions of existing election laws, where only qualified voters are allowed to participate, under the supervision of the Commission on Elections, the new Constitution, should therefore be declared a nullity. Such an argument is predicated upon an assumption that Article XV of the 1935 Constitution provides the method

for the revision of the constitution, and automatically apply in the approval of such proposed new Constitution the provisions of the election law and those of Article V and X of the old Constitution. We search in vain for any provision in the old charter specifically providing for such procedure in the case of a total revision or a rewriting of the whole constitution. 1. There is clearly a distinction between revision and amendment of an existing constitution. Revision may involve a rewriting of the whole constitution. The act of amending a constitution, on the other hand, envisages a change of only specific provisions. The intention of an act to amend is not the change of the entire constitution, but only the improvement of specific parts of the existing constitution of the addition of provisions deemed essential as a consequence of new conditions or the elimination of parts already considered obsolete or unresponsive to the needs of the times. 1 The 1973 Constitution is not a mere amendment to the 1935 Constitution. It is a completely new fundamental charter embodying new political, social and economic concepts. According to an eminent authority on Political Law, "The Constitution of the Philippines and that of the United States expressly provide merely for methods of amendment. They are silent on the subject of revision. But this is not a fatal omission. There is nothing that can legally prevent a convention from actually revising the Constitution of the Philippines or of the United States even were such conventions called merely for the purpose of proposing and submitting amendments to the people. For in the final analysis it is the approval of the people that gives validity to any proposal of amendment or revision." (Sinco, Philippine Political Law, p. 49). Since the 1936 Constitution does not specifically provide for the method or procedure for the revision or for the approval of a new constitution, should it now be held that the people have placed such restrictions on themselves that they are now disabled from exercising their right as the ultimate source of political power from changing the old constitution which, in their view, was not responsive to their needs and in adopting a new charter of government to enable them to rid themselves from the shackles of traditional norms and to pursue with a new dynamism the realization of their true longings and aspirations, except in the manner and form provided by Congress for previous plebiscites? Was not the expansion of the base of political participation, by the inclusion of the youth in the process of ratification who after all constitute the preponderant majority more in accord with the spirit and philosophy of the constitution that political power is inherent in the people collectively? As clearly expounded by Justice Makasiar in his opinion, in all the cases cited where the Court held that the submission of the proposed amendment was illegal due to the absence of substantial compliance with the procedure prescribed by the Constitution, the procedure prescribed by the state Constitution, is so detailed, that it specified the manner in which such submission shall be made, the persons qualified to vote for the same, the date of election and other definite standards, from which the court could safely ascertain whether or not the submission was in accordance with the Constitution. Thus the case of In re McConaughy (119 N.E. 408) relied upon in one of the dissenting opinions involved the application of the provisions of the state Constitution of Minnesota which clearly prescribed in detail the procedure under which the Constitution may be amended or revised. 2 This is not true with our Constitution. In the case of revision there are no "standards meet for judicial judgment." 3 The framers of our Constitution were free to provide in the Constitution the method or procedure for the revision or rewriting of the entire constitution, and if such was their intention, they could and should have so provided. Precedents were not wanting. The constitutions of the various states of the American Union did provide for procedures for their

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amendment, and methods for their revision. 4 Certainly We cannot, under the guise of interpretation, modify, revise, amend, remodel or rewrite the 1935 Charter. To declare what the law is, or has been, is a judicial power, but to declare what the law shall be is not within Our judicial competence and authority. Upon the other hand, since our fundamental charter has not provided the method or procedure for the revision or complete change of the Constitution, it is evident that the people have reserved such power in themselves. They decided to exercise it not through their legislature, but through a Convention expressly chosen for that purpose. The Convention as an independent and sovereign body has drafted not an amendment but a completely new Constitution, which decided to submit to the people for approval, not through an act of Congress, but by means of decrees to be promulgated by the President. In view of the inability of Congress to act, it was within the constitutional powers of the President, either as agent of the Constitutional Convention, or under his authority under martial law, to promulgate the necessary measures for the ratification of the proposed new Constitution. The adoption of the new Charter was considered as a necessary basis for all the reforms set in motion under the new society, to root out the causes of unrest. The imperatives of the emergency underscored the urgency of its adoption. The people in accepting such procedure and in voting overwhelmingly for the approval of the new Constitution have, in effect, ratified the method and procedure taken. "When the people adopt a completely revised or new constitution," said the Court in Wheeler v. Board of Trustees (37 SE 2nd 322, 326-330), "the framing or submission of the instrument is not what gives it binding force and effect. The fiat of the people, and only the fiat of the people, can breathe life into a constitution."cralaw virtua1aw library This has to be so because, in our political system, all political power is inherent in the people and free governments are founded on their authority and instituted for their benefit. Thus Section 1 of Article II of the 1935 Constitution declares that: "Sovereignty resides in the people and all government authority emanates from them." Evidently the term people refers to the entire citizenry and not merely to the electorate, for the latter is only a fraction of the people and is only an organ of government for the election of government officials. III

The more compelling question, however is: Has this Court the authority to nullify an entire Constitution that is already effective as it has been accepted and acquiesced in by the people as shown by their compliance with the decree promulgated thereunder, their cooperation in its implementation, and is now maintained by the Government that is in undisputed authority and dominance? Of course it is argued that acquiescence by the people cannot be deduced from their acts of conformity, because under a regime of martial law the people are hound to obey and act in conformity with the orders of the President, and have absolutely no other choice. The flaw of this argument lies in its application of a mere theoretical assumption based on the experiences of other nations on an entirely different factual setting. Such an assumption flounders on the rock of reality. It is true that as a general rule martial law is the use of military forces to perform the functions of civil government. Some courts have viewed it as a military regime which can be imposed in emergency situations. In other words, martial rule exists when the military rises superior to the civil power in the exercise of some or all the functions of government. Such is not the case in this country. The government functions thru its civilian

officials. The supremacy of the civil over the military authority is manifest. Except for the imposition of curfew hours and other restrictions required for the security of the State, the people are free to pursue their ordinary concerns. In short, the existing regime in this country, does not contain the oppressive features, generally associated with a regime of martial law in other countries. "Upon the other hand the masses of our people have accepted it, because of its manifold blessings. The once downtrodden rice tenant has at long last, been emancipated — a consummation devoutly wished by every Philippine President since the 1930’s. The laborer now holds his head high because his rights are amply protected and respected." * A new sense of discipline has swiftly spread beyond the corridors of government into the social order. Responding to the challenges of the New Society, the people have turned in half a million loose firearms, paid their taxes on undeclared goods and income in unprecedented numbers and amount, lent their labors in massive cooperation — in land reform, in the repair of dikes, irrigation ditches, roads and bridges, in reforestation, in the physical transformation of the environment to make ours a cleaner and greener land. "The entire country is turning into one vast garden growing food for the body, for thought and for the soul." * More important the common man has at long last been freed from the incubus of fear. "Martial law has paved the way for a re-ordering of the basic social structure of the Philippines" reported Frank Valeo to the United States Senate. "President Marcos has been prompt and sure- footed in using the power of presidential decree under martial law for this purpose. He has zeroed in on areas which have been widely recognized as prime sources of the nation’s difficulties — land tenancy, official corruption, tax evasion and abuse of oligarchic economic power. Clearly he knows his targets . . . there is marked public support for his leadership . . ." (Bulletin Today, March 3 and 4, 1973). In a similar vein, C.L. Sulzberger, a foreign affairs columnist wrote, in the April 11 issue of The New York Times:chanrob1es virtual 1aw library During his first Presidential term (1965-1969), Mr. Marcos was discouraged by the failure of legislators to approve urgently needed reforms. He found his second term further frustrated by spreading riots, a Maoist uprising in Luzon and a much more serious Moslem insurrection in the southern islands from Mindanao across the Sulu archipelago to the frontier regions of Malaysia and Indonesia. Manila claims this war is Maoist-coordinated. Mr. Marcos has now in effect taken all the reins of power and makes no promise as to when he will relinquish them. But, while fettering a free press, terminating Congress and locking up some opponents (many of whom were later amnestied), he has hauled the Philippines out of stagnation. Sharecropping is being ended as more than three million acres of arable land are redistributed with state funds. New roads have been started. The educational system is undergoing revision, and corruption is diminished. In non-communist Asia it is virtually impossible to wholly end it and this disagreeable phenomenon still reaches very high. Mr. Marcos, an imaginative, gifted man, hopes to reshape society by creating an agrarian middle-class to replace the archaic sharecropper-absentee landlord relationship. He is even pushing a birth control program with the tacit acceptance of the Catholic Church. He has started labor reforms and increased wages." (Daily Express, April 15, 1973)

As explained in this writer’s opinion of April 24, 1973 on the "Constancia" and "Manifestation" of counsel for petitioners:chanrob1es virtual 1aw library The new Constitution is considered effective "if the norms created in conformity with it are by and large applied and obeyed. As soon as the old Constitution loses its effectiveness and the new Constitution has become effective, the acts that appear with the subjective meaning of creating or applying legal norms are no longer interpreted by presupposing the old basic norm, but by presupposing the new one. The statutes issued under the old Constitution and not taken over are no longer regarded as valid, and the organs authorized by the old Constitution no longer competent." (Kelsen, Pure Theory of Law, [1967].) The essentially political nature of the question is at once made manifest by understanding that in the final analysis, what is assailed is not merely the validity of Proclamation No. 1102 of the President, which is merely declaratory of the fact of approval or ratification, but the legitimacy of the government. It is addressed more to the framework and political character of this Government which now functions under the new Charter. It seeks to nullify a Constitution that is already effective. In such a situation, We do not see how the question posed by petitioners could be judicially decided. "Judicial power presupposes an established government capable of enacting laws and enforcing their execution, and of appointing judges to expound and administer them. If it decides at all as a court, it necessarily affirms the existence and authority of the government under which it is exercising judicial power." (Luther v. Borden, 48 U.S. [7 How.] 1, 12 L. Ed. 598.) In other words, where a complete change in the fundamental law has been effected through political action, the Court whose existence is affected by such change is, in the words of Mr. Melville Fuller Weston, "precluded from passing upon the fact of change by a logical difficulty which is not to be surmounted." 5 Such change in the organic law relates to the existence of a prior point in the Court’s "chain of title" to its authority and "does not relate merely to a question of the horizontal distribution of powers." 6 It involves in essence a matter which "the sovereign has entrusted to the so-called political departments of government or has reserved to be settled by its own extra governmental action." 7 The non-judicial character of such a question has been recognized in American law. "From its earliest opinions this Court has consistently recognized," said Justice Frankfurter, in his illuminating dissent in Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d 633, 722, 726, 727), "a class of controversies which do not lend themselves to judicial standards and judicial remedies. To classify the various instances as ‘political questions’ is rather a form of stating this conclusion than revealing of analysis . . . The crux of the matter is that courts are not fit instruments of decision where what is essentially at stake is the composition of those large contests of policy traditionally fought out in non-judicial forums, by which governments and the actions of governments are made and unmade."cralaw virtua1aw library The diversity of views contained in the opinions of the members of this Court, in the cases at bar, cannot be a case of "right" or "wrong" views of the Constitution. It is one of attitudes and values. For there is scarcely any principle, authority or interpretation which has not been countered by the opposite. At bottom it is the degree of one’s faith — in the nation’s leadership and in the maturity of judgment of our people. IN VIEW OF THE FOREGOING, the dismissal of these five cases, and the conclusion of this

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Court in its judgment of March 31, 1973 are fully justified. Barredo, Makasiar and Esguerra, JJ., concur. APPENDIX TO OPINION (G.R. Nos. L-36142, 36164, 36165, 36236 & 36283) PROVISIONS OF STATE CONSTITUTIONS SPECIFICALLY PROVIDING FOR AMENDMENT AND REVISION@ 1. Alaska (1959) — Art. XIII. Amendment and Revision. Sec. 1. Amendments. Amendments to this constitution may be proposed by a two-thirds vote of each house of the legislature. The secretary of state shall prepare a ballot title and proposition summarizing each proposed amendment, and shall place them on the ballot for the next statewide election. If a majority of the votes cast on the proposition favor the amendment, it shall be adopted. Unless otherwise provided in the amendment, it becomes effective thirty days after the certification of the election returns by the secretary of state.

Sec. 2. Constitutional convention. Whenever two-thirds of the members elected to each branch of the Legislature shall deem it necessary to revise this Constitution, they shall recommend to the electors to vote at the next general election for or against a Convention for that purpose, and if a majority of the electors voting at such election on the proposition for a Convention shall vote in favor thereof, the Legislature shall, at its next session, provide by law for calling the same. The Convention shall consist of a number of delegates not to exceed that of both branches of the Legislature, who shall be chosen in the same manner, and have the same qualifications, as Members of the Legislature. The delegates so elected shall meet within three months after their election at such place as the Legislature may direct. At a special election to be provided for by law, the Constitution that may be agreed upon by such Convention shall be submitted to the people for their ratification or rejection, in such manner as the Convention may determine. The returns of such election shall, in such manner as the Convention shall direct, be certified to the Executive of the State, who shall call to his assistance the Controller, Treasurer, and Secretary of State, and compare the returns so certified to him; and it shall be the duty of the Executive to declare, by his proclamation, such Constitution, as may have been ratified by a majority of all the votes cast at such special election, to be the Constitution of the State of California. 2. Colorado (1876) — Art. XIX. Amendments.

Sec. 2. Convention. The legislature may call constitutional conventions at any time. Sec. 3. Call by referendum. If during any ten-year period a constitutional convention has not been held, the secretary of state shall place on the ballot for the next general election the question: "Shall there be a Constitutional Convention?" If a majority of the votes cast on the question are in the negative, the question need not be placed on the ballot until the end of the next ten-year period. If a majority of the votes cast on the question are in the affirmative, delegates to the convention shall be chosen at the next regular statewide election, unless the legislature provides for the election of the delegates at a special election. The secretary of state shall issue the call for the convention. Unless other provisions have been made by law, the call shall conform as nearly as possible to the act calling the Alaska Constitutional Convention of 1955, including, but not limited to, number of members, districts, election and certification of delegates, and submission and ratification of revisions and ordinances . . . Sec. 4. Powers. Constitutional conventions shall have plenary power to amend or revise the constitution, subject only to ratification by the people. No call for a constitutional convention shall limit these powers of the convention. 2. California (1879) — Art. XVIII. Amending and Revising the Constitution. Sec. 1. Constitutional amendments. Any amendment or amendments to this Constitution may be proposed in the Senate or Assembly, and if two-thirds of all the members elected to each of the two houses shall vote in favor thereof, such proposed amendment or amendments shall be entered in their Journals, with the yeas and nays taken thereon; and it shall be the duty of the Legislature to submit such proposed amendment or amendments to the people in such manner, and at such time, and after such publication as may be deemed expedient. Should more amendments than one be submitted at the same election they shall be so prepared and distinguished, by numbers or otherwise, that each can be voted on separately. If the people shall approve and ratify such amendment or amendments, or any of them, by a majority of the qualified electors voting thereon such amendment or amendments shall become a part of this constitution.

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Sec. 1. Constitutional convention; how called. The general assembly may at any time by a vote of two-thirds of the members elected to each house, recommend to the electors of the state, to vote at the next general election for or against a convention to revise, alter and amend this constitution; and if a majority of those voting on the question shall declare in favor of such convention, the general assembly shall, at the next session, provide for the calling thereof. The number of members of the convention shall be twice that of the senate and they shall be elected in the same manner, at the same places, and in the same districts. The general assembly shall, in the act calling the convention, designate the day, hour and place of its meeting; fix the pay of its members and officers, and provide for the payment of the same, together with the necessary expenses of the convention. Before proceeding, the members shall take an oath to support the constitution of the United States, and of the state of Colorado, and to faithfully discharge their duties as members of the convention. The qualifications of members shall be the same as of members of the senate; and vacancies occurring shall be filled in the manner provided for filling vacancies in the general assembly. Said convention shall meet within three months after such election and prepare such revisions, alterations or amendments to the constitution as may be deemed necessary; which shall be submitted to the electors for their ratification or rejection at an election appointed by the convention for that purpose, not less than two nor more than six months after adjournment thereof; and unless so submitted and approved by a majority of the electors voting at the election, no such revision, alteration or amendment shall take effect. Sec. 2. Amendments to constitution; how adopted. Any amendment or amendments to this constitution may be proposed in either house of the general assembly, and if the same shall be voted for by two-thirds of all the members elected to each house, such proposed amendment or amendments, together with the ayes and noes of each house hereon, shall be entered in full on their respective journals; the proposed amendment or amendments shall be published with the laws of that session of the general assembly, and the secretary of state shall also cause the said amendment or amendments to be published in full in not more than one newspaper of general circulation in each county, for four successive weeks previous to the next general election for members of the general assembly; and at said election the said amendment or

amendments shall be submitted to the qualified electors of the state for their approval or rejection, and such as are approved by a majority of those voting thereon shall become part of this constitution.

of any portion or portions of this Constitution. Any such revision or amendment may relate to one subject or any number of subjects, but no amendment shall consist of more than one revised article of the Constitution.

Provided, that if more than one amendment be submitted at any general election, each of said amendments shall be voted upon separately and votes thereon cast shall be separately counted the same as though but one amendment was submitted. But the general assembly shall have no power to propose amendments to more than six articles of this constitution at the same session.

If the proposed revision or amendment is agreed to by three- fifths of the members elected to each house, it shall be entered upon their respective journals with the yeas and nays and published in one newspaper in each county where a newspaper is published for two times, one publication to be made not earlier than ten weeks and the other not later than six weeks, immediately preceding the election at which the same is to be voted upon, and thereupon submitted to the electors of the State for approval or rejection at the next general election, provided, however, that such revision or amendment may be submitted for approval or rejection in a special election under the conditions described in and in the manner provided by Section 3 of Article XVII of this Constitution. If a majority of the electors voting upon the amendment adopt such amendment the same shall become a part of this Constitution.

4. Delaware (1897) — Art. XVI. Amendments and Conventions. Sec. 1. Proposal of constitutional amendments in general assembly; procedure. Any amendment or amendments to this Constitution may be proposed in the Senate or House of Representatives; and if the same shall be agreed to by two-thirds of all the members elected to each House, such proposed amendment or amendments shall be entered on their journals, with the yeas and nays taken thereon, and the Secretary of State shall cause such proposed amendment or amendments to be published three months before the next general election in at least three newspapers in each County in which such newspapers shall be published; and if in the General Assembly next after the said election such proposed amendment or amendments shall upon yea and nay vote be agreed to by two-thirds of all the members elected to each House, the same shall thereupon become part of the Constitution. Sec. 2. Constitutional conventions; procedure; compensation of delegates; quorum; powers and duties; vacancies. The General Assembly by a two thirds vote of all the members elected to each House may from time to time provide for the submission to the qualified electors of the State at the general election next thereafter the question, "Shall there be a Convention to revise the Constitution and amend the same?; and upon such submission, if a majority of those voting on said question shall decide in favor of a Convention for such purpose, the General Assembly at its next session shall provide for the election of delegates to such convention at the next general election. Such Convention shall be composed of forty-one delegates, one of whom shall be chosen from each Representative District by the qualified electors thereof, and two of whom shall be chosen from New Castle County, two from Kent County and two from Sussex County by the qualified electors thereof respectively. The delegates so chosen shall convene at the Capital of the State on the first Tuesday in September next after their election. Every delegate shall receive for his services such compensation as shall be provided by law. A majority of the Convention shall constitute a quorum for the transaction of business. The Convention shall have power to appoint such officers, employees and assistants ‘as it may deem necessary, and fix their compensation, and provide for the printing of its documents, journals, debates and proceedings. The Convention shall determine the rules of its proceedings, and be the judge of the elections, returns and qualifications of its members. Whenever there shall be a vacancy in the office of delegate from any district or county by reason of failure to elect, ineligibility, death, resignation or otherwise, a writ of election to fill such vacancy shall be issued by the Governor, and such vacancy shall be filled by the qualified electors of such district or county. 5. Florida (1887) — Art. XVII. Amendments. Sec. 1. Method of amending constitution. Either branch of the Legislature, at any regular session, or at any special or extra- ordinary session thereof called for such purpose either in the governor’s original call or any amendment thereof, may propose the revision or amendment

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Sec. 2. Method of revising constitution. If at any time the Legislature, by a vote of two-thirds of all the members of both Houses, shall determine that a revision of this Constitution is necessary, such determination shall be entered upon their respective Journals, with yea’s and nay’s thereon. Notice of said action shall be published weekly in one newspaper in every county in which a newspaper is published, for three months preceding the next general election of Representatives, and in those counties where no newspaper is published, notice shall be given by posting at the several polling precincts in such counties for six weeks next preceding said election. The electors at said election may vote for or against the revision in question. If a majority of the electors so voting be in favor of revision, the Legislature chosen at such election shall provide by law for a Convention to revise the Constitution, said Convention to be held within six months after the passage of such law. The Convention shall consist of a number equal to the membership of the House of Representatives, and shall be apportioned among the several counties in the same manner as members of said House. 6. Idaho (1890) — Art. XX. Amendments. Sec. 1: How amendments may be proposed. Any amendment or amendments to this Constitution may be proposed in either branch of the legislature, and if the same shall be agreed to by twothirds of all the members of each of the two houses, voting separately, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered on their journals, and it shall be the duty of the legislature to submit such amendment or amendments to the electors of the state at the next general election, and cause the same to be published without delay for at least six consecutive weeks, prior to said election, in not less that one newspaper of general circulation published in each county; and if a majority of the electors shall ratify the same, such amendment or amendments shall become a part of this Constitution. Sec. 3. Revision or amendment by convention. Whenever two-thirds of the members elected to each branch of the legislature shall deem it necessary to call a convention to revise or amend this Constitution, they shall recommend to the electors to vote at the next general election, for or against a convention, and if a majority of all the electors voting at said election shall have voted for a convention, the legislature shall at the next session provide by law for calling the same; and such convention shall consist of a number of members, not less than double the number of the most numerous branch of the legislature. 7. Iowa (1857) — Art. X. Amendments to the Constitution.

Sec 3. Convention. At the general election to be held in the year one thousand eight hundred and seventy, and in each tenth year thereafter, and also at such times as the General Assembly may, by law, provide, the question, "Shall there be a Convention to revise the Constitution, and amend the same?" shall be decided by the electors qualified to vote for members of the General Assembly; and in case a majority of the electors so qualified, voting at such election, for and against such proposition, shall decide in favor of a Convention for such purpose, the General Assembly, at its next session, shall provide by law for the election of delegates to such Convention. 8. Michigan (1909) — Art. XVII. Amendment and Revision. Sec. 1. Amendment to constitution; proposal by legislature; submission to electors. Any amendment or amendments to this constitution may be proposed in the senate or house of representatives. If the same shall be agreed to by 2/3 of the members elected to each house, such amendment or amendments, shall be entered on the journals, respectively, with the yeas and nays taken thereon; and the same shall be submitted to the electors at the next spring or autumn election thereafter, as the legislature shall direct and if a majority of the electors qualified to vote for members of the legislature voting thereon shall ratify and approve such amendment or amendments, the same shall become part of the constitution. Sec. 4. General revision: convention; procedure. At the Biennial Spring Election to be held in the year 1961, in each sixteenth year thereafter and at such times as may be provided by laws, the question of a General Revision of the Constitution shall be submitted to the Electors qualified to vote for members of the Legislature. In case a majority of the Electors voting on the question shall decide in favor of a Convention for such purpose, at an Election to be held not later than four months after the Proposal shall have been certified as approved, the Electors of each House of Representatives District as then organized shall Elect One Delegate for each State Representative to which the District is entitled and the Electors of each Senatorial District as then organized shall Elect One Delegate for each State Senator to which the District is entitled. The Delegates so elected shall convene at the Capital City on the First Tuesday in October next succeeding such election, and shall continue their sessions until the business of the convention shall be completed. A majority of the delegates elected shall constitute a quorum for the transaction of business . . . No proposed constitution or amendment adopted by such convention shall be submitted to the electors for approval as hereinafter provided unless by the assent of a majority of all the delegates elected to the convention, the yeas and nays being entered on the journal. Any proposed constitution or amendments adopted by such convention shall be submitted to the qualified electors in the manner provided by such convention on the first Monday in April following the final adjournment of the convention; but, in case an interval of at least 90 days shall not intervene between such final adjournment and the date of such election, then it shall be submitted at the next general election. Upon the approval of such constitution or amendments by a majority of the qualified electors voting thereon such constitution or amendments shall take effect on the first day of January following the approval thereof. 9. Minnesota (1867) — Art. XIV. Amendments to the Constitution. Sec. 1. Amendments to constitution; majority vote of electors voting makes amendment valid. Whenever a majority of both houses of the legislature shall deem it necessary to alter or amend this Constitution, they may propose such alterations or amendments, which proposed amendments shall be published with the laws which have been passed at the same session, and said amendments shall be submitted to the people for their approval or rejection at any

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general election, and if it shall appear, in a manner to be provided by law, that a majority of all the electors voting at said election shall have voted for and ratified such alterations or amendments, the same shall be valid to all intents and purposes as a part of this Constitution. If two or more alterations or amendments shall be submitted at the same time, it shall be so regulated that the voters shall vote for or against each separately. Sec. 2. Revision of constitution. Whenever two-thirds of the members elected to each branch of the legislature shall think it necessary to call a convention to revise this Constitution, they shall recommend to the electors to vote at the next general election for members of the legislature, for or against a convention; and if a majority of all the electors voting at said election shall have voted for a convention, the legislature shall, at their next session, provide by law for calling the same. The convention shall consist of as many members as the House of Representatives, who shall be chosen in the same manner, and shall meet within three months after their election for the purpose aforesaid. Sec. 3. Submission to people of revised constitution drafted at convention. Any convention called to revise this constitution shall submit any revision thereof by said convention to the people of the State of Minnesota for their approval or rejection at the next general election held not less than 90 days after the adoption of such revision, and, if it shall appear in the manner provided by law that three-fifths of all the electors voting on the question shall have voted for and ratified such revision, the same shall constitute a new constitution of the State of Minnesota. Without such submission and ratification, said revision shall be of no force or effect Section 9 of Article IV of the Constitution shall not apply to election to the convention. 10. Nevada (1864) — Art. 16. Amendments. Sec. 1. Constitutional amendments; procedure. Any amendment or amendments to this Constitution may be proposed in the Senate or Assembly; and if the same shall be agreed to by a Majority of all the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their respective journals, with the Yeas and Nays taken thereon, and referred to the Legislature then next to be chosen, and shall be published for three months next preceding the time of making such choice. And if in the Legislature next chosen as aforesaid, such proposed amendment or amendments shall be agreed to by a majority of all the members elected to each house, then it shall be the duty of the Legislature to submit such proposed amendment or amendments to the people, in such manner and at such time as the Legislature shall prescribe; and if the people shall approve and ratify such amendment or amendments by a majority of the electors qualified to vote for members of the Legislature voting thereon, such amendment or amendments shall become a part of the Constitution. Sec. 2. Convention for revision of constitution; procedure. If at any time the Legislature by a vote of two-thirds of the Members elected to each house, shall determine that it is necessary to cause a revision of this entire Constitution they shall recommend to the electors at the next election for Members of the Legislature, to vote for or against a convention, and if it shall appear that a majority of the electors voting at such election, shall have voted in favor of calling a Convention, the Legislature shall, at its next session provide by law for calling a Convention to be holden within six months after the passage of such law, and such Convention shall consist of a number of Members not less than that of both branches of the Legislature. In determining what is a majority of the electors voting at such election, reference shall be had to the highest number of votes cast at such election for the candidates for any office or on any question.

every twenty years. 11. New Hampshire (1784) — 13. Oregon (1859) — Art. XVII. Amendments and Revisions. Art. 99. Revision of constitution provided for. It shall be the duty of the selectmen, and assessors, of the several towns and places in this state, in warning the first annual meetings for the choice of senators, after the expiration of seven years from the adoption of this constitution, as amended, to insert expressly in the warrant this purpose, among the others for the meeting, to wit, to take the sense of the qualified voters on the subject of a revision of the constitution; and, the meeting being warned accordingly, and not otherwise, the moderator shall take the sense of the qualified voters present as to the necessity of a revision; and a return of the number of votes for and against such necessity, shall be made by the clerk sealed up, and directed to the general court at their then next session; and if, it shall appear to the general court by such return, that the sense of the people of the state has been taken, and that, in the opinion of the majority of the qualified voters in the state, present and voting at said meetings, there is a necessity for a revision of the constitution, it shall be the duty of the general court to call a convention for that purpose, otherwise the general court shall direct the sense of the people to be taken, and then proceed in the manner before mentioned. The delegates to be chosen in the same manner, and proportioned, as the representatives to the general court; provided that no alterations shall be made in this constitution, before the same shall be laid before the towns and unincorporated places, and approved by two thirds of the qualified voters present and voting on the subject. 12. Oklahoma (1907) — Art. XXIV. Constitutional Amendments. Sec. 1. Amendments proposed by legislature; submission to vote. Any amendment or amendments to this Constitution may he proposed in either branch of the Legislature, and if the same shall be agreed to by a majority of all the members elected to each of the two houses, such proposed amendment or amendments shall, with the yeas and nays thereon, he entered in their journals and referred by the Secretary of State to the people for their approval or rejection, at the next regular general election, except when the Legislature, by a two-thirds vote of each house, shall order a special election for that purpose. If a majority of all the electors voting at such election shall vote in favor of any amendment thereto, it shall thereby become a part of this Constitution. If two or more amendments are proposed they shall be submitted in such manner that electors may vote for or against them separately. No proposal for the amendment or alteration of this Constitution which is submitted to the voters shall embrace more than one general subject and the voters shall vote separately for or against each proposal submitted; provided, however, that in the submission of proposals for the amendment of this Constitution by articles, which embrace one general subject, each proposed article shall be deemed a single proposals or proposition. Sec. 2. Constitutional convention to propose amendments or new constitution. No convention shall be called by the Legislature to propose alterations, revisions, or amendments to this Constitution, or to propose a new Constitution, unless the law providing for such convention shall first be approved by the people on a referendum vote at a regular or special election, and any amendments, alterations, revisions, or new Constitution, proposed by such convention, shall be submitted to the electors of the State at a general or special election and be approved by a majority of the electors voting thereon, before the same shall become effective Provided, That the question of such proposed convention shall be submitted to the people at least once in

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Sec. 1. Method of amending constitution. Any amendment or amendments to this Constitution may be proposed in either branch of the legislative assembly, and if the same shall be agreed to by a majority of all the members elected to each of the two houses, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered in their journals and referred by the secretary of state to the people for their approval or rejection, at the next regular general election, except when the legislative assembly shall order a special election for that purpose. If a majority of the electors voting on any such amendment shall vote in favor thereof, it shall thereby become a part of this Constitution. The votes for and against such amendment, or amendments, severally, whether proposed by the legislative assembly or by initiative petition, shall be canvassed by the secretary of state in the presence of the governor, and if it shall appear to the governor that the majority of the votes cast at said election on said amendment, or amendments, severally, are cast in favor thereof, it shall be his duty forthwith after such canvass, by his proclamation, to declare the said amendment, or amendments, severally, having received said majority of votes to have been adopted by the people of Oregon as part of the Constitution thereof, and the same shall be in effect as a part of the Constitution from the date of such proclamation. When two or more amendments shall be submitted in the manner aforesaid to the voters of this state at the same election, they shall be so submitted that each amendment shall be voted on separately. No convention shall be called to amend or propose amendments to this Constitution, or to propose a new Constitution, unless the law providing for such convention shall first be approved by the people on a referendum vote at a regular general election. This article shall not be construed to impair the right of the people to amend this Constitution by vote upon an initiative petition therefor. Sec. 2. Method of revising constitution. (1) In addition to the power to amend this Constitution granted by section 1, Article IV, and section 1 of this Article, a revision of all or part of this Constitution may be proposed in either house of the Legislative Assembly and, if the proposed revision is agreed to by at least two- thirds of all the members of each house, the proposed revision shall, with the yeas and nays thereon, be entered in their journals and referred by the Secretary of State to the people for their approval or rejection, notwithstanding section 1, Article IV of this Constitution, at the next regular state-wide primary election, except when the Legislative Assembly orders a special election for that purpose. A proposed revision may deal with more than one subject and shall be voted upon as one question. The votes for and against the proposed revision shall be canvassed by the Secretary of State in the presence of the Governor and, if it appears to the Governor that the majority of the votes cast in the election on the proposed revision are in favor of the proposed revision, he shall, promptly following the canvass, declare, by his proclamation, that the proposed revision has received a majority of votes and has been adopted by the people as the Constitution of the State of Oregon or as a part of the Constitution of the State of Oregon, as the case may be. The revision shall be in effect as the Constitution or as a part of this Constitution from the date of such proclamation. 14. Utah (1896) — Art. 23. Amendments. Sec. 1. Amendments; method of proposal and approval. Any amendment or amendments to this Constitution may be proposed in either house of the Legislature, and if two-thirds of all the members elected to each of the two houses, shall vote in favor thereof, such proposed amendment or amendments shall be entered on their respective journals with the yeas and nays

taken thereon; and the Legislature shall cause the same to be published in at least one newspaper in every county of the State, where a newspaper is published, for two months immediately preceding the next general election, at which time the said amendment or amendments shall be submitted to the electors of the State, for their approval or rejection, and if a majority of the electors voting thereon shall approve the same, such amendment or amendments shall become part of this Constitution. If two or more amendments are proposed, they shall be so submitted as to enable the electors to vote on each of them separately. Sec. 2. Revision of the constitution by convention. Whenever two- thirds of the members, elected to each branch of the Legislature, shall deem it necessary to call a convention to revise or amend this Constitution, they shall recommend to the electors to vote at the next general election, for or against a convention, and, if a majority of all the electors, voting at such election, shall vote for a convention, The Legislature, at its next session, shall provide by law for calling the same. The convention shall consist of not less than the number of members in both branches of the Legislature. 15. Wyoming (1890) — Art. XX. Amendments. Sec. 1. Procedure for amendments. Any amendment or amendments to this constitution may be proposed in either branch of the legislature, and, if the same shall be agreed to by two-thirds of all the members of each of the two houses, voting separately, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered on their journals, and it shall be the duty of the legislature to submit such amendment or amendments to the electors of the state at the next general election, and cause the same to be published without delay for at least twelve (12) consecutive weeks, prior to said election, in at least one newspaper of general circulation, published in each county, and if a majority of the electors shall ratify the same, such amendment or amendments shall become a part of this constitution. Sec. 2. How voted for. If two or more amendments are proposed, they shall be submitted in such manner that the electors shall vote for or against each of them separately. Sec. 3. Constitutional convention; provision for. Whenever two- thirds of the members elected to each branch of the legislature shall deem it necessary to call a convention to revise or amend this constitution, they shall recommend to the electors to vote at the next general election for or against a convention, and if a majority of all the electors voting at such election shall have voted for a convention, the legislature shall at the next session provide by law for calling the same; and such convention shall consist of a number of members, not less than double that of the most numerous branch of the legislature. Sec. 4. New constitution. Any constitution adopted by such convention shall have no validity until it has been submitted to and adopted by the people.

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