Introduction.pdf

CASES IN CONSTITUTIONAL LAW II

INTRODUCTION G.R. No. 128448

February 1, 2001

SPOUSES ALEJANDRO MlRASOL and LILIA E. MIRASOL, petitioners, vs. THE COURT OF APPEALS, PHILIPPINE NATIONAL and PHILIPPINE EXCHANGE CO., INC., respondent. QUISUMBING, J.: This is a petition for review on certiorari of the decision of the Court of Appeals dated July 22, 1996, in CA-G.R. CY No. 38607, as well as of its resolution of January 23, 1997, denying petitioners' motion for reconsideration. The challenged decision reversed the judgment of the Regional Trial Court of Bacolod City, Branch 42 in Civil Case No. 14725. The factual background of this case, as gleaned from the records, is as follows: The Mirasols are sugarland owners and planters. In 1973-1974, they produced 70,501.08 piculs1 of sugar, 25,662.36 of which were assigned for export. The following crop year, their acreage planted to the same crop was lower, yielding 65,100 piculs of sugar, with 23,696.40 piculs marked for export. Private respondent Philippine National Bank (PNB) financed the Mirasols' sugar production venture for crop years, 1973-1974 and 1974-1975 under a crop loan financing scheme. Under said scheme, the Mirasols signed Credit Agreements, a Chattel Mortgage on Standing Crops, and a Real Estate Mortgage in favor of PNB. The Chattel Mortgage empowered PNB as the petitioners' attorney-in-fact to negotiate and to sell the latter's sugar in both domestic and export markets and to apply the proceeds to the payment of their obligations to it. Exercising his law-making powers under Martial Law, then President Ferdinand Marcos issued Presidential Decree (P.D.) No. 5792 in November, 1974. The decree authorized private respondent Philippine Exchange Co., Inc. (PHILEX) to purchase sugar allocated for export to the United States and to other foreign markets. The price and quantity was determined by the Sugar Quota Administration, PNB, the Department of Trade and Industry, and finally, by the Office of the President. The decree further authorized PNB to finance PHILEX's purchases. Finally, the decree directed that whatever profit PHILEX might realize from sales of sugar abroad was to be remitted to a special fund of the national government, after commissions, overhead expenses and liabilities had been deducted. The government offices and entities tasked by existing laws and administrative regulations to oversee the sugar export pegged the purchase price of export sugar in crop years 1973-1974 and 1974-1975 at P180.00 per picul. PNB continued to finance the sugar production of the Mirasols for crop years 1975-1976 and 1976-1977. These crop loans and similar obligations were secured by real estate mortgages over several properties of the Mirasols and chattel mortgages over standing crops. Believing that the proceeds of their sugar sales to PNB, if properly accounted for, were more than enough to pay their obligations, petitioners asked PNB for an accounting of the proceeds of the sale of their export sugar. PNB ignored the request. Meanwhile, petitioners continued to avail of other loans from PNB and to make unfunded withdrawals from their current accounts with said bank. PNB then asked petitioners to settle their due and demandable accounts. As a result of these demands for payment, petitioners on August 4, 1977, conveyed to PNB real properties valued at P1,410,466.00 by way of dacion en pago, leaving an unpaid overdrawn account of P1,513,347.78. On August 10, 1982, the balance of outstanding sugar crop and other loans owed by petitioners to PNB stood at P15,964,252.93. Despite demands, the Mirasols failed to settle said due anti demandable accounts. PNB then proceeded to extrajudicially for close the mortgaged

properties. After applying the proceeds of the auction sale of the mortgaged realties, PNB still had a deficiency claim of P12,551,252.93. Petitioners continued to ask PNB to account for the proceeds of the sale of their export sugar for crop years 1973-1974 and 1974-1975, insisting that said proceeds, if properly liquidated, could offset their outstanding obligations with the batik. PNB remained adamant in its stance that under P.D. No. 579, there was nothing to account since under said law, all earnings from the export sales of sugar pertained to the National Government and were subject to the disposition of the President of the Philippines for public purposes.1âwphi1.nêt On August 9, 1979, the Mirasols filed a suit for accounting, specific performance, and damages against PNB with the Regional Trial Court of Bacolod City, docketed as Civil Case No. 14725. On June 16, 1987, the complaint was amended to implead PHILEX as party-defendant. The parties agreed at pre-trial to limit the issues to the following: "1. The constitutionality and/or legality of Presidential Decrees numbered 338, 579, and 1192; "2. The determination of the total amount allegedly due the plaintiffs from the defendants corresponding to the allege(d) unliquidated cost price of export sugar during crop years 1973-1974 and 1974-1975."3 After trial on the merits, the trial court decided as follows: "WHEREFORE, the foregoing premises considered, judgment is hereby rendered in favor of the plaintiffs and against the defendants Philippine National Bank (PNB) and Philippine Exchange Co., Inc. (PHILEX): (1) Declaring Presidential Decree 579 enacted on November 12, 1974 and all circulars, as well as policies, orders and other issuances issued in furtherance thereof, unconstitutional and therefore, NULL and VOID being in gross violation of the Bill of Rights; (2) Ordering defendants PNB and PHILEX to pay, jointly and severally, plaintiffs the whole amount corresponding to the residue of the unliquidated actual cost price of 25,662 piculs in export sugar for crop year 1973-1974 at an average price of P300.00 per picul, deducting therefrom however, the amount of P180.00 already paid in advance plus the allowable deductions in service fees and other charges; (3) And also, for the same defendants to pay, jointly and severally, same plaintiffs the whole amount corresponding to the unpaid actual price of 14,596 piculs of export sugar for crop year 1974-1975 at an average rate of P214.14 per picul minus however, the sum of P180.00 per picul already paid by the defendants in advance and the allowable deducting (sic) in service fees and other charges. "The unliquidated amount of money due the plaintiffs but withheld by the defendants, shall earn the legal rate of interest at 12% per annum computed from the date this action was instituted until fully paid; and, finally (4) Directing the defendants PNB and PHILEX to pay, jointly and severally, plaintiffs the sum of P50,000.00 in moral damages and the amount of P50,000.00 as attorney's fees, plus the costs of this litigation. "SO ORDERED."4 The same was, however, modified by a Resolution of the trial court dated May 14, 1992, which added the following paragraph:

"This however whatever benefits that may have accrued in favor of the plaintiffs with the massage and approval of Republic Act. 7202 otherwise known as the 'Sugar Restitution Law,' authorizing the restitution of losses suffered by the plaintiffs from Crop year 19741975 to Crop year 1984-1985 occasioned by the actuations of government-owned and controlled agencies. (Underscoring in the original). "SO ORDERED."5 The Mirasols then filed an appeal with the respondent court, docketed as CA-G.R. CY No. 38607, faulting the trial court for not nullifying the dacion en pago and the mortgage contracts, as well as the foreclosure of their mortgaged properties. Also faulted was the trial court's failure to award them the full money claims and damages sought from both PNB and PHILEX. On July 22, 1996, the Court of Appeals reversed the trial court as follows: "WHEREFORE, this Court renders judgment REVERSING the appealed Decision and entering the following verdict: "1. Declaring the dacion en pago and the foreclosure of the mortgaged properties valid; "2. Ordering the PNB to render an accounting of the sugar account of the Mirasol[s] specifically stating the indebtedness of the latter to the former and the proceeds of Mirasols' 1973-1974 and 1974-1975 sugar production sold pursuant to and in accordance with P.D. 579 and the issuances therefrom; "3. Ordering the PNB to recompute in accordance with RA 7202 Mirasols' indebtedness to it crediting to the latter payments already made as well as the auction price of their foreclosed real estate and stipulated value of their properties ceded to PNB in the dacon (sic) en pago; "4. Whatever the result of the recomputation of Mirasols' account, the outstanding balance or the excess payment shall be governed by the pertinent provisions of RA 7202. "SO ORDERED."6 On August 28, 1996, petitioners moved for reconsideration, which the appellate court denied on January 23, 1997. Hence, the instant petition, with petitioners submitting the following issues for our resolution: "1. Whether the Trial Court has jurisdiction to declare a statute unconstitutional without notice to the Solicitor General where the parties have agreed to submit such issue for the resolution of the Trial Court. "2. Whether PD 579 and subsequent issuances7 thereof are unconstitutional. "3. Whether the Honorable Court of Appeals committed manifest error in not applying the doctrine of piercing the corporate veil between respondents PNB and PHILEX. "4. Whether the Honorable Court of Appeals committed manifest error in upholding the validity of the foreclosure on petitioners property and in upholding the validity of the dacion en pago in this case. "5. Whether the Honorable Court of Appeals committed manifest error in not awarding damages to petitioners grounds relied upon the allowance of the petition. (Underscored in the original)"8 On the first issue. It is settled that Regional Trial Courts have the authority and jurisdiction to consider the constitutionality of a statute, presidential decree, or executive order.9 The

Constitution vests the power of judicial review or the power to declare a law, treaty, international or executive agreement, presidential decree, order, instruction, ordinance, or regulation not. only in this Court, but in all Regional Trial Courts.10 In J.M. Tuason and Co. v. Court of Appeals, 3 SCRA 696 (1961) we held: "Plainly, the Constitution contemplates that the inferior courts should have jurisdiction in cases involving constitutionality of any treaty or law, for it speaks of appellate review of final judgments of inferior courts in cases where such constitutionality happens to be in issue."11 Furthermore, B.P. BIg. 129 grants Regional Trial Courts the authority to rule on the conformity of laws or treaties with the Constitution, thus: "SECTION 19. Jurisdiction in civil cases. - Regional Trial Courts shall exercise exclusive original jurisdiction: (1) In all civil actions in which the subject of the litigations is incapable of pecuniary estimation;" The pivotal issue, which we must address, is whether it was proper for the trial court to have exercised judicial review. Petitioners argue that the Court of Appeals erred in finding that it was improper for the trial court to have declared P.D. No. 57912 unconstitutional, since petitioners had not complied with Rule 64, Section 3, of the Rules of Court. Petitioners contend that said Rule specifically refers only to actions for declaratory relief and not to an ordinary action for accounting, specific performance, and damages. Petitioners' contentions are bereft of merit. Rule 64, Section 3 of the Rules of Court provides: "SEC. 3. Notice to Solicitor General. - In any action which involves the validity of a statute, or executive order or regulation, the Solicitor General shall be notified by the party attacking the statute, executive order, or regulation, and shall be entitled to be heard upon such question." This should be read in relation to Section 1 [c] of P.D. No. 478,13 which states in part: "SECTION 1. Functions and Organizations - (1) The Office of the Solicitor General shall...have the following specific powers and functions: xxx "[c] Appear in any court in any action involving the validity of any treaty, law, executive order or proclamation, rule or regulation when in his judgment his intervention is necessary or when requested by the court." It is basic legal construction that where words of command such as "shall," "must," or "ought" are employed, they are generally and ordinarily regarded as mandatory. 14 Thus, where, as in Rule 64, Section 3 of the Rules of Court, the word "shall" is used, a mandatory duty is imposed, which the courts ought to enforce. The purpose of the mandatory Notice in Rule 64, Section 3 is to enable the Solicitor General to decide whether or not his intervention in the action assailing the validity of a law or treaty is necessary. To deny the Solicitor General such notice would be tantamount to depriving him of his day in court. We must stress that, contrary to petitioners' stand, the mandatory notice requirement is not limited to actions involving declaratory relief and similar remedies. The rule itself provides that such notice is required in "any action" and not just actions involving declaratory relief. Where there is no ambiguity in the words used in the true, there is no room for constnlction.15 In all actions assailing the validity of a statute, treaty, presidential decree, order, or proclamation, notice to the Solicitor General is mandatory.

In this case, the Solicitor General was never notified about Civil Case No. 14725. Nor did the trial court ever require him to appear in person or by a representative or to file any pleading or memorandum on the constitutionality of the assailed decree. Hence, the Court of Appeals did not err in holding that lack of the required notice made it improper for the trial court to pass upon the constitutional validity of the questioned presidential decrees. As regards the second issue, petitioners contend that P.D. No. 579 and its implementing issuances are void for violating the due process clause and the prohibition against the taking of private property without just compensation. Petitioners now ask this Court to exercise its power of judicial review. Jurisprudence has laid down the following requisites for the exercise of this power: First, there must be before the Court an actual case calling for the exercise of judicial review. Second, the question before the Court must be ripe for adjudication. Third, the person challenging the validity of the act must have standing to challenge. Fourth, the question of constitutionality must have been raised at the earliest opportunity, and lastly, the issue of constitutionality must be the very lis mota of the case.16 As a rule, the courts will not resolve the constitutionality of a law, if the controversy can be settled on other grounds.17 The policy of the courts is to avoid ruling on constitutional questions and to presume that the acts of the political departments are valid, absent a clear and unmistakable showing to the contrary. To doubt is to sustain. This presumption is based on the doctrine of separation of powers. This means that the measure had first been carefully studied by the legislative and executive departments and found to be in accord with the Constitution before it was finally enacted and approved.18 The present case was instituted primarily for accounting and specific performance. The Court of Appeals correctly ruled that PNB's obligation to render an accounting is an issue, which can be determined, without having to rule on the constitutionality of P.D. No. 579. In fact there is nothing in P.D. No. 579, which is applicable to PNB's intransigence in refusing to give an accounting. The governing law should be the law on agency, it being undisputed that PNB acted as petitioners' agent. In other words, the requisite that the constitutionality of the law in question be the very lis mota of the case is absent. Thus we cannot rule on the constitutionality of P.D. No. 579. Petitioners further contend that the passage of R.A. No. 720219 rendered P.D. No. 579 unconstitutional, since R.A. No. 7202 affirms that under P.D. 579, the due process clause of the Constitution and the right of the sugar planters not to be deprived of their property without just compensation were violated. A perusal of the text of R.A. No. 7202 shows that the repealing clause of said law merely reads: "SEC. 10. All laws, acts, executive orders and circulars in conflict herewith are hereby repealed or modified accordingly." The settled rule of statutory construction is that repeals by implication are No. 7202 cannot be deemed to have repealed P.D. No. 579. In addition, the law unconstitutional does not lie with the legislature, 21 courts. Assuming arguendo that R.A. No. 7202 did indeed repeal P.D. No. not a legislative declaration finding the earlier law unconstitutional.

not favored.20 R.A. power to declare a but with the 579, said repeal is

To resolve the third issue, petitioners ask us to apply the doctrine of piercing the veil of corporate fiction with respect to PNB and PHILEX. Petitioners submit that PHILEX was a whollyowned subsidiary of PNB prior to the latter's privatization. We note, however, that the appellate court made the following finding of fact: "1. PNB and PHILEX are separate juridical persons and there is no reason to pierce the veil of corporate personality. Both existed by virtue of separate organic acts. They had separate operations and different purposes and powers."22

Findings of fact by the Court of Appeals are conclusive and binding upon this Court unless said findings are not supported by the evidence.23 Our jurisdiction in a petition for review under Rule 45 of the Rules of Court is limited only to reviewing questions of law and factual issues are not within its province.24 In view of the aforequoted finding of fact, no manifest error is chargeable to the respondent court for refusing to pierce the veil of corporate fiction. On the fourth issue, the appellate court found that there were two sets of accounts between petitioners and PNB, namely: "1. The accounts relative to the loan financing scheme entered into by the Mirasols with PNB (PNB's Brief, p. 16) On the question of haw much the PNB lent the Mirasols for crop years 1973-1974 and 1974-1975, the evidence recited by the lower court in its decision was deficient. We are offered (sic) PNB the amount of FIFTEEN MILLION NINE HUNDRED SIXTY FOUR THOUSAND TWO HUNDRED FIFTY TWO PESOS and NINETY THREE Centavos (Ps15,964,252.93) but this is the alleged balance the Mirasols owe PNB covering the years 1975 to 1982. "2. The account relative to the Mirasol's current account Numbers 5186 and 5177 involving the amount of THREE MILLION FOUR HUNDRED THOUSAND Pesos (P3,400,000.00). PNB claims against the Mirasols. (PNB's Brief, p. 17) "In regard to the first set of accounts, besides the proceeds from PNB's sale of sugar (involving the defendant PHILEX in relation to the export portion of tile stock), the PNB foreclosed the Mirasols' mortgaged properties realizing therefrom in 1981 THREE MILLION FOUR HUNDRED THIRTEEN THOUSAND pesos (P3,413,000.00), the PNB itself having acquired the properties as the highest bidder. "As to the second set of accounts, PNB proposed, and the Mirasols accepted, a dacion en pago scheme by which the Mirasols conveyed to PNB pieces of property valued at ONE MILLION FOUR HUNDRED TEN THOUSAND FOUR HUNDRED SIXTY-SIX Pesos (Ps1,410,466.00) (PNB's Brief, pp. 16-17)."25 Petitioners now claim that the dacion en pago and the foreclosure of their mortgaged properties were void for want of consideration. Petitioners insist that the loans granted them by PNB from 1975 to 1982 had been fully paid by virtue of legal compensation. Hence, the foreclosure was invalid and of no effect, since the mortgages were already fully discharged. It is also averred that they agreed to the dacion only by virtue of a martial law Arrest, Search, and Seizure Order (ASSO). We find petitioners' arguments unpersuasive. Both the lower court and the appellate court found that the Mirasols admitted that they were indebted to PNB in the sum stated in the latter's counterclaim.26 Petitioners nonetheless insist that the same can be offset by the unliquidated amounts owed them by PNB for crop years 1973-74 and 1974-75. Petitioners' argument has no basis in law. For legal compensation to take place, the requirements set forth in Articles 1278 and 1279 of the Civil Code must be present. Said articles read as follows: "Art. 1278. Compensation shall take place when two persons, in their own right, are creditors and debtors of each other. Art. 1279. In order that compensation may be proper, it is necessary: (1) That each one of the obligors be bound principally, and that he be at the same time a principal creditor of the other; (2) That both debts consist in a sum of money, or if the things due are consumable, they be of the same kind, and also of the same quality if the latter has been stated; (3) That the two debts are due; (4) That they be liquidated and demandable;

(5) That over neither of them there be any retention or controversy, commenced by third persons and communicated in due time to the debtor." In the present case, set-off or compensation cannot take place between the parties because: First, neither of the parties are mutually creditors and debtors of each other. Under P.D. No. 579, neither PNB nor PHILEX could retain any difference claimed by the Mirasols in the price of sugar sold by the two firms. P.D. No. 579 prescribed where the profits from the sales are to be paid, to wit: "SECTION 7. x x x After deducting its commission of two and one-half (2-1/2%) percent of gross sales, the balance of the proceeds of sugar trading operations for every crop year shall be set aside by the Philippine Exchange Company, Inc,. as profits which shall be paid to a special fund of the National Government subject to the disposition of the President for public purposes." Thus, as correctly found by the Court of Appeals, "there was nothing with which PNB was supposed to have off-set Mirasols' admitted indebtedness."27 Second, compensation cannot take place where one claim, as in the instant case, is still the subject of litigation, as the same cannot be deemed liquidated.28 With respect to the duress allegedly employed by PNB, which impugned petitioners' consent to the dacion en pago, both the trial court and the Court of Appeals found that there was no evidence to support said claim. Factual findings of the trial court, affirmed by the appellate court, are conclusive upon this Court.29 On the fifth issue, the trial court awarded petitioners P50,000.00 in moral damages and P50,000.00 in attorney's fees. Petitioners now theorize that it was error for the Court of Appeals to have deleted these awards, considering that the appellate court found PNB breached its duty as an agent to render an accounting to petitioners. An agent's failure to render an accounting to his principal is contrary to Article 1891 of the Civil Code.30 The erring agent is liable for damages under Article 1170 of the Civil Code, which states: "Those who in the performance of their obligations are guilty of fraud, negligence, or delay, and those who in any manner contravene the tenor thereof, are liable for damages." Article 1170 of the Civil Code, however, must be construed in relation to Article 2217 of said Code which reads: "Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury .Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendant's wrongful act or omission." Moral damages are explicitly authorized in breaches of contract where the defendant acted fraudulently or in bad faith.31 Good faith, however, is always presumed and any person who seeks to be awarded damages due to the acts of another has the burden of proving that the latter acted in bad faith, with malice, or with ill motive. In the instant case, petitioners have failed to show malice or bad faith32 on the part of PNB in failing to render an accounting. Absent such showing, moral damages cannot be awarded. Nor can we restore the award of attorney's fees and costs of suit in favor of petitioners. Under Article 2208 (5) of the Civil Code, attorney's fees are allowed in the absence of stipulation only if "the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff s plainly valid, just, and demandable claim." As earlier stated, petitioners have not proven bad faith on the part of PNB and PHILEX. 1âwphi1.nêt

WHEREFORE, the instant petition is DENIED and the assailed decision of the respondent court in CA-G.R. CY 38607 AFFIRMED. Costs against petitioners. G.R. No. L-52245 January 22, 1980 PATRICIO DUMLAO, ROMEO B. IGOT, and ALFREDO SALAPANTAN, JR., petitioners, vs. COMMISSION ON ELECTIONS, respondent. Raul M. Gonzales for petitioners Office of the Solicitor General for respondent.

MELENCIO-HERRERA, J: This is a Petition for Prohibition with Preliminary Injunction and/or Restraining Order filed by petitioners, in their own behalf and all others allegedly similarly situated, seeking to enjoin respondent Commission on Elections (COMELEC) from implementing certain provisions of Batas Pambansa Big. 51, 52, and 53 for being unconstitutional. The Petition alleges that petitioner, Patricio Dumlao, is a former Governor of Nueva Vizcaya, who has filed his certificate of candidacy for said position of Governor in the forthcoming elections of January 30, 1980. Petitioner, Romeo B. Igot, is a taxpayer, a qualified voter and a member of the Bar who, as such, has taken his oath to support the Constitution and obey the laws of the land. Petitioner, Alfredo Salapantan, Jr., is also a taxpayer, a qualified voter, and a resident of San Miguel, Iloilo. Petitioner Dumlao specifically questions the constitutionality of section 4 of Batas Pambansa Blg. 52 as discriminatory and contrary to the equal protection and due process guarantees of the Constitution. Said Section 4 provides: Sec. 4. Special Disqualification in addition to violation of section 10 of Art. XI I-C of the Constitution and disqualification mentioned in existing laws, which are hereby declared as disqualification for any of the elective officials enumerated in section 1 hereof. Any retired elective provincial city or municipal official who has received payment of the retirement benefits to which he is entitled under the law, and who shall have been 6,5 years of age at the commencement of the term of office to which he seeks to be elected shall not be qualified to run for the same elective local office from which he has retired (Emphasis supplied) Petitioner Dumlao alleges that the aforecited provision is directed insidiously against him, and that the classification provided therein is based on "purely arbitrary grounds and, therefore, class legislation." For their part, petitioners igot and Salapantan, Jr. assail the validity of the following statutory provisions: Sec 7. Terms of Office — Unless sooner removed for cause, all local elective officials hereinabove mentioned shall hold office for a term of six (6) years, which shall commence on the first Monday of March 1980. .... (Batas Pambansa Blg. 51) Sec. 4. Sec. 4. ...

Any person who has committed any act of disloyalty to the State, including acts amounting to subversion, insurrection, rebellion or other similar crimes, shall not be qualified to be a candidate for any of the offices covered by this Act, or to participate in any partisan political activity therein: provided that a judgment of conviction for any of the aforementioned crimes shall be conclusive evidence of such fact and the filing of charges for the commission of such crimes before a civil court or military tribunal after preliminary investigation shall be prima fascie evidence of such fact. ... (Batas Pambansa Big. 52) (Paragraphing and Emphasis supplied). Section 1. Election of certain Local Officials — ... The election shall be held on January 30, 1980. (Batas Pambansa, Blg. 52) Section 6. Election and Campaign Period — The election period shall be fixed by the Commission on Elections in accordance with Section 6, Art. XII-C of the Constitution. The period of campaign shall commence on December 29, 1979 and terminate on January 28, 1980. (ibid.) In addition to the above-cited provisions, petitioners Igot and Salapantan, Jr. also question the accreditation of some political parties by respondent COMELEC, as authorized by Batas Pambansa Blg. 53, on the ground that it is contrary to section 9(1)Art. XIIC of the Constitution, which provides that a "bona fide candidate for any public office shall be it. from any form of harassment and discrimination. "The question of accreditation will not be taken up in this case but in that of Bacalso, et als. vs. COMELEC et als. No. L-52232) where the issue has been squarely raised, Petitioners then pray that the statutory provisions they have challenged be declared null and void for being violative of the Constitution. I . The procedural Aspect At the outset, it should be stated that this Petition suffers from basic procedural infirmities, hence, traditionally unacceptable for judicial resolution. For one, there is a misjoinder of parties and actions. Petitioner Dumlao's interest is alien to that of petitioners Igot and Salapantan Petitioner Dumlao does not join petitioners Igot and Salapantan in the burden of their complaint, nor do the latter join Dumlao in his. The respectively contest completely different statutory provisions. Petitioner Dumlao has joined this suit in his individual capacity as a candidate. The action of petitioners Igot and Salapantan is more in the nature of a taxpayer's suit. Although petitioners plead nine constraints as the reason of their joint Petition, it would have required only a modicum more of effort tor petitioner Dumlao, on one hand said petitioners lgot and Salapantan, on the other, to have filed separate suits, in the interest of orderly procedure. For another, there are standards that have to be followed inthe exercise of the function of judicial review, namely (1) the existence of an appropriate case:, (2) an interest personal and substantial by the party raising the constitutional question: (3) the plea that the function be exercised at the earliest opportunity and (4) the necessity that the constiutional question be passed upon in order to decide the case (People vs. Vera 65 Phil. 56 [1937]). It may be conceded that the third requisite has been complied with, which is, that the parties have raised the issue of constitutionality early enough in their pleadings. This Petition, however, has fallen far short of the other three criteria. A. Actual case and controversy. It is basic that the power of judicial review is limited to the determination of actual cases and controversies.

Petitioner Dumlao assails the constitutionality of the first paragraph of section 4 of Batas Pambansa Blg. 52, quoted earlier, as being contrary to the equal protection clause guaranteed by the Constitution, and seeks to prohibit respondent COMELEC from implementing said provision. Yet, Dumlao has not been adversely affected by the application of that provision. No petition seeking Dumlao's disqualification has been filed before the COMELEC. There is no ruling of that constitutional body on the matter, which this Court is being asked to review on Certiorari. His is a question posed in the abstract, a hypothetical issue, and in effect, a petition for an advisory opinion from this Court to be rendered without the benefit of a detailed factual record Petitioner Dumlao's case is clearly within the primary jurisdiction (see concurring Opinion of now Chief Justice Fernando in Peralta vs. Comelec, 82 SCRA 30, 96 [1978]) of respondent COMELEC as provided for in section 2, Art. XII-C, for the Constitution the pertinent portion of which reads: "Section 2. The Commission on Elections shall have the following power and functions: 1) xxx 2) Be the sole judge of all contests relating to the elections, returns and qualifications of all members of the National Assembly and elective provincial and city officials. (Emphasis supplied) The aforequoted provision must also be related to section 11 of Art. XII-C, which provides: Section 11. Any decision, order, or ruling of the Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from his receipt of a copy thereof. B. Proper party. The long-standing rule has been that "the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement" (People vs. Vera, supra). In the case of petitioners Igot and Salapantan, it was only during the hearing, not in their Petition, that Igot is said to be a candidate for Councilor. Even then, it cannot be denied that neither one has been convicted nor charged with acts of disloyalty to the State, nor disqualified from being candidates for local elective positions. Neither one of them has been calle ed to have been adversely affected by the operation of the statutory provisions they assail as unconstitutional Theirs is a generated grievance. They have no personal nor substantial interest at stake. In the absence of any litigate interest, they can claim no locus standi in seeking judicial redress. It is true that petitioners Igot and Salapantan have instituted this case as a taxpayer's suit, and that the rule enunciated in People vs. Vera, above stated, has been relaxed in Pascual vs. The Secretary of Public Works (110 Phil. 331 [1960], thus: ... it is well settled that the validity of a statute may be contested only by one who will sustain a direct injury in consequence of its enforcement. Yet, there are many decisions nullifying at the instance of taxpayers, laws providing for the disbursement of public funds, upon the theory that "the expenditure of public funds, by an officer of the State for the purpose of administering an unconstitutional act constitutes a misapplication of such funds," which may be enjoined at the request of a taxpayer. In the same vein, it has been held: In the determination of the degree of interest essential to give the requisite standing to attack the constitutionality of a statute, the general rule is that not only persons individually affected, but also taxpayers have sufficient interest in preventing the illegal expenditure of moneys raised by taxation and they may, therefore, question the constitutionality of statutes requiring expenditure of public

moneys. (Philippine Constitution Association, Inc., et als., vs. Gimenez, et als., 15 SCRA 479 [1965]). However, the statutory provisions questioned in this case, namely, sec. 7, BP Blg. 51, and sections 4, 1, and 6 BP Blg. 52, do not directly involve the disbursement of public funds. While, concededly, the elections to be held involve the expenditure of public moneys, nowhere in their Petition do said petitioners allege that their tax money is "being extracted and spent in violation of specific constitutional protections against abuses of legislative power" (Flast v. Cohen, 392 U.S., 83 [1960]), or that there is a misapplication of such funds by respondent COMELEC (see Pascual vs. Secretary of Public Works, 110 Phil. 331 [1960]), or that public money is being deflected to any improper purpose. Neither do petitioners seek to restrain respondent from wasting public funds through the enforcement of an invalid or unconstitutional law. (Philippine Constitution Association vs. Mathay, 18 SCRA 300 [1966]), citingPhilippine Constitution Association vs. Gimenez, 15 SCRA 479 [1965]). Besides, the institution of a taxpayer's suit, per se is no assurance of judicial review. As held by this Court in Tan vs. Macapagal (43 SCRA 677 [1972]), speaking through our present Chief Justice, this Court is vested with discretion as to whether or not a taxpayer's suit should be entertained. C. Unavoidability of constitutional question. Again upon the authority of People vs. Vera, "it is a wellsettled rule that the constitutionality of an act of the legislature will not be determined by the courts unless that question is properly raised and presented in appropriate cases and is necessary to a determination of the case; i.e., the issue of constitutionality must be the very lis mota presented." We have already stated that, by the standards set forth in People vs. Vera, the present is not an "appropriate case" for either petitioner Dumlao or for petitioners Igot and Salapantan. They are actually without cause of action. It follows that the necessity for resolving the issue of constitutionality is absent, and procedural regularity would require that this suit be dismissed. II. The substantive viewpoint. We have resolved, however, to rule squarely on two of the challenged provisions, the Courts not being entirely without discretion in the matter. Thus, adherence to the strict procedural standard was relaxed in Tinio vs. Mina (26 SCRA 512 [1968]); Edu vs. Ericta (35 SCRA 481 [1970]); and in Gonzalez vs. Comelec (27 SCRA 835 [1969]), the Opinion in the Tinio and Gonzalez cases having been penned by our present Chief Justice. The reasons which have impelled us are the paramount public interest involved and the proximity of the elections which will be held only a few days hence. Petitioner Dumlao's contention that section 4 of BP Blg. 52 is discriminatory against him personally is belied by the fact that several petitions for the disqualification of other candidates for local positions based on the challenged provision have already been filed with the COMELEC (as listed in p. 15, respondent's Comment). This tellingly overthrows Dumlao's contention of intentional or purposeful discrimination. The assertion that Section 4 of BP Blg. 52 is contrary to the safer guard of equal protection is neither well taken. The constitutional guarantee of equal protection of the laws is subject to rational classification. If the groupings are based on reasonable and real differentiations, one class can be treated and regulated differently from another class. For purposes of public service, employees 65 years of age, have been validly classified differently from younger employees. Employees attaining that age are subject to compulsory retirement, while those of younger ages are not so compulsorily retirable. In respect of election to provincial, city, or municipal positions, to require that candidates should not be more than 65 years of age at the time they assume office, if applicable to everyone, might or might not be a reasonable classification although, as the Solicitor General has intimated, a good policy of the law would be to promote the emergence of younger blood in our political elective echelons. On the other hand, it might be that persons more than 65 years old may also be good elective local officials.

Coming now to the case of retirees. Retirement from government service may or may not be a reasonable disqualification for elective local officials. For one thing, there can also be retirees from government service at ages, say below 65. It may neither be reasonable to disqualify retirees, aged 65, for a 65 year old retiree could be a good local official just like one, aged 65, who is not a retiree. But, in the case of a 65-year old elective local official, who has retired from a provincial, city or municipal office, there is reason to disqualify him from running for the same office from which he had retired, as provided for in the challenged provision. The need for new blood assumes relevance. The tiredness of the retiree for government work is present, and what is emphatically significant is that the retired employee has already declared himself tired and unavailable for the same government work, but, which, by virtue of a change of mind, he would like to assume again. It is for this very reason that inequality will neither result from the application of the challenged provision. Just as that provision does not deny equal protection neither does it permit of such denial (see People vs. Vera, 65 Phil. 56 [1933]). Persons similarly situated are sinlilarly treated. In fine, it bears reiteration that the equal protection clause does not forbid all legal classification. What is proscribes is a classification which is arbitrary and unreasonable. That constitutional guarantee is not violated by a reasonable classification based upon substantial distinctions, where the classification is germane to the purpose of the law and applies to all Chose belonging to the same class (Peralta vs. Comelec, 82 SCRA 30 [1978] citing Felwa vs. Salas, 18 SCRA 606 [1966]; Rafael v. Embroidery and Apparel Control and Inspection Board, 21 SCRA 336 [1967]; Inchong etc., et al. vs. Hernandez 101 Phil. 1155 [1957]). The purpose of the law is to allow the emergence of younger blood in local governments. The classification in question being pursuant to that purpose, it cannot be considered invalid "even it at times, it may be susceptible to the objection that it is marred by theoretical inconsistencies" (Chief Justice Fernando, The Constitution of the Philippines, 1977 ed., p. 547). There is an additional consideration. Absent herein is a showing of the clear invalidity of the questioned provision. Well accepted is the rule that to justify the nullification of a law, there must be a clear and unequivocal breach of the Constitution, not a doubtful and equivocal breach. Courts are practically unanimous in the pronouncement that laws shall not be declared invalid unless the conflict with the Constitution is clear beyond reasonable doubt (Peralta vs. COMELEC, 82 SCRA 55 [1978], citing Cooper vs. Telfair 4 Dall 14; Dodd, Cases on Constitutional Law, 3rd ed. 1942, 56). Lastly, it is within the compentence of the legislature to prescribe qualifications for one who desires to become a candidate for office provided they are reasonable, as in this case. In so far as the petition of Igot and Salapantan are concerned, the second paragraph of section 4 of Batas Pambansa Blg. 52, quoted in full earlier, and which they challenge, may be divided in two parts. The first provides: a. judgment of conviction jor any of the aforementioned crimes shall be conclusive evidence of such fact ... The supremacy of the Constitution stands out as the cardinal principle. We are aware of the presumption of validity that attaches to a challenged statute, of the well-settled principle that "all reasonable doubts should be resolved in favor of constitutionality," and that Courts will not set aside a statute as constitutionally defective "except in a clear case." (People vs. Vera, supra). We are constrained to hold that this is one such clear case. Explicit is the constitutional provision that, in all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel (Article IV, section 19, 1973 Constitution). An accusation, according to the fundamental law, is not synonymous with guilt. The challenged proviso contravenes the constitutional presumption of innocence, as a candidate is disqualified from running for public office on the ground alone that charges have been filed against him before a civil or military tribunal. It condemns before one is fully heard. In ultimate effect, except as to the degree of proof, no distinction is made between a person convicted of acts of dislotalty and one against whom charges have been filed for such acts, as both of them would be ineligible to run for

public office. A person disqualified to run for public office on the ground that charges have been filed against him is virtually placed in the same category as a person already convicted of a crime with the penalty of arresto, which carries with it the accessory penalty of suspension of the right to hold office during the term of the sentence (Art. 44, Revised Penal Code). And although the filing of charges is considered as but prima facie evidence, and therefore, may be rebutted, yet. there is "clear and present danger" that because of the proximity of the elections, time constraints will prevent one charged with acts of disloyalty from offering contrary proof to overcome the prima facie evidence against him. Additionally, it is best that evidence pro and con of acts of disloyalty be aired before the Courts rather than before an administrative body such as the COMELEC. A highly possible conflict of findings between two government bodies, to the extreme detriment of a person charged, will thereby be avoided. Furthermore, a legislative/administrative determination of guilt should not be allowed to be substituted for a judicial determination. Being infected with constitutional infirmity, a partial declaration of nullity of only that objectionable portion is mandated. It is separable from the first portion of the second paragraph of section 4 of Batas Pambansa Big. 52 which can stand by itself. WHEREFORE, 1) the first paragraph of section 4 of Batas pambansa Bilang 52 is hereby declared valid. Said paragraph reads: SEC. 4. Special disqualification. — In addition to violation of Section 10 of Article XII(C) of the Constitution and disqualifications mentioned in existing laws which are hereby declared as disqualification for any of the elective officials enumerated in Section 1 hereof, any retired elective provincial, city or municipal official, who has received payment of the retirement benefits to which he is entitled under the law and who shall have been 65 years of age at the commencement of the term of office to which he seeks to be elected, shall not be qualified to run for the same elective local office from which he has retired. 2) That portion of the second paragraph of section 4 of Batas Pambansa Bilang 52 providing that "... the filing of charges for the commission of such crimes before a civil court or military tribunal after preliminary investigation shall be prima facie evidence of such fact", is hereby declared null and void, for being violative of the constitutional presumption of innocence guaranteed to an accused. SO ORDERED. Makasiar, Antonio, Concepcion, Jr., Fernandez and Guerrero, JJ., concur. Fernando, C.J., concurs and submits a brief separate opinion. De Castro, J., abstain as far as petitioner Dumlao is concerned.

Separate Opinions

BARREDO, J., concurring: But as regards the matter of equal protection, I reiterate my view for Peralta that Sec. 9(1) Art. XI I is more expensive than the equal protection clause. AQUINO, J, concurring:

concur in the result as to paragraph I of the dispositive part of the decision. I dissent as to paragraph 2. In my opinion, paragraph 2, section 4 of Batas Pambansa Bilang 52 is valid, being similar to certain presumptions in Articles 217 and 315 of the Penal Code, as amended by Republic Act No. 4885. See U.S. v. Luling, 34 Phil. 725 and People v. Mingoa, 92 Phil. 856. ABAD SANTOS, J., concurring: concur but wish to add that a judgment of conviction as provided in Sec. 4, par. 2 of Batas Pambansa Big. 52 should be one which is final and unappealable. FERNANDO, C.J., concurring. It is particularly gratifying that the reiteration in the ably-written and scholarly opinion of the Court, penned by Justice Melencio-Herrera, of the standard that must be met before the power of judicial review may be availed of, set forth with such lucidity and force by Justice Laurel in the two leading cases of Angara v. Electoral Commission 1 and People v. Vera, 2 did not constitute an obstacle to this Court ruling on the crucial constitutional issues raised. It was a cause for concern, for me at least, that counsel of private parties in not a few cases in the recent past had shown less than full awareness of the doctrines, procedural in character, that call for application whenever the exercise of this awesome and delicate responsibility of adjudging the validity of a statute or presidential decree is invoked. 3While this Court cannot be accused of being bound by the letters of judicial timidity, it remains true that no cavalier disregard of tried and tested concepts should be given encouragement. A petitioner who bases his claim for relief on asserted constitutional deficiencies deserves to be heard. That goes without saying. For the judiciary must ever endeavor to vindicate rights safeguarded by the fundamental law. In that sense, this Tribunal is not susceptible to the reproach that it has imprisoned itself in its allegiance to the philosophy of judicial self-restraint. There are, however, limits to judicial activism. It cannot be too strongly stressed that a petition of this character must ever remain an orderly proceeding that cannot be oblivious of the requisites to be complied with to justify a pronouncement on constitutional issues. Where there is exuberance in the exercise of judicial power, the forms of litigation are but slight retaining walls. It is right and proper that the voice of the Solicitor General should be heard in protest against such neglect of rudimentary precepts. Necessarily then, whenever objections based on refusal to abide by the procedural principles are presented, this Court must rule. It would suffice if thereby the petition is dismissed for nonobservance of the controlling doctrines. There are times, however, when the controversy is of such a character that to resolve doubts, erase uncertainty, and assure respect for constitutional limitations, this Tribunal must pass on the merits. This is one such case. I therefore concur with the opinion of the Court. It may be a task of superfluity then to write a concurring opinion. Nonetheless, a few words may not be amiss on what for me is the proper approach to take as to the lack of power of this Court to pass on the motives of the legislative body, on the lack of persuasiveness of petitioner's argument based on the equal protection guarantee, and on the fundamental concept of fairness of which the due process clause is an embodiment, thus calling for the nullification of the disqualification of a candidate upon the mere filing of charges against him. 1. The challenge to the provision in question is predicated on what was referred to as "a known fact in the province of Nueva Vizcaya that the aforesaid provision was concocted and designed precisely to frustrate any bid of herein petitioner to make a political come back [sic] as governor of Nueva Vizcaya. The wordings [sic] of the law is so peculiarly attuned to discriminate against herein petitioner because every condition imposed as disqualification grounds are known to be possessed by him because he was a former elective provincial official who has received his retirement benefits, he desires to run for the same elective office and at the commencement of the term of office to which he now seeks to be elected, he shall have reached 65 years of age. 4 Clearly then, the plea for invalidating such provision is the motive attributed to the Interim Batasang Pambansa. For petitioner, it amounted to a constitutional infirmity fatal in character. The weakness of the petition is thus apparent. No decision of this Tribunal can be cited in support of such a proposition. It would be to extend unduly the concept of judicial review if a court can roam far and wide and range at will over the variety and diversity of the reasons, the promptings that may lead a legislator to cast his vote for or against a proposed legislation. It is not what inspired the introduction of a bill but the effect thereof if duly enacted that is decisive.

That would be the test for its validity or lack of it. There is this relevant excerpt from McCray v. United States: 5 "The decisions of this Court [Supreme Court of the United States] from the beginning lend no support whatever to the assumption that the judiciary may restrain the exercise of lawful power on the assumption that a wrongful purpose of motive has caused the power to be exerted. 6 The late Chief Justice Warren, who penned the opinion in United States v. O' Brien 7 put the matter thus: "Inquiries into congressional motives or purposes are a hazardous matter. When the issue is simply the interpretation of legislation, the Court will look to statements by legislators for guidance as to the purpose of the legislature, because the benefit to sound decision-making in this circumstance is thought sufficient to risk the possibility of misreading Congress' purpose. It is entirely a different matter when we are asked to void a statute that is, under well-settled criteria, constitutional on its face, on the basis of what fewer than a handful of Congressmen said about it. What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork. We decline to void essentially on the ground that it is unwise legislation which Congress had the undoubted power to enact and which could be reenacted in its exact form if the same or another legislator made a 'wiser' speech about it." 8 2. If, however, the provision in question is susceptible to the reproach that it amounts to a denial of equal protection, then his plea for nullification should be accorded a sympathetic response. As the opinion of the Court makes clear, such imputation is not deserving of credence. The classification cannot be stigmatized as lacking in rationality. It is germane to the subject. Age, as well as the fact of retirement and the receipt of retirement benefits are factors that can enter into any legislative determination of what disqualifications to impose. As was pointed out in J.M. Tuason and Co., Inc. v. Land Tenure Administration: 9 "It suffices then that the laws operate equally and uniformly on all persons under similar circumstances or that all persons must be treated in the same manner, the conditions not being different, both in the privileges conferred and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances, which if not Identical, are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest. 10 It cannot be denied that others similarly fall under the same ban. It was not directed at petitioner solely. The most that can be said is that he falls within the-proscribed class. The point was likewise raised as to why should national officials be excluded in the above provision. The answer is simple. There is nothing to prevent the legislative body from following a system of priorities. This it did under the challenged legislative provision. In its opinion, what called for such a measure is the propensity of the local officials having reached the retirement age and having received retirement benefits once again running for public office. Accordingly, the provision in question was enacted. A portion of the opinion in the aforesaid J.M. Tuason and Co., Inc. finds relevance: "It was confronted with a situation that caned for correction, and the legislation that was the result of its deliberation sought to apply the necessary palliative. That it stopped short of possibly attaining the cure of other analogous ills certainly does not stigmatize its effort as a denial of equal protection. We have given our sanction to the principle underlying the exercise of police power and taxation, but certainly not excluding eminent domain, that 'the legislature is not required by the Constitution to adhere to the policy of all "or none." ' Thus, to reiterate, the invocation by petitioner of the equal protection clause is futile and unavailing ." 11 3. That brings us to the assailed provision as to the sufficiency of the filing of charges for the commission of such crimes as subversion, insurrection, rebellion or others of similar nature before a civil court or military tribunal after preliminary investigation, being a prima facie evidence of such fact and therefore justifying the disqualification of a candidate. The opinion of the Court invoked the constitutional presumption of innocence as a basis for its being annulled. That conclusion is well-founded. Such being the case, I am in full agreement. I would add that such a provision is moreover tainted with arbitrariness and therefore is violative of the due process clause. Such a constitutional right, to quote from Luzon Surety Co., Inc. v. Beson, 12 is "not a mere formality that may be dispensed with at will. Its disregard is a matter of serious concern. It is a constitutional safeguard of the highest order. It is a response to man's innate sense of justice." 13 As rightfully stressed in the opinion of the Court, the time element may invariably preclude a full hearing on the charge against him and thus effectively negate the opportunity of an individual to present himself as a candidate. If, as has been invariably the case, a prosecutor, whether in a civil court or in a military tribunal saddled as he is with so many complaints filed on his desk would give in to the all-too-human propensity to take the easy way

out and to file charges, then a candidate Would be hard put to destroy the presumption. A sense of realism for me compels a declaration of nullity of a provision which on its face is patently offensive to the Constitution. Hence my concurrence. TEEHANKEE, J., dissenting: Files a separate opinion dissenting from the adverse ruling on Dumlaos candidacy and declining to rule on the invalidity of the first part of Section 4 of the questioned Law; and concurs with the pronouncement that the mere filing of charges shall be prima facie cause for disqualification is void. I. I dissent from the majority's dismissal of the petition insofar as it upholds the discriminatory and arbitrary provision of Sec. 4 of Batas Pambansa Blg. 52 which would impose a special disqualification on petitioner Patricio Dumlao from running for the elective local office of governor of his home province of Nueva Vizcaya and would in effect bar the electors of his province from electing him to said office in the January 30 elections, simply because he is a retired provincial governor of said province "who has received payment of the retirement benefits to which he is entitled under the law and who shall have been 65 years of age at the commencement of the term of office to which he seeks to be elected." To specially and peculiarly ban a 65-year old previously retired elective local official from running for the same elective office (of governor, in this case) previously held by him and from which he has retired is arbitrary, oppressive and unreasonable. Persons similarly situated are not similarly treated, e.g. a retired vice-governor, mayor or councilor of 65 is entitled to run for governor (because the disqualification is for the retiree of 65 to run for the same elective office from which he retired) but petitioner is barred from doing so (although he may run for any other lesser office). Both are 65 and are retirees, yet one is barred from running for the office of governor. What is the valid distinction? Is this not an arbitrary discrimination against petitioner who has cause to that "the aforesaid provision was concocted and designed precisely to frustrate any bid of petition to make a political comeback as governor of Nueva Vizcaya 1 — (since no other case by a former governor similarly barred by virtue of said provision can never be cited 2 ). Is there not here, therefore a gross denial of the cardinal constitutional guarantee that equal protection and security shall be given under the law to every person, under analogous if not Identical circumstances? Respondent's claim, as accepted by the majority, is that the purpose of the special disqualification is "to infuse new blood in local governments but the classification (that would bar 65-year old retirees from running for the same elective local office) is not rational nor reasonable. It is not germane nor relevant to the alleged purpose of "infusing new blood" because such "old blood" retirees may continue in local governments since they are not disqualified at all to run for any other local elective office such as from provincial governor, vicegovernor, city, municipal or district mayor and vice- mayor to member of the Sangguniang Panlalawigan Sangguniang Panglunsod and Sangguniang Bayan, other than the local elective office from which they retired. Furthermore, other 65-year olds who have likewise retired from the judiciary and other branches of government are not in any manner disqualified to run for any local elective office, as in the case of retired Court of First Instance Judge (former Congressman) Alberto S. Ubay who retired with full substantial retirement benefits as such judge in 1978 at age 70 and now at past 71 years of age, is running as the official KBL candidate for governor of his province. And even in the case of 65-year old local elective officials, they are disqualified only when they have received payment of the retirement benefits to which they are entitled under the law (which amount to very little, compared to retirement benefits of other executive officials and members of the judiciary). If they have not received such retirement benefits, they are not disqualified. Certainly, their disqualification or non-disqualification and consequent classification as "old blood" or "new blood" cannot hinge on such an irrelevant question of whether or not they have received their retirement benefits.

The classification is patently arbitrary and unreasonable and is not based on substantial distinctions which make for real differences that would justify the special disqualification of petitioner, which, it is claimed, "is based on a presumption that elective local officials who have retired and are of advanced age cannot discharge the functions of the office they seek as those who are differently situated." 3 Such presumption is sheer conjecture. The mere fact that a candidate is less than 65 or has "young or new blood" does not mean that he would be more efficient, effective and competent than a mature 65year old like petition er who has had experience on the job and who was observed at the hearing to appear to be most physically fit. Sufice it to city the outstanding case of the incumbent ebullient Minister of Foreign Affairs, General Carlos P. Romulo, who was elected a 80 as a member of the Interim Batasan Pambansa and who has just this month completed 81 years of age and has been hailed by the President himself as "the best foreign minister the Republic has ever had Age has simply just never been a yardstick for qualification or disqualification. Al. the most, a minimum age to hold public office has been required as a qualification to insure a modicum of maturity 'now reduced to 21 years in the present batas), but no maximum age has ever been imposed as a disqualification for elect public office since the right and win of the people to elect the candidate of their choice for any elective office, no matter his age has always been recognized as supreme. The disqualification in question therefore is grossly violative of the equal protection clause which mandates that all persons subjected to legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. The guarantee is meant to proscribe undue favor and individual or class privilege on the one hand and hostile discrimination and the oppression of in quality on the other. The questioned provision should therefore at the least be declared invalid in its application insofar as it would disqualify petitioner from running for the office of governor of his province. As aptly restated by the Chief Justice, "Persons similarly situated should be similarly treated. Where no valid distinction could be made as to the relevant conditions that call for consideration, there should be none as to the privileges conferred and the liabilities imposed. There can be no undue favoritism or partiality on the one hand or hostility on the other. Arbitrary selection and discrimination against persons in thus ruled out. For the principle is that equal protection and security shall be given to every person under circumstances, which if not Identical are analogous. If law be looked upon in terms of burden or charges, those that full within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest." 4 Finally, this arbitrary disqualification is likewise grossly violative of Article XII, sub-article C, section 9(1) of the 1973 Constitution that Bona fide candidates for any public office shall be free from any form of harassment and discrimination. II. I concur with the majority's declaration of invalidity of the portion of the second paragraph of Section 4 of Batas Pambansa Blg. 52 which would make the mere filing of charges of subversion, insurrection, rebellion or other similar crimes before a civil court or military tribunal after preliminary investigation prima facie evidence of the fact of commission of an act of disloyalty to the State on the part of the candidate and disqualify him from his candidacy. Such a provision could be the most insidious weapon to disqualify bona fide candidates who seem to be headed for election and places in the hands of the military and civil prosecutors a dangerous and devastating weapon of cutting off any candidate who may not be to their filing through the filing of last-hour charges against him. I also concur with the pronouncement made in the majority decision that in order that a judgment of conviction may be deemed "as conclusive evidence" of the candidate's disloyalty to the State and of his disqualification from office, such judgment of conviction must be final and unappealable. This is so specifically provided in Section 22 of the 1978 Election Code. 5 Otherwise, the questioned provision would deny the bona fide candidate substantive due process and would be grossly violative of his constitutional right of presumption of innocence and of the above-quoted provision of the 1973 Constitution protecting candidates for public office from any form of harassment and discrimination.

ADDENDUM When the case was voted upon a second time last January 21st, there appeared to be a majority in favor of the declarations and pronouncements above referred to in the two preceding paragraphs, in view of the urgency of the matter and the evil sought to be avoided. However, as of this writing, January 23, 1980 in the afternoon, such majority seems to have been dissipated by the view that the action to nullify such second paragraph of section 4 of the Batas in question is premature and has not been properly submitted for ajudication under the strict procedural require . If this be the case, my above views, termed as concurrences, should be taken as dissents against the majority action.

Separate Opinions

BARREDO, J., concurring: But as regards the matter of equal protection, I reiterate my view for Peralta that Sec. 9(1) Art. XI I is more expensive than the equal protection clause. AQUINO, J, concurring: concur in the result as to paragraph I of the dispositive part of the decision. I dissent as to paragraph 2. In my opinion, paragraph 2, section 4 of Batas Pambansa Bilang 52 is valid, being similar to certain presumptions in Articles 217 and 315 of the Penal Code, as amended by Republic Act No. 4885. See U.S. v. Luling, 34 Phil. 725 and People v. Mingoa, 92 Phil. 856. ABAD SANTOS, J., concurring: concur but wish to add that a judgment of conviction as provided in Sec. 4, par. 2 of Batas Pambansa Big. 52 should be one which is final and unappealable. FERNANDO, C.J., concurring. It is particularly gratifying that the reiteration in the ably-written and scholarly opinion of the Court, penned by Justice Melencio-Herrera, of the standard that must be met before the power of judicial review may be availed of, set forth with such lucidity and force by Justice Laurel in the two leading cases of Angara v. Electoral Commission 1 and People v. Vera, 2 did not constitute an obstacle to this Court ruling on the crucial constitutional issues raised. It was a cause for concern, for me at least, that counsel of private parties in not a few cases in the recent past had shown less than full awareness of the doctrines, procedural in character, that call for application whenever the exercise of this awesome and delicate responsibility of adjudging the validity of a statute or presidential decree is invoked. 3While this Court cannot be accused of being bound by the letters of judicial timidity, it remains true that no cavalier disregard of tried and tested concepts should be given encouragement. A petitioner who bases his claim for relief on asserted constitutional deficiencies deserves to be heard. That goes without saying. For the judiciary must ever endeavor to vindicate rights safeguarded by the fundamental law. In that sense, this Tribunal is not susceptible to the reproach that it has imprisoned itself in its allegiance to the philosophy of judicial self-restraint. There are, however, limits to judicial activism. It cannot be too strongly stressed that a petition of this character must ever remain an orderly proceeding that cannot be oblivious of the requisites to be complied with to justify a pronouncement on constitutional issues. Where there is exuberance in the exercise of judicial power, the forms of litigation are but slight retaining walls. It is right and proper that the voice of the Solicitor General should be heard in protest against such neglect of rudimentary precepts. Necessarily then, whenever objections based on refusal to abide by the procedural principles are presented, this Court must rule. It would suffice if thereby the petition is dismissed for nonobservance of the controlling doctrines. There are times, however, when the controversy is of such a character that to resolve doubts, erase uncertainty, and assure respect for constitutional

limitations, this Tribunal must pass on the merits. This is one such case. I therefore concur with the opinion of the Court. It may be a task of superfluity then to write a concurring opinion. Nonetheless, a few words may not be amiss on what for me is the proper approach to take as to the lack of power of this Court to pass on the motives of the legislative body, on the lack of persuasiveness of petitioner's argument based on the equal protection guarantee, and on the fundamental concept of fairness of which the due process clause is an embodiment, thus calling for the nullification of the disqualification of a candidate upon the mere filing of charges against him. 1. The challenge to the provision in question is predicated on what was referred to as "a known fact in the province of Nueva Vizcaya that the aforesaid provision was concocted and designed precisely to frustrate any bid of herein petitioner to make a political come back [sic] as governor of Nueva Vizcaya. The wordings [sic] of the law is so peculiarly attuned to discriminate against herein petitioner because every condition imposed as disqualification grounds are known to be possessed by him because he was a former elective provincial official who has received his retirement benefits, he desires to run for the same elective office and at the commencement of the term of office to which he now seeks to be elected, he shall have reached 65 years of age. 4 Clearly then, the plea for invalidating such provision is the motive attributed to the Interim Batasang Pambansa. For petitioner, it amounted to a constitutional infirmity fatal in character. The weakness of the petition is thus apparent. No decision of this Tribunal can be cited in support of such a proposition. It would be to extend unduly the concept of judicial review if a court can roam far and wide and range at will over the variety and diversity of the reasons, the promptings that may lead a legislator to cast his vote for or against a proposed legislation. It is not what inspired the introduction of a bill but the effect thereof if duly enacted that is decisive. That would be the test for its validity or lack of it. There is this relevant excerpt from McCray v. United States: 5 "The decisions of this Court [Supreme Court of the United States] from the beginning lend no support whatever to the assumption that the judiciary may restrain the exercise of lawful power on the assumption that a wrongful purpose of motive has caused the power to be exerted. 6 The late Chief Justice Warren, who penned the opinion in United States v. O' Brien 7 put the matter thus: "Inquiries into congressional motives or purposes are a hazardous matter. When the issue is simply the interpretation of legislation, the Court will look to statements by legislators for guidance as to the purpose of the legislature, because the benefit to sound decision-making in this circumstance is thought sufficient to risk the possibility of misreading Congress' purpose. It is entirely a different matter when we are asked to void a statute that is, under well-settled criteria, constitutional on its face, on the basis of what fewer than a handful of Congressmen said about it. What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork. We decline to void essentially on the ground that it is unwise legislation which Congress had the undoubted power to enact and which could be reenacted in its exact form if the same or another legislator made a 'wiser' speech about it." 8 2. If, however, the provision in question is susceptible to the reproach that it amounts to a denial of equal protection, then his plea for nullification should be accorded a sympathetic response. As the opinion of the Court makes clear, such imputation is not deserving of credence. The classification cannot be stigmatized as lacking in rationality. It is germane to the subject. Age, as well as the fact of retirement and the receipt of retirement benefits are factors that can enter into any legislative determination of what disqualifications to impose. As was pointed out in J.M. Tuason and Co., Inc. v. Land Tenure Administration: 9 "It suffices then that the laws operate equally and uniformly on all persons under similar circumstances or that all persons must be treated in the same manner, the conditions not being different, both in the privileges conferred and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances, which if not Identical, are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest. 10 It cannot be denied that others similarly fall under the same ban. It was not directed at petitioner solely. The most that can be said is that he falls within the-proscribed class. The point was likewise raised as to why should national officials be excluded in the above provision. The answer is simple. There is nothing to prevent the legislative body from following a system of priorities. This it did under the challenged legislative provision. In its opinion, what called for such a measure is the propensity of the local officials having reached the retirement age and having received retirement benefits

once again running for public office. Accordingly, the provision in question was enacted. A portion of the opinion in the aforesaid J.M. Tuason and Co., Inc. finds relevance: "It was confronted with a situation that caned for correction, and the legislation that was the result of its deliberation sought to apply the necessary palliative. That it stopped short of possibly attaining the cure of other analogous ills certainly does not stigmatize its effort as a denial of equal protection. We have given our sanction to the principle underlying the exercise of police power and taxation, but certainly not excluding eminent domain, that 'the legislature is not required by the Constitution to adhere to the policy of all "or none." ' Thus, to reiterate, the invocation by petitioner of the equal protection clause is futile and unavailing ." 11 3. That brings us to the assailed provision as to the sufficiency of the filing of charges for the commission of such crimes as subversion, insurrection, rebellion or others of similar nature before a civil court or military tribunal after preliminary investigation, being a prima facie evidence of such fact and therefore justifying the disqualification of a candidate. The opinion of the Court invoked the constitutional presumption of innocence as a basis for its being annulled. That conclusion is well-founded. Such being the case, I am in full agreement. I would add that such a provision is moreover tainted with arbitrariness and therefore is violative of the due process clause. Such a constitutional right, to quote from Luzon Surety Co., Inc. v. Beson, 12 is "not a mere formality that may be dispensed with at will. Its disregard is a matter of serious concern. It is a constitutional safeguard of the highest order. It is a response to man's innate sense of justice." 13 As rightfully stressed in the opinion of the Court, the time element may invariably preclude a full hearing on the charge against him and thus effectively negate the opportunity of an individual to present himself as a candidate. If, as has been invariably the case, a prosecutor, whether in a civil court or in a military tribunal saddled as he is with so many complaints filed on his desk would give in to the all-too-human propensity to take the easy way out and to file charges, then a candidate Would be hard put to destroy the presumption. A sense of realism for me compels a declaration of nullity of a provision which on its face is patently offensive to the Constitution. Hence my concurrence. TEEHANKEE, J., dissenting: Files a separate opinion dissenting from the adverse ruling on Dumlaos candidacy and declining to rule on the invalidity of the first part of Section 4 of the questioned Law; and concurs with the pronouncement that the mere filing of charges shall be prima facie cause for disqualification is void. I. I dissent from the majority's dismissal of the petition insofar as it upholds the discriminatory and arbitrary provision of Sec. 4 of Batas Pambansa Blg. 52 which would impose a special disqualification on petitioner Patricio Dumlao from running for the elective local office of governor of his home province of Nueva Vizcaya and would in effect bar the electors of his province from electing him to said office in the January 30 elections, simply because he is a retired provincial governor of said province "who has received payment of the retirement benefits to which he is entitled under the law and who shall have been 65 years of age at the commencement of the term of office to which he seeks to be elected." To specially and peculiarly ban a 65-year old previously retired elective local official from running for the same elective office (of governor, in this case) previously held by him and from which he has retired is arbitrary, oppressive and unreasonable. Persons similarly situated are not similarly treated, e.g. a retired vice-governor, mayor or councilor of 65 is entitled to run for governor (because the disqualification is for the retiree of 65 to run for the same elective office from which he retired) but petitioner is barred from doing so (although he may run for any other lesser office). Both are 65 and are retirees, yet one is barred from running for the office of governor. What is the valid distinction? Is this not an arbitrary discrimination against petitioner who has cause to that "the aforesaid provision was concocted and designed precisely to frustrate any bid of petition to make a political comeback as governor of Nueva Vizcaya 1 — (since no other case by a former governor similarly barred by virtue of said provision can never be cited 2 ). Is there not here, therefore a gross denial of the cardinal constitutional guarantee that equal protection and security shall be given under the law to every person, under analogous if not Identical circumstances?

Respondent's claim, as accepted by the majority, is that the purpose of the special disqualification is "to infuse new blood in local governments but the classification (that would bar 65-year old retirees from running for the same elective local office) is not rational nor reasonable. It is not germane nor relevant to the alleged purpose of "infusing new blood" because such "old blood" retirees may continue in local governments since they are not disqualified at all to run for any other local elective office such as from provincial governor, vicegovernor, city, municipal or district mayor and vice- mayor to member of the Sangguniang Panlalawigan Sangguniang Panglunsod and Sangguniang Bayan, other than the local elective office from which they retired. Furthermore, other 65-year olds who have likewise retired from the judiciary and other branches of government are not in any manner disqualified to run for any local elective office, as in the case of retired Court of First Instance Judge (former Congressman) Alberto S. Ubay who retired with full substantial retirement benefits as such judge in 1978 at age 70 and now at past 71 years of age, is running as the official KBL candidate for governor of his province. And even in the case of 65-year old local elective officials, they are disqualified only when they have received payment of the retirement benefits to which they are entitled under the law (which amount to very little, compared to retirement benefits of other executive officials and members of the judiciary). If they have not received such retirement benefits, they are not disqualified. Certainly, their disqualification or non-disqualification and consequent classification as "old blood" or "new blood" cannot hinge on such an irrelevant question of whether or not they have received their retirement benefits. The classification is patently arbitrary and unreasonable and is not based on substantial distinctions which make for real differences that would justify the special disqualification of petitioner, which, it is claimed, "is based on a presumption that elective local officials who have retired and are of advanced age cannot discharge the functions of the office they seek as those who are differently situated." 3 Such presumption is sheer conjecture. The mere fact that a candidate is less than 65 or has "young or new blood" does not mean that he would be more efficient, effective and competent than a mature 65year old like petition er who has had experience on the job and who was observed at the hearing to appear to be most physically fit. Sufice it to city the outstanding case of the incumbent ebullient Minister of Foreign Affairs, General Carlos P. Romulo, who was elected a 80 as a member of the Interim Batasan Pambansa and who has just this month completed 81 years of age and has been hailed by the President himself as "the best foreign minister the Republic has ever had Age has simply just never been a yardstick for qualification or disqualification. Al. the most, a minimum age to hold public office has been required as a qualification to insure a modicum of maturity 'now reduced to 21 years in the present batas), but no maximum age has ever been imposed as a disqualification for elect public office since the right and win of the people to elect the candidate of their choice for any elective office, no matter his age has always been recognized as supreme. The disqualification in question therefore is grossly violative of the equal protection clause which mandates that all persons subjected to legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. The guarantee is meant to proscribe undue favor and individual or class privilege on the one hand and hostile discrimination and the oppression of in quality on the other. The questioned provision should therefore at the least be declared invalid in its application insofar as it would disqualify petitioner from running for the office of governor of his province. As aptly restated by the Chief Justice, "Persons similarly situated should be similarly treated. Where no valid distinction could be made as to the relevant conditions that call for consideration, there should be none as to the privileges conferred and the liabilities imposed. There can be no undue favoritism or partiality on the one hand or hostility on the other. Arbitrary selection and discrimination against persons in thus ruled out. For the principle is that equal protection and security shall be given to every person under circumstances, which if not Identical are analogous. If law be looked upon in terms of burden or charges, those that full within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest." 4

Finally, this arbitrary disqualification is likewise grossly violative of Article XII, sub-article C, section 9(1) of the 1973 Constitution that Bona fide candidates for any public office shall be free from any form of harassment and discrimination. II. I concur with the majority's declaration of invalidity of the portion of the second paragraph of Section 4 of Batas Pambansa Blg. 52 which would make the mere filing of charges of subversion, insurrection, rebellion or other similar crimes before a civil court or military tribunal after preliminary investigation prima facie evidence of the fact of commission of an act of disloyalty to the State on the part of the candidate and disqualify him from his candidacy. Such a provision could be the most insidious weapon to disqualify bona fide candidates who seem to be headed for election and places in the hands of the military and civil prosecutors a dangerous and devastating weapon of cutting off any candidate who may not be to their filing through the filing of last-hour charges against him. I also concur with the pronouncement made in the majority decision that in order that a judgment of conviction may be deemed "as conclusive evidence" of the candidate's disloyalty to the State and of his disqualification from office, such judgment of conviction must be final and unappealable. This is so specifically provided in Section 22 of the 1978 Election Code. 5 Otherwise, the questioned provision would deny the bona fide candidate substantive due process and would be grossly violative of his constitutional right of presumption of innocence and of the above-quoted provision of the 1973 Constitution protecting candidates for public office from any form of harassment and discrimination. ADDENDUM When the case was voted upon a second time last January 21st, there appeared to be a majority in favor of the declarations and pronouncements above referred to in the two preceding paragraphs, in view of the urgency of the matter and the evil sought to be avoided. However, as of this writing, January 23, 1980 in the afternoon, such majority seems to have been dissipated by the view that the action to nullify such second paragraph of section 4 of the Batas in question is premature and has not been properly submitted for ajudication under the strict procedural require . If this be the case, my above views, termed as concurrences, should be taken as dissents against the majority action.

Separate Opinions BARREDO, J., concurring: But as regards the matter of equal protection, I reiterate my view for Peralta that Sec. 9(1) Art. XI I is more expensive than the equal protection clause. AQUINO, J, concurring: concur in the result as to paragraph I of the dispositive part of the decision. I dissent as to paragraph 2. In my opinion, paragraph 2, section 4 of Batas Pambansa Bilang 52 is valid, being similar to certain presumptions in Articles 217 and 315 of the Penal Code, as amended by Republic Act No. 4885. See U.S. v. Luling, 34 Phil. 725 and People v. Mingoa, 92 Phil. 856. ABAD SANTOS, J., concurring: concur but wish to add that a judgment of conviction as provided in Sec. 4, par. 2 of Batas Pambansa Big. 52 should be one which is final and unappealable. FERNANDO, C.J., concurring. It is particularly gratifying that the reiteration in the ably-written and scholarly opinion of the Court, penned by Justice Melencio-Herrera, of the standard that must be met before the power of judicial review may be availed of, set forth with such lucidity and force by Justice Laurel in the two leading cases of Angara v. Electoral Commission 1 and People v. Vera, 2 did not constitute

an obstacle to this Court ruling on the crucial constitutional issues raised. It was a cause for concern, for me at least, that counsel of private parties in not a few cases in the recent past had shown less than full awareness of the doctrines, procedural in character, that call for application whenever the exercise of this awesome and delicate responsibility of adjudging the validity of a statute or presidential decree is invoked. 3While this Court cannot be accused of being bound by the letters of judicial timidity, it remains true that no cavalier disregard of tried and tested concepts should be given encouragement. A petitioner who bases his claim for relief on asserted constitutional deficiencies deserves to be heard. That goes without saying. For the judiciary must ever endeavor to vindicate rights safeguarded by the fundamental law. In that sense, this Tribunal is not susceptible to the reproach that it has imprisoned itself in its allegiance to the philosophy of judicial self-restraint. There are, however, limits to judicial activism. It cannot be too strongly stressed that a petition of this character must ever remain an orderly proceeding that cannot be oblivious of the requisites to be complied with to justify a pronouncement on constitutional issues. Where there is exuberance in the exercise of judicial power, the forms of litigation are but slight retaining walls. It is right and proper that the voice of the Solicitor General should be heard in protest against such neglect of rudimentary precepts. Necessarily then, whenever objections based on refusal to abide by the procedural principles are presented, this Court must rule. It would suffice if thereby the petition is dismissed for nonobservance of the controlling doctrines. There are times, however, when the controversy is of such a character that to resolve doubts, erase uncertainty, and assure respect for constitutional limitations, this Tribunal must pass on the merits. This is one such case. I therefore concur with the opinion of the Court. It may be a task of superfluity then to write a concurring opinion. Nonetheless, a few words may not be amiss on what for me is the proper approach to take as to the lack of power of this Court to pass on the motives of the legislative body, on the lack of persuasiveness of petitioner's argument based on the equal protection guarantee, and on the fundamental concept of fairness of which the due process clause is an embodiment, thus calling for the nullification of the disqualification of a candidate upon the mere filing of charges against him. 1. The challenge to the provision in question is predicated on what was referred to as "a known fact in the province of Nueva Vizcaya that the aforesaid provision was concocted and designed precisely to frustrate any bid of herein petitioner to make a political come back [sic] as governor of Nueva Vizcaya. The wordings [sic] of the law is so peculiarly attuned to discriminate against herein petitioner because every condition imposed as disqualification grounds are known to be possessed by him because he was a former elective provincial official who has received his retirement benefits, he desires to run for the same elective office and at the commencement of the term of office to which he now seeks to be elected, he shall have reached 65 years of age. 4 Clearly then, the plea for invalidating such provision is the motive attributed to the Interim Batasang Pambansa. For petitioner, it amounted to a constitutional infirmity fatal in character. The weakness of the petition is thus apparent. No decision of this Tribunal can be cited in support of such a proposition. It would be to extend unduly the concept of judicial review if a court can roam far and wide and range at will over the variety and diversity of the reasons, the promptings that may lead a legislator to cast his vote for or against a proposed legislation. It is not what inspired the introduction of a bill but the effect thereof if duly enacted that is decisive. That would be the test for its validity or lack of it. There is this relevant excerpt from McCray v. United States: 5 "The decisions of this Court [Supreme Court of the United States] from the beginning lend no support whatever to the assumption that the judiciary may restrain the exercise of lawful power on the assumption that a wrongful purpose of motive has caused the power to be exerted. 6 The late Chief Justice Warren, who penned the opinion in United States v. O' Brien 7 put the matter thus: "Inquiries into congressional motives or purposes are a hazardous matter. When the issue is simply the interpretation of legislation, the Court will look to statements by legislators for guidance as to the purpose of the legislature, because the benefit to sound decision-making in this circumstance is thought sufficient to risk the possibility of misreading Congress' purpose. It is entirely a different matter when we are asked to void a statute that is, under well-settled criteria, constitutional on its face, on the basis of what fewer than a handful of Congressmen said about it. What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork. We decline to void essentially on the ground that it is unwise legislation which Congress had the undoubted power to enact and which could be reenacted in its exact form if the same or another legislator made a 'wiser' speech about it." 8

2. If, however, the provision in question is susceptible to the reproach that it amounts to a denial of equal protection, then his plea for nullification should be accorded a sympathetic response. As the opinion of the Court makes clear, such imputation is not deserving of credence. The classification cannot be stigmatized as lacking in rationality. It is germane to the subject. Age, as well as the fact of retirement and the receipt of retirement benefits are factors that can enter into any legislative determination of what disqualifications to impose. As was pointed out in J.M. Tuason and Co., Inc. v. Land Tenure Administration: 9 "It suffices then that the laws operate equally and uniformly on all persons under similar circumstances or that all persons must be treated in the same manner, the conditions not being different, both in the privileges conferred and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances, which if not Identical, are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest. 10 It cannot be denied that others similarly fall under the same ban. It was not directed at petitioner solely. The most that can be said is that he falls within the-proscribed class. The point was likewise raised as to why should national officials be excluded in the above provision. The answer is simple. There is nothing to prevent the legislative body from following a system of priorities. This it did under the challenged legislative provision. In its opinion, what called for such a measure is the propensity of the local officials having reached the retirement age and having received retirement benefits once again running for public office. Accordingly, the provision in question was enacted. A portion of the opinion in the aforesaid J.M. Tuason and Co., Inc. finds relevance: "It was confronted with a situation that caned for correction, and the legislation that was the result of its deliberation sought to apply the necessary palliative. That it stopped short of possibly attaining the cure of other analogous ills certainly does not stigmatize its effort as a denial of equal protection. We have given our sanction to the principle underlying the exercise of police power and taxation, but certainly not excluding eminent domain, that 'the legislature is not required by the Constitution to adhere to the policy of all "or none." ' Thus, to reiterate, the invocation by petitioner of the equal protection clause is futile and unavailing ." 11 3. That brings us to the assailed provision as to the sufficiency of the filing of charges for the commission of such crimes as subversion, insurrection, rebellion or others of similar nature before a civil court or military tribunal after preliminary investigation, being a prima facie evidence of such fact and therefore justifying the disqualification of a candidate. The opinion of the Court invoked the constitutional presumption of innocence as a basis for its being annulled. That conclusion is well-founded. Such being the case, I am in full agreement. I would add that such a provision is moreover tainted with arbitrariness and therefore is violative of the due process clause. Such a constitutional right, to quote from Luzon Surety Co., Inc. v. Beson, 12 is "not a mere formality that may be dispensed with at will. Its disregard is a matter of serious concern. It is a constitutional safeguard of the highest order. It is a response to man's innate sense of justice." 13 As rightfully stressed in the opinion of the Court, the time element may invariably preclude a full hearing on the charge against him and thus effectively negate the opportunity of an individual to present himself as a candidate. If, as has been invariably the case, a prosecutor, whether in a civil court or in a military tribunal saddled as he is with so many complaints filed on his desk would give in to the all-too-human propensity to take the easy way out and to file charges, then a candidate Would be hard put to destroy the presumption. A sense of realism for me compels a declaration of nullity of a provision which on its face is patently offensive to the Constitution. Hence my concurrence. TEEHANKEE, J., dissenting: Files a separate opinion dissenting from the adverse ruling on Dumlaos candidacy and declining to rule on the invalidity of the first part of Section 4 of the questioned Law; and concurs with the pronouncement that the mere filing of charges shall be prima facie cause for disqualification is void. I. I dissent from the majority's dismissal of the petition insofar as it upholds the discriminatory and arbitrary provision of Sec. 4 of Batas Pambansa Blg. 52 which would impose a special disqualification on petitioner Patricio Dumlao from running for the elective local office of governor of his home province of Nueva

Vizcaya and would in effect bar the electors of his province from electing him to said office in the January 30 elections, simply because he is a retired provincial governor of said province "who has received payment of the retirement benefits to which he is entitled under the law and who shall have been 65 years of age at the commencement of the term of office to which he seeks to be elected. To specially and peculiarly ban a 65-year old previously retired elective local official from running for the same elective office (of governor, in this case) previously held by him and from which he has retired is arbitrary, oppressive and unreasonable. Persons similarly situated are not similarly treated, e.g. a retired vice-governor, mayor or councilor of 65 is entitled to run for governor (because the disqualification is for the retiree of 65 to run for the same elective office from which he retired) but petitioner is barred from doing so (although he may run for any other lesser office). Both are 65 and are retirees, yet one is barred from running for the office of governor. What is the valid distinction? Is this not an arbitrary discrimination against petitioner who has cause to that "the aforesaid provision was concocted and designed precisely to frustrate any bid of petition to make a political comeback as governor of Nueva Vizcaya 1 — (since no other case by a former governor similarly barred by virtue of said provision can never be cited 2 ). Is there not here, therefore a gross denial of the cardinal constitutional guarantee that equal protection and security shall be given under the law to every person, under analogous if not Identical circumstances? Respondent's claim, as accepted by the majority, is that the purpose of the special disqualification is "to infuse new blood in local governments but the classification (that would bar 65-year old retirees from running for the same elective local office) is not rational nor reasonable. It is not germane nor relevant to the alleged purpose of "infusing new blood" because such "old blood" retirees may continue in local governments since they are not disqualified at all to run for any other local elective office such as from provincial governor, vicegovernor, city, municipal or district mayor and vice- mayor to member of the Sangguniang Panlalawigan Sangguniang Panglunsod and Sangguniang Bayan, other than the local elective office from which they retired. Furthermore, other 65-year olds who have likewise retired from the judiciary and other branches of government are not in any manner disqualified to run for any local elective office, as in the case of retired Court of First Instance Judge (former Congressman) Alberto S. Ubay who retired with full substantial retirement benefits as such judge in 1978 at age 70 and now at past 71 years of age, is running as the official KBL candidate for governor of his province. And even in the case of 65-year old local elective officials, they are disqualified only when they have received payment of the retirement benefits to which they are entitled under the law (which amount to very little, compared to retirement benefits of other executive officials and members of the judiciary). If they have not received such retirement benefits, they are not disqualified. Certainly, their disqualification or non-disqualification and consequent classification as "old blood" or "new blood" cannot hinge on such an irrelevant question of whether or not they have received their retirement benefits. The classification is patently arbitrary and unreasonable and is not based on substantial distinctions which make for real differences that would justify the special disqualification of petitioner, which, it is claimed, "is based on a presumption that elective local officials who have retired and are of advanced age cannot discharge the functions of the office they seek as those who are differently situated." 3 Such presumption is sheer conjecture. The mere fact that a candidate is less than 65 or has "young or new blood" does not mean that he would be more efficient, effective and competent than a mature 65year old like petition er who has had experience on the job and who was observed at the hearing to appear to be most physically fit. Sufice it to city the outstanding case of the incumbent ebullient Minister of Foreign Affairs, General Carlos P. Romulo, who was elected a 80 as a member of the Interim Batasan Pambansa and who has just this month completed 81 years of age and has been hailed by the President himself as "the best foreign minister the Republic has ever had Age has simply just never been a yardstick for qualification or disqualification. Al. the most, a minimum age to hold public office has been required as a qualification to insure a modicum of maturity 'now reduced to 21 years in the present batas), but no maximum age has ever been imposed as a disqualification for elect public office since the right and win of the people to elect the candidate

of their choice for any elective office, no matter his age has always been recognized as supreme. The disqualification in question therefore is grossly violative of the equal protection clause which mandates that all persons subjected to legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. The guarantee is meant to proscribe undue favor and individual or class privilege on the one hand and hostile discrimination and the oppression of in quality on the other. The questioned provision should therefore at the least be declared invalid in its application insofar as it would disqualify petitioner from running for the office of governor of his province. As aptly restated by the Chief Justice, "Persons similarly situated should be similarly treated. Where no valid distinction could be made as to the relevant conditions that call for consideration, there should be none as to the privileges conferred and the liabilities imposed. There can be no undue favoritism or partiality on the one hand or hostility on the other. Arbitrary selection and discrimination against persons in thus ruled out. For the principle is that equal protection and security shall be given to every person under circumstances, which if not Identical are analogous. If law be looked upon in terms of burden or charges, those that full within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest." 4 Finally, this arbitrary disqualification is likewise grossly violative of Article XII, sub-article C, section 9(1) of the 1973 Constitution that Bona fide candidates for any public office shall be free from any form of harassment and discrimination. II. I concur with the majority's declaration of invalidity of the portion of the second paragraph of Section 4 of Batas Pambansa Blg. 52 which would make the mere filing of charges of subversion, insurrection, rebellion or other similar crimes before a civil court or military tribunal after preliminary investigation prima facie evidence of the fact of commission of an act of disloyalty to the State on the part of the candidate and disqualify him from his candidacy. Such a provision could be the most insidious weapon to disqualify bona fide candidates who seem to be headed for election and places in the hands of the military and civil prosecutors a dangerous and devastating weapon of cutting off any candidate who may not be to their filing through the filing of last-hour charges against him. I also concur with the pronouncement made in the majority decision that in order that a judgment of conviction may be deemed "as conclusive evidence" of the candidate's disloyalty to the State and of his disqualification from office, such judgment of conviction must be final and unappealable. This is so specifically provided in Section 22 of the 1978 Election Code. 5 Otherwise, the questioned provision would deny the bona fide candidate substantive due process and would be grossly violative of his constitutional right of presumption of innocence and of the above-quoted provision of the 1973 Constitution protecting candidates for public office from any form of harassment and discrimination. ADDENDUM When the case was voted upon a second time last January 21st, there appeared to be a majority in favor of the declarations and pronouncements above referred to in the two preceding paragraphs, in view of the urgency of the matter and the evil sought to be avoided. However, as of this writing, January 23, 1980 in the afternoon, such majority seems to have been dissipated by the view that the action to nullify such second paragraph of section 4 of the Batas in question is premature and has not been properly submitted for ajudication under the strict procedural require . If this be the case, my above views, termed as concurrences, should be taken as dissents against the majority action. G.R. No. 147780

May 10, 2001

PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO, petitioners, vs. SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents.

---------------------------------------G.R. No. 147781

May 10, 2001

MIRIAM DEFENSOR-SANTIAGO, petitioner, vs. ANGELO REYES, Secretary of National Defense, ET AL., respondents. ---------------------------------------G.R. No. 147799

May 10, 2001

RONALDO A. LUMBAO, petitioner, vs. SECRETARY HERNANDO PEREZ, GENERAL DIOMEDIO VILLANUEVA, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents. ---------------------------------------G.R. No. 147810

May 10, 2001

THE LABAN NG DEMOKRATIKONG PILIPINO, petitioner, vs. THE DEPARTMENT OF JUSTICE, SECRETARY HERNANDO PEREZ, THE ARMED FORCES OF THE PHILIPPINES, GENERAL DIOMEDIO VILLANUEVA, THE PHILIPPINE NATIONAL POLICE, and DIRECTOR GENERAL LEANDRO MENDOZA, respondents. RESOLUTION MELO, J.: On May 1, 2001, President Macapagal-Arroyo, faced by an "angry and violent mob armed with explosives, firearms, bladed weapons, clubs, stones and other deadly weapons" assaulting and attempting to break into Malacañang, issued Proclamation No. 38 declaring that there was a state of rebellion in the National Capital Region. She likewise issued General Order No. 1 directing the Armed Forces of the Philippines and the Philippine National Police to suppress the rebellion in the National Capital Region. Warrantless arrests of several alleged leaders and promoters of the "rebellion" were thereafter effected. Aggrieved by the warrantless arrests, and the declaration of a "state of rebellion," which allegedly gave a semblance of legality to the arrests, the following four related petitions were filed before the Court – (1) G. R. No. 147780 for prohibition, injunction, mandamus, and habeas corpus (with an urgent application for the issuance of temporary restraining order and/or writ of preliminary injunction) filed by Panfilio M. Lacson, Michael Ray B. Aquino, and Cezar O. Mancao; (2) G. R. No. 147781 for mandamus and/or review of the factual basis for the suspension of the privilege of the writ of habeas corpus, with prayer for the suspension of the privilege of the writ of habeas corpus, with prayer for a temporary restraining order filed by Miriam Defensor-Santiago; (3) G. R. No. 147799 for prohibition and injunction with prayer for a writ of preliminary injunction and/or restraining order filed by Ronaldo A. Lumbao; and (4) G. R. No. 147810 for certiorari and prohibition filed by the political party Laban ng Demokratikong Pilipino. All the foregoing petitions assail the declaration of a state of rebellion by President Gloria Macapagal-Arroyo and the warrantless arrests allegedly effected by virtue thereof, as having no basis both in fact and in law. Significantly, on May 6, 2001, President Macapagal-Arroyo ordered the lifting of the declaration of a "state of rebellion" in Metro Manila. Accordingly, the instant petitions have been rendered moot and academic. As to petitioners' claim that the proclamation of a "state of rebellion" is being used by the authorities to justify warrantless arrests, the Secretary of Justice denies that it has issued a particular order to arrest specific persons in connection with the "rebellion." He states that what is extant are general instructions

to law enforcement officers and military agencies to implement Proclamation No. 38. Indeed, as stated in respondents' Joint Comments: [I]t is already the declared intention of the Justice Department and police authorities to obtain regular warrants of arrests from the courts for all acts committed prior to and until May 1, 2001 which means that preliminary investigations will henceforth be conducted. (Comment, G.R. No. 147780, p. 28; G.R. No. 147781, p. 18; G.R. No. 147799, p. 16; G.R. No. 147810, p. 24) With this declaration, petitioners' apprehensions as to warrantless arrests should be laid to rest. In quelling or suppressing the rebellion, the authorities may only resort to warrantless arrests of persons suspected of rebellion, as provided under Section 5, Rule 113 of the Rules of Court, if the circumstances so warrant. The warrantless arrest feared by petitioners is, thus, not based on the declaration of a "state of rebellion." Moreover, petitioners' contention in G. R. No. 147780 (Lacson Petition), 147781 (DefensorSantiago Petition), and 147799 (Lumbao Petition) that they are under imminent danger of being arrested without warrant do not justify their resort to the extraordinary remedies of mandamus and prohibition, since an individual subjected to warrantless arrest is not without adequate remedies in the ordinary course of law. Such an individual may ask for a preliminary investigation under Rule 112 of the Rules of Court, where he may adduce evidence in his defense, or he may submit himself to inquest proceedings to determine whether or not he should remain under custody and correspondingly be charged in court. Further, a person subject of a warrantless arrest must be delivered to the proper judicial authorities within the periods provided in Article 125 of the Revised Penal Code, otherwise the arresting officer could be held liable for delay in the delivery of detained persons. Should the detention be without legal ground, the person arrested can charge the arresting officer with arbitrary detention. All this is without prejudice to his filing an action for damages against the arresting officer under Article 32 of the Civil Code. Verily, petitioners have a surfeit of other remedies which they can avail themselves of, thereby making the prayer for prohibition and mandamus improper at this time (Section 2 and 3, Rule 65, Rules of Court).1âwphi1.nêt Aside from the foregoing reasons, several considerations likewise inevitably call for the dismissal of the petitions at bar. G.R. No. 147780 In connection with their alleged impending warrantless arrest, petitioners Lacson, Aquino, and mancao pray that the "appropriate court before whom the informations against petitioners are filed be directed to desist from arraigning and proceeding with the trial of the case, until the instant petition is finally resolved." This relief is clearly premature considering that as of this date, no complaints or charges have been filed against any of the petitioners for any crime. And in the event that the same are later filed, this Court cannot enjoin criminal prosecution conducted in accordance with the Rules of Court, for by that time any arrest would have been in pursuant of a duly issued warrant. As regards petitioners' prayer that the hold departure orders issued against them be declared null and void ab initio, it is to be noted that petitioners are not directly assailing the validity of the subject hold departure orders in their petition. They are not even expressing intention to leave the country in the near future. The prayer to set aside the same must be made in proper proceedings initiated for that purpose. Anent petitioners' allegations ex abundante ad cautelam in support of their application for the issuance of a writ of habeas corpus, it is manifest that the writ is not called for since its purpose is to relieve petitioners from unlawful restraint (Ngaya-an v. Balweg, 200 SCRA 149 [1991]), a matter which remains speculative up to this very day. G.R. No. 147781

The petition herein is denominated by petitioner Defensor-Santiago as one for mandamus. It is basic in matters relating to petitions for mandamus that the legal right of the petitioner to the performance of a particular act which is sought to be compelled must be clear and complete. Mandamus will not issue unless the right to relief is clear at the time of the award (Palileo v. Ruiz Castro, 85 Phil. 272). Up to the present time, petitioner Defensor Santiago has not shown that she is in imminent danger of being arrested without a warrant. In point of fact, the authorities have categorically stated that petitioner will not be arrested without a warrant. G.R. No. 147799 Petitioner Lumbao, leader of the People's Movement against Poverty (PMAP), for his part, argues that the declaration of a "state of rebellion" is violative of the doctrine of separation of powers, being an encroachment on the domain of the judiciary which has the constitutional prerogative to "determine or interpret" what took place on May 1, 2001, and that the declaration of a state of rebellion cannot be an exception to the general rule on the allocation of the governmental powers. We disagree. To be sure, Section 18, Article VII of the Constitution expressly provides that "[t]he President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion…" Thus, we held in Integrated Bar of the Philippines v. Hon. Zamora, (G.R. No. 141284, August 15, 2000): x x x The factual necessity of calling out the armed forces is not easily quantifiable and cannot be objectively established since matters considered for satisfying the same is a combination of several factors which are not always accessible to the courts. Besides the absence of textual standards that the court may use to judge necessity, information necessary to arrive at such judgment might also prove unmanageable for the courts. Certain pertinent information might be difficult to verify, or wholly unavailable to the courts. In many instances, the evidence upon which the President might decide that there is a need to call out the armed forces may be of a nature not constituting technical proof. On the other hand, the President as Commander-in-Chief has a vast intelligence network to gather information, some of which may be classified as highly confidential or affecting the security of the state. In the exercise of the power to call, on-the-spot decisions may be imperatively necessary in emergency situations to avert great loss of human lives and mass destruction of property. x x x (at pp.22-23) The Court, in a proper case, may look into the sufficiency of the factual basis of the exercise of this power. However, this is no longer feasible at this time, Proclamation No. 38 having been lifted. G.R. No. 147810 Petitioner Laban ng Demokratikong Pilipino is not a real party-in-interest. The rule requires that a party must show a personal stake in the outcome of the case or an injury to himself that can be redressed by a favorable decision so as to warrant an invocation of the court's jurisdiction and to justify the exercise of the court's remedial powers in his behalf (KMU Labor Center v. Garcia, Jr., 239 SCRA 386 [1994]). Here, petitioner has not demonstrated any injury to itself which would justify resort to the Court. Petitioner is a juridical person not subject to arrest. Thus, it cannot claim to be threatened by a warrantless arrest. Nor is it alleged that its leaders, members, and supporters are being threatened with warrantless arrest and detention for the crime of rebellion. Every action must be brought in the name of the party whose legal right has been invaded or infringed, or whose legal right is under imminent threat of invasion or infringement. At best, the instant petition may be considered as an action for declaratory relief, petitioner claiming that its right to freedom of expression and freedom of assembly is affected by the

declaration of a "state of rebellion" and that said proclamation is invalid for being contrary to the Constitution. However, to consider the petition as one for declaratory relief affords little comfort to petitioner, this Court not having jurisdiction in the first instance over such a petition. Section 5[1], Article VIII of the Constitution limits the original jurisdiction of the Court to cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. WHEREFORE, premises considered, the petitions are hereby DISMISSED. However, in G.R. No. 147780, 147781, and 147799, respondents, consistent and congruent with their undertaking earlier adverted to, together with their agents, representatives, and all persons acting for and in their behalf, are hereby enjoined from arresting petitioners therein without the required judicial warrant for all acts committed in relation to or in connection with the may 1, 2001 siege of Malacañang. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Gonzaga-Reyes, JJ., concur. Vitug, separate opinion. Kapunan, dissenting opinion. Pardo, join the dissent of J. Kapunan. Sandoval-Gutierrez, dissenting opinion. Quisumbing, Buena, Ynares-Santiago, De Leon, Jr., on leave.

G.R. No. 147780

May 10, 2001

PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO, petitioners, vs. SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents. ---------------------------------------G.R. No. 147781

May 10, 2001

MIRIAM DEFENSOR-SANTIAGO, petitioner, vs. ANGELO REYES, Secretary of National Defense, ET AL., respondents. SEPARATE OPINION VITUG, J.: I concur insofar as the resolution enjoins any continued warrantless arrests for acts related to, or connected with, the May 1st incident but respectfully dissent from the order of dismissal of the petitions for being said to be moot and academic. The petitions have raised important constitutional issues that, in my view, must likewise be fully addressed.

G.R. No. 147780

May 10, 2001

PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO, petitioners, vs. SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents. ---------------------------------------G.R. No. 147781

May 10, 2001

MIRIAM DEFENSOR-SANTIAGO, petitioner, vs. ANGELO REYES, Secretary of National Defense, ET AL., respondents. ---------------------------------------G.R. No. 147799

May 10, 2001

RONALDO A. LUMBAO, petitioner, vs. SECRETARY HERNANDO PEREZ, GENERAL DIOMEDIO VILLANUEVA, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents. ---------------------------------------G.R. No. 147810

May 10, 2001

THE LABAN NG DEMOKRATIKONG PILIPINO, petitioner, vs. THE DEPARTMENT OF JUSTICE, SECRETARY HERNANDO PEREZ, THE ARMED FORCES OF THE PHILIPPINES, GENERAL DIOMEDIO VILLANUEVA, THE PHILIPPINE NATIONAL POLICE, and DIRECTOR GENERAL LEANDRO MENDOZA, respondents. DISSENTING OPINION KAPUNAN, J.: The right against unreasonable searches and seizure has been characterized as belonging "in the catalog of indispensable freedoms." Among deprivation of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.1 Invoking the right against unreasonable searches and seizures, petitioners Panfilo Lacson, Michael Ray Aquino and Cezar O. Mancao II now seek a temporary restraining order and/or injunction from the Court against their impending warrantless arrests upon order of the Secretary of Justice.2 Petitioner Laban ng Demokratikong Pilipino (LDP), likewise, seeks to enjoin the arrests of its senatorial candidates, namely, Senator Juan Ponce-Enrile, Senator Miriam Defensor-Santiago, Senator Gregorio B. Honasan and General Panfilo

Lacson.3 Separate petitioners were also filed by Senator Juan Ponce Enrile.4 Former Ambassador Ernesto M. Maceda,5 Senator Miriam Defensor-Santiago,6Senator Gregorio B. Honasan,7 and the Integrated Bar of the Philippines (IBP).8 Briefly, the order for the arrests of these political opposition leaders and police officers stems from the following facts: On April 25, 2001, former President Joseph Estrada was arrested upon the warrant issued by the Sandiganbayan in connection with the criminal case for plunder filed against him. Several hundreds of policemen were deployed to effect his arrest. At the time, a number of Mr. Estrada's supporters, who were then holding camp outside his residence in Greenhills Subdivision, sought to prevent his arrest. A skirmish ensued between them and the police. The police had to employ batons and water hoses to control the rock-throwing pro-Estrada rallyists and allow the sheriffs to serve the warrant. Mr. Estrada and his son and co-accused, Mayor Jinggoy Estrada, were then brought to Camp Crame where, with full media coverage, their fingerprints were obtained and their mug shots taken. Later that day, and on the succeeding days, a huge gathered at the EDSA Shrine to show its support for the deposed President. Senators Enrile, Santiago, Honasan, opposition senatorial candidates including petitioner Lacson, as well as other political personalities, spoke before the crowd during these rallies. In the meantime, on April 28, 2001, Mr. Estrada and his son were brought to the Veterans memorial Medical Center for a medical check-up. It was announced that from there, they would be transferred to Fort Sto. Domingo in Sta. Rosa, Laguna. In the early morning of May 1, 2001, the crowd at EDSA decided to march to Malacañang Palace. The Armed Forces of the Philippines (AFP) was called to reinforce the Philippine National Police (PNP) to guard the premises of the presidential residence. The marchers were able to penetrate the barricades put up by the police at various points leading to Mendiola and were able to reach Gate 7 of Malacañan. As they were being dispersed with warning shots, tear gas and water canons, the rallyists hurled stones at the police authorities. A melee erupted. Scores of people, including some policemen, were hurt. At noon of the same day, after the crowd in Mendiola had been dispersed, President Gloria Macapagal-Arroyo issued Proclamation No. 38 declaring a "state of rebellion" in Metro Manila: Presidential Proclamation No. 38 DECLARING STATE OF REBELLION IN THE NATIONAL CAPITAL REGION WHEREAS, the angry and violent mob, armed with explosives, firearms, bladed weapons, clubs, stones and other deadly weapons, in great part coming from the mass gathering at the EDSA Shrine, and other armed groups, having been agitated and incited and, acting upon the instigation and under the command and direction of known and unknown leaders, have and continue to assault and attempt to break into Malacañang with the avowed purpose of overthrowing the duly constituted Government and forcibly seize power, and have and continue to rise publicly, shown open hostility, and take up arms against the duly constituted Government for the purpose of removing from the allegiance to the Government certain bodies of the Armed Forces of the Philippines and the Philippine National Police, and to deprive the President of the Republic of the Philippines, wholly and partially, of her powers and prerogatives which constitute the continuing crime of rebellion punishable under Article 134 of the Revised Penal Code; WHEREAS, armed groups recruited by known and unknown leaders, conspirators, and plotters have continue (sic) to rise publicly by the use of arms to overthrow the duly constituted Government and seize political power;

WHEREAS, under Article VII, Section 18 of the Constitution, whenever necessary, the President as the Commander-in-Chief of all armed forces of the Philippines, may call out such armed forces to suppress the rebellion; NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me by law hereby recognize and confirm the existence of an actual and ongoing rebellion compelling me to declare a state of rebellion; In view of the foregoing, I am issuing General Order NO. 1 in accordance with Section 18, Article VII of the Constitution calling upon the Armed Forces of the Philippines and the Philippine National police to suppress and quell the rebellion. City of Manila, May 1, 2001. The President likewise issued General Order No. 1 which reads: GENERAL ORDER NO. 1 DIRECTING THE ARMED FORCES OF THE PHILIPPIENS AND THE PHILIPPINE NATIONAL POLICE TO SUPPRESS THE REBELLION IN THE NATIONAL CAPITAL REGION WHEREAS, the angry and violent mob, armed with explosives, firearms, bladed weapons, clubs, stones and other deadly weapons, in great part coming from the mass gathering at the EDSA Shrine, and other armed groups, having been agitated and incited and, acting upon the instigation and under the command and direction of known and unknown leaders, have and continue to assault and attempt to break into Malacañang with the avowed purpose of overthrowing the duly constituted Government and forcibly seize political power, and have and continue to rise publicly, show open hostility, and take up arms against the duly constituted Government certain bodies of the Armed Forces of the Philippines and the Philippine National Police, and to deprive the President of the Republic of the Philippines, wholly and partially, of her powers and prerogatives which constitute the continuing crime of rebellion punishable under Article 134 of the Revised Penal Code; WHEREAS, armed groups recruited by known and unknown leaders, conspirators, and plotters have continue (sic) to rise publicly by the use of arms to overthrow the duly constituted Government and seize political power; WHEREAS, under Article VII, Section 18 of the Constitution, whenever necessary, the President as the Commander-in-Chief of all armed forces of the Philippines, may call out such armed forces to suppress the rebellion; NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me under the Constitution as President of the Republic of the Philippines and Commander-in-Chief of all armed forces of the Philippines and pursuant to Proclamation No. 38, dated May 1, 2001, do hereby call upon the Armed Forces of the Philippines and the Philippine national police to suppress and quell the rebellion. I hereby direct the Chief of Staff of the Armed Forces of the Philippines and the Chief of the Philippine National Police and the officers and men of the Armed Forces of the Philippines and the Philippine National Police to immediately carry out the necessary and appropriate actions and measures to suppress and quell the rebellion with due regard to constitutional rights. City of Manila, May 1, 2001. Pursuant to the proclamation, several key leaders of the opposition were ordered arrested. Senator Enrile was arrested without warrant in his residence at around 4:00 in the afternoon. Likewise arrested without warrant the following day was former Ambassador Ernesto Maceda. Senator Honasan and Gen. Lacson were also ordered arrested but the authorities have so far

failed to apprehend them. Ambassador Maceda was temporarily released upon recognizance while Senator Ponce Enrile was ordered released by the Court on cash bond. The basic issue raised by the consolidated petitions is whether the arrest or impending arrest without warrant, pursuant to a declaration of "state of rebellion" by the President of the abovementioned persons and unnamed other persons similarly situated suspected of having committed rebellion is illegal, being unquestionably a deprivation of liberty and violative of the Bill of Rights under the Constitution. The declaration of a "state of rebellion" is supposedly based on Section 18, Article VII of the Constitution which reads: The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. Section 18 grants the President, as Commander-in-Chief, the power to call out the armed forces in cases of (1) lawless violence, (2) rebellion and (3) invasion.9 In the latter two cases, i.e., rebellion or invasion, the President may, when public safety requires, also (a) suspend the privilege of the writ of habeas corpus, or (b) place the Philippines or any part thereof under martial law. However, in the exercise of this calling out power as Commander-in-Chief of the armed forces, the Constitution does not require the President to make a declaration of a "state of rebellion" (or, for that matter, of lawless violence or invasion). The term "state of rebellion" has no legal significance. It is vague and amorphous and does not give the President more power than what the Constitution says, i. e, whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. As Justice Mendoza observed during the hearing of this case, such a declaration is "legal surplusage." But whatever the term means, it cannot diminish or violate constitutionally-protected rights, such as the right to due process,10 the rights to free speech and peaceful assembly to petition the government for redress of grievances,11and the right against unreasonable searches and seizures,12 among others.

In Integrated Bar of the Philippines vs. Zamora, et al.,13 the Court held that: x x x [T]he distinction (between the calling out power, on one hand, and the power to suspend the privilege of the write of habeas corpus and to declare martial law, on the other hand) places the calling out power in a different category from the power to declare martial law and the power to suspend the privilege of the writ of habeas corpus, otherwise, the framers of the Constitution would have simply lumped together the three powers and provided for their revocation and review without any qualification. Expressio unius est exclusio alterius. xxx The reason for the difference in the treatment of the aforementioned powers highlights the intent to grant the President the widest leeway and broadest discretion in using the "calling out" power because it is considered as the lesser and more benign power compared to the power to suspend the privilege of the writ of habeas corpus and the power to impose martial law, both of which involve the curtailment and suppression of certain basic civil rights and individual freedoms, and thus necessitating affirmation by Congress and, in appropriate cases, review by this Court. On the other hand, if the motive behind the declaration of a "state of rebellion" is to arrest persons without warrant and detain them without bail and, thus, skirt the Constitutional safeguards for the citizens' civil liberties, the so-called "state of rebellion" partakes the nature of martial law without declaring on its face, yet, if it is applied and administered by public authority with an evil eye so as to practically make it unjust and oppressive, it is within the prohibition of the Constitution.14 In an ironic sense, a "state of rebellion" declared as a subterfuge to effect warrantless arrest and detention for an unbailable offense places a heavier burden on the people's civil liberties than the suspension of the privilege of the writ of habeas corpus the declaration of martial law because in the latter case, built-in safeguards are automatically set on motion: (1) The period for martial law or suspension is limited to a period not exceeding sixty day; (2) The President is mandated to submit a report to Congress within forty-eight hours from the proclamation or suspension; (3) The proclamation or suspension is subject to review by Congress, which may revoke such proclamation or suspension. If Congress is not in session, it shall convene in 24 hours without need for call; and (4) The sufficiency of the factual basis thereof or its extension is subject to review by the Supreme Court in an appropriate proceeding.15 No right is more fundamental than the right to life and liberty. Without these rights, all other individual rights may not exist. Thus, the very first section in our Constitution's Bill of Rights, Article III, reads: SECTION 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. And to assure the fullest protection of the right, more especially against government impairment, Section 2 thereof provides: SEC. 2. 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 be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge 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. Indeed, there is nothing in Section 18 which authorizes the President or any person acting under her direction to make unwarranted arrests. The existence of "lawless violence, invasion or rebellion" only authorizes the President to call out the "armed forces to prevent or suppress lawless violence, invasion or rebellion." Not even the suspension of the privilege of the writ of habeas corpus or the declaration of martial law authorizes the President to order the arrest of any person. The only significant

consequence of the suspension of the writ of habeas corpus is to divest the courts of the power to issue the writ whereby the detention of the person is put in issue. It does not by itself authorize the President to order the arrest of a person. And even then, the Constitution in Section 18, Article VII makes the following qualifications: The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. In the instant case, the President did not suspend the writ of habeas corpus. Nor did she declare martial law. A declaration of a "state of rebellion," at most, only gives notice to the nation that it exists, and that the armed forces may be called to prevent or suppress it, as in fact she did. Such declaration does not justify any deviation from the Constitutional proscription against unreasonable searches and seizures. As a general rule, an arrest may be made only upon a warrant issued by a court. In very circumscribed instances, however, the Rules of Court allow warrantless arrests. Section 5, Rule 113 provides: SEC. 5. Arrest without warrant; when lawful. – A police officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and xxx In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112. It must be noted that the above are exceptions to the constitutional norm enshrined in the Bill of Rights that a person may only be arrested on the strength of a warrant of arrest issued by a "judge" after determining "personally" the existence of "probable cause" after examination under oath or affirmation of the complainant and the witnesses he may produce. Its requirements should, therefore, be scrupulously met: The right of a person to be secure against any unreasonable seizure of his body and any deprivation of his liberty is a most basic and fundamental one. The statute or rule which allows exceptions to the requirement of warrants of arrests is strictly construed. Any exception must clearly fall within the situations when securing a warrant would be absurd or is manifestly unnecessary as provided by the Rule. We cannot liberally construe the rule on arrests without warrant or extend its application beyond the cases specifically provided by law. To do so would infringe upon personal liberty and set back a basic right so often violated and so deserving of full protection.16 A warrantless arrest may be justified only if the police officer had facts and circumstances before him which, had they been before a judge, would constitute adequate basis for a finding of probable cause of the commission of an offense and that the person arrested is probably guilty of committing the offense. That is why the Rules of Criminal Procedure require that when arrested, the person "arrested has committed, is actually committing, or is attempting to commit an offense" in the presence of the arresting officer. Or if it be a case of an offense which had "just been committed," that the police officer making the arrest "has personal knowledge of facts or circumstances that the person to be arrested has committed it."

Petitioners were arrested or sought to be arrested without warrant for acts of rebellion ostensibly under Section 5 of Rule 113. Respondents' theory is based on Umil vs. Ramos,17 where this Court held: The crimes of rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance thereof or in connection therewith constitute direct assault against the State and are in the nature of continuing crimes.18 Following this theory, it is argued that under Section 5(a), a person who "has committed, is actually committing, or is attempting to commit" rebellion and may be arrested without a warrant at any time so long as the rebellion persists. Reliance on Umil is misplaced. The warrantless arrests therein, although effected a day or days after the commission of the violent acts of petitioners therein, were upheld by the Court because at the time of their respective arrests, they were members of organizations such as the Communist Party of the Philippines, the New Peoples Army and the National United Front Commission, then outlawed groups under the Anti-Subversion Act. Their mere membership in said illegal organizations amounted to committing the offense of subversion19 which justified their arrests without warrants. In contrast, it has not been alleged that the persons to be arrested for their alleged participation in the "rebellion" on May 1, 2001 are members of an outlawed organization intending to overthrow the government. Therefore, to justify a warrantless arrest under Section 5(a), there must be a showing that the persons arrested or to be arrested has committed, is actually committing or is attempting to commit the offense of rebellion.20 In other words, there must be an overt act constitutive of rebellion taking place in the presence of the arresting officer. In United States vs. Samonte,21 the term" in his [the arresting officer's] presence" was defined thus: An offense is said to be committed in the presence or within the view of an arresting officer or private citizen when such officer or person sees the offense, even though at a distance, or hears the disturbance created thereby and proceeds at once to the scene thereof; or the offense is continuing, or has not been consummated, at the time the arrest is made.22 This requirement was not complied with particularly in the arrest of Senator Enrile. In the Court's Resolution of May 5, 2001 in the petition for habeas corpus filed by Senator Enrile, the Court noted that the sworn statements of the policemen who purportedly arrested him were hearsay.23 Senator Enrile was arrested two (2) days after he delivered allegedly seditious speeches. Consequently, his arrest without warrant cannot be justified under Section 5(b) which states that an arrest without a warrant is lawful when made after an offense has just been committed and the arresting officer or private person has probable cause to believe based on personal knowledge of facts and circumstances that the person arrested has committed the offense. At this point, it must be stressed that apart from being inapplicable to the cases at bar, Umil is not without any strong dissents. It merely re-affirmed Garcia-Padilla vs. Enrile,24 a case decided during the Marcos martial law regime.25 It cannot apply when the country is supposed to be under the regime of freedom and democracy. The separate opinions of the following Justices in the motion for reconsideration of said case26 are apropos: FERNAN C.J., concurring and dissenting: Secondly, warrantless arrests may not be allowed if the arresting officers are not sure what particular provision of law had been violated by the person arrested. True it is that law enforcement agents and even prosecutors are not all adept at the law. However, erroneous perception, not to mention ineptitude among their ranks, especially if it would result in the violation of any right of a person, may not be tolerated. That the arrested person has the "right to insist during the pre-trial or trial on the merits" (Resolution, p. 18) that he was exercising a right which the arresting officer considered as contrary to law, is

beside the point. No person should be subjected to the ordeal of a trial just because the law enforcers wrongly perceived his action.27(Underscoring supplied) GUTIERREZ, JR., J., concurring and dissenting opinion Insofar as G.R. NO. 81567 is concerned, I joint the other dissenting Justices in their observations regarding "continuing offenses." To base warrantless arrests on the doctrine of continuing offense is to give a license for the illegal detention of persons on pure suspicion. Rebellion, insurrection, or sedition are political offenses where the line between overt acts and simple advocacy or adherence to a belief is extremely thin. If a court has convicted an accused of rebellion and he is found roaming around, he may be arrested. But until a person is proved guilty, I fail to see how anybody can jump to a personal conclusion that the suspect is indeed a rebel and must be picked up on sight whenever seen. The grant of authority in the majority opinion is too broad. If warrantless searches are to be validated, it should be Congress and not this Court which should draw strict and narrow standards. Otherwise, the non-rebels who are critical, noisy, or obnoxious will be indiscriminately lumped up with those actually taking up arms against the Government. The belief of law enforcement authorities, no matter how well-grounded on past events, that the petitioner would probably shoot other policemen whom he may meet does not validate warrantless arrests. I cannot understand why the authorities preferred to bide their time, await the petitioner's surfacing from underground, and ounce on him with no legal authority instead of securing warrants of arrest for his apprehension.28(Underscoring supplied) CRUZ, J., concurring and dissenting: I submit that the affirmation by this Court of the Garcia-Padilla decision to justify the illegal arrests made in the cases before us is a step back to that shameful past when individual rights were wantonly and systematically violated by the Marcos dictatorship. It seem some of us have short memories of that repressive regime, but I for one am not one to forget so soon. As the ultimate defender of the Constitution, this Court should not gloss over the abuses of those who, out of mistaken zeal, would violate individual liberty in the dubious name of national security. Whatever their ideology and even if it be hostile to ours, the petitioners are entitled to the protection of the Bill of Rights, no more and no less than any other person in this country. That is what democracy is all about.29 (Underscoring supplied) FELICIANO, J., concurring and dissenting: 12. My final submission, is that, the doctrine of "continuing crimes," which has its own legitimate function to serve in our criminal law jurisprudence, cannot be invoked for weakening and dissolving the constitutional guarantee against warrantless arrest. Where no overt acts comprising all or some of the elements of the offense charged are shown to have been committed by the person arrested without warrant, the "continuing crime" doctrine should not be used to dress up the pretense that a crime, begun or committed elsewhere, continued to be committed by the person arrested in the presence of the arresting officer. The capacity for mischief of such a utilization of the "continuing crimes" doctrine, is infinitely increased where the crime charged does not consist of unambiguous criminal acts with a definite beginning and end in time and space (such as the killing or wounding of a person or kidnapping and illegal detention or arson) but rather or such problematic offenses as membership in or affiliation with or becoming a member of, a subversive association or organization. For in such cases, the overt constitutive acts may be morally neutral in themselves, and the unlawfulness of the acts a function of the aims or objectives of the organization involved. Note, for instance, the following acts which constitute prima facie evidence of "membership in any subversive association:" a) Allowing himself to be listed as a member in any book or any of the lists, records, correspondence, or any other document of the organization;

b) Subjecting himself to the discipline of such or association or organization in any form whatsoever; c) Giving financial contribution to such association or organization in dues, assessments, loans or in any other forms; xxx f) Conferring with officers or other members of such association or organization in furtherance of any plan or enterprise thereof; xxx g) Preparing documents, pamphlets, leaflets, books, or any other type of publication to promote the objectives and purposes of such association or organization; xxx k) Participating in any way in the activities, planning action, objectives, or purposes of such association or organization. It may well be, as the majority implies, that the constitutional rule against warrantless arrests and seizures makes the law enforcement work of police agencies more difficult to carry out. It is not our Court's function, however, and the Bill of Rights was not designed, to make life easy for police forces but rather to protect the liberties of private individuals. Our police forces must simply learn to live with the requirements of the Bill of Rights, to enforce the law by modalities which themselves comply with the fundamental law. Otherwise they are very likely to destroy, whether through sheer ineptness or excess of zeal, the very freedoms which make our policy worth protecting and saving.30 (Underscoring supplied) It is observed that a sufficient period has lapsed between the fateful day of May 1, 2001 up to the present. If respondents have ample evidence against petitioners, then they should forthwith file the necessary criminal complaints in order that the regular procedure can be followed and the warrants of arrest issued by the courts in the normal course. When practicable, resort to the warrant process is always to be preferred because "it interposes an orderly procedure involving 'judicial impartiality' whereby a neutral and detached magistrate can make informed and deliberate determinations on the issue of probable cause."31 The neutrality, detachment and independence that judges are supposed to possess is precisely the reason the framers of the 1987 Constitution have reposed upon them alone the power to issue warrants of arrest. To vest the same to a branch of government, which is also charged with prosecutorial powers, would make such branch the accused's adversary and accuser, his judge and jury.32 A declaration of a state of rebellion does not relieve the State of its burden of proving probable cause. The declaration does not constitute a substitute for proof. It does not in any way bind the courts, which must still judge for itself the existence of probable cause. Under Section 18, Article VII, the determination of the existence of a state of rebellion for purposes of proclaiming martial law or the suspension of the privilege of the writ of habeas corpusrests for which the President is granted ample, though not absolute, discretion. Under Section 2, Article III, the determination of probable cause is a purely legal question of which courts are the final arbiters. Justice Secretary Hernando Perez is reported to have announced that the lifting of the "state of rebellion" on May 7, 2001 does not stop the police from making warrantless arrests. 33 If this is so, the pernicious effects of the declaration on the people's civil liberties have not abated despite the lifting thereof. No one exactly knows who are in the list or who prepared the list of those to be arrested for alleged complicity in the "continuing" crime of "rebellion" defined as such by executive fiat. The list of the perceived leaders, financiers and supporters of the "rebellion" to be arrested and incarcerated could expand depending on the appreciation of the police. The coverage and duration of effectivity of the orders of arrest are thus so open-ended

and limitless as to place in constant and continuing peril the people's Bill of Rights. It is of no small significance that four of he petitioners are opposition candidates for the Senate. Their campaign activities have been to a large extent immobilized. If the arrests and orders of arrest against them are illegal, then their Constitutional right to seek public office, as well as the right of he people to choose their officials, is violated. In view of the transcendental importance and urgency of the issues raised in these cases affecting as they do the basic liberties of the citizens enshrined in our Constitution, it behooves us to rule thereon now, instead of relegating the cases to trial courts which unavoidably may come up with conflicting dispositions, the same to reach this Court inevitably for final ruling. As we aptly pronounced in Salonga vs. Cruz Paño:34 The Court also has the duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has the symbolic function of educating bench and bar on the extent of protection given by constitutional guarantees. Petitioners look up in urgent supplication to the Court, considered the last bulwark of democracy, for relief. If we do not act promptly, justly and fearlessly, to whom will they turn to? WHEREFORE, I vote as follows: (1) Give DUE COURSE to and GRANT the petitions; (2) Declare as NULL and VOID the orders of arrest issued against petitioners; (3) Issue a WRIT OF INJUNCTION enjoining respondents, their agents and all other persons acting for and in their behalf from effecting warrantless arrests against petitioners and all other persons similarly situated on the basis of Proclamation No. 38 and General Order No. 1 of the President.

G.R. No. 147780

May 10, 2001

PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO, petitioners, vs. SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents. ---------------------------------------G.R. No. 147781

May 10, 2001

MIRIAM DEFENSOR-SANTIAGO, petitioner, vs. ANGELO REYES, Secretary of National Defense, ET AL., respondents. ---------------------------------------G.R. No. 147799

May 10, 2001

RONALDO A. LUMBAO, petitioner, vs. SECRETARY HERNANDO PEREZ, GENERAL DIOMEDIO VILLANUEVA, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents. ---------------------------------------G.R. No. 147810

May 10, 2001

THE LABAN NG DEMOKRATIKONG PILIPINO, petitioner, vs. THE DEPARTMENT OF JUSTICE, SECRETARY HERNANDO PEREZ, THE ARMED FORCES OF THE PHILIPPINES, GENERAL DIOMEDIO VILLANUEVA, THE PHILIPPINE NATIONAL POLICE, and DIRECTOR GENERAL LEANDRO MENDOZA, respondents. DISSENTING OPINION SANDOVAL-GUTIERREZ, J.: The exercise of certain powers by the President in an atmosphere of civil unrest may sometimes raise constitutional issues. If such powers are used arbitrarily and capriciously, they may degenerate into the worst form of despotism. It is on this premise that I express my dissent. The chain of events which led to the present constitutional crisis are as follows: On March 2, 2001, the Supreme Court rendered the landmark decision that would bar further questions on the legitimacy of Gloria Macapagal-Arroyo's presidency.1 In a unanimous decision, the Court declared that Joseph Ejercito Estrada had effectively resigned his post and that Macapagal-Arroyo is the legitimate President of the Philippines. Estrada was stripped of all his powers and presidential immunity from suit. Knowing that a warrant of arrest may at any time be issued against Estrada, his loyalists rushed to his residence in Polk Street, North Greenhills Subdivision, San Juan, Metro Manila. They conducted vigil in the vicinity swearing that no one can take away their "president." Then the dreadful day for the Estrada loyalists came. On April 25, 2001, the Third Division of the Sandiganbayan issued warrants of arrest against Estrada, his son Jinggoy, Charlie "Atong" Ang, Edward Serapio, Yolanda Ricaforte, Alma Alfaro, Eleuterio Tan and Delia Rajas.2Emotions ran high as an estimated 10,000 Estrada loyalists, ranging from tattooed teenagers of Tondo to well-heeled Chinese, gathered in Estrada's neighborhood.3 Supporters turned hysterical. Newspapers captured pictures of raging men and wailing women.4 When policemen came, riots erupted. Police had to use their batons as well as water hoses to control the rock-throwing Estrada loyalists.5 It took the authorities about four hours to implement the warrant of arrest. At about 3:30 o'clock in the afternoon of the same day, Philippine National Police (PNP) Chief, Director General Leandro R. Mendoza, with the aid of PNP's Special Action Force and reinforcements from the Philippine Army and Marines, implemented the warrant of arrest against Estrada. 6 Like a common criminal, Estrada was fingerprinted and had his mug shots taken at the detention center of the former Presidential Anti-Organized Task Force at Camp Crame. The shabby treatment, caught on live TV cameras nationwide, had sparked off a wave of protest all over the country. Even international news agencies like CNN and BBC were appalled over the manner of Estrada's arrest calling it "overkill." In a taped message aired over radio and television, Estrada defended himself and said, "I followed the rule of law to the letter. I asked our people now to tell the powers to respect our constitution and the rule of law." Being loyal to the end, the supporters of Estrada followed him to Camp Crame. About 3,000 of them massed up in front of the camp. They were shouting "Edsa Three! Edsa Three! They vowed not to leave the place until Estrada is released. When asked how long they planned to stay, the protesters said, "Kahit isang buwan, kahit isang taon.7 At about 6:00 o' clock in the afternoon, also of the same day, the PNP's anti-riot squads dispersed them. Thus, they proceeded to the Edsa Shrine in Mandaluyong City where they joined forces with hundreds more who came from North Greenhills. 8 Hordes of Estrada loyalists began gathering at the historic shrine.

On April 27, 2001, the crowd at Edsa begun to swell in great magnitude. Estrada loyalists from various sectors, most of them obviously belonging to the "masses," brought with them placards and streamers denouncing the manner of arrest done to the former president. 9 In the afternoon, buses loaded with loyalists from the nearby provinces arrived at the Edsa Shrine. One of their leaders said that the Estrada supporters will stay at Edsa Shrine until the former president gets justice from the present administration.10 An estimated 1,500 PNP personnel from the different parts of the metropolis were deployed to secure the area.11On April 28, 2001, the PNP and the Armed Forces declared a "nationwide red alert."12 Counter-intelligence agents checked on possible defectors from the military top officials. Several senators were linked to an alleged junta plot. During the rally, several Puwersa Ng Masa candidates delivered speeches before the crowd. Among those who showed up at the rally were Senators Miriam Defensor-Santiago, Gregorio Honasan, Juan Ponce Enrile, Edgardo Angara, Vicente Sotto and former PNP Director General Panfilo Lacson and former Ambassador Ernesto Maceda.13 On April 30, 2001, the government started to prepare its forces. A 2,000-strong military force backed up by helicopter gunships, Scorpion tanks and armored combat vehicles stood ready to counter any attempt by Estrada loyalists to mount a coup. And to show that it meant business, the task force parked two MG-520 attack helicopters armed to the teeth with rockets on the parade ground at Camp Aguinaldo, Quezon City. Also deployed were two armored personnel carriers and troops in camouflage uniforms.14 Over 2,500 soldiers from the army, navy, and air force were formed into Task Force Libra to quell the indignant Estrada loyalists.15 On May 1, 2001, at about 1:30 o'clock in the morning, the huge crowd at Edsa started their march to Malacañang.16Along the way, they overran the barricades set up by the members of the PNP Crowd Dispersal Control Management.17 Shortly past 5:00 o'clock in the morning of the same day, the marchers were at the gates of Malacañang chanting, dancing, singing and waving flags.18 At around 10:00 o'clock in the morning, the police, with the assistance of combat-ready soldiers, conducted dispersal operations. Some members of the dispersal team were unceasingly firing their high-powered firearms in the air, while the police, armed with truncheons and shields, were slowly pushing the protesters away from the gates of Malacañang. Television footages showed protesters hurling stones and rocks on the advancing policemen, shouting invectives against them and attacking them with clubs. They burned police cars, a motorcycle, three pick-ups owned by a television station, construction equipment and a traffic police outpost along Mendiola Street.19 They also attacked Red Cross vans, destroyed traffic lights, and vandalized standing structures. Policemen were seen clubbing protesters, hurling back stones, throwing teargas under the fierce midday sun, and firing guns towards the sky. National Security Adviser Roilo Golez said the Street had to be bleared of rioters at all costs because "this is like an arrow, a dagger going all the way to (Malacañang) Gate 7."20 Before noontime of that same day, the Estrada loyalists were driven away. The violent street clashes prompted President Macapagal-Arroyo to place Metro Manila under a "state of rebellion." Presidential Spokesperson Rigoberto Tiglao told reporters, "We are in a state of rebellion. This is not an ordinary demonstration."21 After the declaration, there were threats of arrests against those suspected of instigating the march to Malacañang. At about 3:30 o'clock in the afternoon, Senator Juan Ponce Enrile was arrested in his house in Dasmariñas Village, Makati City by a group led by Reynaldo Berroya, Chief of the Philippine National Police Intelligence Group.22Thereafter, Berroya and his men proceeded to hunt reelectionist Senator Gregorio Honasan, former PNP Chief Panfilo Lacson, former Ambassador Ernesto Maceda, Brig. Gen. Jake Malajakan, Senior Superintendents Michael Ray Aquino and Cesar Mancao II, Ronald Lumbao and Cesar Tanega of the People's Movement Against

Poverty (PMAP).23 Justice Secretary Hernando Perez said that he was "studying" the possibility of placing Senator Miriam Defensor – Santiago "under the Witness protection program." Director Victor Batac,24 former Chief of the PNP Directorate for Police Community Relations, and Senior Superintendent Diosdado Valeroso, of the Philippine Center for Transnational Crime, surrendered to Berroya. Both denied having plotted the siege. On May 2, 2001, former Ambassador Ernesto Maceda was arrested. The above scenario presents three crucial queries: First, is President Macapagal-Arroyo's declaration of a "state of rebellion" constitutional? Second, was the implementation of the warrantless arrests on the basis of the declaration of a "state of rebellion" constitutional? And third, did the rallyists commit rebellion at the vicinity of Malacañang Palace on May 1, 2001? The first and second queries involve constitutional issues, hence, the basic yardstick is the 1987 Constitution of the Philippines. The third query requires a factual analysis of the events which culminated in the declaration of a state of rebellion, hence, an examination of Article 134 of the Revised Penal Code is in order. On May 7, 2001, President Macapagal-Arroyo issued Proclamation No. 39, "DECLARING THAT THE STATE OF REBELLION IN THE NATIONAL CAPITAL REGION HAS CEASED TO EXIST", which in effect, has lifted the previous Proclamation No. 38. I beg to disagree with the majority opinion in ruling that the instant petitions have been rendered moot and academic with the lifting by the President of the declaration of a "state of rebellion". I believe that such lifting should not render moot and academic the very serious and unprecedented constitutional issues at hand, considering their grave implications involving the basic human rights and civil liberties of our people. A resolution of these issues becomes all the more necessary since, as reported in the papers, there are saturation drives (sonas) being conducted by the police wherein individuals in Metro Manila are picked up without warrants of arrest. Moreover, the acts sought to be declared illegal and unconstitutional are capable of being repeated by the respondents. In Salva v. Makalintat (G.R. No. 132603, Sept. 18, 2000), this Court held that "courts will decide a question otherwise moot and academic if it is 'capable of repetition, yet evading review' …" I & II – President Macapagal-Arroyo's declaration of a "state of rebellion" and the implementation of the warrantless arrests premised on the said declaration are unconstitutional. Nowhere in the Constitution can be found a provision which grants upon the executive the power to declare a "state of rebellion," much more, to exercise on the basis of such declaration the prerogatives which a president may validly do under a state of martial law. PresidentMacapagal-Arroyo committed a constitutional short cut. She disregarded the clear provisions of the Constitution which provide: "Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual bases of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released."25 Obviously, the power of the President in cases when she assumed the existence of rebellion is properly laid down by the Constitution. I see no reason or justification for the President's deviation from the concise and plain provisions. To accept the theory that the President could disregard the applicable statutes, particularly that which concerns arrests, searches and seizures, on the mere declaration of a "state of rebellion" is in effect to place the Philippines under martial law without a declaration of the executive to that effect and without observing the proper procedure. This should not be countenanced. In a society which adheres to the rule of law, resort to extra-constitutional measures is unnecessary where the law has provided everything for any emergency or contingency. For even if it may be proven beneficial for a time, the precedent it sets is pernicious as the law may, in a little while, be disregarded again on the same pretext but for evil purposes. Even in time of emergency, government action may vary in breath and intensity from more normal times, yet it need not be less constitutional.26 My fear is rooted in history. Our nation had seen the rise of a dictator into power. As a matter of fact, the changes made by the 1986 Constitutional Commission on the martial law text of the Constitution were to a large extent a reaction against the direction which the Supreme Court took during the regime of President Marcos.27 Now, if this Court would take a liberal view, and consider that the declaration of a "state of rebellion" carries with it the prerogatives given to the President during a "state of martial law," then, I say, the Court is traversing a very dangerous path. It will open the way to those who, in the end, would turn our democracy into a totalitarian rule. History must not be allowed to repeat itself. Any act which gears towards possible dictatorship must be severed at its inception. The implementation of warrantless arrests premised on the declaration of a "state of rebellion" is unconstitutional and contrary to existing laws. The Constitution provides that "the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizure of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge 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."28 If a state of martial law "does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians, where civil courts are able to function, nor automatically suspend the privilege of the writ,"28(a) then it is with more reason, that a mere declaration of a state of rebellion could not bring about the suspension of the operation of the Constitution or of the writ of habeas corpus. Neither can we find the implementation of the warrantless arrests justified under the Revised Rules on Criminal Procedure. Pertinent is Section 5, Rule 113, thus:

"Sec. 5. Arrest without warrant, when lawful. – A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts and circumstances that the person to be arrested has committed it; and x x x." Petitioners cannot be considered "to have committed, is actually committing, or is attempting to commit an offense" at the time they were hunted by Berroya for the implementation of the warrantless arrests. None of them participated in the riot which took place in the vicinity of the Malacañang Palace. Some of them were on their respective houses performing innocent acts such as watching television, resting etc. The sure fact however is that they were not in the presence of Berroya. Clearly, he did not see whether they had committed, were committing or were attempting to commit the crime of rebellion. But of course, I cannot lose sight of the legal implication of President Macapagal-Arroyo's declaration of a "state of rebellion." Rebellion is a continuing offense and a suspected insurgent or rebel may be arrested anytime as he is considered to be committing the crime. Nevertheless, assuming ex gratia argumenti that the declaration of a state of rebellion is constitutional, it is imperative that the said declaration be reconsidered. In view of the changing times, the dissenting opinion of the noted jurist, Justice Isagani Cruz, in Umil v. Ramos,29 quoted below must be given a second look. "I dissent insofar as the ponencia affirms the ruling in Garcia-Padilla vs. Enrile that subversion is a continuing offense, to justify the arrest without warrant of any person at any time as long as the authorities say he has been placed under surveillance on suspicion of the offense. That is a dangerous doctrine. A person may be arrested when he is doing the most innocent acts, as when he is only washing his hands, or taking his supper, or even when he is sleeping, on the ground that he is committing the 'continuing' offense of subversion. Libertarians were appalled when that doctrine was imposed during the Marcos regime. I am alarmed that even now this new Court is willing to sustain it. I strongly urge my colleagues to discard it altogether as one of the disgraceful vestiges of the past dictatorship and uphold the rule guaranteeing the right of the people against unreasonable searches and seizures. We can do no less if we are really to reject the past oppression and commit ourselves to the true freedom. Even if it be argued that the military should be given every support in our fight against subversion, I maintain that fight must be waged honorably, in accordance with the Bill of Rights. I do not believe that in fighting the enemy we must adopt the ways of the enemy, which are precisely what we are fighting against. I submit that our more important motivation should be what are we fighting for." I need not belabor that at the time some of the suspected instigators were arrested, (the others are still at-large), a long interval of time already passed and hence, it cannot be legally said that they had just committed an offense. Neither can it be said that Berroya or any of his men had "personal knowledge of facts or circumstances that the persons to be arrested have committed a crime." That would be far from reality. III – The acts of the rallyists at the vicinity of Malacañang Palace on May 1, 2001 do not constitute rebellion. Article 134 of the Revised Penal Code reads: "ART. 134. Rebellion or insurrection – How committed. – The crime of rebellion or insurrection is committed by rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part thereof, of any body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of

any of their powers or prerogatives." (As amended by RA No. 6968, O.G. 52, p. 9864, 1990) From the foregoing provisions, the elements o the crime of rebellion may be deduced, thus: first, that there be (a) public uprising and (b) taking arms against the government; second, that the purpose of the uprising or movement is either (a) to remove from the allegiance to said government or its laws (1) the territory of the Philippines or any part thereof; or (2) anybody of land, naval or other armed forces; or (b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers or prerogatives. 30 Looking at the events on a magnified scale, I am convinced that the two elements of the crime of rebellion are lacking. First, there was no "taking of arms" against the government. To my mind, "taking arms" connotes the multitude's deliberate and conscious resort to arms or weapons for the purpose of aiding them in accomplishing any of the purposes of rebellion. Admittedly, the Estrada loyalists pelted the policemen with rocks and stones and attacked them with sticks and clubs, but such was merely a result of the heightening tension between opposite camps during the period of dispersal. The stones, rocks, sticks, clubs and other improvised weapons were not deliberately resorted to by the Estrada loyalists to further any of the purposes of rebellion. They availed of them, at the precise moment of dispersal (this explains why their weapons were those which could be easily gathered on the street) and only for the purpose of stopping the policemen from dispersing them. In this age of modernity, one who intends to overthrow the government will not only settle for stones, woods, rocks, sticks or clubs as means to disable the government. It will be extremely pathetic and the result will only be in vain. Unlike a true rebellion which is organized, what happened at the vicinity of Malacañang was merely a riot, a mob violence, or a tumultuous uprising. At this juncture, it bears stressing that the crime of rebellion is a vast movement of men and a complex net of intrigues and plots.31 It must be distinguished from riot and offenses connected with mob violence. In rebellion/insurrection, there is an organized and armed uprising against authority.32 Second, the purpose of the Estrada loyalists was neither (a) to remove from the allegiance to the government or its laws (1) the territory of the Philippines or any part thereof; or (2) any part of land, naval or other armed forces; nor (b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers or prerogatives. I looked at the chronology of events, and one thing surfaced – the Estrada loyalists mainly demanded that their beloved "president" should not be incarcerated. The crowd at Edsa swelled in great magnitude on April 25, 2001, the day Estrada was arrested. In fact, when they followed Erap at Camp Crame, they were shouting "Edsa! Edsa! And they vowed not to leave until Estrada is released."33 One must not be swayed by the theory of respondents that the purpose of those people who gathered in Edsa and marched to Malacañang was to commit rebellion. For sure, there were a thousand and one reasons why they proceeded to Edsa. In determining their purpose, one must trace the roots, - what prompted them to go to Edsa? They were the Estrada loyalists who wanted him to be freed. If indeed there were minorities who advocated another cause, the same should not be considered as the prevailing one in the determination of what crime was committed. Facts should not be stretched just to build a case of rebellion. This runs counter to the principle of due process. As a final word, I subscribe to the principle that the rule of law implies the precept that similar cases be treated similarly. Men can not regulate their actions by means of rule if this precept is not followed. Edsa I, Edsa II and Edsa III are all public uprisings. Statements urging people to overthrow the government were uttered in all these occasions. Injuries were sustained, policemen were attacked, standing structures were vandalized… in all these scenarios, one cannot be said to be extremely away from the other. The only difference is that the first two succeeded, while the last failed. This should not result to an unbridled or unlimited exercise of power by the duly constituted authorities. It is during these trying times that fealty to the Constitution is strongly demanded from all, especially the authorities concerned.1âwphi1.nêt

WHEREFORE, I vote to give DUE COURSE to the petitions and GRANT the same and to enjoin the respondents from arresting the petitioners in G.R. Nos. 147780, 147781, and 147799 without the corresponding warrants.

[G.R. No. 159085. February 3, 2004]

SANLAKAS, represented by REP. J.V. Bautista, and PARTIDO NG MANGGAGAWA, represented by REP. RENATO MAGTUBO petitioners, vs. EXECUTIVE SECRETARY SECRETARY ANGELO REYES, GENERAL NARCISO ABAYA, DIR. GEN. HERMOGENES EBDANE, respondents.

[G.R. No. 159103. February 3, 2004]

SOCIAL JUSTICE SOCIETY (SJS) OFFICERS/MEMBERS namely, SAMSON S. ALCANTARA, ED VINCENT S. ALBANO, RENE B. GOROSPE, EDWIN R. SANDOVAL and RODOLFO D. MAPILE, petitioners, vs. HON. EXECUTIVE SECRETARY ALBERTO G. ROMULO, HON. SECRETARY OF JUSTICE SIMEON DATUMANONG, HON. SECRETARY OF NATIONAL DEFENSE ANGELO REYES, and HON. SECRETARY JOSE LINA, JR., respondents.

[G.R. No. 159185. February 3, 2004]

REP. ROLEX T. SUPLICO, REP. CARLOS M. PADILLA, REP. CELSO L. LOBREGAT, REP. HUSSIN U. AMIN, REP. ABRAHAM KAHLIL B. MITRA, REP. EMMYLOU J. TALINOSANTOS, and REP. GEORGILU R. YUMUL-HERMIDA, petitioners, vs. PRESIDENT GLORIA MACAPAGAL-ARROYO; and EXECUTIVE SECRETARY ALBERTO G. ROMULO, respondents.

[G.R. No. 159196. February 3, 2004]

AQUILINO Q. PIMENTEL, JR. as a Member of the Senate, petitioner, vs. SECRETARY ALBERTO ROMULO, AS EXECUTIVE SECRETARY; SECRETARY ANGELO REYES, AS SECRETARY OF NATIONAL DEFENSE; GENERAL NARCISO ABAYA, AS CHIEF OF STAFF OF THE ARMED FORCES; SECRETARY JOSE LINA, et al., respondents. DECISION TINGA, J.: They came in the middle of the night. Armed with high-powered ammunitions and explosives, some three hundred junior officers and enlisted men of the Armed Forces of the Philippines (AFP) stormed into the Oakwood Premiere apartments in Makati City in the wee hours of July 27, 2003. Bewailing the corruption in the AFP, the soldiers demanded, among other things, the resignation of the President, the Secretary of Defense and the Chief of the Philippine National Police (PNP).[1]

In the wake of the Oakwood occupation, the President issued later in the day Proclamation No. 427 and General Order No. 4, both declaring a state of rebellion and calling out the Armed Forces to suppress the rebellion. Proclamation No. 427 reads in full: PROCLAMATION NO. 427 DECLARING A STATE OF REBELLION WHEREAS, certain elements of the Armed Forces of the Philippines, armed with high-powered firearms and explosives, acting upon the instigation and command and direction of known and unknown leaders, have seized a building in Makati City, put bombs in the area, publicly declared withdrawal of support for, and took arms against the duly constituted Government, and continue to rise publicly and show open hostility, for the purpose of removing allegiance to the Government certain bodies of the Armed Forces of the Philippines and the Philippine National Police, and depriving the President of the Republic of the Philippines, wholly or partially, of her powers and prerogatives which constitute the crime of rebellion punishable under Article 134 of the Revised Penal Code, as amended; WHEREAS, these misguided elements of the Armed Forces of the Philippines are being supported, abetted and aided by known and unknown leaders, conspirators and plotters in the government service and outside the government; WHEREAS, under Section 18, Article VII of the present Constitution, whenever it becomes necessary, the President, as the Commander-in-Chief of the Armed Forces of the Philippines, may call out such Armed Forces to suppress the rebellion; NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me by law, hereby confirm the existence of an actual and on-going rebellion, compelling me to declare a state of rebellion. In view of the foregoing, I am issuing General Order No. 4 in accordance with Section 18, Article VII of the Constitution, calling out the Armed Forces of the Philippines and the Philippine National Police to immediately carry out the necessary actions and measures to suppress and quell the rebellion with due regard to constitutional rights. General Order No. 4 is similarly worded: GENERAL ORDER NO. 4 DIRECTING THE ARMED FORCES OF THE PHILIPPINES AND THE PHILIPPINE NATIONAL POLICE TO SUPPRESS REBELLION WHEREAS, certain elements of the Armed Forces of the Philippines, armed with high-powered firearms and explosives, acting upon the instigation and command and direction of known and unknown leaders, have seized a building in Makati City, put bombs in the area, publicly declared withdrawal of support for, and took arms against the duly constituted Government, and continue to rise publicly and show open hostility, for the purpose of removing allegiance to the Government certain bodies of the Armed Forces of the Philippines and the Philippine National Police, and depriving the President of the Republic of the Philippines, wholly or partially, of her powers and prerogatives which constitute the crime of rebellion punishable under Article 134 et seq. of the Revised Penal Code, as amended; WHEREAS, these misguided elements of the Armed Forces of the Philippines are being supported, abetted and aided by known and unknown leaders, conspirators and plotters in the government service and outside the government; WHEREAS, under Section 18, Article VII of the present Constitution, whenever it becomes necessary, the President, as the Commander-in-Chief of all Armed Forces of the Philippines, may call out such Armed Forces to suppress the rebellion;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me by the Constitution as President of the Republic of the Philippines and Commander-in-Chief of all the armed forces of the Philippines and pursuant to Proclamation No. 427 dated July 27, 2003, do hereby call upon the Armed Forces of the Philippines and the Philippine National Police to suppress and quell the rebellion. I hereby direct the Chief of the Armed Forces of the Philippines and the Chief of the Philippine National Police and the officers and men of the Armed Forces of the Philippines and the Philippine National Police to immediately carry out the necessary and appropriate actions and measures to suppress and quell the rebellion with due regard to constitutional rights. By the evening of July 27, 2003, the Oakwood occupation had ended. After hours-long negotiations, the soldiers agreed to return to barracks. The President, however, did not immediately lift the declaration of a state of rebellion and did so only on August 1, 2003, through Proclamation No. 435: DECLARING THAT THE STATE OF REBELLION HAS CEASED TO EXIST WHEREAS, by virtue of Proclamation No. 427 dated July 27, 2003, a state of rebellion was declared; WHEREAS, by virtue of General Order No. 4 dated July 27, 2003, which was issued on the basis of Proclamation No. 427 dated July 27, 2003, and pursuant to Article VII, Section 18 of the Constitution, the Armed Forces of the Philippines and the Philippine National Police were directed to suppress and quell the rebellion; WHEREAS, the Armed Forces of the Philippines and the Philippine National Police have effectively suppressed and quelled the rebellion. NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Philippines, by virtue of the powers vested in me by law, hereby declare that the state of rebellion has ceased to exist. In the interim, several petitions were filed before this Court challenging the validity of Proclamation No. 427 and General Order No. 4. In G.R. No. 159085 (Sanlakas and PM v. Executive Secretary, et al.),[2] party-list organizations Sanlakas and Partido ng Manggagawa (PM), contend that Section 18, Article VII of the Constitution does not require the declaration of a state of rebellion to call out the armed forces.[3] They further submit that, because of the cessation of the Oakwood occupation, there exists no sufficient factual basis for the proclamation by the President of a state of rebellion for an indefinite period.[4] Petitioners in G.R. No. 159103 (SJS Officers/Members v. Hon. Executive Secretary, et al.) are officers/members of the Social Justice Society (SJS), Filipino citizens, taxpayers, law professors and bar reviewers.[5] Like Sanlakas and PM, they claim that Section 18, Article VII of the Constitution does not authorize the declaration of a state of rebellion. [6] They contend that the declaration is a constitutional anomaly that confuses, confounds and misleads because [o]verzealous public officers, acting pursuant to such proclamation or general order, are liable to violate the constitutional right of private citizens.[7] Petitioners also submit that the proclamation is a circumvention of the report requirement under the same Section 18, Article VII, commanding the President to submit a report to Congress within 48 hours from the proclamation of martial law.[8] Finally, they contend that the presidential issuances cannot be construed as an exercise of emergency powers as Congress has not delegated any such power to the President.[9] In G.R. No. 159185 (Rep. Suplico et al. v. President Macapagal-Arroyo and Executive Secretary Romulo), petitioners brought suit as citizens and as Members of the House of Representatives whose rights, powers and functions were allegedly affected by the declaration of a state of rebellion.[10] Petitioners do not challenge the power of the President to call out the Armed Forces.[11] They argue, however, that the declaration of a state of rebellion is a superfluity, and is actually an exercise of emergency powers.[12] Such exercise, it is contended,

amounts to a usurpation of the power of Congress granted by Section 23 (2), Article VI of the Constitution.[13] In G.R. No. 159196 (Pimentel v. Romulo, et al.), petitioner Senator assails the subject presidential issuances as an unwarranted, illegal and abusive exercise of a martial law power that has no basis under the Constitution.[14] In the main, petitioner fears that the declaration of a state of rebellion opens the door to the unconstitutional implementation of warrantless arrests for the crime of rebellion.[15] Required to comment, the Solicitor General argues that the petitions have been rendered moot by the lifting of the declaration.[16] In addition, the Solicitor General questions the standing of the petitioners to bring suit.[17] The Court agrees with the Solicitor General that the issuance of Proclamation No. 435, declaring that the state of rebellion has ceased to exist, has rendered the case moot. As a rule, courts do not adjudicate moot cases, judicial power being limited to the determination of actual controversies.[18] Nevertheless, courts will decide a question, otherwise moot, if it is capable of repetition yet evading review.[19] The case at bar is one such case. Once before, the President on May 1, 2001 declared a state of rebellion and called upon the AFP and the PNP to suppress the rebellion through Proclamation No. 38 and General Order No. 1. On that occasion, an angry and violent mob armed with explosives, firearms, bladed weapons, clubs, stones and other deadly weapons assaulted and attempted to break into Malacaang.[20] Petitions were filed before this Court assailing the validity of the Presidents declaration. Five days after such declaration, however, the President lifted the same. The mootness of the petitions in Lacson v. Perez and accompanying cases[21] precluded this Court from addressing the constitutionality of the declaration. To prevent similar questions from reemerging, we seize this opportunity to finally lay to rest the validity of the declaration of a state of rebellion in the exercise of the Presidents calling out power, the mootness of the petitions notwithstanding. Only petitioners Rep. Suplico et al. and Sen. Pimentel, as Members of Congress, have standing to challenge the subject issuances. In Philippine Constitution Association v. Enriquez, [22] this Court recognized that: To the extent the powers of Congress are impaired, so is the power of each member thereof, since his office confers a right to participate in the exercise of the powers of that institution. An act of the Executive which injures the institution of Congress causes a derivative but nonetheless substantial injury, which can be questioned by a member of Congress. In such a case, any member of Congress can have a resort to the courts. Petitioner Members of Congress claim that the declaration of a state of rebellion by the President is tantamount to an exercise of Congress emergency powers, thus impairing the lawmakers legislative powers. Petitioners also maintain that the declaration is a subterfuge to avoid congressional scrutiny into the Presidents exercise of martial law powers. Petitioners Sanlakas and PM, and SJS Officers/Members, have no legal standing or locus standi to bring suit. Legal standing or locus standi has been defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the question of standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions.[23] Petitioners Sanlakas and PM assert that: 2. As a basic principle of the organizations and as an important plank in petitioners are committed to assert, defend, protect, uphold, and promote the and welfare of the people, especially the poor and marginalized classes Philippine society. Petitioners are committed to defend and assert human political and civil rights, of the citizens.

their programs, rights, interests, and sectors of rights, including

3. Members of the petitioner organizations resort to mass actions and mobilizations in the exercise of their Constitutional rights to peaceably assemble and their freedom of speech and of expression under Section 4, Article III of the 1987 Constitution, as a vehicle to publicly ventilate their grievances and legitimate demands and to mobilize public opinion to support the same.[24] [Emphasis in the original.] Petitioner party-list organizations claim no better right than the Laban ng Demokratikong Pilipino, whose standing this Court rejected in Lacson v. Perez: petitioner has not demonstrated any injury to itself which would justify the resort to the Court. Petitioner is a juridical person not subject to arrest. Thus, it cannot claim to be threatened by a warrantless arrest. Nor is it alleged that its leaders, members, and supporters are being threatened with warrantless arrest and detention for the crime of rebellion. Every action must be brought in the name of the party whose legal rights has been invaded or infringed, or whose legal right is under imminent threat of invasion or infringement. At best, the instant petition may be considered as an action for declaratory relief, petitioner claiming that it[]s right to freedom of expression and freedom of assembly is affected by the declaration of a state of rebellion and that said proclamation is invalid for being contrary to the Constitution. However, to consider the petition as one for declaratory relief affords little comfort to petitioner, this Court not having jurisdiction in the first instance over such a petition. Section 5 [1], Article VIII of the Constitution limits the original jurisdiction of the court to cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.[25] Even assuming that petitioners are peoples organizations, this status would not vest them with the requisite personality to question the validity of the presidential issuances, as this Court made clear in Kilosbayan v. Morato: [26] The Constitution provides that the State shall respect the role of independent peoples organizations to enable the people to pursue and protect, within the democratic framework, their legitimate and collective interests and aspirations through peaceful and lawful means, that their right to effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged. (Art. XIII, 15-16) These provisions have not changed the traditional rule that only real parties in interest or those with standing, as the case may be, may invoke the judicial power. The jurisdiction of this Court, even in cases involving constitutional questions, is limited by the case and controversy requirement of Art. VIII, 5. This requirement lies at the very heart of the judicial function. It is what differentiates decisionmaking in the courts from decisionmaking in the political departments of the government and bars the bringing of suits by just any party.[27] That petitioner SJS officers/members are taxpayers and citizens does not necessarily endow them with standing. A taxpayer may bring suit where the act complained of directly involves the illegal disbursement of public funds derived from taxation.[28] No such illegal disbursement is alleged. On the other hand, a citizen will be allowed to raise a constitutional question only when he can show that he has personally suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government; the injury is fairly traceable to the challenged action; and the injury is likely to be redressed by a favorable action.[29] Again, no such injury is alleged in this case. Even granting these petitioners have standing on the ground that the issues they raise are of transcendental importance, the petitions must fail. It is true that for the purpose of exercising the calling out power the Constitution does not require the President to make a declaration of a state of rebellion. Section 18, Article VII provides:

Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis for the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of the jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. [Emphasis supplied.] The above provision grants the President, as Commander-in-Chief, a sequence of graduated power[s].[30] From the most to the least benign, these are: the calling out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare martial law. In the exercise of the latter two powers, the Constitution requires the concurrence of two conditions, namely, an actual invasion or rebellion, and that public safety requires the exercise of such power.[31] However, as we observed in Integrated Bar of the Philippines v. Zamora,[32] [t]hese conditions are not required in the exercise of the calling out power. The only criterion is that whenever it becomes necessary, the President may call the armed forces to prevent or suppress lawless violence, invasion or rebellion. Nevertheless, it is equally true that Section 18, Article VII does not expressly prohibit the President from declaring a state of rebellion. Note that the Constitution vests the President not only with Commander-in-Chief powers but, first and foremost, with Executive powers. Section 1, Article VII of the 1987 Philippine Constitution states: The executive power shall be vested in the President. As if by exposition, Section 17 of the same Article provides: He shall ensure that the laws be faithfully executed. The provisions trace their history to the Constitution of the United States. The specific provisions of the U.S. Constitution granting the U.S. President executive and commander-in-chief powers have remained in their original simple form since the Philadelphia Constitution of 1776, Article II of which states in part: Section 1. 1. The Executive Power shall be vested in a President of the United States of America . . . . .... Section 2. 1. The President shall be Commander in Chief of the Army and Navy of the United States. . . .

.... Section 3. he shall take care that the laws be faithfully executed. [Article II Executive Power] Recalling in historical vignettes the use by the U.S. President of the above-quoted provisions, as juxtaposed against the corresponding action of the U.S. Supreme Court, is instructive. Clad with the prerogatives of the office and endowed with sovereign powers, which are drawn chiefly from the Executive Power and Commander-in-Chief provisions, as well as the presidential oath of office, the President serves as Chief of State or Chief of Government, Commander-in-Chief, Chief of Foreign Relations and Chief of Public Opinion.[33] First to find definitive new piers for the authority of the Chief of State, as the protector of the people, was President Andrew Jackson. Coming to office by virtue of a political revolution, Jackson, as President not only kept faith with the people by driving the patricians from power. Old Hickory, as he was fondly called, was the first President to champion the indissolubility of the Union by defeating South Carolinas nullification effort.[34] The Federal Tariff Acts of 1828 and 1832 that Congress enacted did not pacify the hotspurs from South Carolina. Its State Legislature ordered an election for a convention, whose members quickly passed an Ordinance of Nullification. The Ordinance declared the Tariff Acts unconstitutional, prohibited South Carolina citizens from obeying them after a certain date in 1833, and threatened secession if the Federal Government sought to oppose the tariff laws. The Legislature then implemented the Ordinance with bristling punitive laws aimed at any who sought to pay or collect customs duties.[35] Jackson bided his time. His task of enforcement would not be easy. Technically, the President might send troops into a State only if the Governor called for help to suppress an insurrection, which would not occur in the instance. The President could also send troops to see to it that the laws enacted by Congress were faithfully executed. But these laws were aimed at individual citizens, and provided no enforcement machinery against violation by a State. Jackson prepared to ask Congress for a force bill.[36] In a letter to a friend, the President gave the essence of his position. He wrote: . . . when a faction in a State attempts to nullify a constitutional law of Congress, or to destroy the Union, the balance of the people composing this Union have a perfect right to coerce them to obedience. Then in a Proclamation he issued on December 10, 1832, he called upon South Carolinians to realize that there could be no peaceable interference with the execution of the laws, and dared them, disunion by armed force is treason. Are you ready to incur its guilt? [37] The Proclamation frightened nullifiers, non-nullifiers and tight-rope walkers. Soon, State Legislatures began to adopt resolutions of agreement, and the President announced that the national voice from Maine on the north to Louisiana on the south had declared nullification and accession confined to contempt and infamy.[38] No other President entered office faced with problems so formidable, and enfeebled by personal and political handicaps so daunting, as Abraham Lincoln. Lincoln believed the Presidents power broad and that of Congress explicit and restricted, and sought some source of executive power not failed by misuse or wrecked by sabotage. He seized upon the Presidents designation by the Constitution as Commander-in-Chief, coupled it to the executive power provision and joined them as the war power which authorized him to do many things beyond the competence of Congress.[39] Lincoln embraced the Jackson concept of the Presidents independent power and duty under his oath directly to represent and protect the people. In his Message of July 4, 1861, Lincoln declared that the Executive found the duty of employing the war power in defense of the government forced upon him. He could not but perform the duty or surrender the existence of the Government . . . . This concept began as a transition device, to be validated by Congress when it assembled. In less than two-years, it grew into an independent power under which he felt authorized to suspend the privilege of the writ of habeas corpus, issue the Emancipation Proclamation, and restore reoccupied States.[40] Lincolns Proclamation of April 15, 1861, called for 75,000 troops. Their first service, according to the proclamation, would be to recapture forts, places and property, taking care to avoid any devastation, any destruction of or interference with property, or any disturbance of peaceful citizens.[41]

Early in 1863, the U.S. Supreme Court approved President Lincolns report to use the war powers without the benefit of Congress. The decision was handed in the celebrated Prize Cases[42] which involved suits attacking the Presidents right to legally institute a blockade. Although his Proclamation was subsequently validated by Congress, the claimants contended that under international law, a blockade could be instituted only as a measure of war under the sovereign power of the State. Since under the Constitution only Congress is exclusively empowered to declare war, it is only that body that could impose a blockade and all prizes seized before the legislative declaration were illegal. By a 5 to 4 vote, the Supreme Court upheld Lincolns right to act as he had.[43] In the course of time, the U.S. Presidents power to call out armed forces and suspend the privilege of the writ of habeas corpus without prior legislative approval, in case of invasion, insurrection, or rebellion came to be recognized and accepted. The United States introduced the expanded presidential powers in the Philippines through the Philippine Bill of 1902.[44] The use of the power was put to judicial test and this Court held that the case raised a political question and said that it is beyond its province to inquire into the exercise of the power.[45] Later, the grant of the power was incorporated in the 1935 Constitution.[46] Elected in 1884, Grover Cleveland took his ascent to the presidency to mean that it made him the trustee of all the people. Guided by the maxim that Public office is a public trust, which he practiced during his incumbency, Cleveland sent federal troops to Illinois to quell striking railway workers who defied a court injunction. The injunction banned all picketing and distribution of handbills. For leading the strikes and violating the injunction, Debs, who was the union president, was convicted of contempt of court. Brought to the Supreme Court, the principal issue was by what authority of the Constitution or statute had the President to send troops without the request of the Governor of the State.[47] In In Re: Eugene Debs, et al,[48] the Supreme Court upheld the contempt conviction. It ruled that it is not the governments province to mix in merely individual present controversies. Still, so it went on, whenever wrongs complained of are such as affect the public at large, and are in respect of matters which by the Constitution are entrusted to the care of the Nation and concerning which the Nation owes the duty to all citizens of securing to them their common rights, then the mere fact that the Government has no pecuniary interest in the controversy is not sufficient to exclude it from the Courts, or prevent it from taking measures therein to fully discharge those constitutional duties.[49] Thus, Clevelands course had the Courts attest. Taking off from President Cleveland, President Theodore Roosevelt launched what political scientists dub the stewardship theory. Calling himself the steward of the people, he felt that the executive power was limited only by the specific restrictions and prohibitions appearing in the Constitution, or impleaded by Congress under its constitutional powers.[50] The most far-reaching extension of presidential power T.R. ever undertook to employ was his plan to occupy and operate Pennsylvanias coal mines under his authority as Commander-inChief. In the issue, he found means other than force to end the 1902 hard-coal strike, but he had made detailed plans to use his power as Commander-in-Chief to wrest the mines from the stubborn operators, so that coal production would begin again.[51] Eventually, the power of the State to intervene in and even take over the operation of vital utilities in the public interest was accepted. In the Philippines, this led to the incorporation of Section 6,[52] Article XIII of the 1935 Constitution, which was later carried over with modifications in Section 7,[53] Article XIV of the 1973 Constitution, and thereafter in Section 18, [54] Article XII of the 1987 Constitution. The lesson to be learned from the U.S. constitutional history is that the Commander-inChief powers are broad enough as it is and become more so when taken together with the provision on executive power and the presidential oath of office. Thus, the plenitude of the powers of the presidency equips the occupant with the means to address exigencies or threats which undermine the very existence of government or the integrity of the State. In The Philippine Presidency A Study of Executive Power, the late Mme. Justice Irene R. Cortes, proposed that the Philippine President was vested with residual power and that this is even greater than that of the U.S. President. She attributed this distinction to the unitary and highly centralized nature of the Philippine government. She noted that, There is no counterpart of the several states of the American union which have reserved powers under the United States constitution. Elaborating on the constitutional basis for her argument, she wrote:

. The [1935] Philippine [C]onstitution establishes the three departments of the government in this manner: The legislative power shall be vested in a Congress of the Philippines which shall consist of a Senate and a House of Representatives. The executive power shall be vested in a President of the Philippines. The judicial powers shall be vested in one Supreme Court and in such inferior courts as may be provided by law. These provisions not only establish a separation of powers by actual division but also confer plenary legislative, executive, and judicial powers. For as the Supreme Court of the Philippines pointed out in Ocampo v. Cabangis, a grant of legislative power means a grant of all the legislative power; and a grant of the judicial power means a grant of all the judicial power which may be exercised under the government. If this is true of the legislative power which is exercised by two chambers with a combined membership [at that time] of more than 120 and of the judicial power which is vested in a hierarchy of courts, it can equally if not more appropriately apply to the executive power which is vested in one official the president. He personifies the executive branch. There is a unity in the executive branch absent from the two other branches of government. The president is not the chief of many executives. He is the executive. His direction of the executive branch can be more immediate and direct than the United States president because he is given by express provision of the constitution control over all executive departments, bureaus and offices.[55] The esteemed Justice conducted her study against the backdrop of the 1935 Constitution, the framers of which, early on, arrived at a general opinion in favor of a strong Executive in the Philippines.[56] Since then, reeling from the aftermath of martial law, our most recent Charter has restricted the Presidents powers as Commander-in-Chief. The same, however, cannot be said of the Presidents powers as Chief Executive. In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into jurisprudence. There, the Court, by a slim 8-7 margin, upheld the Presidents power to forbid the return of her exiled predecessor. The rationale for the majoritys ruling rested on the Presidents unstated residual powers which are implied from the grant of executive power and which are necessary for her to comply with her duties under the Constitution. The powers of the President are not limited to what are expressly enumerated in the article on the Executive Department and in scattered provisions of the Constitution. This is so, notwithstanding the avowed intent of the members of the Constitutional Commission of 1986 to limit the powers of the President as a reaction to the abuses under the regime of Mr. Marcos, for the result was a limitation of specific powers of the President, particularly those relating to the commander-in-chief clause, but not a diminution of the general grant of executive power.[57] [Underscoring supplied. Italics in the original.] Thus, the Presidents authority to declare a state of rebellion springs in the main from her powers as chief executive and, at the same time, draws strength from her Commander-in-Chief powers. Indeed, as the Solicitor General accurately points out, statutory authority for such a declaration may be found in Section 4, Chapter 2 (Ordinance Power), Book III (Office of the President) of the Revised Administrative Code of 1987, which states: SEC. 4. Proclamations. Acts of the President fixing a date or declaring a status or condition of public moment or interest, upon the existence of which the operation of a specific law or regulation is made to depend, shall be promulgated in proclamations which shall have the force of an executive order. [Emphasis supplied.] The foregoing discussion notwithstanding, in calling out the armed forces, a declaration of a state of rebellion is an utter superfluity.[58] At most, it only gives notice to the nation that such a state exists and that the armed forces may be called to prevent or suppress it.[59] Perhaps the declaration may wreak emotional effects upon the perceived enemies of the State, even on the entire nation. But this Courts mandate is to probe only into the legal consequences of the declaration. This Court finds that such a declaration is devoid of any legal significance. For all legal intents, the declaration is deemed not written. Should there be any confusion generated by the issuance of Proclamation No. 427 and General Order No. 4, we clarify that, as the dissenters in Lacson correctly pointed out, the mere declaration of a state of rebellion cannot diminish or violate constitutionally protected rights.[60] Indeed, if a state of martial law does not suspend the operation of the Constitution or automatically suspend the privilege of the writ of habeas corpus,[61] then it is with more reason

that a simple declaration of a state of rebellion could not bring about these conditions.[62] At any rate, the presidential issuances themselves call for the suppression of the rebellion with due regard to constitutional rights. For the same reasons, apprehensions that the military and police authorities may resort to warrantless arrests are likewise unfounded. In Lacson vs. Perez, supra, majority of the Court held that [i]n quelling or suppressing the rebellion, the authorities may only resort to warrantless arrests of persons suspected of rebellion, as provided under Section 5, Rule 113 of the Rules of Court,[63] if the circumstances so warrant. The warrantless arrest feared by petitioners is, thus, not based on the declaration of a state of rebellion.[64] In other words, a person may be subjected to a warrantless arrest for the crime of rebellion whether or not the President has declared a state of rebellion, so long as the requisites for a valid warrantless arrest are present. It is not disputed that the President has full discretionary power to call out the armed forces and to determine the necessity for the exercise of such power. While the Court may examine whether the power was exercised within constitutional limits or in a manner constituting grave abuse of discretion, none of the petitioners here have, by way of proof, supported their assertion that the President acted without factual basis.[65] The argument that the declaration of a state of rebellion amounts to a declaration of martial law and, therefore, is a circumvention of the report requirement, is a leap of logic.There is no indication that military tribunals have replaced civil courts in the theater of war or that military authorities have taken over the functions of civil government. There is no allegation of curtailment of civil or political rights. There is no indication that the President has exercised judicial and legislative powers. In short, there is no illustration that the President has attempted to exercise or has exercised martial law powers. Nor by any stretch of the imagination can the declaration constitute an indirect exercise of emergency powers, which exercise depends upon a grant of Congress pursuant to Section 23 (2), Article VI of the Constitution: Sec. 23. (1) . (2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof. The petitions do not cite a specific instance where the President has attempted to or has exercised powers beyond her powers as Chief Executive or as Commander-in-Chief.The President, in declaring a state of rebellion and in calling out the armed forces, was merely exercising a wedding of her Chief Executive and Commander-in-Chief powers.These are purely executive powers, vested on the President by Sections 1 and 18, Article VII, as opposed to the delegated legislative powers contemplated by Section 23 (2), Article VI. WHEREFORE, the petitions are hereby DISMISSED. G.R. No. 96541 August 24, 1993 DEAN JOSE JOYA, CARMEN GUERRERO NAKPIL, ARMIDA SIGUION REYNA, PROF. RICARTE M. PURUGANAN, IRMA POTENCIANO, ADRIAN CRISTOBAL, INGRID SANTAMARIA, CORAZON FIEL, AMBASSADOR E. AGUILAR CRUZ, FLORENCIO R. JACELA, JR., MAURO MALANG, FEDERICO AGUILAR ALCUAZ, LUCRECIA R. URTULA, SUSANO GONZALES, STEVE SANTOS, EPHRAIM SAMSON, SOLER SANTOS, ANG KIU KOK, KERIMA POLOTAN, LUCRECIA KASILAG, LIGAYA DAVID PEREZ, VIRGILIO ALMARIO, LIWAYWAY A. ARCEO, CHARITO PLANAS, HELENA BENITEZ, ANNA MARIA L. HARPER, ROSALINDA OROSA, SUSAN CALO MEDINA, PATRICIA RUIZ, BONNIE RUIZ, NELSON NAVARRO, MANDY NAVASERO, ROMEO SALVADOR, JOSEPHINE DARANG, and PAZ VETO PLANAS, petitioners, vs. PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG), CATALINO MACARAIG, JR., in his official capacity, and/or the Executive Secretary, and CHAIRMAN MATEO A.T. CAPARAS, respondents.

M.M. Lazaro & Associates for petitioners. The Solicitor General for respondents.

BELLOSILLO, J.: All thirty-five (35) petitioners in this Special Civil Action for Prohibition and Mandamus with Prayer for Preliminary Injunction and/or Restraining Order seek to enjoin the Presidential Commission on Good Government (PCGG) from proceeding with the auction sale scheduled on 11 January 1991 by Christie's of New York of the Old Masters Paintings and 18th and 19th century silverware seized from Malacañang and the Metropolitan Museum of Manila and placed in the custody of the Central Bank. The antecedents: On 9 August 1990, Mateo A.T. Caparas, then Chairman of PCGG, wrote then President Corazon C. Aquino, requesting her for authority to sign the proposed Consignment Agreement between the Republic of the Philippines through PCGG and Christie, Manson and Woods International, Inc. (Christie's of New York, or CHRISTIE'S) concerning the scheduled sale on 11 January 1991 of eighty-two (82) Old Masters Paintings and antique silverware seized from Malacañang and the Metropolitan Museum of Manila alleged to be part of the ill-gotten wealth of the late President Marcos, his relatives and cronies. On 14 August 1990, then President Aquino, through former Executive Secretary Catalino Macaraig, Jr., authorized Chairman Caparas to sign the Consignment Agreement allowing Christie's of New York to auction off the subject art pieces for and in behalf of the Republic of the Philippines. On 15 August 1990, PCGG, through Chairman Caparas, representing the Government of the Republic of the Philippines, signed the Consignment Agreement with Christie's of New York. According to the agreement, PCGG shall consign to CHRISTIE'S for sale at public auction the eighty-two (82) Old Masters Paintings then found at the Metropolitan Museum of Manila as well as the silverware contained in seventy-one (71) cartons in the custody of the Central Bank of the Philippines, and such other property as may subsequently be identified by PCGG and accepted by CHRISTIE'S to be subject to the provisions of the agreement.1 On 26 October 1990, the Commission on Audit (COA) through then Chairman Eufemio C. Domingo submitted to President Aquino the audit findings and observations of COA on the Consignment Agreement of 15 August 1990 to the effect that: (a) the authority of former PCGG Chairman Caparas to enter into the Consignment Agreement was of doubtful legality; (b) the contract was highly disadvantageous to the government; (c) PCGG had a poor track record in asset disposal by auction in the U.S.; and, (d) the assets subject of auction were historical relics and had cultural significance, hence, their disposal was prohibited by law. 2 On 15 November 1990, PCGG through its new Chairman David M. Castro, wrote President Aquino defending the Consignment Agreement and refuting the allegations of COA Chairman Domingo.3 On the same date, Director of National Museum Gabriel S. Casal issued a certification that the items subject of the Consignment Agreement did not fall within the classification of protected cultural properties and did not specifically qualify as part of the Filipino cultural heritage.4 Hence, this petition originally filed on 7 January 1991 by Dean Jose Joya, Carmen Guerrero Nakpil, Armida Siguion Reyna, Prof. Ricarte M. Puruganan, Irma Potenciano, Adrian Cristobal, Ingrid Santamaria, Corazon Fiel, Ambassador E. Aguilar Cruz, Florencio R. Jacela, Jr., Mauro Malang, Federico Aguilar Alcuaz, Lucrecia R. Urtula, Susano Gonzales, Steve Santos, Ephraim Samson, Soler Santos, Ang Kiu Kok, Kerima Polotan, Lucrecia Kasilag, Ligaya David Perez, Virgilio Almario and Liwayway A. Arceo. After the oral arguments of the parties on 9 January 1991, we issued immediately our resolution denying the application for preliminary injunction to restrain the scheduled sale of the artworks on the ground that petitioners had not presented a clear legal right to a restraining order and that proper parties had not been impleaded.

On 11 January 1991, the sale at public auction proceeded as scheduled and the proceeds of $13,302,604.86 were turned over to the Bureau of Treasury.5 On 5 February 1991, on motion of petitioners, the following were joined as additional petitioners: Charito Planas, Helena Benitez, Ana Maria L. Harper, Rosalinda Orosa, Susan Carlo Medina, Patricia Ruiz, Bonnie Ruiz, Nelson Navarro, Mandy Navasero, Romeo Salvador, Josephine Darang and Paz Veto Planas. On the other hand, Catalino Macaraig, Jr., in his capacity as former Executive Secretary, the incumbent Executive Secretary, and Chairman Mateo A.T. Caparas were impleaded as additional respondents. Petitioners raise the following issues: (a) whether petitioners have legal standing to file the instant petition; (b) whether the Old Masters Paintings and antique silverware are embraced in the phrase "cultural treasure of the nation" which is under the protection of the state pursuant to the 1987 Constitution and/or "cultural properties" contemplated under R.A. 4846, otherwise known as "The Cultural Properties Preservation and Protection Act;" (c) whether the paintings and silverware are properties of public dominion on which can be disposed of through the joint concurrence of the President and Congress; (d) whether respondent, PCGG has the jurisdiction and authority to enter into an agreement with Christie's of New York for the sale of the artworks; (e) whether, PCGG has complied with the due process clause and other statutory requirements for the exportation and sale of the subject items; and, (f) whether the petition has become moot and academic, and if so, whether the above issues warrant resolution from this Court. The issues being interrelated, they will be discussed jointly hereunder. However, before proceeding, we wish to emphasize that we admire and commend petitioners' zealous concern to keep and preserve within the country great works of art by well-known old masters. Indeed, the value of art cannot be gainsaid. For, by serving as a creative medium through which man can express his innermost thoughts and unbridled emotions while, at the same time, reflecting his deep-seated ideals, art has become a true expression of beauty, joy, and life itself. Such artistic creations give us insights into the artists' cultural heritage — the historic past of the nation and the era to which they belong — in their triumphant, glorious, as well as troubled and turbulent years. It must be for this reason that the framers of the 1987 Constitution mandated in Art. XIV, Sec. 14, that is the solemn duty of the state to "foster the preservation, enrichment, and dynamic evolution of a Filipino national culture based on the principle of unity in diversity in a climate of free artistic and intellectual expression." And, in urging this Court to grant their petition, petitioners invoke this policy of the state on the protection of the arts. But, the altruistic and noble purpose of the petition notwithstanding, there is that basic legal question which must first be resolved: whether the instant petition complies with the legal requisites for this Court to exercise its power of judicial review over this case. The rule is settled that no question involving the constitutionality or validity of a law or governmental act may be heard and decided by the court unless there is compliance with the legal requisites for judicial inquiry, namely: that the question must be raised by the proper party; that there must be an actual case or controversy; that the question must be raised at the earliest possible opportunity; and, that the decision on the constitutional or legal question must be necessary to the determination of the case itself.6 But the most important are the first two (2) requisites. On the first requisite, we have held that one having no right or interest to protect cannot invoke the jurisdiction of the court as party-plaintiff in an action.7 This is premised on Sec. 2, Rule 3, of the Rules of Court which provides that every action must be prosecuted and defended in the name of the real party-in-interest, and that all persons having interest in the subject of the action and in obtaining the relief demanded shall be joined as plaintiffs. The Court will exercise its power of judicial review only if the case is brought before it by a party who has the legal standing to raise the constitutional or legal question. "Legal standing" means a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The term "interest" is material interest, an interest in issue and to be affected by the

decree, as distinguished from mere interest in the question involved, or a mere incidental interest.8 Moreover, the interest of the party plaintiff must be personal and not one based on a desire to vindicate the constitutional right of some third and related party. 9 There are certain instances however when this Court has allowed exceptions to the rule on legal standing, as when a citizen brings a case for mandamus to procure the enforcement of a public duty for the fulfillment of a public right recognized by the Constitution, 10 and when a taxpayer questions the validity of a governmental act authorizing the disbursement of public funds. 11 Petitioners claim that as Filipino citizens, taxpayers and artists deeply concerned with the preservation and protection of the country's artistic wealth, they have the legal personality to restrain respondents Executive Secretary and PCGG from acting contrary to their public duty to conserve the artistic creations as mandated by the 1987 Constitution, particularly Art. XIV, Secs. 14 to 18, on Arts and Culture, and R.A. 4846 known as "The Cultural Properties Preservation and Protection Act," governing the preservation and disposition of national and important cultural properties. Petitioners also anchor their case on the premise that the paintings and silverware are public properties collectively owned by them and by the people in general to view and enjoy as great works of art. They allege that with the unauthorized act of PCGG in selling the art pieces, petitioners have been deprived of their right to public property without due process of law in violation of the Constitution. 12 Petitioners' arguments are devoid of merit. They lack basis in fact and in law. They themselves allege that the paintings were donated by private persons from different parts of the world to the Metropolitan Museum of Manila Foundation, which is a non-profit and non-stock corporations established to promote non-Philippine arts. The foundation's chairman was former First Lady Imelda R. Marcos, while its president was Bienvenido R. Tantoco. On this basis, the ownership of these paintings legally belongs to the foundation or corporation or the members thereof, although the public has been given the opportunity to view and appreciate these paintings when they were placed on exhibit. Similarly, as alleged in the petition, the pieces of antique silverware were given to the Marcos couple as gifts from friends and dignitaries from foreign countries on their silver wedding and anniversary, an occasion personal to them. When the Marcos administration was toppled by the revolutionary government, these paintings and silverware were taken from Malacañang and the Metropolitan Museum of Manila and transferred to the Central Bank Museum. The confiscation of these properties by the Aquino administration however should not be understood to mean that the ownership of these paintings has automatically passed on the government without complying with constitutional and statutory requirements of due process and just compensation. If these properties were already acquired by the government, any constitutional or statutory defect in their acquisition and their subsequent disposition must be raised only by the proper parties — the true owners thereof — whose authority to recover emanates from their proprietary rights which are protected by statutes and the Constitution. Having failed to show that they are the legal owners of the artworks or that the valued pieces have become publicly owned, petitioners do not possess any clear legal right whatsoever to question their alleged unauthorized disposition. Further, although this action is also one of mandamus filed by concerned citizens, it does not fulfill the criteria for a mandamus suit. In Legaspi v. Civil Service Commission, 13 this Court laid down the rule that a writ of mandamus may be issued to a citizen only when the public right to be enforced and the concomitant duty of the state are unequivocably set forth in the Constitution. In the case at bar, petitioners are not after the fulfillment of a positive duty required of respondent officials under the 1987 Constitution. What they seek is the enjoining of an official act because it is constitutionally infirmed. Moreover, petitioners' claim for the continued enjoyment and appreciation by the public of the artworks is at most a privilege and is unenforceable as a constitutional right in this action for mandamus. Neither can this petition be allowed as a taxpayer's suit. Not every action filed by a taxpayer can qualify to challenge the legality of official acts done by the government. A taxpayer's suit can prosper only if the governmental acts being questioned involve disbursement of public funds upon the theory that the expenditure of public funds by an officer of the state for the purpose of administering an unconstitutional act constitutes a misapplication of such funds, which may be

enjoined at the request of a taxpayer. 14 Obviously, petitioners are not challenging any expenditure involving public funds but the disposition of what they allege to be public properties. It is worthy to note that petitioners admit that the paintings and antique silverware were acquired from private sources and not with public money. Anent the second requisite of actual controversy, petitioners argue that this case should be resolved by this Court as an exception to the rule on moot and academic cases; that although the sale of the paintings and silver has long been consummated and the possibility of retrieving the treasure trove is nil, yet the novelty and importance of the issues raised by the petition deserve this Court's attention. They submit that the resolution by the Court of the issues in this case will establish future guiding principles and doctrines on the preservation of the nation's priceless artistic and cultural possessions for the benefit of the public as a whole. 15 For a court to exercise its power of adjudication, there must be an actual case of controversy — one which involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution; the case must not be moot or academic or based on extra-legal or other similar considerations not cognizable by a court of justice. 16 A case becomes moot and academic when its purpose has become stale, 17 such as the case before us. Since the purpose of this petition for prohibition is to enjoin respondent public officials from holding the auction sale of the artworks on a particular date — 11 January 1991 — which is long past, the issues raised in the petition have become moot and academic. At this point, however, we need to emphasize that this Court has the discretion to take cognizance of a suit which does not satisfy the requirements of an actual case or legal standing when paramount public interest is involved. 18We find however that there is no such justification in the petition at bar to warrant the relaxation of the rule. Section 2 of R.A. 4846, as amended by P.D. 374, declares it to be the policy of the state to preserve and protect the important cultural properties and national cultural treasures of the nation and to safeguard their intrinsic value. As to what kind of artistic and cultural properties are considered by the State as involving public interest which should therefore be protected, the answer can be gleaned from reading of the reasons behind the enactment of R.A. 4846: WHEREAS, the National Museum has the difficult task, under existing laws and regulations, of preserving and protecting the cultural properties of the nation; WHEREAS, inumerable sites all over the country have since been excavated for cultural relics, which have passed on to private hands, representing priceless cultural treasure that properly belongs to the Filipino people as their heritage; WHEREAS, it is perhaps impossible now to find an area in the Philippines, whether government or private property, which has not been disturbed by commercially-minded diggers and collectors, literally destroying part of our historic past; WHEREAS, because of this the Philippines has been charged as incapable of preserving and protecting her cultural legacies; WHEREAS, the commercialization of Philippine relics from the contact period, the Neolithic Age, and the Paleolithic Age, has reached a point perilously placing beyond reach of savants the study and reconstruction of Philippine prehistory; and WHEREAS, it is believed that more stringent regulation on movement and a limited form of registration of important cultural properties and of designated national cultural treasures is necessary, and that regardless of the item, any cultural property exported or sold locally must be registered with the National Museum to control the deplorable situation regarding our national cultural properties and to implement the Cultural Properties Law (emphasis supplied).

Clearly, the cultural properties of the nation which shall be under the protection of the state are classified as the "important cultural properties" and the "national cultural treasures." "Important cultural properties" are cultural properties which have been singled out from among the innumerable cultural properties as having exceptional historical cultural significance to the Philippines but are not sufficiently outstanding to merit the classification of national cultural treasures. 19 On the other hand, a "national cultural treasures" is a unique object found locally, possessing outstanding historical, cultural, artistic and/or scientific value which is highly significant and important to this country and nation. 20 This Court takes note of the certification issued by the Director of the Museum that the Italian paintings and silverware subject of this petition do not constitute protected cultural properties and are not among those listed in the Cultural Properties Register of the National Museum. We agree with the certification of the Director of the Museum. Under the law, it is the Director of the Museum who is authorized to undertake the inventory, registration, designation or classification, with the aid of competent experts, of important cultural properties and national cultural treasures. 21 Findings of administrative officials and agencies who have acquired expertise because their jurisdiction is confined to specific matters are generally accorded not only respect but at times even finality if such findings are supported by substantial evidence and are controlling on the reviewing authorities because of their acknowledged expertise in the fields of specialization to which they are assigned. 22 In view of the foregoing, this Court finds no compelling reason to grant the petition. Petitioners have failed to show that respondents Executive Secretary and PCGG exercised their functions with grave abuse of discretion or in excess of their jurisdiction. WHEREFORE, for lack of merit, the petition for prohibition and mandamus is DISMISSED. G.R. No. 101083 July 30, 1993 JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and represented by their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA, minor, represented by her parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD and PATRISHA, all surnamed FLORES, minors and represented by their parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor, represented by her parents SIGRID and DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all surnamed MISA, minors and represented by their parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN, minor, represented by his parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO, minor, represented by her parents JOSE and MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor, represented by her parents FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO, minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T. NARVASA, minor, represented by his parents GREGORIO II and CRISTINE CHARITY NARVASA, MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all surnamed SAENZ, minors, represented by their parents ROBERTO and AURORA SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN, all surnamed KING, minors, represented by their parents MARIO and HAYDEE KING, DAVID, FRANCISCO and THERESE VICTORIA, all surnamed ENDRIGA, minors, represented by their parents BALTAZAR and TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA, minors, represented by their parents ANTONIO and MARICA ABAYA, MARILIN, MARIO, JR. and MARIETTE, all surnamed CARDAMA, minors, represented by their parents MARIO and LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all surnamed OPOSA, minors and represented by their parents RICARDO and MARISSA OPOSA, PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors, represented by their parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and FRANCISCO, all surnamed BIBAL, minors, represented by their parents FRANCISCO, JR. and MILAGROS BIBAL, and THE PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners, vs. THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the Department of Environment and Natural Resources, and THE HONORABLE ERIBERTO U. ROSARIO, Presiding Judge of the RTC, Makati, Branch 66, respondents.

Oposa Law Office for petitioners. The Solicitor General for respondents.

DAVIDE, JR., J.: In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology which the petitioners dramatically associate with the twin concepts of "inter-generational responsibility" and "inter-generational justice." Specifically, it touches on the issue of whether the said petitioners have a cause of action to "prevent the misappropriation or impairment" of Philippine rainforests and "arrest the unabated hemorrhage of the country's vital life support systems and continued rape of Mother Earth." The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66 (Makati, Metro Manila) of the Regional Trial Court (RTC), National Capital Judicial Region. The principal plaintiffs therein, now the principal petitioners, are all minors duly represented and joined by their respective parents. Impleaded as an additional plaintiff is the Philippine Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit corporation organized for the purpose of, inter alia, engaging in concerted action geared for the protection of our environment and natural resources. The original defendant was the Honorable Fulgencio S. Factoran, Jr., then Secretary of the Department of Environment and Natural Resources (DENR). His substitution in this petition by the new Secretary, the Honorable Angel C. Alcala, was subsequently ordered upon proper motion by the petitioners.1 The complaint2 was instituted as a taxpayers' class suit3 and alleges that the plaintiffs "are all citizens of the Republic of the Philippines, taxpayers, and entitled to the full benefit, use and enjoyment of the natural resource treasure that is the country's virgin tropical forests." The same was filed for themselves and others who are equally concerned about the preservation of said resource but are "so numerous that it is impracticable to bring them all before the Court." The minors further asseverate that they "represent their generation as well as generations yet unborn." 4 Consequently, it is prayed for that judgment be rendered: . . . ordering defendant, his agents, representatives and other persons acting in his behalf to — (1) Cancel all existing timber license agreements in the country; (2) Cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements. and granting the plaintiffs ". . . such other reliefs just and equitable under the premises."5 The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands has a land area of thirty million (30,000,000) hectares and is endowed with rich, lush and verdant rainforests in which varied, rare and unique species of flora and fauna may be found; these rainforests contain a genetic, biological and chemical pool which is irreplaceable; they are also the habitat of indigenous Philippine cultures which have existed, endured and flourished since time immemorial; scientific evidence reveals that in order to maintain a balanced and healthful ecology, the country's land area should be utilized on the basis of a ratio of fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for agricultural, residential, industrial, commercial and other uses; the distortion and disturbance of this balance as a consequence of deforestation have resulted in a host of environmental tragedies, such as (a) water shortages resulting from drying up of the water table, otherwise known as the "aquifer," as well as of rivers, brooks and streams, (b) salinization of the water table as a result of the intrusion therein of salt water, incontrovertible examples of which may be found in the island of Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion and the consequential loss of soil fertility and agricultural productivity, with the volume of soil eroded estimated at one billion (1,000,000,000) cubic meters per annum — approximately the size of the entire island of Catanduanes, (d) the endangering and extinction of the country's unique, rare and varied flora and fauna, (e) the disturbance and dislocation of cultural communities,

including the disappearance of the Filipino's indigenous cultures, (f) the siltation of rivers and seabeds and consequential destruction of corals and other aquatic life leading to a critical reduction in marine resource productivity, (g) recurrent spells of drought as is presently experienced by the entire country, (h) increasing velocity of typhoon winds which result from the absence of windbreakers, (i) the floodings of lowlands and agricultural plains arising from the absence of the absorbent mechanism of forests, (j) the siltation and shortening of the lifespan of multi-billion peso dams constructed and operated for the purpose of supplying water for domestic uses, irrigation and the generation of electric power, and (k) the reduction of the earth's capacity to process carbon dioxide gases which has led to perplexing and catastrophic climatic changes such as the phenomenon of global warming, otherwise known as the "greenhouse effect." Plaintiffs further assert that the adverse and detrimental consequences of continued and deforestation are so capable of unquestionable demonstration that the same may be submitted as a matter of judicial notice. This notwithstanding, they expressed their intention to present expert witnesses as well as documentary, photographic and film evidence in the course of the trial. As their cause of action, they specifically allege that: CAUSE OF ACTION 7. Plaintiffs replead by reference the foregoing allegations. 8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares of rainforests constituting roughly 53% of the country's land mass. 9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million hectares of said rainforests or four per cent (4.0%) of the country's land area. 10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth rainforests are left, barely 2.8% of the entire land mass of the Philippine archipelago and about 3.0 million hectares of immature and uneconomical secondary growth forests. 11. Public records reveal that the defendant's, predecessors have granted timber license agreements ('TLA's') to various corporations to cut the aggregate area of 3.89 million hectares for commercial logging purposes. A copy of the TLA holders and the corresponding areas covered is hereto attached as Annex "A". 12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25 hectares per hour — nighttime, Saturdays, Sundays and holidays included — the Philippines will be bereft of forest resources after the end of this ensuing decade, if not earlier. 13. The adverse effects, disastrous consequences, serious injury and irreparable damage of this continued trend of deforestation to the plaintiff minor's generation and to generations yet unborn are evident and incontrovertible. As a matter of fact, the environmental damages enumerated in paragraph 6 hereof are already being felt, experienced and suffered by the generation of plaintiff adults. 14. The continued allowance by defendant of TLA holders to cut and deforest the remaining forest stands will work great damage and irreparable injury to plaintiffs — especially plaintiff minors and their successors — who may never see, use, benefit from and enjoy this rare and unique natural resource treasure.

This act of defendant constitutes a misappropriation and/or impairment of the natural resource property he holds in trust for the benefit of plaintiff minors and succeeding generations. 15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and are entitled to protection by the State in its capacity as the parens patriae. 16. Plaintiff have exhausted all administrative remedies with the defendant's office. On March 2, 1990, plaintiffs served upon defendant a final demand to cancel all logging permits in the country. A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B". 17. Defendant, however, fails and refuses to cancel the existing TLA's to the continuing serious damage and extreme prejudice of plaintiffs. 18. The continued failure and refusal by defendant to cancel the TLA's is an act violative of the rights of plaintiffs, especially plaintiff minors who may be left with a country that is desertified (sic), bare, barren and devoid of the wonderful flora, fauna and indigenous cultures which the Philippines had been abundantly blessed with. 19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to the public policy enunciated in the Philippine Environmental Policy which, in pertinent part, states that it is the policy of the State — (a) to create, develop, maintain and improve conditions under which man and nature can thrive in productive and enjoyable harmony with each other; (b) to fulfill the social, economic and other requirements of present and future generations of Filipinos and; (c) to ensure the attainment of an environmental quality that is conductive to a life of dignity and well-being. (P.D. 1151, 6 June 1977) 20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's is contradictory to the Constitutional policy of the State to — a. effect "a more equitable distribution of opportunities, income and wealth" and "make full and efficient use of natural resources (sic)." (Section 1, Article XII of the Constitution); b. "protect the nation's marine wealth." (Section 2, ibid); c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section 14, Article XIV, id.); d. "protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature." (Section 16, Article II, id.) 21. Finally, defendant's act is contrary to the highest law of humankind — the natural law — and violative of plaintiffs' right to self-preservation and perpetuation. 22. There is no other plain, speedy and adequate remedy in law other than the instant action to arrest the unabated hemorrhage of the country's vital life support systems and continued rape of Mother Earth. 6

On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the complaint based on two (2) grounds, namely: (1) the plaintiffs have no cause of action against him and (2) the issue raised by the plaintiffs is a political question which properly pertains to the legislative or executive branches of Government. In their 12 July 1990 Opposition to the Motion, the petitioners maintain that (1) the complaint shows a clear and unmistakable cause of action, (2) the motion is dilatory and (3) the action presents a justiciable question as it involves the defendant's abuse of discretion. On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to dismiss.7 In the said order, not only was the defendant's claim — that the complaint states no cause of action against him and that it raises a political question — sustained, the respondent Judge further ruled that the granting of the relief prayed for would result in the impairment of contracts which is prohibited by the fundamental law of the land. Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of Court and ask this Court to rescind and set aside the dismissal order on the ground that the respondent Judge gravely abused his discretion in dismissing the action. Again, the parents of the plaintiffs-minors not only represent their children, but have also joined the latter in this case.8 On 14 May 1992, We resolved to give due course to the petition and required the parties to submit their respective Memoranda after the Office of the Solicitor General (OSG) filed a Comment in behalf of the respondents and the petitioners filed a reply thereto. Petitioners contend that the complaint clearly and unmistakably states a cause of action as it contains sufficient allegations concerning their right to a sound environment based on Articles 19, 20 and 21 of the Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No. 192 creating the DENR, Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine Environmental Policy), Section 16, Article II of the 1987 Constitution recognizing the right of the people to a balanced and healthful ecology, the concept of generational genocide in Criminal Law and the concept of man's inalienable right to self-preservation and self-perpetuation embodied in natural law. Petitioners likewise rely on the respondent's correlative obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a healthful environment. It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in granting Timber License Agreements (TLAs) to cover more areas for logging than what is available involves a judicial question. Anent the invocation by the respondent Judge of the Constitution's non-impairment clause, petitioners maintain that the same does not apply in this case because TLAs are not contracts. They likewise submit that even if TLAs may be considered protected by the said clause, it is well settled that they may still be revoked by the State when the public interest so requires. On the other hand, the respondents aver that the petitioners failed to allege in their complaint a specific legal right violated by the respondent Secretary for which any relief is provided by law. They see nothing in the complaint but vague and nebulous allegations concerning an "environmental right" which supposedly entitles the petitioners to the "protection by the state in its capacity as parens patriae." Such allegations, according to them, do not reveal a valid cause of action. They then reiterate the theory that the question of whether logging should be permitted in the country is a political question which should be properly addressed to the executive or legislative branches of Government. They therefore assert that the petitioners' resources is not to file an action to court, but to lobby before Congress for the passage of a bill that would ban logging totally. As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done by the State without due process of law. Once issued, a TLA remains effective for a certain period of time — usually for twenty-five (25) years. During its effectivity, the same can neither be revised nor cancelled unless the holder has been found, after due notice and hearing, to have violated the terms of the agreement or other forestry laws and regulations. Petitioners' proposition to have all the TLAs indiscriminately cancelled without the requisite hearing would be violative of the requirements of due process.

Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil Case No. 90-777 as a class suit. The original defendant and the present respondents did not take issue with this matter. Nevertheless, We hereby rule that the said civil case is indeed a class suit. The subject matter of the complaint is of common and general interest not just to several, but to all citizens of the Philippines. Consequently, since the parties are so numerous, it, becomes impracticable, if not totally impossible, to bring all of them before the court. We likewise declare that the plaintiffs therein are numerous and representative enough to ensure the full protection of all concerned interests. Hence, all the requisites for the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules of Court are present both in the said civil case and in the instant petition, the latter being but an incident to the former. This case, however, has a special and novel element. Petitioners minors assert that they represent their generation as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right, as hereinafter expounded, considers the "rhythm and harmony of nature." Nature means the created world in its entirety. 9 Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end that their exploration, development and utilization be equitably accessible to the present as well as future generations. 10Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the minors' assertion of their right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations to come. The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits of the petition. After a careful perusal of the complaint in question and a meticulous consideration and evaluation of the issues raised and arguments adduced by the parties, We do not hesitate to find for the petitioners and rule against the respondent Judge's challenged order for having been issued with grave abuse of discretion amounting to lack of jurisdiction. The pertinent portions of the said order reads as follows: xxx xxx xxx After a careful and circumspect evaluation of the Complaint, the Court cannot help but agree with the defendant. For although we believe that plaintiffs have but the noblest of all intentions, it (sic) fell short of alleging, with sufficient definiteness, a specific legal right they are seeking to enforce and protect, or a specific legal wrong they are seeking to prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the Court notes that the Complaint is replete with vague assumptions and vague conclusions based on unverified data. In fine, plaintiffs fail to state a cause of action in its Complaint against the herein defendant. Furthermore, the Court firmly believes that the matter before it, being impressed with political color and involving a matter of public policy, may not be taken cognizance of by this Court without doing violence to the sacred principle of "Separation of Powers" of the three (3) co-equal branches of the Government. The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country and to cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements. For to do otherwise would amount to "impairment of contracts" abhored (sic) by the fundamental law. 11

We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient definiteness a specific legal right involved or a specific legal wrong committed, and that the complaint is replete with vague assumptions and conclusions based on unverified data. A reading of the complaint itself belies these conclusions. The complaint focuses on one specific fundamental legal right — the right to a balanced and healthful ecology which, for the first time in our nation's constitutional history, is solemnly incorporated in the fundamental law. Section 16, Article II of the 1987 Constitution explicitly provides: Sec. 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. This right unites with the right to health which is provided for in the preceding section of the same article: Sec. 15. The State shall protect and promote the right to health of the people and instill health consciousness among them. While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and self-perpetuation — aptly and fittingly stressed by the petitioners — the advancement of which may even be said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the first and protect and advance the second, the day would not be too far when all else would be lost not only for the present generation, but also for those to come — generations which stand to inherit nothing but parched earth incapable of sustaining life. The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment. During the debates on this right in one of the plenary sessions of the 1986 Constitutional Commission, the following exchange transpired between Commissioner Wilfrido Villacorta and Commissioner Adolfo Azcuna who sponsored the section in question: MR. VILLACORTA: Does this section mandate the State to provide sanctions against all forms of pollution — air, water and noise pollution? MR. AZCUNA: Yes, Madam President. The right to healthful (sic) environment necessarily carries with it the correlative duty of not impairing the same and, therefore, sanctions may be provided for impairment of environmental balance. 12 The said right implies, among many other things, the judicious management and conservation of the country's forests. Without such forests, the ecological or environmental balance would be irreversiby disrupted. Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as well as the other related provisions of the Constitution concerning the conservation, development and utilization of the country's natural resources, 13 then President Corazon C. Aquino promulgated on 10 June 1987 E.O. No. 192, 14 Section 4 of which expressly mandates

that the Department of Environment and Natural Resources "shall be the primary government agency responsible for the conservation, management, development and proper use of the country's environment and natural resources, specifically forest and grazing lands, mineral, resources, including those in reservation and watershed areas, and lands of the public domain, as well as the licensing and regulation of all natural resources as may be provided for by law in order to ensure equitable sharing of the benefits derived therefrom for the welfare of the present and future generations of Filipinos." Section 3 thereof makes the following statement of policy: Sec. 3. Declaration of Policy. — It is hereby declared the policy of the State to ensure the sustainable use, development, management, renewal, and conservation of the country's forest, mineral, land, off-shore areas and other natural resources, including the protection and enhancement of the quality of the environment, and equitable access of the different segments of the population to the development and the use of the country's natural resources, not only for the present generation but for future generations as well. It is also the policy of the state to recognize and apply a true value system including social and environmental cost implications relative to their utilization, development and conservation of our natural resources. This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of 1987,15 specifically in Section 1 thereof which reads: Sec. 1. Declaration of Policy. — (1) The State shall ensure, for the benefit of the Filipino people, the full exploration and development as well as the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources, consistent with the necessity of maintaining a sound ecological balance and protecting and enhancing the quality of the environment and the objective of making the exploration, development and utilization of such natural resources equitably accessible to the different segments of the present as well as future generations. (2) The State shall likewise recognize and apply a true value system that takes into account social and environmental cost implications relative to the utilization, development and conservation of our natural resources. The above provision stresses "the necessity of maintaining a sound ecological balance and protecting and enhancing the quality of the environment." Section 2 of the same Title, on the other hand, specifically speaks of the mandate of the DENR; however, it makes particular reference to the fact of the agency's being subject to law and higher authority. Said section provides: Sec. 2. Mandate. — (1) The Department of Environment and Natural Resources shall be primarily responsible for the implementation of the foregoing policy. (2) It shall, subject to law and higher authority, be in charge of carrying out the State's constitutional mandate to control and supervise the exploration, development, utilization, and conservation of the country's natural resources. Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as the bases for policy formulation, and have defined the powers and functions of the DENR. It may, however, be recalled that even before the ratification of the 1987 Constitution, specific statutes already paid special attention to the "environmental right" of the present and future generations. On 6 June 1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152 (Philippine Environment Code) were issued. The former "declared a continuing policy of the State (a) to create, develop, maintain and improve conditions under which man and nature can thrive in productive and enjoyable harmony with each other, (b) to fulfill the social, economic and other requirements of present and future generations of Filipinos, and (c) to insure the attainment of an environmental quality that is conducive to a life of dignity and well-being." 16 As its goal, it speaks of the "responsibilities of each generation as trustee and guardian of the

environment for succeeding generations." 17 The latter statute, on the other hand, gave flesh to the said policy. Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as clear as the DENR's duty — under its mandate and by virtue of its powers and functions under E.O. No. 192 and the Administrative Code of 1987 — to protect and advance the said right. A denial or violation of that right by the other who has the corelative duty or obligation to respect or protect the same gives rise to a cause of action. Petitioners maintain that the granting of the TLAs, which they claim was done with grave abuse of discretion, violated their right to a balanced and healthful ecology; hence, the full protection thereof requires that no further TLAs should be renewed or granted. A cause of action is defined as: . . . an act or omission of one party in violation of the legal right or rights of the other; and its essential elements are legal right of the plaintiff, correlative obligation of the defendant, and act or omission of the defendant in violation of said legal right. 18 It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint fails to state a cause of action, 19 the question submitted to the court for resolution involves the sufficiency of the facts alleged in the complaint itself. No other matter should be considered; furthermore, the truth of falsity of the said allegations is beside the point for the truth thereof is deemed hypothetically admitted. The only issue to be resolved in such a case is: admitting such alleged facts to be true, may the court render a valid judgment in accordance with the prayer in the complaint? 20 In Militante vs. Edrosolano, 21 this Court laid down the rule that the judiciary should "exercise the utmost care and circumspection in passing upon a motion to dismiss on the ground of the absence thereof [cause of action] lest, by its failure to manifest a correct appreciation of the facts alleged and deemed hypothetically admitted, what the law grants or recognizes is effectively nullified. If that happens, there is a blot on the legal order. The law itself stands in disrepute." After careful examination of the petitioners' complaint, We find the statements under the introductory affirmative allegations, as well as the specific averments under the sub-heading CAUSE OF ACTION, to be adequate enough to show, prima facie, the claimed violation of their rights. On the basis thereof, they may thus be granted, wholly or partly, the reliefs prayed for. It bears stressing, however, that insofar as the cancellation of the TLAs is concerned, there is the need to implead, as party defendants, the grantees thereof for they are indispensable parties. The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy formulation or determination by the executive or legislative branches of Government is not squarely put in issue. What is principally involved is the enforcement of a right vis-a-vis policies already formulated and expressed in legislation. It must, nonetheless, be emphasized that the political question doctrine is no longer, the insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects executive and legislative actions from judicial inquiry or review. The second paragraph of section 1, Article VIII of the Constitution states that: 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. Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A. Cruz, a distinguished member of this Court, says: The first part of the authority represents the traditional concept of judicial power, involving the settlement of conflicting rights as conferred as law. The second part of the authority represents a broadening of judicial power to enable the courts of

justice to review what was before forbidden territory, to wit, the discretion of the political departments of the government. As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power to rule upon even the wisdom of the decisions of the executive and the legislature and to declare their acts invalid for lack or excess of jurisdiction because tainted with grave abuse of discretion. The catch, of course, is the meaning of "grave abuse of discretion," which is a very elastic phrase that can expand or contract according to the disposition of the judiciary. In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted: In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that, even if we were to assume that the issue presented before us was political in nature, we would still not be precluded from revolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the political question. Article VII, Section 1, of the Constitution clearly provides: . . . The last ground invoked by the trial court in dismissing the complaint is the non-impairment of contracts clause found in the Constitution. The court a quo declared that: The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country and to cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements. For to do otherwise would amount to "impairment of contracts" abhored (sic) by the fundamental law. 24 We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping pronouncement. In the first place, the respondent Secretary did not, for obvious reasons, even invoke in his motion to dismiss the non-impairment clause. If he had done so, he would have acted with utmost infidelity to the Government by providing undue and unwarranted benefits and advantages to the timber license holders because he would have forever bound the Government to strictly respect the said licenses according to their terms and conditions regardless of changes in policy and the demands of public interest and welfare. He was aware that as correctly pointed out by the petitioners, into every timber license must be read Section 20 of the Forestry Reform Code (P.D. No. 705) which provides: . . . Provided, That when the national interest so requires, the President may amend, modify, replace or rescind any contract, concession, permit, licenses or any other form of privilege granted herein . . . Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract, property or a property right protested by the due process clause of the Constitution. In Tan vs. Director of Forestry, 25 this Court held: . . . A timber license is an instrument by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. A timber license is not a contract within the purview of the due process clause; it is only a license or privilege, which can be validly withdrawn whenever dictated by public interest or public welfare as in this case. A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract between the authority, federal, state, or municipal, granting it and the person to whom it is granted; neither is it property or a property right, nor does it create a vested right; nor is it taxation (37 C.J. 168). Thus, this Court held that the granting of license does not create irrevocable rights, neither is it property or property rights (People vs. Ong Tin, 54 O.G. 7576).

We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary: 26 . . . Timber licenses, permits and license agreements are the principal instruments by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. And it can hardly be gainsaid that they merely evidence a privilege granted by the State to qualified entities, and do not vest in the latter a permanent or irrevocable right to the particular concession area and the forest products therein. They may be validly amended, modified, replaced or rescinded by the Chief Executive when national interests so require. Thus, they are not deemed contracts within the purview of the due process of law clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302]. Since timber licenses are not contracts, the non-impairment clause, which reads: Sec. 10. No law impairing, the obligation of contracts shall be passed.

27

cannot be invoked. In the second place, even if it is to be assumed that the same are contracts, the instant case does not involve a law or even an executive issuance declaring the cancellation or modification of existing timber licenses. Hence, the non-impairment clause cannot as yet be invoked. Nevertheless, granting further that a law has actually been passed mandating cancellations or modifications, the same cannot still be stigmatized as a violation of the non-impairment clause. This is because by its very nature and purpose, such as law could have only been passed in the exercise of the police power of the state for the purpose of advancing the right of the people to a balanced and healthful ecology, promoting their health and enhancing the general welfare. In Abe vs. Foster Wheeler 28 Corp. this Court stated: The freedom of contract, under our system of government, is not meant to be absolute. The same is understood to be subject to reasonable legislative regulation aimed at the promotion of public health, moral, safety and welfare. In other words, the constitutional guaranty of non-impairment of obligations of contract is limited by the exercise of the police power of the State, in the interest of public health, safety, moral and general welfare. The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine American Life Insurance Co. vs. Auditor General,30 to wit: Under our form of government the use of property and the making of contracts are normally matters of private and not of public concern. The general rule is that both shall be free of governmental interference. But neither property rights nor contract rights are absolute; for government cannot exist if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them harm. Equally fundamental with the private right is that of the public to regulate it in the common interest. In short, the non-impairment clause must yield to the police power of the state. 31 Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could apply with respect to the prayer to enjoin the respondent Secretary from receiving, accepting, processing, renewing or approving new timber licenses for, save in cases of renewal, no contract would have as of yet existed in the other instances. Moreover, with respect to renewal, the holder is not entitled to it as a matter of right. WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the challenged Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is

hereby set aside. The petitioners may therefore amend their complaint to implead as defendants the holders or grantees of the questioned timber license agreements. No pronouncement as to costs. SO ORDERED. Cruz, Padilla, Bidin, Griño-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Quiason, JJ., concur. Narvasa, C.J., Puno and Vitug, JJ., took no part.

Separate Opinions

FELICIANO, J., concurring I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case which, to my mind, is one of the most important cases decided by this Court in the last few years. The seminal principles laid down in this decision are likely to influence profoundly the direction and course of the protection and management of the environment, which of course embraces the utilization of all the natural resources in the territorial base of our polity. I have therefore sought to clarify, basically to myself, what the Court appears to be saying. The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing and, maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners' claim that their suit is properly regarded as a class suit. I understand locus standi to refer to the legal interest which a plaintiff must have in the subject matter of the suit. Because of the very broadness of the concept of "class" here involved — membership in this "class" appears to embrace everyone living in the country whether now or in the future — it appears to me that everyone who may be expected to benefit from the course of action petitioners seek to require public respondents to take, is vested with the necessary locus standi. The Court may be seen therefore to be recognizing a beneficiaries' right of action in the field of environmental protection, as against both the public administrative agency directly concerned and the private persons or entities operating in the field or sector of activity involved. Whether such beneficiaries' right of action may be found under any and all circumstances, or whether some failure to act, in the first instance, on the part of the governmental agency concerned must be shown ("prior exhaustion of administrative remedies"), is not discussed in the decision and presumably is left for future determination in an appropriate case. The Court has also declared that the complaint has alleged and focused upon "one specific fundamental legal right — the right to a balanced and healthful ecology" (Decision, p. 14). There is no question that "the right to a balanced and healthful ecology" is "fundamental" and that, accordingly, it has been "constitutionalized." But although it is fundamental in character, I suggest, with very great respect, that it cannot be characterized as "specific," without doing excessive violence to language. It is in fact very difficult to fashion language more comprehensive in scope and generalized in character than a right to "a balanced and healthful ecology." The list of particular claims which can be subsumed under this rubic appears to be entirely open-ended: prevention and control of emission of toxic fumes and smoke from factories and motor vehicles; of discharge of oil, chemical effluents, garbage and raw sewage into rivers, inland and coastal waters by vessels, oil rigs, factories, mines and whole communities; of dumping of organic and inorganic wastes on open land, streets and thoroughfares; failure to rehabilitate land after strip-mining or open-pit mining; kaingin or slashand-burn farming; destruction of fisheries, coral reefs and other living sea resources through the

use of dynamite or cyanide and other chemicals; contamination of ground water resources; loss of certain species of fauna and flora; and so on. The other statements pointed out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book IV of the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 — all appear to be formulations of policy, as general and abstract as the constitutional statements of basic policy in Article II, Section 16 ("the right — to a balanced and healthful ecology") and 15 ("the right to health"). P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the other hand, a compendious collection of more "specific environment management policies" and "environment quality standards" (fourth "Whereas" clause, Preamble) relating to an extremely wide range of topics: (a) air quality management; (b) water quality management; (c) land use management; (d) natural resources management and conservation embracing: (i) fisheries and aquatic resources; (ii) wild life; (iii) forestry and soil conservation; (iv) flood control and natural calamities; (v) energy development; (vi) conservation and utilization of surface and ground water (vii) mineral resources Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has identified the particular provision or provisions (if any) of the Philippine Environment Code which give rise to a specific legal right which petitioners are seeking to enforce. Secondly, the Philippine Environment Code identifies with notable care the particular government agency charged with the formulation and implementation of guidelines and programs dealing with each of the headings and sub-headings mentioned above. The Philippine Environment Code does not, in other words, appear to contemplate action on the part of private persons who are beneficiaries of implementation of that Code. As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in the constitutional statements above noted, the Court is in effect saying that Section 15 (and Section 16) of Article II of the Constitution are self-executing and judicially enforceable even in their present form. The implications of this doctrine will have to be explored in future cases; those implications are too large and far-reaching in nature even to be hinted at here. My suggestion is simply that petitioners must, before the trial court, show a more specific legal right — a right cast in language of a significantly lower order of generality than Article II (15) of the Constitution — that is or may be violated by the actions, or failures to act, imputed to the public respondent by petitioners so that the trial court can validly render judgment granting all or part of the relief prayed for. To my mind, the Court should be understood as simply saying that such a more specific legal right or rights may well exist in our corpus of law, considering the general policy principles found in the Constitution and the existence of the Philippine Environment Code, and that the trial court should have given petitioners an effective opportunity so to demonstrate, instead of aborting the proceedings on a motion to dismiss.

It seems to me important that the legal right which is an essential component of a cause of action be a specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2) reasons. One is that unless the legal right claimed to have been violated or disregarded is given specification in operational terms, defendants may well be unable to defend themselves intelligently and effectively; in other words, there are due process dimensions to this matter. The second is a broader-gauge consideration — where a specific violation of law or applicable regulation is not alleged or proved, petitioners can be expected to fall back on the expanded conception of judicial power in the second paragraph of Section 1 of Article VIII of the Constitution which reads: Section 1. . . . Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis supplied) When substantive standards as general as "the right to a balanced and healthy ecology" and "the right to health" are combined with remedial standards as broad ranging as "a grave abuse of discretion amounting to lack or excess of jurisdiction," the result will be, it is respectfully submitted, to propel courts into the uncharted ocean of social and economic policy making. At least in respect of the vast area of environmental protection and management, our courts have no claim to special technical competence and experience and professional qualification. Where no specific, operable norms and standards are shown to exist, then the policy making departments — the legislative and executive departments — must be given a real and effective opportunity to fashion and promulgate those norms and standards, and to implement them before the courts should intervene. My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession agreements or TLA's petitioners demand public respondents should cancel, must be impleaded in the proceedings below. It might be asked that, if petitioners' entitlement to the relief demanded is not dependent upon proof of breach by the timber companies of one or more of the specific terms and conditions of their concession agreements (and this, petitioners implicitly assume), what will those companies litigate about? The answer I suggest is that they may seek to dispute the existence of the specific legal right petitioners should allege, as well as the reality of the claimed factual nexus between petitioners' specific legal rights and the claimed wrongful acts or failures to act of public respondent administrative agency. They may also controvert the appropriateness of the remedy or remedies demanded by petitioners, under all the circumstances which exist. I vote to grant the Petition for Certiorari because the protection of the environment, including the forest cover of our territory, is of extreme importance for the country. The doctrines set out in the Court's decision issued today should, however, be subjected to closer examination.

# Separate Opinions FELICIANO, J., concurring I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case which, to my mind, is one of the most important cases decided by this Court in the last few years. The seminal principles laid down in this decision are likely to influence profoundly the direction and course of the protection and management of the environment, which of course

embraces the utilization of all the natural resources in the territorial base of our polity. I have therefore sought to clarify, basically to myself, what the Court appears to be saying. The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing and, maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners' claim that their suit is properly regarded as a class suit. I understand locus standi to refer to the legal interest which a plaintiff must have in the subject matter of the suit. Because of the very broadness of the concept of "class" here involved — membership in this "class" appears to embrace everyone living in the country whether now or in the future — it appears to me that everyone who may be expected to benefit from the course of action petitioners seek to require public respondents to take, is vested with the necessary locus standi. The Court may be seen therefore to be recognizing a beneficiaries' right of action in the field of environmental protection, as against both the public administrative agency directly concerned and the private persons or entities operating in the field or sector of activity involved. Whether such beneficiaries' right of action may be found under any and all circumstances, or whether some failure to act, in the first instance, on the part of the governmental agency concerned must be shown ("prior exhaustion of administrative remedies"), is not discussed in the decision and presumably is left for future determination in an appropriate case. The Court has also declared that the complaint has alleged and focused upon "one specific fundamental legal right — the right to a balanced and healthful ecology" (Decision, p. 14). There is no question that "the right to a balanced and healthful ecology" is "fundamental" and that, accordingly, it has been "constitutionalized." But although it is fundamental in character, I suggest, with very great respect, that it cannot be characterized as "specific," without doing excessive violence to language. It is in fact very difficult to fashion language more comprehensive in scope and generalized in character than a right to "a balanced and healthful ecology." The list of particular claims which can be subsumed under this rubic appears to be entirely open-ended: prevention and control of emission of toxic fumes and smoke from factories and motor vehicles; of discharge of oil, chemical effluents, garbage and raw sewage into rivers, inland and coastal waters by vessels, oil rigs, factories, mines and whole communities; of dumping of organic and inorganic wastes on open land, streets and thoroughfares; failure to rehabilitate land after strip-mining or open-pit mining; kaingin or slashand-burn farming; destruction of fisheries, coral reefs and other living sea resources through the use of dynamite or cyanide and other chemicals; contamination of ground water resources; loss of certain species of fauna and flora; and so on. The other statements pointed out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book IV of the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 — all appear to be formulations of policy, as general and abstract as the constitutional statements of basic policy in Article II, Section 16 ("the right — to a balanced and healthful ecology") and 15 ("the right to health"). P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the other hand, a compendious collection of more "specific environment management policies" and "environment quality standards" (fourth "Whereas" clause, Preamble) relating to an extremely wide range of topics: (a) air quality management; (b) water quality management; (c) land use management; (d) natural resources management and conservation embracing: (i) fisheries and aquatic resources; (ii) wild life; (iii) forestry and soil conservation; (iv) flood control and natural calamities;

(v) energy development; (vi) conservation and utilization of surface and ground water (vii) mineral resources Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has identified the particular provision or provisions (if any) of the Philippine Environment Code which give rise to a specific legal right which petitioners are seeking to enforce. Secondly, the Philippine Environment Code identifies with notable care the particular government agency charged with the formulation and implementation of guidelines and programs dealing with each of the headings and sub-headings mentioned above. The Philippine Environment Code does not, in other words, appear to contemplate action on the part of private persons who are beneficiaries of implementation of that Code. As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in the constitutional statements above noted, the Court is in effect saying that Section 15 (and Section 16) of Article II of the Constitution are self-executing and judicially enforceable even in their present form. The implications of this doctrine will have to be explored in future cases; those implications are too large and far-reaching in nature even to be hinted at here. My suggestion is simply that petitioners must, before the trial court, show a more specific legal right — a right cast in language of a significantly lower order of generality than Article II (15) of the Constitution — that is or may be violated by the actions, or failures to act, imputed to the public respondent by petitioners so that the trial court can validly render judgment granting all or part of the relief prayed for. To my mind, the Court should be understood as simply saying that such a more specific legal right or rights may well exist in our corpus of law, considering the general policy principles found in the Constitution and the existence of the Philippine Environment Code, and that the trial court should have given petitioners an effective opportunity so to demonstrate, instead of aborting the proceedings on a motion to dismiss. It seems to me important that the legal right which is an essential component of a cause of action be a specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2) reasons. One is that unless the legal right claimed to have been violated or disregarded is given specification in operational terms, defendants may well be unable to defend themselves intelligently and effectively; in other words, there are due process dimensions to this matter. The second is a broader-gauge consideration — where a specific violation of law or applicable regulation is not alleged or proved, petitioners can be expected to fall back on the expanded conception of judicial power in the second paragraph of Section 1 of Article VIII of the Constitution which reads: Section 1. . . . Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis supplied) When substantive standards as general as "the right to a balanced and healthy ecology" and "the right to health" are combined with remedial standards as broad ranging as "a grave abuse of discretion amounting to lack or excess of jurisdiction," the result will be, it is respectfully submitted, to propel courts into the uncharted ocean of social and economic policy making. At least in respect of the vast area of environmental protection and management, our courts have no claim to special technical competence and experience and professional qualification. Where no specific, operable norms and standards are shown to exist, then the policy making departments — the legislative and executive departments — must be given a real and effective opportunity to fashion and

promulgate those norms and standards, and to implement them before the courts should intervene. My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession agreements or TLA's petitioners demand public respondents should cancel, must be impleaded in the proceedings below. It might be asked that, if petitioners' entitlement to the relief demanded is not dependent upon proof of breach by the timber companies of one or more of the specific terms and conditions of their concession agreements (and this, petitioners implicitly assume), what will those companies litigate about? The answer I suggest is that they may seek to dispute the existence of the specific legal right petitioners should allege, as well as the reality of the claimed factual nexus between petitioners' specific legal rights and the claimed wrongful acts or failures to act of public respondent administrative agency. They may also controvert the appropriateness of the remedy or remedies demanded by petitioners, under all the circumstances which exist. I vote to grant the Petition for Certiorari because the protection of the environment, including the forest cover of our territory, is of extreme importance for the country. The doctrines set out in the Court's decision issued today should, however, be subjected to closer examination. G.R. No. 155001

May 5, 2003

DEMOSTHENES P. AGAN, JR., JOSEPH B. CATAHAN, JOSE MARI B. REUNILLA, MANUEL ANTONIO B. BOÑE, MAMERTO S. CLARA, REUEL E. DIMALANTA, MORY V. DOMALAON, CONRADO G. DIMAANO, LOLITA R. HIZON, REMEDIOS P. ADOLFO, BIENVENIDO C. HILARIO, MIASCOR WORKERS UNION - NATIONAL LABOR UNION (MWU-NLU), and PHILIPPINE AIRLINES EMPLOYEES ASSOCIATION (PALEA), petitioners, vs. PHILIPPINE INTERNATIONAL AIR TERMINALS CO., INC., MANILA INTERNATIONAL AIRPORT AUTHORITY, DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS and SECRETARY LEANDRO M. MENDOZA, in his capacity as Head of the Department of Transportation and Communications, respondents, MIASCOR GROUNDHANDLING CORPORATION, DNATA-WINGS AVIATION SYSTEMS CORPORATION, MACROASIA-EUREST SERVICES, INC., MACROASIA-MENZIES AIRPORT SERVICES CORPORATION, MIASCOR CATERING SERVICES CORPORATION, MIASCOR AIRCRAFT MAINTENANCE CORPORATION, and MIASCOR LOGISTICS CORPORATION, petitioners-in-intervention, x---------------------------------------------------------x G.R. No. 155547 May 5, 2003 SALACNIB F. BATERINA, CLAVEL A. MARTINEZ and CONSTANTINO G. JARAULA, petitioners, vs. PHILIPPINE INTERNATIONAL AIR TERMINALS CO., INC., MANILA INTERNATIONAL AIRPORT AUTHORITY, DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS, DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS, SECRETARY LEANDRO M. MENDOZA, in his capacity as Head of the Department of Transportation and Communications, and SECRETARY SIMEON A. DATUMANONG, in his capacity as Head of the Department of Public Works and Highways, respondents, JACINTO V. PARAS, RAFAEL P. NANTES, EDUARDO C. ZIALCITA, WILLY BUYSON VILLARAMA, PROSPERO C. NOGRALES, PROSPERO A. PICHAY, JR., HARLIN CAST ABAYON, and BENASING O. MACARANBON, respondents-intervenors, x---------------------------------------------------------x G.R. No. 155661 May 5, 2003 CEFERINO C. LOPEZ, RAMON M. SALES, ALFREDO B. VALENCIA, MA. TERESA V. GAERLAN, LEONARDO DE LA ROSA, DINA C. DE LEON, VIRGIE CATAMIN RONALD SCHLOBOM, ANGELITO SANTOS, MA. LUISA M. PALCON and SAMAHANG

MANGGAGAWA SA PALIPARAN NG PILIPINAS (SMPP), petitioners, vs. PHILIPPINE INTERNATIONAL AIR TERMINALS CO., INC., MANILA INTERNATIONAL AIRPORT AUTHORITY, DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS, SECRETARY LEANDRO M. MENDOZA, in his capacity as Head of the Department of Transportation and Communications, respondents. PUNO, J.: Petitioners and petitioners-in-intervention filed the instant petitions for prohibition under Rule 65 of the Revised Rules of Court seeking to prohibit the Manila International Airport Authority (MIAA) and the Department of Transportation and Communications (DOTC) and its Secretary from implementing the following agreements executed by the Philippine Government through the DOTC and the MIAA and the Philippine International Air Terminals Co., Inc. (PIATCO): (1) the Concession Agreement signed on July 12, 1997, (2) the Amended and Restated Concession Agreement dated November 26, 1999, (3) the First Supplement to the Amended and Restated Concession Agreement dated August 27, 1999, (4) the Second Supplement to the Amended and Restated Concession Agreement dated September 4, 2000, and (5) the Third Supplement to the Amended and Restated Concession Agreement dated June 22, 2001 (collectively, the PIATCO Contracts). The facts are as follows: In August 1989, the DOTC engaged the services of Aeroport de Paris (ADP) to conduct a comprehensive study of the Ninoy Aquino International Airport (NAIA) and determine whether the present airport can cope with the traffic development up to the year 2010. The study consisted of two parts: first, traffic forecasts, capacity of existing facilities, NAIA future requirements, proposed master plans and development plans; and second, presentation of the preliminary design of the passenger terminal building. The ADP submitted a Draft Final Report to the DOTC in December 1989. Some time in 1993, six business leaders consisting of John Gokongwei, Andrew Gotianun, Henry Sy, Sr., Lucio Tan, George Ty and Alfonso Yuchengco met with then President Fidel V. Ramos to explore the possibility of investing in the construction and operation of a new international airport terminal. To signify their commitment to pursue the project, they formed the Asia's Emerging Dragon Corp. (AEDC) which was registered with the Securities and Exchange Commission (SEC) on September 15, 1993. On October 5, 1994, AEDC submitted an unsolicited proposal to the Government through the DOTC/MIAA for the development of NAIA International Passenger Terminal III (NAIA IPT III) under a build-operate-and-transfer arrangement pursuant to RA 6957 as amended by RA 7718 (BOT Law).1 On December 2, 1994, the DOTC issued Dept. Order No. 94-832 constituting the Prequalification Bids and Awards Committee (PBAC) for the implementation of the NAIA IPT III project. On March 27, 1995, then DOTC Secretary Jose Garcia endorsed the proposal of AEDC to the National Economic and Development Authority (NEDA). A revised proposal, however, was forwarded by the DOTC to NEDA on December 13, 1995. On January 5, 1996, the NEDA Investment Coordinating Council (NEDA ICC) – Technical Board favorably endorsed the project to the ICC – Cabinet Committee which approved the same, subject to certain conditions, on January 19, 1996. On February 13, 1996, the NEDA passed Board Resolution No. 2 which approved the NAIA IPT III project. On June 7, 14, and 21, 1996, DOTC/MIAA caused the publication in two daily newspapers of an invitation for competitive or comparative proposals on AEDC's unsolicited proposal, in accordance with Sec. 4-A of RA 6957, as amended. The alternative bidders were required to submit three (3) sealed envelopes on or before 5:00 p.m. of September 20, 1996. The first envelope should contain the Prequalification Documents, the second envelope the Technical Proposal, and the third envelope the Financial Proposal of the proponent.

On June 20, 1996, PBAC Bulletin No. 1 was issued, postponing the availment of the Bid Documents and the submission of the comparative bid proposals. Interested firms were permitted to obtain the Request for Proposal Documents beginning June 28, 1996, upon submission of a written application and payment of a non-refundable fee of P50,000.00 (US$2,000). The Bid Documents issued by the PBAC provided among others that the proponent must have adequate capability to sustain the financing requirement for the detailed engineering, design, construction, operation, and maintenance phases of the project. The proponent would be evaluated based on its ability to provide a minimum amount of equity to the project, and its capacity to secure external financing for the project. On July 23, 1996, the PBAC issued PBAC Bulletin No. 2 inviting all bidders to a pre-bid conference on July 29, 1996. On August 16, 1996, the PBAC issued PBAC Bulletin No. 3 amending the Bid Documents. The following amendments were made on the Bid Documents: a. Aside from the fixed Annual Guaranteed Payment, the proponent shall include in its financial proposal an additional percentage of gross revenue share of the Government, as follows: i. First 5 years

5.0%

ii. Next 10 years

7.5%

iii. Next 10 years

10.0%

b. The amount of the fixed Annual Guaranteed Payment shall be subject of the price challenge. Proponent may offer an Annual Guaranteed Payment which need not be of equal amount, but payment of which shall start upon site possession. c. The project proponent must have adequate capability to sustain the financing requirement for the detailed engineering, design, construction, and/or operation and maintenance phases of the project as the case may be. For purposes of prequalification, this capability shall be measured in terms of: i. Proof of the availability of the project proponent and/or the consortium to provide the minimum amount of equity for the project; and ii. a letter testimonial from reputable banks attesting that the project proponent and/or the members of the consortium are banking with them, that the project proponent and/or the members are of good financial standing, and have adequate resources. d. The basis for the prequalification shall be the proponent's compliance with the minimum technical and financial requirements provided in the Bid Documents and the IRR of the BOT Law. The minimum amount of equity shall be 30% of the Project Cost. e. Amendments to the draft Concession Agreement shall be issued from time to time. Said amendments shall only cover items that would not materially affect the preparation of the proponent's proposal. On August 29, 1996, the Second Pre-Bid Conference was held where certain clarifications were made. Upon the request of prospective bidder People's Air Cargo & Warehousing Co., Inc (Paircargo), the PBAC warranted that based on Sec. 11.6, Rule 11 of the Implementing Rules and Regulations of the BOT Law, only the proposed Annual Guaranteed Payment submitted by the challengers would be revealed to AEDC, and that the challengers' technical and financial proposals would remain confidential. The PBAC also clarified that the list of revenue sources contained in Annex 4.2a of the Bid Documents was merely indicative and that other revenue sources may be included by the proponent, subject to approval by DOTC/MIAA. Furthermore, the PBAC clarified that only those fees and charges denominated as Public Utility Fees would

be subject to regulation, and those charges which would be actually deemed Public Utility Fees could still be revised, depending on the outcome of PBAC's query on the matter with the Department of Justice. In September 1996, the PBAC issued Bid Bulletin No. 5, entitled "Answers to the Queries of PAIRCARGO as Per Letter Dated September 3 and 10, 1996." Paircargo's queries and the PBAC's responses were as follows: 1. It is difficult for Paircargo and Associates to meet the required minimum equity requirement as prescribed in Section 8.3.4 of the Bid Documents considering that the capitalization of each member company is so structured to meet the requirements and needs of their current respective business undertaking/activities. In order to comply with this equity requirement, Paircargo is requesting PBAC to just allow each member of (sic) corporation of the Joint Venture to just execute an agreement that embodies a commitment to infuse the required capital in case the project is awarded to the Joint Venture instead of increasing each corporation's current authorized capital stock just for prequalification purposes. In prequalification, the agency is interested in one's financial capability at the time of prequalification, not future or potential capability. A commitment to put up equity once awarded the project is not enough to establish that "present" financial capability. However, total financial capability of all member companies of the Consortium, to be established by submitting the respective companies' audited financial statements, shall be acceptable. 2. At present, Paircargo is negotiating with banks and other institutions for the extension of a Performance Security to the joint venture in the event that the Concessions Agreement (sic) is awarded to them. However, Paircargo is being required to submit a copy of the draft concession as one of the documentary requirements. Therefore, Paircargo is requesting that they'd (sic) be furnished copy of the approved negotiated agreement between the PBAC and the AEDC at the soonest possible time. A copy of the draft Concession Agreement is included in the Bid Documents. Any material changes would be made known to prospective challengers through bid bulletins. However, a final version will be issued before the award of contract. The PBAC also stated that it would require AEDC to sign Supplement C of the Bid Documents (Acceptance of Criteria and Waiver of Rights to Enjoin Project) and to submit the same with the required Bid Security. On September 20, 1996, the consortium composed of People's Air Cargo and Warehousing Co., Inc. (Paircargo), Phil. Air and Grounds Services, Inc. (PAGS) and Security Bank Corp. (Security Bank) (collectively, Paircargo Consortium) submitted their competitive proposal to the PBAC. On September 23, 1996, the PBAC opened the first envelope containing the prequalification documents of the Paircargo Consortium. On the following day, September 24, 1996, the PBAC prequalified the Paircargo Consortium. On September 26, 1996, AEDC informed the PBAC in writing of its reservations as regards the Paircargo Consortium, which include: a. The lack of corporate approvals and financial capability of PAIRCARGO; b. The lack of corporate approvals and financial capability of PAGS; c. The prohibition imposed by RA 337, as amended (the General Banking Act) on the amount that Security Bank could legally invest in the project; d. The inclusion of Siemens as a contractor of the PAIRCARGO Joint Venture, for prequalification purposes; and

e. The appointment of Lufthansa as the facility operator, in view of the Philippine requirement in the operation of a public utility. The PBAC gave its reply on October 2, 1996, informing AEDC that it had considered the issues raised by the latter, and that based on the documents submitted by Paircargo and the established prequalification criteria, the PBAC had found that the challenger, Paircargo, had prequalified to undertake the project. The Secretary of the DOTC approved the finding of the PBAC. The PBAC then proceeded with the opening of the second envelope of the Paircargo Consortium which contained its Technical Proposal. On October 3, 1996, AEDC reiterated its objections, particularly with respect to Paircargo's financial capability, in view of the restrictions imposed by Section 21-B of the General Banking Act and Sections 1380 and 1381 of the Manual Regulations for Banks and Other Financial Intermediaries. On October 7, 1996, AEDC again manifested its objections and requested that it be furnished with excerpts of the PBAC meeting and the accompanying technical evaluation report where each of the issues they raised were addressed. On October 16, 1996, the PBAC opened the third envelope submitted by AEDC and the Paircargo Consortium containing their respective financial proposals. Both proponents offered to build the NAIA Passenger Terminal III for at least $350 million at no cost to the government and to pay the government: 5% share in gross revenues for the first five years of operation, 7.5% share in gross revenues for the next ten years of operation, and 10% share in gross revenues for the last ten years of operation, in accordance with the Bid Documents. However, in addition to the foregoing, AEDC offered to pay the government a total of P135 million as guaranteed payment for 27 years while Paircargo Consortium offered to pay the government a total of P17.75 billion for the same period. Thus, the PBAC formally informed AEDC that it had accepted the price proposal submitted by the Paircargo Consortium, and gave AEDC 30 working days or until November 28, 1996 within which to match the said bid, otherwise, the project would be awarded to Paircargo. As AEDC failed to match the proposal within the 30-day period, then DOTC Secretary Amado Lagdameo, on December 11, 1996, issued a notice to Paircargo Consortium regarding AEDC's failure to match the proposal. On February 27, 1997, Paircargo Consortium incorporated into Philippine International Airport Terminals Co., Inc. (PIATCO). AEDC subsequently protested the alleged undue preference given to PIATCO and reiterated its objections as regards the prequalification of PIATCO. On April 11, 1997, the DOTC submitted the concession agreement for the second-pass approval of the NEDA-ICC. On April 16, 1997, AEDC filed with the Regional Trial Court of Pasig a Petition for Declaration of Nullity of the Proceedings, Mandamus and Injunction against the Secretary of the DOTC, the Chairman of the PBAC, the voting members of the PBAC and Pantaleon D. Alvarez, in his capacity as Chairman of the PBAC Technical Committee. On April 17, 1997, the NEDA-ICC conducted an ad referendum to facilitate the approval, on a no-objection basis, of the BOT agreement between the DOTC and PIATCO. As the ad referendum gathered only four (4) of the required six (6) signatures, the NEDA merely noted the agreement. On July 9, 1997, the DOTC issued the notice of award for the project to PIATCO. On July 12, 1997, the Government, through then DOTC Secretary Arturo T. Enrile, and PIATCO, through its President, Henry T. Go, signed the "Concession Agreement for the BuildOperate-and-Transfer Arrangement of the Ninoy Aquino International Airport Passenger

Terminal III" (1997 Concession Agreement). The Government granted PIATCO the franchise to operate and maintain the said terminal during the concession period and to collect the fees, rentals and other charges in accordance with the rates or schedules stipulated in the 1997 Concession Agreement. The Agreement provided that the concession period shall be for twenty-five (25) years commencing from the in-service date, and may be renewed at the option of the Government for a period not exceeding twenty-five (25) years. At the end of the concession period, PIATCO shall transfer the development facility to MIAA. On November 26, 1998, the Government and PIATCO signed an Amended and Restated Concession Agreement (ARCA). Among the provisions of the 1997 Concession Agreement that were amended by the ARCA were: Sec. 1.11 pertaining to the definition of "certificate of completion"; Sec. 2.05 pertaining to the Special Obligations of GRP; Sec. 3.02 (a) dealing with the exclusivity of the franchise given to the Concessionaire; Sec. 4.04 concerning the assignment by Concessionaire of its interest in the Development Facility; Sec. 5.08 (c) dealing with the proceeds of Concessionaire's insurance; Sec. 5.10 with respect to the temporary takeover of operations by GRP; Sec. 5.16 pertaining to the taxes, duties and other imposts that may be levied on the Concessionaire; Sec. 6.03 as regards the periodic adjustment of public utility fees and charges; the entire Article VIII concerning the provisions on the termination of the contract; and Sec. 10.02 providing for the venue of the arbitration proceedings in case a dispute or controversy arises between the parties to the agreement. Subsequently, the Government and PIATCO signed three Supplements to the ARCA. The First Supplement was signed on August 27, 1999; the Second Supplement on September 4, 2000; and the Third Supplement on June 22, 2001 (collectively, Supplements). The First Supplement to the ARCA amended Sec. 1.36 of the ARCA defining "Revenues" or "Gross Revenues"; Sec. 2.05 (d) of the ARCA referring to the obligation of MIAA to provide sufficient funds for the upkeep, maintenance, repair and/or replacement of all airport facilities and equipment which are owned or operated by MIAA; and further providing additional special obligations on the part of GRP aside from those already enumerated in Sec. 2.05 of the ARCA. The First Supplement also provided a stipulation as regards the construction of a surface road to connect NAIA Terminal II and Terminal III in lieu of the proposed access tunnel crossing Runway 13/31; the swapping of obligations between GRP and PIATCO regarding the improvement of Sales Road; and the changes in the timetable. It also amended Sec. 6.01 (c) of the ARCA pertaining to the Disposition of Terminal Fees; Sec. 6.02 of the ARCA by inserting an introductory paragraph; and Sec. 6.02 (a) (iii) of the ARCA referring to the Payments of Percentage Share in Gross Revenues. The Second Supplement to the ARCA contained provisions concerning the clearing, removal, demolition or disposal of subterranean structures uncovered or discovered at the site of the construction of the terminal by the Concessionaire. It defined the scope of works; it provided for the procedure for the demolition of the said structures and the consideration for the same which the GRP shall pay PIATCO; it provided for time extensions, incremental and consequential costs and losses consequent to the existence of such structures; and it provided for some additional obligations on the part of PIATCO as regards the said structures. Finally, the Third Supplement provided for the obligations of the Concessionaire as regards the construction of the surface road connecting Terminals II and III. Meanwhile, the MIAA which is charged with the maintenance and operation of the NAIA Terminals I and II, had existing concession contracts with various service providers to offer international airline airport services, such as in-flight catering, passenger handling, ramp and ground support, aircraft maintenance and provisions, cargo handling and warehousing, and other services, to several international airlines at the NAIA. Some of these service providers are the Miascor Group, DNATA-Wings Aviation Systems Corp., and the MacroAsia Group. Miascor, DNATA and MacroAsia, together with Philippine Airlines (PAL), are the dominant players in the industry with an aggregate market share of 70%. On September 17, 2002, the workers of the international airline service providers, claiming that they stand to lose their employment upon the implementation of the questioned agreements, filed before this Court a petition for prohibition to enjoin the enforcement of said agreements.2

On October 15, 2002, the service providers, joining the cause of the petitioning workers, filed a motion for intervention and a petition-in-intervention. On October 24, 2002, Congressmen Salacnib Baterina, Clavel Martinez and Constantino Jaraula filed a similar petition with this Court.3 On November 6, 2002, several employees of the MIAA likewise filed a petition assailing the legality of the various agreements.4 On December 11, 2002. another group of Congressmen, Hon. Jacinto V. Paras, Rafael P. Nantes, Eduardo C. Zialcita, Willie B. Villarama, Prospero C. Nograles, Prospero A. Pichay, Jr., Harlin Cast Abayon and Benasing O. Macaranbon, moved to intervene in the case as Respondents-Intervenors. They filed their Comment-In-Intervention defending the validity of the assailed agreements and praying for the dismissal of the petitions. During the pendency of the case before this Court, President Gloria Macapagal Arroyo, on November 29, 2002, in her speech at the 2002 Golden Shell Export Awards at Malacañang Palace, stated that she will not "honor (PIATCO) contracts which the Executive Branch's legal offices have concluded (as) null and void."5 Respondent PIATCO filed its Comments to the present petitions on November 7 and 27, 2002. The Office of the Solicitor General and the Office of the Government Corporate Counsel filed their respective Comments in behalf of the public respondents. On December 10, 2002, the Court heard the case on oral argument. After the oral argument, the Court then resolved in open court to require the parties to file simultaneously their respective Memoranda in amplification of the issues heard in the oral arguments within 30 days and to explore the possibility of arbitration or mediation as provided in the challenged contracts. In their consolidated Memorandum, the Office of the Solicitor General and the Office of the Government Corporate Counsel prayed that the present petitions be given due course and that judgment be rendered declaring the 1997 Concession Agreement, the ARCA and the Supplements thereto void for being contrary to the Constitution, the BOT Law and its Implementing Rules and Regulations. On March 6, 2003, respondent PIATCO informed the Court that on March 4, 2003 PIATCO commenced arbitration proceedings before the International Chamber of Commerce, International Court of Arbitration (ICC) by filing a Request for Arbitration with the Secretariat of the ICC against the Government of the Republic of the Philippines acting through the DOTC and MIAA. In the present cases, the Court is again faced with the task of resolving complicated issues made difficult by their intersecting legal and economic implications. The Court is aware of the far reaching fall out effects of the ruling which it makes today. For more than a century and whenever the exigencies of the times demand it, this Court has never shirked from its solemn duty to dispense justice and resolve "actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction."6 To be sure, this Court will not begin to do otherwise today. We shall first dispose of the procedural issues raised by respondent PIATCO which they allege will bar the resolution of the instant controversy. Petitioners' Legal Standing to File the present Petitions a. G.R. Nos. 155001 and 155661 In G.R. No. 155001 individual petitioners are employees of various service providers7 having separate concession contracts with MIAA and continuing service agreements with various

international airlines to provide in-flight catering, passenger handling, ramp and ground support, aircraft maintenance and provisions, cargo handling and warehousing and other services. Also included as petitioners are labor unions MIASCOR Workers Union-National Labor Union and Philippine Airlines Employees Association. These petitioners filed the instant action for prohibition as taxpayers and as parties whose rights and interests stand to be violated by the implementation of the PIATCO Contracts. Petitioners-Intervenors in the same case are all corporations organized and existing under Philippine laws engaged in the business of providing in-flight catering, passenger handling, ramp and ground support, aircraft maintenance and provisions, cargo handling and warehousing and other services to several international airlines at the Ninoy Aquino International Airport. Petitioners-Intervenors allege that as tax-paying international airline and airport-related service operators, each one of them stands to be irreparably injured by the implementation of the PIATCO Contracts. Each of the petitioners-intervenors have separate and subsisting concession agreements with MIAA and with various international airlines which they allege are being interfered with and violated by respondent PIATCO. In G.R. No. 155661, petitioners constitute employees of MIAA and Samahang Manggagawa sa Paliparan ng Pilipinas - a legitimate labor union and accredited as the sole and exclusive bargaining agent of all the employees in MIAA. Petitioners anchor their petition for prohibition on the nullity of the contracts entered into by the Government and PIATCO regarding the buildoperate-and-transfer of the NAIA IPT III. They filed the petition as taxpayers and persons who have a legitimate interest to protect in the implementation of the PIATCO Contracts. Petitioners in both cases raise the argument that the PIATCO Contracts contain stipulations which directly contravene numerous provisions of the Constitution, specific provisions of the BOT Law and its Implementing Rules and Regulations, and public policy. Petitioners contend that the DOTC and the MIAA, by entering into said contracts, have committed grave abuse of discretion amounting to lack or excess of jurisdiction which can be remedied only by a writ of prohibition, there being no plain, speedy or adequate remedy in the ordinary course of law. In particular, petitioners assail the provisions in the 1997 Concession Agreement and the ARCA which grant PIATCO the exclusive right to operate a commercial international passenger terminal within the Island of Luzon, except those international airports already existing at the time of the execution of the agreement. The contracts further provide that upon the commencement of operations at the NAIA IPT III, the Government shall cause the closure of Ninoy Aquino International Airport Passenger Terminals I and II as international passenger terminals. With respect to existing concession agreements between MIAA and international airport service providers regarding certain services or operations, the 1997 Concession Agreement and the ARCA uniformly provide that such services or operations will not be carried over to the NAIA IPT III and PIATCO is under no obligation to permit such carry over except through a separate agreement duly entered into with PIATCO.8 With respect to the petitioning service providers and their employees, upon the commencement of operations of the NAIA IPT III, they allege that they will be effectively barred from providing international airline airport services at the NAIA Terminals I and II as all international airlines and passengers will be diverted to the NAIA IPT III. The petitioning service providers will thus be compelled to contract with PIATCO alone for such services, with no assurance that subsisting contracts with MIAA and other international airlines will be respected. Petitioning service providers stress that despite the very competitive market, the substantial capital investments required and the high rate of fees, they entered into their respective contracts with the MIAA with the understanding that the said contracts will be in force for the stipulated period, and thereafter, renewed so as to allow each of the petitioning service providers to recoup their investments and obtain a reasonable return thereon. Petitioning employees of various service providers at the NAIA Terminals I and II and of MIAA on the other hand allege that with the closure of the NAIA Terminals I and II as international passenger terminals under the PIATCO Contracts, they stand to lose employment. The question on legal standing is whether such parties have "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the

presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions."9 Accordingly, it has been held that the interest of a person assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of.10 We hold that petitioners have the requisite standing. In the above-mentioned cases, petitioners have a direct and substantial interest to protect by reason of the implementation of the PIATCO Contracts. They stand to lose their source of livelihood, a property right which is zealously protected by the Constitution. Moreover, subsisting concession agreements between MIAA and petitioners-intervenors and service contracts between international airlines and petitionersintervenors stand to be nullified or terminated by the operation of the NAIA IPT III under the PIATCO Contracts. The financial prejudice brought about by the PIATCO Contracts on petitioners and petitioners-intervenors in these cases are legitimate interests sufficient to confer on them the requisite standing to file the instant petitions. b. G.R. No. 155547 In G.R. No. 155547, petitioners filed the petition for prohibition as members of the House of Representatives, citizens and taxpayers. They allege that as members of the House of Representatives, they are especially interested in the PIATCO Contracts, because the contracts compel the Government and/or the House of Representatives to appropriate funds necessary to comply with the provisions therein.11 They cite provisions of the PIATCO Contracts which require disbursement of unappropriated amounts in compliance with the contractual obligations of the Government. They allege that the Government obligations in the PIATCO Contracts which compel government expenditure without appropriation is a curtailment of their prerogatives as legislators, contrary to the mandate of the Constitution that "[n]o money shall be paid out of the treasury except in pursuance of an appropriation made by law."12 Standing is a peculiar concept in constitutional law because in some cases, suits are not brought by parties who have been personally injured by the operation of a law or any other government act but by concerned citizens, taxpayers or voters who actually sue in the public interest. Although we are not unmindful of the cases of Imus Electric Co. v. Municipality of Imus13 and Gonzales v. Raquiza14 wherein this Court held that appropriation must be made only on amounts immediately demandable, public interest demands that we take a more liberal view in determining whether the petitioners suing as legislators, taxpayers and citizens have locus standi to file the instant petition. In Kilosbayan, Inc. v. Guingona,15 this Court held "[i]n line with the liberal policy of this Court on locus standi, ordinary taxpayers, members of Congress, and even association of planters, and non-profit civic organizations were allowed to initiate and prosecute actions before this Court to question the constitutionality or validity of laws, acts, decisions, rulings, or orders of various government agencies or instrumentalities."16 Further, "insofar as taxpayers' suits are concerned . . . (this Court) is not devoid of discretion as to whether or not it should be entertained."17 As such ". . . even if, strictly speaking, they [the petitioners] are not covered by the definition, it is still within the wide discretion of the Court to waive the requirement and so remove the impediment to its addressing and resolving the serious constitutional questions raised."18 In view of the serious legal questions involved and their impact on public interest, we resolve to grant standing to the petitioners. Other Procedural Matters Respondent PIATCO further alleges that this Court is without jurisdiction to review the instant cases as factual issues are involved which this Court is ill-equipped to resolve. Moreover, PIATCO alleges that submission of this controversy to this Court at the first instance is a violation of the rule on hierarchy of courts. They contend that trial courts have concurrent jurisdiction with this Court with respect to a special civil action for prohibition and hence, following the rule on hierarchy of courts, resort must first be had before the trial courts.

After a thorough study and careful evaluation of the issues involved, this Court is of the view that the crux of the instant controversy involves significant legal questions. The facts necessary to resolve these legal questions are well established and, hence, need not be determined by a trial court. The rule on hierarchy of courts will not also prevent this Court from assuming jurisdiction over the cases at bar. The said rule may be relaxed when the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstances justify availment of a remedy within and calling for the exercise of this Court's primary jurisdiction.19 It is easy to discern that exceptional circumstances exist in the cases at bar that call for the relaxation of the rule. Both petitioners and respondents agree that these cases are of transcendental importance as they involve the construction and operation of the country's premier international airport. Moreover, the crucial issues submitted for resolution are of first impression and they entail the proper legal interpretation of key provisions of the Constitution, the BOT Law and its Implementing Rules and Regulations. Thus, considering the nature of the controversy before the Court, procedural bars may be lowered to give way for the speedy disposition of the instant cases. Legal Effect of the Commencement of Arbitration Proceedings by PIATCO There is one more procedural obstacle which must be overcome. The Court is aware that arbitration proceedings pursuant to Section 10.02 of the ARCA have been filed at the instance of respondent PIATCO. Again, we hold that the arbitration step taken by PIATCO will not oust this Court of its jurisdiction over the cases at bar. In Del Monte Corporation-USA v. Court of Appeals,20 even after finding that the arbitration clause in the Distributorship Agreement in question is valid and the dispute between the parties is arbitrable, this Court affirmed the trial court's decision denying petitioner's Motion to Suspend Proceedings pursuant to the arbitration clause under the contract. In so ruling, this Court held that as contracts produce legal effect between the parties, their assigns and heirs, only the parties to the Distributorship Agreement are bound by its terms, including the arbitration clause stipulated therein. This Court ruled that arbitration proceedings could be called for but only with respect to the parties to the contract in question. Considering that there are parties to the case who are neither parties to the Distributorship Agreement nor heirs or assigns of the parties thereto, this Court, citing its previous ruling in Salas, Jr. v. Laperal Realty Corporation, 21 held that to tolerate the splitting of proceedings by allowing arbitration as to some of the parties on the one hand and trial for the others on the other hand would, in effect, result in multiplicity of suits, duplicitous procedure and unnecessary delay.22 Thus, we ruled that the interest of justice would best be served if the trial court hears and adjudicates the case in a single and complete proceeding. It is established that petitioners in the present cases who have presented legitimate interests in the resolution of the controversy are not parties to the PIATCO Contracts. Accordingly, they cannot be bound by the arbitration clause provided for in the ARCA and hence, cannot be compelled to submit to arbitration proceedings. A speedy and decisive resolution of all the critical issues in the present controversy, including those raised by petitioners, cannot be made before an arbitral tribunal. The object of arbitration is precisely to allow an expeditious determination of a dispute. This objective would not be met if this Court were to allow the parties to settle the cases by arbitration as there are certain issues involving nonparties to the PIATCO Contracts which the arbitral tribunal will not be equipped to resolve. Now, to the merits of the instant controversy. I Is PIATCO a qualified bidder?

Public respondents argue that the Paircargo Consortium, PIATCO's predecessor, was not a duly pre-qualified bidder on the unsolicited proposal submitted by AEDC as the Paircargo Consortium failed to meet the financial capability required under the BOT Law and the Bid Documents. They allege that in computing the ability of the Paircargo Consortium to meet the minimum equity requirements for the project, the entire net worth of Security Bank, a member of the consortium, should not be considered. PIATCO relies, on the other hand, on the strength of the Memorandum dated October 14, 1996 issued by the DOTC Undersecretary Primitivo C. Cal stating that the Paircargo Consortium is found to have a combined net worth of P3,900,000,000.00, sufficient to meet the equity requirements of the project. The said Memorandum was in response to a letter from Mr. Antonio Henson of AEDC to President Fidel V. Ramos questioning the financial capability of the Paircargo Consortium on the ground that it does not have the financial resources to put up the required minimum equity of P2,700,000,000.00. This contention is based on the restriction under R.A. No. 337, as amended or the General Banking Act that a commercial bank cannot invest in any single enterprise in an amount more than 15% of its net worth. In the said Memorandum, Undersecretary Cal opined: The Bid Documents, as clarified through Bid Bulletin Nos. 3 and 5, require that financial capability will be evaluated based on total financial capability of all the member companies of the [Paircargo] Consortium. In this connection, the Challenger was found to have a combined net worth of P3,926,421,242.00 that could support a project costing approximately P13 Billion. It is not a requirement that the net worth must be "unrestricted." To impose that as a requirement now will be nothing less than unfair. The financial statement or the net worth is not the sole basis in establishing financial capability. As stated in Bid Bulletin No. 3, financial capability may also be established by testimonial letters issued by reputable banks. The Challenger has complied with this requirement. To recap, net worth reflected in the Financial Statement should not be taken as the amount of the money to be used to answer the required thirty percent (30%) equity of the challenger but rather to be used in establishing if there is enough basis to believe that the challenger can comply with the required 30% equity. In fact, proof of sufficient equity is required as one of the conditions for award of contract (Section 12.1 IRR of the BOT Law) but not for pre-qualification (Section 5.4 of the same document).23 Under the BOT Law, in case of a build-operate-and-transfer arrangement, the contract shall be awarded to the bidder "who, having satisfied the minimum financial, technical, organizational and legal standards" required by the law, has submitted the lowest bid and most favorable terms of the project.24 Further, the 1994 Implementing Rules and Regulations of the BOT Law provide: Section 5.4 Pre-qualification Requirements. xxx

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c. Financial Capability: The project proponent must have adequate capability to sustain the financing requirements for the detailed engineering design, construction and/or operation and maintenance phases of the project, as the case may be. For purposes of pre-qualification, this capability shall be measured in terms of (i) proof of the ability of the project proponent and/or the consortium to provide a minimum amount of equity to the project, and (ii) a letter testimonial from reputable banks attesting that the project proponent and/or members of the consortium are banking with them, that they are in good financial standing, and that they have adequate resources. The government agency/LGU concerned shall determine on a project-toproject basis and before pre-qualification, the minimum amount of equity needed. (emphasis supplied)

Pursuant to this provision, the PBAC issued PBAC Bulletin No. 3 dated August 16, 1996 amending the financial capability requirements for pre-qualification of the project proponent as follows: 6. Basis of Pre-qualification The basis for the pre-qualification shall be on the compliance of the proponent to the minimum technical and financial requirements provided in the Bid Documents and in the IRR of the BOT Law, R.A. No. 6957, as amended by R.A. 7718. The minimum amount of equity to which the proponent's financial capability will be based shall be thirty percent (30%) of the project cost instead of the twenty percent (20%) specified in Section 3.6.4 of the Bid Documents. This is to correlate with the required debt-to-equity ratio of 70:30 in Section 2.01a of the draft concession agreement. The debt portion of the project financing should not exceed 70% of the actual project cost. Accordingly, based on the above provisions of law, the Paircargo Consortium or any challenger to the unsolicited proposal of AEDC has to show that it possesses the requisite financial capability to undertake the project in the minimum amount of 30% of the project cost through (i) proof of the ability to provide a minimum amount of equity to the project, and (ii) a letter testimonial from reputable banks attesting that the project proponent or members of the consortium are banking with them, that they are in good financial standing, and that they have adequate resources. As the minimum project cost was estimated to be US$350,000,000.00 or roughly P9,183,650,000.00,25 the Paircargo Consortium had to show to the satisfaction of the PBAC that it had the ability to provide the minimum equity for the project in the amount of at least P2,755,095,000.00. Paircargo's Audited Financial Statements as of 1993 and 1994 indicated that it had a net worth of P2,783,592.00 and P3,123,515.00 respectively.26 PAGS' Audited Financial Statements as of 1995 indicate that it has approximately P26,735,700.00 to invest as its equity for the project.27 Security Bank's Audited Financial Statements as of 1995 show that it has a net worth equivalent to its capital funds in the amount of P3,523,504,377.00.28 We agree with public respondents that with respect to Security Bank, the entire amount of its net worth could not be invested in a single undertaking or enterprise, whether allied or non-allied in accordance with the provisions of R.A. No. 337, as amended or the General Banking Act: Sec. 21-B. The provisions in this or in any other Act to the contrary notwithstanding, the Monetary Board, whenever it shall deem appropriate and necessary to further national development objectives or support national priority projects, may authorize a commercial bank, a bank authorized to provide commercial banking services, as well as a government-owned and controlled bank, to operate under an expanded commercial banking authority and by virtue thereof exercise, in addition to powers authorized for commercial banks, the powers of an Investment House as provided in Presidential Decree No. 129, invest in the equity of a non-allied undertaking, or own a majority or all of the equity in a financial intermediary other than a commercial bank or a bank authorized to provide commercial banking services: Provided, That (a) the total investment in equities shall not exceed fifty percent (50%) of the net worth of the bank; (b) the equity investment in any one enterprise whether allied or non-allied shall not exceed fifteen percent (15%) of the net worth of the bank; (c) the equity investment of the bank, or of its wholly or majorityowned subsidiary, in a single non-allied undertaking shall not exceed thirty-five percent (35%) of the total equity in the enterprise nor shall it exceed thirty-five percent (35%) of the voting stock in that enterprise; and (d) the equity investment in other banks shall be deducted from the investing bank's net worth for purposes of computing the prescribed ratio of net worth to risk assets. xxx

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Further, the 1993 Manual of Regulations for Banks provides: SECTION X383. Other Limitations and Restrictions. — The following limitations and restrictions shall also apply regarding equity investments of banks. a. In any single enterprise. — The equity investments of banks in any single enterprise shall not exceed at any time fifteen percent (15%) of the net worth of the investing bank as defined in Sec. X106 and Subsec. X121.5. Thus, the maximum amount that Security Bank could validly invest in the Paircargo Consortium is only P528,525,656.55, representing 15% of its entire net worth. The total net worth therefore of the Paircargo Consortium, after considering the maximum amounts that may be validly invested by each of its members is P558,384,871.55 or only 6.08% of the project cost,29 an amount substantially less than the prescribed minimum equity investment required for the project in the amount of P2,755,095,000.00 or 30% of the project cost. The purpose of pre-qualification in any public bidding is to determine, at the earliest opportunity, the ability of the bidder to undertake the project. Thus, with respect to the bidder's financial capacity at the pre-qualification stage, the law requires the government agency to examine and determine the ability of the bidder to fund the entire cost of the project by considering the maximum amounts that each bidder may invest in the project at the time of prequalification. The PBAC has determined that any prospective bidder for the construction, operation and maintenance of the NAIA IPT III project should prove that it has the ability to provide equity in the minimum amount of 30% of the project cost, in accordance with the 70:30 debt-to-equity ratio prescribed in the Bid Documents. Thus, in the case of Paircargo Consortium, the PBAC should determine the maximum amounts that each member of the consortium may commit for the construction, operation and maintenance of the NAIA IPT III project at the time of prequalification. With respect to Security Bank, the maximum amount which may be invested by it would only be 15% of its net worth in view of the restrictions imposed by the General Banking Act. Disregarding the investment ceilings provided by applicable law would not result in a proper evaluation of whether or not a bidder is pre-qualified to undertake the project as for all intents and purposes, such ceiling or legal restriction determines the true maximum amount which a bidder may invest in the project. Further, the determination of whether or not a bidder is pre-qualified to undertake the project requires an evaluation of the financial capacity of the said bidder at the time the bid is submitted based on the required documents presented by the bidder. The PBAC should not be allowed to speculate on the future financial ability of the bidder to undertake the project on the basis of documents submitted. This would open doors to abuse and defeat the very purpose of a public bidding. This is especially true in the case at bar which involves the investment of billions of pesos by the project proponent. The relevant government authority is duty-bound to ensure that the awardee of the contract possesses the minimum required financial capability to complete the project. To allow the PBAC to estimate the bidder's future financial capability would not secure the viability and integrity of the project. A restrictive and conservative application of the rules and procedures of public bidding is necessary not only to protect the impartiality and regularity of the proceedings but also to ensure the financial and technical reliability of the project. It has been held that: The basic rule in public bidding is that bids should be evaluated based on the required documents submitted before and not after the opening of bids. Otherwise, the foundation of a fair and competitive public bidding would be defeated. Strict observance of the rules, regulations, and guidelines of the bidding process is the only safeguard to a fair, honest and competitive public bidding.30 Thus, if the maximum amount of equity that a bidder may invest in the project at the time the bids are submittedfalls short of the minimum amounts required to be put up by the bidder, said bidder should be properly disqualified. Considering that at the pre-qualification stage, the maximum amounts which the Paircargo Consortium may invest in the project fell short of the minimum amounts prescribed by the PBAC, we hold that Paircargo Consortium was not a

qualified bidder. Thus the award of the contract by the PBAC to the Paircargo Consortium, a disqualified bidder, is null and void. While it would be proper at this juncture to end the resolution of the instant controversy, as the legal effects of the disqualification of respondent PIATCO's predecessor would come into play and necessarily result in the nullity of all the subsequent contracts entered by it in pursuance of the project, the Court feels that it is necessary to discuss in full the pressing issues of the present controversy for a complete resolution thereof. II Is the 1997 Concession Agreement valid? Petitioners and public respondents contend that the 1997 Concession Agreement is invalid as it contains provisions that substantially depart from the draft Concession Agreement included in the Bid Documents. They maintain that a substantial departure from the draft Concession Agreement is a violation of public policy and renders the 1997 Concession Agreement null and void. PIATCO maintains, however, that the Concession Agreement attached to the Bid Documents is intended to be a draft, i.e., subject to change, alteration or modification, and that this intention was clear to all participants, including AEDC, and DOTC/MIAA. It argued further that said intention is expressed in Part C (6) of Bid Bulletin No. 3 issued by the PBAC which states: 6. Amendments to the Draft Concessions Agreement Amendments to the Draft Concessions Agreement shall be issued from time to time. Said amendments shall only cover items that would not materially affect the preparation of the proponent's proposal. By its very nature, public bidding aims to protect the public interest by giving the public the best possible advantages through open competition. Thus: Competition must be legitimate, fair and honest. In the field of government contract law, competition requires, not only `bidding upon a common standard, a common basis, upon the same thing, the same subject matter, the same undertaking,' but also that it be legitimate, fair and honest; and not designed to injure or defraud the government.31 An essential element of a publicly bidded contract is that all bidders must be on equal footing. Not simply in terms of application of the procedural rules and regulations imposed by the relevant government agency, but more importantly, on the contract bidded upon. Each bidder must be able to bid on the same thing. The rationale is obvious. If the winning bidder is allowed to later include or modify certain provisions in the contract awarded such that the contract is altered in any material respect, then the essence of fair competition in the public bidding is destroyed. A public bidding would indeed be a farce if after the contract is awarded, the winning bidder may modify the contract and include provisions which are favorable to it that were not previously made available to the other bidders. Thus: It is inherent in public biddings that there shall be a fair competition among the bidders. The specifications in such biddings provide the common ground or basis for the bidders. The specifications should, accordingly, operate equally or indiscriminately upon all bidders.32 The same rule was restated by Chief Justice Stuart of the Supreme Court of Minnesota: The law is well settled that where, as in this case, municipal authorities can only let a contract for public work to the lowest responsible bidder, the proposals and specifications therefore must be so framed as to permit free and full competition. Nor can they enter into a contract with the best bidder containing substantial

provisions beneficial to him, not included or contemplated in the terms and specifications upon which the bids were invited.33 In fact, in the PBAC Bid Bulletin No. 3 cited by PIATCO to support its argument that the draft concession agreement is subject to amendment, the pertinent portion of which was quoted above, the PBAC also clarified that "[s]aid amendments shall only cover items that would not materially affect the preparation of the proponent's proposal." While we concede that a winning bidder is not precluded from modifying or amending certain provisions of the contract bidded upon, such changes must not constitute substantial or material amendments that would alter the basic parameters of the contract and would constitute a denial to the other bidders of the opportunity to bid on the same terms. Hence, the determination of whether or not a modification or amendment of a contract bidded out constitutes a substantial amendment rests on whether the contract, when taken as a whole, would contain substantially different terms and conditions that would have the effect of altering the technical and/or financial proposals previously submitted by other bidders. The alterations and modifications in the contract executed between the government and the winning bidder must be such as to render such executed contract to be an entirely different contract from the one that was bidded upon. In the case of Caltex (Philippines), Inc. v. Delgado Brothers, Inc.,34 this Court quoted with approval the ruling of the trial court that an amendment to a contract awarded through public bidding, when such subsequent amendment was made without a new public bidding, is null and void: The Court agrees with the contention of counsel for the plaintiffs that the due execution of a contract after public bidding is a limitation upon the right of the contracting parties to alter or amend it without another public bidding, for otherwise what would a public bidding be good for if after the execution of a contract after public bidding, the contracting parties may alter or amend the contract, or even cancel it, at their will?Public biddings are held for the protection of the public, and to give the public the best possible advantages by means of open competition between the bidders. He who bids or offers the best terms is awarded the contract subject of the bid, and it is obvious that such protection and best possible advantages to the public will disappear if the parties to a contract executed after public bidding may alter or amend it without another previous public bidding.35 Hence, the question that comes to fore is this: is the 1997 Concession Agreement the same agreement that was offered for public bidding, i.e., the draft Concession Agreement attached to the Bid Documents? A close comparison of the draft Concession Agreement attached to the Bid Documents and the 1997 Concession Agreement reveals that the documents differ in at least two material respects: a. Modification on the Public Utility Revenues and Non-Public Utility Revenues that may be collected by PIATCO The fees that may be imposed and collected by PIATCO under the draft Concession Agreement and the 1997 Concession Agreement may be classified into three distinct categories: (1) fees which are subject to periodic adjustment of once every two years in accordance with a prescribed parametric formula and adjustments are made effective only upon written approval by MIAA; (2) fees other than those included in the first category which maybe adjusted by PIATCO whenever it deems necessary without need for consent of DOTC/MIAA; and (3) new fees and charges that may be imposed by PIATCO which have not been previously imposed or collected at the Ninoy Aquino International Airport Passenger Terminal I, pursuant to Administrative Order No. 1, Series of 1993, as amended. The glaring distinctions between the draft Concession Agreement and the 1997 Concession Agreement lie in the types of fees

included in each category and the extent of the supervision and regulation which MIAA is allowed to exercise in relation thereto. For fees under the first category, i.e., those which are subject to periodic adjustment in accordance with a prescribed parametric formula and effective only upon written approval by MIAA, the draft Concession Agreementincludes the following:36 (1) aircraft parking fees; (2) aircraft tacking fees; (3) groundhandling fees; (4) rentals and airline offices; (5) check-in counter rentals; and (6) porterage fees. Under the 1997 Concession Agreement, fees which are subject to adjustment and effective upon MIAA approval are classified as "Public Utility Revenues" and include:37 (1) aircraft parking fees; (2) aircraft tacking fees; (3) check-in counter fees; and (4) Terminal Fees. The implication of the reduced number of fees that are subject to MIAA approval is best appreciated in relation to fees included in the second category identified above. Under the 1997 Concession Agreement, fees which PIATCO may adjust whenever it deems necessary without need for consent of DOTC/MIAA are "Non-Public Utility Revenues" and is defined as "all other income not classified as Public Utility Revenues derived from operations of the Terminal and the Terminal Complex."38 Thus, under the 1997 Concession Agreement, ground handling fees, rentals from airline offices and porterage fees are no longer subject to MIAA regulation. Further, under Section 6.03 of the draft Concession Agreement, MIAA reserves the right to regulate (1) lobby and vehicular parking fees and (2) other new fees and charges that may be imposed by PIATCO. Such regulation may be made by periodic adjustment and is effective only upon written approval of MIAA. The full text of said provision is quoted below: Section 6.03. Periodic Adjustment in Fees and Charges. Adjustments in the aircraft parking fees, aircraft tacking fees, groundhandling fees, rentals and airline offices, check-in-counter rentals and porterage fees shall be allowed only once every two years and in accordance with the Parametric Formula attached hereto as Annex F. Provided that adjustments shall be made effective only after the written express approval of the MIAA. Provided, further, that such approval of the MIAA, shall be contingent only on the conformity of the adjustments with the above said parametric formula. The first adjustment shall be made prior to the In-Service Date of the Terminal. The MIAA reserves the right to regulate under the foregoing terms and conditions the lobby and vehicular parking fees and other new fees and charges as contemplated in paragraph 2 of Section 6.01 if in its judgment the users of the airport shall be deprived of a free option for the services they cover.39 On the other hand, the equivalent provision under the 1997 Concession Agreement reads:

Section 6.03 Periodic Adjustment in Fees and Charges. xxx

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(c) Concessionaire shall at all times be judicious in fixing fees and charges constituting Non-Public Utility Revenues in order to ensure that End Users are not unreasonably deprived of services. While the vehicular parking fee, porterage fee and greeter/well wisher fee constitute Non-Public Utility Revenues of Concessionaire, GRP may intervene and require Concessionaire to explain and justify the fee it may set from time to time, if in the reasonable opinion of GRP the said fees have become exorbitant resulting in the unreasonable deprivation of End Users of such services.40 Thus, under the 1997 Concession Agreement, with respect to (1) vehicular parking fee, (2) porterage fee and (3) greeter/well wisher fee, all that MIAA can do is to require PIATCO to explain and justify the fees set by PIATCO. In the draft Concession Agreement, vehicular parking fee is subject to MIAA regulation and approval under the second paragraph of Section 6.03 thereof while porterage fee is covered by the first paragraph of the same provision. There is an obvious relaxation of the extent of control and regulation by MIAA with respect to the particular fees that may be charged by PIATCO. Moreover, with respect to the third category of fees that may be imposed and collected by PIATCO, i.e., new fees and charges that may be imposed by PIATCO which have not been previously imposed or collected at the Ninoy Aquino International Airport Passenger Terminal I, under Section 6.03 of the draft Concession Agreement MIAA has reserved the right to regulate the same under the same conditions that MIAA may regulate fees under the first category, i.e., periodic adjustment of once every two years in accordance with a prescribed parametric formula and effective only upon written approval by MIAA. However, under the 1997 Concession Agreement, adjustment of fees under the third category is not subject to MIAA regulation. With respect to terminal fees that may be charged by PIATCO, 41 as shown earlier, this was included within the category of "Public Utility Revenues" under the 1997 Concession Agreement. This classification is significant because under the 1997 Concession Agreement, "Public Utility Revenues" are subject to an "Interim Adjustment" of fees upon the occurrence of certain extraordinary events specified in the agreement. 42 However, under the draft Concession Agreement, terminal fees are not included in the types of fees that may be subject to "Interim Adjustment."43 Finally, under the 1997 Concession Agreement, "Public Utility Revenues," except terminal fees, are denominated in US Dollars44 while payments to the Government are in Philippine Pesos. In the draft Concession Agreement,no such stipulation was included. By stipulating that "Public Utility Revenues" will be paid to PIATCO in US Dollars while payments by PIATCO to the Government are in Philippine currency under the 1997 Concession Agreement, PIATCO is able to enjoy the benefits of depreciations of the Philippine Peso, while being effectively insulated from the detrimental effects of exchange rate fluctuations. When taken as a whole, the changes under the 1997 Concession Agreement with respect to reduction in the types of fees that are subject to MIAA regulation and the relaxation of such regulation with respect to other fees are significant amendments that substantially distinguish the draft Concession Agreement from the 1997 Concession Agreement. The 1997 Concession Agreement, in this respect, clearly gives PIATCO more favorable terms than what was available to other bidders at the time the contract was bidded out. It is not very difficult to see that the changes in the 1997 Concession Agreement translate to direct and concrete financial advantages for PIATCO which were not available at the time the contract was offered for bidding. It cannot be denied that under the 1997 Concession Agreement only "Public Utility Revenues" are subject to MIAA regulation. Adjustments of all other fees imposed and collected by PIATCO are entirely within its control. Moreover, with respect to terminal fees, under the 1997 Concession Agreement, the same is further subject to "Interim Adjustments" not previously stipulated in the draft Concession Agreement. Finally, the change in the currency stipulated for "Public Utility Revenues" under the 1997 Concession Agreement, except terminal fees, gives PIATCO an added benefit which was not available at the time of bidding.

b. Assumption by the Government of the liabilities of PIATCO in the event of the latter's default thereof Under the draft Concession Agreement, default by PIATCO of any of its obligations to creditors who have provided, loaned or advanced funds for the NAIA IPT III project does not result in the assumption by the Government of these liabilities. In fact, nowhere in the said contract does default of PIATCO's loans figure in the agreement. Such default does not directly result in any concomitant right or obligation in favor of the Government. However, the 1997 Concession Agreement provides: Section 4.04 Assignment. xxx

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(b) In the event Concessionaire should default in the payment of an Attendant Liability, and the default has resulted in the acceleration of the payment due date of the Attendant Liability prior to its stated date of maturity, the Unpaid Creditors and Concessionaire shall immediately inform GRP in writing of such default. GRP shall, within one hundred eighty (180) Days from receipt of the joint written notice of the Unpaid Creditors and Concessionaire, either (i) take over the Development Facility and assume the Attendant Liabilities, or (ii) allow the Unpaid Creditors, if qualified, to be substituted as concessionaire and operator of the Development Facility in accordance with the terms and conditions hereof, or designate a qualified operator acceptable to GRP to operate the Development Facility, likewise under the terms and conditions of this Agreement; Provided that if at the end of the 180-day period GRP shall not have served the Unpaid Creditors and Concessionaire written notice of its choice, GRP shall be deemed to have elected to take over the Development Facility with the concomitant assumption of Attendant Liabilities. (c) If GRP should, by written notice, allow the Unpaid Creditors to be substituted as concessionaire, the latter shall form and organize a concession company qualified to take over the operation of the Development Facility. If the concession company should elect to designate an operator for the Development Facility, the concession company shall in good faith identify and designate a qualified operator acceptable to GRP within one hundred eighty (180) days from receipt of GRP's written notice. If the concession company, acting in good faith and with due diligence, is unable to designate a qualified operator within the aforesaid period, then GRP shall at the end of the 180-day period take over the Development Facility and assume Attendant Liabilities. The term "Attendant Liabilities" under the 1997 Concession Agreement is defined as: Attendant Liabilities refer to all amounts recorded and from time to time outstanding in the books of the Concessionaire as owing to Unpaid Creditors who have provided, loaned or advanced funds actually used for the Project, including all interests, penalties, associated fees, charges, surcharges, indemnities, reimbursements and other related expenses, and further including amounts owed by Concessionaire to its suppliers, contractors and sub-contractors. Under the above quoted portions of Section 4.04 in relation to the definition of "Attendant Liabilities," default by PIATCO of its loans used to finance the NAIA IPT III project triggers the occurrence of certain events that leads to the assumption by the Government of the liability for the loans. Only in one instance may the Government escape the assumption of PIATCO's liabilities, i.e., when the Government so elects and allows a qualified operator to take over as Concessionaire. However, this circumstance is dependent on the existence and availability of a qualified operator who is willing to take over the rights and obligations of

PIATCO under the contract, a circumstance that is not entirely within the control of the Government. Without going into the validity of this provision at this juncture, suffice it to state that Section 4.04 of the 1997 Concession Agreement may be considered a form of security for the loans PIATCO has obtained to finance the project, an option that was not made available in the draft Concession Agreement. Section 4.04 is an important amendment to the 1997 Concession Agreement because it grants PIATCO a financial advantage or benefit which was not previously made available during the bidding process. This financial advantage is a significant modification that translates to better terms and conditions for PIATCO. PIATCO, however, argues that the parties to the bidding procedure acknowledge that the draft Concession Agreement is subject to amendment because the Bid Documents permit financing or borrowing. They claim that it was the lenders who proposed the amendments to the draft Concession Agreement which resulted in the 1997 Concession Agreement. We agree that it is not inconsistent with the rationale and purpose of the BOT Law to allow the project proponent or the winning bidder to obtain financing for the project, especially in this case which involves the construction, operation and maintenance of the NAIA IPT III. Expectedly, compliance by the project proponent of its undertakings therein would involve a substantial amount of investment. It is therefore inevitable for the awardee of the contract to seek alternate sources of funds to support the project. Be that as it may, this Court maintains that amendments to the contract bidded upon should always conform to the general policy on public bidding if such procedure is to be faithful to its real nature and purpose. By its very nature and characteristic, competitive public bidding aims to protect the public interest by giving the public the best possible advantages through open competition.45 It has been held that the three principles in public bidding are (1) the offer to the public; (2) opportunity for competition; and (3) a basis for the exact comparison of bids. A regulation of the matter which excludes any of these factors destroys the distinctive character of the system and thwarts the purpose of its adoption.46 These are the basic parameters which every awardee of a contract bidded out must conform to, requirements of financing and borrowing notwithstanding. Thus, upon a concrete showing that, as in this case, the contract signed by the government and the contract-awardee is an entirely different contract from the contract bidded, courts should not hesitate to strike down said contract in its entirety for violation of public policy on public bidding. A strict adherence on the principles, rules and regulations on public bidding must be sustained if only to preserve the integrity and the faith of the general public on the procedure. Public bidding is a standard practice for procuring government contracts for public service and for furnishing supplies and other materials. It aims to secure for the government the lowest possible price under the most favorable terms and conditions, to curtail favoritism in the award of government contracts and avoid suspicion of anomalies and it places all bidders in equal footing.47 Any government action which permits any substantial variance between the conditions under which the bids are invited and the contract executed after the award thereof is a grave abuse of discretion amounting to lack or excess of jurisdiction which warrants proper judicial action. In view of the above discussion, the fact that the foregoing substantial amendments were made on the 1997 Concession Agreement renders the same null and void for being contrary to public policy. These amendments convert the 1997 Concession Agreement to an entirely different agreement from the contract bidded out or the draft Concession Agreement. It is not difficult to see that the amendments on (1) the types of fees or charges that are subject to MIAA regulation or control and the extent thereof and (2) the assumption by the Government, under certain conditions, of the liabilities of PIATCO directly translates concrete financial advantages to PIATCO that were previously not available during the bidding process. These amendments cannot be taken as merely supplements to or implementing provisions of those already existing in the draft Concession Agreement. The amendments discussed above present new terms and conditions which provide financial benefit to PIATCO which may have altered the technical and financial parameters of other bidders had they known that such terms were available. III

Direct Government Guarantee Article IV, Section 4.04(b) and (c), in relation to Article 1.06, of the 1997 Concession Agreement provides: Section 4.04 Assignment xxx

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(b) In the event Concessionaire should default in the payment of an Attendant Liability, and the default resulted in the acceleration of the payment due date of the Attendant Liability prior to its stated date of maturity, the Unpaid Creditors and Concessionaire shall immediately inform GRP in writing of such default. GRP shall within one hundred eighty (180) days from receipt of the joint written notice of the Unpaid Creditors and Concessionaire, either (i) take over the Development Facility and assume the Attendant Liabilities, or (ii) allow the Unpaid Creditors, if qualified to be substituted as concessionaire and operator of the Development facility in accordance with the terms and conditions hereof, or designate a qualified operator acceptable to GRP to operate the Development Facility, likewise under the terms and conditions of this Agreement; Provided, that if at the end of the 180-day period GRP shall not have served the Unpaid Creditors and Concessionaire written notice of its choice, GRP shall be deemed to have elected to take over the Development Facility with the concomitant assumption of Attendant Liabilities. (c) If GRP, by written notice, allow the Unpaid Creditors to be substituted as concessionaire, the latter shall form and organize a concession company qualified to takeover the operation of the Development Facility. If the concession company should elect to designate an operator for the Development Facility, the concession company shall in good faith identify and designate a qualified operator acceptable to GRP within one hundred eighty (180) days from receipt of GRP's written notice. If the concession company, acting in good faith and with due diligence, is unable to designate a qualified operator within the aforesaid period, then GRP shall at the end of the 180-day period take over the Development Facility and assume Attendant Liabilities. …. Section 1.06. Attendant Liabilities Attendant Liabilities refer to all amounts recorded and from time to time outstanding in the books of the Concessionaire as owing to Unpaid Creditors who have provided, loaned or advanced funds actually used for the Project, including all interests, penalties, associated fees, charges, surcharges, indemnities, reimbursements and other related expenses, and further including amounts owed by Concessionaire to its suppliers, contractors and sub-contractors.48 It is clear from the above-quoted provisions that Government, in the event that PIATCO defaults in its loan obligations, is obligated to pay "all amounts recorded and from time to time outstanding from the books" of PIATCO which the latter owes to its creditors. 49 These amounts include "all interests, penalties, associated fees, charges, surcharges, indemnities, reimbursements and other related expenses."50 This obligation of the Government to pay PIATCO's creditors upon PIATCO's default would arise if the Government opts to take over NAIA IPT III. It should be noted, however, that even if the Government chooses the second option, which is to allow PIATCO's unpaid creditors operate NAIA IPT III, the Government is still at a risk of being liable to PIATCO's creditors should the latter be unable to designate a qualified operator within the prescribed period.51 In effect, whatever option the Government chooses to take in the event of PIATCO's failure to fulfill its loan obligations, the Government is still at a risk of assuming PIATCO's outstanding loans. This is due to the fact that the Government would only be free from assuming PIATCO's debts if the unpaid creditors would be able to designate a qualified operator within the period provided for in the contract. Thus, the Government's assumption of liability is virtually out of its control. The Government under the circumstances provided for in the 1997 Concession Agreement is at the mercy of the

existence, availability and willingness of a qualified operator. The above contractual provisions constitute a direct government guarantee which is prohibited by law. One of the main impetus for the enactment of the BOT Law is the lack of government funds to construct the infrastructure and development projects necessary for economic growth and development. This is why private sector resources are being tapped in order to finance these projects. The BOT law allows the private sector to participate, and is in fact encouraged to do so by way of incentives, such as minimizing the unstable flow of returns, 52 provided that the government would not have to unnecessarily expend scarcely available funds for the project itself. As such, direct guarantee, subsidy and equity by the government in these projects are strictly prohibited.53 This is but logical for if the government would in the end still be at a risk of paying the debts incurred by the private entity in the BOT projects, then the purpose of the law is subverted. Section 2(n) of the BOT Law defines direct guarantee as follows: (n) Direct government guarantee — An agreement whereby the government or any of its agencies or local government units assume responsibility for the repayment of debt directly incurred by the project proponent in implementing the project in case of a loan default. Clearly by providing that the Government "assumes" the attendant liabilities, which consists of PIATCO's unpaid debts, the 1997 Concession Agreement provided for a direct government guarantee for the debts incurred by PIATCO in the implementation of the NAIA IPT III project. It is of no moment that the relevant sections are subsumed under the title of "assignment". The provisions providing for direct government guarantee which is prohibited by law is clear from the terms thereof. The fact that the ARCA superseded the 1997 Concession Agreement did not cure this fatal defect. Article IV, Section 4.04(c), in relation to Article I, Section 1.06, of the ARCA provides: Section 4.04 Security xxx

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(c) GRP agrees with Concessionaire (PIATCO) that it shall negotiate in good faith and enter into direct agreement with the Senior Lenders, or with an agent of such Senior Lenders (which agreement shall be subject to the approval of the Bangko Sentral ng Pilipinas), in such form as may be reasonably acceptable to both GRP and Senior Lenders, with regard, inter alia, to the following parameters: xxx

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(iv) If the Concessionaire [PIATCO] is in default under a payment obligation owed to the Senior Lenders, and as a result thereof the Senior Lenders have become entitled to accelerate the Senior Loans, the Senior Lenders shall have the right to notify GRP of the same, and without prejudice to any other rights of the Senior Lenders or any Senior Lenders' agent may have (including without limitation under security interests granted in favor of the Senior Lenders), to either in good faith identify and designate a nominee which is qualified under sub-clause (viii)(y) below to operate the Development Facility [NAIA Terminal 3] or transfer the Concessionaire's [PIATCO] rights and obligations under this Agreement to a transferee which is qualified under sub-clause (viii) below; xxx

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(vi) if the Senior Lenders, acting in good faith and using reasonable efforts, are unable to designate a nominee or effect a transfer in terms and conditions satisfactory to the Senior Lenders within one hundred eighty (180) days after giving GRP notice as referred to respectively in (iv) or (v) above, then GRP and the Senior Lenders shall endeavor in good faith to enter into any other

arrangement relating to the Development Facility [NAIA Terminal 3] (other than a turnover of the Development Facility [NAIA Terminal 3] to GRP) within the following one hundred eighty (180) days. If no agreement relating to the Development Facility [NAIA Terminal 3] is arrived at by GRP and the Senior Lenders within the said 180-day period, then at the end thereof the Development Facility [NAIA Terminal 3] shall be transferred by the Concessionaire [PIATCO] to GRP or its designee and GRP shall make a termination payment to Concessionaire [PIATCO] equal to the Appraised Value (as hereinafter defined) of the Development Facility [NAIA Terminal 3] or the sum of the Attendant Liabilities, if greater. Notwithstanding Section 8.01(c) hereof, this Agreement shall be deemed terminated upon the transfer of the Development Facility [NAIA Terminal 3] to GRP pursuant hereto; xxx

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Section 1.06. Attendant Liabilities Attendant Liabilities refer to all amounts in each case supported by verifiable evidence from time to time owed or which may become owing by Concessionaire [PIATCO] to Senior Lenders or any other persons or entities who have provided, loaned, or advanced funds or provided financial facilities to Concessionaire [PIATCO] for the Project [NAIA Terminal 3], including, without limitation, all principal, interest, associated fees, charges, reimbursements, and other related expenses (including the fees, charges and expenses of any agents or trustees of such persons or entities), whether payable at maturity, by acceleration or otherwise, and further including amounts owed by Concessionaire [PIATCO] to its professional consultants and advisers, suppliers, contractors and sub-contractors.54 It is clear from the foregoing contractual provisions that in the event that PIATCO fails to fulfill its loan obligations to its Senior Lenders, the Government is obligated to directly negotiate and enter into an agreement relating to NAIA IPT III with the Senior Lenders, should the latter fail to appoint a qualified nominee or transferee who will take the place of PIATCO. If the Senior Lenders and the Government are unable to enter into an agreement after the prescribed period, the Government must then pay PIATCO, upon transfer of NAIA IPT III to the Government, termination payment equal to the appraised value of the project or the value of the attendant liabilities whichever is greater. Attendant liabilities as defined in the ARCA includes all amounts owed or thereafter may be owed by PIATCO not only to the Senior Lenders with whom PIATCO has defaulted in its loan obligations but to all other persons who may have loaned, advanced funds or provided any other type of financial facilities to PIATCO for NAIA IPT III. The amount of PIATCO's debt that the Government would have to pay as a result of PIATCO's default in its loan obligations -- in case no qualified nominee or transferee is appointed by the Senior Lenders and no other agreement relating to NAIA IPT III has been reached between the Government and the Senior Lenders -- includes, but is not limited to, "all principal, interest, associated fees, charges, reimbursements, and other related expenses . . . whether payable at maturity, by acceleration or otherwise."55 It is clear from the foregoing that the ARCA provides for a direct guarantee by the government to pay PIATCO's loans not only to its Senior Lenders but all other entities who provided PIATCO funds or services upon PIATCO's default in its loan obligation with its Senior Lenders. The fact that the Government's obligation to pay PIATCO's lenders for the latter's obligation would only arise after the Senior Lenders fail to appoint a qualified nominee or transferee does not detract from the fact that, should the conditions as stated in the contract occur, the ARCA still obligates the Government to pay any and all amounts owed by PIATCO to its lenders in connection with NAIA IPT III. Worse, the conditions that would make the Government liable for PIATCO's debts is triggered by PIATCO's own default of its loan obligations to its Senior Lenders to which loan contracts the Government was never a party to. The Government was not even given an option as to what course of action it should take in case PIATCO defaulted in the payment of its senior loans. The Government, upon PIATCO's default, would be merely notified by the Senior Lenders of the same and it is the Senior Lenders who are authorized to appoint a qualified nominee or transferee. Should the Senior Lenders fail to make such an appointment, the Government is then automatically obligated to "directly deal and negotiate" with the Senior Lenders regarding NAIA IPT III. The only way the Government would

not be liable for PIATCO's debt is for a qualified nominee or transferee to be appointed in place of PIATCO to continue the construction, operation and maintenance of NAIA IPT III. This "precondition", however, will not take the contract out of the ambit of a direct guarantee by the government as the existence, availability and willingness of a qualified nominee or transferee is totally out of the government's control. As such the Government is virtually at the mercy of PIATCO (that it would not default on its loan obligations to its Senior Lenders), the Senior Lenders (that they would appoint a qualified nominee or transferee or agree to some other arrangement with the Government) and the existence of a qualified nominee or transferee who is able and willing to take the place of PIATCO in NAIA IPT III. The proscription against government guarantee in any form is one of the policy considerations behind the BOT Law. Clearly, in the present case, the ARCA obligates the Government to pay for all loans, advances and obligations arising out of financial facilities extended to PIATCO for the implementation of the NAIA IPT III project should PIATCO default in its loan obligations to its Senior Lenders and the latter fails to appoint a qualified nominee or transferee. This in effect would make the Government liable for PIATCO's loans should the conditions as set forth in the ARCA arise. This is a form of direct government guarantee. The BOT Law and its implementing rules provide that in order for an unsolicited proposal for a BOT project may be accepted, the following conditions must first be met: (1) the project involves a new concept in technology and/or is not part of the list of priority projects, (2) no direct government guarantee, subsidy or equity is required, and (3) the government agency or local government unit has invited by publication other interested parties to a public bidding and conducted the same.56 The failure to meet any of the above conditions will result in the denial of the proposal. It is further provided that the presence of direct government guarantee, subsidy or equity will "necessarily disqualify a proposal from being treated and accepted as an unsolicited proposal."57 The BOT Law clearly and strictly prohibits direct government guarantee, subsidy and equity in unsolicited proposals that the mere inclusion of a provision to that effect is fatal and is sufficient to deny the proposal. It stands to reason therefore that if a proposal can be denied by reason of the existence of direct government guarantee, then its inclusion in the contract executed after the said proposal has been accepted is likewise sufficient to invalidate the contract itself. A prohibited provision, the inclusion of which would result in the denial of a proposal cannot, and should not, be allowed to later on be inserted in the contract resulting from the said proposal. The basic rules of justice and fair play alone militate against such an occurrence and must not, therefore, be countenanced particularly in this instance where the government is exposed to the risk of shouldering hundreds of million of dollars in debt. This Court has long and consistently adhered to the legal maxim that those that cannot be done directly cannot be done indirectly.58 To declare the PIATCO contracts valid despite the clear statutory prohibition against a direct government guarantee would not only make a mockery of what the BOT Law seeks to prevent -- which is to expose the government to the risk of incurring a monetary obligation resulting from a contract of loan between the project proponent and its lenders and to which the Government is not a party to -- but would also render the BOT Law useless for what it seeks to achieve –- to make use of the resources of the private sector in the "financing, operation and maintenance of infrastructure and development projects"59which are necessary for national growth and development but which the government, unfortunately, could ill-afford to finance at this point in time. IV Temporary takeover of business affected with public interest Article XII, Section 17 of the 1987 Constitution provides: Section 17. In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest.

The above provision pertains to the right of the State in times of national emergency, and in the exercise of its police power, to temporarily take over the operation of any business affected with public interest. In the 1986 Constitutional Commission, the term "national emergency" was defined to include threat from external aggression, calamities or national disasters, but not strikes "unless it is of such proportion that would paralyze government service." 60 The duration of the emergency itself is the determining factor as to how long the temporary takeover by the government would last.61 The temporary takeover by the government extends only to the operation of the business and not to the ownership thereof. As such the government is not required to compensate the private entity-owner of the said business as there is no transfer of ownership, whether permanent or temporary. The private entity-owner affected by the temporary takeover cannot, likewise, claim just compensation for the use of the said business and its properties as the temporary takeover by the government is in exercise of its police power and not of its power of eminent domain. Article V, Section 5.10 (c) of the 1997 Concession Agreement provides: Section 5.10 Temporary Take-over of operations by GRP. …. (c) In the event the development Facility or any part thereof and/or the operations of Concessionaire or any part thereof, become the subject matter of or be included in any notice, notification, or declaration concerning or relating to acquisition, seizure or appropriation by GRP in times of war or national emergency, GRP shall, by written notice to Concessionaire, immediately take over the operations of the Terminal and/or the Terminal Complex. During such take over by GRP, the Concession Period shall be suspended; provided, that upon termination of war, hostilities or national emergency, the operations shall be returned to Concessionaire, at which time, the Concession period shall commence to run again. Concessionaire shall be entitled to reasonable compensation for the duration of the temporary take over by GRP, which compensation shall take into account the reasonable cost for the use of the Terminal and/or Terminal Complex, (which is in the amount at least equal to the debt service requirements of Concessionaire, if the temporary take over should occur at the time when Concessionaire is still servicing debts owed to project lenders), any loss or damage to the Development Facility, and other consequential damages. If the parties cannot agree on the reasonable compensation of Concessionaire, or on the liability of GRP as aforesaid, the matter shall be resolved in accordance with Section 10.01 [Arbitration]. Any amount determined to be payable by GRP to Concessionaire shall be offset from the amount next payable by Concessionaire to GRP.62 PIATCO cannot, by mere contractual stipulation, contravene the Constitutional provision on temporary government takeover and obligate the government to pay "reasonable cost for the use of the Terminal and/or Terminal Complex."63 Article XII, section 17 of the 1987 Constitution envisions a situation wherein the exigencies of the times necessitate the government to "temporarily take over or direct the operation of any privately owned public utility or business affected with public interest." It is the welfare and interest of the public which is the paramount consideration in determining whether or not to temporarily take over a particular business. Clearly, the State in effecting the temporary takeover is exercising its police power. Police power is the "most essential, insistent, and illimitable of powers."64 Its exercise therefore must not be unreasonably hampered nor its exercise be a source of obligation by the government in the absence of damage due to arbitrariness of its exercise.65 Thus, requiring the government to pay reasonable compensation for the reasonable use of the property pursuant to the operation of the business contravenes the Constitution. V Regulation of Monopolies A monopoly is "a privilege or peculiar advantage vested in one or more persons or companies, consisting in the exclusive right (or power) to carry on a particular business or trade, manufacture a particular article, or control the sale of a particular commodity." 66 The

1987 Constitution strictly regulates monopolies, whether private or public, and even provides for their prohibition if public interest so requires. Article XII, Section 19 of the 1987 Constitution states: Sec. 19. The state shall regulate or prohibit monopolies when the public interest so requires. No combinations in restraint of trade or unfair competition shall be allowed. Clearly, monopolies are not per se prohibited by the Constitution but may be permitted to exist to aid the government in carrying on an enterprise or to aid in the performance of various services and functions in the interest of the public.67 Nonetheless, a determination must first be made as to whether public interest requires a monopoly. As monopolies are subject to abuses that can inflict severe prejudice to the public, they are subject to a higher level of State regulation than an ordinary business undertaking. In the cases at bar, PIATCO, under the 1997 Concession Agreement and the ARCA, is granted the "exclusive rightto operate a commercial international passenger terminal within the Island of Luzon" at the NAIA IPT III.68 This is with the exception of already existing international airports in Luzon such as those located in the Subic Bay Freeport Special Economic Zone ("SBFSEZ"), Clark Special Economic Zone ("CSEZ") and in Laoag City.69 As such, upon commencement of PIATCO's operation of NAIA IPT III, Terminals 1 and 2 of NAIA would cease to function as international passenger terminals. This, however, does not prevent MIAA to use Terminals 1 and 2 as domestic passenger terminals or in any other manner as it may deem appropriate except those activities that would compete with NAIA IPT III in the latter's operation as an international passenger terminal.70 The right granted to PIATCO to exclusively operate NAIA IPT III would be for a period of twenty-five (25) years from the In-Service Date71 and renewable for another twenty-five (25) years at the option of the government.72 Both the 1997 Concession Agreement and the ARCA further provide that, in view of the exclusive right granted to PIATCO, the concession contracts of the service providers currently servicing Terminals 1 and 2 would no longer be renewed and those concession contracts whose expiration are subsequent to the In-Service Date would cease to be effective on the said date.73 The operation of an international passenger airport terminal is no doubt an undertaking imbued with public interest. In entering into a Build–Operate-and-Transfer contract for the construction, operation and maintenance of NAIA IPT III, the government has determined that public interest would be served better if private sector resources were used in its construction and an exclusive right to operate be granted to the private entity undertaking the said project, in this case PIATCO. Nonetheless, the privilege given to PIATCO is subject to reasonable regulation and supervision by the Government through the MIAA, which is the government agency authorized to operate the NAIA complex, as well as DOTC, the department to which MIAA is attached.74 This is in accord with the Constitutional mandate that a monopoly which is not prohibited must be regulated.75 While it is the declared policy of the BOT Law to encourage private sector participation by "providing a climate of minimum government regulations,"76 the same does not mean that Government must completely surrender its sovereign power to protect public interest in the operation of a public utility as a monopoly. The operation of said public utility can not be done in an arbitrary manner to the detriment of the public which it seeks to serve. The right granted to the public utility may be exclusive but the exercise of the right cannot run riot. Thus, while PIATCO may be authorized to exclusively operate NAIA IPT III as an international passenger terminal, the Government, through the MIAA, has the right and the duty to ensure that it is done in accord with public interest. PIATCO's right to operate NAIA IPT III cannot also violate the rights of third parties. Section 3.01(e) of the 1997 Concession Agreement and the ARCA provide: 3.01 Concession Period xxx

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(e) GRP confirms that certain concession agreements relative to certain services and operations currently being undertaken at the Ninoy Aquino International Airport

passenger Terminal I have a validity period extending beyond the In-Service Date. GRP through DOTC/MIAA, confirms that these services and operations shall not be carried over to the Terminal and the Concessionaire is under no legal obligation to permit such carry-over except through a separate agreement duly entered into with Concessionaire. In the event Concessionaire becomes involved in any litigation initiated by any such concessionaire or operator, GRP undertakes and hereby holds Concessionaire free and harmless on full indemnity basis from and against any loss and/or any liability resulting from any such litigation, including the cost of litigation and the reasonable fees paid or payable to Concessionaire's counsel of choice, all such amounts shall be fully deductible by way of an offset from any amount which the Concessionaire is bound to pay GRP under this Agreement. During the oral arguments on December 10, 2002, the counsel for the petitioners-inintervention for G.R. No. 155001 stated that there are two service providers whose contracts are still existing and whose validity extends beyond the In-Service Date. One contract remains valid until 2008 and the other until 2010.77 We hold that while the service providers presently operating at NAIA Terminal 1 do not have an absolute right for the renewal or the extension of their respective contracts, those contracts whose duration extends beyond NAIA IPT III's In-Service-Date should not be unduly prejudiced. These contracts must be respected not just by the parties thereto but also by third parties. PIATCO cannot, by law and certainly not by contract, render a valid and binding contract nugatory. PIATCO, by the mere expedient of claiming an exclusive right to operate, cannot require the Government to break its contractual obligations to the service providers. In contrast to the arrastre and stevedoring service providers in the case of Anglo-Fil Trading Corporation v. Lazaro78 whose contracts consist of temporary hold-over permits, the affected service providers in the cases at bar, have a valid and binding contract with the Government, through MIAA, whose period of effectivity, as well as the other terms and conditions thereof, cannot be violated. In fine, the efficient functioning of NAIA IPT III is imbued with public interest. The provisions of the 1997 Concession Agreement and the ARCA did not strip government, thru the MIAA, of its right to supervise the operation of the whole NAIA complex, including NAIA IPT III. As the primary government agency tasked with the job,79 it is MIAA's responsibility to ensure that whoever by contract is given the right to operate NAIA IPT III will do so within the bounds of the law and with due regard to the rights of third parties and above all, the interest of the public. VI CONCLUSION In sum, this Court rules that in view of the absence of the requisite financial capacity of the Paircargo Consortium, predecessor of respondent PIATCO, the award by the PBAC of the contract for the construction, operation and maintenance of the NAIA IPT III is null and void. Further, considering that the 1997 Concession Agreement contains material and substantial amendments, which amendments had the effect of converting the 1997 Concession Agreement into an entirely different agreement from the contract bidded upon, the 1997 Concession Agreement is similarly null and void for being contrary to public policy. The provisions under Sections 4.04(b) and (c) in relation to Section 1.06 of the 1997 Concession Agreement and Section 4.04(c) in relation to Section 1.06 of the ARCA, which constitute a direct government guarantee expressly prohibited by, among others, the BOT Law and its Implementing Rules and Regulations are also null and void. The Supplements, being accessory contracts to the ARCA, are likewise null and void. WHEREFORE, the 1997 Concession Agreement, the Amended and Restated Concession Agreement and the Supplements thereto are set aside for being null and void. SO ORDERED. Davide, Jr., C.J., Bellosillo, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, Corona, and Carpio-Morales, JJ., concur.

Vitug, J., see separate (dissenting) opinion. Panganiban, J., please see separate opinion. Quisumbing, J., no jurisdiction, please see separate opinion of J. Vitug in which he concurs. Carpio, J., no part. Callejo, Sr., J., also concur in the separate opinion of J. Panganiban. Azcuna, J., joins the separate opinion of J. Vitug.

SEPARATE OPINIONS VITUG, J.: This Court is bereft of jurisdiction to hear the petitions at bar. The Constitution provides that the Supreme Court shall exercise original jurisdiction over, among other actual controversies, petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.1 The cases in question, although denominated to be petitions for prohibition, actually pray for the nullification of the PIATCO contracts and to restrain respondents from implementing said agreements for being illegal and unconstitutional. Section 2, Rule 65 of the Rules of Court states: "When the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require." The rule is explicit. A petition for prohibition may be filed against a tribunal, corporation, board, officer or person, exercising judicial, quasi-judicial or ministerial functions. What the petitions seek from respondents do not involve judicial, quasi-judicial or ministerial functions. In prohibition, only legal issues affecting the jurisdiction of the tribunal, board or officer involved may be resolved on the basis of undisputed facts.2 The parties allege, respectively, contentious evidentiary facts. It would be difficult, if not anomalous, to decide the jurisdictional issue on the basis of the contradictory factual submissions made by the parties.3 As the Court has so often exhorted, it is not a trier of facts. The petitions, in effect, are in the nature of actions for declaratory relief under Rule 63 of the Rules of Court. The Rules provide that any person interested under a contract may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties thereunder.4 The Supreme Court assumes no jurisdiction over petitions for declaratory relief which are cognizable by regional trial courts.5 As I have so expressed in Tolentino vs. Secretary of Finance,6 reiterated in Santiago vs. Guingona, Jr.7 , the Supreme Court should not be thought of as having been tasked with the awesome responsibility of overseeing the entire bureaucracy. Pervasive and limitless, such as it may seem to be under the 1987 Constitution, judicial power still succumbs to the paramount doctrine of separation of powers. The Court may not at good liberty intrude, in the guise of sovereign imprimatur, into every affair of government. What significance can still then remain 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. Accordingly, I vote for the dismissal of the petition.

Quisumbing, and Azcuna, JJ., concur.

PANGANIBAN, J.: The five contracts for the construction and the operation of Ninoy Aquino International Airport (NAIA) Terminal III, the subject of the consolidated Petitions before the Court, are replete with outright violations of law, public policy and the Constitution. The only proper thing to do is declare them all null and void ab initio and let the chips fall where they may. Fiat iustitia ruat coelum. The facts leading to this controversy are already well presented in the ponencia. I shall not burden the readers with a retelling thereof. Instead, I will cut to the chase and directly address the two sets of gut issues: 1. The first issue is procedural: Does the Supreme Court have original jurisdiction to hear and decide the Petitions? Corollarily, do petitioners have locus standi and should this Court decide the cases without any mandatory referral to arbitration? 2. The second one is substantive in character: Did the subject contracts violate the Constitution, the laws, and public policy to such an extent as to render all of them void and inexistent? My answer to all the above questions is a firm "Yes." The Procedural Jurisdiction, Standing and Arbitration

Issue:

Definitely and surely, the issues involved in these Petitions are clearly of transcendental importance and of national interest. The subject contracts pertain to the construction and the operation of the country's premiere international airport terminal - an ultramodern world-class public utility that will play a major role in the country's economic development and serve to project a positive image of our country abroad. The five build-operate-&-transfer (BOT) contracts, while entailing the investment of billions of pesos in capital and the availment of several hundred millions of dollars in loans, contain provisions that tend to establish a monopoly, require the disbursements of public funds sans appropriations, and provide government guarantees in violation of statutory prohibitions, as well as other provisions equally offensive to law, public policy and the Constitution. Public interest will inevitably be affected thereby. Thus, objections to these Petitions, grounded upon (a) the hierarchy of courts, (b) the need for arbitration prior to court action, and (c) the alleged lack of sufficient personality, standing or interest, being in the main procedural matters, must now be set aside, as they have been in past cases. This Court must be permitted to perform its constitutional duty of determining whether the other agencies of government have acted within the limits of the Constitution and the laws, or if they have gravely abused the discretion entrusted to them.1 Hierarchy of Courts The Court has, in the past, held that questions relating to gargantuan government contracts ought to be settled without delay.2 This holding applies with greater force to the instant cases. Respondent Piatco is partly correct in averring that petitioners can obtain relief from the regional trial courts via an action to annul the contracts. Nevertheless, the unavoidable consequence of having to await the rendition and the finality of any such judgment would be a prolonged state of uncertainty that would be prejudicial to the nation, the parties and the general public. And, in light of the feared loss of jobs of the petitioning workers, consequent to the inevitable pretermination of contracts of the petitioning service providers that will follow upon the heels of the impending opening of NAIA Terminal III,

the need for relief is patently urgent, and therefore, direct resort to this Court through the special civil action of prohibition is thus justified.3 Contrary to Piatco's argument that the resolution of the issues raised in the Petitions will require delving into factual questions,4 I submit that their disposition ultimately turns on questions of law.5 Further, many of the significant and relevant factual questions can be easily addressed by an examination of the documents submitted by the parties. In any event, the Petitions raise some novel questions involving the application of the amended BOT Law, which this Court has seen fit to tackle. Arbitration Should the dispute be referred to arbitration prior to judicial recourse? Respondent Piatco claims that Section 10.02 of the Amended and Restated Concession Agreement (ARCA) provides for arbitration under the auspices of the International Chamber of Commerce to settle any dispute or controversy or claim arising in connection with the Concession Agreement, its amendments and supplements. The government disagrees, however, insisting that there can be no arbitration based on Section 10.02 of the ARCA, since all the Piatco contracts are void ab initio. Therefore, all contractual provisions, including Section 10.02 of the ARCA, are likewise void, inexistent and inoperative. To support its stand, the government cites Chavez v. Presidential Commission on Good Government:6"The void agreement will not be rendered operative by the parties' alleged performance (partial or full) of their respective prestations. A contract that violates the Constitution and the law is null and void ab initio and vests no rights and creates no obligations. It produces no legal effect at all." As will be discussed at length later, the Piatco contracts are indeed void in their entirety; thus, a resort to the aforesaid provision on arbitration is unavailing. Besides, petitioners and petitionersin-intervention have pointed out that, even granting arguendo that the arbitration clause remained a valid provision, it still cannot bind them inasmuch as they are not parties to the Piatco contracts. And in the final analysis, it is unarguable that the arbitration process provided for under Section 10.02 of the ARCA, to be undertaken by a panel of three (3) arbitrators appointed in accordance with the Rules of Arbitration of the International Chamber of Commerce, will not be able to address, determine and definitively resolve the constitutional and legal questions that have been raised in the Petitions before us. Locus Standi Given this Court's previous decisions in cases of similar import, no one will seriously doubt that, being taxpayers and members of the House of Representatives, Petitioners Baterina et al. have locus standi to bring the Petition in GR No. 155547. In Albano v. Reyes,7 this Court held that the petitioner therein, suing as a citizen, taxpayer and member of the House of Representatives, was sufficiently clothed with standing to bring the suit questioning the validity of the assailed contract. The Court cited the fact that public interest was involved, in view of the important role of the Manila International Container Terminal (MICT) in the country's economic development and the magnitude of the financial consideration. This, notwithstanding the fact that expenditure of public funds was not required under the assailed contract. In the cases presently under consideration, petitioners' personal and substantial interest in the controversy is shown by the fact that certain provisions in the Piatco contracts create obligations on the part of government (through the DOTC and the MIAA) to disburse public funds without prior congressional appropriations. Petitioners thus correctly assert that the injury to them has a twofold aspect: (1) they are adversely affected as taxpayers on account of the illegal disbursement of public funds; and (2) they are prejudiced qua legislators, since the contractual provisions requiring the government to incur expenditures without appropriations also operate as limitations upon the exclusive power and prerogative of Congress over the public purse. As members of the House of Representatives, they are actually deprived of discretion insofar as the inclusion of those items of expenditure in the budget is concerned. To prevent such encroachment upon the legislative privilege and obviate injury to the institution of which they are members, petitioners-legislators have locus standi to bring suit.

Messrs. Agan et al. and Lopez et al., are likewise taxpayers and thus possessed of standing to challenge the illegal disbursement of public funds. Messrs. Agan et al., in particular, are employees (or representatives of employees) of various service providers that have (1) existing concession agreements with the MIAA to provide airport services necessary to the operation of the NAIA and (2) service agreements to furnish essential support services to the international airlines operating at the NAIA. On the other hand, Messrs. Lopez et al. are employees of the MIAA. These petitioners (Messrs. Agan et al. and Messrs. Lopez et al.) are confronted with the prospect of being laid off from their jobs and losing their means of livelihood when their employer-companies are forced to shut down or otherwise retrench and cut back on manpower. Such development would result from the imminent implementation of certain provisions in the contracts that tend toward the creation of a monopoly in favor of Piatco, its subsidiaries and related companies. Petitioners-in-intervention are service providers in the business of furnishing airport-related services to international airlines and passengers in the NAIA and are therefore competitors of Piatco as far as that line of business is concerned. On account of provisions in the Piatco contracts, petitioners-in-intervention have to enter into a written contract with Piatco so as not to be shut out of NAIA Terminal III and barred from doing business there. Since there is no provision to ensure or safeguard free and fair competition, they are literally at its mercy. They claim injury on account of their deprivation of property (business) and of the liberty to contract, without due process of law. And even if petitioners and petitioners-in-intervention were not sufficiently clothed with legal standing, I have at the outset already established that, given its impact on the public and on national interest, this controversy is laden with transcendental importance and constitutional significance. Hence, I do not hesitate to adopt the same position as was enunciated in Kilosbayan v. Guingona Jr.8 that "in cases of transcendental importance, the Court may relax the standing requirements and allow a suit to prosper even when there is no direct injury to the party claiming the right of judicial review."9 The Substantive Violations of the Constitution and the Laws

Issue:

From the Outset, the Bidding Process Was Flawed and Tainted After studying the documents submitted and arguments advanced by the parties, I have no doubt that, right at the outset, Piatco was not qualified to participate in the bidding process for the Terminal III project, but was nevertheless permitted to do so. It even won the bidding and was helped along by what appears to be a series of collusive and corrosive acts. The build-operate-and-transfer (BOT) project for the NAIA Passenger Terminal III comes under the category of an "unsolicited proposal," which is the subject of Section 4-A of the BOT Law.10 The unsolicited proposal was originally submitted by the Asia's Emerging Dragon Corporation (AEDC) to the Department of Transportation and Communications (DOTC) and the Manila International Airport Authority (MIAA), which reviewed and approved the proposal. The draft of the concession agreement as negotiated between AEDC and DOTC/MIAA was endorsed to the National Economic Development Authority (NEDA-ICC), which in turn reviewed it on the basis of its scope, economic viability, financial indicators and risks; and thereafter approved it for bidding. The DOTC/MIAA then prepared the Bid Documents, incorporating therein the negotiated Draft Concession Agreement, and published invitations for public bidding, i.e., for the submission of comparative or competitive proposals. Piatco's predecessor-in-interest, the Paircargo Consortium, was the only company that submitted a competitive bid or price challenge. At this point, I must emphasize that the law requires the award of a BOT project to the bidder that has satisfied the minimum requirements; and met the technical, financial, organizational and legal standards provided in the BOT Law. Section 5 of this statute states:

"Sec. 5. Public bidding of projects. - . . . "In the case of a build-operate-and-transfer arrangement, the contract shall be awarded to the bidder who, having satisfied the minimum financial, technical, organizational and legal standards required by this Act, has submitted the lowest bid and most favorable terms for the project, based on the present value of its proposed tolls, fees, rentals and charges over a fixed term for the facility to be constructed, rehabilitated, operated and maintained according to the prescribed minimum design and performance standards, plans and specifications. . . ." (Emphasis supplied.) The same provision requires that the price challenge via public bidding "must be conducted under a two-envelope/two-stage system: the first envelope to contain the technical proposal and the second envelope to contain the financial proposal." Moreover, the 1994 Implementing Rules and Regulations (IRR) provide that only those bidders that have passed the prequalification stage are permitted to have their two envelopes reviewed. In other words, prospective bidders must prequalify by submitting their prequalification documents for evaluation; and only the pre-qualified bidders would be entitled to have their bids opened, evaluated and appreciated. On the other hand, disqualified bidders are to be informed of the reason for their disqualification. This procedure was confirmed and reiterated in the Bid Documents, which I quote thus: "Prequalified proponents will be considered eligible to move to second stage technical proposal evaluation. The second and third envelopes of pre-disqualified proponents will be returned."11 Aside from complying with the legal and technical requirements (track record or experience of the firm and its key personnel), a project proponent desiring to prequalify must also demonstrate its financial capacity to undertake the project. To establish such capability, a proponent must prove that it is able to raise the minimum amount of equity required for the project and to procure the loans or financing needed for it. Section 5.4(c) of the 1994 IRR provides: "Sec. 5.4. Prequalification Requirements. - To pre-qualify, a project proponent must comply with the following requirements: xxx

xxx

xxx

"c. Financial Capability. The project proponent must have adequate capability to sustain the financing requirements for the detailed engineering design, construction, and/or operation and maintenance phases of the project, as the case may be. For purposes of prequalification, this capability shall be measured in terms of: (i) proof of the ability of the project proponent and/or the consortium to provide a minimum amount of equity to the project, and (ii) a letter testimonial from reputable banks attesting that the project proponent and/or members of the consortium are banking with them, that they are in good financial standing, and that they have adequate resources. The government Agency/LGU concerned shall determine on a project-to-project basis, and before prequalification, the minimum amount of equity needed. . . . ." (Italics supplied) Since the minimum amount of equity for the project was set at 30 percent 12 of the minimum project cost of US$350 million, the minimum amount of equity required of any proponent stood at US$105 million. Converted to pesos at the exchange rate then of P26.239 to US$1.00 (as quoted by the Bangko Sentral ng Pilipinas), the peso equivalent of the minimum equity was P2,755,095,000. However, the combined equity or net worth of the Paircargo consortium stood at only P558,384,871.55.13 This amount was only slightly over 6 percent of the minimum project cost and very much short of the required minimum equity, which was equivalent to 30 percent of the project cost. Such deficiency should have immediately caused the disqualification of the Paircargo consortium. This matter was brought to the attention of the Prequalification and Bidding Committee (PBAC). Notwithstanding the glaring deficiency, DOTC Undersecretary Primitivo C. Cal, concurrent chair of the PBAC, declared in a Memorandum dated 14 October 1996 that "the Challenger

(Paircargo consortium) was found to have a combined net worth of P3,926,421,242.00 that could support a project costing approximately P13 billion." To justify his conclusion, he asserted: "It is not a requirement that the networth must be `unrestricted'. To impose this as a requirement now will be nothing less than unfair." He further opined, "(T)he networth reflected in the Financial Statement should not be taken as the amount of money to be used to answer the required thirty (30%) percent equity of the challenger but rather to be used in establishing if there is enough basis to believe that the challenger can comply with the required 30% equity. In fact, proof of sufficient equity is required as one of the conditions for award of contract (Sec. 12.1 of IRR of the BOT Law) but not for prequalification (Sec. 5.4 of same document)." On the basis of the foregoing dubious declaration, the Paircargo consortium was deemed prequalified and thus permitted to proceed to the other stages of the bidding process. By virtue of the prequalified status conferred upon the Paircargo, Undersecretary Cal's findings in effect relieved the consortium of the need to comply with the financial capability requirement imposed by the BOT Law and IRR. This position is unmistakably and squarely at odds with the Supreme Court's consistent doctrine emphasizing the strict application of pertinent rules, regulations and guidelines for the public bidding process, in order to place each bidder - actual or potential - on the same footing. Thus, it is unarguably irregular and contrary to the very concept of public bidding to permit a variance between the conditions under which bids are invited and those under which proposals are submitted and approved. Republic v. Capulong,14 teaches that if one bidder is relieved from having to conform to the conditions that impose some duty upon it, that bidder is not contracting in fair competition with those bidders that propose to be bound by all conditions. The essence of public bidding is, after all, an opportunity for fair competition and a basis for the precise comparison of bids. 15 Thus, each bidder must bid under the same conditions; and be subject to the same guidelines, requirements and limitations. The desired result is to be able to determine the best offer or lowest bid, all things being equal. Inasmuch as the Paircargo consortium did not possess the minimum equity equivalent to 30 percent of the minimum project cost, it should not have been prequalified or allowed to participate further in the bidding. The Prequalification and Bidding Committee (PBAC) should therefore not have opened the two envelopes of the consortium containing its technical and financial proposals; required AEDC to match the consortium's bid; 16 or awarded the Concession Agreement to the consortium's successor-in-interest, Piatco. As there was effectively no public bidding to speak of, the entire bidding process having been flawed and tainted from the very outset, therefore, the award of the concession to Paircargo's successor Piatco was void, and the Concession Agreement executed with the latter was likewise void ab initio. For this reason, Piatco cannot and should not be allowed to benefit from that Agreement.17 AEDC Was Deprived of the Right to Match PIATCO's Price Challenge In DOTC PBAC Bid Bulletin No. 4 (par. 3), Undersecretary Cal declared that, for purposes of matching the price challenge of Piatco, AEDC as originator of the unsolicited proposal would be permitted access only to the schedule of proposed Annual Guaranteed Payments submitted by Piatco, and not to the latter's financial and technical proposals that constituted the basis for the price challenge in the first place. This was supposedly in keeping with Section 11.6 of the 1994 IRR, which provides that proprietary information is to be respected, protected and treated with utmost confidentiality, and is therefore not to form part of the bidding/tender and related documents. This pronouncement, I believe, was a grievous misapplication of the mentioned provision. The "proprietary information" referred to in Section 11.6 of the IRR pertains only to the proprietary information of the originator of an unsolicited proposal, and not to those belonging to a challenger. The reason for the protection accorded proprietary information at all is the fact that, according to Section 4-A of the BOT Law as amended, a proposal qualifies as an

"unsolicited proposal" when it pertains to a project that involves "a new concept or technology", and/or a project that is not on the government's list of priority projects. To be considered as utilizing a new concept or technology, a project must involve the possession of exclusive rights (worldwide or regional) over a process; or possession of intellectual property rights over a design, methodology or engineering concept. 18 Patently, the intent of the BOT Law is to encourage individuals and groups to come up with creative innovations, fresh ideas and new technology. Hence, the significance and necessity of protecting proprietary information in connection with unsolicited proposals. And to make the encouragement real, the law also extends to such individuals and groups what amounts to a "right of first refusal" to undertake the project they conceptualized, involving the use of new technology or concepts, through the mechanism of matching a price challenge. A competing bid is never just any figure conjured from out of the blue; it is arrived at after studying economic, financial, technical and other, factors; it is likewise based on certain assumptions as to the nature of the business, the market potentials, the probable demand for the product or service, the future behavior of cost items, political and other risks, and so on. It is thus self-evident that in order to be able to intelligently match a bid or price challenge, a bidder must be given access to the assumptions and the calculations that went into crafting the competing bid. In this instance, the financial and technical proposals of Piatco would have provided AEDC with the necessary information to enable it to make a reasonably informed matching bid. To put it more simply, a bidder unable to access the competitor's assumptions will never figure out how the competing bid came about; requiring him to "counter-propose" is like having him shoot at a target in the dark while blindfolded. By withholding from AEDC the challenger's financial and technical proposals containing the critical information it needed, Undersecretary Cal actually and effectively deprived AEDC of the ability to match the price challenge. One could say that AEDC did not have the benefit of a "level playing field." It seems to me, though, that AEDC was actually shut out of the game altogether. At the end of the day, the bottom line is that the validity and the propriety of the award to Piatco had been irreparably impaired. Delayed Issuance of the Notice of Award Violated the BOT Law and the IRR Section 9.5 of the IRR requires that the Notice of Award must indicate the time frame within which the winner of the bidding (and therefore the prospective awardee) shall submit the prescribed performance security, proof of commitment of equity contributions, and indications of sources of financing (loans); and, in the case of joint ventures, an agreement showing that the members are jointly and severally responsible for the obligations of the project proponent under the contract. The purpose of having a definite and firm timetable for the submission of the aforementioned requirements is not only to prevent delays in the project implementation, but also to expose and weed out unqualified proponents, who might have unceremoniously slipped through the earlier prequalification process, by compelling them to put their money where their mouths are, so to speak. Nevertheless, this provision can be easily circumvented by merely postponing the actual issuance of the Notice of Award, in order to give the favored proponent sufficient time to comply with the requirements. Hence, to avert or minimize the manipulation of the post-bidding process, the IRR not only set out the precise sequence of events occurring between the completion of the evaluation of the technical bids and the issuance of the Notice of Award, but also specified the timetables for each such event. Definite allowable extensions of time were provided for, as were the consequences of a failure to meet a particular deadline. In particular, Section 9.1 of the 1994 IRR prescribed that within 30 calendar days from the time the second-stage evaluation shall have been completed, the Committee must come to a

decision whether or not to award the contract and, within 7 days therefrom, the Notice of Award must be approved by the head of agency or local government unit (LGU) concerned, and its issuance must follow within another 7 days thereafter. Section 9.2 of the IRR set the procedure applicable to projects involving substantial government undertakings as follows: Within 7 days after the decision to award is made, the draft contract shall be submitted to the ICC for clearance on a no-objection basis. If the draft contract includes government undertakings already previously approved, then the submission shall be for information only. However, should there be additional or new provisions different from the original government undertakings, the draft shall have to be reviewed and approved. The ICC has 15 working days to act thereon, and unless otherwise specified, its failure to act on the contract within the specified time frame signifies that the agency or LGU may proceed with the award. The head of agency or LGU shall approve the Notice of Award within seven days of the clearance by the ICC on a no-objection basis, and the Notice itself has to be issued within seven days thereafter. The highly regulated time-frames within which the agents of government were to act evinced the intent to impose upon them the duty to act expeditiously throughout the process, to the end that the project be prosecuted and implemented without delay. This regulated scenario was likewise intended to discourage collusion and substantially reduce the opportunity for agents of government to abuse their discretion in the course of the award process. Despite the clear timetables set out in the IRR, several lengthy and still-unexplained delays occurred in the award process, as can be observed from the presentation made by the counsel for public respondents,19 quoted hereinbelow: "11 Dec. 1996 - The Paircargo Joint Venture was informed by the PBAC that AEDC failed to match and that negotiations preparatory to Notice of Award should be commenced. This was the decision to award that should have commenced the running of the 7-day period to approve the Notice of Award, as per Section 9.1 of the IRR, or to submit the draft contract to the ICC for approval conformably with Section 9.2. "01 April 1997 - The PBAC resolved that a copy of the final draft of the Concession Agreement be submitted to the NEDA for clearance on a no-objection basis. This resolution came more than 3 months too late as it should have been made on the 20th of December 1996 at the latest. "16 April 1997 - The PBAC resolved that the period of signing the Concession Agreement be extended by 15 days. "18 April 1997 - NEDA approved the Concession Agreement. Again this is more than 3 months too late as the NEDA's decision should have been released on the 16th of January 1997 or fifteen days after it should have been submitted to it for review. "09 July 1997 - The Notice of Award was issued to PIATCO. Following the provisions of the IRR, the Notice of Award should have been issued fourteen days after NEDA's approval, or the 28th of January 1997. In any case, even if it were to be assumed that the release of NEDA's approval on the 18th of April was timely, the Notice of Award should have been issued on the 9th of May 1997. In both cases, therefore, the release of the Notice of Award occurred in a decidedly less than timely fashion." This chronology of events bespeaks an unmistakable disregard, if not disdain, by the persons in charge of the award process for the time limitations prescribed by the IRR. Their attitude flies in the face of this Court's solemn pronouncement in Republic v. Capulong,20 that "strict observance of the rules, regulations and guidelines of the bidding process is the only safeguard to a fair, honest and competitive public bidding." From the foregoing, the only conclusion that can possibly be drawn is that the BOT law and its IRR were repeatedly violated with unmitigated impunity - and by agents of government, no less!

On account of such violation, the award of the contract to Piatco, which undoubtedly gained time and benefited from the delays, must be deemed null and void from the beginning. Further Amendments Resulted in a Substantially Different Contract, Awarded Without Public Bidding But the violations and desecrations did not stop there. After the PBAC made its decision on December 11, 1996 to award the contract to Piatco, the latter negotiated changes to the Contract bidded out and ended up with what amounts to a substantially new contract without any public bidding. This Contract was subsequently further amended four more times through negotiation and without any bidding. Thus, the contract actually executed between Piatco and DOTC/MIAA on July 12, 1997 (the Concession Agreement or "CA") differed from the contract bidded out (the draft concession agreement or "DCA") in the following very significant respects: 1. The CA inserted stipulations creating a monopoly in favor of Piatco in the business of providing airport-related services for international airlines and passengers.21 2. The CA provided that government is to answer for Piatco's unpaid loans and debts (lumped under the term Attendant Liabilities) in the event Piatco fails to pay its senior lenders.22 3. The CA provided that in case of termination of the contract due to the fault of government, government shall pay all expenses that Piatco incurred for the project plus the appraised value of the Terminal.23 4. The CA imposed new and special obligations on government, including delivery of clean possession of the site for the terminal; acquisition of additional land at the government's expense for construction of road networks required by Piatco's approved plans and specifications; and assistance to Piatco in securing site utilities, as well as all necessary permits, licenses and authorizations.24 5. Where Section 3.02 of the DCA requires government to refrain from competing with the contractor with respect to the operation of NAIA Terminal III, Section 3.02(b) of the CA excludes and prohibits everyone, including government, from directly or indirectly competing with Piatco, with respect to the operation of, as well as operations in, NAIA Terminal III. Operations in is sufficiently broad to encompass all retail and other commercial business enterprises operating within Terminal III, inclusive of the businesses of providing various airport-related services to international airlines, within the scope of the prohibition. 6. Under Section 6.01 of the DCA, the following fees are subject to the written approval of MIAA: lease/rental charges, concession privilege fees for passenger services, food services, transportation utility concessions, groundhandling, catering and miscellaneous concession fees, porterage fees, greeter/well-wisher fees, carpark fees, advertising fees, VIP facilities fees and others. Moreover, adjustments to the groundhandling fees, rentals and porterage fees are permitted only once every two years and in accordance with a parametric formula, per DCA Section 6.03. However, the CA as executed with Piatco provides in Section 6.06 that all the aforesaid fees, rentals and charges may be adjusted without MIAA's approval or intervention. Neither are the adjustments to these fees and charges subject to or limited by any parametric formula.25 7. Section 1.29 of the DCA provides that the terminal fees, aircraft tacking fees, aircraft parking fees, check-in counter fees and other fees are to be quoted and paid in Philippine pesos. But per Section 1.33 of the CA, all the aforesaid fees save the terminal fee are denominated in US Dollars. 8. Under Section 8.07 of the DCA, the term attendant liabilities refers to liabilities pertinent to NAIA Terminal III, such as payment of lease rentals and performance of other obligations under the Land Lease Agreement; the obligations under the Tenant Agreements; and payment of all taxes, fees, charges and assessments of whatever kind that may be imposed on NAIA Terminal III or parts thereof. But in Section 1.06 of the

CA, Attendant Liabilities refers to unpaid debts of Piatco: "All amounts recorded and from time to time outstanding in the books of (Piatco) as owing to Unpaid Creditors who have provided, loaned or advanced funds actually used for the Project, including all interests, penalties, associated fees, charges, surcharges, indemnities, reimbursements and other related expenses, and further including amounts owed by [Piatco] to its suppliers, contractors and subcontractors." 9. Per Sections 8.04 and 8.06 of the DCA, government may, on account of the contractors breach, rescind the contract and select one of four options: (a) take over the terminal and assume all its attendant liabilities; (b) allow the contractor's creditors to assign the Project to another entity acceptable to DOTC/MIAA; (c) pay the contractor rent for the facilities and equipment the DOTC may utilize; or (d) purchase the terminal at a price established by independent appraisers. Depending on the option selected, government may take immediate possession and control of the terminal and its operations. Government will be obligated to compensate the contractor for the "equivalent or proportionate contract costs actually disbursed," but only where government is the one in breach of the contract. But under Section 8.06(a) of the CA, whether on account of Piatco's breach of contract or its inability to pay its creditors, government is obliged to either (a) take over Terminal III and assume all of Piatco's debts or (b) permit the qualified unpaid creditors to be substituted in place of Piatco or to designate a new operator. And in the event of government's breach of contract, Piatco may compel it to purchase the terminal at fair market value, per Section 8.06(b) of the CA. 10. Under the DCA, any delay by Piatco in the payment of the amounts due the government constitutes breach of contract. However, under the CA, such delay does not necessarily constitute breach of contract, since Piatco is permitted to suspend payments to the government in order to first satisfy the claims of its secured creditors, per Section 8.04(d) of the CA. It goes without saying that the amendment of the Contract bidded out (the DCA or draft concession agreement) - in such substantial manner, without any public bidding, and after the bidding process had been concluded on December 11, 1996 - is violative of public policy on public biddings, as well as the spirit and intent of the BOT Law. The whole point of going through the public bidding exercise was completely lost. Its very rationale was totally subverted by permitting Piatco to amend the contract for which public bidding had already been concluded. Competitive bidding aims to obtain the best deal possible by fostering transparency and preventing favoritism, collusion and fraud in the awarding of contracts. That is the reason why procedural rules pertaining to public bidding demand strict observance.26 In a relatively early case, Caltex v. Delgado Brothers,27 this Court made it clear that substantive amendments to a contract for which a public bidding has already been finished should only be awarded after another public bidding: "The due execution of a contract after public bidding is a limitation upon the right of the contracting parties to alter or amend it without another public bidding, for otherwise what would a public bidding be good for if after the execution of a contract after public bidding, the contracting parties may alter or amend the contract, or even cancel it, at their will? Public biddings are held for the protection of the public, and to give the public the best possible advantages by means of open competition between the bidders. He who bids or offers the best terms is awarded the contract subject of the bid, and it is obvious that such protection and best possible advantages to the public will disappear if the parties to a contract executed after public bidding may alter or amend it without another previous public bidding."28 The aforementioned case dealt with the unauthorized amendment of a contract executed after public bidding; in the situation before us, the amendments were made also after the bidding, but prior to execution. Be that as it may, the same rationale underlying Caltex applies to the present situation with equal force. Allowing the winning bidder to renegotiate the contract for which the bidding process has ended is tantamount to permitting it to put in anything it wants. Here, the winning bidder (Piatco) did not even bother to wait until after actual execution of the contract

before rushing to amend it. Perhaps it believed that if the changes were made to a contract already won through bidding (DCA) instead of waiting until it is executed, the amendments would not be noticed or discovered by the public. In a later case, Mata v. San Diego,29 this Court reiterated its ruling as follows: "It is true that modification of government contracts, after the same had been awarded after a public bidding, is not allowed because such modification serves to nullify the effects of the bidding and whatever advantages the Government had secured thereby and may also result in manifest injustice to the other bidders. This prohibition, however, refers to a change in vital and essential particulars of the agreement which results in a substantially new contract." Piatco's counter-argument may be summed up thus: There was nothing in the 1994 IRR that prohibited further negotiations and eventual amendments to the DCA even after the bidding had been concluded. In fact, PBAC Bid Bulletin No. 3 states: "[A]mendments to the Draft Concession Agreement shall be issued from time to time. Said amendments will only cover items that would not materially affect the preparation of the proponent's proposal." I submit that accepting such warped argument will result in perverting the policy underlying public bidding. The BOT Law cannot be said to allow the negotiation of contractual stipulations resulting in a substantially new contract after the bidding process and price challenge had been concluded. In fact, the BOT Law, in recognition of the time, money and effort invested in an unsolicited proposal, accords its originator the privilege of matching the challenger's bid. Section 4-A of the BOT Law specifically refers to a "lower price proposal" by a competing bidder; and to the right of the original proponent "to match the price" of the challenger. Thus, only the price proposals are in play. The terms, conditions and stipulations in the contract for which public bidding has been concluded are understood to remain intact and not be subject to further negotiation. Otherwise, the very essence of public bidding will be destroyed - there will be no basis for an exact comparison between bids. Moreover, Piatco misinterpreted the meaning behind PBAC Bid Bulletin No. 3. The phrase amendments . . . from time to time refers only to those amendments to the draft concession agreement issued by the PBAC prior to the submission of the price challenge; it certainly does not include or permit amendments negotiated for and introduced after the bidding process, has been terminated. Piatco's Concession Agreement Was Further Amended, (ARCA) Again Without Public Bidding Not satisfied with the Concession Agreement, Piatco - once more without bothering with public bidding - negotiated with government for still more substantial changes. The result was the Amended and Restated Concession Agreement (ARCA) executed on November 26, 1998. The following changes were introduced: 1. The definition of Attendant Liabilities was further amended with the result that the unpaid loans of Piatco, for which government may be required to answer, are no longer limited to only those loans recorded in Piatco's books or loans whose proceeds were actually used in the Terminal III project.30 2. Although the contract may be terminated due to breach by Piatco, it will not be liable to pay the government any Liquidated Damages if a new operator is designated to take over the operation of the terminal.31 3. The Liquidated Damages which government becomes liable for in case of its breach of contract were substantially increased.32 4. Government's right to appoint a comptroller for Piatco in case the latter encounters liquidity problems was deleted.33

5. Government is made liable for Incremental and Consequential Costs and Losses in case it fails to comply or cause any third party under its direct or indirect control to comply with the special obligations imposed on government.34 6. The insurance policies obtained by Piatco covering the terminal are now required to be assigned to the Senior Lenders as security for the loans; previously, their proceeds were to be used to repair and rehabilitate the facility in case of damage.35 7. Government bound itself to set the initial rate of the terminal fee, to be charged when Terminal III begins operations, at an amount higher than US$20.36 8. Government waived its defense of the illegality of the contract and even agreed to be liable to pay damages to Piatco in the event the contract was declared illegal.37 9. Even though government may be entitled to terminate the ARCA on account of breach by Piatco, government is still liable to pay Piatco the appraised value of Terminal III or the Attendant Liabilities, if the termination occurs before the In-Service Date.38 This condition contravenes the BOT Law provision on termination compensation. 10. Government is obligated to take the administrative action required for Piatco's imposition, collection and application of all Public Utility Revenues.39 No such obligation existed previously. 11. Government is now also obligated to perform and cause other persons and entities under its direct or indirect control to perform all acts necessary to perfect the security interests to be created in favor of Piatco's Senior Lenders.40 No such obligation existed previously. 12. DOTC/MIAA's right of intervention in instances where Piatco's Non-Public Utility Revenues become exorbitant or excessive has been removed.41 13. The illegality and unenforceability of the ARCA or any of its material provisions was made an event of default on the part of government only, thus constituting a ground for Piatco to terminate the ARCA.42 14. Amounts due from and payable by government under the contract were made payable on demand - net of taxes, levies, imposts, duties, charges or fees of any kind except as required by law.43 15. The Parametric Formula in the contract, which is utilized to compute for adjustments/increases to the public utility revenues (i.e., aircraft parking and tacking fees, check-in counter fee and terminal fee), was revised to permit Piatco to input its more costly short-term borrowing rates instead of the longer-terms rates in the computations for adjustments, with the end result that the changes will redound to its greater financial benefit. 16. The Certificate of Completion simply deleted the successful performance-testing of the terminal facility in accordance with defined performance standards as a pre-condition for government's acceptance of the terminal facility.44 In sum, the foregoing revisions and amendments as embodied in the ARCA constitute very material alterations of the terms and conditions of the CA, and give further manifestly undue advantage to Piatco at the expense of government. Piatco claims that the changes to the CA were necessitated by the demands of its foreign lenders. However, no proof whatsoever has been adduced to buttress this claim. In any event, it is quite patent that the sum total of the aforementioned changes resulted in drastically weakening the position of government to a degree that seems quite excessive, even from the standpoint of a businessperson who regularly transacts with banks and foreign lenders, is familiar with their mind-set, and understands what motivates them. On the other

hand, whatever it was that impelled government officials concerned to accede to those grossly disadvantageous changes, I can only hazard a guess. There is no question in my mind that the ARCA was unauthorized and illegal for lack of public bidding and for being patently disadvantageous to government. The Three Supplements Imposed New Obligations on Government, Also Without Prior Public Bidding After Piatco had managed to breach the protective rampart of public bidding, it recklessly went on a rampage of further assaults on the ARCA. The First Supplement Is as Void as the ARCA In the First Supplement ("FS") executed on August 27, 1999, the following changes were made to the ARCA: 1. The amounts payable by Piatco to government were reduced by allowing additional exceptions to the Gross Revenues in which government is supposed to participate.45 2. Made part of the properties which government is obliged to construct and/or maintain and keep in good repair are (a) the access road connecting Terminals II and III - the construction of this access road is the obligation of Piatco, in lieu of its obligation to construct an Access Tunnel connecting Terminals II and III; and (b) the taxilane and taxiway - these are likewise part of Piatco's obligations, since they are part and parcel of the project as described in Clause 1.3 of the Bid Documents .46 3. The MIAA is obligated to provide funding for the maintenance and repair of the airports and facilities owned or operated by it and by third persons under its control. It will also be liable to Piatco for the latter's losses, expenses and damages as well as liability to third persons, in case MIAA fails to perform such obligations. In addition, MIAA will also be liable for the incremental and consequential costs of the remedial work done by Piatco on account of the former's default.47 4. The FS also imposed on government ten (10) "Additional Special Obligations," including the following: (a) Working for the removal of the general aviation traffic from the NAIA airport complex48 (b) Providing through MIAA the land required by Piatco for the taxilane and one taxiway at no cost to Piatco49 (c) Implementing the government's existing storm drainage master plan50 (d) Coordinating with DPWH the financing, the implementation and the completion of the following works before the In-Service Date: three left-turning overpasses (EDSA to Tramo St., Tramo to Andrews Ave., and Manlunas Road to Sales Ave.);51 and a road upgrade and improvement program involving widening, repair and resurfacing of Sales Road, Andrews Avenue and Manlunas Road; improvement of Nichols Interchange; and removal of squatters along Andrews Avenue.52 (e) Dealing directly with BCDA and the Phil. Air Force in acquiring additional land or right of way for the road upgrade and improvement program. 53 5. Government is required to work for the immediate reversion to MIAA of the Nayong Pilipino National Park.54

6. Government's share in the terminal fees collected was revised from a flat rate of P180 to 36 percent thereof; together with government's percentage share in the gross revenues of Piatco, the amount will be remitted to government in pesos instead of US dollars.55 This amendment enables Piatco to benefit from the further erosion of the pesodollar exchange rate, while preventing government from building up its foreign exchange reserves. 7. All payments from Piatco to government are now to be invoiced to MIAA, and payments are to accrue to the latter's exclusive benefit.56 This move appears to be in support of the funds MIAA advanced to DPWH. I must emphasize that the First Supplement is void in two respects. First, it is merely an amendment to the ARCA, upon which it is wholly dependent; therefore, since the ARCA is void, inexistent and not capable of being ratified or amended, it follows that the FS too is void, inexistent and inoperative. Second, even assuming arguendo that the ARCA is somehow remotely valid, nonetheless the FS, in imposing significant new obligations upon government, altered the fundamental terms and stipulations of the ARCA, thus necessitating a public bidding all over again. That the FS was entered into sans public bidding renders it utterly void and inoperative. The Second Supplement Is Similarly Void and Inexistent The Second Supplement ("SS") was executed between the government and Piatco on September 4, 2000. It calls for Piatco, acting not as concessionaire of NAIA Terminal III but as a public works contractor, to undertake - in the government's stead - the clearing, removal, demolition and disposal of improvements, subterranean obstructions and waste materials at the project site.57 The scope of the works, the procedures involved, and the obligations of the contractor are provided for in Parts II and III of the SS. Section 4.1 sets out the compensation to be paid, listing specific rates per cubic meter of materials for each phase of the work - excavation, leveling, removal and disposal, backfilling and dewatering. The amounts collectible by Piatco are to be offset against the Annual Guaranteed Payments it must pay government. Though denominated as Second Supplement, it was nothing less than an entirely new public works contract. Yet it, too, did not undergo any public bidding, for which reason it is also void and inoperative. Not surprisingly, Piatco had to subcontract the works to a certain Wintrack Builders, a firm reputedly owned by a former high-ranking DOTC official. But that is another story altogether. The Third Supplement Is Likewise Void and Inexistent The Third Supplement ("TS"), executed between the government and Piatco on June 22, 2001, passed on to the government certain obligations of Piatco as Terminal III concessionaire, with respect to the surface road connecting Terminals II and III. By way of background, at the inception of and forming part of the NAIA Terminal III project was the proposed construction of an access tunnel crossing Runway 13/31, which. would connect Terminal III to Terminal II. The Bid Documents in Section 4.1.2.3[B][i] declared that the said access tunnel was subject to further negotiation; but for purposes of the bidding, the proponent should submit a bid for it as well. Therefore, the tunnel was supposed to be part and parcel of the Terminal III project. However, in Section 5 of the First Supplement, the parties declared that the access tunnel was not economically viable at that time. In lieu thereof, the parties agreed that a surface access road (now called the T2-T3 Road) was to be constructed by Piatco to connect the two terminals. Since it was plainly in substitution of the tunnel, the surface road construction should likewise be considered part and parcel of the same project, and therefore part of Piatco's obligation as well. While the access tunnel was estimated to cost about P800 million, the surface road would have a price tag in the vicinity of about P100 million, thus producing significant savings for Piatco.

Yet, the Third Supplement, while confirming that Piatco would construct the T2-T3 Road, nevertheless shifted to government some of the obligations pertaining to the former, as follows: 1. Government is now obliged to remove at its own expense all tenants, squatters, improvements and/or waste materials on the site where the T2-T3 road is to be constructed.58 There was no similar obligation on the part of government insofar as the access tunnel was concerned. 2. Should government fail to carry out its obligation as above described, Piatco may undertake it on government's behalf, subject to the terms and conditions (including compensation payments) contained in the Second Supplement.59 3. MIAA will answer for the operation, maintenance and repair of the T2-T3 Road.60 The TS depends upon and is intended to supplement the ARCA as well as the First Supplement, both of which are void and inexistent and not capable of being ratified or amended. It follows that the TS is likewise void, inexistent and inoperative. And even if, hypothetically speaking, both ARCA and FS are valid, still, the Third Supplement - imposing as it does significant new obligations upon government - would in effect alter the terms and stipulations of the ARCA in material respects, thus necessitating another public bidding. Since the TS was not subjected to public bidding, it is consequently utterly void as well. At any rate, the TS created new monetary obligations on the part of government, for which there were no prior appropriations. Hence it follows that the same is void ab initio. In patiently tracing the progress of the Piatco contracts from their inception up to the present, I noted that the whole process was riddled with significant lapses, if not outright irregularity and wholesale violations of law and public policy. The rationale of beginning at the beginning, so to speak, will become evident when the question of what to do with the five Piatco contracts is discussed later on. In the meantime, I shall take up specific, provisions or changes in the contracts and highlight the more prominent objectionable features. Government Directly Guarantees Piatco Debts Certainly the most discussed provision in the parties' arguments is the one creating an unauthorized, direct government guarantee of Piatco's obligations in favor of the lenders. Section 4-A of the BOT Law as amended states that unsolicited proposals, such as the NAIA Terminal III Project, may be accepted by government provided inter alia that no direct government guarantee, subsidy or equity is required. In short, such guarantee is prohibited in unsolicited proposals. Section 2(n) of the same legislation defines direct government guarantee as "an agreement whereby the government or any of its agencies or local government units (will) assume responsibility for the repayment of debt directly incurred by the project proponent in implementing the project in case of a loan default." Both the CA and the ARCA have provisions that undeniably create such prohibited government guarantee. Section 4.04 (c)(iv) to (vi) of the ARCA, which is similar to Section 4.04 of the CA, provides thus: "(iv) that if Concessionaire is in default under a payment obligation owed to the Senior Lenders, and as a result thereof the Senior Lenders have become entitled to accelerate the Senior Loans, the Senior Lenders shall have the right to notify GRP of the same . . .; (v) . . . the Senior Lenders may after written notification to GRP, transfer the Concessionaire's rights and obligations to a transferee . . .; (vi) if the Senior Lenders . . . are unable to . . . effect a transfer . . ., then GRP and the Senior Lenders shall endeavor . . . to enter into any other arrangement relating to the Development Facility . . . If no agreement relating to the Development Facility is arrived at by GRP and the Senior Lenders within the said 180-day period, then at the end

thereof the Development Facility shall be transferred by the Concessionaire to GRP or its designee and GRP shall make a termination payment to Concessionaire equal to the Appraised Value (as hereinafter defined) of the Development Facility or the sum of the Attendant Liabilities, if greater. . . ." In turn, the term Attendant Liabilities is defined in Section 1.06 of the ARCA as follows: "Attendant Liabilities refer to all amounts in each case supported by verifiable evidence from time to time owed or which may become, owing by Concessionaire to Senior Lenders or any other persons or entities who have provided, loaned or advanced funds or provided financial facilities to Concessionaire for the Project, including, without limitation, all principal, interest, associated fees, charges, reimbursements, and other related expenses (including the fees, charges and expenses of any agents or trustees of such persons or entities), whether payable at maturity, by acceleration or otherwise, and further including amounts owed by Concessionaire to its professional consultants and advisers, suppliers, contractors and sub-contractors." Government's agreement to pay becomes effective in the event of a default by Piatco on any of its loan obligations to the Senior Lenders, and the amount to be paid by government is the greater of either the Appraised Value of Terminal III or the aggregate amount of the moneys owed by Piatco - whether to the Senior Lenders or to other entities, including its suppliers, contractors and subcontractors. In effect, therefore, this agreement already constitutes the prohibited assumption by government of responsibility for repayment of Piatco's debts in case of a loan default. In fine, a direct government guarantee. It matters not that there is a roundabout procedure prescribed by Section 4.04(c)(iv), (v) and (vi) that would require, first, an attempt (albeit unsuccessful) by the Senior Lenders to transfer Piatco's rights to a transferee of their choice; and, second, an effort (equally unsuccessful) to "enter into any other arrangement" with the government regarding the Terminal III facility, before government is required to make good on its guarantee. What is abundantly clear is the fact that, in the devious labyrinthine process detailed in the aforesaid section, it is entirely within the Senior Lenders' power, prerogative and control - exercisable via a mere refusal or inability to agree upon "a transferee" or "any other arrangement" regarding the terminal facility - to push the process forward to the ultimate contractual cul-de-sac, wherein government will be compelled to abjectly surrender and make good on its guarantee of payment. Piatco also argues that there is no proviso requiring government to pay the Senior Lenders in the event of Piatco's default. This is literally true, in the sense that Section 4.04(c)(vi) of ARCA speaks of government making the termination payment to Piatco, not to the lenders. However, it is almost a certainty that the Senior Lenders will already have made Piatco sign over to them, ahead of time, its right to receive such payments from government; and/or they may already have had themselves appointed its attorneys-in-fact for the purpose of collecting and receiving such payments. Nevertheless, as petitioners-in-intervention pointed out in their Memorandum,61 the termination payment is to be made to Piatco, not to the lenders; and there is no provision anywhere in the contract documents to prevent it from diverting the proceeds to its own benefit and/or to ensure that it will necessarily use the same to pay off the Senior Lenders and other creditors, in order to avert the foreclosure of the mortgage and other liens on the terminal facility. Such deficiency puts the interests of government at great risk. Indeed, if the unthinkable were to happen, government would be paying several hundreds of millions of dollars, but the mortgage liens on the facility may still be foreclosed by the Senior Lenders just the same. Consequently, the Piatco contracts are also objectionable for grievously failing to adequately protect government's interests. More accurately, the contracts would consistently weaken and do away with protection of government interests. As such, they are therefore grossly lopsided in favor of Piatco and/or its Senior Lenders. While on this subject, it is well to recall the earlier discussion regarding a particularly noticeable alteration of the concept of "Attendant Liabilities." In Section 1.06 of the CA defining the term, the Piatco debts to be assumed/paid by government were qualified by the phrases recorded and

from time to time outstanding in the books of the Concessionaire and actually used for the project. These phrases were eliminated from the ARCA's definition of Attendant Liabilities. Since no explanation has been forthcoming from Piatco as to the possible justification for such a drastic change, the only conclusion, possible is that it intends to have all of its debts covered by the guarantee, regardless of whether or not they are disclosed in its books. This has particular reference to those borrowings which were obtained in violation of the loan covenants requiring Piatco to maintain a minimum 70:30 debt-to-equity ratio, and even if the loan proceeds were not actually used for the project itself. This point brings us back to the guarantee itself. In Section 4.04(c)(vi) of ARCA, the amount which government has guaranteed to pay as termination payment is the greater of either (i) the Appraised Value of the terminal facility or (ii) the aggregate of the Attendant Liabilities. Given that the Attendant Liabilities may include practically any Piatco debt under the sun, it is highly conceivable that their sum may greatly exceed the appraised value of the facility, and government may end up paying very much more than the real worth of Terminal III. (So why did government have to bother with public bidding anyway?) In the final analysis, Section 4.04(c)(iv) to (vi) of the ARCA is diametrically at odds with the spirit and the intent of the BOT Law. The law meant to mobilize private resources (the private sector) to take on the burden and the risks of financing the construction, operation and maintenance of relevant infrastructure and development projects for the simple reason that government is not in a position to do so. By the same token, government guarantee was prohibited, since it would merely defeat the purpose and raison d'être of a build-operate-and-transfer project to be undertaken by the private sector. To the extent that the project proponent is able to obtain loans to fund the project, those risks are shared between the project proponent on the one hand, and its banks and other lenders on the other. But where the proponent or its lenders manage to cajol or coerce the government into extending a guarantee of payment of the loan obligations, the risks assumed by the lenders are passed right back to government. I cannot understand why, in the instant case, government cheerfully assented to re-assuming the risks of the project when it gave the prohibited guarantee and thus simply negated the very purpose of the BOT Law and the protection it gives the government. Contract Termination Provisions in the Piatco Contracts Are Void The BOT Law as amended provides for contract termination as follows: "Sec. 7. Contract Termination. - In the event that a project is revoked, cancelled or terminated by the government through no fault of the project proponent or by mutual agreement, the Government shall compensate the said project proponent for its actual expenses incurred in the project plus a reasonable rate of return thereon not exceeding that stated in the contract as of the date of such revocation, cancellation or termination: Provided, That the interest of the Government in this instances [sic] shall be duly insured with the Government Service Insurance System or any other insurance entity duly accredited by the Office of the Insurance Commissioner: Provided, finally, That the cost of the insurance coverage shall be included in the terms and conditions of the bidding referred to above. "In the event that the government defaults on certain major obligations in the contract and such failure is not remediable or if remediable shall remain unremedied for an unreasonable length of time, the project proponent/contractor may, by prior notice to the concerned national government agency or local government unit specifying the turn-over date, terminate the contract. The project proponent/contractor shall be reasonably compensated by the Government for equivalent or proportionate contract cost as defined in the contract." The foregoing statutory provision in effect provides for the following limited instances when termination compensation may be allowed:

1. Termination by the government through no fault of the project proponent 2. Termination upon the parties' mutual agreement 3. Termination by the proponent due to government's default on certain major contractual obligations To emphasize, the law does not permit compensation for the project proponent when contract termination is due to the proponent's own fault or breach of contract. This principle was clearly violated in the Piatco Contracts. The ARCA stipulates that government is to pay termination compensation to Piatco even when termination is initiated by government for the following causes: "(i) Failure of Concessionaire to finish the Works in all material respects in accordance with the Tender Design and the Timetable; (ii) Commission by Concessionaire of a material breach of this Agreement . . .; (iii) . . . a change in control of Concessionaire arising from the sale, assignment, transfer or other disposition of capital stock which results in an ownership structure violative of statutory or constitutional limitations; (iv) A pattern of continuing or repeated non-compliance, willful violation, or nonperformance of other terms and conditions hereof which is hereby deemed a material breach of this Agreement . . ."62 As if that were not bad enough, the ARCA also inserted into Section 8.01 the phrase "Subject to Section 4.04." The effect of this insertion is that in those instances where government may terminate the contract on account of Piatco's breach, and it is nevertheless required under the ARCA to make termination compensation to Piatco even though unauthorized by law, such compensation is to be equivalent to the payment amount guaranteed by government - either a) the Appraised Value of the terminal facility or (b) the aggregate of the Attendant Liabilities, whichever amount is greater! Clearly, this condition is not in line with Section 7 of the BOT Law. That provision permits a project proponent to recover the actual expenses it incurred in the prosecution of the project plus a reasonable rate of return not in excess of that provided in the contract; or to be compensated for the equivalent or proportionate contract cost as defined in the contract, in case the government is in default on certain major contractual obligations. Furthermore, in those instances where such termination compensation is authorized by the BOT Law, it is indispensable that the interest of government be duly insured. Section 5.08 the ARCA mandates insurance coverage for the terminal facility; but all insurance policies are to be assigned, and all proceeds are payable, to the Senior Lenders. In brief, the interest being secured by such coverage is that of the Senior Lenders, not that of government. This can hardly be considered compliance with law. In essence, the ARCA provisions on termination compensation result in another unauthorized government guarantee, this time in favor of Piatco. A Prohibited Direct Government Subsidy, Which at the Same Time Is an Assault on the National Honor Still another contractual provision offensive to law and public policy is Section 8.01(d) of the ARCA, which is a "bolder and badder" version of Section 8.04(d) of the CA. It will be recalled that Section 4-A of the BOT Law as amended prohibits not only direct government guarantees, but likewise a direct government subsidy for unsolicited proposals. Section 13.2. b. iii. of the 1999 IRR defines a direct government subsidy as encompassing "an

agreement whereby the Government . . . will . . . postpone any payments due from the proponent." Despite the statutory ban, Section 8.01 (d) of the ARCA provides thus: "(d) The provisions of Section 8.01(a) notwithstanding, and for the purpose of preventing a disruption of the operations in the Terminal and/or Terminal Complex, in the event that at any time Concessionaire is of the reasonable opinion that it shall be unable to meet a payment obligation owed to the Senior Lenders, Concessionaire shall give prompt notice to GRP, through DOTC/MIAA and to the Senior Lenders. In such circumstances, the Senior Lenders (or the Senior Lenders' Representative) may ensure that after making provision for administrative expenses and depreciation, the cash resources of Concessionaire shall first be used and applied to meet all payment obligations owed to the Senior Lenders. Any excess cash, after meeting such payment obligations, shall be earmarked for the payment of all sums payable by Concessionaire to GRP under this Agreement. If by reason of the foregoing GRP should be unable to collect in full all payments due to GRP under this Agreement, then the unpaid balance shall be payable within a 90-day grace period counted from the relevant due date, with interest per annum at the rate equal to the average 91-day Treasury Bill Rate as of the auction date immediately preceding the relevant due date. If payment is not effected by Concessionaire within the grace period, then a spread of five (5%) percent over the applicable 91-day Treasury Bill Rate shall be added on the unpaid amount commencing on the expiry of the grace period up to the day of full payment. When the temporary illiquidity of Concessionaire shall have been corrected and the cash position of Concessionaire should indicate its ability to meet its maturing obligations, then the provisions set forth under this Section 8.01(d) shall cease to apply. The foregoing remedial measures shall be applicable only while there remains unpaid and outstanding amounts owed to the Senior Lenders." (Emphasis supplied) By any manner of interpretation or application, Section 8.01(d) of the ARCA clearly mandates the indefinitepostponement of payment of all of Piatco's obligations to the government, in order to ensure that Piatco's obligations to the Senior Lenders are paid in full first. That is nothing more or less than the direct government subsidy prohibited by the BOT Law and the IRR. The fact that Piatco will pay interest on the unpaid amounts owed to government does not change the situation or render the prohibited subsidy any less unacceptable. But beyond the clear violations of law, there are larger issues involved in the ARCA. Earlier, I mentioned that Section 8.01(d) of the ARCA completely eliminated the proviso in Section 8.04(d) of the CA which gave government the right to appoint a financial controller to manage the cash position of Piatco during situations of financial distress. Not only has government been deprived of any means of monitoring and managing the situation; worse, as can be seen from Section 8.01(d) above-quoted, the Senior Lenders have effectively locked in on the right to exercise financial controllership over Piatco and to allocate its cash resources to the payment of all amounts owed to the Senior Lenders before allowing any payment to be made to government. In brief, this particular provision of the ARCA has placed in the hands of foreign lenders the power and the authority to determine how much (if at all) and when the Philippine government (as grantor of the franchise) may be allowed to receive from Piatco. In that situation, government will be at the mercy of the foreign lenders. This is a situation completely contrary to the rationale of the BOT Law and to public policy. The aforesaid provision rouses mixed emotions - shame and disgust at the parties' (especially the government officials') docile submission and abject servitude and surrender to the imperious and excessive demands of the foreign lenders, on the one hand; and vehement outrage at the affront to the sovereignty of the Republic and to the national honor, on the other. It is indeed time to put an end to such an unbearable, dishonorable situation. The Piatco Contracts Unarguably Violate Constitutional Injunctions

I will now discuss the manner in which the Piatco Contracts offended the Constitution. The Exclusive Right Granted to Piatco to Operate a Public Utility Is Prohibited by the Constitution While Section 2.02 of the ARCA spoke of granting to Piatco "a franchise to operate and maintain the Terminal Complex," Section 3.02(a) of the same ARCA granted to Piatco, for the entire term of the concession agreement, "the exclusive right to operate a commercial international passenger terminal within the Island of Luzon" with the exception of those three terminals already existing63 at the time of execution of the ARCA. Section 11 of Article XII of the Constitution prohibits the grant of a "franchise, certificate, or any other form of authorization for the operation of a public utility" that is "exclusive in character." In its Opinion No. 078, Series of 1995, the Department of justice held that "the NAIA Terminal III which . . . is a 'terminal for public use' is a public utility." Consequently, the constitutional prohibition against the exclusivity of a franchise applies to the franchise for the operation of NAIA Terminal III as well. What was granted to Piatco was not merely a franchise, but an "exclusive right" to operate an international passenger terminal within the "Island of Luzon." What this grant effectively means is that the government is now estopped from exercising its inherent power to award any other person another franchise or a right to operate such a public utility, in the event public interest in Luzon requires it. This restriction is highly detrimental to government and to the public interest. Former Secretary of Justice Hernando B. Perez expressed this point well in his Memorandum for the President dated 21 May 2002: "Section 3.02 on 'Exclusivity' "This provision gives to PIATCO (the Concessionaire) the exclusive right to operate a commercial international airport within the Island of Luzon with the exception of those already existing at the time of the execution of the Agreement, such as the airports at Subic, Clark and Laoag City. In the case of the Clark International Airport, however, the provision restricts its operation beyond its design capacity of 850,000 passengers per annum and the operation of new terminal facilities therein until after the new NAIA Terminal III shall have consistently reached or exceeded its design capacity of ten (10) million passenger capacity per year for three (3) consecutive years during the concession period. "This is an onerous and disadvantageous provision. It effectively grants PIATCO a monopoly in Luzon and ties the hands of government in the matter of developing new airports which may be found expedient and necessary in carrying out any future plan for an inter-modal transportation system in Luzon. "Additionally, it imposes an unreasonable restriction on the operation of the Clark International Airport which could adversely affect the operation and development of the Clark Special Economic Zone to the economic prejudice of the local constituencies that are being benefited by its operation." (Emphasis supplied) While it cannot be gainsaid that an enterprise that is a public utility may happen to constitute a monopoly on account of the very nature of its business and the absence of competition, such a situation does not however constitute justification to violate the constitutional prohibition and grant an exclusive franchise or exclusive right to operate a public utility. Piatco's contention that the Constitution does not actually prohibit monopolies is beside the point. As correctly argued,64 the existence of a monopoly by a public utility is a situation created by circumstances that do not encourage competition. This situation is different from the grant of a franchise to operate a public utility, a privilege granted by government. Of course, the grant of a franchise may result in a monopoly. But making such franchise exclusive is what is expressly proscribed by the Constitution.

Actually, the aforementioned Section 3.02 of the ARCA more than just guaranteed exclusivity; it also guaranteed that the government will not improve or expand the facilities at Clark - and in fact is required to put a cap on the latter's operations - until after Terminal III shall have been operated at or beyond its peak capacity for three consecutive years.65 As counsel for public respondents pointed out, in the real world where the rate of influx of international passengers can fluctuate substantially from year to year, it may take many years before Terminal III sees three consecutive years' operations at peak capacity. The Diosdado Macapagal International Airport may thus end up stagnating for a long time. Indeed, in order to ensure greater profits for Piatco, the economic progress of a region has had to be sacrificed. The Piatco Contracts Violate the Time Limitation on Franchises Section 11 of Article XII of the Constitution also provides that "no franchise, certificate or any other form of authorization for the operation of a public utility shall be . . . for a longer period than fifty years." After all, a franchise held for an unreasonably long time would likely give rise to the same evils as a monopoly. The Piatco Contracts have come up with an innovative way to circumvent the prohibition and obtain an extension. This fact can be gleaned from Section 8.03(b) of the ARCA, which I quote thus: "Sec. 8.03. Termination Procedure and Consequences of Termination. a) x x x

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b) In the event the Agreement is terminated pursuant to Section 8.01 (b) hereof, Concessionaire shall be entitled to collect the Liquidated Damages specified in Annex 'G'. The full payment by GRP to Concessionaire of the Liquidated Damages shall be a condition precedent to the transfer by Concessionaire to GRP of the Development Facility. Prior to the full payment of the Liquidated Damages, Concessionaire shall to the extent practicable continue to operate the Terminal and the Terminal Complex and shall be entitled to retain and withhold all payments to GRP for the purpose of offsetting the same against the Liquidated Damages. Upon full payment of the Liquidated Damages, Concessionaire shall immediately transfer the Development Facility to GRP on 'as-is-where-is' basis." The aforesaid easy payment scheme is less beneficial than it first appears. Although it enables government to avoid having to make outright payment of an obligation that will likely run into billions of pesos, this easy payment plan will nevertheless cost government considerable loss of income, which it would earn if it were to operate Terminal III by itself. Inasmuch as payments to the concessionaire (Piatco) will be on "installment basis," interest charges on the remaining unpaid balance would undoubtedly cause the total outstanding balance to swell. Piatco would thus be entitled to remain in the driver's seat and keep operating the terminal for an indefinite length of time. The Contracts Create Two Monopolies for Piatco By way of background, two monopolies were actually created by the Piatco contracts. The first and more obvious one refers to the business of operating an international passenger terminal in Luzon, the business end of which involves providing international airlines with parking space for their aircraft, and airline passengers with the use of departure and arrival areas, check-in counters, information systems, conveyor systems, security equipment and paraphernalia, immigrations and customs processing areas; and amenities such as comfort rooms, restaurants and shops. In furtherance of the first monopoly, the Piatco Contracts stipulate that the NAIA Terminal III will be the only facility to be operated as an international passenger terminal; 66 that NAIA Terminals I and II will no longer be operated as such;67 and that no one (including the government) will be allowed to compete with Piatco in the operation of an international passenger terminal in the NAIA Complex.68 Given that, at this time, the government and Piatco are the only ones engaged

in the business of operating an international passenger terminal, I am not acutely concerned with this particular monopolistic situation. There was however another monopoly within the NAIA created by the subject contracts for Piatco - in the business of providing international airlines with the following: groundhandling, inflight catering, cargo handling, and aircraft repair and maintenance services. These are lines of business activity in which are engaged many service providers (including the petitioners-inintervention), who will be adversely affected upon full implementation of the Piatco Contracts, particularly Sections 3.01(d)69 and (e)70 of both the ARCA and the CA. On the one hand, Section 3.02(a) of the ARCA makes Terminal III the only international passenger terminal at the NAIA, and therefore the only place within the NAIA Complex where the business of providing airport-related services to international airlines may be conducted. On the other hand, Section 3.01(d) of the ARCA requires government, through the MIAA, not to allow service providers with expired MIAA contracts to renew or extend their contracts to render airport-related services to airlines. Meanwhile, Section 3.01(e) of the ARCA requires government, through the DOTC and MIAA, not to allow service providers - those with subsisting concession agreements for services and operations being conducted at Terminal I - to carry over their concession agreements, services and operations to Terminal III, unless they first enter into a separate agreement with Piatco. The aforementioned provisions vest in Piatco effective and exclusive control over which service provider may and may not operate at Terminal III and render the airport-related services needed by international airlines. It thereby possesses the power to exclude competition. By necessary implication, it also has effective control over the fees and charges that will be imposed and collected by these service providers. This intention is exceedingly clear in the declaration by Piatco that it is "completely within its rights to exclude any party that it has not contracted with from NAIA Terminal III."71 Worse, there is nothing whatsoever in the Piatco Contracts that can serve to restrict, control or regulate the concessionaire's discretion and power to reject any service provider and/or impose any term or condition it may see fit in any contract it enters into with a service provider. In brief, there is no safeguard whatsoever to ensure free and fair competition in the service-provider sector. In the meantime, and not surprisingly, Piatco is first in line, ready to exploit the unique business opportunity. It announced72 that it has accredited three groundhandlers for Terminal III. Aside from the Philippine Airlines, the other accredited entities are the Philippine Airport and Ground Services Globeground, Inc. ("PAGSGlobeground") and the Orbit Air Systems, Inc. ("Orbit"). PAGSGlobeground is a wholly-owned subsidiary of the Philippine Airport and Ground Services, Inc. or PAGS,73 while Orbit is a wholly-owned subsidiary of Friendship Holdings, Inc.,74 which is in turn owned 80 percent by PAGS.75 PAGS is a service provider owned 60 percent by the Cheng Family;76 it is a stockholder of 35 percent of Piatco77 and is the latter's designated contractor-operator for NAIA Terminal III.78 Such entry into and domination of the airport-related services sector appear to be very much in line with the following provisions contained in the First Addendum to the Piatco Shareholders Agreement,79 executed on July 6, 1999, which appear to constitute a sort of master plan to create a monopoly and combinations in restraint of trade: "11. The Shareholders shall ensure: a. x x x

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x x x.;

b. That (Phil. Airport and Ground Services, Inc.) PAGS and/or its designated Affiliates shall, at all times during the Concession Period, be exclusively authorized by (PIATCO) to engage in the provision of ground-handling, catering and fueling services within the Terminal Complex.

c. That PAIRCARGO and/or its designated Affiliate shall, during the Concession Period, be the only entities authorized to construct and operate a warehouse for all cargo handling and related services within the Site." Precisely, proscribed by our Constitution are the monopoly and the restraint of trade being fostered by the Piatco Contracts through the erection of barriers to the entry of other service providers into Terminal III. In Tatad v. Secretary of the Department of Energy,80 the Court ruled: ". . . [S]ection 19 of Article XII of the Constitution . . . mandates: 'The State shall regulate or prohibit monopolies when the public interest so requires. No combinations in restraint of trade or unfair competition shall be allowed.' "A monopoly is a privilege or peculiar advantage vested in one or more persons or companies, consisting in the exclusive right or power to carry on a particular business or trade, manufacture a particular article, or control the sale or the whole supply of a particular commodity. It is a form of market structure in which one or only a few firms dominate the total sales of a product or service. On the other hand, a combination in restraint of trade is an agreement or understanding between two or more persons, in the form of a contract, trust, pool, holding company, or other form of association, for the purpose of unduly restricting competition, monopolizing trade and commerce in a certain commodity, controlling its production, distribution and price, or otherwise interfering with freedom of trade without statutory authority. Combination in restraint of trade refers to the means while monopoly refers to the end. "x x x

xxx

xxx

"Section 19, Article XII of our Constitution is anti-trust in history and in spirit. It espouses competition. The desirability of competition is the reason for the prohibition against restraint of trade, the reason for the interdiction of unfair competition, and the reason for regulation of unmitigated monopolies. Competition is thus the underlying principle of [S]ection 19, Article XII of our Constitution, . . ."81 Gokongwei Jr. v. Securities and Exchange Commission82 elucidates the criteria to be employed: "A 'monopoly' embraces any combination the tendency of which is to prevent competition in the broad and general sense, or to control prices to the detriment of the public. In short, it is the concentration of business in the hands of a few. The material consideration in determining its existence is not that prices are raised and competition actually excluded, but that power exists to raise prices or exclude competition when desired."83 (Emphasis supplied) The Contracts Encourage Monopolistic Pricing, Too Aside from creating a monopoly, the Piatco contracts also give the concessionaire virtually limitless power over the charging of fees, rentals and so forth. What little "oversight function" the government might be able and minded to exercise is less than sufficient to protect the public interest, as can be gleaned from the following provisions: "Sec. 6.06. Adjustment of Non-Public Utility Fees and Charges "For fees, rentals and charges constituting Non-Public Utility Revenues, Concessionaire may make any adjustments it deems appropriate without need for the consent of GRP or any government agency subject to Sec. 6.03(c)." Section 6.03(c) in turn provides: "(c) Concessionaire shall at all times be judicious in fixing fees and charges constituting Non-Public Utility Revenues in order to ensure that End Users are not unreasonably deprived of services. While the vehicular parking fee, porterage fee and greeter/wellwisher fee constitute Non-Public Utility Revenues of Concessionaire, GRP may require Concessionaire to explain and justify the fee it may set from time to time, if in the reasonable opinion of GRP the said fees have become exorbitant resulting in the unreasonable deprivation of End Users of such services."

It will be noted that the above-quoted provision has no teeth, so the concessionaire can defy the government without fear of any sanction. Moreover, Section 6.06 - taken together with Section 6.03(c) of the ARCA - falls short of the standard set by the BOT Law as amended, which expressly requires in Section 2(b) that the project proponent is "allowed to charge facility users appropriate tolls, fees, rentals and charges not exceeding those proposed in its bid or as negotiated and incorporated in the contract x x x." The Piatco Contracts Violate Constitutional Prohibitions Impairment of Contracts and Deprivation of Property Without Due Process

Against

Earlier, I discussed how Section 3.01(e)84 of both the CA and the ARCA requires government, through DOTC/MIAA, not to permit the carry-over to Terminal III of the services and operations of certain service providers currently operating at Terminal I with subsisting contracts. By the In-Service Date, Terminal III shall be the only facility to be operated as an international passenger terminal at the NAIA;85 thus, Terminals I and II shall no longer operate as such,86 and no one shall be allowed to compete with Piatco in the operation of an international passenger terminal in the NAIA.87 The bottom line is that, as of the In-Service Date, Terminal III will be the only terminal where the business of providing airport-related services to international airlines and passengers may be conducted at all. Consequently, government through the DOTC/MIAA will be compelled to cease honoring existing contracts with service providers after the In-Service Date, as they cannot be allowed to operate in Terminal III. In short, the CA and the ARCA obligate and constrain government to break its existing contracts with these service providers. Notably, government is not in a position to require Piatco to accommodate the displaced service providers, and it would be unrealistic to think that these service providers can perform their service contracts in some other international airport outside Luzon. Obviously, then, these displaced service providers are - to borrow a quaint expression - up the river without a paddle. In plainer terms, they will have lost their businesses entirely, in the blink of an eye. What we have here is a set of contractual provisions that impair the obligation of contracts and contravene the constitutional prohibition against deprivation of property without due process of law.88 Moreover, since the displaced service providers, being unable to operate, will be forced to close shop, their respective employees - among them Messrs. Agan and Lopez et al. - have very grave cause for concern, as they will find themselves out of employment and bereft of their means of livelihood. This situation comprises still another violation of the constitution prohibition against deprivation of property without due process. True, doing business at the NAIA may be viewed more as a privilege than as a right. Nonetheless, where that privilege has been availed of by the petitioners-in-intervention service providers for years on end, a situation arises, similar to that in American Inter-fashion v. GTEB.89 We held therein that a privilege enjoyed for seven years "evolved into some form of property right which should not be removed x x x arbitrarily and without due process." Said pronouncement is particularly relevant and applicable to the situation at bar because the livelihood of the employees of petitioners-intervenors are at stake. The Piatco Contracts Violate Against Deprivation of Liberty Without Due Process

Constitutional

Prohibition

The Piatco Contracts by locking out existing service providers from entry into Terminal III and restricting entry of future service providers, thereby infringed upon the freedom - guaranteed to and heretofore enjoyed by international airlines - to contract with local service providers of their choice, and vice versa.

Both the service providers and their client airlines will be deprived of the right to liberty, which includes the right to enter into all contracts,90 and/or the right to make a contract in relation to one's business.91 By Creating New Financial Obligations for Supplements to the ARCA Violate the Ban on Disbursement of Public Funds Without Valid Appropriation

Government, Constitutional

Clearly prohibited by the Constitution is the disbursement of public funds out of the treasury, except in pursuance of an appropriation made by law.92 The immediate effect of this constitutional ban is that all the various agencies of government are constrained to limit their expenditures to the amounts appropriated by law for each fiscal year; and to carefully count their cash before taking on contractual commitments. Giving flesh and form to the injunction of the fundamental law, Sections 46 and 47 of Executive Order 292, otherwise known as the Administrative Code of 1987, provide as follows: "Sec. 46. Appropriation Before Entering into Contract. - (1) No contract involving the expenditure of public funds shall be entered into unless there is an appropriation therefor, the unexpended balance of which, free of other obligations, is sufficient to cover the proposed expenditure; and . . "Sec. 47. Certificate Showing Appropriation to Meet Contract. - Except in the case of a contract for personal service, for supplies for current consumption or to be carried in stock not exceeding the estimated consumption for three (3) months, or banking transactions of government-owned or controlled banks, no contract involving the expenditure of public funds by any government agency shall be entered into or authorized unless the proper accounting official of the agency concerned shall have certified to the officer entering into the obligation that funds have been duly appropriated for the purpose and that the amount necessary to cover the proposed contract for the current calendar year is available for expenditure on account thereof, subject to verification by the auditor concerned. The certificate signed by the proper accounting official and the auditor who verified it, shall be attached to and become an integral part of the proposed contract, and the sum so certified shall not thereafter be available for expenditure for any other purpose until the obligation of the government agency concerned under the contract is fully extinguished." Referring to the aforequoted provisions, this Court has held that "(I)t is quite evident from the tenor of the language of the law that the existence of appropriations and the availability of funds are indispensable pre-requisites to or conditions sine qua non for the execution of government contracts. The obvious intent is to impose such conditions as a priori requisites to the validity of the proposed contract."93 Notwithstanding the constitutional ban, statutory mandates and Jurisprudential precedents, the three Supplements to the ARCA, which were not approved by NEDA, imposed on government the additional burden of spending public moneys without prior appropriation. In the First Supplement ("FS") dated August 27, 1999, the following requirements were imposed on the government: • To construct, maintain and keep in good repair and operating condition all airport support services, facilities, equipment and infrastructure owned and/or operated by MIAA, which are not part of the Project or which are located outside the Site, even though constructed by Concessionaire - including the access road connecting Terminals II and III and the taxilane, taxiways and runways • To obligate the MIAA to provide funding for the upkeep, maintenance and repair of the airports and facilities owned or operated by it and by third persons under its control in order to ensure compliance with international standards; and holding MIAA liable to Piatco for the latter's losses, expenses and damages as well as for the latter's liability to third persons, in case MIAA fails to perform such obligations; in addition, MIAA will also

be liable for the incremental and consequential costs of the remedial work done by Piatco on account of the former's default. • Section 4 of the FS imposed on government ten (10) "Additional Special Obligations," including the following: o o o

o o

Providing thru MIAA the land required by Piatco for the taxilane and one taxiway, at no cost to Piatco Implementing the government's existing storm drainage master plan Coordinating with DPWH the financing, implementation and completion of the following works before the In-Service Date: three left-turning overpasses (Edsa to Tramo St., Tramo to Andrews Ave., and Manlunas Road to Sales Ave.) and a road upgrade and improvement program involving widening, repair and resurfacing of Sales Road, Andrews Avenue and Manlunas Road; improvement of Nichols Interchange; and removal of squatters along Andrews Avenue Dealing directly with BCDA and the Philippine Air Force in acquiring additional land or right of way for the road upgrade and improvement program Requiring government to work for the immediate reversion to MIAA of the Nayong Pilipino National Park, in order to permit the building of the second west parallel taxiway

• Section 5 of the FS also provides that in lieu of the access tunnel, a surface access road (T2-T3) will be constructed. This provision requires government to expend funds to purchase additional land from Nayong Pilipino and to clear the same in order to be able to deliver clean possession of the site to Piatco, as required in Section 5(c) of the FS. On the other hand, the Third Supplement ("TS") obligates the government to deliver, within 120 days from date thereof, clean possession of the land on which the T2-T3 Road is to be constructed. The foregoing contractual stipulations undeniably impose on government the expenditures of public funds not included in any congressional appropriation or authorized by any other statute. Piatco however attempts to take these stipulations out of the ambit of Sections 46 and 47 of the Administrative Code by characterizing them as stipulations for compliance on a "best-efforts basis" only. To determine whether the additional obligations under the Supplements may really be undertaken on a best-efforts basis only, the nature of each of these obligations must be examined in the context of its relevance and significance to the Terminal III Project, as well as of any adverse impact that may result if such obligation is not performed or undertaken on time. In short, the criteria for determining whether the best-efforts basis will apply is whether the obligations are critical to the success of the Project and, accordingly, whether failure to perform them (or to perform them on time) could result in a material breach of the contract. Viewed in this light, the "Additional Special Obligations" set out in Section 4 of the FS take on a different aspect. In particular, each of the following may all be deemed to play a major role in the successful and timely prosecution of the Terminal III Project: the obtention of land required by PIATCO for the taxilane and taxiway; the implementation of government's existing storm drainage master plan; and coordination with DPWH for the completion of the three left-turning overpasses before the In-Service Date, as well as acquisition and delivery of additional land for the construction of the T2-T3 access road. Conversely, failure to deliver on any of these obligations may conceivably result in substantial prejudice to the concessionaire, to such an extent as to constitute a material breach of the Piatco Contracts. Whereupon, the concessionaire may outrightly terminate the Contracts pursuant to Section 8.01(b)(i) and (ii) of the ARCA and seek payment of Liquidated Damages in accordance with Section 8.02(a) of the ARCA; or the concessionaire may instead require government to pay the Incremental and Consequential Losses under Section 1.23 of the ARCA.94The logical conclusion then is that the obligations in the Supplements are not to be performed on a best-efforts basis only, but are unarguably mandatory in character.

Regarding MIAA's obligation to coordinate with the DPWH for the complete implementation of the road upgrading and improvement program for Sales, Andrews and Manlunas Roads (which provide access to the Terminal III site) prior to the In-Service Date, it is essential to take note of the fact that there was a pressing need to complete the program before the opening of Terminal III.95 For that reason, the MIAA was compelled to enter into a memorandum of agreement with the DPWH in order to ensure the timely completion of the road widening and improvement program. MIAA agreed to advance the total amount of P410.11 million to DPWH for the works, while the latter was committed to do the following: "2.2.8. Reimburse all advance payments to MIAA including but not limited to interest, fees, plus other costs of money within the periods CY2004 and CY2006 with payment of no less than One Hundred Million Pesos (PhP100M) every year. "2.2.9. Perform all acts necessary to include in its CY2004 to CY2006 budget allocation the repayments for the advances made by MIAA, to ensure that the advances are fully repaid by CY2006. For this purpose, DPWH shall include the amounts to be appropriated for reimbursement to MIAA in the "Not Needing Clearance" column of their Agency Budget Matrix (ABM) submitted to the Department of Budget and Management." It can be easily inferred, then, that DPWH did not set aside enough funds to be able to complete the upgrading program for the crucially situated access roads prior to the targeted opening date of Terminal III; and that, had MIAA not agreed to lend the P410 Million, DPWH would not have been able to complete the program on time. As a consequence, government would have been in breach of a material obligation. Hence, this particular undertaking of government may likewise not be construed as being for best-efforts compliance only. They also Infringe on the Legislative Prerogative and Power Over the Public Purse But the particularly sad thing about this transaction between MIAA and DPWH is the fact that both agencies were maneuvered into (or allowed themselves to be maneuvered into) an agreement that would ensure delivery of upgraded roads for Piatco's benefit, using funds not allocated for that purpose. The agreement would then be presented to Congress as a done deal. Congress would thus be obliged to uphold the agreement and support it with the necessary allocations and appropriations for three years, in order to enable DPWH to deliver on its committed repayments to MIAA. The net result is an infringement on the legislative power over the public purse and a diminution of Congress' control over expenditures of public funds - a development that would not have come about, were it not for the Supplements. Very clever but very illegal! EPILOGUE What Do We Do Now? In the final analysis, there remains but one ultimate question, which I raised during the Oral Argument on December 10, 2002: What do we do with the Piatco Contracts and Terminal III?96 (Feeding directly into the resolution of the decisive question is the other nagging issue: Why should we bother with determining the legality and validity of these contracts, when the Terminal itself has already been built and is practically complete?) Prescinding from all the foregoing disquisition, I find that all the Piatco contracts, without exception, are void ab initio, and therefore inoperative. Even the very process by which the contracts came into being - the bidding and the award - has been riddled with irregularities galore and blatant violations of law and public policy, far too many to ignore. There is thus no conceivable way, as proposed by some, of saving one (the original Concession Agreement) while junking all the rest. Neither is it possible to argue for the retention of the Draft Concession Agreement (referred to in the various pleadings as the Contract Bidded Out) as the contract that should be kept in force and effect to govern the situation, inasmuch as it was never executed by the parties. What Piatco and the government executed was the Concession Agreement which is entirely different from the Draft Concession Agreement.

Ultimately, though, it would be tantamount to an outrageous, grievous and unforgivable mutilation of public policy and an insult to ourselves if we opt to keep in place a contract - any contract - for to do so would assume that we agree to having Piatco continue as the concessionaire for Terminal III. Despite all the insidious contraventions of the Constitution, law and public policy Piatco perpetrated, keeping Piatco on as concessionaire and even rewarding it by allowing it to operate and profit from Terminal III - instead of imposing upon it the stiffest sanctions permissible under the laws - is unconscionable. It is no exaggeration to say that Piatco may not really mind which contract we decide to keep in place. For all it may care, we can do just as well without one, if we only let it continue and operate the facility. After all, the real money will come not from building the Terminal, but from actually operating it for fifty or more years and charging whatever it feels like, without any competition at all. This scenario must not be allowed to happen. If the Piatco contracts are junked altogether as I think they should be, should not AEDC automatically be considered the winning bidder and therefore allowed to operate the facility? My answer is a stone-cold 'No'. AEDC never won the bidding, never signed any contract, and never built any facility. Why should it be allowed to automatically step in and benefit from the greed of another? Should government pay at all for reasonable expenses incurred in the construction of the Terminal? Indeed it should, otherwise it will be unjustly enriching itself at the expense of Piatco and, in particular, its funders, contractors and investors - both local and foreign. After all, there is no question that the State needs and will make use of Terminal III, it being part and parcel of the critical infrastructure and transportation-related programs of government. In Melchor v. Commission on Audit,97 this Court held that even if the contract therein was void, the principle of payment by quantum meruit was found applicable, and the contractor was allowed to recover the reasonable value of the thing or services rendered (regardless of any agreement as to the supposed value), in order to avoid unjust enrichment on the part of government. The principle of quantum meruit was likewise applied in Eslao v. Commission on Audit,98 because to deny payment for a building almost completed and already occupied would be to permit government to unjustly enrich itself at the expense of the contractor. The same principle was applied in Republic v. Court of Appeals.99 One possible practical solution would be for government - in view of the nullity of the Piatco contracts and of the fact that Terminal III has already been built and is almost finished - to bid out the operation of the facility under the same or analogous principles as build-operate-andtransfer projects. To be imposed, however, is the condition that the winning bidder must pay the builder of the facility a price fixed by government based on quantum meruit; on the real, reasonable - not inflated - value of the built facility. How the payment or series of payments to the builder, funders, investors and contractors will be staggered and scheduled, will have to be built into the bids, along with the annual guaranteed payments to government. In this manner, this whole sordid mess could result in something truly beneficial for all, especially for the Filipino people. WHEREFORE, I vote contracts NULL and VOID.

to

grant

the

Petitions

and

to

declare

the

subject

Footnotes 1

An Act Authorizing the Financing, Construction, Operation and Maintenance of Infrastructure Projects by the Private Sector. 2

G.R. No. 155001.

3

G.R. No. 155547.

4

G.R. No. 155661.

5

An international airport is any nation's gateway to the world, the first contact of foreigners with the Philippine Republic, especially those foreigners who have not been in contact with the wonderful exports of the Philippine economy, those foreigners who have not had the benefit of enjoying Philippine export products. Because for them, when they see your products, that is the face of the Philippines they see. But if they are not exposed to your products, then it's the airport that's the first face of the Philippines they see. Therefore, it's not only a matter of opening yet, but making sure that it is a world class airport that operates without any hitches at all and without the slightest risk to travelers. But it's also emerging as a test case of my administration's commitment to fight corruption to rid our state from the hold of any vested interest, the Solicitor General, and the Justice Department have determined that all five agreements covering the NAIA Terminal 3, most of which were contracted in the previous administration, are null and void. I cannot honor contracts which the Executive Branch's legal offices have concluded (as) null and void. I am, therefore, ordering the Department of Justice and the Presidential Anti-Graft Commission to investigate any anomalies and prosecute all those found culpable in connection with the NAIA contract. But despite all of the problems involving the PIATCO contracts, I am assuring our people, our travelers, our exporters, my administration will open the terminal even if it requires invoking the whole powers of the Presidency under the Constitution and we will open a safe, secure and smoothly functioning airport, a world class airport, as world class as the exporters we are honoring today. (Speech of President Arroyo, emphasis supplied) G.R. No. 131124 March 29, 1999 OSMUNDO G. UMALI, petitioner, vs. EXECUTIVE SECRETARY TEOFISTO T. GUINGONA JR., CHAIRMAN, PRESIDENTIAL COMMISSION AGAINST GRAFT AND CORRUPTION, THE SECRETARY OF FINANCE, AND THE COMMISSIONER OF INTERNAL REVENUE, respondents. RESOLUTION

PURISIMA, J.: At bar is a petition for review under Rule 45 of the Revised Rules of Court assailing the decision of the Court of Appeals dated April 8, 1997, which set aside the Amended Decision dated December 13, 1995 of the Regional Trial Court of Makati in Civil Case No. 94-3078, and dismissed the petition for Certiorari, Prohibition and Injunction brought by petitioner against the respondents. The antecedent facts leading to the filing of the present are as follows: On October 27, 1993, petitioner Osmundo Umali was appointed Regional Director of the Bureau of Internal Revenue by the then President Fidel V. Ramos. He was assigned in Manila, from November 29, 1993 to March 15, 1994, and in Makati, from March 16, 1994 to August 4, 1994. On August 1, 1994, President Ramos received a confidential memorandum against the petitioner for alleged violations of internal revenue laws, rules and regulations during his incumbency as Regional Director, more particularly the following malfeasance, misfeasance and nonfeasance, to wit:

A. Issuance of Letters of Authority (LA's) to investigate taxpayers despite the ban on investigations as ordered in Revenue Memorandum Order No. 31-93. In numerous cases, revenue officers whose names appeared in the LA's as investigating officers were unaware that such LA's were issued to them. He issued LA's to favored revenue examiners such as his Secretary, Natividad Feliciano; B. Termination of tax cases without the submission of the required investigation reports, thus exempting the same from examination and review; C. Terminated cases with reports were submitted directly to and approved by respondent Umali without being reviewed by the Assistant Division, thus eliminating the check and balance mechanism designed to guard against abuses or errors; D. Unlawful issuance of LA's to taxpayers who were thereafter convinced to avail of the BIR's compromise and abatement program under RMO's 45093 and 54-93, for which the taxpayers were made, for a monetary consideration, to pay smaller amounts in lieu of being investigated; E. Despite the devolution of the authority to issue LA's from Regional Directors to the Revenue District Officers under RMO 26-94, dated April 14, 1994, respondent Umali continued to issue antedated LA's in absolute defiance of the aforesaid issuance, using old LA's requisitioned by him when still Regional Director of San Pablo Region. In one instance, he issued a termination letter bearing the San Pablo Region letterhead even when he was already Makati Regional Director; and F. In his attempt to cover up his tracks and to muddle the real issue of his violations of the ban in the issuance of LA's and basic revenue rules and regulations, respondent enlisted the support of other regional directors for the purposes of questioning particularly the devolution/centralization of the functions of the Bureau.1 On August 2, 1994, upon receipt of the said confidential memorandum, former President Ramos authorized the issuance of an Order for the preventive suspension of Umali and immediately referred the Complaint against the latter to the Presidential Commission on Anti-Graft and Corruption (PCAGC), for investigation. Petitioner was duly informed of the charges against him. In its Order, dated August 9, 1994, the PCAGC directed him to send in his answer, copies of his Statement of Assets, and Liabilities for the past three years (3), and Personal Data Sheet. Initial hearing was set on August 25, 1994, at 2:00 p.m., at the PCAGC Office. On August 23, the petitioner filed his required Answer. On August 25, 1994, petitioner appeared with his lawyer. Atty. Bienvenido Santiago before the PCAGC. Counsel for the Commissioner of Internal Revenue submitted a Progress Report, dated August 24, 1994, on the audit conducted on the petitioner. As prayed for, petitioner and his lawyer were granted five (5) days to file a supplemental answer. The hearing was reset to August 30, 1994, during which the parties were given a chance to ask clarificatory questions. Petitioner and his counsel did not ask any question on the genuineness and authenticity of the documents attached as annexes to the Complaint. Thereafter, the parties agreed to submit the case for resolution upon the presentation of their respective memoranda. Petitioner filed his Memorandum on September 6, 1994 while the BIR sent in its Memorandum on the following day.

After evaluating the evidence on record, the PCAGC issued its Resolution of September 23, 1994, finding a prima facie evidence to support six (6) of the twelve (12) charges against petitioner, to wit: 1. On the First Charge — Respondent issued 176 Letters of Authority in gross disobedience to and in violation of RMOs 31-93 and 27-94. xxx

xxx

xxx

3. On the Third Charge — There is sufficient evidence of a prima facie case of falsification of official documents as defined in Art. 171, par. 2 and 4 of the Revised Penal Code, against the respondent for the issuance of 9 LA's and who did not investigate the tax cases, each LA being a separate offense. xxx

xxx

xxx

7. On the Seventh Charge — There is sufficient evidence of a prima facie case of falsification of official documents against respondent for antedating the four LA's cited in the charge, each LA constituting a separate offense, under Art. 171 (4) of the Revised Penal Code. 8. On the Ninth (sic) Charge — There is sufficient evidence to support a prima facie case of falsification of an official document under Art. 171 (4) of the Revised Penal Code against the respondent in the tax case of Richfield International Corp., Inc. for indicating a false date on the letter of termination he issued to the company. There is, however, insufficient evidence against respondent in the other tax case of Jayson Auto Supply Co. 9. On the Ninth Charge — There is sufficient evidence of a prima facie case of falsification of official documents in each of the two cases cited in his charge, under the provisions of Art. 171 (4) of the Revised Penal Code, as the dates of Termination Letters were false. 10. On the Tenth Charge — Respondent, by his own admission, violated RMO 36-87 requiring turn over of all properties and forms to his successor upon transfer as head of office, and RMO 27-94 requiring the surrender of all unused old forms of Letters of Authority. The Commission noted the defiant attitude of respondent, as expressed in his admission, towards valid and legal orders of the BIR, and his propensity to defy and ignore such orders and regulations. 2 xxx

xxx

xxx

On October 6, 1994, acting upon the recommendation of the PCAGC, then President Ramos issued Administrative Order No. 152 dismissing petitioner from the service, with forfeiture of retirement and all benefits under the law. On October 24, 1994, the petitioner moved for reconsideration of his dismissal but the Office of the President denied the motion for reconsideration on November 28, 1994. On December 1, 1994, petitioner brought a Petition for Certiorari, Prohibition and Injunction, docketed as Civil Case No. 94-3079 before the Regional Trial Court of Makati, alleging, among others:

I. That the petitioner was suspended and dismissed from the service in violation of his constitutional right to due process of law; and II. That the constitutional right of the petitioner to security of tenure was violated by the respondents. The case was raffled off to Branch 133 of the Regional Trial Court in Makati, which issued on December 2, 1994, a Temporary Restraining Order, enjoining the respondents and/or their representatives from enforcing Administrative Order No. 152, and directing the parties to observe the status quo until further orders from the said Court. On December 23, 1994, the said Regional Trial Court dismissed the petition. On January 10, 1995, the petitioner presented a motion for reconsideration, this time, theorizing that the Presidential Commission on Anti-Graft and Corruption is an unconstitutional office without jurisdiction to conduct the investigation against him. Respondents submitted their Opposition/Comment to the Motion for Reconsideration. Then, the petitioner filed a Motion to Inhibit Judge Inoturan on the ground that the latter was formerly a Solicitor in the Office of the Solicitor General and could not be expected to decide the case with utmost impartiality. The case was then re-raffled to Hon. Teofilo L. Guadiz, Jr. who, on December 13, 1995, handed down an Amended Decision, granting the petition and practically reversing the original Decision. Not satisfied with the Amended Decision of Judge Guadiz, Jr., the respondents appealed therefrom to the Court of Appeals. On April 8, 1997, the Ninth Division of the Court of Appeals 3 promulgated its decision, reversing the Amended Decision of the trial court of origin, and dismissing Civil Case No. 94-3079. Petitioner's motion for reconsideration met the same fate. It was denied on October 28, 1997. Undaunted, petitioner found his way to this Court via the petition under scrutiny. In the interim that the administrative and civil cases against the petitioner were pending, the criminal aspect of such cases was referred to the Office of the Ombudsman for investigation. On July 25, 1995, after conducting the investigation, Ombudsman Investigators Merba Waga and Arnulfo Pelagio issued a Resolution finding a probable cause and recommending the institution in the courts of proper jurisdiction criminal cases for Falsification of Public Documents (13 counts) and Open Disobedience (2 counts) against the petitioner. However, acting upon petitioner's motion for reconsideration Special Prosecution Officer II Lemuel M. De Guzman set aside the said Resolution of July 25, 1995, and in lieu thereof, dismissed the charges against petitioner, in the Order dated November 5, 1996, which was approved by Ombudsman Aniano Desierto. Accordingly, all the Informations against the petitioner previously sent to the Office of the City Prosecutor, were recalled. On August 10, 1998, Commissioner Beethoven L. Rualo of the Bureau of Internal Revenue sent a letter to the Solicitor General informing the latter that "the Bureau of Internal Revenue is no longer interested in pursuing the case against Atty. Osmundo Umali" on the basis of the comment and recommendation submitted by the Legal Department of the BIR. 4 Petitioner raised the issues: 1. WHETHER ADMINISTRATIVE ORDER NO. 152 VIOLATED PETITIONER'S RIGHT TO SECURITY OF TENURE; 2. WHETHER PETITIONER WAS DENIED DUE PROCESS IN THE ISSUANCE OF ADMINISTRATIVE ORDER NO. 152;

3. WHETHER THE PCAGC IS A VALIDLY CONSTITUTED GOVERNMENT AGENCY AND WHETHER PETITIONER CAN RAISE THE ISSUE OF ITS CONSTITUTIONALITY BELATEDLY IN ITS MOTION FOR RECONSIDERATION OF THE TRIAL COURT'S DECISION; AND 5. WHETHER IN THE LIGHT OF THE OMBUDSMAN RESOLUTION DISMISSING THE CHARGES AGAINST PETITIONER, THERE IS STILL BASIS FOR PETITIONER'S DISMISSAL WITH FORFEITURE OF BENEFITS AS RULED IN ADMINISTRATIVE ORDER NO. 152. Petitioner contends that as Regional Director of the Bureau of Internal Revenue he belongs to the Career Executive Service. Although a Presidential appointee under the direct authority of the President to discipline, he is a career executive service officer (CESO) with tenurial protection, who can only be removed for cause. In support of this theory, petitioner cited the case of Larin vs. Executive Secretary 5 where the Court held: . . . petitioner is a presidential appointee who belongs to the career service of the Civil Service. Being a presidential appointee, he comes under the direct disciplining authority of the President. This is in line with the settled principle that the "power to remove is inherent in the power to appoint" conferred to the President by Section 16, Article VII of the Constitution. . . . This power of removal, however, is not an absolute one which accepts no reservation. It must be pointed out that petitioner is a career service officer. . . . Specifically, Section 36 of P.D. No. 807, as amended, otherwise known as Civil Service Decree of the Philippines, is emphatic that career service officers and employees who enjoy security of tenure may be removed only for any of the causes enumerated in said law. In other words, the fact that petitioner is a presidential appointee does not give the appointing authority the license to remove him at will or at his pleasure for it is an admitted fact that he is likewise a career service officer who under the law is the recipient of tenurial protection, thus, may only removed for cause and in accordance with procedural due process. Petitioner maintains that as a career executive service officer, he can only be removed for cause and under the Administrative Code of 1987,6 loss of confidence is not one of the legal causes or grounds for removal. Consequently, his dismissal from office on the ground of loss confidence violated his right to security of tenure, petitioner theorized. After a careful study, we are of the irresistible conclusion that the Court of Appeals ruled correctly on the first three issues. To be sure, petitioner was not denied the right to due process before the PCAGC. Records show that the petitioner filed his answer and other pleadings with respect to his alleged violation of internal revenue laws and regulations, and he attended the hearings before the investigatory body. It is thus decisively clear that his protestation of nonobservance of due process is devoid of any factual or legal basis. Neither can it be said that there was a violation of what petitioner asserts as his security of tenure. According to petitioner, as a Regional Director of Bureau of Internal Revenue, he is CESO eligible entitled to security of tenure. However, petitioner's claim of CESO eligibility is anemic of evidentiary support. It was incumbent upon him to prove that he is a CESO eligible but unfortunately, he failed to adduce sufficient evidence on the matter. His failure to do so is fatal. As regards the issue of constitutionality of the PCAGC, it was only posed by petitioner in his motion for reconsideration before the Regional Trial Court of Makati. It was certainly too late to raise for the first time at such late stage of the proceedings below. How about the fourth issue, whether in view of the Resolution of the Ombudsman dismissing the charges against petitioner, there still remains a basis for the latter's dismissal with forfeiture of benefits, as directed in Administrative Order No. 152?

It is worthy to note that in the case under consideration, the administrative action against the petitioner was taken prior to the institution of the criminal case. The charges included in Administrative Order No. 152 were based on the results of investigation conducted by the PCAGC and not on the criminal charges before the Ombudsman. In sum, the petition is dismissable on the ground that the issues posited by the petitioner do not constitute a valid legal basis for overturning the finding and conclusion arrived at by the Court of Appeals. However, taking into account the antecedent facts and circumstances aforementioned, the Court, in the exercise of its equity powers, has decided to consider the dismissal of the charges against petitioner before the Ombudsman, the succinct and unmistakable manifestation by the Commissioner of the Bureau of Internal Revenue that his office is no longer interested in pursuing the case, and the position taken by the Solicitor General,7 that there is no more basis for Administrative Order No. 152, as effective and substantive supervening events that cannot be overlooked. WHEREFORE, in light of the foregoing effective and substantive supervening events, and in the exercise of its equity powers, the Court hereby GRANTS the petition. Accordingly, Administrative Order No. 152 is considered LIFTED, and petitioner can be allowed to retire with full benefits. No pronouncement as to costs. SO ORDERED. Resolution

March 18, 1954

In the Matter of the Petitions for Admission to the Bar of Unsuccessful Candidates of 1946 to 1953; ALBINO CUNANAN, ET AL., petitioners. Jose M. Aruego, M.H. de Joya, Miguel R. Cornejo, and Antonio Enrile Inton for petitioners. Office of the Solicitor General Juan R. Liwag for respondent. DIOKNO, J.: In recent years few controversial issues have aroused so much public interest and concern as Republic Act No. 972, popularly known as the "Bar Flunkers' Act of 1953." Under the Rules of Court governing admission to the bar, "in order that a candidate (for admission to the Bar) may be deemed to have passed his examinations successfully, he must have obtained a general average of 75 per cent in all subjects, without falling below 50 per cent in any subject." (Rule 127, sec. 14, Rules of Court). Nevertheless, considering the varying difficulties of the different bar examinations held since 1946 and the varying degree of strictness with which the examination papers were graded, this court passed and admitted to the bar those candidates who had obtained an average of only 72 per cent in 1946, 69 per cent in 1947, 70 per cent in 1948, and 74 per cent in 1949. In 1950 to 1953, the 74 per cent was raised to 75 per cent. Believing themselves as fully qualified to practice law as those reconsidered and passed by this court, and feeling conscious of having been discriminated against (See Explanatory Note to R.A. No. 972), unsuccessful candidates who obtained averages of a few percentage lower than those admitted to the Bar agitated in Congress for, and secured in 1951 the passage of Senate Bill No. 12 which, among others, reduced the passing general average in bar examinations to 70 per cent effective since 1946. The President requested the views of this court on the bill. Complying with that request, seven members of the court subscribed to and submitted written comments adverse thereto, and shortly thereafter the President vetoed it. Congress did not override the veto. Instead, it approved Senate Bill No. 371, embodying substantially the provisions of the vetoed bill. Although the members of this court reiterated their unfavorable views on the matter, the President allowed the bill to become a law on June 21, 1953 without his signature. The law, which incidentally was enacted in an election year, reads in full as follows: REPUBLIC ACT NO. 972

AN ACT TO FIX THE PASSING MARKS FOR BAR EXAMINATIONS FROM NINETEEN HUNDRED AND FORTY-SIX UP TO AND INCLUDING NINETEEN HUNDRED AND FIFTY-FIVE. Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: SECTION 1. Notwithstanding the provisions of section fourteen, Rule numbered one hundred twenty-seven of the Rules of Court, any bar candidate who obtained a general average of seventy per cent in any bar examinations after July fourth, nineteen hundred and forty-six up to the August nineteen hundred and fifty-one bar examinations; seventyone per cent in the nineteen hundred and fifty-two bar examinations; seventy-two per cent in the in the nineteen hundred and fifty-three bar examinations; seventy-three per cent in the nineteen hundred and fifty-four bar examinations; seventy-four per cent in the nineteen hundred and fifty-five bar examinations without a candidate obtaining a grade below fifty per cent in any subject, shall be allowed to take and subscribe the corresponding oath of office as member of the Philippine Bar: Provided, however, That for the purpose of this Act, any exact one-half or more of a fraction, shall be considered as one and included as part of the next whole number. SEC. 2. Any bar candidate who obtained a grade of seventy-five per cent in any subject in any bar examination after July fourth, nineteen hundred and forty-six shall be deemed to have passed in such subject or subjects and such grade or grades shall be included in computing the passing general average that said candidate may obtain in any subsequent examinations that he may take. SEC. 3. This Act shall take effect upon its approval. Enacted on June 21, 1953, without the Executive approval. After its approval, many of the unsuccessful postwar candidates filed petitions for admission to the bar invoking its provisions, while others whose motions for the revision of their examination papers were still pending also invoked the aforesaid law as an additional ground for admission. There are also others who have sought simply the reconsideration of their grades without, however, invoking the law in question. To avoid injustice to individual petitioners, the court first reviewed the motions for reconsideration, irrespective of whether or not they had invoked Republic Act No. 972. Unfortunately, the court has found no reason to revise their grades. If they are to be admitted to the bar, it must be pursuant to Republic Act No. 972 which, if declared valid, should be applied equally to all concerned whether they have filed petitions or not. A complete list of the petitioners, properly classified, affected by this decision, as well as a more detailed account of the history of Republic Act No. 972, are appended to this decision as Annexes I and II. And to realize more readily the effects of the law, the following statistical data are set forth: (1) The unsuccessful bar candidates who are to be benefited by section 1 of Republic Act No. 972 total 1,168, classified as follows: 1946

(August)

206

121

18

1946

(November)

477

228

43

1947

749

340

0

1948

899

409

11

1949

1,218 532

164

1950

1,316 893

26

1951

2,068 879

196

1952

2,738 1,033 426

1953

2,555 968 TOTAL

284

12,230 5,421 1,168

Of the total 1,168 candidates, 92 have passed in subsequent examination, and only 586 have filed either motions for admission to the bar pursuant to said Republic Act, or mere motions for reconsideration. (2) In addition, some other 10 unsuccessful candidates are to be benefited by section 2 of said Republic Act. These candidates had each taken from two to five different examinations, but failed to obtain a passing average in any of them. Consolidating, however, their highest grades in different subjects in previous examinations, with their latest marks, they would be sufficient to reach the passing average as provided for by Republic Act No. 972. (3) The total number of candidates to be benefited by this Republic Acts is therefore 1,094, of which only 604 have filed petitions. Of these 604 petitioners, 33 who failed in 1946 to 1951 had individually presented motions for reconsideration which were denied, while 125 unsuccessful candidates of 1952, and 56 of 1953, had presented similar motions, which are still pending because they could be favorably affected by Republic Act No. 972, — although as has been already stated, this tribunal finds no sufficient reasons to reconsider their grades UNCONSTITUTIONALITY OF REPUBLIC ACT NO. 972 Having been called upon to enforce a law of far-reaching effects on the practice of the legal profession and the administration of justice, and because some doubts have been expressed as to its validity, the court set the hearing of the afore-mentioned petitions for admission on the sole question of whether or not Republic Act No. 972 is constitutional. We have been enlightened in the study of this question by the brilliant assistance of the members of the bar who have amply argued, orally an in writing, on the various aspects in which the question may be gleaned. The valuable studies of Messrs. E. Voltaire Garcia, Vicente J. Francisco, Vicente Pelaez and Buenaventura Evangelista, in favor of the validity of the law, and of the U.P. Women's Lawyers' Circle, the Solicitor General, Messrs. Arturo A. Alafriz, Enrique M. Fernando, Vicente Abad Santos, Carlos A. Barrios, Vicente del Rosario, Juan de Blancaflor, Mamerto V. Gonzales, and Roman Ozaeta against it, aside from the memoranda of counsel for petitioners, Messrs. Jose M. Aruego, M.H. de Joya, Miguel R. Cornejo and Antonio Enrile Inton, and of petitioners Cabrera, Macasaet and Galema themselves, has greatly helped us in this task. The legal researchers of the court have exhausted almost all Philippine and American jurisprudence on the matter. The question has been the object of intense deliberation for a long time by the Tribunal, and finally, after the voting, the preparation of the majority opinion was assigned to a new member in order to place it as humanly as possible above all suspicion of prejudice or partiality. Republic Act No. 972 has for its object, according to its author, to admit to the Bar, those candidates who suffered from insufficiency of reading materials and inadequate preparation. Quoting a portion of the Explanatory Note of the proposed bill, its author Honorable Senator Pablo Angeles David stated: The reason for relaxing the standard 75 per cent passing grade is the tremendous handicap which students during the years immediately after the Japanese occupation has to overcome such as the insufficiency of reading materials and the inadequacy of the preparation of students who took up law soon after the liberation. Of the 9,675 candidates who took the examinations from 1946 to 1952, 5,236 passed. And now it is claimed that in addition 604 candidates be admitted (which in reality total 1,094), because they suffered from "insufficiency of reading materials" and of "inadequacy of preparation." By its declared objective, the law is contrary to public interest because it qualifies 1,094 law graduates who confessedly had inadequate preparation for the practice of the profession, as was exactly found by this Tribunal in the aforesaid examinations. The public interest demands of legal profession adequate preparation and efficiency, precisely more so as legal problem evolved by the times become more difficult. An adequate legal preparation is one of the vital requisites for the practice of law that should be developed constantly and maintained firmly. To the legal profession is entrusted the protection of property, life, honor and civil liberties. To approve officially of those inadequately prepared individuals to dedicate themselves to such a

delicate mission is to create a serious social danger. Moreover, the statement that there was an insufficiency of legal reading materials is grossly exaggerated. There were abundant materials. Decisions of this court alone in mimeographed copies were made available to the public during those years and private enterprises had also published them in monthly magazines and annual digests. The Official Gazette had been published continuously. Books and magazines published abroad have entered without restriction since 1945. Many law books, some even with revised and enlarged editions have been printed locally during those periods. A new set of Philippine Reports began to be published since 1946, which continued to be supplemented by the addition of new volumes. Those are facts of public knowledge. Notwithstanding all these, if the law in question is valid, it has to be enforced. The question is not new in its fundamental aspect or from the point of view of applicable principles, but the resolution of the question would have been easier had an identical case of similar background been picked out from the jurisprudence we daily consult. Is there any precedent in the long Anglo-Saxon legal history, from which has been directly derived the judicial system established here with its lofty ideals by the Congress of the United States, and which we have preserved and attempted to improve, or in our contemporaneous judicial history of more than half a century? From the citations of those defending the law, we can not find a case in which the validity of a similar law had been sustained, while those against its validity cite, among others, the cases of Day (In re Day, 54 NE 646), of Cannon (State vs. Cannon, 240 NW, 441), the opinion of the Supreme Court of Massachusetts in 1932 (81 ALR 1061), of Guariña (24 Phil., 37), aside from the opinion of the President which is expressed in his vote of the original bill and which the postponement of the contested law respects. This law has no precedent in its favor. When similar laws in other countries had been promulgated, the judiciary immediately declared them without force or effect. It is not within our power to offer a precedent to uphold the disputed law. To be exact, we ought to state here that we have examined carefully the case that has been cited to us as a favorable precedent of the law — that of Cooper (22 NY, 81), where the Court of Appeals of New York revoked the decision of the Supreme court of that State, denying the petition of Cooper to be admitted to the practice of law under the provisions of a statute concerning the school of law of Columbia College promulgated on April 7, 1860, which was declared by the Court of Appeals to be consistent with the Constitution of the state of New York. It appears that the Constitution of New York at that time provided: They (i.e., the judges) shall not hold any other office of public trust. All votes for either of them for any elective office except that of the Court of Appeals, given by the Legislature or the people, shall be void. They shall not exercise any power of appointment to public office. Any male citizen of the age of twenty-one years, of good moral character, and who possesses the requisite qualifications of learning and ability, shall be entitled to admission to practice in all the courts of this State. (p. 93). According to the Court of Appeals, the object of the constitutional precept is as follows: Attorneys, solicitors, etc., were public officers; the power of appointing them had previously rested with the judges, and this was the principal appointing power which they possessed. The convention was evidently dissatisfied with the manner in which this power had been exercised, and with the restrictions which the judges had imposed upon admission to practice before them. The prohibitory clause in the section quoted was aimed directly at this power, and the insertion of the provision" expecting the admission of attorneys, in this particular section of the Constitution, evidently arose from its connection with the object of this prohibitory clause. There is nothing indicative of confidence in the courts or of a disposition to preserve any portion of their power over this subject, unless the Supreme Court is right in the inference it draws from the use of the word `admission' in the action referred to. It is urged that the admission spoken of must be by the court; that to admit means to grant leave, and that the power of granting necessarily implies the power of refusing, and of course the right of determining whether the applicant possesses the requisite qualifications to entitle him to admission.

These positions may all be conceded, without affecting the validity of the act. (p. 93.) Now, with respect to the law of April 7, 1860, the decision seems to indicate that it provided that the possession of a diploma of the school of law of Columbia College conferring the degree of Bachelor of Laws was evidence of the legal qualifications that the constitution required of applicants for admission to the Bar. The decision does not however quote the text of the law, which we cannot find in any public or accessible private library in the country. In the case of Cooper, supra, to make the law consistent with the Constitution of New York, the Court of Appeals said of the object of the law: The motive for passing the act in question is apparent. Columbia College being an institution of established reputation, and having a law department under the charge of able professors, the students in which department were not only subjected to a formal examination by the law committee of the institution, but to a certain definite period of study before being entitled to a diploma of being graduates, the Legislature evidently, and no doubt justly, considered this examination, together with the preliminary study required by the act, as fully equivalent as a test of legal requirements, to the ordinary examination by the court; and as rendering the latter examination, to which no definite period of preliminary study was essential, unnecessary and burdensome. The act was obviously passed with reference to the learning and ability of the applicant, and for the mere purpose of substituting the examination by the law committee of the college for that of the court. It could have had no other object, and hence no greater scope should be given to its provisions. We cannot suppose that the Legislature designed entirely to dispense with the plain and explicit requirements of the Constitution; and the act contains nothing whatever to indicate an intention that the authorities of the college should inquire as to the age, citizenship, etc., of the students before granting a diploma. The only rational interpretation of which the act admits is, that it was intended to make the college diploma competent evidence as to the legal attainments of the applicant, and nothing else. To this extent alone it operates as a modification of preexisting statutes, and it is to be read in connection with these statutes and with the Constitution itself in order to determine the present condition of the law on the subject. (p.89) xxx

xxx

xxx

The Legislature has not taken from the court its jurisdiction over the question of admission, that has simply prescribed what shall be competent evidence in certain cases upon that question. (p.93) From the foregoing, the complete inapplicability of the case of Cooper with that at bar may be clearly seen. Please note only the following distinctions: (1) The law of New York does not require that any candidate of Columbia College who failed in the bar examinations be admitted to the practice of law. (2) The law of New York according to the very decision of Cooper, has not taken from the court its jurisdiction over the question of admission of attorney at law; in effect, it does not decree the admission of any lawyer. (3) The Constitution of New York at that time and that of the Philippines are entirely different on the matter of admission of the practice of law. In the judicial system from which ours has been evolved, the admission, suspension, disbarment and reinstatement of attorneys at law in the practice of the profession and their supervision have been disputably a judicial function and responsibility. Because of this attribute, its continuous and zealous possession and exercise by the judicial power have been demonstrated during more than six centuries, which certainly "constitutes the most solid of titles." Even considering the power granted to Congress by our Constitution to repeal, alter supplement the rules promulgated by this Court regarding the admission to the practice of law,

to our judgment and proposition that the admission, suspension, disbarment and reinstatement of the attorneys at law is a legislative function, properly belonging to Congress, is unacceptable. The function requires (1) previously established rules and principles, (2) concrete facts, whether past or present, affecting determinate individuals. and (3) decision as to whether these facts are governed by the rules and principles; in effect, a judicial function of the highest degree. And it becomes more undisputably judicial, and not legislative, if previous judicial resolutions on the petitions of these same individuals are attempted to be revoked or modified. We have said that in the judicial system from which ours has been derived, the act of admitting, suspending, disbarring and reinstating attorneys at law in the practice of the profession is concededly judicial. A comprehensive and conscientious study of this matter had been undertaken in the case of State vs. Cannon (1932) 240 NW 441, in which the validity of a legislative enactment providing that Cannon be permitted to practice before the courts was discussed. From the text of this decision we quote the following paragraphs: This statute presents an assertion of legislative power without parallel in the history of the English speaking people so far as we have been able to ascertain. There has been much uncertainty as to the extent of the power of the Legislature to prescribe the ultimate qualifications of attorney at law has been expressly committed to the courts, and the act of admission has always been regarded as a judicial function. This act purports to constitute Mr. Cannon an attorney at law, and in this respect it stands alone as an assertion of legislative power. (p. 444) Under the Constitution all legislative power is vested in a Senate and Assembly. (Section 1, art. 4.) In so far as the prescribing of qualifications for admission to the bar are legislative in character, the Legislature is acting within its constitutional authority when it sets up and prescribes such qualifications. (p. 444) But when the Legislature has prescribed those qualifications which in its judgment will serve the purpose of legitimate legislative solicitude, is the power of the court to impose other and further exactions and qualifications foreclosed or exhausted? (p. 444) Under our Constitution the judicial and legislative departments are distinct, independent, and coordinate branches of the government. Neither branch enjoys all the powers of sovereignty which properly belongs to its department. Neither department should so act as to embarrass the other in the discharge of its respective functions. That was the scheme and thought of the people setting upon the form of government under which we exist. State vs. Hastings, 10 Wis., 525; Attorney General ex rel. Bashford vs. Barstow, 4 Wis., 567. (p. 445) The judicial department of government is responsible for the plane upon which the administration of justice is maintained. Its responsibility in this respect is exclusive. By committing a portion of the powers of sovereignty to the judicial department of our state government, under 42a scheme which it was supposed rendered it immune from embarrassment or interference by any other department of government, the courts cannot escape responsibility fir the manner in which the powers of sovereignty thus committed to the judicial department are exercised. (p. 445) The relation at the bar to the courts is a peculiar and intimate relationship. The bar is an attache of the courts. The quality of justice dispense by the courts depends in no small degree upon the integrity of its bar. An unfaithful bar may easily bring scandal and reproach to the administration of justice and bring the courts themselves into disrepute. (p.445) Through all time courts have exercised a direct and severe supervision over their bars, at least in the English speaking countries. (p. 445) After explaining the history of the case, the Court ends thus: Our conclusion may be epitomized as follows: For more than six centuries prior to the adoption of our Constitution, the courts of England, concededly subordinate to

Parliament since the Revolution of 1688, had exercise the right of determining who should be admitted to the practice of law, which, as was said in Matter of the Sergeant's at Law, 6 Bingham's New Cases 235, "constitutes the most solid of all titles." If the courts and judicial power be regarded as an entity, the power to determine who should be admitted to practice law is a constituent element of that entity. It may be difficult to isolate that element and say with assurance that it is either a part of the inherent power of the court, or an essential element of the judicial power exercised by the court, but that it is a power belonging to the judicial entity and made of not only a sovereign institution, but made of it a separate independent, and coordinate branch of the government. They took this institution along with the power traditionally exercise to determine who should constitute its attorney at law. There is no express provision in the Constitution which indicates an intent that this traditional power of the judicial department should in any manner be subject to legislative control. Perhaps the dominant thought of the framers of our constitution was to make the three great departments of government separate and independent of one another. The idea that the Legislature might embarrass the judicial department by prescribing inadequate qualifications for attorneys at law is inconsistent with the dominant purpose of making the judicial independent of the legislative department, and such a purpose should not be inferred in the absence of express constitutional provisions. While the legislature may legislate with respect to the qualifications of attorneys, but is incidental merely to its general and unquestioned power to protect the public interest. When it does legislate a fixing a standard of qualifications required of attorneys at law in order that public interests may be protected, such qualifications do not constitute only a minimum standard and limit the class from which the court must make its selection. Such legislative qualifications do not constitute the ultimate qualifications beyond which the court cannot go in fixing additional qualifications deemed necessary by the course of the proper administration of judicial functions. There is no legislative power to compel courts to admit to their bars persons deemed by them unfit to exercise the prerogatives of an attorney at law. (p. 450) Furthermore, it is an unlawful attempt to exercise the power of appointment. It is quite likely true that the legislature may exercise the power of appointment when it is in pursuance of a legislative functions. However, the authorities are well-nigh unanimous that the power to admit attorneys to the practice of law is a judicial function. In all of the states, except New Jersey (In re Reisch, 83 N.J. Eq. 82, 90 A. 12), so far as our investigation reveals, attorneys receive their formal license to practice law by their admission as members of the bar of the court so admitting. Cor. Jur. 572; Ex parte Secombre, 19 How. 9,15 L. Ed. 565; Ex parteGarland, 4 Wall. 333, 18 L. Ed. 366; Randall vs. Brigham, 7 Wall. 53, 19 L. Ed. 285; Hanson vs. Grattan, 48 Kan, 843, 115 P. 646, 34 L.R.A. 519; Danforth vs. Egan, 23 S. D. 43, 119 N.W. 1021, 130 Am. St. Rep. 1030, 20 Ann. Cas. 413. The power of admitting an attorney to practice having been perpetually exercised by the courts, it having been so generally held that the act of the court in admitting an attorney to practice is the judgment of the court, and an attempt as this on the part of the Legislature to confer such right upon any one being most exceedingly uncommon, it seems clear that the licensing of an attorney is and always has been a purely judicial function, no matter where the power to determine the qualifications may reside. (p. 451) In that same year of 1932, the Supreme Court of Massachusetts, in answering a consultation of the Senate of that State, 180 NE 725, said: It is indispensible to the administration of justice and to interpretation of the laws that there be members of the bar of sufficient ability, adequate learning and sound moral character. This arises from the need of enlightened assistance to the honest, and restraining authority over the knavish, litigant. It is highly important, also that the public be protected from incompetent and vicious practitioners, whose opportunity for doing mischief is wide. It was said by Cardoz, C.L., in People ex rel. Karlin vs. Culkin, 242 N.Y. 456, 470, 471, 162 N.E. 487, 489, 60 A.L.R. 851: "Membership in the bar is a privilege burden with conditions." One is admitted to the bar "for something more than private gain." He becomes an "officer of the court", and ,like the court itself, an instrument or agency to advance the end of justice. His cooperation with the court is due "whenever justice would be imperiled if cooperation was withheld." Without such attorneys at law

the judicial department of government would be hampered in the performance of its duties. That has been the history of attorneys under the common law, both in this country and England. Admission to practice as an attorney at law is almost without exception conceded to be a judicial function. Petition to that end is filed in courts, as are other proceedings invoking judicial action. Admission to the bar is accomplish and made open and notorious by a decision of the court entered upon its records. The establishment by the Constitution of the judicial department conferred authority necessary to the exercise of its powers as a coordinate department of government. It is an inherent power of such a department of government ultimately to determine the qualifications of those to be admitted to practice in its courts, for assisting in its work, and to protect itself in this respect from the unfit, those lacking in sufficient learning, and those not possessing good moral character. Chief Justice Taney stated succinctly and with finality in Ex parte Secombe, 19 How. 9, 13, 15 L. Ed. 565, "It has been well settled, by the rules and practice of common-law courts, that it rests exclusively with the court to determine who is qualified to become one of its officers, as an attorney and counselor, and for what cause he ought to be removed." (p.727) In the case of Day and others who collectively filed a petition to secure license to practice the legal profession by virtue of a law of state (In re Day, 54 NE 646), the court said in part: In the case of Ex parte Garland, 4 Wall, 333, 18 L. Ed. 366, the court, holding the test oath for attorneys to be unconstitutional, explained the nature of the attorney's office as follows: "They are officers of the court, admitted as such by its order, upon evidence of their possessing sufficient legal learning and fair private character. It has always been the general practice in this country to obtain this evidence by an examination of the parties. In this court the fact of the admission of such officers in the highest court of the states to which they, respectively, belong for, three years preceding their application, is regarded as sufficient evidence of the possession of the requisite legal learning, and the statement of counsel moving their admission sufficient evidence that their private and professional character is fair. The order of admission is the judgment of the court that the parties possess the requisite qualifications as attorneys and counselors, and are entitled to appear as such and conduct causes therein. From its entry the parties become officers of the court, and are responsible to it for professional misconduct. They hold their office during good behavior, and can only be deprived of it for misconduct ascertained and declared by the judgment of the court after opportunity to be heard has been afforded. Ex parte Hoyfron, admission or their exclusion is not the exercise of a mere ministerial power. It is the exercise of judicial power, and has been so held in numerous cases. It was so held by the court of appeals of New York in the matter of the application of Cooper for admission. Re Cooper 22 N. Y. 81. "Attorneys and Counselors", said that court, "are not only officers of the court, but officers whose duties relate almost exclusively to proceedings of a judicial nature; and hence their appointment may, with propriety, be entrusted to the court, and the latter, in performing his duty, may very justly considered as engaged in the exercise of their appropriate judicial functions." (pp. 650-651). We quote from other cases, the following pertinent portions: Admission to practice of law is almost without exception conceded everywhere to be the exercise of a judicial function, and this opinion need not be burdened with citations in this point. Admission to practice have also been held to be the exercise of one of the inherent powers of the court. — Re Bruen, 102 Wash. 472, 172 Pac. 906. Admission to the practice of law is the exercise of a judicial function, and is an inherent power of the court. — A.C. Brydonjack, vs. State Bar of California, 281 Pac. 1018; See Annotation on Power of Legislature respecting admission to bar, 65, A.L. R. 1512. On this matter there is certainly a clear distinction between the functions of the judicial and legislative departments of the government. The distinction between the functions of the legislative and the judicial departments is that it is the province of the legislature to establish rules that shall regulate and govern in

matters of transactions occurring subsequent to the legislative action, while the judiciary determines rights and obligations with reference to transactions that are past or conditions that exist at the time of the exercise of judicial power, and the distinction is a vital one and not subject to alteration or change either by legislative action or by judicial decree. The judiciary cannot consent that its province shall be invaded by either of the other departments of the government. — 16 C.J.S., Constitutional Law, p. 229. If the legislature cannot thus indirectly control the action of the courts by requiring of them construction of the law according to its own views, it is very plain it cannot do so directly, by settling aside their judgments, compelling them to grant new trials, ordering the discharge of offenders, or directing what particular steps shall be taken in the progress of a judicial inquiry. — Cooley's Constitutional Limitations, 192. In decreeing the bar candidates who obtained in the bar examinations of 1946 to 1952, a general average of 70 per cent without falling below 50 per cent in any subject, be admitted in mass to the practice of law, the disputed law is not a legislation; it is a judgment — a judgment revoking those promulgated by this Court during the aforecited year affecting the bar candidates concerned; and although this Court certainly can revoke these judgments even now, for justifiable reasons, it is no less certain that only this Court, and not the legislative nor executive department, that may be so. Any attempt on the part of any of these departments would be a clear usurpation of its functions, as is the case with the law in question. That the Constitution has conferred on Congress the power to repeal, alter or supplement the rule promulgated by this Tribunal, concerning the admission to the practice of law, is no valid argument. Section 13, article VIII of the Constitution provides: Section 13. The Supreme Court shall have the power to promulgate rules concerning pleading, practice, and procedure in all courts, and the admission to the practice of law. Said rules shall be uniform for all courts of the same grade and shall not diminish, increase or modify substantive rights. The existing laws on pleading, practice and procedure are hereby repealed as statutes, and are declared Rules of Court, subject to the power of the Supreme Court to alter and modify the same. The Congress shall have the power to repeal, alter, or supplement the rules concerning pleading, practice, and procedure, and the admission to the practice of law in the Philippines. — Constitution of the Philippines, Art. VIII, sec. 13. It will be noted that the Constitution has not conferred on Congress and this Tribunal equal responsibilities concerning the admission to the practice of law. the primary power and responsibility which the Constitution recognizes continue to reside in this Court. Had Congress found that this Court has not promulgated any rule on the matter, it would have nothing over which to exercise the power granted to it. Congress may repeal, alter and supplement the rules promulgated by this Court, but the authority and responsibility over the admission, suspension, disbarment and reinstatement of attorneys at law and their supervision remain vested in the Supreme Court. The power to repeal, alter and supplement the rules does not signify nor permit that Congress substitute or take the place of this Tribunal in the exercise of its primary power on the matter. The Constitution does not say nor mean that Congress may admit, suspend, disbar or reinstate directly attorneys at law, or a determinate group of individuals to the practice of law. Its power is limited to repeal, modify or supplement the existing rules on the matter, if according to its judgment the need for a better service of the legal profession requires it. But this power does not relieve this Court of its responsibility to admit, suspend, disbar and reinstate attorneys at law and supervise the practice of the legal profession. Being coordinate and independent branches, the power to promulgate and enforce rules for the admission to the practice of law and the concurrent power to repeal, alter and supplement them may and should be exercised with the respect that each owes to the other, giving careful consideration to the responsibility which the nature of each department requires. These powers have existed together for centuries without diminution on each part; the harmonious delimitation being found in that the legislature may and should examine if the existing rules on the admission to the Bar respond to the demands which public interest requires of a Bar endowed with high

virtues, culture, training and responsibility. The legislature may, by means of appeal, amendment or supplemental rules, fill up any deficiency that it may find, and the judicial power, which has the inherent responsibility for a good and efficient administration of justice and the supervision of the practice of the legal profession, should consider these reforms as the minimum standards for the elevation of the profession, and see to it that with these reforms the lofty objective that is desired in the exercise of its traditional duty of admitting, suspending, disbarring and reinstating attorneys at law is realized. They are powers which, exercise within their proper constitutional limits, are not repugnant, but rather complementary to each other in attaining the establishment of a Bar that would respond to the increasing and exacting necessities of the administration of justice. The case of Guariña (1913) 24 Phil., 37, illustrates our criterion. Guariña took examination and failed by a few points to obtain the general average. A recently enacted law provided that one who had been appointed to the position of Fiscal may be admitted to the practice of law without a previous examination. The Government appointed Guariña and he discharged the duties of Fiscal in a remote province. This tribunal refused to give his license without previous examinations. The court said: Relying upon the provisions of section 2 of Act No. 1597, the applicant in this case seeks admission to the bar, without taking the prescribed examination, on the ground that he holds the office of provincial fiscal for the Province of Batanes. Section 2 of Act No. 1597, enacted February 28, 1907, is as follows: Sec. 2. Paragraph one of section thirteen of Act Numbered One Hundred and ninety, entitled "An Act providing a Code of Procedure in Civil Actions and Special Proceedings in the Philippine Islands," is hereby amended to read as follows: 1. Those who have been duly licensed under the laws and orders of the Islands under the sovereignty of Spain or of the United States and are in good and regular standing as members of the bar of the Philippine Islands at the time of the adoption of this code; Provided, That any person who, prior to the passage of this act, or at any time thereafter, shall have held, under the authority of the United States, the position of justice of the Supreme Court, judge of the Court of First Instance, or judge or associate judge of the Court of Land Registration, of the Philippine Islands, or the position of Attorney General, Solicitor General, Assistant Attorney General, assistant attorney in the office of the Attorney General, prosecuting attorney for the City of Manila, city attorney of Manila, assistant city attorney of Manila, provincial fiscal, attorney for the Moro Province, or assistant attorney for the Moro Province, may be licensed to practice law in the courts of the Philippine Islands without an examination, upon motion before the Supreme Court and establishing such fact to the satisfaction of said court. The records of this court disclose that on a former occasion this appellant took, and failed to pass the prescribed examination. The report of the examining board, dated March 23, 1907, shows that he received an average of only 71 per cent in the various branches of legal learning upon which he was examined, thus falling four points short of the required percentage of 75. We would be delinquent in the performance of our duty to the public and to the bar, if, in the face of this affirmative indication of the deficiency of the applicant in the required qualifications of learning in the law at the time when he presented his former application for admission to the bar, we should grant him license to practice law in the courts of these Islands, without first satisfying ourselves that despite his failure to pass the examination on that occasion, he now "possesses the necessary qualifications of learning and ability." But it is contented that under the provisions of the above-cited statute the applicant is entitled as of right to be admitted to the bar without taking the prescribed examination "upon motion before the Supreme Court" accompanied by satisfactory proof that he has held and now holds the office of provincial fiscal of the Province of Batanes. It is urged that having in mind the object which the legislator apparently sought to attain in enacting the above-cited amendment to the earlier statute, and in view of the context generally and especially of the fact that the amendment was inserted as a proviso in that section

of the original Act which specifically provides for the admission of certain candidates without examination. It is contented that this mandatory construction is imperatively required in order to give effect to the apparent intention of the legislator, and to the candidate's claim de jure to have the power exercised. And after copying article 9 of Act of July 1, 1902 of the Congress of the United States, articles 2, 16 and 17 of Act No. 136, and articles 13 to 16 of Act 190, the Court continued: Manifestly, the jurisdiction thus conferred upon this court by the commission and confirmed to it by the Act of Congress would be limited and restricted, and in a case such as that under consideration wholly destroyed, by giving the word "may," as used in the above citation from Act of Congress of July 1, 1902, or of any Act of Congress prescribing, defining or limiting the power conferred upon the commission is to that extent invalid and void, as transcending its rightful limits and authority. Speaking on the application of the law to those who were appointed to the positions enumerated, and with particular emphasis in the case of Guariña, the Court held: In the various cases wherein applications for the admission to the bar under the provisions of this statute have been considered heretofore, we have accepted the fact that such appointments had been made as satisfactory evidence of the qualifications of the applicant. But in all of those cases we had reason to believe that the applicants had been practicing attorneys prior to the date of their appointment. In the case under consideration, however, it affirmatively appears that the applicant was not and never had been practicing attorney in this or any other jurisdiction prior to the date of his appointment as provincial fiscal, and it further affirmatively appears that he was deficient in the required qualifications at the time when he last applied for admission to the bar. In the light of this affirmative proof of his defieciency on that occasion, we do not think that his appointment to the office of provincial fiscal is in itself satisfactory proof if his possession of the necessary qualifications of learning and ability. We conclude therefore that this application for license to practice in the courts of the Philippines, should be denied. In view, however, of the fact that when he took the examination he fell only four points short of the necessary grade to entitle him to a license to practice; and in view also of the fact that since that time he has held the responsible office of the governor of the Province of Sorsogon and presumably gave evidence of such marked ability in the performance of the duties of that office that the Chief Executive, with the consent and approval of the Philippine Commission, sought to retain him in the Government service by appointing him to the office of provincial fiscal, we think we would be justified under the above-cited provisions of Act No. 1597 in waiving in his case the ordinary examination prescribed by general rule, provided he offers satisfactory evidence of his proficiency in a special examination which will be given him by a committee of the court upon his application therefor, without prejudice to his right, if he desires so to do, to present himself at any of the ordinary examinations prescribed by general rule. — (In re Guariña, pp. 48-49.) It is obvious, therefore, that the ultimate power to grant license for the practice of law belongs exclusively to this Court, and the law passed by Congress on the matter is of permissive character, or as other authorities say, merely to fix the minimum conditions for the license. The law in question, like those in the case of Day and Cannon, has been found also to suffer from the fatal defect of being a class legislation, and that if it has intended to make a classification, it is arbitrary and unreasonable. In the case of Day, a law enacted on February 21, 1899 required of the Supreme Court, until December 31 of that year, to grant license for the practice of law to those students who began studying before November 4, 1897, and had studied for two years and presented a diploma

issued by a school of law, or to those who had studied in a law office and would pass an examination, or to those who had studied for three years if they commenced their studies after the aforementioned date. The Supreme Court declared that this law was unconstitutional being, among others, a class legislation. The Court said: This is an application to this court for admission to the bar of this state by virtue of diplomas from law schools issued to the applicants. The act of the general assembly passed in 1899, under which the application is made, is entitled "An act to amend section 1 of an act entitled "An act to revise the law in relation to attorneys and counselors," approved March 28, 1884, in force July 1, 1874." The amendment, so far as it appears in the enacting clause, consists in the addition to the section of the following: "And every application for a license who shall comply with the rules of the supreme court in regard to admission to the bar in force at the time such applicant commend the study of law, either in a law or office or a law school or college, shall be granted a license under this act notwithstanding any subsequent changes in said rules". — In re Day et al, 54 N.Y., p. 646. . . . After said provision there is a double proviso, one branch of which is that up to December 31, 1899, this court shall grant a license of admittance to the bar to the holder of every diploma regularly issued by any law school regularly organized under the laws of this state, whose regular course of law studies is two years, and requiring an attendance by the student of at least 36 weeks in each of such years, and showing that the student began the study of law prior to November 4, 1897, and accompanied with the usual proofs of good moral character. The other branch of the proviso is that any student who has studied law for two years in a law office, or part of such time in a law office, "and part in the aforesaid law school," and whose course of study began prior to November 4, 1897, shall be admitted upon a satisfactory examination by the examining board in the branches now required by the rules of this court. If the right to admission exists at all, it is by virtue of the proviso, which, it is claimed, confers substantial rights and privileges upon the persons named therein, and establishes rules of legislative creation for their admission to the bar. (p. 647.) Considering the proviso, however, as an enactment, it is clearly a special legislation, prohibited by the constitution, and invalid as such. If the legislature had any right to admit attorneys to practice in the courts and take part in the administration of justice, and could prescribe the character of evidence which should be received by the court as conclusive of the requisite learning and ability of persons to practice law, it could only be done by a general law, persons or classes of persons. Const. art 4, section 2. The right to practice law is a privilege, and a license for that purpose makes the holder an officer of the court, and confers upon him the right to appear for litigants, to argue causes, and to collect fees therefor, and creates certain exemptions, such as from jury services and arrest on civil process while attending court. The law conferring such privileges must be general in its operation. No doubt the legislature, in framing an enactment for that purpose, may classify persons so long as the law establishing classes in general, and has some reasonable relation to the end sought. There must be some difference which furnishes a reasonable basis for different one, having no just relation to the subject of the legislation. Braceville Coal Co. vs. People, 147 Ill. 66, 35 N.E. 62; Ritchie vs. People, 155 Ill. 98, 40 N.E. 454; Railroad Co. vs. Ellis, 165 U.S. 150, 17 Sup. Ct. 255. The length of time a physician has practiced, and the skill acquired by experience, may furnish a basis for classification (Williams vs. People 121 Ill. 48, II N.E. 881); but the place where such physician has resided and practiced his profession cannot furnish such basis, and is an arbitrary discrimination, making an enactment based upon it void (State vs. Pennyeor, 65 N.E. 113, 18 Atl. 878). Here the legislature undertakes to say what shall serve as a test of fitness for the profession of the law, and plainly, any classification must have some reference to learning, character, or ability to engage in such practice. The proviso is limited, first, to a class of persons who began the study of law prior to November 4, 1897. This class is subdivided into two classes — First, those presenting diplomas issued by any law school of this state before December 31, 1899; and, second, those who studied law for the period of two years in a law office, or part of the time in a law school and part in a law office, who are to be admitted upon examination in the subjects specified in the present rules of this court, and as to this

latter subdivision there seems to be no limit of time for making application for admission. As to both classes, the conditions of the rules are dispensed with, and as between the two different conditions and limits of time are fixed. No course of study is prescribed for the law school, but a diploma granted upon the completion of any sort of course its managers may prescribe is made all-sufficient. Can there be anything with relation to the qualifications or fitness of persons to practice law resting upon the mere date of November 4, 1897, which will furnish a basis of classification. Plainly not. Those who began the study of law November 4th could qualify themselves to practice in two years as well as those who began on the 3rd. The classes named in the proviso need spend only two years in study, while those who commenced the next day must spend three years, although they would complete two years before the time limit. The one who commenced on the 3rd. If possessed of a diploma, is to be admitted without examination before December 31, 1899, and without any prescribed course of study, while as to the other the prescribed course must be pursued, and the diploma is utterly useless. Such classification cannot rest upon any natural reason, or bear any just relation to the subject sought, and none is suggested. The proviso is for the sole purpose of bestowing privileges upon certain defined persons. (pp. 647-648.) In the case of Cannon above cited, State vs. Cannon, 240 N.W. 441, where the legislature attempted by law to reinstate Cannon to the practice of law, the court also held with regards to its aspect of being a class legislation: But the statute is invalid for another reason. If it be granted that the legislature has power to prescribe ultimately and definitely the qualifications upon which courts must admit and license those applying as attorneys at law, that power can not be exercised in the manner here attempted. That power must be exercised through general laws which will apply to all alike and accord equal opportunity to all. Speaking of the right of the Legislature to exact qualifications of those desiring to pursue chosen callings, Mr. Justice Field in the case of Dent. vs. West Virginia, 129 U.S. 114, 121, 9 S. Ct. 232, 233, 32 L. Ed. 626, said: "It is undoubtedly the right of every citizen of the United States to follow any lawful calling, business or profession he may choose, subject only to such restrictions as are imposed upon all persons of like age, sex, and condition." This right may in many respects be considered as a distinguishing feature of our republican institutions. Here all vocations are all open to every one on like conditions. All may be pursued as sources of livelihood, some requiring years of study and great learning for their successful prosecution. The interest, or, as it is sometimes termed, the "estate" acquired in them — that is, the right to continue their prosecution — is often of great value to the possessors and cannot be arbitrarily taken from them, any more than their real or personal property can be thus taken. It is fundamental under our system of government that all similarly situated and possessing equal qualifications shall enjoy equal opportunities. Even statutes regulating the practice of medicine, requiring medications to establish the possession on the part of the application of his proper qualifications before he may be licensed to practice, have been challenged, and courts have seriously considered whether the exemption from such examinations of those practicing in the state at the time of the enactment of the law rendered such law unconstitutional because of infringement upon this general principle. State vs. Thomas Call, 121 N.C. 643, 28 S.E. 517; see, also, The State ex rel. Winkler vs. Rosenberg, 101 Wis. 172, 76 N.W. 345; State vs. Whitcom, 122 Wis. 110, 99 N.W. 468. This law singles out Mr. Cannon and assumes to confer upon him the right to practice law and to constitute him an officer of this Court as a mere matter of legislative grace or favor. It is not material that he had once established his right to practice law and that one time he possessed the requisite learning and other qualifications to entitle him to that right. That fact in no matter affect the power of the Legislature to select from the great body of the public an individual upon whom it would confer its favors. A statute of the state of Minnesota (Laws 1929, c. 424) commanded the Supreme Court to admit to the practice of law without examination, all who had served in the military or naval forces of the United States during the World War and received a honorable discharge therefrom and who (were disabled therein or thereby within the purview of the Act of Congress approved June 7th, 1924, known as "World War Veteran's Act, 1924 and whose disability is rated at least ten per cent thereunder at the time of the passage

of this Act." This Act was held |unconstitutional on the ground that it clearly violated the quality clauses of the constitution of that state. In re Application of George W. Humphrey, 178 Minn. 331, 227 N.W. 179. A good summary of a classification constitutionally acceptable is explained in 12 Am. Jur. 151153 as follows: The general rule is well settled by unanimity of the authorities that a classification to be valid must rest upon material differences between the person included in it and those excluded and, furthermore, must be based upon substantial distinctions. As the rule has sometimes avoided the constitutional prohibition, must be founded upon pertinent and real differences, as distinguished from irrelevant and artificial ones. Therefore, any law that is made applicable to one class of citizens only must be based on some substantial difference between the situation of that class and other individuals to which it does not apply and must rest on some reason on which it can be defended. In other words, there must be such a difference between the situation and circumstances of all the members of the class and the situation and circumstances of all other members of the state in relation to the subjects of the discriminatory legislation as presents a just and natural cause for the difference made in their liabilities and burdens and in their rights and privileges. A law is not general because it operates on all within a clause unless there is a substantial reason why it is made to operate on that class only, and not generally on all. (12 Am. Jur. pp. 151-153.) Pursuant to the law in question, those who, without a grade below 50 per cent in any subject, have obtained a general average of 69.5 per cent in the bar examinations in 1946 to 1951, 70.5 per cent in 1952, 71.5 per cent in 1953, and those will obtain 72.5 per cent in 1954, and 73.5 per cent in 1955, will be permitted to take and subscribe the corresponding oath of office as members of the Bar, notwithstanding that the rules require a minimum general average of 75 per cent, which has been invariably followed since 1950. Is there any motive of the nature indicated by the abovementioned authorities, for this classification ? If there is none, and none has been given, then the classification is fatally defective. It was indicated that those who failed in 1944, 1941 or the years before, with the general average indicated, were not included because the Tribunal has no record of the unsuccessful candidates of those years. This fact does not justify the unexplained classification of unsuccessful candidates by years, from 1946-1951, 1952, 1953, 1954, 1955. Neither is the exclusion of those who failed before said years under the same conditions justified. The fact that this Court has no record of examinations prior to 1946 does not signify that no one concerned may prove by some other means his right to an equal consideration. To defend the disputed law from being declared unconstitutional on account of its retroactivity, it is argued that it is curative, and that in such form it is constitutional. What does Rep. Act 972 intend to cure ? Only from 1946 to 1949 were there cases in which the Tribunal permitted admission to the bar of candidates who did not obtain the general average of 75 per cent: in 1946 those who obtained only 72 per cent; in the 1947 and those who had 69 per cent or more; in 1948, 70 per cent and in 1949, 74 per cent; and in 1950 to 1953, those who obtained 74 per cent, which was considered by the Court as equivalent to 75 per cent as prescribed by the Rules, by reason of circumstances deemed to be sufficiently justifiable. These changes in the passing averages during those years were all that could be objected to or criticized. Now, it is desired to undo what had been done — cancel the license that was issued to those who did not obtain the prescribed 75 per cent ? Certainly not. The disputed law clearly does not propose to do so. Concededly, it approves what has been done by this Tribunal. What Congress lamented is that the Court did not consider 69.5 per cent obtained by those candidates who failed in 1946 to 1952 as sufficient to qualify them to practice law. Hence, it is the lack of will or defect of judgment of the Court that is being cured, and to complete the cure of this infirmity, the effectivity of the disputed law is being extended up to the years 1953, 1954 and 1955, increasing each year the general average by one per cent, with the order that said candidates be admitted to the Bar. This purpose, manifest in the said law, is the best proof that what the law attempts to amend and correct are not the rules promulgated, but the will or judgment of the Court, by means of simply taking its place. This is doing directly what the Tribunal should have done during those years according to the judgment of Congress. In other words, the power exercised was not to repeal, alter or supplement the rules, which continue in force. What was

done was to stop or suspend them. And this power is not included in what the Constitution has granted to Congress, because it falls within the power to apply the rules. This power corresponds to the judiciary, to which such duty been confided. Article 2 of the law in question permits partial passing of examinations, at indefinite intervals. The grave defect of this system is that it does not take into account that the laws and jurisprudence are not stationary, and when a candidate finally receives his certificate, it may happen that the existing laws and jurisprudence are already different, seriously affecting in this manner his usefulness. The system that the said law prescribes was used in the first bar examinations of this country, but was abandoned for this and other disadvantages. In this case, however, the fatal defect is that the article is not expressed in the title will have temporary effect only from 1946 to 1955, the text of article 2 establishes a permanent system for an indefinite time. This is contrary to Section 21 (1), article VI of the Constitution, which vitiates and annuls article 2 completely; and because it is inseparable from article 1, it is obvious that its nullity affect the entire law. Laws are unconstitutional on the following grounds: first, because they are not within the legislative powers of Congress to enact, or Congress has exceeded its powers; second, because they create or establish arbitrary methods or forms that infringe constitutional principles; and third, because their purposes or effects violate the Constitution or its basic principles. As has already been seen, the contested law suffers from these fatal defects. Summarizing, we are of the opinion and hereby declare that Republic Act No. 972 is unconstitutional and therefore, void, and without any force nor effect for the following reasons, to wit: 1. Because its declared purpose is to admit 810 candidates who failed in the bar examinations of 1946-1952, and who, it admits, are certainly inadequately prepared to practice law, as was exactly found by this Court in the aforesaid years. It decrees the admission to the Bar of these candidates, depriving this Tribunal of the opportunity to determine if they are at present already prepared to become members of the Bar. It obliges the Tribunal to perform something contrary to reason and in an arbitrary manner. This is a manifest encroachment on the constitutional responsibility of the Supreme Court. 2. Because it is, in effect, a judgment revoking the resolution of this Court on the petitions of these 810 candidates, without having examined their respective examination papers, and although it is admitted that this Tribunal may reconsider said resolution at any time for justifiable reasons, only this Court and no other may revise and alter them. In attempting to do it directly Republic Act No. 972 violated the Constitution. 3. By the disputed law, Congress has exceeded its legislative power to repeal, alter and supplement the rules on admission to the Bar. Such additional or amendatory rules are, as they ought to be, intended to regulate acts subsequent to its promulgation and should tend to improve and elevate the practice of law, and this Tribunal shall consider these rules as minimum norms towards that end in the admission, suspension, disbarment and reinstatement of lawyers to the Bar, inasmuch as a good bar assists immensely in the daily performance of judicial functions and is essential to a worthy administration of justice. It is therefore the primary and inherent prerogative of the Supreme Court to render the ultimate decision on who may be admitted and may continue in the practice of law according to existing rules. 4. The reason advanced for the pretended classification of candidates, which the law makes, is contrary to facts which are of general knowledge and does not justify the admission to the Bar of law students inadequately prepared. The pretended classification is arbitrary. It is undoubtedly a class legislation. 5. Article 2 of Republic Act No. 972 is not embraced in the title of the law, contrary to what the Constitution enjoins, and being inseparable from the provisions of article 1, the entire law is void.

6. Lacking in eight votes to declare the nullity of that part of article 1 referring to the examinations of 1953 to 1955, said part of article 1, insofar as it concerns the examinations in those years, shall continue in force.

RESOLUTION Upon mature deliberation by this Court, after hearing and availing of the magnificent and impassioned discussion of the contested law by our Chief Justice at the opening and close of the debate among the members of the Court, and after hearing the judicious observations of two of our beloved colleagues who since the beginning have announced their decision not to take part in voting, we, the eight members of the Court who subscribed to this decision have voted and resolved, and have decided for the Court, and under the authority of the same: 1. That (a) the portion of article 1 of Republic Act No. 972 referring to the examinations of 1946 to 1952, and (b) all of article 2 of said law are unconstitutional and, therefore, void and without force and effect. 2. That, for lack of unanimity in the eight Justices, that part of article 1 which refers to the examinations subsequent to the approval of the law, that is from 1953 to 1955 inclusive, is valid and shall continue to be in force, in conformity with section 10, article VII of the Constitution. Consequently, (1) all the above-mentioned petitions of the candidates who failed in the examinations of 1946 to 1952 inclusive are denied, and (2) all candidates who in the examinations of 1953 obtained a general average of 71.5 per cent or more, without having a grade below 50 per cent in any subject, are considered as having passed, whether they have filed petitions for admission or not. After this decision has become final, they shall be permitted to take and subscribe the corresponding oath of office as members of the Bar on the date or dates that the chief Justice may set. So ordered. Bengzon, Montemayor, Jugo, Labrador, Pablo, Padilla, and Reyes, JJ., concur.

ANNEX I PETITIONERS UNDER REPUBLIC ACT NO. 972 A resume‚ of pertinent facts concerning the bar examinations of 1946 to 1953 inclusive follows: August, 19461 Board of Examiners: Hon. Pedro Tuason, Chairman, Prof. Gerardo Florendo, Atty. Bernardino Guerrero, Atty. Joaquin Ramirez, Atty. Crispin Oben, Hon. Jose Teodoro, Atty. Federico Agrava, Atty. Jose Perez Cardenas, and Hon. Bienvenido A. Tan, members. Number of candidates

206

Number of candidates whose grades were raised

12

73'S

6

72'S

6

Number of candidates who passed

85

Number of candidates who failed

121

Number of those affected by Republic Act No. 972

18

Percentage of success

(per cent) 41.62

Percentage of failure

(per cent) 58.74

Passing grade

(per cent) 72

November, 1946 Board of Examiners: The same as that of August, 1946, except Hon. Jose Teodoro who was substituted by Atty. Honesto K. Bausan. Number of candidates

481

Number of candidates whose grades were raised

19

(72 per cent and above 73 per cent --Minutes of March 31, 1947) Number of candidates who passed

249

Number of candidates who failed

228

Number of those affected by Republic Act No. 972

43

Percentage of success

(per cent) 52.20

Percentage of failure

(per cent) 47.80

Passing (By resolution of the Court).

grade (per cent) 72

October, 1947 Board of Examiners: Hon. Cesar Bengzon, Chairman, Hon. Guillermo B. Guevara, Atty. Antonio Araneta, Atty. Simon Cruz, Hon. Sixto de la Costa, Atty. Celso B. Jamora, Hon. Emilio Peña, Atty. Federico Agrava, Atty. Carlos B. Hilado, Members. Number of candidates

749

Number of candidates whose grades were raised

43

70.55 per cent with 2 subject below 50 per 1 cent 69 per cent

40

68 per cent

2

Number of candidates who passed

409

Number of candidates who failed

340

Number of those affected by Republic Act No. 972

972

Percentage of success

(per cent) 54.59

Percentage of failure

(per cent) 45.41

Passing grade

(per cent) 69

(by resolution of the Court). Note.--In passing the 2 whose grades were 68.95 per cent and 68.1 per cent respectively, the Court found out that they were not benefited at all by the bonus of 12 points given by the Examiner in Civil Law. August, 1948 Board of Examiners: Hon. Marceliano R. Montemayor, Chairman Hon. Luis P. Torres, Hon. Felipe Natividad, Hon. Jose Teodoro, Sr., Atty. Federico Agrava, Atty. Macario Peralta, Sr., Hon. Jesus G. Barrera, Hon. Rafael Amparo, Atty. Alfonso Ponce Enrile, Members. Number of candidates

899

Number of candidates whose grades were raised

64

71's

29

70's

35

Number of candidates who passed

490

Number of candidates who failed

409

Number of those affected by Republic Act No. 972

11

Percentage of success

(per cent) 62.40

Percentage of failure

(per cent) 37.60

Passing grade

(per cent) 70

(by resolution of the Court). August, 1949 Board of Examiners: Hon. Sabino Padilla, Chairman, Hon. Fernando Jugo, Hon. Enrique Filamor, Atty. Salvador Araneta, Hon. Pastor M. Endencia, Atty. Federico Agrava, Hon. Mariano H. de Joya, Hon. Felipe Natividad, Atty. Emeterio Barcelon, Members. Number of candidates

1,218

Number of candidates whose grades were raised (74's)

55

Number of candidates who passed

686

Number of candidates who failed

532

Number of those affected by Republic Act No. 972

164

Percentage of success

(per cent) 56.28

Percentage of failure

(per cent) 43.72

Passing grade

(per cent) 74

(by resolution of the Court). August, 1950 Board of Examiners: Hon. Fernando Jugo,2 Chairman, Hon. Guillermo B. Guevara, Atty. Enrique Altavas, Atty. Marcial P. Lichauco, Atty. Carlos B. Hilado, Atty. J. Antonio Araneta, Hon. Enrique V. Filamor, Hon. Francisco A. Delgado, Hon. Antonio Horrilleno, Members. Number of candidates

1,316

Number of candidates whose grades were raised

38

(The grade of 74 was raised to 75 per cent by recommendation and authority of the examiner in Remedial Law, Atty. Francisco Delgado). Number of candidates who passed

432

Number of candidates who failed

894

Number of those affected by Republic Act No. 972

26

Percentage of success

(per cent) 32.14

Percentage of failure

(per cent) 67.86

Passing grade

(per cent) 75

August, 1951 Board of Examiners: Hon. Guillermo F. Pablo, Chairman, Hon. Pastor M. Endencia, Atty. Enrique Altavas, Hon. Manuel Lim, Hon. Felipe Natividad, Hon. Vicente Albert, Atty. Arturo Alafriz, Hon. Enrique V. Filamor, Hon. Alfonso Felix, Members. Number of candidates

2,068

Number of candidates whose grades were raised (74's)

112

Number of candidates who passed

1,189

Number of candidates who failed

879

Number of those affected by Republic Act No. 972

196

Percentage of success

(per cent) 57.49

Percentage of failure

(per cent) 42.51

Passing grade

(per cent) 75

August, 1952

Board of Examiners: Hon. Sabino Padilla, Chairman, Hon. Pastor M. Endencia, Hon. Enrique V. Filamor, Atty. Francisco Ortigas, Hon. Emilio Peña, Atty. Emilio P. Virata, Hon. Alfonso Felix, Hon. Felipe Natividad, Atty. Macario Peralta, Sr., Members. Number of candidates

2,738

Number of candidates whose grades were raised (74's)

163

Number of candidates who passed

1,705

Number of candidates who failed

1,033

Number of those affected by Republic Act No. 972

426

Percentage of success

(per cent) 62.27

Percentage of failure

(per cent) 37.73

Passing grade

(per cent) 75

August, 1953 Board of Examiners: Hon. Fernando Jugo, Chairman, Hon. Pastor M. Endencia, Atty. Enrique Altavas, Atty. Francisco Ortigas, Jr., Hon. Emilio Peña, Atty. Jose S. de la Cruz, Hon. Alfonso Felix, Hon. Felipe Natividad, Hon. Mariano L. de la Rosa, Members. Number of candidates

2,555

Number of candidates whose grades were raised (74's)

100

Number of candidates who passed

1,570

Number of candidates who failed

986

Number of those affected by Republic Act No. 972

284

Percentage of success

(per cent) 61.04

Percentage of failure

(per cent) 38.96

Passing grade

(per cent) 75

A list of petitioners for admission to the Bar under Republic Act No. 972, grouped by the years in which they took the bar examinations, with annotations as to who had presented motions for reconsideration which were denied (MRD), and who filed mere motions for reconsideration without invoking said law, which are still pending, follows: PETITIONER UNDER THE BAR FLUNKERS' LAW Civ. Land Merc. Int. Pol. Crim. Rem. Leg. Gen. Av. MRD- 1. Agunod, Filemon L.

66

71

61

76 80

83

73

75

71.4

MRD- 2. Cunanan, Albino

76

72

74

75 70

70

65

72

71.45

MRD- 3. Mejia, Flaviano V.

64

64

65

68 83

74

68

80

69.85

MRD- 4. Orlina, Soledad R.

71

68

66

75 63

75

70

88

69.9

MRD- 5. Vivero, Antonio Lu.

75

73

73

65 63

66

65

80

69.95

MRD- 6. Gatchalian, Salud

72

66

71

75 78

68

65

50

69.65

69

79

75

75 71

89

55

75

70.8

MRD- 8. Advincula, David D.

76

80

62

86 81

72

60

65

70.5

9.

Agraviador, Alfredo L.

63

85

70

77 80

81

65

80

71.8

10.

Alacar, Pascual C.

61

63

83

79 71

85

65

80

72.05

11.

Amog, Pedro M.

75

66

76

78 81

74

55

85

72.2

1948

1949 7.

Abaya, Jesus A.

12.

Apolinario, Miguel S.

75

84

78

78 70

70

60

75

71.95

13.

Aquino, Maximo G.

82

77

71

77 76

77

60

75

73.15

14.

Asinas, Candido D.

75

83

69

80 81

83

55

85

72.65

15.

Baldivino, Jose B.

75

65

72

82 82

69

60

80

71.95

16.

Balintona, Bernardo

75

80

64

78 74

67

65

70

70

17.

Banawa, Angel L.

78

70

70

75 81

83

60

60

72.3

18.

Bandala, Anacleto A.

66

80

66

71 93

72

55

70

69.6

19.

Bandon, Alawadin L.

74

79

69

77 91

73

60

80

73.35

20.

Baquero, Benjamin

76

79

64

77 85

72

65

75

72.5

21.

Blanco, Jose

75

75

70

75 77

76

60

90

72.5

22.

Buenaluz, Victoriano T. 75

71

72

78 67

82

60

75

70.85

23.

Canda, Benjamin S.

75

72

75

82 76

77

65

75

73.55

24.

Canon, Guillermo

77

86

67

88 75

69

70

85

73.9

25.

Carlos, Estela S.

75

81

81

79 72

73

65

70

73.8

26.

Cerezo, Gregorio O.

69

76

76

79 71

80

55

80

70.4

27.

Clarin, Manuel L.

75

82

76

81 73

69

70

75

73.95

28.

Claudo, Conrado O.

76

62

78

77 73

72

60

70

71.4

29.

Condevillamar, Antonio 68 V.

65

74

80 85

75

60

75

71.65

MRD30.

Cornejo, Crisanto R.

72

75

69

82 83

79

65

80

73.4

31.

Corona, Olvido D.

68

76

73

81 81

72

60

75

71.15

32.

Dizon, Marcial C.

76

86

69

83 75

74

65

80

73.1

33.

Enriquez, Agustin P.

75

77

70

81 81

77

65

80

73.75

34.

Espiritu, Irineo E.

80

88

69

75 76

77

65

75

73.8

35.

Fernandez, Macario J. 63

82

76

75 81

84

65

75

72.95

36.

Gallardo, Amando C.

78

79

67

77 76

75

60

65

70.95

37.

Garcia, Freidrich M.

76

80

66

75 72

70

60

75

69.7

38.

Garcia, Julian L.

64

77

68

82 89

77

65

75

72.15

39.

Garcia, Leon Mo.

77

86

71

80 60

82

65

75

71.85

40.

Garcia, Pedro V.

76

82

73

81 74

83

60

85

73.6

41.

Garcia, Santiago C.

62

91

79

75 72

75

65

80

71.8

42.

Genoves, Pedro

75

83

70

78 87

76

55

80

72.7

43.

Gonzales, Amado P.

75

71

71

75 86

75

60

75

72.65

44.

Guia, Odon R. de

77

76

66

81 74

76

60

75

70.9

45.

Fernandez, Simeon

62

68

71

80 74

90

65

75

70.85

46.

Jakosalem, Filoteo

82

83

73

82 61

87

65

70

73.6

47.

Jesus, Felipe D. de

75

83

67

79 78

85

60

75

72.45

48.

Jocom, Jacobo M.

77

77

74

77 74

64

55

85

70.65

49.

Juares, Nicolas

77

84

56

76 73

82

60

85

70

50.

Kalalang, Remigio

65

75

74

80 70

70

65

85

70.3

51.

Layumas, Vicente L.

67

84

65

75 89

66

60

80

70.3

52.

Leyson, Amancio F.

69

83

75

76 81

75

65

75

73.15

53.

Libanan, Marcelino

71

83

61

77 80

81

65

85

71.75

54.

Lim, Jose E.

77

77

72

76 72

64

65

70

71.15

55.

Lim, Jose F.

70

75

62

83 80

71

65

80

70.4

56.

Linao, Mariano M.

66

84

76

78 80

75

60

75

71.75

57.

Lopez, Angelo P.

67

81

75

72 79

81

55

80

71

58.

Lopez, Eliezar M.

77

75

60

75 77

85

60

75

70.7

59.

Lopez, Nicanor S.

72

71

70

78 77

84

60

75

71.55

60.

Manoleto, Proceso D.

72

70

65

78 81

90

60

80

71.95

61.

Mancao, Alfredo P.

67

64

71

83 76

76

65

80

70.95

62.

Manera, Mariano A.

75

78

75

75 68

79

60

65

71

63.

Mercado, Arsenio N.

67

64

71

83 76

76

65

80

70.95

64.

Miranda, Benjamin G.

76

81

67

82 74

77

65

80

72.55

65.

Manad, Andres B.

77

75

68

82 69

72

65

75

71.15

66.

Orosco, Casimiro P.

72

84

69

81 70

82

65

75

71.9

67.

Padua, Manuel C.

76

76

68

80 79

79

50

75

70.1

68.

Palang, Basilio S.

71

75

82

71 55

87

55

75

69.6

69.

Palma, Cuadrato

62

75

69

93 80

79

55

80

69.5

70.

Pañganiban, Jose V.

67

83

61

81 91

74

60

75

70.6

71.

Pareja, Felipe

66

71

75

81 67

74

60

70

68.75

72.

Patalinjug, Eriberto

73

77

78

73 78

71

55

75

71.25

73.

Paulin, Jose C.

66

69

71

77 83

82

65

75

72.1

74.

Pido, Serafin C.

72

78

63

80 71

85

70

80

72.05

75.

Pimentel, Luis P.

77

75

76

81 76

68

55

80

71.6

76.

Plantilla, Rodrigo C.

72

78

68

89 79

81

65

85

73.55

77.

Regalario, Benito B.

72

80

64

80 75

81

55

80

69.55

78.

Robis, Casto P.

62

77

74

73 68

80

70

80

70.9

79.

Rodil, Francisco C.

68

69

70

81 76

75

65

75

70.75

80.

Rodriguez, Mariano I.

80

75

69

80 72

80

65

80

73.35

81.

Romero, Crispulo P.

78

75

66

77 76

83

65

75

72.85

82.

Saez, Porfirio D.

75

75

72

81 69

77

60

75

71

83.

Saliguma, D.

Crisogono 79

79

74

78 69

65

65

70

71.8

84.

Samano, Fortunato A.

75

84

72

77 70

82

60

75

71.9

85.

Santos, Faustina C.

71

68

68

76 75

85

55

75

69.5

86.

Santos, Josefina R.

68

69

76

71 77

82

65

75

72.3

87.

Seludo, Ananias G.

75

80

69

79 77

82

65

75

73.25

88.

Semilia, Rafael I.

68

85

55

83 89

79

65

80

71.25

89.

Telan, Gaudencio

77

79

70

75 70

75

60

75

70.85

90.

Tesorero, Leocadio T.

75

71

63

75 82

62

65

63

69.65

91.

Torre, Valentin S. de la 85

81

71

76 69

65

55

70

70.4

92.

Torres, Ariston L.

78

71

72

81 61

84

55

85

70.4

93.

Veyra, Zosimo C. de

70

75

71

79 65

80

65

80

70.65

94.

Viado, Jose

67

70

74

75 75

90

55

80

70.7

95.

Villacarlos, Delfin A.

73

87

71

82 69

70

75

85

73.85

96.

Villamil, Leonor S.

73

81

76

86 86

73

55

85

73.6

97.

Zabala, Amando A.

76

70

67

75 76

76

60

75

70.6

Cruz, Filomeno de la

70

71

78

81 76

72

64

96

73.4

1948

1950 MRD-

98. 99.

Española, Pablo S.

71

78

55

76 85

69

65

93

70.2

100.

Foronda, Clarencio J.

60

78

68

79 84

88

62

93

71.9

101.

Hechanova, Vicente

59

76

75

75 69

68

75

96

71.3

MRD102.

Peñalosa, Osias R.

80

78

61

76 61

77

66

85

70.2

103.

Sarmiento, Floro A.

65

86

63

82 89

72

60

72

70.15

MRD104.

Torre, Catalino P.

75

85

68

78 69

67

65

69

70.25

105.

Ungson, Fernando S.

61

87

75

70 57

85

83

82

72.8

106.

Abasolo, Romulo

77

70

64

65 76

70

76

64

71.7

107.

Adeva, Daniel G.

75

59

74

65 69

51

78

67

70.4

108.

Aguilar, Vicente Z.

73

63

68

75 70

69

75

75

71.25

109.

Amodia, Juan T.

75

76

66

75 76

60

77

76

72.35

MRD110.

Añosa, Pablo S.

76

78

63

75 74

61

75

79

71.6

111.

Antiola, Anastacio R.

68

76

75

70 71

70

81

66

73.05

112.

Aquino, S. Rey A.

70

71

71

60 74

62

76

77

71.1

113.

Atienza, Manuel G.

71

78

68

80 86

51

82

75

73.85

114.

Avanceña, Alfonso

71

71

65

75 70

72

78

80

71.8

MRD115.

Balacuit, Camilo N.

75

73

75

70 72

65

75

76

73.25

116.

Barinaga, Jeremias L.

68

69

73

70 74

50

80

79

71.2

MRD117.

Barrientos, D.

Ambrosio 76

60

67

55 74

63

77

62

70.25

MRD118.

Benitez, Tomas P.

67

75

75

60 73

72

75

78

72.2

119.

Biason, Sixto F.

73

82

67

65 66

72

77

68

71.25

MRD120.

Briñas, Isagani A.

71

69

74

70 76

52

79

72

71.95

121.

Buela, Arcadio P.

72

77

61

70 71

58

79

71

69.75

122.

Cabilao, Leonardo S.

73

50

75

75 75

60

71

79

71.25

123.

Cabrera, Ireneo M.

75

66

70

65 72

81

70

79

72.4

124.

Cacacho, Emilio V.

125.

Calilung, Soledad C.

64

73

73

80 73

57

75

59

69.65

MRD126.

Calimlim, Jose B.

64

73

73

80 73

57

75

59

69.65

127.

Calimlim, Pedro B.

66

82

69

60 69

52

83

75

70

128.

Camello, Sotero H.

70

77

63

65 75

66

84

64

71.55

129.

Campos, Juan A.

71

88

70

75 64

69

71

62

70.15

130.

Castillo, Antonio del

78

78

70

60 79

67

69

76

72.65

MRD131.

Castillo, Ad.

Dominador 75

61

72

75 74

71

67

66

71.1

MRD132.

Castro, Jesus B.

72

86

72

75 65

75

76

71

72.85

133.

Casuga, Bienvenido B. 75

72

72

70 69

61

75

60

70.95

134.

Cabangbang, Santiago 77 B.

67

61

80 73

59

83

76

72.2

1951

135.

Cruz, Federico S.

69

74

75

75 68

65

76

70

71.65

136.

Dacanay, Eufemio P.

70

73

62

75 72

69

85

71

72.05

137.

Deysolong, Felisberto

66

62

72

75 70

62

83

62

70.85

MRD138.

Dimaano, Jr., Jose N.

78

79

63

75 73

75

81

59

73.5

139.

Espinosa, Domingo L.

78

63

58

70 70

67

87

63

71.6

MRD140.

Farol, Evencia C.

80

78

66

75 81

72

62

73

72.25

141.

Felix, Conrado S.

71

71

75

65 70

58

75

69

70.75

142.

Fernan, Pablo L.

67

88

66

85 73

68

78

75

72.35

143.

Gandioco, Salvador G. 64

58

66

65 76

70

89

75

72.1

144.

Gastardo, Crispin B.

70

69

68

75 78

66

86

72

73.9

145.

Genson, Angelo B.

75

57

73

65 67

54

78

56

69.55

146.

Guiani, Guinald M.

68

60

75

65 74

67

75

77

71.5

147.

Guina, Graciano P.

66

69

67

60 78

52

83

61

69.6

MRD148.

Homeres, Praxedes P. 74

74

75

75 71

69

75

71

73.35

149.

Ibarra, Venancio M.

60

75

74

70 74

70

80

75

71.9

150.

Imperial, Monico L.

72

78

75

75 72

56

82

77

73.7

MRD151.

Ibasco, Jr., Emiliano M. 71

70

63

85 71

60

85

53

70.85

152.

Inandan, Fortunato C.

77

77

67

53 73

75

79

57

72.5

153.

Jimenez, Florencio C.

75

70

70

75 72

61

75

78

72.05

154.

Kintanar, Woodrow M. 70

83

72

65 76

73

75

69

72.95

155.

Languido, Cesar V.

63

71

63

85 70

61

85

79

70.55

156.

Lavilles, Cesar L.

61

89

75

55 73

63

75

78

70.55

157.

Llenos, Francisco U.

64

70

65

60 72

65

92

75

71.75

158.

Leon, Marcelo D. de

63

73

60

85 75

75

90

70

72.75

159.

Llanto, Priscilla

72

68

60

65 76

67

84

68

71.35

160.

Machachor, Oscar

68

59

78

70 67

57

75

75

70.15

MRD161.

Magsino, Encarnacion 77

66

70

70 76

71

75

61

72.75

MRD162.

Maligaya, Demetrio M. 70

61

75

65 75

50

91

51

72.3

163.

Manio, Gregorio

67

67

69

80 71

67

75

75

70.65

164.

Puzon, Eduardo S.

72

82

60

60 69

70

68

72

62.05

MRD165.

Marcial, Meynardo R.

66

75

74

70 75

67

81

75

73.15

166.

Martin, Benjamin S.

68

72

63

75 69

63

84

62

70.1

MRD167.

Monterroyo, S.

Catalina 70

80

75

80 76

66

82

51

73.95

MRD168.

Montero, C.

Leodegario 73

67

66

80 81

65

81

75

73.75

169.

Monzon, Candido T.

70

72

74

75 67

70

77

69

72.05

170.

Natividad, Alberto M.

73

79

68

65 73

69

75

79

72.2

MRD171.

Navallo, Capistrano C. 70

72

68

85 81

66

71

74

72.1

172.

Nisce, Camilo Z.

66

75

65 79

68

85

62

73.5

66

MRD173.

Ocampo, Antonio F. de 75

81

76

65 74

67

75

69

73.75

174.

Olaviar, Jose O.

72

70

69

55 66

70

77

75

70.5

MRD175.

Perez, Cesario Z.

75

76

66

80 72

63

82

69

72.95

176.

Pogado, Causin O.

70

66

65

70 75

64

75

70

69.95

177.

Ramos-Balmori, Manuela

75

73

62

65 78

59

75

66

70.2

178.

Recinto, Ireneo I.

73

76

68

75 74

68

80

53

72.3

MRD179.

Redor, Francisco K.

62

77

73

75 69

64

76

69

70

MRD180.

Regis, Deogracias A.

76

74

68

65 65

65

88

75

73.35

181.

Rigor, Estelita C.

67

78

61

80 71

77

79

65

70.9

MRD182.

Rimorin-Gordo, Estela 70

72

62

60 88

66

67

79

70.15

183.

Rosario, Prisco del

70

64

70

70 72

73

85

57

72.65

184.

Rosario, Vicente D. del 75

91

65

75 68

68

79

62

72.2

185.

Saavedra, Felipe

73

80

63

75 76

73

68

62

70.35

186.

Salazar, Alfredo N.

66

72

73

75 67

68

77

69

70.85

187.

Salem, Romulo R.

77

81

72

65 73

60

76

75

73

188.

Foz, Julita A.

75

72

75

75 65

70

76

64

72.5

189.

Santa Ana, Candido T. 77

69

65

75 81

75

70

75

73

190.

Santos, Aquilino

72

66

69

65 68

70

81

71

71.7

191.

Santos, Valeriano V.

76

72

75

75 68

62

76

79

73.1

192.

Suico, Samuel

73

79

72

75 71

59

84

65

73.3

193.

Suson, Teodorico

74

68

66

80 66

59

79

67

70.35

194.

Tado, Florentino P.

64

76

67

65 76

72

76

53

69.7

195.

Tapayan, Domingo A.

69

72

69

70 76

73

82

79

73.75

MRD196.

Tiausas, Miguel V.

67

60

71

75 79

67

84

60

72.7

197.

Torres, Carlos P.

68

71

71

70 70

63

82

71

71.6

198.

Tria, Hipolito

69

72

75

60 69

54

78

66

70.05

199.

Velasco, Avelino A.

65

72

75

75 71

67

78

76

72.1

200.

Villa, Francisco C.

65

80

73

75 68

79

65

75

70.2

201.

Villagonzalo, Job R.

78

67

74

65 72

51

69

71

70.25

202.

Villarama, Jr., Pedro

75

74

75

55 75

66

67

75

71.45

203.

Abacon, Pablo

75

72

78

81 78

72

64

55

72.7

MRP204.

Abad, Agapito

73

76

73

85 75

63

62

75

70.95

MRP205.

Abella, Ludovico B.

70

81

76

81 70

66

77

58

72.7

MRP206.

Abellera, Geronimo F.

75

79

79

87 76

51

63

70

71.7

MRP207.

Abenojar, Agapito N.

71

72

78

84 70

75

69

70

72.9

208.

Alandy, Doroteo R.

64

83

93

91 68

59

60

60

71.2

209.

Alano, Fabian T.

70

83

61

83 72

87

72

70

71.9

1952

MRP210.

Alcantara, Pablo V.

71

79

80

81 73

70

72

62

73.65

211.

Arcangel, Agustin Ag.

75

85

71

73 76

65

68

65

71.85

212.

Acosta, Dionisio N.

75

81

78

87 56

65

77

70

72.8

MRP213.

Abinguna, Agapito C.

66

85

80

84 75

58

76

75

73.65

214.

Adove, Nehemias C.

76

86

78

77 66

78

69

62

73.55

215.

Adrias, Inocencio C.

75

83

61

88 76

67

79

75

73.4

216.

Aglugub, Andres R.

75

83

73

88 72

62

72

62

72.65

217.

Andrada, Mariano L.

76

85

66

87 63

77

75

77

73.

MRP218.

Almeda, Serafin V.

72

72

75

81 61

67

73

65

70.75

219.

Almonte-Peralta, Felicidad

73

71

72

91 75

67

65

53

70.7

MRP220.

Amodia, Juan T.

75

79

68

85 62

64

75

78

71.4

MRP221.

Antonio, Felino A.

71

76

81

83 79

52

72

70

73.3

MRP222.

Antonio, Jose S.

75

92

90

68 65

64

68

60

73.75

223.

Añonuevo, Ramos B.

71

87

78

81 64

63

74

76

72.7

224.

Aquino, S. Rey A.

67

77

57

78 69

70

69

80

67.7

225.

Arteche, Filomeno D.

78

83

50

89 76

77

70

70

70.8

MRP226.

Arribas, Isaac M.

75

78

70

81 73

70

67

78

72.2

MRP227.

Azucena, Ceferino D.

72

67

78

89 72

67

77

65

73.95

228.

Atienza, Ricardo

72

87

70

79 66

55

75

75

70.85

229.

Balacuit, Camilo N.

75

78

89

75 70

54

66

75

73.3

MRP230.

Baclig, Cayetano S.

77

84

83

80 69

70

61

65

73

231.

Balcita, Oscar C.

75

77

79

90 64

60

67

50

70.65

232.

Barilea, Dominador Z.

71

67

82

77 64

61

65

80

70.5

MRP233.

Banta, Jose Y.

75

80

77

81 75

63

71

75

73.95

MRP234.

Barrientos, D.

Ambrosio 76

70

67

80 67

65

70

81

70.7

235.

Batucan, Jose M.

66

76

78

88 62

76

67

78

71.2

236.

Bautista, Atilano C.

70

82

84

85 58

61

71

62

71.25

237.

Bautista, Celso J.

71

68

63

87 80

67

80

70

72.75

238.

Belderon, Jose

76

81

76

92 70

66

67

62

72.65

MRP239.

Belo, Victor B.

76

77

64

73 75

71

76

76

72.85

MRP240.

Bejec, Conceso D.

79

80

73

82 63

77

75

50

73.15

MRP241.

Beltran, Gervasio M.

72

75

81

73 75

57

75

80

73.95

MRP242.

Benaojan, Robustiano 74 O.

84

77

84 75

63

68

62

72.85

MRP-

Beriña, Roger C.

80

79

79 68

72

64

78

71.85

70

243. MRP244.

Bihis, Marcelo M.

75

86

65

92 64

64

84

75

73.45

MRP245.

Binaoro, Vicente M.

73

69

78

83 73

59

70

82

72.75

MRP246.

Bobila, Rosalio B.

76

86

76

83 68

59

71

78

73.05

247.

Buenafe, Avelina R.

78

80

75

75 70

55

72

80

72.75

248.

Bueno, Anastacio F.

73

78

71

78 71

67

71

60

71.15

249.

Borres, Maximino L.

67

85

62

91 72

63

76

80

70.9

MRP250.

Cabegin, Cesar V.

72

71

76

75 74

70

71

60

72.2

MRP251.

Cabello, Melecio F.

72

78

78

89 58

70

67

71

70.5

MRP252.

Cabrera, Irineo M.

79

88

53

91 71

85

75

76

73.3

253.

Cabreros, Paulino N.

71

79

83

84 60

62

71

50

70.85

254.

Calayag, Florentino R. 69

79

66

88 69

75

68

76

70.6

MRP255.

Calzada, Cesar de la

76

72

80

67 62

71

66

62

70.85

256.

Canabal, Isabel

70

82

81

77 78

51

75

75

73.7

MRP257.

Cabugao, Pablo N.

76

87

69

80 58

64

78

75

71.8

258.

Calañgi, Mateo C.

73

93

71

87 70

66

69

62

71.8

259.

Canda, Benjamin S.

72

71

77

90 62

75

66

82

71.95

260.

Cantoria, Eulogio

71

80

71

89 70

55

72

75

71

261.

Capacio, Jr., Conrado

67

78

71

90 65

75

72

60

70.65

262.

Capitulo, Alejandro P.

75

70

53

87 78

63

76

91

71.2

MRP263.

Calupitan, Jr., Alfredo

75

93

81

76 64

75

68

56

73.15

MRP264.

Caluya, Arsenio V.

75

86

70

87 77

52

77

82

73.9

MRP265.

Campanilla, Mariano B. 80

75

78

77 73

71

63

76

73.65

MRP266.

Campos, Juan A.

66

85

83

84 67

61

80

57

73.25

267.

Cardoso, Angelita G.

78

71

73

76 79

56

69

60

71.8

268.

Cartagena, R.

Herminio 71

72

65

89 64

73

80

70

71.65

MRP269.

Castro, Daniel T.

65

75

77

76 85

60

75

69

73.15

270.

Cauntay, Gaudencio V. 70

78

72

73 77

69

64

80

71.2

271.

Castro, Pedro L. de

70

68

69

87 76

75

72

70

73.35

272.

Cerio, Juan A.

75

82

75

86 60

54

76

75

71.75

273.

Colorado, Alfonso R.

68

75

80

74 77

66

67

80

72.6

274.

Chavez, Doroteo M.

73

65

79

84 73

69

66

84

73.1

275.

Chavez, Honorato A.

77

76

79

86 74

53

71

75

73.65

MRP276.

Cobangbang, Orlando 69 B.

81

74

82 76

61

78

80

73.85

277.

Cortez, Armando R.

60

88

86 60

66

69

64

73.1

78

278.

Crisostomo, Jesus L.

76

87

74

76 62

55

76

66

71.45

MRP279.

Cornejo, Crisanto R.

68

87

78

86 79

50

80

60

73.7

MRP280.

Cruz, Raymundo

75

81

79

85 72

57

68

75

72.95

MRP281.

Cunanan, Jose C.

78

92

63

83 76

72

68

65

72.4

282.

Cunanan, Salvador F.

70

82

64

92 67

75

73

76

71.45

283.

Cimafranca, Agustin B. 71

76

76

80 70

71

75

71

73.35

284.

Crisol, Getulio R.

70

91

78

85 68

55

71

50

70.8

MRP285.

Dusi, Felicisimo R.

76

82

69

82 66

62

80

71

72.85

MRP286.

Datu, Alfredo J.

70

75

72

86 80

55

68

79

71.5

287.

Dacuma, Luis B.

71

67

87

83 71

50

65

70

71.25

MRP288.

Degamo, Pedro R.

73

80

82

74 80

67

67

57

73.65

289.

Delgado, Vicente N.

70

84

82

84 77

52

73

50

72.65

MRP290.

Diolazo, Ernesto A.

75

83

86

73 54

54

75

75

72.25

291.

Dionisio, Jr., Guillermo 73

84

64

89 71

78

75

66

72.8

MRP292.

Dichoso, Alberto M.

71

77

71

81 69

75

80

70

73.65

MRP293.

Dipasupil, Claudio R.

70

76

82

73 79

70

72

56

73.9

MRP294.

Delgado, Abner

75

84

63

67 64

60

70

72

68.35

MRP295.

Domingo, T.

Dominador 70

69

81

82 68

63

71

75

72.2

296.

Ducusin, Agapito B.

70

78

53

88 75

77

62

76

68.05

MRP297.

Duque, Antonio S.

75

77

78

86 76

72

64

75

73.9

298.

Duque, Castulo

75

80

73

83 66

67

65

66

70.65

299.

Ebbah, Percival B.

70

80

85

76 66

63

76

75

73.95

300.

Edisa, Sulpicio

65

77

75

89 75

62

75

65

72

301.

Edradan, Rosa C.

70

75

84

84 71

59

69

86

73.4

MRP302.

Enage, Jacinto N.

66

70

88

93 72

67

65

75

73.2

MRP303.

Encarnacion, B.

Alfonso 75

86

73

81 63

77

69

75

72.65

304.

Encarnacion, Cesar

65

78

58

68 66

64

75

78

67.1

305.

Estoista, Agustin A.

78

76

74

86 58

67

70

76

71.7

MRP306.

Fabros, Jose B.

66

75

80

82 80

71

67

70

73.05

MRP307.

Fajardo, Balbino P.

77

69

82

83 65

60

75

75

73.9

308.

Fajardo, Genaro P.

70

79

77

79 79

50

73

75

72.5

309.

Evangelista, P.

Felicidad 75

75

72

87 63

63

77

70

72.15

310.

Familara, Raymundo Z. 68

75

87

83 64

65

68

65

71.85

311.

Fariñas, Dionisio

70

78

89

66 65

75

70

50

72.75

312.

Favila, Hilario B.

71

84

74

70 75

67

73

59

72.2

MRP313.

Feliciano, Alberto I.

71

69

70

85 69

81

72

70

72.25

MRP314.

Fernando, Lope F.

73

77

86

79 70

76

64

50

73

MRP315.

Flores, Dionisio S.

78

72

77

83 67

60

68

73

72.05

MRP316.

Fortich, Benjamin B.

70

82

70

70 78

65

64

75

70.35

MRP317.

Fuente, Jose S. de la

76

88

72

74 60

71

79

79

73.55

318.

Fohmantes, Nazario S. 72

79

71

77 68

61

76

60

70.9

MRP319.

Fuggan, Lorenzo B.

76

81

74

69 71

71

73

60

72.85

320.

Gabuya, Jesus S.

70

83

82

83 70

63

75

65

73.75

321.

Galang, Victor N.

69

83

84

76 70

57

71

60

71.95

322.

Gaerlan, Manuel L.

73

87

77

90 67

61

72

75

73.15

323.

Galem, Nestor R.

72

79

86

78 60

61

75

70

73.05

324.

Gallardo, Jose Pe B.

75

88

75

75 63

70

70

65

71.85

MRP325.

Gallos, Cirilo B.

70

78

84

91 80

51

65

70

72.85

326.

Galindo, Eulalio D.

70

89

87

65 78

71

62

62

73.4

327.

Galman, Patrocinio G.

72

72

80

85 71

56

70

53

71.15

328.

Gamalinda, Carlos S.

76

79

81

86 67

63

69

55

72.55

329.

Gamboa, Antonio G.

71

67

70

72 76

60

75

68

70.95

330.

Gannod, Jose A.

69

80

75

81 68

62

73

68

71.25

MRP331.

Garcia, Matias N.

67

78

74

90 79

59

76

65

72.8

MRP332.

Ganete, Carmelo

75

87

77

82 74

57

68

81

73.3

333.

Gilbang, Gaudioso R.

75

67

80

82 67

57

64

70

70.5

334.

Gofredo, Claro C.

68

78

72

86 78

52

70

76

70.9

335.

Gomez, Jose S.

71

76

71

81 76

63

69

62

70.85

MRP336.

Gosiaoco, Lorenzo V.

68

93

85

78 64

69

70

54

72.35

MRP337.

Gonzales, Rafael C.

77

75

71

89 55

70

70

60

70.05

MRP338.

Gracia, Eulalia L. de

66

68

90

84 77

59

69

65

73.3

339.

Grageda, Jose M. A.

70

85

72

67 70

60

73

73

70.75

340.

Guzman, Juan de

75

86

69

84 64

79

75

76

73.6

MRP341.

Guzman, Mateo de

76

79

79

73 72

69

68

80

73.9

342.

Guzman, Salvador B.

71

61

74

72 61

66

78

75

70.75

343.

Guzman, Salvador T. 75 de

84

64

81 74

61

78

58

71.75

344.

Habelito, Geronimo E.

71

76

71

87 73

60

67

55

69.65

345.

Hedriana, Naterno G.

75

68

84

76 66

58

76

60

72.9

346.

Hernandez, Quintin B.

67

75

72

81 72

72

66

76

70.6

347.

Homeres, Agustin R.

73

84

65

86 70

77

63

76

70.7

348.

Ines, Leonilo F.

65

88

71

88 77

73

61

70

70.55

349.

Jamer, Alipio S.

68

75

83

89 80

61

65

50

72

MRP350.

Ibasco, Jr., Emiliano M. 75

65

68

85 76

70

83

54

73.8

MRP351.

Jardinico, Jr., Emilio

73

86

72

78 82

67

67

64

72.8

MRP352.

Jaen, Justiniano F.

76

75

78

84 71

66

70

77

73.85

353.

Jaring, Antonio S.

72

77

79

70 72

57

71

50

70.75

MRP354.

Javier, Aquilino M.

75

84

79

78 77

61

66

66

73.05

355.

Jomuad, Francisco

75

75

72

88 78

58

76

43

72.4

MRP356.

Jose, Nestor L.

78

61

64

73 68

76

64

80

69.7

357.

La Q, Jose M.

75

71

75

72 70

67

81

59

73.5

358.

Leon, Brigido C. de

67

75

78

91 78

51

72

80

72.55

359.

Leones, Constante B.

68

81

79

84 73

60

77

60

73

360.

Liboro, Horacio T.

72

69

80

87 73

62

70

61

72.4

361.

Llanera, Cesar L.

77

81

80

78 64

59

75

63

73

362.

Lomontod, Jose P.

75

76

69

70 73

76

74

75

73.2

363.

Luna, Lucito

70

75

69

83 59

53

74

75

68.4

MRP364.

Luz, Lauro L.

76

90

78

88 64

58

75

77

73.95

MRP365.

Macasaet, Tomas S.

73

81

72

83 66

75

72

70

72.5

366.

Magbiray, V.

Godofredo 80

67

84

76 70

62

65

68

73.05

367.

Majarais, Rodolfo P.

70

62

64

82 88

75

71

79

72.85

MRP368.

Makabenta, Eduardo

75

90

77

83 59

71

72

78

73.3

MRP369.

Malapit, Justiniano S.

74

83

74

89 58

60

72

76

71.1

370.

Maloles, Iluminado M.

70

87

73

76 77

50

76

76

72.3

371.

Maniquis, Daniel R.

75

80

73

91 69

71

65

70

72.1

372.

Maraña, Arsenio

65

79

60

72 73

51

75

86

67.9

373.

Marasigan, Napoleon

75

71

83

75 69

62

69

70

72.75

MRP374.

Marco, Jaime P.

75

67

74

76 64

75

75

57

71.9

MRP375.

Martir, Osmundo P.

70

86

76

78 72

71

75

53

72.95

MRP376.

Masancay, Amando E. 73

87

75

77 72

50

78

80

73.2

MRP377.

Mati-ong, Ignacio T.

62

87

72

79 73

76

69

77

71.3

378.

Mara, Guillermo L.

70

78

78

89 75

67

66

65

72.35

MRP379.

Mercado, Felipe A.

73

77

82

82 78

52

69

85

73.9

1952

MRP380.

Miculob, Eugenio P.

70

82

73

86 77

52

79

65

72.8

381.

Mison, Rafael M. Jr.,

79

78

73

75 71

68

69

53

71.95

MRP382.

Monponbanua, Antonio 79 D.

79

68

88 64

78

69

83

73.1

MRP383.

Montero, C.

89

69

89 70

68

70

75

72.15

384.

Morada, Servillano S.

75

76

67

71 65

66

75

76

70.9

385.

Mocorro, Generoso

78

84

78

84 60

73

68

70

73

MRP386.

Mosquera, L.

Estanislao 75

78

75

85 72

55

77

66

73.15

387.

Motus, Rodentor P.

80

78

70

94 72

75

70

57

73.75

388.

Macario, Pedro R.

70

67

74

86 78

63

72

66

72.15

MRP389.

Nadela, Geredion T.

72

64

64

81 73

50

75

75

69.15

MRP390.

Nazareno, Romeo P.

67

70

71

76 76

79

75

57

72.05

391.

Nieto, Benedicto S.

69

79

77

77 72

62

76

76

72.9

MRP392.

Noguera, Raymundo

71

86

81

80 73

56

72

70

73.15

MRP393.

Nodado, Domiciano R. 70

70

69

73 57

37

64

72

63.6

394.

Nono, Pacifico G.

67

77

78

67 75

59

71

76

71.35

MRP395.

Nuval, Manuel R.

78

72

67

90 72

68

78

67

73.65

396.

Ocampo, Augusto

75

90

77

72 69

55

65

67

60.7

397.

Oliveros, Amado A.

72

75

68

72 84

50

75

79

71.9

398.

Opiña, Jr., Pedro

76

77

74

67 73

66

68

70

71.85

MRP399.

Olaviar, Jose O.

70

62

85

81 74

50

68

79

71.8

MRP400.

Olandesca, Per O.

70

91

76

87 72

66

70

79

73.45

401.

Orden, Apolonio J.

72

65

84

86 66

50

72

68

71.45

402.

Ortiz, Melencio T.

71

75

78

81 66

67

70

78

72.1

MRP403.

Pablo, Fedelino S.

72

64

76

86 72

61

76

75

72.95

404.

Pacifico, Vicente V.

76

79

69

80 76

52

72

80

71.95

MRP405.

Paderna, Perfecto D.

75

69

72

75 78

58

75

70

72.6

406.

Padlan, Crispin M.

71

66

76

79 68

67

74

66

71.65

407.

Padilla, Jose C.

70

65

67

82 78

75

78

75

73.3

408.

Padilla, Jr., Estanislao 71 E.

88

78

86 59

75

78

50

72.95

MRP409.

Palma, Bartolome

67

81

80

82 71

75

69

75

73.25

MRP410.

Papa, Angel A.

75

72

85

85 77

59

63

71

73.45

MRP411.

Parayno, Mario V.

71

88

74

89 69

66

76

73

73.65

412.

Pariña, Santos L.

70

87

85

77 64

67

63

76

71.85

Leodegario 72

MRP413.

Pasion, Anastacio

63

80

68

81 82

79

76

58

72.55

414.

Pastrana, Rizal R.

69

76

71

76 68

63

77

83

71.65

MRP415.

Paulin, Jose O.

70

66

80

87 75

50

65

80

70.9

MRP416.

Pelaez, Jr., Vicente C. 79

87

73

83 69

71

68

65

73.2

417.

Peña, Jesus

75

75

75

62 75

70

60

66

70.4

418.

Perez, Toribio R.

71

64

81

92 69

58

67

70

71.25

419.

Pestaño, Melquiades

77

81

74

87 59

68

76

75

73.2

MRP420.

Pido, Serafin C.

77

81

72

82 69

71

60

75

71.15

421.

Pinlac, Filemon

67

76

74

86 65

79

65

72

70.55

422.

Poblete, Celso B.

72

79

82

76 66

64

74

50

72.15

MRP423.

Piza, Luz

68

70

75

87 74

67

64

75

70.8

424.

Puzon, Eduardo S.

72

80

81

69 72

53

67

70

71.05

425.

Quetulio, Josefina D.

75

90

60

93 64

78

76

83

72.9

MRP426.

Quipanes, Melchor V.

69

88

79

82 65

62

71

66

71.55

MRP427.

Quietson, Bayani R.

73

75

76

77 70

81

71

53

72.85

428.

Racho, Macario D.

68

75

81

82 78

53

66

54

70.55

429.

Ramirez, Sabas P.

71

80

73

87 62

62

75

80

71.65

MRP430.

Raffiñan, Jose A.

80

83

79

79 62

72

68

65

73.25

MRP431.

Ramos, Patricio S.

75

87

76

75 72

72

61

75

72.25

MRP432.

Ramos-Balmori, Manuela

78

84

76

90 48

75

80

65

73.45

MRP433.

Raro, Celso

75

81

76

67 75

77

55

77

71.4

MRP434.

Rayos, Victor S.

75

86

79

91 71

67

67

70

73.9

435.

Revilla, Mariano S.

75

78

81

90 70

54

69

81

73.35

436.

Reyes, Abdon L.

72

64

81

78 76

73

69

53

72.85

437.

Reyes, Domingo B.

72

87

78

83 72

75

62

70

72.7

438.

Reyes, Francisco M.

75

85

84

68 75

71

68

50

73.9

439.

Reyes, Lozano M.

80

57

78

79 78

65

64

79

73.35

MRP440.

Reyes, Oscar R.

75

75

82

82 76

64

68

60

73.65

441.

Rigonan, Cesar V.

71

85

65

86 75

70

76

70

72.7

442.

Rivera, Honorio

71

56

70

90 71

65

75

71

71.2

MRP443.

Rivero, A.

Buenaventura 72

88

72

94 68

73

66

80

72.6

MRP444.

Robles, Enrique

75

77

75

77 82

64

69

70

73.7

445.

Rodriguez, Arellano

Orestes 76

75

76

63 69

77

65

78

72.25

446.

Roldan, Jose V.

80

79

83 73

71

75

70

73.9

67

447.

Rosario, Adelaida R. 80 del

75

65

70 68

72

80

70

73.15

448.

Rosario, Restituto F. 75 del

75

79

90 68

65

66

63

72.1

MRP449.

Sabelino, Conrado S.

71

81

69

75 77

71

75

70

72.95

450.

San Juan, Damaso

77

86

72

89 59

76

65

72

71.6

451.

Sañiel, Felix L.

72

93

76

80 67

75

66

62

72.1

452.

Samaniego, Jesus B.

75

80

76

72 60

67

68

70

70.6

MRP453.

Sandoval, M.

Emmanuel 75

83

70

83 77

67

77

60

73.95

MRP454.

Sanidad, Emmanuel Q. 71

75

81

90 62

64

76

68

72.95

455.

Santiago, Jr., Cristobal 75

76

84

93 63

65

59

70

71.8

456.

Santillan, Juanito Ll.

76

89

83

83 63

58

65

52

71.25

MRP457.

Santos, Rodolfo C.

75

75

78

82 73

76

66

70

73.7

MRP458.

Santos, Ruperto M.

67

54

69

76 63

64

71

60

66.75

MRP459.

Santos, Aquilino C.

72

71

73

79 73

79

71

85

73.8

MRP460.

Santos, Rufino A.

75

81

79

85 74

72

66

54

73.3

461.

Suanding, Bantas

75

67

67

92 79

59

76

76

73.1

MRP462.

Sulit, Feliz M.

76

79

76

78 72

75

68

67

73.5

463.

Songco, Felicisimo G.

70

68

82

84 60

69

76

65

73.35

464.

Soriano, Aniceto S.

64

79

77

80 80

53

70

65

70.7

465.

Suarez, Pablo D.

73

85

70

87 76

70

64

70

71.9

MRP466.

Sybico, Jesus L.

79

70

70

72 75

75

72

60

73.05

467.

Tabaque, Benjamin R. 69

68

77

79 74

68

72

60

71.85

MRP468.

Tan Kiang, Clarita

81

79

72

80 62

75

73

80

73.95

MRP469.

Tando, Amado T.

71

82

78

83 71

61

71

60

72

470.

Tasico, Severo E.

71

69

75

89 70

75

67

63

71.65

471.

Tiburcio, Ismael P.

73

82

72

93 76

57

68

54

71.15

MRP472.

Tiongson, Federico T.

70

70

76

84 77

75

75

50

73.45

MRP473.

Tolentino, Jesus C.

75

89

63

84 85

73

73

50

73.4

474.

Torrijas, Alfredo A.

77

66

67

83 68

75

71

63

71.3

MRP475.

Tobias, Artemio M.

69

58

74

81 71

55

65

57

67.55

MRP476.

Trillana, Jr., Apolonio

76

86

76

86 70

68

75

50

73.8

MRP477.

Trinidad, Manuel O.

66

91

83

75 63

66

67

65

70.8

478.

Trinidad, Pedro O.

66

78

78

85 78

51

64

75

70.8

MRP479.

Udarbe, Flavio J.

80

82

77

82 67

56

68

75

72.6

480.

Umali, Osmundo C.

68

75

81

80 71

69

68

60

71.7

481.

Umayam, Juanito C.

77

75

87

85 56

56

66

60

71

MRP482.

Usita, Gelacio U.

75

72

75

74 73

76

71

70

73.55

483.

Valino, Francisco M.

72

81

80

84 62

78

71

75

73.7

484.

Varela, Dominador M.

67

75

81

86 72

57

81

70

73.85

485.

Vega, Macairog L. de

78

62

79

87 70

70

71

65

73.8

MRP486.

Velasco, Emmanuel D. 71

80

74

85 60

66

76

76

71.85

487.

Velez, Maria E.

73

70

89

80 56

50

72

67

71.05

MRP488.

Venal, Artemio V.

78

91

58

67 76

55

75

73

73.65

489.

Venus, Conrado B.

69

81

74

85 62

66

72

77

77.05

MRP490.

Verzosa, Federico B.

75

79

72

88 76

68

74

59

73.7

MRP491.

Villafuerte, Eduardo V. 75

83

70

76 64

64

75

65

71.2

MRP492.

Villanueva, Cecilio C.

75

85

79

88 66

77

67

70

73.95

493.

Villar, Custodio R.

73

69

70

88 76

66

69

50

70.75

MRP494.

Villaseñor, Leonidas F. 80

85

67

77 62

75

76

73

73.15

495.

Viterbo, Jose H.

80

77

65

93 70

65

65

65

70.65

496.

Yaranon, Pedro

70

77

76

85 72

50

75

75

71.85

MRP497.

Yasay, Mariano R.

75

75

72

76 63

77

70

60

71.1

MRP498.

Ygay, Venancio M.

73

80

83

84 62

59

72

77

72.65

499.

Yulo, Jr., Teodoro

73

82

78

75 60

81

75

75

73.95

500.

Zamora, Alberto

70

65

76

79 62

77

69

82

71.3

501.

Rigonan, Felipe C.

70

79

69

89 76

62

71

64

71.2

A list of those who petitioned for the consolidation of their grades in subjects passed in previous examinations, showing the years in which they took the examinations together with their grades and averages, and those who had filed motions for reconsideration which were denied, indicated by the initials MRD, follows: PETITIONERS UNDER REPUBLIC ACT NO. 72 Civ. Land Merc. Int. Pol. Crim. Rem. Leg. Gen. Av. 1.

Amao, Sulpicio M.

1946

68

67

76

76 73

73

49

50

66.5

1950

59

80

67

77 62

80

71

57

67.4

1951

65

76

58

55 59

63

75

72

64.9

1952

65

68

75

84 72

59

73

57

69.75

1953

57

74

68

68 76

52

71

76

66.7

2.

Baldo, Olegario Ga.

3.

Blanco, Jose B.

MRD-1949

75

75

70

75 77

76

60

90

72.15

1951

64

71

58

65 68

70

75

71

66.95

1950

71

80

62

75 75

81

55

92

69.3

1951

70

60

61

65 77

64

67

81

67.85

MRD-1949

69

70

76

73 76

71

55

60

68.65

1950

60

71

55

67 67

75

56

89

68.1

MRD-1949

60

70

82

79 70

69

60

80

69.25

1950

57

65

51

69 54

85

56

84

60.3

1946

63

53

69

76 75

76

57

69

66.55

1952

70

75

69

83 59

53

74

75

68.4

1949

72

68

68

75 75

72

60

75

69.35

1952

65

79

60

72 73

51

75

86

67.9

1951

61

60

58

60 70

63

75

64

64.8

1952

70

77

65

79 66

52

70

50

66.4

1953

78

64

66

68 81

50

71

78

70.65

1950

25

75

45

75 45

52

46

71

46.2

1951

70

77

65

79 66

52

70

50

66.4

1952

75

75

75

62 75

70

60

66

70.4

1950

68

78

70

75 69

70

58

69

67.75

1951

65

62

75

60 73

57

75

71

66.8

1949

65

75

72

75 60

75

55

85

66.65

1951

68

57

48

60 91

66

55

75

64.05

1952

68

53

68

67 58

56

75

64

65.7

1952

67

80

51

69 69

77

73

53

66.35

1953

65

67

78

74 75

62

69

80

70.9

1951

67

60

70

65 68

56

75

66

67.75

1952

70

71

67

78 67

75

71

70

70.1

1948

39

69

82

75 76

72

55

50

63.5

MRD-1949

67

56

69

75 72

77

60

75

68

4.

5.

6.

7.

8.

9.

Condeno, Mateo

Ducusin, Agapito B.

Garcia, Manuel N.

Luna, Lucito A.

Maraña, Arsenio s.

Montano, Manuel M.

10. Peña, Jesus S.

11. Placido, Sr., Isidro

12. Rementizo, Filemon S.

13. Amao, Sulpicio M.

14. Rodulfa, Juan T.

15. Sanchez, Juan J.

1951

70

59

55

60 68

57

78

67

65.8

1952

62

76

54

82 72

77

66

65

66.65

1953

73

71

70

65 78

64

65

78

70.4

1951

60

64

55

70 68

52

70

75

62.85

1952

75

64

70

81 76

55

61

75

69.1

1953

70

71

79

65 72

54

66

80

70

MRD-1948

50

64

76

66 66

69

60

52

63.1

MRD-1949

47

66

78

64 71

86

65

85

68

1950

35

65

40

75 63

57

27

49

45

MRD-1951

68

59

72

55 69

65

75

75

69.3

1953

70

73

74

70 81

56

69

71

71.05

16. Santos, Constantino

17. Santos, Salvador H.

18. Sevilla, Macario C.

Finally, with regards to the examinations of 1953, while some candidates--85 in all--presented motions for reconsideration of their grades, others invoked the provisions of Republic Act No. 972. A list of those candidates separating those who filed mere motions for reconsideration (56) from those who invoked the aforesaid Republic act, is as follows: 1953 PETITIONERS FOR RECONSIDERATION Civ. Land Merc. Int. Pol. Crim. Rem. Leg. Gen. Av. 1.

Acenas, Calixto R.

73

70

68

62 82

51

67

77

73.45

2.

Alcantara, Pedro N.

67

70

75

85 87

54

71

80

72.8

3.

Alejandro, Exequiel

67

72

71

75 80

76

75

77

73.4

4.

Andres, Gregorio M.

70

73

86

58 79

50

71

78

72.7

5.

Arnaiz, Antonio E.

66

80

76

58 79

68

77

81

73.4

6.

Asis, Floriano U. de

66

78

75

81 77

55

73

69

71.25

7.

Bacaiso, Celestino M.

71

65

76

68 76

50

75

70

70.95

8.

Bala, Florencio F.

64

82

47

70 82

58

75

82

67

9.

Baldo, Olegario A.

57

74

68

68 76

52

71

76

66.7

10.

Barrios, Benjamin O.

65

71

76

75 80

62

83

73

73.95

11.

Buhay, Eduardo L.

73

76

71

91 76

61

74

78

73.35

12.

Burgos, Dominador C.

72

80

89

61 66

37

69

68

70.05

13.

Cariño, Eldo J.

79

81

60

75 74

74

76

74

73

14.

Casar, Dimapuro

67

73

84

79 77

61

71

74

73.35

15.

Castañeda, Gregorio

70

73

80

71 75

70

73

78

73.95

16.

Estrellado, Benjamin R.

67

79

64

73 82

62

71

74

70.2

17.

Fabunan, Edilberto C.

70

72

68

69 77

60

76

74

71.1

18.

Feril, Domingo B.

75

71

84

65 70

60

65

70

71.6

19.

Fernandez, Alejandro G.

65

75

87

80 81

63

61

80

72.8

20.

Gapus, Rosita S. (Miss)

76

80

86

77 64

74

66

69

73.9

21.

Garcia, Rafael B.

70

86

70

75 73

63

73

75

71.65

22.

Gracia, Miguel L. de

73

68

75

59 80

51

72

71

71

23.

Gungon, Armando G.

68

76

76

84 77

57

77

83

73.6

24.

Gutierrez, Antonio S.

68

77

66

70 72

59

71

74

69.1

25.

Ilejay, Abraham I.

77

70

76

77 81

62

70

68

73.7

26.

Leon, Benjamin La. De

66

66

75

70 77

55

71

82

70.35

27.

Lugtu, Felipe L.

62

70

78

65 78

56

69

81

69.9

28.

Lukman, Abdul-Hamid

76

64

67

69 73

59

73

75

70.45

29.

Maloles, Jr., Benjamin G. 77

76

68

68 71

51

75

78

70.85

30.

Maloles, Julius G.

77

71

60

71 79

62

68

72

69.75

31.

Mandi, Santiago P.

65

76

70

61 79

68

75

72

71.1

32.

Margete, Rufino C.

70

76

66

75 85

73

71

75

72.75

33.

Melocoton, Nestorio B.

70

81

73

78 83

52

72

75

72.35

34.

Molina, Manuel C.

75

78

70

61 75

63

66

85

70.95

35.

Muñoz, Mariano A.

75

80

86

67 74

57

68

76

73.75

36.

Navarro, M.

Buenaventura 80

75

65

75 83

55

73

79

73

37.

Nodado, Domiciano R.

60

67

67

50 70

50

56

75

61.7

38.

Papas, Sisenando B.

65

62

71

61 70

56

66

67

66

39.

Pagulayan-Sy, Fernando 63

75

71

62 83

67

70

72

70.4

40.

Padula, Benjamin C.

70

77

54

62 74

78

75

68

69.05

41.

Pasno, Enrique M.

78

72

66

54 71

58

72

78

69.85

42.

Peña, Jr., Narciso

70

95

81

78 67

66

67

73

72.55

43.

Peralta, Rodolfo P.

70

70

52

81 68

63

59

69

63.7

44.

Pigar, Leopoldo R.

76

75

78

61 72

72

71

79

73.75

45.

Publico, Paciano L.

68

69

76

76 70

59

74

67

70.6

46.

Radaza, Leovigildo

75

78

76

61 77

50

71

86

72.2

47.

Ramos, Bernardo M.

64

62

75

93 81

52

66

80

70.1

48.

Rabaino, Andres D.

68

72

75

73 78

55

69

76

70.65

49.

Ravanera, Oscar N.

70

77

80

71 82

62

69

78

73.6

50.

Renovilla, Jose M.

65

75

80

68 79

52

62

78

69.5

51.

Sabaot, Solomon B.

69

73

80

69 82

69

69

79

73.85

52.

Sumaway, Ricardo S.

66

76

69

76 74

56

72

68

69.1

53.

Torrefiel, Sofronio O.

70

77

74

75 73

50

68

72

69.55

54.

Vera, Federico V. de

60

61

47

77 69

50

67

77

60.9

55.

Viray, Venancio Bustos

65

67

67

52 73

64

71

65

67.15

56.

Ylaya, Angela P. (Miss)

63

70

56

75 68

54

70

77

64.5

PETITIONERS UNDER REPUBLIC ACT NO. 972 Civ. Land Merc. Int. Pol. Crim. Rem. Leg. Gen. Av. 1.

Ala, Narciso

70

71

73

59 73

74

81

77

73.5

2.

Alcantara, Pedro N.

67

70

75

85 87

54

71

80

72.8

3.

Arellano, Antonio L.

74

66

73

60 78

63

78

72

72.9

4.

Buhay, Eduardo L.

73

76

71

91 76

61

74

78

73.35

5.

Calautit, Celestino R.

71

78

84

75 75

61

68

72

73.2

6.

Casuncad, Sulvio P.

61

73

82

69 81

68

71

84

73.05

7.

Enriquez, Pelagio Concepcion

y 84

69

76

75 82

50

58

79

72.05

8.

Estonina, Severino

80

74

64

89 81

56

68

82

72.4

9.

Fernandez, Alejandro Q.

65

75

87

80 81

63

61

80

72.8

10.

Fernandez, Luis N.

70

75

77

75 78

67

72

73

73.35

11.

Figueroa, Alfredo A.

70

75

87

78 75

50

68

68

72.3

12.

Formilleza, Pedro

65

75

89

68 83

51

70

75

73.25

13.

Garcia, Manuel M.

69

68

83

83 73

62

62

70

71

14.

Grospe, Vicente E.

68

75

78

66 79

61

69

82

71.6

15.

Galema, Nestor R. (1952) 72

79

86

78 60

61

75

70

73.05

16.

Jacobo, Rafael F.

76

76

75

74 76

50

72

76

72.3

17.

Macalindong, Reinerio L. 67

77

79

79 74

72

68

77

72.75

18.

Mangubat, Antonio M.

70

70

78

61 80

74

62

70

71.45

19.

Montano, Manuel M.

78

64

66

68 81

50

71

78

70.65

20.

Plomantes, Marcos

73

67

74

58 68

70

76

71

71.6

21.

Ramos, Eugenio R.

70

80

76

67 72

69

72

79

72.6

22.

Reyes, Juan R.

71

73

77

76 81

59

72

74

73.2

23.

Reyes, Santiago R.

65

78

83

60 76

75

70

70

72.9

24.

Rivera, Eulogio J.

65

67

78

74 75

62

69

80

70.9

25.

Santos, Constantino P.

73

71

70

65 78

64

65

78

70.4

26.

Santos, Salvador H.

70

71

79

65 72

54

66

80

70

27.

Sevilla, Macario C.

70

73

74

70 81

56

69

71

71.05

28.

Villavicencio, Jose A.

78

75

70

67 69

77

64

77

73.2

29.

Viray, Ruperto G.

76

73

76

73 80

58

68

83

73.25

There are the unsuccessful candidates totaling 604 directly affected by this resolution. Adding 490 candidates who have not presented any petition, they reach a total of 1,094. The Enactment of Republic Act No. 972 As will be observed from Annex I, this Court reduced to 72 per cent the passing general average in the bar examination of august and November of 1946; 69 per cent in 1947; 70 per cent in 1948; 74 per cent in 1949; maintaining the prescribed 75 per cent since 1950, but raising to 75 per cent those who obtained 74 per cent since 1950. This caused the introduction in 1951, in the Senate of the Philippines of Bill No. 12 which was intended to amend Sections 5, 9, 12, 14 and 16 of Rule 127 of the Rules of Court, concerning the admission of attorneys-at-law to the practice of the profession. The amendments embrace many interesting matters, but those referring to sections 14 and 16 immediately concern us. The proposed amendment is as follows: SEC. 14. Passing average. — In order that a candidate may be deemed to have passed the examinations successfully, he must have obtained a general average of 70 per cent without falling below 50 per cent in any subject. In determining the average, the foregoing subjects shall be given the following relative weights: Civil Law, 20 per cent; Land Registration and Mortgages, 5 per cent; Mercantile Law, 15 per cent; Criminal Law, 10 per cent; Political Law, 10 per cent; International Law, 5 per cent; Remedial Law, 20 per cent; Legal Ethics and Practical Exercises, 5 per cent; Social Legislation, 5 per cent; Taxation, 5 per cent. Unsuccessful candidates shall not be required to take another examination in any subject in which they have obtained a rating of 70 per cent or higher and such rating shall be taken into account in determining their general average in any subsequent examinations: Provided, however, That if the candidate fails to get a general average of 70 per cent in his third examination, he shall lose the benefit of having already passed some subjects and shall be required to the examination in all the subjects.

SEC. 16. Admission and oath of successful applicants. — Any applicant who has obtained a general average of 70 per cent in all subjects without falling below 50 per cent in any examination held after the 4th day of July, 1946, or who has been otherwise found to be entitled to admission to the bar, shall be allowed to take and subscribe before the Supreme Court the corresponding oath of office. (Arts. 4 and 5, 8, No. 12). With the bill was an Explanatory Note, the portion pertinent to the matter before us being: It seems to be unfair that unsuccessful candidates at bar examinations should be compelled to repeat even those subjects which they have previously passed. This is not the case in any other government examination. The Rules of Court have therefore been amended in this measure to give a candidate due credit for any subject which he has previously passed with a rating of 75 per cent or higher." Senate Bill No. 12 having been approved by Congress on May 3, 1951, the President requested the comments of this Tribunal before acting on the same. The comment was signed by seven Justices while three chose to refrain from making any and one took no part. With regards to the matter that interests us, the Court said: The next amendment is of section 14 of Rule 127. One part of this amendment provides that if a bar candidate obtains 70 per cent or higher in any subject, although failing to pass the examination, he need not be examined in said subject in his next examination. This is a sort of passing the Bar Examination on the installment plan, one or two or three subjects at a time. The trouble with this proposed system is that although it makes it easier and more convenient for the candidate because he may in an examination prepare himself on only one or two subjects so as to insure passing them, by the time that he has passed the last required subjects, which may be several years away from the time that he reviewed and passed the firs subjects, he shall have forgotten the principles and theories contained in those subjects and remembers only those of the one or two subjects that he had last reviewed and passed. This is highly possible because there is nothing in the law which requires a candidate to continue taking the Bar examinations every year in succession. The only condition imposed is that a candidate, on this plan, must pass the examination in no more that three installments; but there is no limitation as to the time or number of years intervening between each examination taken. This would defeat the object and the requirements of the law and the Court in admitting persons to the practice of law. When a person is so admitted, it is to be presumed and presupposed that he possesses the knowledge and proficiency in the law and the knowledge of all law subjects required in bar examinations, so as presently to be able to practice the legal profession and adequately render the legal service required by prospective clients. But this would not hold true of the candidates who may have obtained a passing grade on any five subjects eight years ago, another three subjects one year later, and the last two subjects the present year. We believe that the present system of requiring a candidate to obtain a passing general average with no grade in any subject below 50 per cent is more desirable and satisfactory. It requires one to be all around, and prepared in all required legal subjects at the time of admission to the practice of law. xxx

xxx

xxx

We now come to the last amendment, that of section 16 of Rule 127. This amendment provides that any application who has obtained a general average of 70 per cent in all subjects without failing below 50 per cent in any subject in any examination held after the 4th day of July, 1946, shall be allowed to take and subscribe the corresponding oath of office. In other words, Bar candidates who obtained not less than 70 per cent in any examination since the year 1946 without failing below 50 per cent in any subject, despite their non-admission to the Bar by the Supreme Court because they failed to obtain a passing general average in any of those years, will be admitted to the Bar. This provision is not only prospective but retroactive in its effects. We have already stated in our comment on the next preceding amendment that we are not exactly in favor of reducing the passing general average from 75 per cent to 70 per

cent to govern even in the future. As to the validity of making such reduction retroactive, we have serious legal doubts. We should not lose sight of the fact that after every bar examinations, the Supreme Court passes the corresponding resolution not only admitting to the Bar those who have obtained a passing general average grade, but also rejecting and denying the petitions for reconsideration of those who have failed. The present amendment would have the effect of repudiating, reversing and revoking the Supreme Court's resolution denying and rejecting the petitions of those who may have obtained an average of 70 per cent or more but less than the general passing average fixed for that year. It is clear that this question involves legal implications, and this phase of the amendment if finally enacted into law might have to go thru a legal test. As one member of the Court remarked during the discussion, when a court renders a decision or promulgate a resolution or order on the basis of and in accordance with a certain law or rule then in force, the subsequent amendment or even repeal of said law or rule may not affect the final decision, order, or resolution already promulgated, in the sense of revoking or rendering it void and of no effect. Another aspect of this question to be considered is the fact that members of the bar are officers of the courts, including the Supreme Court. When a Bar candidate is admitted to the Bar, the Supreme Court impliedly regards him as a person fit, competent and qualified to be its officer. Conversely, when it refused and denied admission to the Bar to a candidate who in any year since 1946 may have obtained a general average of 70 per cent but less than that required for that year in order to pass, the Supreme Court equally and impliedly considered and declared that he was not prepared, ready, competent and qualified to be its officer. The present amendment giving retroactivity to the reduction of the passing general average runs counter to all these acts and resolutions of the Supreme Court and practically and in effect says that a candidate not accepted, and even rejected by the Court to be its officer because he was unprepared, undeserving and unqualified, nevertheless and in spite of all, must be admitted and allowed by this Court to serve as its officer. We repeat, that this is another important aspect of the question to be carefully and seriously considered. The President vetoed the bill on June 16, 1951, stating the following: I am fully in accord with the avowed objection of the bill, namely, to elevate the standard of the legal profession and maintain it on a high level. This is not achieved, however, by admitting to practice precisely a special class who have failed in the bar examination, Moreover, the bill contains provisions to which I find serious fundamental objections. Section 5 provides that any applicant who has obtained a general average of 70 per cent in all subjects without failing below 50 per cent in any subject in any examination held after the 4th day of July, 1946, shall be allowed to take and subscribed the corresponding oath of office. This provision constitutes class legislation, benefiting as it does specifically one group of persons, namely, the unsuccessful candidates in the 1946, 1947, 1948, 1949 and 1950 bar examinations. The same provision undertakes to revoke or set aside final resolutions of the Supreme Court made in accordance with the law then in force. It should be noted that after every bar examination the Supreme Court passes the corresponding resolution not only admitting to the Bar those who have obtained a passing general average but also rejecting and denying the petitions for reconsideration of those who have failed. The provision under consideration would have the effect of revoking the Supreme Court's resolution denying and rejecting the petitions of those who may have failed to obtain the passing average fixed for that year. Said provision also sets a bad precedent in that the Government would be morally obliged to grant a similar privilege to those who have failed in the examinations for admission to other professions such as medicine, engineering, architecture and certified public accountancy. Consequently, the bill was returned to the Congress of the Philippines, but it was not repassed by 2/3 vote of each House as prescribed by section 20, article VI of the Constitution. Instead Bill No. 371 was presented in the Senate. It reads as follows:

AN ACT TO FIX THE PASSING MARKS FOR BAR EXAMINATIONS FROM 1946 UP TO AND INCLUDING 1953 Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: SECTION 1. Notwithstanding the provisions of section 14, Rule 127 of the Rules of Court, any bar candidate who obtained a general average of 70 per cent in any bar examinations after July 4, 1946 up to the August 1951 Bar examinations; 71 per cent in the 1952 bar examinations; 72 per cent in the 1953 bar examinations; 73 per cent in the 1954 bar examinations; 74 per cent in 1955 bar examinations without a candidate obtaining a grade below 50 per cent in any subject, shall be allowed to take and subscribe the corresponding oath of office as member of the Philippine Bar; Provided, however, That 75 per cent passing general average shall be restored in all succeeding examinations; and Provided, finally, That for the purpose of this Act, any exact one-half or more of a fraction, shall be considered as one and included as part of the next whole number. SEC. 2. Any bar candidate who obtained a grade of 75 per cent in any subject in any bar examination after July 4, 1945 shall be deemed to have passed in such subject or subjects and such grade or grades shall be included in computing the passing general average that said candidate may obtain in any subsequent examinations that he may take. SEC. 3. This bill shall take effect upon its approval. With the following explanatory note: This is a revised Bar bill to meet the objections of the President and to afford another opportunity to those who feel themselves discriminated by the Supreme Court from 1946 to 1951 when those who would otherwise have passed the bar examination but were arbitrarily not so considered by altering its previous decisions of the passing mark. The Supreme Court has been altering the passing mark from 69 in 1947 to 74 in 1951. In order to cure the apparent arbitrary fixing of passing grades and to give satisfaction to all parties concerned, it is proposed in this bill a gradual increase in the general averages for passing the bar examinations as follows; For 1946 to 1951 bar examinations, 70 per cent; for 1952 bar examination, 71 per cent; for 1953 bar examination, 72 per cent; for 1954 bar examination, 73 percent; and for 1955 bar examination, 74 per cent. Thus in 1956 the passing mark will be restored with the condition that the candidate shall not obtain in any subject a grade of below 50 per cent. The reason for relaxing the standard 75 per cent passing grade, is the tremendous handicap which students during the years immediately after the Japanese occupation has to overcome such as the insufficiency of reading materials and the inadequacy of the preparation of students who took up law soon after the liberation. It is believed that by 1956 the preparation of our students as well as the available reading materials will be under normal conditions, if not improved from those years preceding the last world war. In this will we eliminated altogether the idea of having our Supreme Court assumed the supervision as well as the administration of the study of law which was objected to by the President in the Bar Bill of 1951. The President in vetoing the Bar Bill last year stated among his objections that the bill would admit to the practice of law "a special class who failed in the bar examination". He considered the bill a class legislation. This contention, however, is not, in good conscience, correct because Congress is merely supplementing what the Supreme Court have already established as precedent by making as low as 69 per cent the passing mark of those who took the Bar examination in 1947. These bar candidates for who this bill should be enacted, considered themselves as having passed the bar examination on the strength of the established precedent of our Supreme Court and were fully aware of the insurmountable difficulties and handicaps which they were unavoidably placed. We believe that such precedent cannot or could not have been

altered, constitutionally, by the Supreme Court, without giving due consideration to the rights already accrued or vested in the bar candidates who took the examination when the precedent was not yet altered, or in effect, was still enforced and without being inconsistent with the principles of their previous resolutions. If this bill would be enacted, it shall be considered as a simple curative act or corrective statute which Congress has the power to enact. The requirement of a "valid classification" as against class legislation, is very expressed in the following American Jurisprudence: A valid classification must include all who naturally belong to the class, all who possess a common disability, attribute, or classification, and there must be a "natural" and substantial differentiation between those included in the class and those it leaves untouched. When a class is accepted by the Court as "natural" it cannot be again split and then have the dissevered factions of the original unit designated with different rules established for each. (Fountain Park Co. vs. Rensier, 199 Ind. 95, N. E. 465 (1926). Another case penned by Justice Cardozo: "Time with its tides brings new conditions which must be cared for by new laws. Sometimes the new conditions affect the members of a class. If so, the correcting statute must apply to all alike. Sometimes the condition affect only a few. If so, the correcting statute may be as narrow as the mischief. The constitution does not prohibit special laws inflexibly and always. It permits them when there are special evils with which the general laws are incompetent to cope. The special public purpose will sustain the special form. . . . The problem in the last analysis is one of legislative policy, with a wide margin of discretion conceded to the lawmakers. Only in the case of plain abuse will there be revision by the court. (In Williams vs. Mayor and City Council of Baltimore, 286 U. S. 36, 77 L. Ed. 1015, 53 Sup. Ct. 431). (1932) This bill has all the earmarks of a corrective statute which always retroacts to the extent of the care of correction only as in this case from 1946 when the Supreme Court first deviated from the rule of 75 per cent in the Rules of Court. For the foregoing purposes the approval of this bill is earnestly recommended. (Sgd.) PABLO Senator

ANGELES

DAVID

Without much debate, the revised bill was passed by Congress as above transcribed. The President again asked the comments of this Court, which endorsed the following: Respectfully returned to the Honorable, the Acting Executive Secretary, Manila, with the information that, with respect to Senate Bill No. 371, the members of the Court are taking the same views they expressed on Senate Bill No. 12 passed by Congress in May, 1951, contained in the first indorsement of the undersigned dated June 5, 1951, to the Assistant Executive Secretary. (Sgd.) RICARDO PARAS The President allowed the period within which the bill should be signed to pass without vetoing it, by virtue of which it became a law on June 21, 1953 (Sec. 20, Art. VI, Constitution) numbered 972 (many times erroneously cited as No. 974). It may be mentioned in passing that 1953 was an election year, and that both the President and the author of the Bill were candidates for re-election, together, however, they lost in the polls.

Separate Opinions LABRADOR, J., concurring and dissenting: The right to admit members to the Bar is, and has always been, the exclusive privilege of this Court, because lawyers are members of the Court and only this Court should be allowed to determine admission thereto in the interest of the principle of the separation of powers. The power to admit is judicial in the sense that discretion is used in is exercise. This power should be distinguished from the power to promulgate rules which regulate admission. It is only this power (to promulgate amendments to the rules) that is given in the Constitution to the Congress, not the exercise of the discretion to admit or not to admit. Thus the rules on the holding of examination, the qualifications of applicants, the passing grades, etc. are within the scope of the legislative power. But the power to determine when a candidate has made or has not made the required grade is judicial, and lies completely with this Court. I hold that the act under consideration is an exercise of the judicial function, and lies beyond the scope of the congressional prerogative of amending the rules. To say that candidates who obtain a general average of 72 per cent in 1953, 73 per cent in 1954, and 74 per cent in 1955 should be considered as having passed the examination, is to mean exercise of the privilege and discretion judged in this Court. It is a mandate to the tribunal to pass candidates for different years with grades lower than the passing mark. No reasoning is necessary to show that it is an arrogation of the Court's judicial authority and discretion. It is furthermore objectionable as discriminatory. Why should those taking the examinations in 1953, 1954 and 1955 be allowed to have the privilege of a lower passing grade, while those taking earlier or later are not? I vote that the act in toto be declared unconstitutional, because it is not embraced within the rule-making power of Congress, because it is an undue interference with the power of this Court to admit members thereof, and because it is discriminatory.

PARAS, C.J., dissenting: Under section 145 of Rule of Court No. 127, in order that a bar candidate "may be deemed to have passed his examinations successfully, he must have obtained a general average of 75 per cent in all subjects, without falling below 50 per cent in any subject.' This passing mark has always been adhered to, with certain exception presently to be specified. With reference to the bar examinations given in August, 1946, the original list of successful candidates included only those who obtained a general average of 75 per cent or more. Upon motion for reconsideration, however, 12 candidates with general averages ranging from 72 to 73 per cent were raised to 75 per cent by resolution of December 18, 1946. In the examinations of November, 1946 the list first released containing the names of successful candidates covered only those who obtained a general average of 75 per cent or more; but, upon motion for reconsideration, 19 candidates with a general average of 72 per cent were raised to 75 per cent by resolution of March 31, 1947. This would indicate that in the original list of successful candidates those having a general average of 73 per cent or more but below 75 per cent were included. After the original list of 1947 successful bar candidates had been released, and on motion for reconsideration, all candidates with a general average of 69 per cent were allowed to pass by resolution of July 15, 1948. With respect to the bar examinations held in August, 1948, in addition to the original list of successful bar candidates, all those who obtained a general average of 70 per cent or more, irrespective of the grades in any one subject and irrespective of whether they filed petitions for reconsideration, were allowed to pass by resolution of April 28, 1949. Thus, for the year 1947 the Court in effect made 69 per cent as the passing average, and for the year 1948, 70 per cent; and this amounted, without being noticed perhaps, to an amendment of section 14 of Rule 127. Numerous flunkers in the bar examinations held subsequent to 1948, whose general averages mostly ranged from 69 to 73 per cent, filed motions for reconsideration invoking the precedents set by this Court in 1947 and 1948, but said motions were uniformly denied.

In the year 1951, the Congress, after public hearings where law deans and professors, practising attorneys, presidents of bar associations, and law graduates appeared and argued lengthily pro or con, approved a bill providing, among others, for the reduction of the passing general average from 75 per cent to 70 per cent, retroactive to any bar examination held after July 4, 1946. This bill was vetoed by the President mainly in view of an unfavorable comment of Justices Padilla, Tuason, Montemayor, Reyes, Bautista and Jugo. In 1953, the Congress passed another bill similar to the previous bill vetoed by the President, with the important difference that in the later bill the provisions in the first bill regarding (1) the supervision and regulation by the Supreme Court of the study of law, (2) the inclusion of Social Legislation and Taxation as new bar subjects, (3) the publication of the bar examiners before the holding of the examination, and (4) the equal division among the examiners of all the admission fees paid by bar applicants, were eliminated. This second bill was allowed to become a law, Republic Act No. 972, by the President by merely not signing it within the required period; and in doing so the President gave due respect to the will of the Congress which, speaking for the people, chose to repass the bill first vetoed by him. Under Republic Act No. 972, any bar candidates who obtained a general average of 70 per cent in any examinations after July 4, 1946 up to August 1951; 71 per cent in the 1952 bar examinations; 72 per cent in 1953 bar examinations; 73 per cent in the 1954 bar examinations; and 74 per cent in the 1955 bar examinations, without obtaining a grade below 50 per cent in any subject, shall be allowed to pass. Said Act also provides that any bar candidate who obtained a grade of 75 per cent in any subject in any examination after July 4, 1946, shall be deemed to have passed in such subject or subjects and such grade or grades shall be included in computing the passing in any subsequent examinations. Numerous candidates who had taken the bar examinations previous to the approval of Republic Act No. 972 and failed to obtain the necessary passing average, filed with this Court mass or separate petitions, praying that they be admitted to the practice of law under and by virtue of said Act, upon the allegation that they have obtained the general averages prescribed therein. In virtue of the resolution of July 6, 1953, this Court held on July 11, 1953 a hearing on said petitions, and members of the bar, especially authorized representatives of bar associations, were invited to argue or submit memoranda as amici curiae, the reason alleged for said hearing being that some doubt had "been expressed on the constitutionality of Republic Act No. 972 in so far as it affects past bar examinations and the matter" involved "a new question of public interest." All discussions in support of the proposition that the power to regulate the admission to the practice of law is inherently judicial, are immaterial, because the subject is now governed by the Constitution which in Article VII, section 13, provides as follows: The Supreme Court shall have the power to promulgate rules concerning pleading, practice, and procedure in all courts, and the admission to the practice of law. Said rules shall be uniform for all courts of the same grade and shall not diminish, increase or modify substantive right. The existing laws on pleading, practice, and procedure are hereby repealed as statutes and are declared Rules of Court, subject to the power of the Supreme Court to alter and modify the same. The Congress shall have the power to repeal, alter, or supplement the rules concerning pleading, practice, and procedure, and the admission to the practice of law in the Philippines. Under this constitutional provision, while the Supreme Court has the power to promulgate rules concerning the admission to the practice of law, the Congress has the power to repeal, alter or supplement said rules. Little intelligence is necessary to see that the power of the Supreme Court and the Congress to regulate the admission to the practice of law is concurrent. The opponents of Republic Act No. 972 argue that this Act, in so far as it covers bar examinations held prior to its approval, is unconstitutional, because it sets aside the final resolutions of the Supreme Court refusing to admit to the practice of law the various petitioners, thereby resulting in a legislative encroachment upon the judicial power. In my opinion this view is erroneous. In the first place, resolutions on the rejection of bar candidates do not have the finality of decisions in justiciable cases where the Rules of Court expressly fix certain periods after which they become executory and unalterable. Resolutions on bar matters, specially on

motions for reconsiderations filed by flunkers in any give year, are subject to revision by this Court at any time, regardless of the period within which the motion were filed, and this has been the practice heretofore. The obvious reason is that bar examinations and admission to the practice of law may be deemed as a judicial function only because said matters happen to be entrusted, under the Constitution and our Rules of Court, to the Supreme Court. There is no judicial function involved, in the subject and constitutional sense of the word, because bar examinations and the admission to the practice of law, unlike justiciable cases, do not affect opposing litigants. It is no more than the function of other examining boards. In the second place, retroactive laws are not prohibited by the Constitution, except only when they would be ex post facto, would impair obligations and contracts or vested rights or would deny due process and equal protection of the law. Republic Act No. 972 certainly is not an ex post facto enactment, does not impair any obligation and contract or vested rights, and denies to no one the right to due process and equal protection of the law. On the other hand, it is a mere curative statute intended to correct certain obvious inequalities arising from the adoption by this Court of different passing general averages in certain years. Neither can it be said that bar candidates prior to July 4, 1946, are being discriminated against, because we no longer have any record of those who might have failed before the war, apart from the circumstance that 75 per cent had always been the passing mark during said period. It may also be that there are no pre-war bar candidates similarly situated as those benefited by Republic Act No. 972. At any rate, in the matter of classification, the reasonableness must be determined by the legislative body. It is proper to recall that the Congress held public hearings, and we can fairly suppose that the classification adopted in the Act reflects good legislative judgment derived from the facts and circumstances then brought out. As regards the alleged interference in or encroachment upon the judgment of this Court by the Legislative Department, it is sufficient to state that, if there is any interference at all, it is one expressly sanctioned by the Constitution. Besides, interference in judicial adjudication prohibited by the Constitution is essentially aimed at protecting rights of litigants that have already been vested or acquired in virtue of decisions of courts, not merely for the empty purpose of creating appearances of separation and equality among the three branches of the Government. Republic Act No. 972 has not produced a case involving two parties and decided by the Court in favor of one and against the other. Needless to say, the statute will not affect the previous resolutions passing bar candidates who had obtained the general average prescribed by section 14 of Rule 127. A law would be objectionable and unconstitutional if, for instance, it would provide that those who have been admitted to the bar after July 4, 1946, whose general average is below 80 per cent, will not be allowed to practice law, because said statute would then destroy a right already acquired under previous resolutions of this Court, namely, the bar admission of those whose general averages were from 75 to 79 per cent. Without fear of contradiction, I think the Supreme Court, in the exercise of its rule-making power conferred by the Constitution, may pass a resolution amending section 14 of Rule 127 by reducing the passing average to 70 per cent, effective several years before the date of the resolution. Indeed, when this Court on July 15, 1948 allowed to pass all candidates who obtained a general average of 69 per cent or more and on April 28, 1949 those who obtained a general average of 70 per cent or more, irrespective of whether they filed petitions for reconsideration, it in effect amended section 14 of Rule 127 retroactively, because during the examinations held in August 1947 and August 1948, said section (fixing the general average at 75 per cent) was supposed to be in force. In stands to reason, if we are to admit that the Supreme Court and the Congress have concurrent power to regulate the admission to the practice of law, that the latter may validly pass a retroactive rule fixing the passing general average. Republic Act No. 972 cannot be assailed on the ground that it is unreasonable, arbitrary or capricious, since this Court had already adopted as passing averages 69 per cent for the 1947 bar examinations and 70 per cent for the 1948 examinations. Anyway, we should not inquire into the wisdom of the law, since this is a matter that is addressed to the judgment of the legislators. This Court in many instances had doubted the propriety of legislative enactments, and yet it has consistently refrained from nullifying them solely on that ground. To say that the admission of the bar candidates benefited under Republic Act 972 is against public interest, is to assume that the matter of whether said Act is beneficial or harmful to the

general public was not considered by the Congress. As already stated, the Congress held public hearings, and we are bound to assume that the legislators, loyal, as do the members of this Court, to their oath of office, had taken all the circumstances into account before passing the Act. On the question of public interest I may observe that the Congress, representing the people who elected them, should be more qualified to make an appraisal. I am inclined to accept Republic Act No. 972 as an expression of the will of the people through their duly elected representatives. I would, however, not go to the extent of admitting that the Congress, in the exercise of its concurrent power to repeal, alter, or supplement the Rules of Court regarding the admission to the practice of law, may act in an arbitrary or capricious manner, in the same way that this Court may not do so. We are thus left in the situation, incidental to a democracy, where we can and should only hope that the right men are put in the right places in our Government. Wherefore, I hold that Republic Act No. 972 is constitutional and should therefore be given effect in its entirety.

Separate Opinions LABRADOR, J., concurring and dissenting: The right to admit members to the Bar is, and has always been, the exclusive privilege of this Court, because lawyers are members of the Court and only this Court should be allowed to determine admission thereto in the interest of the principle of the separation of powers. The power to admit is judicial in the sense that discretion is used in is exercise. This power should be distinguished from the power to promulgate rules which regulate admission. It is only this power (to promulgate amendments to the rules) that is given in the Constitution to the Congress, not the exercise of the discretion to admit or not to admit. Thus the rules on the holding of examination, the qualifications of applicants, the passing grades, etc. are within the scope of the legislative power. But the power to determine when a candidate has made or has not made the required grade is judicial, and lies completely with this Court. I hold that the act under consideration is an exercise of the judicial function, and lies beyond the scope of the congressional prerogative of amending the rules. To say that candidates who obtain a general average of 72 per cent in 1953, 73 per cent in 1954, and 74 per cent in 1955 should be considered as having passed the examination, is to mean exercise of the privilege and discretion judged in this Court. It is a mandate to the tribunal to pass candidates for different years with grades lower than the passing mark. No reasoning is necessary to show that it is an arrogation of the Court's judicial authority and discretion. It is furthermore objectionable as discriminatory. Why should those taking the examinations in 1953, 1954 and 1955 be allowed to have the privilege of a lower passing grade, while those taking earlier or later are not? I vote that the act in toto be declared unconstitutional, because it is not embraced within the rule-making power of Congress, because it is an undue interference with the power of this Court to admit members thereof, and because it is discriminatory.

PARAS, C.J., dissenting: Under section 145 of Rule of Court No. 127, in order that a bar candidate "may be deemed to have passed his examinations successfully, he must have obtained a general average of 75 per cent in all subjects, without falling below 50 per cent in any subject.' This passing mark has always been adhered to, with certain exception presently to be specified. With reference to the bar examinations given in August, 1946, the original list of successful candidates included only those who obtained a general average of 75 per cent or more. Upon

motion for reconsideration, however, 12 candidates with general averages ranging from 72 to 73 per cent were raised to 75 per cent by resolution of December 18, 1946. In the examinations of November, 1946 the list first released containing the names of successful candidates covered only those who obtained a general average of 75 per cent or more; but, upon motion for reconsideration, 19 candidates with a general average of 72 per cent were raised to 75 per cent by resolution of March 31, 1947. This would indicate that in the original list of successful candidates those having a general average of 73 per cent or more but below 75 per cent were included. After the original list of 1947 successful bar candidates had been released, and on motion for reconsideration, all candidates with a general average of 69 per cent were allowed to pass by resolution of July 15, 1948. With respect to the bar examinations held in August, 1948, in addition to the original list of successful bar candidates, all those who obtained a general average of 70 per cent or more, irrespective of the grades in any one subject and irrespective of whether they filed petitions for reconsideration, were allowed to pass by resolution of April 28, 1949. Thus, for the year 1947 the Court in effect made 69 per cent as the passing average, and for the year 1948, 70 per cent; and this amounted, without being noticed perhaps, to an amendment of section 14 of Rule 127. Numerous flunkers in the bar examinations held subsequent to 1948, whose general averages mostly ranged from 69 to 73 per cent, filed motions for reconsideration invoking the precedents set by this Court in 1947 and 1948, but said motions were uniformly denied. In the year 1951, the Congress, after public hearings where law deans and professors, practising attorneys, presidents of bar associations, and law graduates appeared and argued lengthily pro or con, approved a bill providing, among others, for the reduction of the passing general average from 75 per cent to 70 per cent, retroactive to any bar examination held after July 4, 1946. This bill was vetoed by the President mainly in view of an unfavorable comment of Justices Padilla, Tuason, Montemayor, Reyes, Bautista and Jugo. In 1953, the Congress passed another bill similar to the previous bill vetoed by the President, with the important difference that in the later bill the provisions in the first bill regarding (1) the supervision and regulation by the Supreme Court of the study of law, (2) the inclusion of Social Legislation and Taxation as new bar subjects, (3) the publication of the bar examiners before the holding of the examination, and (4) the equal division among the examiners of all the admission fees paid by bar applicants, were eliminated. This second bill was allowed to become a law, Republic Act No. 972, by the President by merely not signing it within the required period; and in doing so the President gave due respect to the will of the Congress which, speaking for the people, chose to repass the bill first vetoed by him. Under Republic Act No. 972, any bar candidates who obtained a general average of 70 per cent in any examinations after July 4, 1946 up to August 1951; 71 per cent in the 1952 bar examinations; 72 per cent in 1953 bar examinations; 73 per cent in the 1954 bar examinations; and 74 per cent in the 1955 bar examinations, without obtaining a grade below 50 per cent in any subject, shall be allowed to pass. Said Act also provides that any bar candidate who obtained a grade of 75 per cent in any subject in any examination after July 4, 1946, shall be deemed to have passed in such subject or subjects and such grade or grades shall be included in computing the passing in any subsequent examinations. Numerous candidates who had taken the bar examinations previous to the approval of Republic Act No. 972 and failed to obtain the necessary passing average, filed with this Court mass or separate petitions, praying that they be admitted to the practice of law under and by virtue of said Act, upon the allegation that they have obtained the general averages prescribed therein. In virtue of the resolution of July 6, 1953, this Court held on July 11, 1953 a hearing on said petitions, and members of the bar, especially authorized representatives of bar associations, were invited to argue or submit memoranda as amici curiae, the reason alleged for said hearing being that some doubt had "been expressed on the constitutionality of Republic Act No. 972 in so far as it affects past bar examinations and the matter" involved "a new question of public interest." All discussions in support of the proposition that the power to regulate the admission to the practice of law is inherently judicial, are immaterial, because the subject is now governed by the Constitution which in Article VII, section 13, provides as follows:

The Supreme Court shall have the power to promulgate rules concerning pleading, practice, and procedure in all courts, and the admission to the practice of law. Said rules shall be uniform for all courts of the same grade and shall not diminish, increase or modify substantive right. The existing laws on pleading, practice, and procedure are hereby repealed as statutes and are declared Rules of Court, subject to the power of the Supreme Court to alter and modify the same. The Congress shall have the power to repeal, alter, or supplement the rules concerning pleading, practice, and procedure, and the admission to the practice of law in the Philippines. Under this constitutional provision, while the Supreme Court has the power to promulgate rules concerning the admission to the practice of law, the Congress has the power to repeal, alter or supplement said rules. Little intelligence is necessary to see that the power of the Supreme Court and the Congress to regulate the admission to the practice of law is concurrent. The opponents of Republic Act No. 972 argue that this Act, in so far as it covers bar examinations held prior to its approval, is unconstitutional, because it sets aside the final resolutions of the Supreme Court refusing to admit to the practice of law the various petitioners, thereby resulting in a legislative encroachment upon the judicial power. In my opinion this view is erroneous. In the first place, resolutions on the rejection of bar candidates do not have the finality of decisions in justiciable cases where the Rules of Court expressly fix certain periods after which they become executory and unalterable. Resolutions on bar matters, specially on motions for reconsiderations filed by flunkers in any give year, are subject to revision by this Court at any time, regardless of the period within which the motion were filed, and this has been the practice heretofore. The obvious reason is that bar examinations and admission to the practice of law may be deemed as a judicial function only because said matters happen to be entrusted, under the Constitution and our Rules of Court, to the Supreme Court. There is no judicial function involved, in the subject and constitutional sense of the word, because bar examinations and the admission to the practice of law, unlike justiciable cases, do not affect opposing litigants. It is no more than the function of other examining boards. In the second place, retroactive laws are not prohibited by the Constitution, except only when they would be ex post facto, would impair obligations and contracts or vested rights or would deny due process and equal protection of the law. Republic Act No. 972 certainly is not an ex post facto enactment, does not impair any obligation and contract or vested rights, and denies to no one the right to due process and equal protection of the law. On the other hand, it is a mere curative statute intended to correct certain obvious inequalities arising from the adoption by this Court of different passing general averages in certain years. Neither can it be said that bar candidates prior to July 4, 1946, are being discriminated against, because we no longer have any record of those who might have failed before the war, apart from the circumstance that 75 per cent had always been the passing mark during said period. It may also be that there are no pre-war bar candidates similarly situated as those benefited by Republic Act No. 972. At any rate, in the matter of classification, the reasonableness must be determined by the legislative body. It is proper to recall that the Congress held public hearings, and we can fairly suppose that the classification adopted in the Act reflects good legislative judgment derived from the facts and circumstances then brought out. As regards the alleged interference in or encroachment upon the judgment of this Court by the Legislative Department, it is sufficient to state that, if there is any interference at all, it is one expressly sanctioned by the Constitution. Besides, interference in judicial adjudication prohibited by the Constitution is essentially aimed at protecting rights of litigants that have already been vested or acquired in virtue of decisions of courts, not merely for the empty purpose of creating appearances of separation and equality among the three branches of the Government. Republic Act No. 972 has not produced a case involving two parties and decided by the Court in favor of one and against the other. Needless to say, the statute will not affect the previous resolutions passing bar candidates who had obtained the general average prescribed by section 14 of Rule 127. A law would be objectionable and unconstitutional if, for instance, it would provide that those who have been admitted to the bar after July 4, 1946, whose general average is below 80 per cent, will not be allowed to practice law, because said statute would then destroy a right already acquired under previous resolutions of this Court, namely, the bar admission of those whose general averages were from 75 to 79 per cent.

Without fear of contradiction, I think the Supreme Court, in the exercise of its rule-making power conferred by the Constitution, may pass a resolution amending section 14 of Rule 127 by reducing the passing average to 70 per cent, effective several years before the date of the resolution. Indeed, when this Court on July 15, 1948 allowed to pass all candidates who obtained a general average of 69 per cent or more and on April 28, 1949 those who obtained a general average of 70 per cent or more, irrespective of whether they filed petitions for reconsideration, it in effect amended section 14 of Rule 127 retroactively, because during the examinations held in August 1947 and August 1948, said section (fixing the general average at 75 per cent) was supposed to be in force. In stands to reason, if we are to admit that the Supreme Court and the Congress have concurrent power to regulate the admission to the practice of law, that the latter may validly pass a retroactive rule fixing the passing general average. Republic Act No. 972 cannot be assailed on the ground that it is unreasonable, arbitrary or capricious, since this Court had already adopted as passing averages 69 per cent for the 1947 bar examinations and 70 per cent for the 1948 examinations. Anyway, we should not inquire into the wisdom of the law, since this is a matter that is addressed to the judgment of the legislators. This Court in many instances had doubted the propriety of legislative enactments, and yet it has consistently refrained from nullifying them solely on that ground. To say that the admission of the bar candidates benefited under Republic Act 972 is against public interest, is to assume that the matter of whether said Act is beneficial or harmful to the general public was not considered by the Congress. As already stated, the Congress held public hearings, and we are bound to assume that the legislators, loyal, as do the members of this Court, to their oath of office, had taken all the circumstances into account before passing the Act. On the question of public interest I may observe that the Congress, representing the people who elected them, should be more qualified to make an appraisal. I am inclined to accept Republic Act No. 972 as an expression of the will of the people through their duly elected representatives. I would, however, not go to the extent of admitting that the Congress, in the exercise of its concurrent power to repeal, alter, or supplement the Rules of Court regarding the admission to the practice of law, may act in an arbitrary or capricious manner, in the same way that this Court may not do so. We are thus left in the situation, incidental to a democracy, where we can and should only hope that the right men are put in the right places in our Government. Wherefore, I hold that Republic Act No. 972 is constitutional and should therefore be given effect in its entirety. G.R. No. 183591

October 14, 2008

THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS SACDALAN and/or VICE-GOVERNOR EMMANUEL PIÑOL, for and in his own behalf, petitioners, vs. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN and/or GEN. HERMOGENES ESPERON, JR., the latter in his capacity as the present and dulyappointed Presidential Adviser on the Peace Process (OPAPP) or the so-called Office of the Presidential Adviser on the Peace Process, respondents. x--------------------------------------------x G.R. No. 183752

October 14, 2008

CITY GOVERNMENT OF ZAMBOANGA, as represented by HON. CELSO L. LOBREGAT, City Mayor of Zamboanga, and in his personal capacity as resident of the City of Zamboanga, Rep. MA. ISABELLE G. CLIMACO, District 1, and Rep. ERICO BASILIO A. FABIAN, District 2, City of Zamboanga, petitioners, vs.

THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL (GRP), as represented by RODOLFO C. GARCIA, LEAH ARMAMENTO, SEDFREY CANDELARIA, MARK RYAN SULLIVAN and HERMOGENES ESPERON, in his capacity as the Presidential Adviser on Peace Process,respondents. x--------------------------------------------x G.R. No. 183893

October 14, 2008

THE CITY OF ILIGAN, duly represented by CITY MAYOR LAWRENCE LLUCH CRUZ, petitioner, vs. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN; GEN. HERMOGENES ESPERON, JR., in his capacity as the present and duly appointed Presidential Adviser on the Peace Process; and/or SEC. EDUARDO ERMITA, in his capacity as Executive Secretary. respondents. x--------------------------------------------x G.R. No. 183951

October 14, 2008

THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as represented by HON. ROLANDO E. YEBES, in his capacity as Provincial Governor, HON. FRANCIS H. OLVIS, in his capacity as Vice-Governor and Presiding Officer of the Sangguniang Panlalawigan, HON. CECILIA JALOSJOS CARREON, Congresswoman, 1st Congressional District, HON. CESAR G. JALOSJOS, Congressman, 3rd Congressional District, and Members of the Sangguniang Panlalawigan of the Province of Zamboanga del Norte, namely, HON. SETH FREDERICK P. JALOSJOS, HON. FERNANDO R. CABIGON, JR., HON. ULDARICO M. MEJORADA II, HON. EDIONAR M. ZAMORAS, HON. EDGAR J. BAGUIO, HON. CEDRIC L. ADRIATICO, HON. FELIXBERTO C. BOLANDO, HON. JOSEPH BRENDO C. AJERO, HON. NORBIDEIRI B. EDDING, HON. ANECITO S. DARUNDAY, HON. ANGELICA J. CARREON and HON. LUZVIMINDA E. TORRINO, petitioners, vs. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL [GRP], as represented by HON. RODOLFO C. GARCIA and HON. HERMOGENES ESPERON, in his capacity as the Presidential Adviser of Peace Process, respondents. x--------------------------------------------x G.R. No. 183962

October 14, 2008

ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L. PIMENTEL III, petitioners, vs. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL, represented by its Chairman RODOLFO C. GARCIA, and the MORO ISLAMIC LIBERATION FRONT PEACE NEGOTIATING PANEL, represented by its Chairman MOHAGHER IQBAL, respondents. x--------------------------------------------x FRANKLIN M. DRILON and ADEL ABBAS TAMANO, petitioners-in-intervention. x--------------------------------------------x SEN. MANUEL A. ROXAS, petitioners-in-intervention. x--------------------------------------------x

MUNICIPALITY OF LINAMON duly represented by its Municipal Mayor NOEL N. DEANO, petitioners-in-intervention, x--------------------------------------------x THE CITY OF ISABELA, BASILAN PROVINCE, represented by MAYOR CHERRYLYN P. SANTOS-AKBAR,petitioners-in-intervention. x--------------------------------------------x THE PROVINCE OF SULTAN KUDARAT, rep. by HON. SUHARTO T. MANGUDADATU, in his capacity as Provincial Governor and a resident of the Province of Sultan Kudarat, petitioner-in-intervention. x-------------------------------------------x RUY ELIAS LOPEZ, for and in his own behalf and on behalf of Indigenous Peoples in Mindanao Not Belonging to the MILF, petitioner-in-intervention. x--------------------------------------------x CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT, JOSELITO C. ALISUAG and RICHALEX G. JAGMIS, as citizens and residents of Palawan, petitioners-in-intervention. x--------------------------------------------x MARINO RIDAO and KISIN BUXANI, petitioners-in-intervention. x--------------------------------------------x MUSLIM LEGAL ASSISTANCE FOUNDATION, INC (MUSLAF), respondent-in-intervention. x--------------------------------------------x MUSLIM MULTI-SECTORAL MOVEMENT (MMMPD), respondent-in-intervention.

FOR

PEACE

&

DEVELOPMENT

x--------------------------------------------x DECISION CARPIO MORALES, J.: Subject of these consolidated cases is the extent of the powers of the President in pursuing the peace process.While the facts surrounding this controversy center on the armed conflict in Mindanao between the government and the Moro Islamic Liberation Front (MILF), the legal issue involved has a bearing on all areas in the country where there has been a long-standing armed conflict. Yet again, the Court is tasked to perform a delicate balancing act. It must uncompromisingly delineate the bounds within which the President may lawfully exercise her discretion, but it must do so in strict adherence to the Constitution, lest its ruling unduly restricts the freedom of action vested by that same Constitution in the Chief Executive precisely to enable her to pursue the peace process effectively. I. FACTUAL ANTECEDENTS OF THE PETITIONS On August 5, 2008, the Government of the Republic of the Philippines (GRP) and the MILF, through the Chairpersons of their respective peace negotiating panels, were scheduled to sign a Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.

The MILF is a rebel group which was established in March 1984 when, under the leadership of the late Salamat Hashim, it splintered from the Moro National Liberation Front (MNLF) then headed by Nur Misuari, on the ground, among others, of what Salamat perceived to be the manipulation of the MNLF away from an Islamic basis towards Marxist-Maoist orientations.1 The signing of the MOA-AD between the GRP and the MILF was not to materialize, however, for upon motion of petitioners, specifically those who filed their cases before the scheduled signing of the MOA-AD, this Court issued a Temporary Restraining Order enjoining the GRP from signing the same. The MOA-AD was preceded by a long process of negotiation and the concluding of several prior agreements between the two parties beginning in 1996, when the GRP-MILF peace negotiations began. On July 18, 1997, the GRP and MILF Peace Panels signed the Agreement on General Cessation of Hostilities. The following year, they signed the General Framework of Agreement of Intent on August 27, 1998. The Solicitor General, who represents respondents, summarizes the MOA-AD by stating that the same contained, among others, the commitment of the parties to pursue peace negotiations, protect and respect human rights, negotiate with sincerity in the resolution and pacific settlement of the conflict, and refrain from the use of threat or force to attain undue advantage while the peace negotiations on the substantive agenda are on-going.2 Early on, however, it was evident that there was not going to be any smooth sailing in the GRPMILF peace process. Towards the end of 1999 up to early 2000, the MILF attacked a number of municipalities in Central Mindanao and, in March 2000, it took control of the town hall of Kauswagan, Lanao del Norte.3 In response, then President Joseph Estrada declared and carried out an "all-out-war" against the MILF. When President Gloria Macapagal-Arroyo assumed office, the military offensive against the MILF was suspended and the government sought a resumption of the peace talks. The MILF, according to a leading MILF member, initially responded with deep reservation, but when President Arroyo asked the Government of Malaysia through Prime Minister Mahathir Mohammad to help convince the MILF to return to the negotiating table, the MILF convened its Central Committee to seriously discuss the matter and, eventually, decided to meet with the GRP.4 The parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitated by the Malaysian government, the parties signing on the same date the Agreement on the General Framework for the Resumption of Peace Talks Between the GRP and the MILF. The MILF thereafter suspended all its military actions.5 Formal peace talks between the parties were held in Tripoli, Libya from June 20-22, 2001, the outcome of which was the GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement 2001) containing the basic principles and agenda on the following aspects of the negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral Domain Aspect. With regard to the Ancestral Domain Aspect, the parties in Tripoli Agreement 2001 simply agreed "that the same be discussed further by the Parties in their next meeting." A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7, 2001 which ended with the signing of the Implementing Guidelines on the Security Aspect of the Tripoli Agreement 2001 leading to a ceasefire status between the parties. This was followed by the Implementing Guidelines on the Humanitarian Rehabilitation and Development Aspects of the Tripoli Agreement 2001, which was signed on May 7, 2002 at Putrajaya, Malaysia. Nonetheless, there were many incidence of violence between government forces and the MILF from 2002 to 2003. Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and he was replaced by Al Haj Murad, who was then the chief peace negotiator of the MILF. Murad's position as chief peace negotiator was taken over by Mohagher Iqbal.6

In 2005, several exploratory talks were held between the parties in Kuala Lumpur, eventually leading to the crafting of the draft MOA-AD in its final form, which, as mentioned, was set to be signed last August 5, 2008. II. STATEMENT OF THE PROCEEDINGS Before the Court is what is perhaps the most contentious "consensus" ever embodied in an instrument - the MOA-AD which is assailed principally by the present petitions bearing docket numbers 183591, 183752, 183893, 183951 and 183962. Commonly impleaded as respondents are the GRP Peace Panel on Ancestral Domain7 and the Presidential Adviser on the Peace Process (PAPP) Hermogenes Esperon, Jr. On July 23, 2008, the Province of North Cotabato8 and Vice-Governor Emmanuel Piñol filed a petition, docketed as G.R. No. 183591, for Mandamus and Prohibition with Prayer for the Issuance of Writ of Preliminary Injunction and Temporary Restraining Order. 9 Invoking the right to information on matters of public concern, petitioners seek to compel respondents to disclose and furnish them the complete and official copies of the MOA-AD including its attachments, and to prohibit the slated signing of the MOA-AD, pending the disclosure of the contents of the MOA-AD and the holding of a public consultation thereon. Supplementarily, petitioners pray that the MOA-AD be declared unconstitutional.10 This initial petition was followed by another one, docketed as G.R. No. 183752, also for Mandamus and Prohibition11 filed by the City of Zamboanga,12 Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco and Rep. Erico Basilio Fabian who likewise pray for similar injunctive reliefs. Petitioners herein moreover pray that the City of Zamboanga be excluded from the Bangsamoro Homeland and/or Bangsamoro Juridical Entity and, in the alternative, that the MOA-AD be declared null and void. By Resolution of August 4, 2008, the Court issued a Temporary Restraining Order commanding and directing public respondents and their agents to cease and desist from formally signing the MOA-AD.13 The Court also required the Solicitor General to submit to the Court and petitioners the official copy of the final draft of the MOA-AD,14 to which she complied.15 Meanwhile, the City of Iligan16 filed a petition for Injunction and/or Declaratory Relief, docketed as G.R. No. 183893, praying that respondents be enjoined from signing the MOA-AD or, if the same had already been signed, from implementing the same, and that the MOA-AD be declared unconstitutional. Petitioners herein additionally implead Executive Secretary Eduardo Ermita as respondent. The Province of Zamboanga del Norte,17 Governor Rolando Yebes, Vice-Governor Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the members18 of the Sangguniang Panlalawigan of Zamboanga del Norte filed on August 15, 2008 a petition for Certiorari, Mandamus and Prohibition,19 docketed as G.R. No. 183951. They pray, inter alia, that the MOA-AD be declared null and void and without operative effect, and that respondents be enjoined from executing the MOA-AD. On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a petition for Prohibition,20docketed as G.R. No. 183962, praying for a judgment prohibiting and permanently enjoining respondents from formally signing and executing the MOA-AD and or any other agreement derived therefrom or similar thereto, and nullifying the MOA-AD for being unconstitutional and illegal. Petitioners herein additionally implead as respondent the MILF Peace Negotiating Panel represented by its Chairman Mohagher Iqbal. Various parties moved to intervene and were granted leave of court to file their petitions/comments-in-intervention. Petitioners-in-Intervention include Senator Manuel A. Roxas, former Senate President Franklin Drilon and Atty. Adel Tamano, the City of Isabela21 and Mayor Cherrylyn Santos-Akbar, the Province of Sultan Kudarat22 and Gov. Suharto Mangudadatu, the Municipality of Linamon in Lanao del Norte,23 Ruy Elias Lopez of Davao City and of the Bagobo tribe, Sangguniang Panlungsod member Marino Ridao and businessman Kisin Buxani, both of Cotabato City; and lawyers Carlo Gomez, Gerardo Dilig, Nesario Awat, Joselito Alisuag,

Richalex Jagmis, all of Palawan City. The Muslim Legal Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral Movement for Peace and Development (MMMPD) filed their respective Comments-in-Intervention. By subsequent Resolutions, the Court ordered the consolidation of the petitions. Respondents filed Comments on the petitions, while some of petitioners submitted their respective Replies. Respondents, by Manifestation and Motion of August 19, 2008, stated that the Executive Department shall thoroughly review the MOA-AD and pursue further negotiations to address the issues hurled against it, and thus moved to dismiss the cases. In the succeeding exchange of pleadings, respondents' motion was met with vigorous opposition from petitioners. The cases were heard on oral argument on August 15, 22 and 29, 2008 that tackled the following principal issues: 1. Whether the petitions have become moot and academic (i) insofar as the mandamus aspect is concerned, in view of the disclosure of official copies of the final draft of the Memorandum of Agreement (MOA); and (ii) insofar as the prohibition aspect involving the Local Government Units is concerned, if it is considered that consultation has become fait accompli with the finalization of the draft; 2. Whether the constitutionality and the legality of the MOA is ripe for adjudication; 3. Whether respondent Government of the Republic of the Philippines Peace Panel committed grave abuse of discretion amounting to lack or excess of jurisdiction when it negotiated and initiated the MOA vis-à-vis ISSUES Nos. 4 and 5; 4. Whether there is a violation of the people's right to information on matters of public concern (1987 Constitution, Article III, Sec. 7) under a state policy of full disclosure of all its transactions involving public interest (1987 Constitution, Article II, Sec. 28) including public consultation under Republic Act No. 7160 (LOCAL GOVERNMENT CODE OF 1991)[;] If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of Civil Procedure is an appropriate remedy; 5. Whether by signing the MOA, the Government of the Republic of the Philippines would be BINDING itself a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical, territorial or political subdivision not recognized by law; b) to revise or amend the Constitution and existing laws to conform to the MOA; c) to concede to or recognize the claim of the Moro Islamic Liberation Front for ancestral domain in violation of Republic Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997), particularly Section 3(g) & Chapter VII (DELINEATION, RECOGNITION OF ANCESTRAL DOMAINS)[;] If in the affirmative, whether the Executive Branch has the authority to so bind the Government of the Republic of the Philippines; 6. Whether the inclusion/exclusion of the Province of North Cotabato, Cities of Zamboanga, Iligan and Isabela, and the Municipality of Linamon, Lanao del Norte in/from the areas covered by the projected Bangsamoro Homeland is a justiciable question; and

7. Whether desistance from signing the MOA derogates any prior valid commitments of the Government of the Republic of the Philippines.24 The Court, thereafter, ordered the parties to submit their respective Memoranda. Most of the parties submitted their memoranda on time. III. OVERVIEW OF THE MOA-AD As a necessary backdrop to the consideration of the objections raised in the subject five petitions and six petitions-in-intervention against the MOA-AD, as well as the two comments-inintervention in favor of the MOA-AD, the Court takes an overview of the MOA. The MOA-AD identifies the Parties to it as the GRP and the MILF. Under the heading "Terms of Reference" (TOR), the MOA-AD includes not only four earlier agreements between the GRP and MILF, but also two agreements between the GRP and the MNLF: the 1976 Tripoli Agreement, and the Final Peace Agreement on the Implementation of the 1976 Tripoli Agreement, signed on September 2, 1996 during the administration of President Fidel Ramos. The MOA-AD also identifies as TOR two local statutes - the organic act for the Autonomous Region in Muslim Mindanao (ARMM)25 and the Indigenous Peoples Rights Act (IPRA),26 and several international law instruments - the ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries in relation to the UN Declaration on the Rights of the Indigenous Peoples, and the UN Charter, among others. The MOA-AD includes as a final TOR the generic category of "compact rights entrenchment emanating from the regime of dar-ul-mua'hada (or territory under compact) and dar-ul-sulh (or territory under peace agreement) that partakes the nature of a treaty device." During the height of the Muslim Empire, early Muslim jurists tended to see the world through a simple dichotomy: there was the dar-ul-Islam (the Abode of Islam) and dar-ul-harb (the Abode of War). The first referred to those lands where Islamic laws held sway, while the second denoted those lands where Muslims were persecuted or where Muslim laws were outlawed or ineffective.27 This way of viewing the world, however, became more complex through the centuries as the Islamic world became part of the international community of nations. As Muslim States entered into treaties with their neighbors, even with distant States and intergovernmental organizations, the classical division of the world into dar-ul-Islam and dar-ulharb eventually lost its meaning. New terms were drawn up to describe novel ways of perceiving non-Muslim territories. For instance, areas like dar-ul-mua'hada (land of compact) and dar-ulsulh (land of treaty) referred to countries which, though under a secular regime, maintained peaceful and cooperative relations with Muslim States, having been bound to each other by treaty or agreement. Dar-ul-aman (land of order), on the other hand, referred to countries which, though not bound by treaty with Muslim States, maintained freedom of religion for Muslims.28 It thus appears that the "compact rights entrenchment" emanating from the regime of dar-ulmua'hada and dar-ul-sulh simply refers to all other agreements between the MILF and the Philippine government - the Philippines being the land of compact and peace agreement - that partake of the nature of a treaty device, "treaty" being broadly defined as "any solemn agreement in writing that sets out understandings, obligations, and benefits for both parties which provides for a framework that elaborates the principles declared in the [MOA-AD]."29 The MOA-AD states that the Parties "HAVE AGREED AND ACKNOWLEDGED AS FOLLOWS," and starts with its main body. The main body of the MOA-AD is divided into four strands, namely, Concepts and Principles, Territory, Resources, and Governance. A. CONCEPTS AND PRINCIPLES

This strand begins with the statement that it is "the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and be accepted as ‘Bangsamoros.'" It defines "Bangsamoro people" as the natives or original inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the time of conquest or colonization, and their descendants whether mixed or of full blood, including their spouses.30 Thus, the concept of "Bangsamoro," as defined in this strand of the MOA-AD, includes not only "Moros" as traditionally understood even by Muslims,31 but all indigenous peoples of Mindanao and its adjacent islands. The MOA-AD adds that the freedom of choice of indigenous peoples shall be respected. What this freedom of choice consists in has not been specifically defined. The MOA-AD proceeds to refer to the "Bangsamoro homeland," the ownership of which is vested exclusively in the Bangsamoro people by virtue of their prior rights of occupation.32 Both parties to the MOA-AD acknowledge that ancestral domain does not form part of the public domain.33 The Bangsamoro people are acknowledged as having the right to self-governance, which right is said to be rooted on ancestral territoriality exercised originally under the suzerain authority of their sultanates and the Pat a Pangampong ku Ranaw. The sultanates were described as states or "karajaan/kadatuan" resembling a body politic endowed with all the elements of a nation-state in the modern sense.34 The MOA-AD thus grounds the right to self-governance of the Bangsamoro people on the past suzerain authority of the sultanates. As gathered, the territory defined as the Bangsamoro homeland was ruled by several sultanates and, specifically in the case of the Maranao, by the Pat a Pangampong ku Ranaw, a confederation of independent principalities (pangampong) each ruled by datus and sultans, none of whom was supreme over the others.35 The MOA-AD goes on to describe the Bangsamoro people as "the ‘First Nation' with defined territory and with a system of government having entered into treaties of amity and commerce with foreign nations." The term "First Nation" is of Canadian origin referring to the indigenous peoples of that territory, particularly those known as Indians. In Canada, each of these indigenous peoples is equally entitled to be called "First Nation," hence, all of them are usually described collectively by the plural "First Nations."36 To that extent, the MOA-AD, by identifying the Bangsamoro people as "the First Nation" - suggesting its exclusive entitlement to that designation - departs from the Canadian usage of the term. The MOA-AD then mentions for the first time the "Bangsamoro Juridical Entity" (BJE) to which it grants the authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro.37 B. TERRITORY The territory of the Bangsamoro homeland is described as the land mass as well as the maritime, terrestrial, fluvial and alluvial domains, including the aerial domain and the atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region.38 More specifically, the core of the BJE is defined as the present geographic area of the ARMM thus constituting the following areas: Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City. Significantly, this core also includes certain municipalities of Lanao del Norte that voted for inclusion in the ARMM in the 2001 plebiscite.39 Outside of this core, the BJE is to cover other provinces, cities, municipalities and barangays, which are grouped into two categories, Category A and Category B. Each of these areas is to be subjected to a plebiscite to be held on different dates, years apart from each other. Thus, Category A areas are to be subjected to a plebiscite not later than twelve (12) months following the signing of the MOA-AD.40 Category B areas, also called "Special Intervention Areas," on the other hand, are to be subjected to a plebiscite twenty-five (25) years from the signing of a separate agreement - the Comprehensive Compact.41

The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all natural resources within its "internalwaters," defined as extending fifteen (15) kilometers from the coastline of the BJE area;42 that the BJE shall also have "territorial waters," which shall stretch beyond the BJE internal waters up to the baselines of the Republic of the Philippines (RP) south east and south west of mainland Mindanao; and that within these territorial waters, the BJE and the "Central Government" (used interchangeably with RP) shall exercise joint jurisdiction, authority and management over all natural resources.43 Notably, the jurisdiction over the internal waters is not similarly described as "joint." The MOA-AD further provides for the sharing of minerals on the territorial waters between the Central Government and the BJE, in favor of the latter, through production sharing and economic cooperation agreement.44 The activities which the Parties are allowed to conduct on the territorial waters are enumerated, among which are the exploration and utilization of natural resources, regulation of shipping and fishing activities, and the enforcement of police and safety measures.45 There is no similar provision on the sharing of minerals and allowed activities with respect to the internal waters of the BJE. C. RESOURCES The MOA-AD states that the BJE is free to enter into any economic cooperation and trade relations with foreign countries and shall have the option to establish trade missions in those countries. Such relationships and understandings, however, are not to include aggression against the GRP. The BJE may also enter into environmental cooperation agreements.46 The external defense of the BJE is to remain the duty and obligation of the Central Government. The Central Government is also bound to "take necessary steps to ensure the BJE's participation in international meetings and events" like those of the ASEAN and the specialized agencies of the UN. The BJE is to be entitled to participate in Philippine official missions and delegations for the negotiation of border agreements or protocols for environmental protection and equitable sharing of incomes and revenues involving the bodies of water adjacent to or between the islands forming part of the ancestral domain.47 With regard to the right of exploring for, producing, and obtaining all potential sources of energy, petroleum, fossil fuel, mineral oil and natural gas, the jurisdiction and control thereon is to be vested in the BJE "as the party having control within its territorial jurisdiction." This right carries the proviso that, "in times of national emergency, when public interest so requires," the Central Government may, for a fixed period and under reasonable terms as may be agreed upon by both Parties, assume or direct the operation of such resources.48 The sharing between the Central Government and the BJE of total production pertaining to natural resources is to be 75:25 in favor of the BJE.49 The MOA-AD provides that legitimate grievances of the Bangsamoro people arising from any unjust dispossession of their territorial and proprietary rights, customary land tenures, or their marginalization shall be acknowledged. Whenever restoration is no longer possible, reparation is to be in such form as mutually determined by the Parties.50 The BJE may modify or cancel the forest concessions, timber licenses, contracts or agreements, mining concessions, Mineral Production and Sharing Agreements (MPSA), Industrial Forest Management Agreements (IFMA), and other land tenure instruments granted by the Philippine Government, including those issued by the present ARMM.51 D. GOVERNANCE The MOA-AD binds the Parties to invite a multinational third-party to observe and monitor the implementation of the Comprehensive Compact. This compact is to embody the "details for the effective enforcement" and "the mechanisms and modalities for the actual implementation" of the MOA-AD. The MOA-AD explicitly provides that the participation of the third party shall not in any way affect the status of the relationship between the Central Government and the BJE.52

The between and the BJE

"associative" the

Central

relationship Government

The MOA-AD describes the relationship of the Central Government and the BJE as "associative," characterized by shared authority and responsibility. And it states that the structure of governance is to be based on executive, legislative, judicial, and administrative institutions with defined powers and functions in the Comprehensive Compact. The MOA-AD provides that its provisions requiring "amendments to the existing legal framework" shall take effect upon signing of the Comprehensive Compact and upon effecting the aforesaid amendments, with due regard to the non-derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact. As will be discussed later, much of the present controversy hangs on the legality of this provision. The BJE is granted the power to build, develop and maintain its own institutions inclusive of civil service, electoral, financial and banking, education, legislation, legal, economic, police and internal security force, judicial system and correctional institutions, the details of which shall be discussed in the negotiation of the comprehensive compact. As stated early on, the MOA-AD was set to be signed on August 5, 2008 by Rodolfo Garcia and Mohagher Iqbal, Chairpersons of the Peace Negotiating Panels of the GRP and the MILF, respectively. Notably, the penultimate paragraph of the MOA-AD identifies the signatories as "the representatives of the Parties," meaning the GRP and MILF themselves, and not merely of the negotiating panels.53 In addition, the signature page of the MOA-AD states that it is "WITNESSED BY" Datuk Othman Bin Abd Razak, Special Adviser to the Prime Minister of Malaysia, "ENDORSED BY" Ambassador Sayed Elmasry, Adviser to Organization of the Islamic Conference (OIC) Secretary General and Special Envoy for Peace Process in Southern Philippines, and SIGNED "IN THE PRESENCE OF" Dr. Albert G. Romulo, Secretary of Foreign Affairs of RP and Dato' Seri Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs, Malaysia, all of whom were scheduled to sign the Agreement last August 5, 2008. Annexed to the MOA-AD are two documents containing the respective lists cum maps of the provinces, municipalities, and barangays under Categories A and B earlier mentioned in the discussion on the strand on TERRITORY. IV. PROCEDURAL ISSUES A. RIPENESS The power of judicial review is limited to actual cases or controversies. 54 Courts decline to issue advisory opinions or to resolve hypothetical or feigned problems, or mere academic questions.55 The limitation of the power of judicial review to actual cases and controversies defines the role assigned to the judiciary in a tripartite allocation of power, to assure that the courts will not intrude into areas committed to the other branches of government.56 An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute. There must be a contrariety of legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence.57 The Court can decide the constitutionality of an act or treaty only when a proper case between opposing parties is submitted for judicial determination.58 Related to the requirement of an actual case or controversy is the requirement of ripeness. A question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it.59 For a case to be considered ripe for adjudication, it is a prerequisite that something had then been accomplished or performed by either branch before a court may come into the picture,60 and the petitioner must allege the existence of an immediate or threatened injury to itself as a result of the challenged action. 61 He must show that he has sustained or is immediately in danger of sustaining some direct injury as a result of the act complained of.62

The Solicitor General argues that there is no justiciable controversy that is ripe for judicial review in the present petitions, reasoning that The unsigned MOA-AD is simply a list of consensus points subject to further negotiations and legislative enactments as well as constitutional processes aimed at attaining a final peaceful agreement. Simply put, the MOA-AD remains to be a proposal that does not automatically create legally demandable rights and obligations until the list of operative acts required have been duly complied with. x x x xxxx In the cases at bar, it is respectfully submitted that this Honorable Court has no authority to pass upon issues based on hypothetical or feigned constitutional problems or interests with no concrete bases. Considering the preliminary character of the MOA-AD, there are no concrete acts that could possibly violate petitioners' and intervenors' rights since the acts complained of are mere contemplated steps toward the formulation of a final peace agreement. Plainly, petitioners and intervenors' perceived injury, if at all, is merely imaginary and illusory apart from being unfounded and based on mere conjectures. (Underscoring supplied) The Solicitor General cites63 the following provisions of the MOA-AD: TERRITORY xxxx 2. Toward this end, the Parties enter into the following stipulations: xxxx d. Without derogating from the requirements of prior agreements, the Government stipulates to conduct and deliver, using all possible legal measures, within twelve (12) months following the signing of the MOA-AD, a plebiscite covering the areas as enumerated in the list and depicted in the map as Category A attached herein (the "Annex"). The Annex constitutes an integral part of this framework agreement. Toward this end, the Parties shall endeavor to complete the negotiations and resolve all outstanding issues on the Comprehensive Compact within fifteen (15) months from the signing of the MOA-AD. xxxx GOVERNANCE xxxx 7. The Parties agree that mechanisms and modalities for the actual implementation of this MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such steps to enable it to occur effectively. Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon the signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework with due regard to non-derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact.64 (Underscoring supplied) The Solicitor General's arguments fail to persuade. Concrete acts under the MOA-AD are not necessary to render the present controversy ripe. In Pimentel, Jr. v. Aguirre,65 this Court held:

x x x [B]y the mere enactment of the questioned law or the approval of the challenged action, the dispute is said to have ripened into a judicial controversy even without any other overt act. Indeed, even a singular violation of the Constitution and/or the law is enough to awaken judicial duty. xxxx By the same token, when an act of the President, who in our constitutional scheme is a coequal of Congress, is seriously alleged to have infringed the Constitution and the laws x x x settling the dispute becomes the duty and the responsibility of the courts.66 In Santa Fe Independent School District v. Doe,67 the United States Supreme Court held that the challenge to the constitutionality of the school's policy allowing student-led prayers and speeches before games was ripe for adjudication, even if no public prayer had yet been led under the policy, because the policy was being challenged as unconstitutional on its face.68 That the law or act in question is not yet effective does not negate ripeness. For example, in New York v. United States,69 decided in 1992, the United States Supreme Court held that the action by the State of New York challenging the provisions of the Low-Level Radioactive Waste Policy Act was ripe for adjudication even if the questioned provision was not to take effect until January 1, 1996, because the parties agreed that New York had to take immediate action to avoid the provision's consequences.70 The present petitions pray for Certiorari,71 Prohibition, and Mandamus. Certiorari and Prohibition are remedies granted by law when any tribunal, board or officer has acted, in the case of certiorari, or is proceeding, in the case of prohibition, without or in excess of its jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction.72 Mandamus is a remedy granted by law when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use or enjoyment of a right or office to which such other is entitled.73 Certiorari, Mandamus and Prohibition are appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify, when proper, acts of legislative and executive officials.74 The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O. No. 3), issued on February 28, 2001.75 The said executive order requires that "[t]he government's policy framework for peace, including the systematic approach and the administrative structure for carrying out the comprehensive peace process x x x be governed by this Executive Order."76 The present petitions allege that respondents GRP Panel and PAPP Esperon drafted the terms of the MOA-AD without consulting the local government units or communities affected, nor informing them of the proceedings. As will be discussed in greater detail later, such omission, by itself, constitutes a departure by respondents from their mandate under E.O. No. 3. Furthermore, the petitions allege that the provisions of the MOA-AD violate the Constitution. The MOA-AD provides that "any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon the signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework," implying an amendment of the Constitution to accommodate the MOA-AD. This stipulation, in effect, guaranteed to the MILF the amendment of the Constitution. Such act constitutes another violation of its authority. Again, these points will be discussed in more detail later. As the petitions allege acts or omissions on the part of respondent that exceed their authority, by violating their duties under E.O. No. 3 and the provisions of the Constitution and statutes, the petitions make a prima facie case for Certiorari, Prohibition, and Mandamus, and an actual case or controversy ripe for adjudication exists. When an act of a branch of government is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute.77 B. LOCUS STANDI

For a party to have locus standi, one must allege "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions."78 Because constitutional cases are often public actions in which the relief sought is likely to affect other persons, a preliminary question frequently arises as to this interest in the constitutional question raised.79 When suing as a citizen, the person complaining must allege that he has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of. 80 When the issue concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in the execution of the laws.81 For a taxpayer, one is allowed to sue where there is an assertion that public funds are illegally disbursed or deflected to an illegal purpose, or that there is a wastage of public funds through the enforcement of an invalid or unconstitutional law.82 The Court retains discretion whether or not to allow a taxpayer's suit.83 In the case of a legislator or member of Congress, an act of the Executive that injures the institution of Congress causes a derivative but nonetheless substantial injury that can be questioned by legislators. A member of the House of Representatives has standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in his office.84 An organization may be granted standing to assert the rights of its members,85 but the mere invocation by the Integrated Bar of the Philippines or any member of the legal profession of the duty to preserve the rule of law does not suffice to clothe it with standing.86 As regards a local government unit (LGU), it can seek relief in order to protect or vindicate an interest of its own, and of the other LGUs.87 Intervenors, meanwhile, may be given legal standing upon showing of facts that satisfy the requirements of the law authorizing intervention,88 such as a legal interest in the matter in litigation, or in the success of either of the parties. In any case, the Court has discretion to relax the procedural technicality on locus standi, given the liberal attitude it has exercised, highlighted in the case of David v. MacapagalArroyo,89 where technicalities of procedure were brushed aside, the constitutional issues raised being of paramount public interest or of transcendental importance deserving the attention of the Court in view of their seriousness, novelty and weight as precedents.90 The Court's forbearing stance on locus standi on issues involving constitutional issues has for its purpose the protection of fundamental rights. In not a few cases, the Court, in keeping with its duty under the Constitution to determine whether the other branches of government have kept themselves within the limits of the Constitution and the laws and have not abused the discretion given them, has brushed aside technical rules of procedure.91 In the petitions at bar, petitioners Province of North Cotabato (G.R. No. 183591) Province of Zamboanga del Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893) and City of Zamboanga (G.R. No. 183752) and petitioners-in-intervention Province of Sultan Kudarat, City of Isabela and Municipality of Linamon have locus standi in view of the direct and substantial injury that they, as LGUs, would suffer as their territories, whether in whole or in part, are to be included in the intended domain of the BJE. These petitioners allege that they did not vote for their inclusion in the ARMM which would be expanded to form the BJE territory. Petitioners' legal standing is thus beyond doubt. In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino Pimentel III would have no standing as citizens and taxpayers for their failure to specify that they would be denied some right or privilege or there would be wastage of public funds. The fact that they are a former Senator, an incumbent mayor of Makati City, and a resident of Cagayan de Oro,

respectively, is of no consequence. Considering their invocation of the transcendental importance of the issues at hand, however, the Court grants them standing. Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers, assert that government funds would be expended for the conduct of an illegal and unconstitutional plebiscite to delineate the BJE territory. On that score alone, they can be given legal standing. Their allegation that the issues involved in these petitions are of "undeniable transcendental importance" clothes them with added basis for their personality to intervene in these petitions. With regard to Senator Manuel Roxas, his standing is premised on his being a member of the Senate and a citizen to enforce compliance by respondents of the public's constitutional right to be informed of the MOA-AD, as well as on a genuine legal interest in the matter in litigation, or in the success or failure of either of the parties. He thus possesses the requisite standing as an intervenor. With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3rd district of Davao City, a taxpayer and a member of the Bagobo tribe; Carlo B. Gomez, et al., as members of the IBP Palawan chapter, citizens and taxpayers; Marino Ridao, as taxpayer, resident and member of the Sangguniang Panlungsod of Cotabato City; and Kisin Buxani, as taxpayer, they failed to allege any proper legal interest in the present petitions. Just the same, the Court exercises its discretion to relax the procedural technicality on locus standi given the paramount public interest in the issues at hand. Intervening respondents Muslim Multi-Sectoral Movement for Peace and Development, an advocacy group for justice and the attainment of peace and prosperity in Muslim Mindanao; and Muslim Legal Assistance Foundation Inc., a non-government organization of Muslim lawyers, allege that they stand to be benefited or prejudiced, as the case may be, in the resolution of the petitions concerning the MOA-AD, and prays for the denial of the petitions on the grounds therein stated. Such legal interest suffices to clothe them with standing. B. MOOTNESS Respondents insist that the present petitions have been rendered moot with the satisfaction of all the reliefs prayed for by petitioners and the subsequent pronouncement of the Executive Secretary that "[n]o matter what the Supreme Court ultimately decides[,] the government will not sign the MOA."92 In lending credence to this policy decision, the Solicitor General points out that the President had already disbanded the GRP Peace Panel.93 In David v. Macapagal-Arroyo,94 this Court held that the "moot and academic" principle not being a magical formula that automatically dissuades courts in resolving a case, it will decide cases, otherwise moot and academic, if it finds that (a) there is a grave violation of the Constitution;95 (b) the situation is of exceptional character and paramount public interest is involved;96 (c) the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public;97 and (d) the case is capable of repetition yet evading review.98 Another exclusionary circumstance that may be considered is where there is a voluntary cessation of the activity complained of by the defendant or doer. Thus, once a suit is filed and the doer voluntarily ceases the challenged conduct, it does not automatically deprive the tribunal of power to hear and determine the case and does not render the case moot especially when the plaintiff seeks damages or prays for injunctive relief against the possible recurrence of the violation.99 The present petitions fall squarely into these exceptions to thus thrust them into the domain of judicial review. The grounds cited above in David are just as applicable in the present cases as they were, not only in David, but also in Province of Batangas v. Romulo100 and Manalo v. Calderon101 where the Court similarly decided them on the merits, supervening events that would ordinarily have rendered the same moot notwithstanding.

Petitions not mooted Contrary then to the asseverations of respondents, the non-signing of the MOA-AD and the eventual dissolution of the GRP Peace Panel did not moot the present petitions. It bears emphasis that the signing of the MOA-AD did not push through due to the Court's issuance of a Temporary Restraining Order. Contrary too to respondents' position, the MOA-AD cannot be considered a mere "list of consensus points," especially given its nomenclature, the need to have it signed or initialed by all the parties concerned on August 5, 2008, and the far-reaching Constitutional implications of these "consensus points," foremost of which is the creation of the BJE. In fact, as what will, in the main, be discussed, there is a commitment on the part of respondents to amend and effect necessary changes to the existing legal framework for certain provisions of the MOA-AD to take effect. Consequently, the present petitions are not confined to the terms and provisions of the MOA-AD, but to other ongoing and future negotiations and agreements necessary for its realization. The petitions have not, therefore, been rendered moot and academic simply by the public disclosure of the MOAAD,102 the manifestation that it will not be signed as well as the disbanding of the GRP Panel not withstanding. Petitions are imbued with paramount public interest There is no gainsaying that the petitions are imbued with paramount public interest, involving a significant part of the country's territory and the wide-ranging political modifications of affected LGUs. The assertion that the MOA-AD is subject to further legal enactments including possible Constitutional amendments more than ever provides impetus for the Court to formulate controlling principles to guide the bench, the bar, the public and, in this case, the government and its negotiating entity. Respondents cite Suplico v. NEDA, et al.103 where the Court did not "pontificat[e] on issues which no longer legitimately constitute an actual case or controversy [as this] will do more harm than good to the nation as a whole." The present petitions must be differentiated from Suplico. Primarily, in Suplico, what was assailed and eventually cancelled was a stand-alone government procurement contract for a national broadband network involving a one-time contractual relation between two parties-the government and a private foreign corporation. As the issues therein involved specific government procurement policies and standard principles on contracts, the majority opinion in Suplico found nothing exceptional therein, the factual circumstances being peculiar only to the transactions and parties involved in the controversy. The MOA-AD is part of a series of agreements In the present controversy, the MOA-AD is a significant part of a series of agreements necessary to carry out the Tripoli Agreement 2001. The MOA-AD which dwells on the Ancestral Domain Aspect of said Tripoli Agreement is the third such component to be undertaken following the implementation of the Security Aspect in August 2001 and the Humanitarian, Rehabilitation and Development Aspect in May 2002. Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008 to the Solicitor General, has stated that "no matter what the Supreme Court ultimately decides[,] the government will not sign the MOA[-AD]," mootness will not set in in light of the terms of the Tripoli Agreement 2001. Need to formulate principles-guidelines Surely, the present MOA-AD can be renegotiated or another one will be drawn up to carry out the Ancestral Domain Aspect of the Tripoli Agreement 2001, in another or in any form, which could contain similar or significantly drastic provisions. While the Court notes the word of the Executive Secretary that the government "is committed to securing an agreement that is

both constitutional and equitable because that is the only way that long-lasting peace can be assured," it is minded to render a decision on the merits in the present petitions to formulate controlling principles to guide the bench, the bar, the public and, most especially, the government in negotiating with the MILF regarding Ancestral Domain. Respondents invite the Court's attention to the separate opinion of then Chief Justice Artemio Panganiban in Sanlakas v. Reyes104 in which he stated that the doctrine of "capable of repetition yet evading review" can override mootness, "provided the party raising it in a proper case has been and/or continue to be prejudiced or damaged as a direct result of their issuance." They contend that the Court must have jurisdiction over the subject matter for the doctrine to be invoked. The present petitions all contain prayers for Prohibition over which this Court exercises original jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP) is a petition for Injunction and Declaratory Relief, the Court will treat it as one for Prohibition as it has far reaching implications and raises questions that need to be resolved.105 At all events, the Court has jurisdiction over most if not the rest of the petitions. Indeed, the present petitions afford a proper venue for the Court to again apply the doctrine immediately referred to as what it had done in a number of landmark cases. 106 There is a reasonable expectation that petitioners, particularly the Provinces of North Cotabato, Zamboanga del Norte and Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela, and the Municipality of Linamon, will again be subjected to the same problem in the future as respondents' actions are capable of repetition, in another or any form. It is with respect to the prayers for Mandamus that the petitions have become moot, respondents having, by Compliance of August 7, 2008, provided this Court and petitioners with official copies of the final draft of the MOA-AD and its annexes. Too, intervenors have been furnished, or have procured for themselves, copies of the MOA-AD. V. SUBSTANTIVE ISSUES As culled from the Petitions and Petitions-in-Intervention, there are basically two SUBSTANTIVE issues to be resolved, one relating to the manner in which the MOA-AD was negotiated and finalized, the other relating to its provisions, viz: 1. Did respondents violate constitutional and statutory provisions on public consultation and the right to information when they negotiated and later initialed the MOA-AD? 2. Do the contents of the MOA-AD violate the Constitution and the laws? ON THE FIRST SUBSTANTIVE ISSUE Petitioners invoke their constitutional right to information on matters of public concern, as provided in Section 7, Article III on the Bill of Rights: Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.107 As early as 1948, in Subido v. Ozaeta,108 the Court has recognized the statutory right to examine and inspect public records, a right which was eventually accorded constitutional status. The right of access to public documents, as enshrined in both the 1973 Constitution and the 1987 Constitution, has been recognized as a self-executory constitutional right.109 In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the Court ruled that access to public records is predicated on the right of the people to acquire information on matters of public

concern since, undoubtedly, in a democracy, the pubic has a legitimate interest in matters of social and political significance. x x x The incorporation of this right in the Constitution is a recognition of the fundamental role of free exchange of information in a democracy. There can be no realistic perception by the public of the nation's problems, nor a meaningful democratic decision-making if they are denied access to information of general interest. Information is needed to enable the members of society to cope with the exigencies of the times. As has been aptly observed: "Maintaining the flow of such information depends on protection for both its acquisition and its dissemination since, if either process is interrupted, the flow inevitably ceases." x x x111 In the same way that free discussion enables members of society to cope with the exigencies of their time, access to information of general interest aids the people in democratic decisionmaking by giving them a better perspective of the vital issues confronting the nation112 so that they may be able to criticize and participate in the affairs of the government in a responsible, reasonable and effective manner. It is by ensuring an unfettered and uninhibited exchange of ideas among a well-informed public that a government remains responsive to the changes desired by the people.113 The MOA-AD is a matter of public concern That the subject of the information sought in the present cases is a matter of public concern114 faces no serious challenge. In fact, respondents admit that the MOA-AD is indeed of public concern.115 In previous cases, the Court found that the regularity of real estate transactions entered in the Register of Deeds,116 the need for adequate notice to the public of the various laws,117 the civil service eligibility of a public employee,118 the proper management of GSIS funds allegedly used to grant loans to public officials,119 the recovery of the Marcoses' alleged ill-gotten wealth,120 and the identity of party-list nominees,121 among others, are matters of public concern. Undoubtedly, the MOA-AD subject of the present cases is of public concern, involving as it does the sovereignty and territorial integrity of the State, which directly affects the lives of the public at large. Matters of public concern covered by the right to information include steps and negotiations leading to the consummation of the contract. In not distinguishing as to the executory nature or commercial character of agreements, the Court has categorically ruled: x x x [T]he right to information "contemplates inclusion of negotiations leading to the consummation of the transaction." Certainly, a consummated contract is not a requirement for the exercise of the right to information. Otherwise, the people can never exercise the right if no contract is consummated, and if one is consummated, it may be too late for the public to expose its defects. Requiring a consummated contract will keep the public in the dark until the contract, which may be grossly disadvantageous to the government or even illegal, becomes fait accompli. This negates the State policy of full transparency on matters of public concern, a situation which the framers of the Constitution could not have intended. Such a requirement will prevent the citizenry from participating in the public discussion of any proposed contract, effectively truncating a basic right enshrined in the Bill of Rights. We can allow neither an emasculation of a constitutional right, nor a retreat by the State of its avowed "policy of full disclosure of all its transactions involving public interest."122 (Emphasis and italics in the original) Intended as a "splendid symmetry"123 to the right to information under the Bill of Rights is the policy of public disclosure under Section 28, Article II of the Constitution reading: Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.124 The policy of full public disclosure enunciated in above-quoted Section 28 complements the right of access to information on matters of public concern found in the Bill

of Rights. The right to information guarantees the right of the people to demand information, while Section 28 recognizes the duty of officialdom to give information even if nobody demands.125 The policy of public disclosure establishes a concrete ethical principle for the conduct of public affairs in a genuinely open democracy, with the people's right to know as the centerpiece. It is a mandate of the State to be accountable by following such policy.126 These provisions are vital to the exercise of the freedom of expression and essential to hold public officials at all times accountable to the people.127 Whether Section 28 is self-executory, the records of the deliberations of the Constitutional Commission so disclose: MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated or will not be in force and effect until after Congress shall have provided it. MR. OPLE. I expect it to influence the climate of public ethics immediately but, of course, the implementing law will have to be enacted by Congress, Mr. Presiding Officer. 128 The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on the issue, is enlightening. MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer, did I get the Gentleman correctly as having said that this is not a self-executing provision? It would require a legislation by Congress to implement? MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an amendment from Commissioner Regalado, so that the safeguards on national interest are modified by the clause "as may be provided by law" MR. DAVIDE. But as worded, does it not mean that this will immediately take effect and Congress may provide for reasonable safeguards on the sole ground national interest? MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should immediately influence the climate of the conduct of public affairs but, of course, Congress here may no longer pass a law revoking it, or if this is approved, revoking this principle, which is inconsistent with this policy.129 (Emphasis supplied) Indubitably, the effectivity of the policy of public disclosure need not await the passing of a statute. As Congress cannot revoke this principle, it is merely directed to provide for "reasonable safeguards." The complete and effective exercise of the right to information necessitates that its complementary provision on public disclosure derive the same selfexecutory nature. Since both provisions go hand-in-hand, it is absurd to say that the broader130 right to information on matters of public concern is already enforceable while the correlative duty of the State to disclose its transactions involving public interest is not enforceable until there is an enabling law. Respondents cannot thus point to the absence of an implementing legislation as an excuse in not effecting such policy. An essential element of these freedoms is to keep open a continuing dialogue or process of communication between the government and the people. It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the people's will.131Envisioned to be corollary to the twin rights to information and disclosure is the design for feedback mechanisms. MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be able to participate? Will the government provide feedback mechanisms so that the people can participate and can react where the existing media facilities are not able to provide full feedback mechanisms to the government? I suppose this will be part of the government implementing operational mechanisms.

MR. OPLE. Yes. I think through their elected representatives and that is how these courses take place. There is a message and a feedback, both ways. xxxx MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last sentence? I think when we talk about the feedback network, we are not talking about public officials but also network of private business o[r] community-based organizations that will be reacting. As a matter of fact, we will put more credence or credibility on the private network of volunteers and voluntary community-based organizations. So I do not think we are afraid that there will be another OMA in the making.132(Emphasis supplied) The imperative of a public consultation, as a species of the right to information, is evident in the "marching orders" to respondents. The mechanics for the duty to disclose information and to conduct public consultation regarding the peace agenda and process is manifestly provided by E.O. No. 3.133 The preambulatory clause of E.O. No. 3 declares that there is a need to further enhance the contribution of civil society to the comprehensive peace process by institutionalizing the people's participation. One of the three underlying principles of the comprehensive peace process is that it "should be community-based, reflecting the sentiments, values and principles important to all Filipinos" and "shall be defined not by the government alone, nor by the different contending groups only, but by all Filipinos as one community."134 Included as a component of the comprehensive peace process is consensus-building and empowerment for peace, which includes "continuing consultations on both national and local levels to build consensus for a peace agenda and process, and the mobilization and facilitation of people's participation in the peace process."135 Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate "continuing" consultations, contrary to respondents' position that plebiscite is "more than sufficient consultation."136 Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of which is to "[c]onduct regular dialogues with the National Peace Forum (NPF) and other peace partners to seek relevant information, comments, recommendations as well as to render appropriate and timely reports on the progress of the comprehensive peace process."137 E.O. No. 3 mandates the establishment of the NPF to be "the principal forum for the PAPP to consult with and seek advi[c]e from the peace advocates, peace partners and concerned sectors of society on both national and local levels, on the implementation of the comprehensive peace process, as well as for government[-]civil society dialogue and consensus-building on peace agenda and initiatives."138 In fine, E.O. No. 3 establishes petitioners' right to be consulted on the peace agenda, as a corollary to the constitutional right to information and disclosure. PAPP Esperon committed grave abuse of discretion The PAPP committed grave abuse of discretion when he failed to carry out the pertinent consultation. The furtive process by which the MOA-AD was designed and crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof. The Court may not, of course, require the PAPP to conduct the consultation in a particular way or manner. It may, however, require him to comply with the law and discharge the functions within the authority granted by the President.139 Petitioners are not claiming a seat at the negotiating table, contrary to respondents' retort in justifying the denial of petitioners' right to be consulted. Respondents' stance manifests the manner by which they treat the salient provisions of E.O. No. 3 on people's participation. Such disregard of the express mandate of the President is not much different from superficial conduct

toward token provisos that border on classic lip service.140 It illustrates a gross evasion of positive duty and a virtual refusal to perform the duty enjoined. As for respondents' invocation of the doctrine of executive privilege, it is not tenable under the premises. The argument defies sound reason when contrasted with E.O. No. 3's explicit provisions on continuing consultation and dialogue on both national and local levels. The executive order even recognizes the exercise of the public's right even before the GRP makes its official recommendations or before the government proffers its definite propositions.141 It bear emphasis that E.O. No. 3 seeks to elicit relevant advice, information, comments and recommendations from the people through dialogue. AT ALL EVENTS, respondents effectively waived the defense of executive privilege in view of their unqualified disclosure of the official copies of the final draft of the MOA-AD. By unconditionally complying with the Court's August 4, 2008 Resolution, without a prayer for the document's disclosure in camera, or without a manifestation that it was complying therewith ex abundante ad cautelam. Petitioners' assertion that the Local Government Code (LGC) of 1991 declares it a State policy to "require all national agencies and offices to conduct periodic consultations with appropriate local government units, non-governmental and people's organizations, and other concerned sectors of the community before any project or program is implemented in their respective jurisdictions"142 is well-taken. The LGC chapter on intergovernmental relations puts flesh into this avowed policy: Prior Consultations Required. - No project or program shall be implemented by government authorities unlessthe consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained: Provided, That occupants in areas where such projects are to be implemented shall not be evicted unless appropriate relocation sites have been provided, in accordance with the provisions of the Constitution.143 (Italics and underscoring supplied) In Lina, Jr. v. Hon. Paño,144 the Court held that the above-stated policy and above-quoted provision of the LGU apply only to national programs or projects which are to be implemented in a particular local community. Among the programs and projects covered are those that are critical to the environment and human ecology including those that may call for the eviction of a particular group of people residing in the locality where these will be implemented.145 The MOAAD is one peculiar program that unequivocally and unilaterally vests ownership of a vast territory to the Bangsamoro people,146 which could pervasively and drastically result to the diaspora or displacement of a great number of inhabitants from their total environment. With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs), whose interests are represented herein by petitioner Lopez and are adversely affected by the MOA-AD, the ICCs/IPs have, under the IPRA, the right to participate fully at all levels of decision-making in matters which may affect their rights, lives and destinies. 147 The MOA-AD, an instrument recognizing ancestral domain, failed to justify its non-compliance with the clear-cut mechanisms ordained in said Act,148 which entails, among other things, the observance of the free and prior informed consent of the ICCs/IPs. Notably, the IPRA does not grant the Executive Department or any government agency the power to delineate and recognize an ancestral domain claim by mere agreement or compromise. The recognition of the ancestral domain is the raison d'etre of the MOA-AD, without which all other stipulations or "consensus points" necessarily must fail. In proceeding to make a sweeping declaration on ancestral domain, without complying with the IPRA, which is cited as one of the TOR of the MOA-AD, respondents clearly transcended the boundaries of their authority. As it seems, even the heart of the MOA-AD is still subject to necessary changes to the legal framework. While paragraph 7 on Governance suspends the effectivity of all provisions requiring changes to the legal framework, such clause is itself invalid, as will be discussed in the following section.

Indeed, ours is an open society, with all the acts of the government subject to public scrutiny and available always to public cognizance. This has to be so if the country is to remain democratic, with sovereignty residing in the people and all government authority emanating from them.149 ON THE SECOND SUBSTANTIVE ISSUE With regard to the provisions of the MOA-AD, there can be no question that they cannot all be accommodated under the present Constitution and laws. Respondents have admitted as much in the oral arguments before this Court, and the MOA-AD itself recognizes the need to amend the existing legal framework to render effective at least some of its provisions. Respondents, nonetheless, counter that the MOA-AD is free of any legal infirmity because any provisions therein which are inconsistent with the present legal framework will not be effective until the necessary changes to that framework are made. The validity of this argument will be considered later. For now, the Court shall pass upon how The MOA-AD is inconsistent with the Constitution and laws as presently worded. In general, the objections against the MOA-AD center on the extent of the powers conceded therein to the BJE. Petitioners assert that the powers granted to the BJE exceed those granted to any local government under present laws, and even go beyond those of the present ARMM. Before assessing some of the specific powers that would have been vested in the BJE, however, it would be useful to turn first to a general idea that serves as a unifying link to the different provisions of the MOA-AD, namely, the international law concept of association. Significantly, the MOA-AD explicitly alludes to this concept, indicating that the Parties actually framed its provisions with it in mind. Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last mentioned provision, however, that the MOAAD most clearly uses it to describe the envisioned relationship between the BJE and the Central Government. 4. The relationship between the Central Government and the Bangsamoro juridical entity shall be associative characterized by shared authority and responsibility with a structure of governance based on executive, legislative, judicial and administrative institutions with defined powers and functions in the comprehensive compact. A period of transition shall be established in a comprehensive peace compact specifying the relationship between the Central Government and the BJE. (Emphasis and underscoring supplied) The nature of the "associative" relationship may have been intended to be defined more precisely in the still to be forged Comprehensive Compact. Nonetheless, given that there is a concept of "association" in international law, and the MOA-AD - by its inclusion of international law instruments in its TOR- placed itself in an international legal context, that concept of association may be brought to bear in understanding the use of the term "associative" in the MOA-AD. Keitner and Reisman state that [a]n association is formed when two states of unequal power voluntarily establish durable links. In the basic model, one state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its international status as a state. Free associations represent a middle ground between integration and independence. x x x150 (Emphasis and underscoring supplied) For purposes of illustration, the Republic of the Marshall Islands and the Federated States of Micronesia (FSM), formerly part of the U.S.-administered Trust Territory of the Pacific Islands,151 are associated states of the U.S. pursuant to a Compact of Free Association. The currency in these countries is the U.S. dollar, indicating their very close ties with the U.S., yet they issue their own travel documents, which is a mark of their statehood. Their international

legal status as states was confirmed by the UN Security Council and by their admission to UN membership. According to their compacts of free association, the Marshall Islands and the FSM generally have the capacity to conduct foreign affairs in their own name and right, such capacity extending to matters such as the law of the sea, marine resources, trade, banking, postal, civil aviation, and cultural relations. The U.S. government, when conducting its foreign affairs, is obligated to consult with the governments of the Marshall Islands or the FSM on matters which it (U.S. government) regards as relating to or affecting either government. In the event of attacks or threats against the Marshall Islands or the FSM, the U.S. government has the authority and obligation to defend them as if they were part of U.S. territory. The U.S. government, moreover, has the option of establishing and using military areas and facilities within these associated states and has the right to bar the military personnel of any third country from having access to these territories for military purposes. It bears noting that in U.S. constitutional and international practice, free association is understood as an international association between sovereigns. The Compact of Free Association is a treaty which is subordinate to the associated nation's national constitution, and each party may terminate the association consistent with the right of independence. It has been said that, with the admission of the U.S.-associated states to the UN in 1990, the UN recognized that the American model of free association is actually based on an underlying status of independence.152 In international practice, the "associated state" arrangement has usually been used as a transitional device of former colonies on their way to full independence. Examples of states that have passed through the status of associated states as a transitional phase are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since become independent states.153 Back to the MOA-AD, it contains many provisions which are consistent with the international legal concept of association, specifically the following: the BJE's capacity to enter into economic and trade relations with foreign countries, the commitment of the Central Government to ensure the BJE's participation in meetings and events in the ASEAN and the specialized UN agencies, and the continuing responsibility of the Central Government over external defense. Moreover, the BJE's right to participate in Philippine official missions bearing on negotiation of border agreements, environmental protection, and sharing of revenues pertaining to the bodies of water adjacent to or between the islands forming part of the ancestral domain, resembles the right of the governments of FSM and the Marshall Islands to be consulted by the U.S. government on any foreign affairs matter affecting them. These provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the status of an associated state or, at any rate, a status closely approximating it. The concept of association is not recognized under the present Constitution No province, city, or municipality, not even the ARMM, is recognized under our laws as having an "associative" relationship with the national government. Indeed, the concept implies powers that go beyond anything ever granted by the Constitution to any local or regional government. It also implies the recognition of the associated entity as a state. The Constitution, however, does not contemplate any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims to prepare any part of Philippine territory for independence. Even the mere concept animating many of the MOA-AD's provisions, therefore, already requires for its validity the amendment of constitutional provisions, specifically the following provisions of Article X:

SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided. SECTION 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines. The BJE is entity than recognized in the Constitution

a the

far

more autonomous

powerful region

It is not merely an expanded version of the ARMM, the status of its relationship with the national government being fundamentally different from that of the ARMM. Indeed, BJE is a state in all but name as it meets the criteria of a state laid down in the Montevideo Convention,154 namely, a permanent population, a defined territory, a government, and a capacity to enter into relations with other states. Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine territory, the spirit animating it - which has betrayed itself by its use of the concept of association - runs counter to the national sovereignty and territorial integrity of the Republic. The defining concept underlying the relationship between the national government and the BJE being itself contrary to the present Constitution, it is not surprising that many of the specific provisions of the MOA-AD on the formation and powers of the BJE are in conflict with the Constitution and the laws. Article X, Section 18 of the Constitution provides that "[t]he creation of the autonomous region shall be effective when approved by a majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region." (Emphasis supplied) As reflected above, the BJE is more of a state than an autonomous region. But even assuming that it is covered by the term "autonomous region" in the constitutional provision just quoted, the MOA-AD would still be in conflict with it. Under paragraph 2(c) on TERRITORY in relation to 2(d) and 2(e), the present geographic area of the ARMM and, in addition, the municipalities of Lanao del Norte which voted for inclusion in the ARMM during the 2001 plebiscite - Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal - are automatically part of the BJE without need of another plebiscite, in contrast to the areas under Categories A and B mentioned earlier in the overview. That the present components of the ARMM and the above-mentioned municipalities voted for inclusion therein in 2001, however, does not render another plebiscite unnecessary under the Constitution, precisely because what these areas voted for then was their inclusion in the ARMM, not the BJE. The MOA-AD, comply with the Constitution

Article

moreover, X,

would Section

20

not of

since that provision defines the powers of autonomous regions as follows: SECTION 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over: (1) Administrative organization;

(2) Creation of sources of revenues; (3) Ancestral domain and natural resources; (4) Personal, family, and property relations; (5) Regional urban and rural planning development; (6) Economic, social, and tourism development; (7) Educational policies; (8) Preservation and development of the cultural heritage; and (9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region. (Underscoring supplied) Again on the premise that the BJE may be regarded as an autonomous region, the MOA-AD would require an amendment that would expand the above-quoted provision. The mere passage of new legislation pursuant to sub-paragraph No. 9 of said constitutional provision would not suffice, since any new law that might vest in the BJE the powers found in the MOAAD must, itself, comply with other provisions of the Constitution. It would not do, for instance, to merely pass legislation vesting the BJE with treaty-making power in order to accommodate paragraph 4 of the strand on RESOURCES which states: "The BJE is free to enter into any economic cooperation and trade relations with foreign countries: provided, however, that such relationships and understandings do not include aggression against the Government of the Republic of the Philippines x x x." Under our constitutional system, it is only the President who has that power. Pimentel v. Executive Secretary155 instructs: In our system of government, the President, being the head of state, is regarded as the sole organ and authority in external relations and is the country's sole representative with foreign nations. As the chief architect of foreign policy, the President acts as the country's mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations. In the realm of treaty-making, the President has the sole authority to negotiate with other states. (Emphasis and underscoring supplied) Article II, Section 22 of the Constitution must also be amended if the scheme envisioned in the MOA-AD is to be effected. That constitutional provision states: "The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development." (Underscoring supplied) An associative arrangement does not uphold national unity. While there may be a semblance of unity because of the associative ties between the BJE and the national government, the act of placing a portion of Philippine territory in a status which, in international practice, has generally been a preparation for independence, is certainly not conducive to national unity. Besides being irreconcilable with the Constitution, the MOA-AD is also inconsistent with prevailing statutory law, among which are R.A. No. 9054156 or the Organic Act of the ARMM, and the IPRA.157 Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the definition of "Bangsamoro people" used in the MOA-AD. Paragraph 1 on Concepts and Principles states: 1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and be accepted as "Bangsamoros". The Bangsamoro people refers to those who are natives or original inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the time of conquest or colonization of its descendants whether mixed or of full blood. Spouses and their

descendants are classified as Bangsamoro. The freedom of choice of the Indigenous people shall be respected. (Emphasis and underscoring supplied) This use of the term Bangsamoro sharply contrasts with that found in the Article X, Section 3 of the Organic Act, which, rather than lumping together the identities of the Bangsamoro and other indigenous peoples living in Mindanao, clearly distinguishes between Bangsamoro people and Tribal peoples, as follows: "As used in this Organic Act, the phrase "indigenous cultural community" refers to Filipino citizens residing in the autonomous region who are: (a) Tribal peoples. These are citizens whose social, cultural and economic conditions distinguish them from other sectors of the national community; and (b) Bangsa Moro people. These are citizens who are believers in Islam and who have retained some or all of their own social, economic, cultural, and political institutions." Respecting the IPRA, it lays down the prevailing procedure for the delineation and recognition of ancestral domains. The MOA-AD's manner of delineating the ancestral domain of the Bangsamoro people is a clear departure from that procedure. By paragraph 1 of Territory, the Parties simply agree that, subject to the delimitations in the agreed Schedules, "[t]he Bangsamoro homeland and historic territory refer to the land mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the aerial domain, the atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region." Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure, as illustrated in the following provisions thereof: SECTION 52. Delineation Process. - The identification and delineation of ancestral domains shall be done in accordance with the following procedures: xxxx b) Petition for Delineation. - The process of delineating a specific perimeter may be initiated by the NCIP with the consent of the ICC/IP concerned, or through a Petition for Delineation filed with the NCIP, by a majority of the members of the ICCs/IPs; c) Delineation Proper. - The official delineation of ancestral domain boundaries including census of all community members therein, shall be immediately undertaken by the Ancestral Domains Office upon filing of the application by the ICCs/IPs concerned. Delineation will be done in coordination with the community concerned and shall at all times include genuine involvement and participation by the members of the communities concerned; d) Proof Required. - Proof of Ancestral Domain Claims shall include the testimony of elders or community under oath, and other documents directly or indirectly attesting to the possession or occupation of the area since time immemorial by such ICCs/IPs in the concept of owners which shall be any one (1) of the following authentic documents: 1) Written accounts of the ICCs/IPs customs and traditions; 2) Written accounts of the ICCs/IPs political structure and institution; 3) Pictures showing long term occupation such as those of old improvements, burial grounds, sacred places and old villages; 4) Historical accounts, including pacts and agreements concerning boundaries entered into by the ICCs/IPs concerned with other ICCs/IPs;

5) Survey plans and sketch maps; 6) Anthropological data; 7) Genealogical surveys; 8) Pictures and descriptive histories of traditional communal forests and hunting grounds; 9) Pictures and descriptive histories of traditional landmarks such as mountains, rivers, creeks, ridges, hills, terraces and the like; and 10) Write-ups of names and places derived from the native dialect of the community. e) Preparation of Maps. - On the basis of such investigation and the findings of fact based thereon, the Ancestral Domains Office of the NCIP shall prepare a perimeter map, complete with technical descriptions, and a description of the natural features and landmarks embraced therein; f) Report of Investigation and Other Documents. - A complete copy of the preliminary census and a report of investigation, shall be prepared by the Ancestral Domains Office of the NCIP; g) Notice and Publication. - A copy of each document, including a translation in the native language of the ICCs/IPs concerned shall be posted in a prominent place therein for at least fifteen (15) days. A copy of the document shall also be posted at the local, provincial and regional offices of the NCIP, and shall be published in a newspaper of general circulation once a week for two (2) consecutive weeks to allow other claimants to file opposition thereto within fifteen (15) days from date of such publication: Provided, That in areas where no such newspaper exists, broadcasting in a radio station will be a valid substitute: Provided, further, That mere posting shall be deemed sufficient if both newspaper and radio station are not available; h) Endorsement to NCIP. - Within fifteen (15) days from publication, and of the inspection process, the Ancestral Domains Office shall prepare a report to the NCIP endorsing a favorable action upon a claim that is deemed to have sufficient proof. However, if the proof is deemed insufficient, the Ancestral Domains Office shall require the submission of additional evidence: Provided, That the Ancestral Domains Office shall reject any claim that is deemed patently false or fraudulent after inspection and verification: Provided, further, That in case of rejection, the Ancestral Domains Office shall give the applicant due notice, copy furnished all concerned, containing the grounds for denial. The denial shall be appealable to the NCIP: Provided, furthermore, That in cases where there are conflicting claims among ICCs/IPs on the boundaries of ancestral domain claims, the Ancestral Domains Office shall cause the contending parties to meet and assist them in coming up with a preliminary resolution of the conflict, without prejudice to its full adjudication according to the section below. xxxx To remove all doubts about the irreconcilability of the MOA-AD with the present legal system, a discussion of not only the Constitution and domestic statutes, but also of international law is in order, for Article II, Section 2 of the Constitution states that the Philippines "adopts the generally accepted principles of international law as part of the law of the land." Applying this provision of the Constitution, the Court, in Mejoff v. Director of Prisons,158 held that the Universal Declaration of Human Rights is part of the law of the land on account of which it ordered the release on bail of a detained alien of Russian descent whose deportation order had

not been executed even after two years. Similarly, the Court in Agustin v. Edu159 applied the aforesaid constitutional provision to the 1968 Vienna Convention on Road Signs and Signals. International law has long recognized the right to self-determination of "peoples," understood not merely as the entire population of a State but also a portion thereof. In considering the question of whether the people of Quebec had a right to unilaterally secede from Canada, the Canadian Supreme Court in REFERENCE RE SECESSION OF QUEBEC160 had occasion to acknowledge that "the right of a people to self-determination is now so widely recognized in international conventions that the principle has acquired a status beyond ‘convention' and is considered a general principle of international law." Among the conventions referred to are the International Covenant on Civil and Political Rights161 and the International Covenant on Economic, Social and Cultural Rights162 which state, in Article 1 of both covenants, that all peoples, by virtue of the right of self-determination, "freely determine their political status and freely pursue their economic, social, and cultural development." The people's right to self-determination should not, however, be understood as extending to a unilateral right of secession. A distinction should be made between the right of internal and external self-determination. REFERENCE RE SECESSION OF QUEBEC is again instructive: "(ii) Scope of the Right to Self-determination 126. The recognized sources of international law establish that the right to selfdetermination of a people is normally fulfilled through internal self-determination a people's pursuit of its political, economic, social and cultural development within the framework of an existing state. A right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances. x x x External self-determination can be defined as in the following statement from the Declaration on Friendly Relations, supra, as The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a peopleconstitute modes of implementing the right of self-determination by that people. (Emphasis added) 127. The international law principle of self-determination has evolved within a framework of respect for the territorial integrity of existing states. The various international documents that support the existence of a people's right to selfdetermination also contain parallel statements supportive of the conclusion that the exercise of such a right must be sufficiently limited to prevent threats to an existing state's territorial integrity or the stability of relations between sovereign states. x x x x (Emphasis, italics and underscoring supplied) The Canadian Court went on to discuss the exceptional cases in which the right to external selfdetermination can arise, namely, where a people is under colonial rule, is subject to foreign domination or exploitation outside a colonial context, and - less definitely but asserted by a number of commentators - is blocked from the meaningful exercise of its right to internal selfdetermination. The Court ultimately held that the population of Quebec had no right to secession, as the same is not under colonial rule or foreign domination, nor is it being deprived of the freedom to make political choices and pursue economic, social and cultural development, citing that Quebec is equitably represented in legislative, executive and judicial institutions within Canada, even occupying prominent positions therein. The exceptional nature of the right of secession is further exemplified in the REPORT OF THE INTERNATIONAL COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF THE AALAND ISLANDS QUESTION.163 There, Sweden presented to the Council of the League of Nations the

question of whether the inhabitants of the Aaland Islands should be authorized to determine by plebiscite if the archipelago should remain under Finnish sovereignty or be incorporated in the kingdom of Sweden. The Council, before resolving the question, appointed an International Committee composed of three jurists to submit an opinion on the preliminary issue of whether the dispute should, based on international law, be entirely left to the domestic jurisdiction of Finland. The Committee stated the rule as follows: x x x [I]n the absence of express provisions in international treaties, the right of disposing of national territory is essentially an attribute of the sovereignty of every State. Positive International Law does not recognize the right of national groups, as such, to separate themselves from the State of which they form part by the simple expression of a wish, any more than it recognizes the right of other States to claim such a separation. Generally speaking, the grant or refusal of the right to a portion of its population of determining its own political fate by plebiscite or by some other method, is, exclusively, an attribute of the sovereignty of every State which is definitively constituted. A dispute between two States concerning such a question, under normal conditions therefore, bears upon a question which International Law leaves entirely to the domestic jurisdiction of one of the States concerned. Any other solution would amount to an infringement of sovereign rights of a State and would involve the risk of creating difficulties and a lack of stability which would not only be contrary to the very idea embodied in term "State," but would also endanger the interests of the international community. If this right is not possessed by a large or small section of a nation, neither can it be held by the State to which the national group wishes to be attached, nor by any other State. (Emphasis and underscoring supplied) The Committee held that the dispute concerning the Aaland Islands did not refer to a question which is left by international law to the domestic jurisdiction of Finland, thereby applying the exception rather than the rule elucidated above. Its ground for departing from the general rule, however, was a very narrow one, namely, the Aaland Islands agitation originated at a time when Finland was undergoing drastic political transformation. The internal situation of Finland was, according to the Committee, so abnormal that, for a considerable time, the conditions required for the formation of a sovereign State did not exist. In the midst of revolution, anarchy, and civil war, the legitimacy of the Finnish national government was disputed by a large section of the people, and it had, in fact, been chased from the capital and forcibly prevented from carrying out its duties. The armed camps and the police were divided into two opposing forces. In light of these circumstances, Finland was not, during the relevant time period, a "definitively constituted" sovereign state. The Committee, therefore, found that Finland did not possess the right to withhold from a portion of its population the option to separate itself - a right which sovereign nations generally have with respect to their own populations. Turning now to the more specific category of indigenous peoples, this term has been used, in scholarship as well as international, regional, and state practices, to refer to groups with distinct cultures, histories, and connections to land (spiritual and otherwise) that have been forcibly incorporated into a larger governing society. These groups are regarded as "indigenous" since they are the living descendants of pre-invasion inhabitants of lands now dominated by others. Otherwise stated, indigenous peoples, nations, or communities are culturally distinctive groups that find themselves engulfed by settler societies born of the forces of empire and conquest.164 Examples of groups who have been regarded as indigenous peoples are the Maori of New Zealand and the aboriginal peoples of Canada. As with the broader category of "peoples," indigenous peoples situated within states do not have a general right to independence or secession from those states under international law,165 but they do have rights amounting to what was discussed above as the right to internal self-determination. In a historic development last September 13, 2007, the UN General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP) through General Assembly Resolution 61/295. The vote was 143 to 4, the Philippines being included among those in favor, and the four voting against being Australia, Canada, New Zealand, and the U.S. The Declaration clearly recognized the right of indigenous peoples to self-determination, encompassing the right to autonomy or self-government, to wit:

Article 3 Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. Article 4 Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions. Article 5 Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State. Self-government, as used in international legal discourse pertaining to indigenous peoples, has been understood as equivalent to "internal self-determination."166 The extent of selfdetermination provided for in the UN DRIP is more particularly defined in its subsequent articles, some of which are quoted hereunder: Article 8 1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture. 2. States shall provide effective mechanisms for prevention of, and redress for: (a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities; (b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources; (c) Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights; (d) Any form of forced assimilation or integration; (e) Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them. Article 21 1. Indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions, including, inter alia, in the areas of education, employment, vocational training and retraining, housing, sanitation, health and social security. 2. States shall take effective measures and, where appropriate, special measures to ensure continuing improvement of their economic and social conditions. Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities. Article 26 1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. 3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned. Article 30 1. Military activities shall not take place in the lands or territories of indigenous peoples, unless justified by a relevant public interest or otherwise freely agreed with or requested by the indigenous peoples concerned. 2. States shall undertake effective consultations with the indigenous peoples concerned, through appropriate procedures and in particular through their representative institutions, prior to using their lands or territories for military activities. Article 32 1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources. 2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. 3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact. Article 37 1. Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and other constructive arrangements. 2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous peoples contained in treaties, agreements and other constructive arrangements. Article 38 States in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration. Assuming that the UN DRIP, like the Universal Declaration on Human Rights, must now be regarded as embodying customary international law - a question which the Court need not definitively resolve here - the obligations enumerated therein do not strictly require the Republic to grant the Bangsamoro people, through the instrumentality of the BJE, the particular rights and powers provided for in the MOA-AD. Even the more specific provisions of the UN DRIP are general in scope, allowing for flexibility in its application by the different States. There is, for instance, no requirement in the UN DRIP that States now guarantee indigenous peoples their own police and internal security force. Indeed, Article 8 presupposes that it is the State which will provide protection for indigenous peoples against acts like the forced dispossession of their lands - a function that is normally performed by police officers. If the

protection of a right so essential to indigenous people's identity is acknowledged to be the responsibility of the State, then surely the protection of rights less significant to them as such peoples would also be the duty of States. Nor is there in the UN DRIP an acknowledgement of the right of indigenous peoples to the aerial domain and atmospheric space. What it upholds, in Article 26 thereof, is the right of indigenous peoples to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. Moreover, the UN DRIP, while upholding the right of indigenous peoples to autonomy, does not obligate States to grant indigenous peoples the near-independent status of an associated state. All the rights recognized in that document are qualified in Article 46 as follows: 1. Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States. Even if the UN DRIP were considered as part of the law of the land pursuant to Article II, Section 2 of the Constitution, it would not suffice to uphold the validity of the MOA-AD so as to render its compliance with other laws unnecessary. It is, therefore, clear that the MOA-AD contains numerous provisions that cannot be reconciled with the Constitution and the laws as presently worded. Respondents proffer, however, that the signing of the MOA-AD alone would not have entailed any violation of law or grave abuse of discretion on their part, precisely because it stipulates that the provisions thereof inconsistent with the laws shall not take effect until these laws are amended. They cite paragraph 7 of the MOA-AD strand on GOVERNANCE quoted earlier, but which is reproduced below for convenience: 7. The Parties agree that the mechanisms and modalities for the actual implementation of this MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such steps to enable it to occur effectively. Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework with due regard to non derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact. Indeed, the foregoing stipulation keeps many controversial provisions of the MOA-AD from coming into force until the necessary changes to the legal framework are effected. While the word "Constitution" is not mentioned in the provision now under consideration or anywhere else in the MOA-AD, the term "legal framework" is certainly broad enough to include the Constitution. Notwithstanding the suspensive clause, however, respondents, by their mere act of incorporating in the MOA-AD the provisions thereof regarding the associative relationship between the BJE and the Central Government, have already violated the Memorandum of Instructions From The President dated March 1, 2001, which states that the "negotiations shall be conducted in accordance with x x x the principles of the sovereignty and territorial integrityof the Republic of the Philippines." (Emphasis supplied) Establishing an associative relationship between the BJE and the Central Government is, for the reasons already discussed, a preparation for independence, or worse, an implicit acknowledgment of an independent status already prevailing. Even apart from the above-mentioned Memorandum, however, the MOA-AD is defective because the suspensive clause is invalid, as discussed below. The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is founded on E.O. No. 3, Section 5(c), which states that there shall be established Government Peace Negotiating Panels for negotiations with different rebel groups to be "appointed by the President

as her official emissaries to conduct negotiations, dialogues, and face-to-face discussions with rebel groups." These negotiating panels are to report to the President, through the PAPP on the conduct and progress of the negotiations. It bears noting that the GRP Peace Panel, in exploring lasting solutions to the Moro Problem through its negotiations with the MILF, was not restricted by E.O. No. 3 only to those options available under the laws as they presently stand. One of the components of a comprehensive peace process, which E.O. No. 3 collectively refers to as the "Paths to Peace," is the pursuit of social, economic, and political reforms which may require new legislation or even constitutional amendments. Sec. 4(a) of E.O. No. 3, which reiterates Section 3(a), of E.O. No. 125, 167 states: SECTION 4. The Six Paths to Peace. - The components of the comprehensive peace process comprise the processes known as the "Paths to Peace". These component processes are interrelated and not mutually exclusive, and must therefore be pursued simultaneously in a coordinated and integrated fashion. They shall include, but may not be limited to, the following: a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component involves the vigorous implementation of various policies, reforms, programs and projects aimed at addressing the root causes of internal armed conflicts and social unrest. This may require administrative action, new legislation or even constitutional amendments. x x x x (Emphasis supplied) The MOA-AD, therefore, may reasonably be perceived as an attempt of respondents to address, pursuant to this provision of E.O. No. 3, the root causes of the armed conflict in Mindanao. The E.O. authorized them to "think outside the box," so to speak. Hence, they negotiated and were set on signing the MOA-AD that included various social, economic, and political reforms which cannot, however, all be accommodated within the present legal framework, and which thus would require new legislation and constitutional amendments. The inquiry on the legality of the "suspensive clause," however, cannot stop here, because it must be asked whether the President herself may exercise the power delegated to the GRP Peace Panel under E.O. No. 3, Sec. 4(a). The President cannot delegate a power that she herself does not possess. May the President, in the course of peace negotiations, agree to pursue reforms that would require new legislation and constitutional amendments, or should the reforms be restricted only to those solutions which the present laws allow? The answer to this question requires a discussion of the extent of the President's power to conduct peace negotiations. That the authority of the President to conduct peace negotiations with rebel groups is not explicitly mentioned in the Constitution does not mean that she has no such authority. In Sanlakas v. Executive Secretary,168 in issue was the authority of the President to declare a state of rebellion - an authority which is not expressly provided for in the Constitution. The Court held thus: "In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into jurisprudence. There, the Court, by a slim 8-7 margin, upheld the President's power to forbid the return of her exiled predecessor. The rationale for the majority's ruling rested on the President's . . . unstated residual powers which are implied from the grant of executive power and which are necessary for her to comply with her duties under the Constitution. The powers of the President are not limited to what are expressly enumerated in the article on the Executive Department and in scattered provisions of the Constitution. This is so, notwithstanding the avowed intent of the members of the Constitutional Commission of 1986 to limit the powers of the President as a reaction to the abuses under the regime of Mr. Marcos, for the result was a limitation of specific powers of the President,

particularly those relating to the commander-in-chief clause, but not a diminution of the general grant of executive power. Thus, the President's authority to declare a state of rebellion springs in the main from her powers as chief executive and, at the same time, draws strength from her Commander-in-Chief powers. x x x (Emphasis and underscoring supplied) Similarly, the President's power to conduct peace negotiations is implicitly included in her powers as Chief Executive and Commander-in-Chief. As Chief Executive, the President has the general responsibility to promote public peace, and as Commander-in-Chief, she has the more specific duty to prevent and suppress rebellion and lawless violence.169 As the experience of nations which have similarly gone through internal armed conflict will show, however, peace is rarely attained by simply pursuing a military solution. Oftentimes, changes as far-reaching as a fundamental reconfiguration of the nation's constitutional structure is required. The observations of Dr. Kirsti Samuels are enlightening, to wit: x x x [T]he fact remains that a successful political and governance transition must form the core of any post-conflict peace-building mission. As we have observed in Liberia and Haiti over the last ten years, conflict cessation without modification of the political environment, even where state-building is undertaken through technical electoral assistance and institution- or capacity-building, is unlikely to succeed. On average, more than 50 percent of states emerging from conflict return to conflict. Moreover, a substantial proportion of transitions have resulted in weak or limited democracies. The design of a constitution and its constitution-making process can play an important role in the political and governance transition. Constitution-making after conflict is an opportunity to create a common vision of the future of a state and a road map on how to get there. The constitution can be partly a peace agreement and partly a framework setting up the rules by which the new democracy will operate.170 In the same vein, Professor Christine Bell, in her article on the nature and legal status of peace agreements, observed that the typical way that peace agreements establish or confirm mechanisms for demilitarization and demobilization is by linking them to new constitutional structures addressing governance, elections, and legal and human rights institutions.171 In the Philippine experience, the link between peace agreements and constitution-making has been recognized by no less than the framers of the Constitution. Behind the provisions of the Constitution on autonomous regions172 is the framers' intention to implement a particular peace agreement, namely, the Tripoli Agreement of 1976 between the GRP and the MNLF, signed by then Undersecretary of National Defense Carmelo Z. Barbero and then MNLF Chairman Nur Misuari. MR. ROMULO. There are other speakers; so, although I have some more questions, I will reserve my right to ask them if they are not covered by the other speakers. I have only two questions. I heard one of the Commissioners say that local autonomy already exists in the Muslim region; it is working very well; it has, in fact, diminished a great deal of the problems. So, my question is: since that already exists, why do we have to go into something new? MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner Yusup Abubakar is right that certain definite steps have been taken to implement the provisions of the Tripoli Agreement with respect to an autonomous region in Mindanao. This is a good first step, but there is no question that this is merely a partial response to the Tripoli Agreement itself and to the fuller standard of regional autonomy contemplated in that agreement, and now by state policy.173(Emphasis supplied)

The constitutional provisions on autonomy and the statutes enacted pursuant to them have, to the credit of their drafters, been partly successful. Nonetheless, the Filipino people are still faced with the reality of an on-going conflict between the Government and the MILF. If the President is to be expected to find means for bringing this conflict to an end and to achieve lasting peace in Mindanao, then she must be given the leeway to explore, in the course of peace negotiations, solutions that may require changes to the Constitution for their implementation. Being uniquely vested with the power to conduct peace negotiations with rebel groups, the President is in a singular position to know the precise nature of their grievances which, if resolved, may bring an end to hostilities. The President may not, of course, unilaterally implement the solutions that she considers viable, but she may not be prevented from submitting them as recommendations to Congress, which could then, if it is minded, act upon them pursuant to the legal procedures for constitutional amendment and revision. In particular, Congress would have the option, pursuant to Article XVII, Sections 1 and 3 of the Constitution, to propose the recommended amendments or revision to the people, call a constitutional convention, or submit to the electorate the question of calling such a convention. While the President does not possess constituent powers - as those powers may be exercised only by Congress, a Constitutional Convention, or the people through initiative and referendum she may submit proposals for constitutional change to Congress in a manner that does not involve the arrogation of constituent powers. In Sanidad v. COMELEC,174 in issue was the legality of then President Marcos' act of directly submitting proposals for constitutional amendments to a referendum, bypassing the interim National Assembly which was the body vested by the 1973 Constitution with the power to propose such amendments. President Marcos, it will be recalled, never convened the interim National Assembly. The majority upheld the President's act, holding that "the urges of absolute necessity" compelled the President as the agent of the people to act as he did, there being no interim National Assembly to propose constitutional amendments. Against this ruling, Justices Teehankee and Muñoz Palma vigorously dissented. The Court's concern at present, however, is not with regard to the point on which it was then divided in that controversial case, but on that which was not disputed by either side. Justice Teehankee's dissent,175 in particular, bears noting. While he disagreed that the President may directly submit proposed constitutional amendments to a referendum, implicit in his opinion is a recognition that he would have upheld the President's action along with the majority had the President convened the interim National Assembly and coursed his proposals through it. Thus Justice Teehankee opined: "Since the Constitution provides for the organization of the essential departments of government, defines and delimits the powers of each and prescribes the manner of the exercise of such powers, and the constituent power has not been granted to but has been withheld from the President or Prime Minister, it follows that the President's questioned decrees 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."176 (Emphasis supplied) From the foregoing discussion, the principle may be inferred that the President - in the course of conducting peace negotiations - may validly consider implementing even those policies that require changes to the Constitution, but she may not unilaterally implement them without the intervention of Congress, or act in any way as if the assent of that body were assumed as a certainty. Since, under the present Constitution, the people also have the power to directly propose amendments through initiative and referendum, the President may also submit her recommendations to the people, not as a formal proposal to be voted on in a plebiscite similar to what President Marcos did in Sanidad, but for their independent consideration of whether these recommendations merit being formally proposed through initiative.

These recommendations, however, may amount to nothing more than the President's suggestions to the people, for any further involvement in the process of initiative by the Chief Executive may vitiate its character as a genuine "people's initiative." The only initiative recognized by the Constitution is that which truly proceeds from the people. As the Court stated in Lambino v. COMELEC:177 "The Lambino Group claims that their initiative is the ‘people's voice.' However, the Lambino Group unabashedly states in ULAP Resolution No. 2006-02, in the verification of their petition with the COMELEC, that ‘ULAP maintains its unqualified support to the agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms.' The Lambino Group thus admits that their ‘people's' initiative is an ‘unqualified support to the agenda' of the incumbent President to change the Constitution. This forewarns the Court to be wary of incantations of ‘people's voice' or ‘sovereign will' in the present initiative." It will be observed that the President has authority, as stated in her oath of office, 178 only to preserve and defend the Constitution. Such presidential power does not, however, extend to allowing her to change the Constitution, but simply to recommend proposed amendments or revision. As long as she limits herself to recommending these changes and submits to the proper procedure for constitutional amendments and revision, her mere recommendation need not be construed as an unconstitutional act. The foregoing discussion focused on the President's authority to propose constitutional amendments, since her authority to propose new legislation is not in controversy. It has been an accepted practice for Presidents in this jurisdiction to propose new legislation. One of the more prominent instances the practice is usually done is in the yearly State of the Nation Address of the President to Congress. Moreover, the annual general appropriations bill has always been based on the budget prepared by the President, which - for all intents and purposes - is a proposal for new legislation coming from the President.179 The "suspensive clause" in the MOA-AD viewed in light of the above-discussed standards Given the limited nature of the President's authority to propose constitutional amendments, she cannot guaranteeto any third party that the required amendments will eventually be put in place, nor even be submitted to a plebiscite. The most she could do is submit these proposals as recommendations either to Congress or the people, in whom constituent powers are vested. Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof which cannot be reconciled with the present Constitution and laws "shall come into force upon signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework." This stipulation does not bear the marks of a suspensive condition - defined in civil law as a future and uncertain event - but of a term. It is not a question of whether the necessary changes to the legal framework will be effected, but when. That there is no uncertainty being contemplated is plain from what follows, for the paragraph goes on to state that the contemplated changes shall be "with due regard to non derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact." Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect the changes to the legal framework contemplated in the MOA-AD - which changes would include constitutional amendments, as discussed earlier. It bears noting that, By the time these changes are put in place, the MOA-AD itself would be counted among the "prior agreements" from which there could be no derogation. What remains for discussion in the Comprehensive Compact would merely be the implementing details for these "consensus points" and, notably, the deadline for effecting the contemplated changes to the legal framework.

Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of the President's authority to propose constitutional amendments, it being a virtual guarantee that the Constitution and the laws of the Republic of the Philippines will certainly be adjusted to conform to all the "consensus points" found in the MOA-AD. Hence, it must be struck down as unconstitutional. A comparison between the "suspensive clause" of the MOA-AD with a similar provision appearing in the 1996 final peace agreement between the MNLF and the GRP is most instructive. As a backdrop, the parties to the 1996 Agreement stipulated that it would be implemented in two phases. Phase Icovered a three-year transitional period involving the putting up of new administrative structures through Executive Order, such as the Special Zone of Peace and Development (SZOPAD) and the Southern Philippines Council for Peace and Development (SPCPD), while Phase II covered the establishment of the new regional autonomous government through amendment or repeal of R.A. No. 6734, which was then the Organic Act of the ARMM. The stipulations on Phase II consisted of specific agreements on the structure of the expanded autonomous region envisioned by the parties. To that extent, they are similar to the provisions of the MOA-AD. There is, however, a crucial difference between the two agreements. While the MOA-AD virtually guarantees that the "necessary changes to the legal framework" will be put in place, the GRP-MNLF final peace agreement states thus: "Accordingly, these provisions [on Phase II] shall be recommended by the GRP to Congress for incorporation in the amendatory or repealing law." Concerns have been raised that the MOA-AD would have given rise to a binding international law obligation on the part of the Philippines to change its Constitution in conformity thereto, on the ground that it may be considered either as a binding agreement under international law, or a unilateral declaration of the Philippine government to the international community that it would grant to the Bangsamoro people all the concessions therein stated. Neither ground finds sufficient support in international law, however. The MOA-AD, as earlier mentioned in the overview thereof, would have included foreign dignitaries as signatories. In addition, representatives of other nations were invited to witness its signing in Kuala Lumpur. These circumstances readily lead one to surmise that the MOA-AD would have had the status of a binding international agreement had it been signed. An examination of the prevailing principles in international law, however, leads to the contrary conclusion. The Decision on Challenge to Jurisdiction: Lomé Accord Amnesty180 (the Lomé Accord case) of the Special Court of Sierra Leone is enlightening. The Lomé Accord was a peace agreement signed on July 7, 1999 between the Government of Sierra Leone and the Revolutionary United Front (RUF), a rebel group with which the Sierra Leone Government had been in armed conflict for around eight years at the time of signing. There were non-contracting signatories to the agreement, among which were the Government of the Togolese Republic, the Economic Community of West African States, and the UN. On January 16, 2002, after a successful negotiation between the UN Secretary-General and the Sierra Leone Government, another agreement was entered into by the UN and that Government whereby the Special Court of Sierra Leone was established. The sole purpose of the Special Court, an international court, was to try persons who bore the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since November 30, 1996. Among the stipulations of the Lomé Accord was a provision for the full pardon of the members of the RUF with respect to anything done by them in pursuit of their objectives as members of that organization since the conflict began. In the Lomé Accord case, the Defence argued that the Accord created an internationally binding obligation not to prosecute the beneficiaries of the amnesty provided therein, citing,

among other things, the participation of foreign dignitaries and international organizations in the finalization of that agreement. The Special Court, however, rejected this argument, ruling that the Lome Accord is not a treaty and that it can only create binding obligations and rights between the parties in municipal law, not in international law. Hence, the Special Court held, it is ineffective in depriving an international court like it of jurisdiction. "37. In regard to the nature of a negotiated settlement of an internal armed conflict it is easy to assume and to argue with some degree of plausibility, as Defence counsel for the defendants seem to have done, that the mere fact that in addition to the parties to the conflict, the document formalizing the settlement is signed by foreign heads of state or their representatives and representatives of international organizations, means the agreement of the parties is internationalized so as to create obligations in international law. xxxx 40. Almost every conflict resolution will involve the parties to the conflict and the mediator or facilitator of the settlement, or persons or bodies under whose auspices the settlement took place but who are not at all parties to the conflict, are not contracting parties and who do not claim any obligation from the contracting parties or incur any obligation from the settlement. 41. In this case, the parties to the conflict are the lawful authority of the State and the RUF which has no status of statehood and is to all intents and purposes a faction within the state. The non-contracting signatories of the Lomé Agreement were moral guarantors of the principle that, in the terms of Article XXXIV of the Agreement, "this peace agreement is implemented with integrity and in good faith by both parties". The moral guarantors assumed no legal obligation. It is recalled that the UN by its representative appended, presumably for avoidance of doubt, an understanding of the extent of the agreement to be implemented as not including certain international crimes. 42. An international agreement in the nature of a treaty must create rights and obligations regulated by international law so that a breach of its terms will be a breach determined under international law which will also provide principle means of enforcement. The Lomé Agreement created neither rights nor obligations capable of being regulated by international law. An agreement such as the Lomé Agreement which brings to an end an internal armed conflict no doubt creates a factual situation of restoration of peace that the international community acting through the Security Council may take note of. That, however, will not convert it to an international agreement which creates an obligation enforceable in international, as distinguished from municipal, law. A breach of the terms of such a peace agreement resulting in resumption of internal armed conflict or creating a threat to peace in the determination of the Security Council may indicate a reversal of the factual situation of peace to be visited with possible legal consequences arising from the new situation of conflict created. Such consequences such as action by the Security Council pursuant to Chapter VII arise from the situation and not from the agreement, nor from the obligation imposed by it. Such action cannot be regarded as a remedy for the breach. A peace agreement which settles an internal armed conflict cannot be ascribed the same status as one which settles an international armed conflict which, essentially, must be between two or more warring States. The Lomé Agreement cannot be characterised as an international instrument. x x x" (Emphasis, italics and underscoring supplied) Similarly, that the MOA-AD would have been signed by representatives of States and international organizations not parties to the Agreement would not have sufficed to vest in it a binding character under international law. In another vein, concern has been raised that the MOA-AD would amount to a unilateral declaration of the Philippine State, binding under international law, that it would comply with all the stipulations stated therein, with the result that it would have to amend its Constitution

accordingly regardless of the true will of the people. Cited as authority for this view is Australia v. France,181 also known as the Nuclear Tests Case, decided by the International Court of Justice (ICJ). In the Nuclear Tests Case, Australia challenged before the ICJ the legality of France's nuclear tests in the South Pacific. France refused to appear in the case, but public statements from its President, and similar statements from other French officials including its Minister of Defence, that its 1974 series of atmospheric tests would be its last, persuaded the ICJ to dismiss the case.182 Those statements, the ICJ held, amounted to a legal undertaking addressed to the international community, which required no acceptance from other States for it to become effective. Essential to the ICJ ruling is its finding that the French government intended to be bound to the international community in issuing its public statements, viz: 43. It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration. An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding. In these circumstances, nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, nor even any reply or reaction from other States, is required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the juridical act by which the pronouncement by the State was made. 44. Of course, not all unilateral acts imply obligation; but a State may choose to take up a certain position in relation to a particular matter with the intention of being bound-the intention is to be ascertained by interpretation of the act. When States make statements by which their freedom of action is to be limited, a restrictive interpretation is called for. xxxx 51. In announcing that the 1974 series of atmospheric tests would be the last, the French Government conveyed to the world at large, including the Applicant, its intention effectively to terminate these tests. It was bound to assume that other States might take note of these statements and rely on their being effective. The validity of these statements and their legal consequences must be considered within the general framework of the security of international intercourse, and the confidence and trust which are so essential in the relations among States. It is from the actual substance of these statements, and from the circumstances attending their making, that the legal implications of the unilateral act must be deduced. The objects of these statements are clear and they were addressed to the international community as a whole, and the Court holds that they constitute an undertaking possessing legal effect. The Court considers *270 that the President of the Republic, in deciding upon the effective cessation of atmospheric tests, gave an undertaking to the international community to which his words were addressed. x x x (Emphasis and underscoring supplied) As gathered from the above-quoted ruling of the ICJ, public statements of a state representative may be construed as a unilateral declaration only when the following conditions are present: the statements were clearly addressed to the international community, the state intended to be bound to that community by its statements, and that not to give legal effect to those statements would be detrimental to the security of international intercourse. Plainly, unilateral declarations arise only in peculiar circumstances.

The limited applicability of the Nuclear Tests Case ruling was recognized in a later case decided by the ICJ entitled Burkina Faso v. Mali,183 also known as the Case Concerning the Frontier Dispute. The public declaration subject of that case was a statement made by the President of Mali, in an interview by a foreign press agency, that Mali would abide by the decision to be issued by a commission of the Organization of African Unity on a frontier dispute then pending between Mali and Burkina Faso. Unlike in the Nuclear Tests Case, the ICJ held that the statement of Mali's President was not a unilateral act with legal implications. It clarified that its ruling in the Nuclear Tests case rested on the peculiar circumstances surrounding the French declaration subject thereof, to wit: 40. In order to assess the intentions of the author of a unilateral act, account must be taken of all the factual circumstances in which the act occurred. For example, in the Nuclear Tests cases, the Court took the view that since the applicant States were not the only ones concerned at the possible continuance of atmospheric testing by the French Government, that Government's unilateral declarations had ‘conveyed to the world at large, including the Applicant, its intention effectively to terminate these tests‘ (I.C.J. Reports 1974, p. 269, para. 51; p. 474, para. 53). In the particular circumstances of those cases, the French Government could not express an intention to be bound otherwise than by unilateral declarations. It is difficult to see how it could have accepted the terms of a negotiated solution with each of the applicants without thereby jeopardizing its contention that its conduct was lawful. The circumstances of the present case are radically different. Here, there was nothing to hinder the Parties from manifesting an intention to accept the binding character of the conclusions of the Organization of African Unity Mediation Commission by the normal method: a formal agreement on the basis of reciprocity. Since no agreement of this kind was concluded between the Parties, the Chamber finds that there are no grounds to interpret the declaration made by Mali's head of State on 11 April 1975 as a unilateral act with legal implications in regard to the present case. (Emphasis and underscoring supplied) Assessing the MOA-AD in light of the above criteria, it would not have amounted to a unilateral declaration on the part of the Philippine State to the international community. The Philippine panel did not draft the same with the clear intention of being bound thereby to the international community as a whole or to any State, but only to the MILF. While there were States and international organizations involved, one way or another, in the negotiation and projected signing of the MOA-AD, they participated merely as witnesses or, in the case of Malaysia, as facilitator. As held in the Lomé Accord case, the mere fact that in addition to the parties to the conflict, the peace settlement is signed by representatives of states and international organizations does not mean that the agreement is internationalized so as to create obligations in international law. Since the commitments in the MOA-AD were not addressed to States, not to give legal effect to such commitments would not be detrimental to the security of international intercourse - to the trust and confidence essential in the relations among States. In one important respect, the circumstances surrounding the MOA-AD are closer to that of Burkina Faso wherein, as already discussed, the Mali President's statement was not held to be a binding unilateral declaration by the ICJ. As in that case, there was also nothing to hinder the Philippine panel, had it really been its intention to be bound to other States, to manifest that intention by formal agreement. Here, that formal agreement would have come about by the inclusion in the MOA-AD of a clear commitment to be legally bound to the international community, not just the MILF, and by an equally clear indication that the signatures of the participating states-representatives would constitute an acceptance of that commitment. Entering into such a formal agreement would not have resulted in a loss of face for the Philippine government before the international community, which was one of the difficulties that prevented the French Government from entering into a formal agreement with other countries. That the Philippine panel did not enter into such a formal agreement suggests that it had no intention to be bound to the international community. On that ground, the MOA-AD may not be considered a unilateral declaration under international law.

The MOA-AD not being a document that can bind the Philippines under international law notwithstanding, respondents' almost consummated act of guaranteeing amendments to the legal framework is, by itself, sufficient to constitute grave abuse of discretion. The grave abuse lies not in the fact that they considered, as a solution to the Moro Problem, the creation of a state within a state, but in their brazen willingness to guarantee that Congress and the sovereign Filipino people would give their imprimatur to their solution. Upholding such an act would amount to authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves through the process of initiative, for the only way that the Executive can ensure the outcome of the amendment process is through an undue influence or interference with that process. The sovereign people may, if it so desired, go to the extent of giving up a portion of its own territory to the Moros for the sake of peace, for it can change the Constitution in any it wants, so long as the change is not inconsistent with what, in international law, is known as Jus Cogens.184 Respondents, however, may not preempt it in that decision. SUMMARY The petitions are ripe for adjudication. The failure of respondents to consult the local government units or communities affected constitutes a departure by respondents from their mandate under E.O. No. 3. Moreover, respondents exceeded their authority by the mere act of guaranteeing amendments to the Constitution. Any alleged violation of the Constitution by any branch of government is a proper matter for judicial review. As the petitions involve constitutional issues which are of paramount public interest or of transcendental importance, the Court grants the petitioners, petitioners-in-intervention and intervening respondents the requisite locus standi in keeping with the liberal stance adopted in David v. Macapagal-Arroyo. Contrary to the assertion of respondents that the non-signing of the MOA-AD and the eventual dissolution of the GRP Peace Panel mooted the present petitions, the Court finds that the present petitions provide an exception to the "moot and academic" principle in view of (a) the grave violation of the Constitution involved; (b) the exceptional character of the situation and paramount public interest; (c) the need to formulate controlling principles to guide the bench, the bar, and the public; and (d) the fact that the case is capable of repetition yet evading review. The MOA-AD is a significant part of a series of agreements necessary to carry out the GRPMILF Tripoli Agreement on Peace signed by the government and the MILF back in June 2001. Hence, the present MOA-AD can be renegotiated or another one drawn up that could contain similar or significantly dissimilar provisions compared to the original. The Court, however, finds that the prayers for mandamus have been rendered moot in view of the respondents' action in providing the Court and the petitioners with the official copy of the final draft of the MOA-AD and its annexes. The people's right to information on matters of public concern under Sec. 7, Article III of the Constitution is in splendid symmetry with the state policy of full public disclosure of all its transactions involving public interest under Sec. 28, Article II of the Constitution. The right to information guarantees the right of the people to demand information, while Section 28 recognizes the duty of officialdom to give information even if nobody demands. The complete and effective exercise of the right to information necessitates that its complementary provision on public disclosure derive the same self-executory nature, subject only to reasonable safeguards or limitations as may be provided by law. The contents of the MOA-AD is a matter of paramount public concern involving public interest in the highest order. In declaring that the right to information contemplates steps and negotiations leading to the consummation of the contract, jurisprudence finds no distinction as to the executory nature or commercial character of the agreement. An essential element of these twin freedoms is to keep a continuing dialogue or process of communication between the government and the people. Corollary to these twin rights is the

design for feedback mechanisms. The right to public consultation was envisioned to be a species of these public rights. At least three pertinent laws animate these constitutional imperatives and justify the exercise of the people's right to be consulted on relevant matters relating to the peace agenda. One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both national and local levels and for a principal forum for consensus-building. In fact, it is the duty of the Presidential Adviser on the Peace Process to conduct regular dialogues to seek relevant information, comments, advice, and recommendations from peace partners and concerned sectors of society. Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to conduct consultations before any project or program critical to the environment and human ecology including those that may call for the eviction of a particular group of people residing in such locality, is implemented therein. The MOA-AD is one peculiar program that unequivocally and unilaterally vests ownership of a vast territory to the Bangsamoro people, which could pervasively and drastically result to the diaspora or displacement of a great number of inhabitants from their total environment. Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clearcut procedure for the recognition and delineation of ancestral domain, which entails, among other things, the observance of the free and prior informed consent of the Indigenous Cultural Communities/Indigenous Peoples. Notably, the statute does not grant the Executive Department or any government agency the power to delineate and recognize an ancestral domain claim by mere agreement or compromise. The invocation of the doctrine of executive privilege as a defense to the general right to information or the specific right to consultation is untenable. The various explicit legal provisions fly in the face of executive secrecy. In any event, respondents effectively waived such defense after it unconditionally disclosed the official copies of the final draft of the MOA-AD, for judicial compliance and public scrutiny. In sum, the Presidential Adviser on the Peace Process committed grave abuse of discretion when he failed to carry out the pertinent consultation process, as mandated by E.O. No. 3, Republic Act No. 7160, and Republic Act No. 8371. The furtive process by which the MOA-AD was designed and crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof. It illustrates a gross evasion of positive duty and a virtual refusal to perform the duty enjoined. The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very concept underlying them, namely, the associative relationship envisioned between the GRP and the BJE, are unconstitutional, for the concept presupposes that the associated entity is a state and implies that the same is on its way to independence. While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with the present legal framework will not be effective until that framework is amended, the same does not cure its defect. The inclusion of provisions in the MOA-AD establishing an associative relationship between the BJE and the Central Government is, itself, a violation of the Memorandum of Instructions From The President dated March 1, 2001, addressed to the government peace panel. Moreover, as the clause is worded, it virtually guarantees that the necessary amendments to the Constitution and the laws will eventually be put in place. Neither the GRP Peace Panel nor the President herself is authorized to make such a guarantee. Upholding such an act would amount to authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves through the process of initiative, for the only way that the Executive can ensure the outcome of the amendment process is through an undue influence or interference with that process. While the MOA-AD would not amount to an international agreement or unilateral declaration binding on the Philippines under international law, respondents' act of guaranteeing

amendments is, by itself, already a constitutional violation that renders the MOA-AD fatally defective. WHEREFORE, respondents' motion to dismiss is DENIED. The main and intervening petitions are GIVEN DUE COURSE and hereby GRANTED. The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 is declared contrary to law and the Constitution. G.R. No. 174153

October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH 6,327,952 REGISTERED VOTERS,Petitioners, vs. THE COMMISSION ON ELECTIONS, Respondent. x--------------------------------------------------------x ALTERNATIVE LAW GROUPS, INC., Intervenor. x ------------------------------------------------------ x ONEVOICE INC., CHRISTIAN S.MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE, and CARLOS P. MEDINA, JR., Intervenors. x------------------------------------------------------ x ATTY. PETE QUIRINO QUADRA, Intervenor. x--------------------------------------------------------x BAYAN represented by its Chairperson Dr. Carolina Pagaduan-Araullo, BAYAN MUNA represented by its Chairperson Dr. Reynaldo Lesaca, KILUSANG MAYO UNO represented by its Secretary General Joel Maglunsod, HEAD represented by its Secretary General Dr. Gene Alzona Nisperos, ECUMENICAL BISHOPS FORUM represented by Fr. Dionito Cabillas, MIGRANTE represented by its Chairperson Concepcion Bragas-Regalado, GABRIELA represented by its Secretary General Emerenciana de Jesus, GABRIELA WOMEN'S PARTY represented by Sec. Gen. Cristina Palabay, ANAKBAYAN represented by Chairperson Eleanor de Guzman, LEAGUE OF FILIPINO STUDENTS represented by Chair Vencer Crisostomo Palabay, JOJO PINEDA of the League of Concerned Professionals and Businessmen, DR. DARBY SANTIAGO of the Solidarity of Health Against Charter Change, DR. REGINALD PAMUGAS of Health Action for Human Rights,Intervenors. x--------------------------------------------------------x LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, and ANA THERESA HONTIVEROSBARAQUEL,Intervenors. x--------------------------------------------------------x ARTURO M. DE CASTRO, Intervenor. x ------------------------------------------------------- x TRADE UNION CONGRESS OF THE PHILIPPINES, Intervenor. x---------------------------------------------------------x LUWALHATI RICASA ANTONINO, Intervenor.

x ------------------------------------------------------- x PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS, and AMADO GAT INCIONG, Intervenors. x ------------------------------------------------------- x RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and RUELO BAYA, Intervenors. x -------------------------------------------------------- x PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and MR. VICTORINO F. BALAIS, Intervenors. x -------------------------------------------------------- x SENATE OF THE PHILIPPINES, represented by its President, MANUEL VILLAR, JR., Intervenor. x ------------------------------------------------------- x SULONG BAYAN MOVEMENT FOUNDATION, INC., Intervenor. x ------------------------------------------------------- x JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANTONIO L. SALVADOR, and RANDALL TABAYOYONG, Intervenors. x -------------------------------------------------------- x INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND CEBU PROVINCE CHAPTERS, Intervenors. x --------------------------------------------------------x SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR. and SENATORS SERGIO R. OSMENA III, JAMBY MADRIGAL, JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO LACSON, Intervenors. x -----------------------------------------------------x JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO, Intervenors. x -----------------------------------------------------x G.R. No. 174299

October 25, 2006

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

DECISION

CARPIO, J.: The Case These are consolidated petitions on the Resolution dated 31 August 2006 of the Commission on Elections ("COMELEC") denying due course to an initiative petition to amend the 1987 Constitution. Antecedent Facts On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L. Lambino and Erico B. Aumentado ("Lambino Group"), with other groups1 and individuals, commenced gathering signatures for an initiative petition to change the 1987 Constitution. On 25 August 2006, the Lambino Group filed a petition with the COMELEC to hold a plebiscite that will ratify their initiative petition under Section 5(b) and (c)2 and Section 73 of Republic Act No. 6735 or the Initiative and Referendum Act ("RA 6735"). The Lambino Group alleged that their petition had the support of 6,327,952 individuals constituting at least twelve per centum (12%) of all registered voters, with each legislative district represented by at least three per centum (3%) of its registered voters. The Lambino Group also claimed that COMELEC election registrars had verified the signatures of the 6.3 million individuals. The Lambino Group's initiative petition changes the 1987 Constitution by modifying Sections 1-7 of Article VI (Legislative Department)4 and Sections 1-4 of Article VII (Executive Department)5 and by adding Article XVIII entitled "Transitory Provisions." 6 These proposed changes will shift the present Bicameral-Presidential system to a Unicameral-Parliamentary form of government. The Lambino Group prayed that after due publication of their petition, the COMELEC should submit the following proposition in a plebiscite for the voters' ratification: DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM, AND PROVIDING ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO THE OTHER? On 30 August 2006, the Lambino Group filed an Amended Petition with the COMELEC indicating modifications in the proposed Article XVIII (Transitory Provisions) of their initiative. 7 The Ruling of the COMELEC On 31 August 2006, the COMELEC issued its Resolution denying due course to the Lambino Group's petition for lack of an enabling law governing initiative petitions to amend the Constitution. The COMELEC invoked this Court's ruling in Santiago v. Commission on Elections8 declaring RA 6735 inadequate to implement the initiative clause on proposals to amend the Constitution.9 In G.R. No. 174153, the Lambino Group prays for the issuance of the writs of certiorari and mandamus to set aside the COMELEC Resolution of 31 August 2006 and to compel the COMELEC to give due course to their initiative petition. The Lambino Group contends that the COMELEC committed grave abuse of discretion in denying due course to their petition since Santiago is not a binding precedent. Alternatively, the Lambino Group claims that Santiago binds only the parties to that case, and their petition deserves cognizance as an expression of the "will of the sovereign people." In G.R. No. 174299, petitioners ("Binay Group") pray that the Court require respondent COMELEC Commissioners to show cause why they should not be cited in contempt for the COMELEC's verification of signatures and for "entertaining" the Lambino Group's petition

despite the permanent injunction in Santiago. The Court treated the Binay Group's petition as an opposition-in-intervention. In his Comment to the Lambino Group's petition, the Solicitor General joined causes with the petitioners, urging the Court to grant the petition despite the Santiago ruling. The Solicitor General proposed that the Court treat RA 6735 and its implementing rules "as temporary devises to implement the system of initiative." Various groups and individuals sought intervention, filing pleadings supporting or opposing the Lambino Group's petition. The supporting intervenors10 uniformly hold the view that the COMELEC committed grave abuse of discretion in relying on Santiago. On the other hand, the opposing intervenors11 hold the contrary view and maintain that Santiago is a binding precedent. The opposing intervenors also challenged (1) the Lambino Group's standing to file the petition; (2) the validity of the signature gathering and verification process; (3) the Lambino Group's compliance with the minimum requirement for the percentage of voters supporting an initiative petition under Section 2, Article XVII of the 1987 Constitution;12 (4) the nature of the proposed changes as revisions and not mere amendments as provided under Section 2, Article XVII of the 1987 Constitution; and (5) the Lambino Group's compliance with the requirement in Section 10(a) of RA 6735 limiting initiative petitions to only one subject. The Court heard the parties and intervenors in oral arguments on 26 September 2006. After receiving the parties' memoranda, the Court considered the case submitted for resolution. The Issues The petitions raise the following issues: 1. Whether the Lambino Group's initiative petition complies with Section 2, Article XVII of the Constitution on amendments to the Constitution through a people's initiative; 2. Whether this Court should revisit its ruling in Santiago declaring RA 6735 "incomplete, inadequate or wanting in essential terms and conditions" to implement the initiative clause on proposals to amend the Constitution; and 3. Whether the COMELEC committed grave abuse of discretion in denying due course to the Lambino Group's petition. The Ruling of the Court There is no merit to the petition. The Lambino Group miserably failed to comply with the basic requirements of the Constitution for conducting a people's initiative. Thus, there is even no need to revisit Santiago, as the present petition warrants dismissal based alone on the Lambino Group's glaring failure to comply with the basic requirements of the Constitution. For following the Court's ruling in Santiago, no grave abuse of discretion is attributable to the Commision on Elections. 1. The Initiative Petition Does Not Comply with Section 2, Article XVII of the Constitution on Direct Proposal by the People Section 2, Article XVII of the Constitution is the governing constitutional provision that allows a people's initiative to propose amendments to the Constitution. This section states: Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters of which every legislative district must be represented by at least three per centum of the registered voters therein. x x x x (Emphasis supplied) The deliberations of the Constitutional Commission vividly explain the meaning of an amendment "directly proposed by the people through initiative upon a petition," thus:

MR. RODRIGO: Let us look at the mechanics. Let us say some voters want to propose a constitutional amendment. Is the draft of the proposed constitutional amendment ready to be shown to the people when they are asked to sign? MR. SUAREZ: That can be reasonably assumed, Madam President. MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to them before they sign. Now, who prepares the draft? MR. SUAREZ: The people themselves, Madam President. MR. RODRIGO: No, because before they sign there is already a draft shown to them and they are asked whether or not they want to propose this constitutional amendment. MR. SUAREZ: As it is envisioned, any Filipino can prepare that proposal and pass it around for signature.13 (Emphasis supplied) Clearly, the framers of the Constitution intended that the "draft of the proposed constitutional amendment" should be "ready and shown" to the people "before" they sign such proposal. The framers plainly stated that "before they sign there is already a draft shown to them." The framers also "envisioned" that the people should sign on the proposal itself because the proponents must "prepare that proposal and pass it around for signature." The essence of amendments "directly proposed by the people through initiative upon a petition" is that the entire proposal on its face is a petition by the people. This means two essential elements must be present. First, the people must author and thus sign the entire proposal. No agent or representative can sign on their behalf. Second, as an initiative upon a petition, the proposal must be embodied in a petition. These essential elements are present only if the full text of the proposed amendments is first shown to the people who express their assent by signing such complete proposal in a petition. Thus, an amendment is "directly proposed by the people through initiative upon a petition" only if the people sign on a petition that contains the full text of the proposed amendments. The full text of the proposed amendments may be either written on the face of the petition, or attached to it. If so attached, the petition must state the fact of such attachment. This is an assurance that every one of the several millions of signatories to the petition had seen the full text of the proposed amendments before signing. Otherwise, it is physically impossible, given the time constraint, to prove that every one of the millions of signatories had seen the full text of the proposed amendments before signing. The framers of the Constitution directly borrowed14 the concept of people's initiative from the United States where various State constitutions incorporate an initiative clause. In almost all States15 which allow initiative petitions, the unbending requirement is that the people must first see the full text of the proposed amendments before they sign to signify their assent, and that the people must sign on an initiative petition that contains the full text of the proposed amendments.16 The rationale for this requirement has been repeatedly explained in several decisions of various courts. Thus, in Capezzuto v. State Ballot Commission, the Supreme Court of Massachusetts, affirmed by the First Circuit Court of Appeals, declared: [A] signature requirement would be meaningless if the person supplying the signature has not first seen what it is that he or she is signing. Further, and more importantly, loose interpretation of the subscription requirement can pose a significant potential for fraud. A person permitted to describe orally the contents of an initiative petition to a potential signer, without the signer having actually examined the petition, could easily mislead the signer by, for example, omitting, downplaying, or even flatly misrepresenting, portions of the petition that might not be to the signer's liking. This

danger seems particularly acute when, in this case, the person giving the description is the drafter of the petition, who obviously has a vested interest in seeing that it gets the requisite signatures to qualify for the ballot.17 (Boldfacing and underscoring supplied) Likewise, in Kerr v. Bradbury,18 the Court of Appeals of Oregon explained: The purposes of "full text" provisions that apply to amendments by initiative commonly are described in similar terms. x x x (The purpose of the full text requirement is to provide sufficient information so that registered voters can intelligently evaluate whether to sign the initiative petition."); x x x (publication of full text of amended constitutional provision required because it is "essential for the elector to have x x x the section which is proposed to be added to or subtracted from. If he is to vote intelligently, he must have this knowledge. Otherwise in many instances he would be required to vote in the dark.") (Emphasis supplied) Moreover, "an initiative signer must be informed at the time of signing of the nature and effect of that which is proposed" and failure to do so is "deceptive and misleading" which renders the initiative void.19 Section 2, Article XVII of the Constitution does not expressly state that the petition must set forth the full text of the proposed amendments. However, the deliberations of the framers of our Constitution clearly show that the framers intended to adopt the relevant American jurisprudence on people's initiative. In particular, the deliberations of the Constitutional Commission explicitly reveal that the framers intended that the people must first see the full text of the proposed amendments before they sign, and that the people must sign on a petition containing such full text. Indeed, Section 5(b) of Republic Act No. 6735, the Initiative and Referendum Act that the Lambino Group invokes as valid, requires that the people must sign the "petition x x x as signatories." The proponents of the initiative secure the signatures from the people. The proponents secure the signatures in their private capacity and not as public officials. The proponents are not disinterested parties who can impartially explain the advantages and disadvantages of the proposed amendments to the people. The proponents present favorably their proposal to the people and do not present the arguments against their proposal. The proponents, or their supporters, often pay those who gather the signatures. Thus, there is no presumption that the proponents observed the constitutional requirements in gathering the signatures. The proponents bear the burden of proving that they complied with the constitutional requirements in gathering the signatures - that the petition contained, or incorporated by attachment, the full text of the proposed amendments. The Lambino Group did not attach to their present petition with this Court a copy of the paper that the people signed as their initiative petition. The Lambino Group submitted to this Court a copy of a signature sheet20 after the oral arguments of 26 September 2006 when they filed their Memorandum on 11 October 2006. The signature sheet with this Court during the oral arguments was the signature sheet attached21 to the opposition in intervention filed on 7 September 2006 by intervenor Atty. Pete Quirino-Quadra. The signature sheet attached to Atty. Quadra's opposition and the signature sheet attached to the Lambino Group's Memorandum are the same. We reproduce below the signature sheet in full: Province: City/Municipality: Legislative District: Barangay:

No. of Verified Signatures:

PROPOSITION: "DO YOU APPROVE OF THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE

PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM OF GOVERNMENT, IN ORDER TO ACHIEVE GREATER EFFICIENCY, SIMPLICITY AND ECONOMY IN GOVERNMENT; AND PROVIDING AN ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO ANOTHER?" I hereby APPROVE the proposed amendment to the 1987 Constitution. My signature herein which shall form part of the petition for initiative to amend the Constitution signifies my support for the filing thereof. Precinct Name Address Number Last Name, First Name, M.I.

Birthdate

Signature

Verification

MM/DD/YY

1 2 3 4 5 6 7 8 9 10 _________________ _________________ Barangay Official Witness (Print Name and Sign) (Print Name and Sign)

__________________ Witness (Print Name and Sign)

There is not a single word, phrase, or sentence of text of the Lambino Group's proposed changes in the signature sheet. Neither does the signature sheet state that the text of the proposed changes is attached to it. Petitioner Atty. Raul Lambino admitted this during the oral arguments before this Court on 26 September 2006. The signature sheet merely asks a question whether the people approve a shift from the Bicameral-Presidential to the Unicameral-Parliamentary system of government. The signature sheet does not show to the people the draft of the proposed changes before they are asked to sign the signature sheet. Clearly, the signature sheet is not the "petition" that the framers of the Constitution envisioned when they formulated the initiative clause in Section 2, Article XVII of the Constitution. Petitioner Atty. Lambino, however, explained that during the signature-gathering from February to August 2006, the Lambino Group circulated, together with the signature sheets, printed copies of the Lambino Group's draft petition which they later filed on 25 August 2006 with the COMELEC. When asked if his group also circulated the draft of their amended petition filed on 30 August 2006 with the COMELEC, Atty. Lambino initially replied that they circulated both. However, Atty. Lambino changed his answer and stated that what his group circulated was the draft of the 30 August 2006 amended petition, not the draft of the 25 August 2006 petition. The Lambino Group would have this Court believe that they prepared the draft of the 30 August 2006 amended petition almost seven months earlier in February 2006 when they started gathering signatures. Petitioner Erico B. Aumentado's "Verification/Certification" of the 25 August 2006 petition, as well as of the 30 August 2006 amended petition, filed with the COMELEC, states as follows: I have caused the preparation of the foregoing [Amended] Petition in my personal capacity as a registered voter, for and on behalf of the Union of Local Authorities of the Philippines, as shown by ULAP Resolution No. 2006-02 hereto attached, and as representative of the mass of signatories hereto. (Emphasis supplied)

The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-02 to the present petition. However, the "Official Website of the Union of Local Authorities of the Philippines"22 has posted the full text of Resolution No. 2006-02, which provides: RESOLUTION NO. 2006-02 RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLE'S CONSULTATIVE COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION WHEREAS, there is a need for the Union of Local Authorities of the Philippines (ULAP) to adopt a common stand on the approach to support the proposals of the People's Consultative Commission on Charter Change; WHEREAS, ULAP maintains its unqualified support to the agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms as embodied in the ULAP Joint Declaration for Constitutional Reforms signed by the members of the ULAP and the majority coalition of the House of Representatives in Manila Hotel sometime in October 2005; WHEREAS, the People's Consultative Commission on Charter Change created by Her Excellency to recommend amendments to the 1987 Constitution has submitted its final report sometime in December 2005; WHEREAS, the ULAP is mindful of the current political developments in Congress which militates against the use of the expeditious form of amending the 1987 Constitution; WHEREAS, subject to the ratification of its institutional members and the failure of Congress to amend the Constitution as a constituent assembly, ULAP has unanimously agreed to pursue the constitutional reform agenda through People's Initiative and Referendum without prejudice to other pragmatic means to pursue the same; WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, THAT ALL THE MEMBER-LEAGUES OF THE UNION OF LOCAL AUTHORITIES OF THE PHILIPPINES (ULAP) SUPPORT THE PORPOSALS (SIC) OF THE PEOPLE'S CONSULATATIVE (SIC) COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION; DONE, during the ULAP National Executive Board special meeting held on 14 January 2006 at the Century Park Hotel, Manila.23 (Underscoring supplied) ULAP Resolution No. 2006-02 does not authorize petitioner Aumentado to prepare the 25 August 2006 petition, or the 30 August 2006 amended petition, filed with the COMELEC. ULAP Resolution No. 2006-02 "support(s) the porposals (sic) of the Consulatative (sic) Commission on Charter Change through people's initiative and referendum as a mode of amending the 1987 Constitution." The proposals of the Consultative Commission24 are vastly different from the proposed changes of the Lambino Group in the 25 August 2006 petition or 30 August 2006 amended petition filed with the COMELEC. For example, the proposed revisions of the Consultative Commission affect all provisions of the existing Constitution, from the Preamble to the Transitory Provisions. The proposed revisions have profound impact on the Judiciary and the National Patrimony provisions of the existing Constitution, provisions that the Lambino Group's proposed changes do not touch. The Lambino Group's proposed changes purport to affect only Articles VI and VII of the existing Constitution, including the introduction of new Transitory Provisions. The ULAP adopted Resolution No. 2006-02 on 14 January 2006 or more than six months before the filing of the 25 August 2006 petition or the 30 August 2006 amended petition with the COMELEC. However, ULAP Resolution No. 2006-02 does not establish that ULAP or the

Lambino Group caused the circulation of the draft petition, together with the signature sheets, six months before the filing with the COMELEC. On the contrary, ULAP Resolution No. 200602 casts grave doubt on the Lambino Group's claim that they circulated the draft petition together with the signature sheets. ULAP Resolution No. 2006-02 does not refer at all to the draft petition or to the Lambino Group's proposed changes. In their Manifestation explaining their amended petition before the COMELEC, the Lambino Group declared: After the Petition was filed, Petitioners belatedly realized that the proposed amendments alleged in the Petition, more specifically, paragraph 3 of Section 4 and paragraph 2 of Section 5 of the Transitory Provisions were inaccurately stated and failed to correctly reflect their proposed amendments. The Lambino Group did not allege that they were amending the petition because the amended petition was what they had shown to the people during the February to August 2006 signaturegathering. Instead, the Lambino Group alleged that the petition of 25 August 2006 "inaccurately stated and failed to correctly reflect their proposed amendments." The Lambino Group never alleged in the 25 August 2006 petition or the 30 August 2006 amended petition with the COMELEC that they circulated printed copies of the draft petition together with the signature sheets. Likewise, the Lambino Group did not allege in their present petition before this Court that they circulated printed copies of the draft petition together with the signature sheets. The signature sheets do not also contain any indication that the draft petition is attached to, or circulated with, the signature sheets. It is only in their Consolidated Reply to the Opposition-in-Interventions that the Lambino Group first claimed that they circulated the "petition for initiative filed with the COMELEC," thus: [T]here is persuasive authority to the effect that "(w)here there is not (sic) fraud, a signer who did not read the measure attached to a referendum petition cannot question his signature on the ground that he did not understand the nature of the act." [82 C.J.S. S128h. Mo. State v. Sullivan, 224, S.W. 327, 283 Mo. 546.] Thus, the registered voters who signed the signature sheets circulated together with the petition for initiative filed with the COMELEC below, are presumed to have understood the proposition contained in the petition. (Emphasis supplied) The Lambino Group's statement that they circulated to the people "the petition for initiative filed with the COMELEC" appears an afterthought, made after the intervenors Integrated Bar of the Philippines (Cebu City Chapter and Cebu Province Chapters) and Atty. Quadra had pointed out that the signature sheets did not contain the text of the proposed changes. In their Consolidated Reply, the Lambino Group alleged that they circulated "the petition for initiative" but failed to mention the amended petition. This contradicts what Atty. Lambino finally stated during the oral arguments that what they circulated was the draft of the amended petition of 30 August 2006. The Lambino Group cites as authority Corpus Juris Secundum, stating that "a signer who did not read the measure attached to a referendum petition cannot question his signature on the ground that he did not understand the nature of the act." The Lambino Group quotes an authority that cites a proposed change attached to the petition signed by the people. Even the authority the Lambino Group quotes requires that the proposed change must be attached to the petition. The same authority the Lambino Group quotes requires the people to sign on the petition itself. Indeed, it is basic in American jurisprudence that the proposed amendment must be incorporated with, or attached to, the initiative petition signed by the people. In the present initiative, the Lambino Group's proposed changes were not incorporated with, or attached to, the signature sheets. The Lambino Group's citation of Corpus Juris Secundumpulls the rug from under their feet.

It is extremely doubtful that the Lambino Group prepared, printed, circulated, from February to August 2006 during the signature-gathering period, the draft of the petition or amended petition they filed later with the COMELEC. The Lambino Group are less than candid with this Court in their belated claim that they printed and circulated, together with the signature sheets, the petition or amended petition. Nevertheless, even assuming the Lambino Group circulated the amended petition during the signature-gathering period, the Lambino Group admitted circulating only very limited copies of the petition. During the oral arguments, Atty. Lambino expressly admitted that they printed only 100,000 copies of the draft petition they filed more than six months later with the COMELEC. Atty. Lambino added that he also asked other supporters to print additional copies of the draft petition but he could not state with certainty how many additional copies the other supporters printed. Atty. Lambino could only assure this Court of the printing of 100,000 copies because he himself caused the printing of these 100,000 copies. Likewise, in the Lambino Group's Memorandum filed on 11 October 2006, the Lambino Group expressly admits that "petitioner Lambino initiated the printing and reproduction of 100,000 copies of the petition for initiative x x x." 25 This admission binds the Lambino Group and establishes beyond any doubt that the Lambino Group failed to show the full text of the proposed changes to the great majority of the people who signed the signature sheets. Thus, of the 6.3 million signatories, only 100,000 signatories could have received with certainty one copy each of the petition, assuming a 100 percent distribution with no wastage. If Atty. Lambino and company attached one copy of the petition to each signature sheet, only 100,000 signature sheets could have circulated with the petition. Each signature sheet contains space for ten signatures. Assuming ten people signed each of these 100,000 signature sheets with the attached petition, the maximum number of people who saw the petition before they signed the signature sheets would not exceed 1,000,000. With only 100,000 printed copies of the petition, it would be physically impossible for all or a great majority of the 6.3 million signatories to have seen the petition before they signed the signature sheets. The inescapable conclusion is that the Lambino Group failed to show to the 6.3 million signatories the full text of the proposed changes. If ever, not more than one million signatories saw the petition before they signed the signature sheets. In any event, the Lambino Group's signature sheets do not contain the full text of the proposed changes, either on the face of the signature sheets, or as attachment with an indication in the signature sheet of such attachment. Petitioner Atty. Lambino admitted this during the oral arguments, and this admission binds the Lambino Group. This fact is also obvious from a mere reading of the signature sheet. This omission is fatal. The failure to so include the text of the proposed changes in the signature sheets renders the initiative void for noncompliance with the constitutional requirement that the amendment must be "directly proposed by the people through initiative upon a petition." The signature sheet is not the "petition" envisioned in the initiative clause of the Constitution. For sure, the great majority of the 6.3 million people who signed the signature sheets did not see the full text of the proposed changes before signing. They could not have known the nature and effect of the proposed changes, among which are: 1. The term limits on members of the legislature will be lifted and thus members of Parliament can be re-elected indefinitely;26 2. The interim Parliament can continue to function indefinitely until its members, who are almost all the present members of Congress, decide to call for new parliamentary elections. Thus, the members of the interim Parliament will determine the expiration of their own term of office; 27 3. Within 45 days from the ratification of the proposed changes, the interim Parliament shall convene to propose further amendments or revisions to the Constitution.28

These three specific amendments are not stated or even indicated in the Lambino Group's signature sheets. The people who signed the signature sheets had no idea that they were proposing these amendments. These three proposed changes are highly controversial. The people could not have inferred or divined these proposed changes merely from a reading or rereading of the contents of the signature sheets. During the oral arguments, petitioner Atty. Lambino stated that he and his group assured the people during the signature-gathering that the elections for the regular Parliament would be held during the 2007 local elections if the proposed changes were ratified before the 2007 local elections. However, the text of the proposed changes belies this. The proposed Section 5(2), Article XVIII on Transitory Provisions, as found in the amended petition, states: Section 5(2). The interim Parliament shall provide for the election of the members of Parliament, which shall be synchronized and held simultaneously with the election of all local government officials. x x x x (Emphasis supplied) Section 5(2) does not state that the elections for the regular Parliament will be held simultaneously with the 2007 local elections. This section merely requires that the elections for the regular Parliament shall be held simultaneously with the local elections without specifying the year. Petitioner Atty. Lambino, who claims to be the principal drafter of the proposed changes, could have easily written the word "next" before the phrase "election of all local government officials." This would have insured that the elections for the regular Parliament would be held in the next local elections following the ratification of the proposed changes. However, the absence of the word "next" allows the interim Parliament to schedule the elections for the regular Parliament simultaneously with any future local elections. Thus, the members of the interim Parliament will decide the expiration of their own term of office. This allows incumbent members of the House of Representatives to hold office beyond their current three-year term of office, and possibly even beyond the five-year term of office of regular members of the Parliament. Certainly, this is contrary to the representations of Atty. Lambino and his group to the 6.3 million people who signed the signature sheets. Atty. Lambino and his group deceived the 6.3 million signatories, and even the entire nation. This lucidly shows the absolute need for the people to sign an initiative petition that contains the full text of the proposed amendments to avoid fraud or misrepresentation. In the present initiative, the 6.3 million signatories had to rely on the verbal representations of Atty. Lambino and his group because the signature sheets did not contain the full text of the proposed changes. The result is a grand deception on the 6.3 million signatories who were led to believe that the proposed changes would require the holding in 2007 of elections for the regular Parliament simultaneously with the local elections. The Lambino Group's initiative springs another surprise on the people who signed the signature sheets. The proposed changes mandate the interim Parliament to make further amendments or revisions to the Constitution. The proposed Section 4(4), Article XVIII on Transitory Provisions, provides: Section 4(4). Within forty-five days from ratification of these amendments, the interim Parliament shall convene to propose amendments to, or revisions of, this Constitution consistent with the principles of local autonomy, decentralization and a strong bureaucracy. (Emphasis supplied) During the oral arguments, Atty. Lambino stated that this provision is a "surplusage" and the Court and the people should simply ignore it. Far from being a surplusage, this provision invalidates the Lambino Group's initiative. Section 4(4) is a subject matter totally unrelated to the shift from the Bicameral-Presidential to the Unicameral-Parliamentary system. American jurisprudence on initiatives outlaws this

as logrolling - when the initiative petition incorporates an unrelated subject matter in the same petition. This puts the people in a dilemma since they can answer only either yes or no to the entire proposition, forcing them to sign a petition that effectively contains two propositions, one of which they may find unacceptable. Under American jurisprudence, the effect of logrolling is to nullify the entire proposition and not only the unrelated subject matter. Thus, in Fine v. Firestone,29 the Supreme Court of Florida declared: Combining multiple propositions into one proposal constitutes "logrolling," which, if our judicial responsibility is to mean anything, we cannot permit. The very broadness of the proposed amendment amounts to logrolling because the electorate cannot know what it is voting on - the amendment's proponents' simplistic explanation reveals only the tip of the iceberg. x x x x The ballot must give the electorate fair notice of the proposed amendment being voted on. x x x x The ballot language in the instant case fails to do that. The very broadness of the proposal makes it impossible to state what it will affect and effect and violates the requirement that proposed amendments embrace only one subject. (Emphasis supplied) Logrolling confuses and even deceives the people. In Yute Air Alaska v. McAlpine,30 the Supreme Court of Alaska warned against "inadvertence, stealth and fraud" in logrolling: Whenever a bill becomes law through the initiative process, all of the problems that the singlesubject rule was enacted to prevent are exacerbated. There is a greater danger of logrolling, or the deliberate intermingling of issues to increase the likelihood of an initiative's passage, and there is a greater opportunity for "inadvertence, stealth and fraud" in the enactmentby-initiative process. The drafters of an initiative operate independently of any structured or supervised process. They often emphasize particular provisions of their proposition, while remaining silent on other (more complex or less appealing) provisions, when communicating to the public. x x x Indeed, initiative promoters typically use simplistic advertising to present their initiative to potential petition-signers and eventual voters. Many voters will never read the full text of the initiative before the election. More importantly, there is no process for amending or splitting the several provisions in an initiative proposal. These difficulties clearly distinguish the initiative from the legislative process. (Emphasis supplied) Thus, the present initiative appears merely a preliminary step for further amendments or revisions to be undertaken by the interim Parliament as a constituent assembly. The people who signed the signature sheets could not have known that their signatures would be used to propose an amendment mandating the interim Parliament to propose further amendments or revisions to the Constitution. Apparently, the Lambino Group inserted the proposed Section 4(4) to compel the interim Parliament to amend or revise again the Constitution within 45 days from ratification of the proposed changes, or before the May 2007 elections. In the absence of the proposed Section 4(4), the interim Parliament has the discretion whether to amend or revise again the Constitution. With the proposed Section 4(4), the initiative proponents want the interim Parliament mandated to immediately amend or revise again the Constitution. However, the signature sheets do not explain the reason for this rush in amending or revising again so soon the Constitution. The signature sheets do not also explain what specific amendments or revisions the initiative proponents want the interim Parliament to make, and why there is a need for such further amendments or revisions. The people are again left in the dark to fathom the nature and effect of the proposed changes. Certainly, such an initiative is not "directly proposed by the people" because the people do not even know the nature and effect of the proposed changes. There is another intriguing provision inserted in the Lambino Group's amended petition of 30 August 2006. The proposed Section 4(3) of the Transitory Provisions states: Section 4(3). Senators whose term of office ends in 2010 shall be members of Parliament until noon of the thirtieth day of June 2010.

After 30 June 2010, not one of the present Senators will remain as member of Parliament if the interim Parliament does not schedule elections for the regular Parliament by 30 June 2010. However, there is no counterpart provision for the present members of the House of Representatives even if their term of office will all end on 30 June 2007, three years earlier than that of half of the present Senators. Thus, all the present members of the House will remain members of the interim Parliament after 30 June 2010. The term of the incumbent President ends on 30 June 2010. Thereafter, the Prime Minister exercises all the powers of the President. If the interim Parliament does not schedule elections for the regular Parliament by 30 June 2010, the Prime Minister will come only from the present members of the House of Representatives to the exclusion of the present Senators. The signature sheets do not explain this discrimination against the Senators. The 6.3 million people who signed the signature sheets could not have known that their signatures would be used to discriminate against the Senators. They could not have known that their signatures would be used to limit, after 30 June 2010, the interim Parliament's choice of Prime Minister only to members of the existing House of Representatives. An initiative that gathers signatures from the people without first showing to the people the full text of the proposed amendments is most likely a deception, and can operate as a gigantic fraud on the people. That is why the Constitution requires that an initiative must be "directly proposed by the people x x x in a petition" - meaning that the people must sign on a petition that contains the full text of the proposed amendments. On so vital an issue as amending the nation's fundamental law, the writing of the text of the proposed amendments cannot be hidden from the people under a general or special power of attorney to unnamed, faceless, and unelected individuals. The Constitution entrusts to the people the power to directly propose amendments to the Constitution. This Court trusts the wisdom of the people even if the members of this Court do not personally know the people who sign the petition. However, this trust emanates from a fundamental assumption: the full text of the proposed amendment is first shown to the people before they sign the petition, not after they have signed the petition. In short, the Lambino Group's initiative is void and unconstitutional because it dismally fails to comply with the requirement of Section 2, Article XVII of the Constitution that the initiative must be "directly proposed by the people through initiative upon a petition." 2. The Initiative Violates Section 2, Article XVII of the Constitution Disallowing Revision through Initiatives A people's initiative to change the Constitution applies only to an amendment of the Constitution and not to its revision. In contrast, Congress or a constitutional convention can propose both amendments and revisions to the Constitution. Article XVII of the Constitution provides: ARTICLE AMENDMENTS OR REVISIONS

XVII

Sec. 1. Any amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its Members, or (2) A constitutional convention. Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative x x x. (Emphasis supplied) Article XVII of the Constitution speaks of three modes of amending the Constitution. The first mode is through Congress upon three-fourths vote of all its Members. The second mode is through a constitutional convention. The third mode is through a people's initiative.

Section 1 of Article XVII, referring to the first and second modes, applies to "[A]ny amendment to, or revision of, this Constitution." In contrast, Section 2 of Article XVII, referring to the third mode, applies only to "[A]mendments to this Constitution." This distinction was intentional as shown by the following deliberations of the Constitutional Commission: MR. SUAREZ: Thank you, Madam President. May we respectfully call the attention of the Members of the Commission that pursuant to the mandate given to us last night, we submitted this afternoon a complete Committee Report No. 7 which embodies the proposed provision governing the matter of initiative. This is now covered by Section 2 of the complete committee report. With the permission of the Members, may I quote Section 2: The people may, after five years from the date of the last plebiscite held, directly propose amendments to this Constitution thru initiative upon petition of at least ten percent of the registered voters. This completes the blanks appearing in the original Committee Report No. 7. This proposal was suggested on the theory that this matter of initiative, which came about because of the extraordinary developments this year, has to be separated from the traditional modes of amending the Constitution as embodied in Section 1. The committee members felt that this system of initiative should be limited to amendments to the Constitution and should not extend to the revision of the entire Constitution, so we removed it from the operation of Section 1 of the proposed Article on Amendment or Revision. x x x x xxxx MS. AQUINO: [I] am seriously bothered by providing this process of initiative as a separate section in the Article on Amendment. Would the sponsor be amenable to accepting an amendment in terms of realigning Section 2 as another subparagraph (c) of Section 1, instead of setting it up as another separate section as if it were a selfexecuting provision? MR. SUAREZ: We would be amenable except that, as we clarified a while ago, this process of initiative is limited to the matter of amendment and should not expand into a revision which contemplates a total overhaul of the Constitution. That was the sense that was conveyed by the Committee. MS. AQUINO: In other words, the Committee was attempting to distinguish the coverage of modes (a) and (b) in Section 1 to include the process of revision; whereas, the process of initiation to amend, which is given to the public, would only apply to amendments? MR. SUAREZ: That is right. Those were the terms envisioned in the Committee. MS. AQUINO: I thank the sponsor; and thank you, Madam President. xxxx MR. MAAMBONG: My first question: Commissioner Davide's proposed amendment on line 1 refers to "amendments." Does it not cover the word "revision" as defined by Commissioner Padilla when he made the distinction between the words "amendments" and "revision"? MR. DAVIDE: No, it does not, because "amendments" and "revision" should be covered by Section 1. So insofar as initiative is concerned, it can only relate to "amendments" not "revision." MR. MAAMBONG: Thank you.31 (Emphasis supplied)

There can be no mistake about it. The framers of the Constitution intended, and wrote, a clear distinction between "amendment" and "revision" of the Constitution. The framers intended, and wrote, that only Congress or a constitutional convention may propose revisions to the Constitution. The framers intended, and wrote, that a people's initiative may propose only amendments to the Constitution. Where the intent and language of the Constitution clearly withhold from the people the power to propose revisions to the Constitution, the people cannot propose revisions even as they are empowered to propose amendments. This has been the consistent ruling of state supreme courts in the United States. Thus, in McFadden v. Jordan,32the Supreme Court of California ruled: The initiative power reserved by the people by amendment to the Constitution x x x applies only to the proposing and the adopting or rejecting of 'laws and amendments to the Constitution' and does not purport to extend to a constitutional revision. x x x x It is thus clear that a revision of the Constitution may be accomplished only through ratification by the people of a revised constitution proposed by a convention called for that purpose as outlined hereinabove. Consequently if the scope of the proposed initiative measure (hereinafter termed 'the measure') now before us is so broad that if such measure became law a substantial revision of our present state Constitution would be effected, then the measure may not properly be submitted to the electorate until and unless it is first agreed upon by a constitutional convention, and the writ sought by petitioner should issue. x x x x (Emphasis supplied) Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling:33 It is well established that when a constitution specifies the manner in which it may be amended or revised, it can be altered by those who favor amendments, revision, or other change only through the use of one of the specified means. The constitution itself recognizes that there is a difference between an amendment and a revision; and it is obvious from an examination of the measure here in question that it is not an amendment as that term is generally understood and as it is used in Article IV, Section 1. The document appears to be based in large part on the revision of the constitution drafted by the 'Commission for Constitutional Revision' authorized by the 1961 Legislative Assembly, x x x and submitted to the 1963 Legislative Assembly. It failed to receive in the Assembly the two-third's majority vote of both houses required by Article XVII, Section 2, and hence failed of adoption, x x x. While differing from that document in material respects, the measure sponsored by the plaintiffs is, nevertheless, a thorough overhauling of the present constitution x x x. To call it an amendment is a misnomer. Whether it be a revision or a new constitution, it is not such a measure as can be submitted to the people through the initiative. If a revision, it is subject to the requirements of Article XVII, Section 2(1); if a new constitution, it can only be proposed at a convention called in the manner provided in Article XVII, Section 1. x x x x Similarly, in this jurisdiction there can be no dispute that a people's initiative can only propose amendments to the Constitution since the Constitution itself limits initiatives to amendments. There can be no deviation from the constitutionally prescribed modes of revising the Constitution. A popular clamor, even one backed by 6.3 million signatures, cannot justify a deviation from the specific modes prescribed in the Constitution itself. As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364:34 It is a fundamental principle that a constitution can only be revised or amended in the manner prescribed by the instrument itself, and that any attempt to revise a constitution in a manner other than the one provided in the instrument is almost invariably treated as extra-constitutional and revolutionary. x x x x "While it is universally conceded that the people are sovereign and that they have power to adopt a constitution and to change their own work at will, they must, in doing so, act in an orderly

manner and according to the settled principles of constitutional law. And where the people, in adopting a constitution, have prescribed the method by which the people may alter or amend it, an attempt to change the fundamental law in violation of the selfimposed restrictions, is unconstitutional." x x x x (Emphasis supplied) This Court, whose members are sworn to defend and protect the Constitution, cannot shirk from its solemn oath and duty to insure compliance with the clear command of the Constitution ― that a people's initiative may only amend, never revise, the Constitution. The question is, does the Lambino Group's initiative constitute an amendment or revision of the Constitution? If the Lambino Group's initiative constitutes a revision, then the present petition should be dismissed for being outside the scope of Section 2, Article XVII of the Constitution. Courts have long recognized the distinction between an amendment and a revision of a constitution. One of the earliest cases that recognized the distinction described the fundamental difference in this manner: [T]he very term "constitution" implies an instrument of a permanent and abiding nature, and the provisions contained therein for its revision indicate the will of the people that the underlying principles upon which it rests, as well as the substantial entirety of the instrument, shall be of a like permanent and abiding nature. On the other hand, the significance of the term "amendment" implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.35 (Emphasis supplied) Revision broadly implies a change that alters a basic principle in the constitution, like altering the principle of separation of powers or the system of checks-and-balances. There is also revision if the change alters the substantial entirety of the constitution, as when the change affects substantial provisions of the constitution. On the other hand, amendment broadly refers to a change that adds, reduces, or deletes without altering the basic principle involved. Revision generally affects several provisions of the constitution, while amendment generally affects only the specific provision being amended. In California where the initiative clause allows amendments but not revisions to the constitution just like in our Constitution, courts have developed a two-part test: the quantitative test and the qualitative test. The quantitative test asks whether the proposed change is "so extensive in its provisions as to change directly the 'substantial entirety' of the constitution by the deletion or alteration of numerous existing provisions."36 The court examines only the number of provisions affected and does not consider the degree of the change. The qualitative test inquires into the qualitative effects of the proposed change in the constitution. The main inquiry is whether the change will "accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision." 37 Whether there is an alteration in the structure of government is a proper subject of inquiry. Thus, "a change in the nature of [the] basic governmental plan" includes "change in its fundamental framework or the fundamental powers of its Branches."38 A change in the nature of the basic governmental plan also includes changes that "jeopardize the traditional form of government and the system of check and balances."39 Under both the quantitative and qualitative tests, the Lambino Group's initiative is a revision and not merely an amendment. Quantitatively, the Lambino Group's proposed changes overhaul two articles - Article VI on the Legislature and Article VII on the Executive - affecting a total of 105 provisions in the entire Constitution.40Qualitatively, the proposed changes alter substantially the basic plan of government, from presidential to parliamentary, and from a bicameral to a unicameral legislature. A change in the structure of government is a revision of the Constitution, as when the three great co-equal branches of government in the present Constitution are reduced into two. This alters the separation of powers in the Constitution. A shift from the present BicameralPresidential system to a Unicameral-Parliamentary system is a revision of the Constitution.

Merging the legislative and executive branches is a radical change in the structure of government. The abolition alone of the Office of the President as the locus of Executive Power alters the separation of powers and thus constitutes a revision of the Constitution. Likewise, the abolition alone of one chamber of Congress alters the system of checks-and-balances within the legislature and constitutes a revision of the Constitution. By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a Unicameral-Parliamentary system, involving the abolition of the Office of the President and the abolition of one chamber of Congress, is beyond doubt a revision, not a mere amendment. On the face alone of the Lambino Group's proposed changes, it is readily apparent that the changes will radically alter the framework of government as set forth in the Constitution. Father Joaquin Bernas, S.J., a leading member of the Constitutional Commission, writes: An amendment envisages an alteration of one or a few specific and separable provisions. The guiding original intention of an amendment is to improve specific parts or to add new provisions deemed necessary to meet new conditions or to suppress specific portions that may have become obsolete or that are judged to be dangerous. In revision, however, the guiding original intention and plan contemplates a re-examination of the entire document, or of provisions of the document which have over-all implications for the entire document, to determine how and to what extent they should be altered. Thus, for instance a switch from the presidential system to a parliamentary system would be a revision because of its over-all impact on the entire constitutional structure. So would a switch from a bicameral system to a unicameral system be because of its effect on other important provisions of the Constitution.41 (Emphasis supplied) In Adams v. Gunter,42 an initiative petition proposed the amendment of the Florida State constitution to shift from a bicameral to a unicameral legislature. The issue turned on whether the initiative "was defective and unauthorized where [the] proposed amendment would x x x affect several other provisions of [the] Constitution." The Supreme Court of Florida, striking down the initiative as outside the scope of the initiative clause, ruled as follows: The proposal here to amend Section 1 of Article III of the 1968 Constitution to provide for a Unicameral Legislature affects not only many other provisions of the Constitution but provides for a change in the form of the legislative branch of government, which has been in existence in the United States Congress and in all of the states of the nation, except one, since the earliest days. It would be difficult to visualize a more revolutionary change. The concept of a House and a Senate is basic in the American form of government. It would not only radically change the whole pattern of government in this state and tear apart the whole fabric of the Constitution, but would even affect the physical facilities necessary to carry on government. xxxx We conclude with the observation that if such proposed amendment were adopted by the people at the General Election and if the Legislature at its next session should fail to submit further amendments to revise and clarify the numerous inconsistencies and conflicts which would result, or if after submission of appropriate amendments the people should refuse to adopt them, simple chaos would prevail in the government of this State. The same result would obtain from an amendment, for instance, of Section 1 of Article V, to provide for only a Supreme Court and Circuit Courts-and there could be other examples too numerous to detail. These examples point unerringly to the answer. The purpose of the long and arduous work of the hundreds of men and women and many sessions of the Legislature in bringing about the Constitution of 1968 was to eliminate inconsistencies and conflicts and to give the State a workable, accordant, homogenous and up-to-date document. All of this could disappear very quickly if we were to hold that it could be amended in the manner proposed in the initiative petition here.43(Emphasis supplied)

The rationale of the Adams decision applies with greater force to the present petition. The Lambino Group's initiative not only seeks a shift from a bicameral to a unicameral legislature, it also seeks to merge the executive and legislative departments. The initiative in Adams did not even touch the executive department. In Adams, the Supreme Court of Florida enumerated 18 sections of the Florida Constitution that would be affected by the shift from a bicameral to a unicameral legislature. In the Lambino Group's present initiative, no less than 105 provisions of the Constitution would be affected based on the count of Associate Justice Romeo J. Callejo, Sr. 44 There is no doubt that the Lambino Group's present initiative seeks far more radical changes in the structure of government than the initiative in Adams. The Lambino Group theorizes that the difference between "amendment" and "revision" is only one of procedure, not of substance. The Lambino Group posits that when a deliberative body drafts and proposes changes to the Constitution, substantive changes are called "revisions" because members of the deliberative body work full-time on the changes. However, the same substantive changes, when proposed through an initiative, are called "amendments" because the changes are made by ordinary people who do not make an "occupation, profession, or vocation" out of such endeavor. Thus, the Lambino Group makes the following exposition of their theory in their Memorandum: 99. With this distinction in mind, we note that the constitutional provisions expressly provide for both "amendment" and "revision" when it speaks of legislators and constitutional delegates, while the same provisions expressly provide only for "amendment" when it speaks of the people. It would seem that the apparent distinction is based on the actual experience of the people, that on one hand the common people in general are not expected to work full-time on the matter of correcting the constitution because that is not their occupation, profession or vocation; while on the other hand, the legislators and constitutional convention delegates are expected to work full-time on the same matter because that is their occupation, profession or vocation. Thus, the difference between the words "revision" and "amendment" pertain only to the process or procedure of coming up with the corrections, for purposes of interpreting the constitutional provisions. 100. Stated otherwise, the difference between "amendment" and "revision" cannot reasonably be in the substance or extent of the correction. x x x x (Underlining in the original; boldfacing supplied) The Lambino Group in effect argues that if Congress or a constitutional convention had drafted the same proposed changes that the Lambino Group wrote in the present initiative, the changes would constitute a revision of the Constitution. Thus, the Lambino Group concedes that the proposed changes in the present initiative constitute a revision if Congress or a constitutional convention had drafted the changes. However, since the Lambino Group as private individuals drafted the proposed changes, the changes are merely amendments to the Constitution. The Lambino Group trivializes the serious matter of changing the fundamental law of the land. The express intent of the framers and the plain language of the Constitution contradict the Lambino Group's theory. Where the intent of the framers and the language of the Constitution are clear and plainly stated, courts do not deviate from such categorical intent and language.45 Any theory espousing a construction contrary to such intent and language deserves scant consideration. More so, if such theory wreaks havoc by creating inconsistencies in the form of government established in the Constitution. Such a theory, devoid of any jurisprudential mooring and inviting inconsistencies in the Constitution, only exposes the flimsiness of the Lambino Group's position. Any theory advocating that a proposed change involving a radical structural change in government does not constitute a revision justly deserves rejection. The Lambino Group simply recycles a theory that initiative proponents in American jurisdictions have attempted to advance without any success. In Lowe v. Keisling,46 the Supreme Court of Oregon rejected this theory, thus:

Mabon argues that Article XVII, section 2, does not apply to changes to the constitution proposed by initiative. His theory is that Article XVII, section 2 merely provides a procedure by which the legislature can propose a revision of the constitution, but it does not affect proposed revisions initiated by the people. Plaintiffs argue that the proposed ballot measure constitutes a wholesale change to the constitution that cannot be enacted through the initiative process. They assert that the distinction between amendment and revision is determined by reviewing the scope and subject matter of the proposed enactment, and that revisions are not limited to "a formal overhauling of the constitution." They argue that this ballot measure proposes far reaching changes outside the lines of the original instrument, including profound impacts on existing fundamental rights and radical restructuring of the government's relationship with a defined group of citizens. Plaintiffs assert that, because the proposed ballot measure "will refashion the most basic principles of Oregon constitutional law," the trial court correctly held that it violated Article XVII, section 2, and cannot appear on the ballot without the prior approval of the legislature. We first address Mabon's argument that Article XVII, section 2(1), does not prohibit revisions instituted by initiative. In Holmes v. Appling, x x x, the Supreme Court concluded that a revision of the constitution may not be accomplished by initiative, because of the provisions of Article XVII, section 2. After reviewing Article XVII, section1, relating to proposed amendments, the court said: "From the foregoing it appears that Article IV, Section 1, authorizes the use of the initiative as a means of amending the Oregon Constitution, but it contains no similar sanction for its use as a means of revising the constitution." x x x x It then reviewed Article XVII, section 2, relating to revisions, and said: "It is the only section of the constitution which provides the means for constitutional revision and it excludes the idea that an individual, through the initiative, may place such a measure before the electorate." x x x x Accordingly, we reject Mabon's argument that Article XVII, section 2, does not apply to constitutional revisions proposed by initiative. (Emphasis supplied) Similarly, this Court must reject the Lambino Group's theory which negates the express intent of the framers and the plain language of the Constitution. We can visualize amendments and revisions as a spectrum, at one end green for amendments and at the other end red for revisions. Towards the middle of the spectrum, colors fuse and difficulties arise in determining whether there is an amendment or revision. The present initiative is indisputably located at the far end of the red spectrum where revision begins. The present initiative seeks a radical overhaul of the existing separation of powers among the three co-equal departments of government, requiring far-reaching amendments in several sections and articles of the Constitution. Where the proposed change applies only to a specific provision of the Constitution without affecting any other section or article, the change may generally be considered an amendment and not a revision. For example, a change reducing the voting age from 18 years to 15 years47 is an amendment and not a revision. Similarly, a change reducing Filipino ownership of mass media companies from 100 percent to 60 percent is an amendment and not a revision.48 Also, a change requiring a college degree as an additional qualification for election to the Presidency is an amendment and not a revision.49 The changes in these examples do not entail any modification of sections or articles of the Constitution other than the specific provision being amended. These changes do not also affect the structure of government or the system of checks-and-balances among or within the three branches. These three examples are located at the far green end of the spectrum, opposite the far red end where the revision sought by the present petition is located.

However, there can be no fixed rule on whether a change is an amendment or a revision. A change in a single word of one sentence of the Constitution may be a revision and not an amendment. For example, the substitution of the word "republican" with "monarchic" or "theocratic" in Section 1, Article II50 of the Constitution radically overhauls the entire structure of government and the fundamental ideological basis of the Constitution. Thus, each specific change will have to be examined case-by-case, depending on how it affects other provisions, as well as how it affects the structure of government, the carefully crafted system of checks-andbalances, and the underlying ideological basis of the existing Constitution. Since a revision of a constitution affects basic principles, or several provisions of a constitution, a deliberative body with recorded proceedings is best suited to undertake a revision. A revision requires harmonizing not only several provisions, but also the altered principles with those that remain unaltered. Thus, constitutions normally authorize deliberative bodies like constituent assemblies or constitutional conventions to undertake revisions. On the other hand, constitutions allow people's initiatives, which do not have fixed and identifiable deliberative bodies or recorded proceedings, to undertake only amendments and not revisions. In the present initiative, the Lambino Group's proposed Section 2 of the Transitory Provisions states: Section 2. Upon the expiration of the term of the incumbent President and Vice President, with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall hereby be amended and Sections 18 and 24 which shall be deleted, all other Sections of Article VI are hereby retained and renumbered sequentially as Section 2, ad seriatim up to 26, unless they are inconsistent with the Parliamentary system of government, in which case, they shall be amended to conform with a unicameral parliamentary form of government; x x x x (Emphasis supplied) The basic rule in statutory construction is that if a later law is irreconcilably inconsistent with a prior law, the later law prevails. This rule also applies to construction of constitutions. However, the Lambino Group's draft of Section 2 of the Transitory Provisions turns on its head this rule of construction by stating that in case of such irreconcilable inconsistency, the earlier provision "shall be amended to conform with a unicameral parliamentary form of government." The effect is to freeze the two irreconcilable provisions until the earlier one "shall be amended," which requires a future separate constitutional amendment. Realizing the absurdity of the need for such an amendment, petitioner Atty. Lambino readily conceded during the oral arguments that the requirement of a future amendment is a "surplusage." In short, Atty. Lambino wants to reinstate the rule of statutory construction so that the later provision automatically prevails in case of irreconcilable inconsistency. However, it is not as simple as that. The irreconcilable inconsistency envisioned in the proposed Section 2 of the Transitory Provisions is not between a provision in Article VI of the 1987 Constitution and a provision in the proposed changes. The inconsistency is between a provision in Article VI of the 1987 Constitution and the "Parliamentary system of government," and the inconsistency shall be resolved in favor of a "unicameral parliamentary form of government." Now, what "unicameral parliamentary form of government" do the Lambino Group's proposed changes refer to ― the Bangladeshi, Singaporean, Israeli, or New Zealand models, which are among the few countries with unicameral parliaments? The proposed changes could not possibly refer to the traditional and well-known parliamentary forms of government ― the British, French, Spanish, German, Italian, Canadian, Australian, or Malaysian models, which have all bicameral parliaments. Did the people who signed the signature sheets realize that they were adopting the Bangladeshi, Singaporean, Israeli, or New Zealand parliamentary form of government? This drives home the point that the people's initiative is not meant for revisions of the Constitution but only for amendments. A shift from the present Bicameral-Presidential to a Unicameral-Parliamentary system requires harmonizing several provisions in many articles of

the Constitution. Revision of the Constitution through a people's initiative will only result in gross absurdities in the Constitution. In sum, there is no doubt whatsoever that the Lambino Group's initiative is a revision and not an amendment. Thus, the present initiative is void and unconstitutional because it violates Section 2, Article XVII of the Constitution limiting the scope of a people's initiative to "[A]mendments to this Constitution." 3. A Revisit of Santiago v. COMELEC is Not Necessary The present petition warrants dismissal for failure to comply with the basic requirements of Section 2, Article XVII of the Constitution on the conduct and scope of a people's initiative to amend the Constitution. There is no need to revisit this Court's ruling in Santiago declaring RA 6735 "incomplete, inadequate or wanting in essential terms and conditions" to cover the system of initiative to amend the Constitution. An affirmation or reversal of Santiago will not change the outcome of the present petition. Thus, this Court must decline to revisit Santiago which effectively ruled that RA 6735 does not comply with the requirements of the Constitution to implement the initiative clause on amendments to the Constitution. This Court must avoid revisiting a ruling involving the constitutionality of a statute if the case before the Court can be resolved on some other grounds. Such avoidance is a logical consequence of the well-settled doctrine that courts will not pass upon the constitutionality of a statute if the case can be resolved on some other grounds.51 Nevertheless, even assuming that RA 6735 is valid to implement the constitutional provision on initiatives to amend the Constitution, this will not change the result here because the present petition violates Section 2, Article XVII of the Constitution. To be a valid initiative, the present initiative must first comply with Section 2, Article XVII of the Constitution even before complying with RA 6735. Even then, the present initiative violates Section 5(b) of RA 6735 which requires that the "petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories." Section 5(b) of RA 6735 requires that the people must sign the "petition x x x as signatories." The 6.3 million signatories did not sign the petition of 25 August 2006 or the amended petition of 30 August 2006 filed with the COMELEC. Only Atty. Lambino, Atty. Demosthenes B. Donato, and Atty. Alberto C. Agra signed the petition and amended petition as counsels for "Raul L. Lambino and Erico B. Aumentado, Petitioners." In the COMELEC, the Lambino Group, claiming to act "together with" the 6.3 million signatories, merely attached the signature sheets to the petition and amended petition. Thus, the petition and amended petition filed with the COMELEC did not even comply with the basic requirement of RA 6735 that the Lambino Group claims as valid. The Lambino Group's logrolling initiative also violates Section 10(a) of RA 6735 stating, "No petition embracing more than one (1) subject shall be submitted to the electorate; x x x." The proposed Section 4(4) of the Transitory Provisions, mandating the interim Parliament to propose further amendments or revisions to the Constitution, is a subject matter totally unrelated to the shift in the form of government. Since the present initiative embraces more than one subject matter, RA 6735 prohibits submission of the initiative petition to the electorate. Thus, even if RA 6735 is valid, the Lambino Group's initiative will still fail. 4. The COMELEC Did Not Commit Grave Abuse of Discretion in Dismissing the Lambino Group's Initiative In dismissing the Lambino Group's initiative petition, the COMELEC en banc merely followed this Court's ruling in Santiago and People's Initiative for Reform, Modernization and Action (PIRMA) v. COMELEC.52 For following this Court's ruling, no grave abuse of discretion is attributable to the COMELEC. On this ground alone, the present petition warrants outright dismissal. Thus, this Court should reiterate its unanimous ruling in PIRMA:

The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be attributed to the public respondent COMELEC in dismissing the petition filed by PIRMA therein, it appearing that it only complied with the dispositions in the Decisions of this Court in G.R. No. 127325, promulgated on March 19, 1997, and its Resolution of June 10, 1997. 5. Conclusion The Constitution, as the fundamental law of the land, deserves the utmost respect and obedience of all the citizens of this nation. No one can trivialize the Constitution by cavalierly amending or revising it in blatant violation of the clearly specified modes of amendment and revision laid down in the Constitution itself. To allow such change in the fundamental law is to set adrift the Constitution in unchartered waters, to be tossed and turned by every dominant political group of the day. If this Court allows today a cavalier change in the Constitution outside the constitutionally prescribed modes, tomorrow the new dominant political group that comes will demand its own set of changes in the same cavalier and unconstitutional fashion. A revolving-door constitution does not augur well for the rule of law in this country. An overwhelming majority − 16,622,111 voters comprising 76.3 percent of the total votes cast53 − approved our Constitution in a national plebiscite held on 11 February 1987. That approval is the unmistakable voice of the people, the full expression of the people's sovereign will. That approval included the prescribed modes for amending or revising the Constitution. No amount of signatures, not even the 6,327,952 million signatures gathered by the Lambino Group, can change our Constitution contrary to the specific modes that the people, in their sovereign capacity, prescribed when they ratified the Constitution. The alternative is an extraconstitutional change, which means subverting the people's sovereign will and discarding the Constitution. This is one act the Court cannot and should never do. As the ultimate guardian of the Constitution, this Court is sworn to perform its solemn duty to defend and protect the Constitution, which embodies the real sovereign will of the people. Incantations of "people's voice," "people's sovereign will," or "let the people decide" cannot override the specific modes of changing the Constitution as prescribed in the Constitution itself. Otherwise, the Constitution ― the people's fundamental covenant that provides enduring stability to our society ― becomes easily susceptible to manipulative changes by political groups gathering signatures through false promises. Then, the Constitution ceases to be the bedrock of the nation's stability. The Lambino Group claims that their initiative is the "people's voice." However, the Lambino Group unabashedly states in ULAP Resolution No. 2006-02, in the verification of their petition with the COMELEC, that "ULAP maintains its unqualified support to the agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms." The Lambino Group thus admits that their "people's" initiative is an "unqualified support to the agenda" of the incumbent President to change the Constitution. This forewarns the Court to be wary of incantations of "people's voice" or "sovereign will" in the present initiative. This Court cannot betray its primordial duty to defend and protect the Constitution. The Constitution, which embodies the people's sovereign will, is the bible of this Court. This Court exists to defend and protect the Constitution. To allow this constitutionally infirm initiative, propelled by deceptively gathered signatures, to alter basic principles in the Constitution is to allow a desecration of the Constitution. To allow such alteration and desecration is to lose this Court's raison d'etre. WHEREFORE, we DISMISS the petition in G.R. No. 174153. SO ORDERED.

Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, Corona, Carpio Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, Garcia, and Velasco, Jr., JJ., concur. ____________________ EN BANC G.R. No. 174153 October 25, 2006 RAUL L. LAMBINO AND ERICO B. AUMENTADO, TOGETHER WITH 6,327,952 REGISTERED VOTERS V. COMMISSION ON ELECTIONS ET AL. SEPARATE CONCURRING OPINION PANGANIBAN, CJ.: Without the rule of law, there can be no lasting prosperity and certainly no liberty. Beverley Chief Justice of Canada

McLachlin 1

After a deep reflection on the issues raised and a careful evaluation of the parties' respective arguments -- both oral and written -- as well as the enlightened and enlightening Opinions submitted by my esteemed colleagues, I am fully convinced that the present Petition must be dismissed. I write, however, to show that my present disposition is completely consistent with my previous Opinions and votes on the two extant Supreme Court cases involving an initiative to change the Constitution. In my Separate Opinion in Santiago v. Comelec,2 I opined "that taken together and interpreted properly and liberally, the Constitution (particularly Art. XVII, Sec. 2), Republic Act 6735 and Comelec Resolution 2300 provide more than sufficient __________________ 'SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.' "With all due respect, I find the majority's position all too sweeping and all too extremist. It is equivalent to burning the whole house to exterminate the rats, and to killing the patient to relieve him of pain. What Citizen Delfin wants the Comelec to do we should reject. But we should not thereby preempt any future effort to exercise the right of initiative correctly and judiciously. The fact that the Delfin Petition proposes a misuse of initiative does not justify a ban against its proper use. Indeed, there is a right way to do the right thing at the right time and for the right reason. Taken Together and Interpreted the Constitution, R.A. 6735 and Comelec 2300 Are Sufficient to Implement Constitutional Initiatives

Properly, Resolution

"While R.A. 6735 may not be a perfect law, it was — as the majority openly concedes — intended by the legislature to cover and, I respectfully submit, it contains enough provisions to effectuate an initiative on the Constitution. I completely agree with the

inspired and inspiring opinions of Mr. Justice Reynato S. Puno and Mr. Justice Ricardo J. Francisco that RA 6735, the Roco law on initiative, sufficiently implements the right of the people to initiate amendments to the Constitution. Such views, which I shall no longer repeat nor elaborate on, are thoroughly consistent with this Court's unanimous en banc rulings in Subic Bay Metropolitan Authority vs. Commission on Elections, that "provisions for initiative . . . are (to be) liberally construed to effectuate their purposes, to facilitate and not hamper the exercise by the voters of the rights granted thereby"; and in Garcia vs. Comelec, that any "effort to trivialize the effectiveness of people's initiatives ought to be rejected." "No law can completely and absolutely cover all administrative details. In recognition of this, R.A. 6735 wisely empowered the Commission on Election "to promulgate such rules and regulations as may be necessary to carry out the purposes of this Act." And pursuant thereto, the Comelec issued its Resolution 2300 on 16 January 1991. Such Resolution, by its very words, was promulgated "to govern the conduct of initiative on the Constitution and initiative and referendum on national and local laws," not by the incumbent Commission on Elections but by one then composed of Acting Chairperson Haydee B. Yorac, Comms. Alfredo authority to implement, effectuate and realize our people's power to amend the Constitution." __________________ E. Abueg, Jr., Leopoldo L. Africa, Andres R. Flores, Dario C. Rama and Magdara B. Dimaampao. All of these Commissioners who signed Resolution 2300 have retired from the Commission, and thus we cannot ascribe any vile motive unto them, other than an honest, sincere and exemplary effort to give life to a cherished right of our people. "The majority argues that while Resolution 2300 is valid in regard to national laws and local legislations, it is void in reference to constitutional amendments. There is no basis for such differentiation. The source of and authority for the Resolution is the same law, R.A. 6735. "I respectfully submit that taken together and interpreted properly and liberally, the Constitution (particularly Art. XVII, Sec. 2), R.A. 6735 and Comelec Resolution 2300 provide more than sufficient authority to implement, effectuate and realize our people's power to amend the Constitution. Petitioner Delfin Spouses Should Not Be Muzzled

and

the

Pedrosa

"I am glad the majority decided to heed our plea to lift the temporary restraining order issued by this Court on 18 December 1996 insofar as it prohibited Petitioner Delfin and the Spouses Pedrosa from exercising their right of initiative. In fact, I believe that such restraining order as against private respondents should not have been issued, in the first place. While I agree that the Comelec should be stopped from using public funds and government resources to help them gather signatures, I firmly believe that this Court has no power to restrain them from exercising their right of initiative. The right to propose amendments to the Constitution is really a species of the right of free speech and free assembly. And certainly, it would be tyrannical and despotic to stop anyone from speaking freely and persuading others to conform to his/her beliefs. As the eminent Voltaire once said, 'I may disagree with what you say, but I will defend to the death your right to say it.' After all, freedom is not really for the thought we agree with, but as Justice Holmes wrote, 'freedom for the thought that we hate.' Epilogue "By way of epilogue, let me stress the guiding tenet of my Separate Opinion. Initiative, like referendum and recall, is a new and treasured feature of the Filipino constitutional system. All three are institutionalized legacies of the world-admired EDSA people power.

Like elections and plebiscites, they are hallowed expressions of popular sovereignty. They are sacred democratic rights of our people to be used as Six months after, in my Separate Opinion in People's Initiative for Reform, Modernization and Action (PIRMA) v. Comelec,3 I joined the rest of the members of the Court in ruling "by a unanimous vote, that no grave abuse of discretion could be attributed to the Comelec in dismissing the petition filed by __________________ Constitution x x x." While concededly, petitioners in this case were not direct parties in Santiago, nonetheless the Court's injunction against the Comelec covered ANY petition, not just the Delfin petition which was the immediate subject of said case. As a dissenter in Santiago, I believed, and still do, that the majority gravely erred in rendering such a sweeping injunction, but I cannot fault the Comelec for complying with the ruling even if it, too, disagreed with said decision's ratio decidendi. Respondent Comelec was directly enjoined by the highest Court of the land. It had no choice but to obey. Its obedience cannot constitute grave abuse of discretion. Refusal to act on the PIRMA petition was the only recourse open to the Comelec. Any other mode of action would have constituted defiance of the Court and would have been struck down as grave abuse of discretion and contumacious disregard of this Court's supremacy as the final arbiter of justiciable controversies. Second Sufficiency of RA 6735

Issue:

"I repeat my firm legal position that RA 6735 is adequate to cover initiatives on the Constitution, and that whatever administrative details may have been omitted in said law are satisfactorily provided by Comelec Resolution 2300. The promulgation of Resolution 2300 is sanctioned by Section 2, Article IX-C of the Constitution, which vests upon the Comelec the power to "enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall." The Omnibus Election Code likewise empowers the electoral body to "promulgate rules and regulations implementing the provisions of this Code or other laws which the Commission is required to enforce and administer x x x." Finally and most relevantly, Section 20 of Ra 6735 specifically authorizes Comelec "to promulgate rules and regulations as may be necessary to carry out the purposes of this Act." "In my dissent in Santiago, I wrote that "there is a right way to do the right thing at the right time and for the right reason." Let me explain further. The Right Thing "A people's initiative is direct democracy in action. It is the right thing that citizens may avail themselves of to articulate their will. It is a new and treasured feature of the Filipino constitutional system. Even the majority implicitly conceded its value and worth in our legal firmament when it implored Congress "not to tarry any longer in complying with the constitutional mandate to provide for implementation of the right (of initiative) of the people x x x." Hence, in the en banc case of Subic Bay Metropolitan Authority vs. Comelec, [G.R. No. 125416, September 26, 1996], this Court unanimously held that "(l)ike elections, initiative and referendum are powerful and valuable modes of expressing popular PIRMA therein," since the Commission had "only complied" with the Santiago Decision. __________________ sovereignty. And this Court as a matter of policy and doctrine will exert every effort to nurture, protect and promote their legitimate exercise." The Right Way

"From the outset, I have already maintained the view that "taken together and interpreted properly and liberally, the Constitution (particularly Art. XVII, Sec. 2), RA 6735 and Comelec Resolution 2300 provide more than sufficient authority to implement, effectuate and realize our people's power to amend the Constitution." Let me now demonstrate the adequacy of RA 6735 by outlining, in concrete terms, the steps to be taken – the right way – to amend the Constitution through a people's initiative. "Pursuant to Section 3(f) of the law, the Comelec shall prescribe the form of the petition which shall contain the proposition and the required number of signatories. Under Sec. 5(c) thereof, the petition shall state the following: 'c.1 contents or text of the [provision or provisions] sought to be x x x amended, x x x; c.2 the proposition [in full text]; c.3 the reason or reasons therefor [fully and clearly explained]; c.4 that it is not one of exceptions provided herein; c.5 signatures of the petitioners or registered voters; and c.6 an abstract or summary proposition in not more than one hundred (100) words which shall be legibly written or printed at the top of every page of the petition.' "Section 8(f) of Comelec Resolution 2300 additionally requires that the petition include a formal designation of the duly authorized representatives of the signatories. "Being a constitutional requirement, the number of signatures becomes a condition precedent to the filing of the petition, and is jurisdictional. Without such requisite signatures, the Commission shall motu proprio reject the petition. "Where the initiators have substantially complied with the above requirements, they may thence file the petition with the Comelec which is tasked to determine the sufficiency thereof and to verify the signatures on the basis of the registry list of voters, voters' affidavits and voters' identification cards. In deciding whether the petition is sufficient, the Comelec shall also determine if the proposition is proper for an initiative, i.e., if it consists of an amendment, not a revision, of the Constitution. Any decision of the electoral body may be appealed to the Supreme Court within thirty (30) days from notice. I added "that my position upholding the adequacy of RA 6735 and the validity of Comelec Resolution 2300 will not ipso __________________ "Within thirty (30) days from receipt of the petition, and after the determination of its sufficiency, the Comelec shall publish the same in Filipino and English at least twice in newspapers of general and local circulation, and set the date of the plebiscite. The conduct of the plebiscite should not be earlier than sixty (60) days, but not later than ninety (90) days after certification by the Comelec of the sufficiency of the petition. The proposition, if approved by a majority of the votes cast in the plebiscite, becomes effective as of the day of the plebiscite. "From the foregoing, it should be clear that my position upholding the adequacy of RA 6735 and the validity of Comelec Resolution 2300 will not ipso facto validate the PIRMA petition and automatically lead to a plebiscite to amend the Constitution. Far from it. Among others, PIRMA must still satisfactorily hurdle the following searching issues: 1. Does the proposed change – the lifting of the term limits of elective officials -constitute a mere amendment and not a revision of the Constitution?

2. Which registry of voters will be used to verify the signatures in the petition? This question is relevant considering that under RA 8189, the old registry of voters used in the 1995 national elections was voided after the barangay elections on May 12, 1997, while the new list may be used starting only in the elections of May 1998. 3. Does the clamor for the proposed change in the Constitution really emanate from the people who signed the petition for initiative? Or it is the beneficiaries of term extension who are in fact orchestrating such move to advance their own political self-interest? 4. Are the six million signatures genuine and verifiable? Do they really belong to qualified warm bodies comprising at least 12% of the registered voters nationwide, of which every legislative district is represented by at least 3% of the registered voters therein? "I shall expound on the third question in the next section, The Right Reason. Question Nos. 1 and 2 above, while important, are basically legal in character and can be determined by argumentation and memoranda. However, Question No. 4 involves not only legal issues but gargantuan hurdles of factual determination. This to my mind is the crucible, the litmus test, of a people's petition for initiative. If herein petitioners, led by PIRMA, succeed in proving -- not just alleging -- that six million voters of this country indeed want to amend the Constitution, what power on earth can stop them? Not this Court, not the Comelec, not even the President or Congress. facto validate the PIRMA petition and automatically lead to a plebiscite to amend the Constitution. Far from it." I stressed that PIRMA must show the following, among others: __________________ "It took only one million people to stage a peaceful revolution at EDSA, and the very rafters and foundations of the martial law society trembled, quaked and crumbled. On the other hand, PIRMA and its co-petitioners are claiming that they have gathered six million signatures. If, as claimed by many, these six million signatures are fraudulent, then let them be exposed and damned for all history in a signature-verification process conducted under our open system of legal advocacy. "More than anything else, it is the truth that I, as a member of this Court and as a citizen of this country, would like to seek: Are these six million signatures real? By insisting on an entirely new doctrine of statutory inadequacy, the majority effectively suppressed the quest for that truth. The Right Reason "As mentioned, the third question that must be answered, even if the adequacy of RA 6735 and the validity of Comelec Resolution 2300 were upheld by the majority is: Does the clamor for the proposed change to the Constitution really emanate from the people who signed the petition for initiative? Or is it the beneficiaries of term extension who are in fact orchestrating such move to advance their own political self-interests? In other words, is PIRMA's exercise of the right to initiative being done in accordance with our Constitution and our laws? Is such attempted exercise legitimate? "In Garcia vs. Commission on Elections, we described initiative, along with referendum, as the 'ultimate weapon of the people to negate government malfeasance and misfeasance.' In Subic Bay, we specified that 'initiative is entirely the work of the electorate x x x a process of lawmaking by the people themselves without the participation and against the wishes of their elected representatives.' As ponente of Subic Bay, I stand foursquare on this principle: The right to amend through initiative belongs only to the people – not to the government and its minions. This principle finds clear support from utterances of many constitutional commissioners like those quoted below:

"[Initiative is] a reserve power of the sovereign people, when they are dissatisfied with the National Assembly x x x [and] precisely a fallback position of the people in the event that they are dissatisfied." -- Commissioner Ople "[Initiative is] a check on a legislative that is not responsive [and resorted to] only if the legislature is not as responsive to the vital and urgent needs of people." -- Commissioner Gascon (1) The proposed change -- the lifting of term limits of elective officials -- "constitute[s] a mere amendment and not a revision of the Constitution." _________________ "[Initiative is an] extraordinary power given to the people [and] reserved for the people [which] should not be frivolously resorted to." -- Commissioner Romulo "Indeed, if the powers-that-be desire to amend the Constitution, or even to revise it, our Charter itself provides them other ways of doing so, namely, by calling a constitutional convention or constituting Congress into a constituent assembly. These are officialdom's weapons. But initiative belongs to the people. "In the present case, are PIRMA and its co-petitioners legitimate people's organizations or are they merely fronts for incumbents who want to extend their terms? This is a factual question which, unfortunately, cannot be judicially answered anymore, because the Supreme Court majority ruled that the law that implements it, RA 6735, is inadequate or insufficient insofar as initiatives to the Constitutions are concerned. With such ruling, the majority effectively abrogated a constitutional right of our people. That is why in my Separate Opinion in Santiago, I exclaimed that such precipitate action "is equivalent to burning the whole house to exterminate the rats, and to killing the patient to relieve him of pain." I firmly maintain that to defeat PIRMA's effort, there is no need to "burn" the constitutional right to initiative. If PIRMA's exercise is not "legitimate," it can be exposed as such in the ways I have discussed – short of abrogating the right itself. On the other hand, if PIRMA's position is proven to be legitimate – if it hurdles the four issues I outlined earlier – by all means, we should allow and encourage it. But the majority's theory of statutory inadequacy has pre-empted – unnecessarily and invalidly, in my view – any judicial determination of such legitimacy or illegitimacy. It has silenced the quest for truth into the interstices of the PIRMA petition. The Right Time "The Constitution itself sets a time limitation on when changes thereto may be proposed. Section 2 of Article XVII precludes amendments "within five years following [its] ratification x x x nor oftener than once every five years thereafter." Since its ratification, the 1987 Constitution has never been amended. Hence, the five-year prohibition is now inoperative and amendments may theoretically be proposed at any time. "Be that as it may, I believe – given the present circumstances – that there is no more time to lift term limits to enable incumbents to seek reelection in the May 11, 1998 polls. Between today and the next national (2) The "six million signatures are genuine and verifiable"; and they "really belong to qualified warm bodies comprising at __________________ elections, less than eight (8) months remain. Santiago, where the single issue of the sufficiency of RA 6735 was resolved, took this Court three (3) months, and another two (2) months to decide the motion for reconsideration. The instant case, where the same issue is also raised by the petitioners, took two months, not counting a possible motion for reconsideration. These time spans could not be abbreviated any further, because due process requires that all parties be given sufficient time to file their pleadings.

"Thus, even if the Court were to rule now in favor of the adequacy of RA 6735 – as I believe it should – and allow the Comelec to act on the PIRMA petition, such eightmonth period will not be enough to tackle the four weighty issues I mentioned earlier, considering that two of them involve tedious factual questions. The Comelec's decision on any of these issues can still be elevated to this Court for review, and reconsiderations on our decisions on each of those issues may again be sought. "Comelec's herculean task alone of verifying each of the six million signatures is enormously time-consuming, considering that any person may question the authenticity of each and every signature, initially before the election registrar, then before the Comelec on appeal and finally, before this Court in a separate proceeding. Moreover, the plebiscite itself – assuming such stage can be reached – may be scheduled only after sixty (60) but not more than ninety (90) days, from the time the Comelec and this Court, on appeal, finally declare the petition to be sufficient. "Meanwhile, under Comelec Resolution 2946, political parties, groups organizations or coalitions may start selecting their official candidates for President, Vice President and Senators on November 27, 1997; the period for filing certificates of candidacy is from January 11 to February 9, 1998; the election period and campaign for national officials start on February 10, 1998, while the campaign period for other elective officials, on March 17, 1998. This means, by the time PIRMA's proposition is ready – if ever – for submission directly to the voters at large, it will have been overcome by the elections. Time will simply run out on PIRMA, if the intention is to lift term limits in time for the 1998 elections. "That term limits may no longer be lifted prior to the 1998 elections via a people's initiative does not detract one whit from (1) my firm conviction that RA 6735 is sufficient and adequate to implement this constitutional right and, more important, (2) my faith in the power of the people to initiate changes in local and national laws and the Constitution. In fact, I think the Court can deliberate on these two items even more serenely and wisely now that the debates will be free from the din and distraction of the 1998 elections. After all, jurisprudence is not merely for the here and now but, more so, for the hereafter and the morrow. Let me therefore stress, by way of epilogue, my unbending credo in favor of our people's right to initiative. least 12% of the registered voters nationwide, of which every legislative district is represented by at least 3% of the registered voters therein." __________________ Epilogue "I believe in democracy – in our people's natural right to determine our own destiny. "I believe in the process of initiative as a democratic method of enabling our people to express their will and chart their history. Initiative is an alternative to bloody revolution, internal chaos and civil strife. It is an inherent right of the people – as basic as the right to elect, the right to self-determination and the right to individual liberties. I believe that Filipinos have the ability and the capacity to rise above themselves, to use this right of initiative wisely and maturely, and to choose what is best for themselves and their posterity. "Such beliefs, however, should not be equated with a desire to perpetuate a particular official or group of officials in power. Far from it. Such perpetuation is anathema to democracy. My firm conviction that there is an adequate law implementing the constitutional right of initiative does not ipso facto result in the victory of the PIRMA petition or of any proposed constitutional change. There are, after all, sufficient safeguards to guarantee the proper use of such constitutional right and to forestall its misuse and abuse. First, initiative cannot be used to revise the Constitution, only to amend it. Second, the petitioners' signatures must be validated against an existing list of voters and/or voters' identification cards. Third, initiative is a reverse power of and by the

people, not of incumbent officials and their machinators. Fourth and most important of all, the signatures must be verified as real and genuine; not concocted, fictitious or fabricated. The only legal way to do this is to enable the Commission on Elections to conduct a nationwide verification process as mandated by the Constitution and the law. Such verification, it bears stressing, is subject to review by this Court. "There were, by the most generous estimate, only a million people who gathered at EDSA in 1986, and yet they changed the history of our country. PIRMA claims six times that number, not just from the National Capital Region but from all over the country. Is this claim through the invention of its novel theory of statutory insufficiency, the Court's majority has stifled the only legal method of determining whether PIRMA is real or not, whether there is indeed a popular clamor to lift term limits of elected officials, and whether six million voters want to initiate amendments to their most basic law. In suppressing a judicial answer to such questions, the Court may have unwittingly yielded to PIRMA the benefit of the legal presumption of legality and regularity. In its misplaced zeal to exterminate the rats, it burned down the whole house. It unceremoniously divested the people of a basic constitutional right. In both Opinions, I concluded that we must implement "the right thing [initiative] in the right way at the right time and for the right reason." In the present case, I steadfastly stand by my foregoing Opinions in Santiago and PIRMA. Tested against them, the present Petition of Raul Lambino and Erico Aumentado must be DISMISSED. Unfortunately, the right thing is being rushed in the wrong way and for the wrong reasons. Let me explain. No Grave Abuse of Discretion by Comelec As in PIRMA, I find no grave abuse of discretion in Comelec's dismissal of the Lambino Petition. After all, the Commission merely followed the holding in Santiago permanently ____________________ "In the ultimate, the mission of the judiciary is to discover truth and to make it prevail. This mission is undertaken not only to resolve the vagaries of present events but also to build the pathways of tomorrow. The sum total of the entire process of adversarial litigation is the verity of facts and the application of law thereto. By the majority cop-out in this mission of discovery, our country and our people have been deprived not only of a basic constitutional right, as earlier noted, but also of the judicial opportunity to verify the truth." enjoining the poll body "from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system." Indeed, the Comelec did not violate the Constitution, the laws or any jurisprudence.4 Neither can whim, caprice, arbitrariness or personal bias be attributed to the Commission.5 Quite the contrary, it prudently followed this Court's jurisprudence in Santiago and PIRMA. Even assuming arguendo that Comelec erred in ruling on a very difficult and unsettled question of law, this Court still cannot attribute grave abuse of discretion to the poll body with respect to that action.6 The present Lambino Petition is in exactly the same situation as that of PIRMA in 1997. The differences pointed out by Justice Reynato S. Puno are, with due respect, superficial. It is argued that, unlike the present Lambino Petition, PIRMA did not contain verified signatures. These are distinctions that do not make a difference. Precisely, Justice Puno is urging a remand, because the verification issue is "contentious" and remains unproven by petitioners. Clearly, both the PIRMA and the Lambino Petitions contain unverified signatures. Therefore, they both deserve the same treatment: DISMISSAL.

Besides, the only reason given in the unanimous Resolution on PIRMA v. Comelec was that the Commission had "only complied" with this Court's Decision in Santiago, the same reason given by Comelec in this case. The Separate Opinions in PIRMA gave no other reason. No one argued, even remotely, that the PIRMA Petition should have been dismissed because the signatures were unverified. To stress, I adhere to my Opinion in PIRMA that, "[b]eing a constitutional requirement, the number of signatures becomes a condition precedent to the filing of the petition, and is jurisdictional.7 Without those signatures, the Comelec shall motu proprio reject the petition." So, until and unless Santiago is revisited and changed by this Court or the legal moorings of the exercise of the right are substantially changed, the Comelec cannot be faulted for acting in accord with this Court's pronouncements. Respondent Commission has no discretion, under any guise, to refuse enforcement of any final decision of this Court.8 The refusal of the poll body to act on the Lambino Petition was its only recourse. Any other mode of action would appear not only presumptuous, but also contemptuous. It would have constituted defiance of the Court and would have surely been struck down as grave abuse of discretion and contumacious disregard of the supremacy of this Court as the final arbiter of justiciable controversies. Even assuming further that this Court rules, as I believe it should (for the reasons given in my Opinions in Santiago and PIRMA), that Republic Act 6735 is indeed sufficient to implement an initiative to amend the Constitution, still, no grave abuse of discretion can be attributed to the Comelec for merely following prevailing jurisprudence extant at the time it rendered its ruling in question. Only Amendments, Not Revisions I reiterate that only amendments, not revisions, may be the proper subject of an initiative to change the Constitution. This principle is crystal clear from even a layperson's reading of the basic law.9 I submit that changing the system of government from presidential to parliamentary and the form of the legislature from bicameral to unicameral contemplates an overhaul of the structure of government. The ponencia has amply demonstrated that the merger of the legislative and the executive branches under a unicameral-parliamentary system, "[b]y any legal test and under any jurisdiction," will "radically alter the framework of government as set forth in the Constitution." Indeed, the proposed changes have an overall implication on the entire Constitution; they effectively rewrite its most important and basic provisions. The prolixity and complexity of the changes cannot be categorized, even by semantic generosity, as "amendments." In addition, may I say that of the three modes of changing the Constitution, revisions (or amendments) may be proposed only through the first two: by Congress or by a constitutional convention. Under the third mode -- people's initiative -- only amendments are allowed. Many of the justices' Opinions have cited the historical, philosophical and jurisprudential bases of their respective positions. I will not add to the woes of the reader by reiterating them here. Suffice it to say that, to me, the practical test to differentiate an amendment from a revision is found in the Constitution itself: a revision may be done only when the proposed change can be drafted, defined, articulated, discussed and agreed upon after a mature and democratic debate in a deliberative body like Congress or a Convention. The changes proposed must necessarily be scrutinized, as their adoption or non-adoption must result from an informed judgment. Indeed, the constitutional bodies that drafted the 1935, the 1972 and the 1987 Constitutions had to spend many months of purposeful discussions, democratic debates and rounds of voting before they could agree on the wordings covering the philosophy, the underlying principles, and the structure of government of our Republic.

Verily, even bills creating or changing the administrative structure of local governments take several weeks or even months of drafting, reading, and debating before Congress can approve them. How much more when it comes to constitutional changes? A change in the form of government of our country from presidential-bicameral to parliamentaryunicameral is monumental. Even the initiative proponents admit this fact. So, why should a revision be rammed down our people's throats without the benefit of intelligent discussion in a deliberative assembly? Added to the constitutional mandate barring revisions is the provision of RA 6735 expressly prohibiting petitions for initiative from "embracing more than one subject matter."10 The present initiative covers at least two subjects: (1) the shift from a presidential to a parliamentary form of government; and (2) the change from a bicameral to a unicameral legislature. 11 Thus, even under Republic Act 6735 -- the law that Justice Puno and I hold to be sufficient and valid -- the Lambino Petition deserves dismissal. 12 Percent Not Proven by Petitioners

and

3

Percent

Thresholds

The litmus test of a people's petition for initiative is its ability to muster the constitutional requirement that it be supported by at least 12 percent of the registered voters nationwide, of which at least 3 percent of the registered voters in every legislative district must be represented. As pointed out by Intervenors One Voice, Inc., et al., however, records show that there was a failure to meet the minimum percentages required.12 Even Justice Puno concedes that the 12 percent and 3 percent constitutional requirements involve "contentious facts," which have not been proven by the Lambino Petition. Thus, he is urging a remand to the Comelec. But a remand is both imprudent and futile. It is imprudent because the Constitution itself mandates the said requisites of an initiative petition. In other words, a petition that does not show the required percentages is fatally defective and must be dismissed, as the Delfin Petition was, in Santiago. Furthermore, as the ponencia had discussed extensively, the present Petition is void and unconstitutional. It points out that the Petition dismally fails to comply with the constitutional requirement that an initiative must be directly proposed by the people. Specifically, the ponencia has amply established that petitioners were unable to show that the Lambino Petition contained, or incorporated by attachment, the full text of the proposed changes. So, too, a remand is futile. Even if the required percentages are proven before the Commission, the Petition must still be dismissed for proposing a revision, not an amendment, in gross violation of the Constitution. At the very least, it proposes more than one subject, in violation of Republic Act 6735. Summation Petitioners plead with this Court to hear the voice of the people because, in the words of Justice Puno who supports them, the "people's voice is sovereign in a democracy." I, too, believe in heeding the people's voice. I reiterate my Separate Opinion in PIRMA that "initiative is a democratic method of enabling our people to express their will and chart their history. x x x. I believe that Filipinos have the ability and the capacity to rise above themselves, to use this right of initiative wisely and maturely, and to choose what is best for themselves and their posterity." This belief will not, however, automatically and blindly result in an initiative to change the Constitution, because the present Petition violates the following: · The Constitution (specifically Article XVII, which allows only amendments, not revisions, and requires definite percentages of verified signatures)

· The law (specifically, Republic Act 6735, which prohibits petitions containing more than one subject) · Jurisprudence (specifically, PIRMA v. Comelec, which dismissed the Petition then under consideration on the ground that, by following the Santiago ruling, the Comelec had not gravely abused its discretion). I submit further that a remand of the Lambino Petition is both imprudent and futile. More tellingly, it is a cop-out, a hand-washing already discredited 2000 years ago. Instead of finger-pointing, I believe we must confront the issues head on, because the people expect no less from this august and venerable institution of supreme justice. Epilogue At bottom, the issue in this case is simply the Rule of Law.13 Initiative, like referendum and recall, is a treasured feature of the Filipino constitutional system. It was born out of our worldadmired and often-imitated People Power, but its misuse and abuse must be resolutely rejected. Democracy must be cherished, but mob rule vanquished. The Constitution is a sacred social compact, forged between the government and the people, between each individual and the rest of the citizenry. Through it, the people have solemnly expressed their will that all of them shall be governed by laws, and their rights limited by agreedupon covenants to promote the common good. If we are to uphold the Rule of Law and reject the rule of the mob, we must faithfully abide by the processes the Constitution has ordained in order to bring about a peaceful, just and humane society. Assuming arguendo that six million people allegedly gave their assent to the proposed changes in the Constitution, they are nevertheless still bound by the social covenant -- the present Constitution -- which was ratified by a far greater majority almost twenty years ago. 14 I do not denigrate the majesty of the sovereign will; rather, I elevate our society to the loftiest perch, because our government must remain as one of laws and not of men. Upon assuming office, each of the justices of the Supreme Court took a solemn oath to uphold the Constitution. Being the protectors of the fundamental law as the highest expression of the sovereign will, they must subject to the strictest scrutiny any attempt to change it, lest it be trivialized and degraded by the assaults of the mob and of ill-conceived designs. The Court must single-mindedly defend the Constitution from bogus efforts falsely attributed to the sovereign people. The judiciary may be the weakest branch of government. Nonetheless, when ranged against incessant voices from the more powerful branches of government, it should never cower in submission. On the other hand, I daresay that the same weakness of the Court becomes its strength when it speaks independently through decisions that rightfully uphold the supremacy of the Constitution and the Rule of Law. The strength of the judiciary lies not in its lack of brute power, but in its moral courage to perform its constitutional duty at all times against all odds. Its might is in its being right.15 During the past weeks, media outfits have been ablaze with reports and innuendoes about alleged carrots offered and sticks drawn by those interested in the outcome of this case.16 There being no judicial proof of these allegations, I shall not comment on them for the nonce, except to quote the Good Book, which says, "There is nothing hidden that will not be revealed, and nothing secret that will not be known and come to light."17 Verily, the Supreme Court is now on the crossroads of history. By its decision, the Court and each of its members shall be judged by posterity. Ten years, fifty years, a hundred years -- or even a thousand years -- from now, what the Court did here, and how each justice opined and voted, will still be talked about, either in shame or in pride. Indeed, the hand-washing of Pontius Pilate, the abomination of Dred Scott, and the loathing of Javellana still linger and haunt to this day. Let not this case fall into the same damnation. Rather, let this Court be known throughout the nation and the world for its independence, integrity, industry and intelligence.

WHEREFORE, I vote to DISMISS the Petition. ARTEMIO Chief Justice

V.

PANGANIBAN

____________________ EN BANC G.R. No. 174153

October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO, together with 6,327,952 REGISTERED VOTERS, Petitioners, vs. THE COMMISSION ON ELECTIONS, ET AL., Respondents. G.R. No. 174299

October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and RENE A. Q. SAGUISAG, Petitioners, vs. COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, JR. and Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, Respondents. x ---------------------------------------------------------------------------------------- x SEPARATE OPINION YNARES-SANTIAGO, J.: I agree with the opinion of our esteemed colleague, Justice Reynato Puno, that the Court's ruling in Santiago v. COMELEC1 is not a binding precedent. However, it is my position that even if Santiago were reversed and Republic Act No. 6735 (R.A. 6735) be held as sufficient law for the purpose of people's initiative to amend the Constitution, the petition for initiative in this case must nonetheless be dismissed. There is absolutely no showing here that petitioners complied with R.A. 6735, even as they blindly invoke the said law to justify their alleged people's initiative. Section 5(b) of R.A. 6735 requires that "[a] petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein." On the other hand, Section 5(c)2 of the same law requires that the petition should state, among others, the proposition3 or the "contents or text of the proposed law sought to be enacted, approved or rejected, amended or repealed." If we were to apply Section 5(c) to an initiative to amend the Constitution, as petitioners submit, the petition for initiative signed by the required number of voters should incorporate therein a text of the proposed changes to the Constitution. However, such requirement was not followed in the case at bar. During the oral arguments, petitioner Lambino admitted that they printed a mere 100,000 copies of the text of the proposed changes to the Constitution. According to him, these were subsequently distributed to their agents all over the country, for attachment to the sheets of paper on which the signatures were to be affixed. Upon being asked, however, if he in fact knew whether the text was actually attached to the signature sheets which were distributed for signing, he said that he merely assumed that they were. In other words, he could not tell the Court for certain whether their representatives complied with this requirement. The petition filed with the COMELEC, as well as that which was shown to this Court, indubitably establish that the full text of the proposed changes was not attached to the signature sheets. All

that the signature sheets contained was the general proposition and abstract, which falls short of the full text requirement of R.A. 6735. The necessity of setting forth the text of the proposed constitutional changes in the petition for initiative to be signed by the people cannot be seriously disputed. To begin with, Article XVII, Section 2 of the Constitution unequivocally states that "[a]mendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein." Evidently, for the people to propose amendments to the Constitution, they must, in the first instance, know exactly what they are proposing. It is not enough that they merely possess a general idea of the proposed changes, as the Constitution speaks of a "direct" proposal by the people. Although the framers of the Constitution left the matter of implementing the constitutional right of initiative to Congress, it might be noted that they themselves reasonably assumed that the draft of the proposed constitutional amendments would be shown to the people during the process of signature gathering. Thus – MR. RODRIGO. Section 2 of the complete committee report provides: "upon petition of at least 10 percent of the registered voters." How will we determine that 10 percent has been achieved? How will the voters manifest their desire, is it by signature? MR. SUAREZ. Yes, by signatures. MR. RODRIGO. Let us look at the mechanics. Let us say some voters want to propose a constitutional amendment. Is the draft of the proposed constitutional amendment ready to be shown to the people when they are asked to sign? MR. SUAREZ. That can be reasonably assumed, Madam President. MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to them before they sign. Now, who prepares the draft? MR. SUAREZ: The people themselves, Madam President.4 It may thus be logically assumed that even without Section 5(c) of R.A. 6735, the full text of the proposed changes must necessarily be stated in or attached to the initiative petition. The signatories to the petition must be given an opportunity to fully comprehend the meaning and effect of the proposed changes to enable them to make a free, intelligent and well-informed choice on the matter. Needless to say, the requirement of setting forth the complete text of the proposed changes in the petition for initiative is a safeguard against fraud and deception. If the whole text of the proposed changes is contained in or attached to the petition, intercalations and riders may be duly avoided. Only then can we be assured that the proposed changes are truly of the people and that the signatories have been fully apprised of its implications. If a statutory provision is essential to guard against fraud, corruption or deception in the initiative and referendum process, such provision must be viewed as an indispensable requirement and failure to substantially comply therewith is fatal.5 The failure of petitioners in this case to comply with the full text requirement resultantly rendered their petition for initiative fatally defective. The petition for initiative is likewise irretrievably infirm because it violates the one subject rule under Section 10(a) of R.A. 6735: SEC. 10. Prohibited Measures.— The following cannot be the subject of an initiative or referendum petition: (a) No petition embracing more than one subject shall be submitted to the electorate; x x x

The one subject rule, as relating to an initiative to amend the Constitution, has the same object and purpose as the one subject-one bill rule embodied in Article VI, Section 26(1)6 of the Constitution.7 To elaborate, the one subject-one bill rule was designed to do away with the practice of inserting two or more unrelated provisions in one bill, so that those favoring one provision would be compelled to adopt the others. By this process of log-rolling, the adoption of both provisions could be accomplished and ensured, when neither, if standing alone, could succeed on its own merits. As applied to the initiative process, the one subject rule is essentially designed to prevent surprise and fraud on the electorate. It is meant to safeguard the integrity of the initiative process by ensuring that no unrelated riders are concealed within the terms of the proposed amendment. This in turn guarantees that the signatories are fully aware of the nature, scope and purpose of the proposed amendment. Petitioners insist that the proposed changes embodied in their petition for initiative relate only to one subject matter, that is – the shift from presidential to a parliamentary system of government. According to petitioners, all of the other proposed changes are merely incidental to this main proposal and are reasonably germane and necessary thereto.8An examination of the text of the proposed changes reveals, however, that this is not the case. The proposed changes to the Constitution cover other subjects that are beyond the main proposal espoused by the petitioners. Apart from a shift from the presidential to a parliamentary form of government, the proposed changes include the abolition of one House of Congress,9 and the convening of a constituent assembly to propose additional amendments to the Constitution.10 Also included within its terms is an omnibus declaration that those constitutional provisions under Articles VI and VII, which are inconsistent with the unicameralparliamentary form of government, shall be deemed amended to conform thereto. It is not difficult to see that while the proposed changes appear to relate only to a shift in the form of government, it actually seeks to affect other subjects that are not reasonably germane to the constitutional alteration that is purportedly sought. For one, a shift to a parliamentary system of government does not necessarily result in the adoption of a unicameral legislature. A parliamentary system can exist in many different "hybrid" forms of government, which may or may not embrace unicameralism.11 In other words, the shift from presidential to parliamentary structure and from a bicameral to a unicameral legislature is neither the cause nor effect of the other. I also fail to see the relation of convening a constituent assembly with the proposed change in our system of government. As a subject matter, the convening of a constituent assembly to amend the Constitution presents a range of issues that is far removed from the subject of a shift in government. Besides, the constituent assembly is supposed to convene and propose amendments to the Constitution after the proposed change in the system of government has already taken place. This only goes to show that the convening of the constituent assembly is not necessary to effectuate a change to a parliamentary system of government. The omnibus statement that all provisions under Articles VI and VII which are inconsistent with a unicameral-parliamentary system of government shall be deemed amended is equally bothersome. The statement does not specify what these inconsistencies and amendments may be, such that everyone is left to guess the provisions that could eventually be affected by the proposed changes. The subject and scope of these automatic amendments cannot even be spelled out with certainty. There is thus no reasonable measure of its impact on the other constitutional provisions. The foregoing proposed changes cannot be the subject of a people's initiative under Section 2, Article XVII of the Constitution. Taken together, the proposed changes indicate that the intendment is not simply to effect substantial amendments to the Constitution, but a revision thereof. The distinction between an amendment and revision was explained by Dean Vicente G. Sinco, as follows: "Strictly speaking, the act of revising a constitution involves alterations of different portions of the entire document. It may result in the rewriting either of the whole

constitution, or the greater portion of it, or perhaps only some of its important provisions. But whatever results the revision may produce, the factor that characterizes it as an act of revision is the original intention and plan authorized to be carried out. That intention and plan must contemplate a consideration of all the provisions of the constitution to determine which one should be altered or suppressed or whether the whole document should be replaced with an entirely new one. The act of amending a constitution, on the other hand, envisages a change of only a few specific provisions. The intention of an act to amend is not to consider the advisability of changing the entire constitution or of considering that possibility. The intention rather is to improve specific parts of the existing constitution or to add to it provisions deemed essential on account of changed conditions or to suppress portions of it that seem obsolete, or dangerous, or misleading in their effect."12 The foregoing traditional exposition of the difference between amendment and revision has indeed guided us throughout our constitutional history. However, the distinction between the two terms is not, to my mind, as significant in the context of our past constitutions, as it should be now under the 1987 Constitution. The reason for this is apparent. Under our past constitutions, it was Congress alone, acting either as a constituent assembly or by calling out a constitutional convention, that exercised authority to either amend or revise the Constitution through the procedures therein described. Although the distinction between the two terms was theoretically recognized under both the 1935 and 1973 Constitutions, the need to highlight the difference was not as material because it was only Congress that could effect constitutional changes by choosing between the two modalities. However, it is different now under the 1987 Constitution. Apart from providing for the two modes of either Congress constituting itself as a constituent assembly or calling out for a constitutional convention, a third mode was introduced for proposing changes to the Constitution. This mode refers to the people's right to propose amendments to the fundamental law through the filing of a petition for initiative. Otherwise stated, our experience of what constitutes amendment or revision under the past constitutions is not determinative of what the two terms mean now, as related to the exercise of the right to propose either amendments or revision. The changes introduced to both the Constitutions of 1935 and 1973 could have indeed been deemed an amendment or revision, but the authority for effecting either would never have been questioned since the same belonged solely to Congress. In contrast, the 1987 Constitution clearly limits the right of the people to directly propose constitutional changes to amendments only. We must consequently not be swayed by examples of constitutional changes effected prior to the present fundamental law, in determining whether such changes are revisory or amendatory in nature. In this regard, it should be noted that the distinction laid down by Justice Felix Q. Antonio in Javellana v. Executive Secretary13 related to the procedure to be followed in ratifying a completely new charter proposed by a constitutional convention. The authority or right of the constitutional convention itself to effect such a revision was not put in issue in that case. As far as determining what constitutes "amendments" for the purpose of a people's initiative, therefore, we have neither relevant precedent nor prior experience. We must thus confine ourselves to Dean Sinco's basic articulation of the two terms. It is clear from Dean Sinco's explanation that a revision may either be of the whole or only part of the Constitution. The part need not be a substantial part as a change may qualify as a revision even if it only involves some of the important provisions. For as long as the intention and plan to be carried out contemplate a consideration of all the provisions of the Constitution "to determine which should be altered or suppressed, or whether the whole document should be replaced with an entirely new one," the proposed change may be deemed a revision and not merely an amendment. Thus, it is not by the sheer number alone of the proposed changes that the same may be considered as either an amendment or revision. In so determining, another overriding factor is the "original intention and plan authorized to be carried out" by the proposed changes. If the same relates to a re-examination of the entire document to see which provisions remain

relevant or if it has far-reaching effects on the entire document, then the same constitutes a revision and not a mere amendment of the Constitution. From the foregoing, it is readily apparent that a combination of the quantitative and qualitative test is necessary in assessing what may be considered as an amendment or revision. It is not enough that we focus simply on the physical scope of the proposed changes, but also consider what it means in relation to the entire document. No clear demarcation line can be drawn to distinguish the two terms and each circumstance must be judged on the basis of its own peculiar conditions. The determination lies in assessing the impact that the proposed changes may have on the entire instrument, and not simply on an arithmetical appraisal of the specific provisions which it seeks to affect. In McFadden v. Jordan,14 the California Supreme Court laid down the groundwork for the combination of quantitative and qualitative assessment of proposed constitutional changes, in order to determine whether the same is revisory or merely amendatory. In that case, the McFadden court found the proposed changes extensive since at least 15 of the 25 articles contained in the California Constitution would either be repealed in their entirety or substantially altered, and four new topics would be introduced. However, it went on to consider the qualitative effects that the proposed initiative measure would have on California's basic plan of government. It observed that the proposal would alter the checks and balances inherent in such plan, by delegating far-reaching and mixed powers to an independent commission created under the proposed measure. Consequently, the proposal in McFadden was not only deemed as broad and numerous in physical scope, but was also held as having a substantive effect on the fundamental governmental plan of the State of California. The dual aspect of the amendment/revision analysis was reiterated by the California Supreme Court in Raven v. Deukmeijan.15 Proposition 115, as the initiative in that case was called, would vest in the United States Supreme Court all judicial interpretative powers of the California courts over fundamental criminal defense rights in that state. It was observed that although quantitatively, the proposition did "not seem so extensive as to change directly the substantial entirety of the Constitution by the deletion or alteration of numerous existing provisions," the same, nonetheless, "would substantially alter the substance and integrity of the state Constitution as a document of independent force and effect." Quoting Amador Valley Joint Union High School District v. State Board of Equalization,16 the Raven court said: ". . . apart from a measure effecting widespread deletions, additions and amendments involving many constitutional articles, 'even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also…[A]n enactment which purported to vest all judicial power in the Legislature would amount to a revision without regard either to the length or complexity of the measure or the number of existing articles or sections affected by such change.'" (Underscoring supplied and citations omitted) Thus, in resolving the amendment/revision issue, the California Court examines both the quantitative and qualitative effects of a proposed measure on its constitutional scheme. Substantial changes in either respect could amount to a revision.17 I am persuaded that we can approach the present issue in the same manner. The experience of the courts in California is not far removed from the standards expounded on by Dean Sinco when he set out to differentiate between amendment and revision. It is actually consistent, not only with our traditional concept of the two terms, but also with the mindset of our constitutional framers when they referred to the disquisition of Justice Antonio in Javellana.18 We must thus consider whether the proposed changes in this case affect our Constitution in both its substantial physical entirety and in its basic plan of government. The question posed is: do the proposed changes, regardless of whether these are simple or substantial, amount to a revision as to be excluded from the people's right to directly propose amendments to the fundamental law? As indicated earlier, we may apply the quantitative/qualitative test in determining the nature of the proposed changes. These tests are consistent with Dean Sinco's traditional concept of

amendment and revision when he explains that, quantitatively, revision "may result in the rewriting either of the whole constitution, or the greater part of it, or perhaps only some of its provisions." In any case, he continues, "the factor that characterizes it as an act of revision is the original intention and plan authorized to be carried out." Unmistakably, the latter statement refers to the qualitative effect of the proposed changes. It may thus be conceded that, quantitatively, the changes espoused by the proponents in this case will affect only two (2) out of the eighteen (18) articles of the 1987 Constitution, namely, Article VI (Legislative Department) and Article VII (Executive Department), as well as provisions that will ensure the smooth transition from a presidential-bicameral system to a parliamentaryunicameral structure of government. The quantitative effect of the proposed changes is neither broad nor extensive and will not affect the substantial entirety of the 1987 Constitution. However, it is my opinion that the proposed changes will have serious qualitative consequences on the Constitution. The initiative petition, if successful, will undoubtedly alter, not only our basic governmental plan, but also redefine our rights as citizens in relation to government. The proposed changes will set into motion a ripple effect that will strike at the very foundation of our basic constitutional plan. It is therefore an impermissible constitutional revision that may not be effected through a people's initiative. Petitioners' main proposal pertains to the shifting of our form of government from the presidential to the parliamentary system. An examination of their proposal reveals that there will be a fusion of the executive and legislative departments into one parliament that will be elected on the basis of proportional representation. No term limits are set for the members of parliament except for those elected under the party-list system whose terms and number shall be provided by law. There will be a President who shall be the head of state, but the head of government is the Prime Minister. The latter and his cabinet shall be elected from among the members of parliament and shall be responsible to parliament for the program of government. The preceding proposal indicates that, under the proposed system, the executive and legislature shall be one and the same, such that parliament will be the paramount governing institution. What this implies is that there will be no separation between the law-making and enforcement powers of the state, that are traditionally delineated between the executive and legislature in a presidential form of government. Necessarily, the checks and balances inherent in the fundamental plan of our U.S.-style presidential system will be eliminated. The workings of government shall instead be controlled by the internal political dynamics prevailing in the parliament. Our present governmental system is built on the separation of powers among the three branches of government. The legislature is generally limited to the enactment of laws, the executive to the enforcement of laws and the judiciary to the application of laws. This separation is intended to prevent a concentration of authority in one person or group that might lead to an irreversible error or abuse in its exercise to the detriment of our republican institutions. In the words of Justice Laurel, the doctrine of separation of powers is intended to secure action, to forestall overaction, to prevent despotism and obtain efficiency.19 In the proposed parliamentary system, there is an obvious lack of formal institutional checks on the legislative and executive powers of the state, since both the Prime Minister and the members of his cabinet are drawn from parliament. There are no effective limits to what the Prime Minister and parliament can do, except the will of the parliamentary majority. This goes against the central principle of our present constitutional scheme that distributes the powers of government and provides for counteraction among the three branches. Although both the presidential and parliamentary systems are theoretically consistent with constitutional democracy, the underlying tenets and resulting governmental framework are nonetheless radically different. Consequently, the shift from presidential to parliamentary form of government cannot be regarded as anything but a drastic change. It will require a total overhaul of our governmental structure and involve a re-orientation in the cardinal doctrines that govern our constitutional setup. As explained by Fr. Joaquin Bernas, S.J., a switch from the presidential system to a parliamentary system would be a revision because of its over-all impact on the entire

constitutional structure.20 It cannot, by any standard, be deemed as a mere constitutional amendment. An amendment envisages an alteration of one or a few specific and separable provisions. The guiding original intention of an amendment is to improve specific parts or to add new provisions deemed necessary to meet new conditions or to suppress specific portions that may have become obsolete or that are judged to be dangerous. In revision, however, the guiding original intention and plan contemplates a re-examination of the entire document, or of provisions of the document which have over-all implications for the entire document, to determine how and to what extent they should be altered.21 (Underscoring supplied) The inclusion of a proposal to convene a constituent assembly likewise shows the intention of the proponents to effect even more far-reaching changes in our fundamental law. If the original intent were to simply shift the form of government to the parliamentary system, then there would have been no need for the calling out of a constituent assembly to propose further amendments to the Constitution. It should be noted that, once convened, a constituent assembly can do away and replace any constitutional provision which may not even have a bearing on the shift to a parliamentary system of government. The inclusion of such a proposal reveals the proponents' plan to consider all provisions of the constitution, either to determine which of its provisions should be altered or suppressed or whether the whole document should be replaced with an entirely new one. Consequently, it is not true that only Articles VI and VII are covered by the alleged people's initiative. The proposal to convene a constituent assembly, which by its terms is mandatory, will practically jeopardize the future of the entire Constitution and place it on shaky grounds. The plan of the proponents, as reflected in their proposed changes, goes beyond the shifting of government from the presidential to the parliamentary system. Indeed, it could even extend to the "fundamental nature of our state as a democratic and republican state." To say that the proposed changes will affect only the constitution of government is therefore a fallacy. To repeat, the combined effect of the proposed changes to Articles VI and VII and those pertaining to the Transitory Provisions under Article XVIII indubitably establish the intent and plan of the proponents to possibly affect even the constitutions of liberty and sovereignty. Indeed, no valid reason exists for authorizing further amendments or revisions to the Constitution if the intention of the proposed changes is truly what it purports to be. There is no question here that only amendments to the Constitution may be undertaken through a people's initiative and not a revision, as textually reflected in the Constitution itself. This conclusion is inevitable especially from a comparative examination of Section 2 in relation to Sections 1 and 4 of Article XVII, which state: SECTION 1. Any amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its Members; or (2) A constitutional convention. SECTION 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right. xxxx SECTION 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be

held not earlier than sixty days nor later than ninety days after the approval of such amendment or revision. Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the certification by the Commission of Elections of the sufficiency of the petition. (Underscoring supplied) It is clear that the right of the people to directly propose changes to the Constitution is limited to amendments and does not include a revision thereof. Otherwise, it would have been unnecessary to provide for Section 2 to distinguish its scope from the rights vested in Congress under Section 1. The latter lucidly states that Congress may propose both amendments and a revision of the Constitution by either convening a constituent assembly or calling for a constitutional convention. Section 2, on the other hand, textually commits to the people the right to propose only amendments by direct action. To hold, therefore, that Section 2 allows substantial amendments amounting to revision obliterates the clear distinction in scope between Sections 1 and 2. The intention, as may be seen from a cursory perusal of the above provisions, is to provide differing fields of application for the three modes of effecting changes to the Constitution. We need not even delve into the intent of the constitutional framers to see that the distinction in scope is definitely marked. We should thus apply these provisions with a discerning regard for this distinction. Again, McFadden22 is instructive: ". . . The differentiation required is not merely between two words; more accurately it is between two procedures and between their respective fields of application. Each procedure, if we follow elementary principles of statutory construction, must be understood to have a substantial field of application, not to be x x x a mere alternative procedure in the same field. Each of the two words, then, must be understood to denote, respectively, not only a procedure but also a field of application appropriate to its procedure. The people of this state have spoken; they made it clear when they adopted article XVIII and made amendment relatively simple but provided the formidable bulwark of a constitutional convention as a protection against improvident or hasty (or any other) revision, that they understood that there was a real difference between amendment and revision. We find nothing whatsoever in the language of the initiative amendment of 1911 (art. IV, § 1) to effect a breaking down of that difference. On the contrary, the distinction appears to be x x x scrupulously preserved by the express declaration in the amendment x x x that the power to propose and vote on "amendments to the Constitution" is reserved directly to the people in initiative proceedings, while leaving unmentioned the power and the procedure relative to constitutional revision, which revisional power and procedure, it will be remembered, had already been specifically treated in section 2 of article XVIII. Intervenors' contention--that any change less than a total one is but amendatory--would reduce to the rubble of absurdity the bulwark so carefully erected and preserved. Each situation involving the question of amendment, as contrasted with revision, of the Constitution must, we think, be resolved upon its own facts." Thus, our people too have spoken when they overwhelmingly ratified the 1987 Constitution, with the provisions on amendments and revisions under Article XVII. The voice and will of our people cannot be any clearer when they limited people's initiative to mere amendments of the fundamental law and excluded revisions in its scope. In this regard, the task of the Court is to give effect to the people's voice, as expressed unequivocally through the Constitution. Article XVII on amendments and revisions is called a "constitution of sovereignty" because it defines the constitutional meaning of "sovereignty of the people." It is through these provisions that the sovereign people have allowed the expression of their sovereign will and have canalized their powers which would otherwise be plenary. By approving these provisions, the sovereign people have decided to limit themselves and future generations in the exercise of their sovereign power.23 They are thus bound by the constitution and are powerless, whatever their numbers, to change or thwart its mandates, except through the means prescribed by the Constitution itself.24

It is thus misplaced to argue that the people may propose revisions to the Constitution through people's initiative because their representatives, whose power is merely delegated, may do so. While Section 1 of Article XVII may be considered as a provision delegating the sovereign powers of amendment and revision to Congress, Section 2, in contrast, is a self-limitation on that sovereign power. In the words of Cooley: x x x Although by their constitutions the people have delegated the exercise of sovereign powers to the several departments, they have not thereby divested themselves of the sovereignty. They retain in their own hands, so far as they have thought it needful to do so, a power to control the governments they create, and the three departments are responsible to and subject to be ordered, directed, changed or abolished by them. But this control and direction must be exercised in the legitimate mode previously agreed upon. 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, or which, consistently with the Constitution, have been prescribed and pointed out for them by statute; and if by any portion of the people, however large, an attempt should be made to interfere with the regular working of the agencies of government at any other time or in any other mode than as allowed by existing law, either constitutional or statutory, it would be revolutionary in character, and must be resisted and repressed by the officers who, for the time being, represent legitimate government.25 (Underscoring supplied) Consequently, there is here no case of "the spring rising above its source." Nor is it one where the people's sovereign power has been relegated to a lesser plane than that of Congress. In choosing to exercise self-limitation, there is no absence or lack of even a fraction of the sovereign power of the people since self-limitation itself is an expression of that sovereign power. The people have chosen to delegate and limit their sovereign power by virtue of the Constitution and are bound by the parameters that they themselves have ordained. Otherwise, if the people choose to defy their self-imposed constitutional restraints, we will be faced with a revolutionary situation.26 It has repeatedly been emphasized that ours is a democratic and republican state.27 Even as we affirm, however, that aspect of direct democracy, we should not forget that, first and foremost, we are a constitutional democracy. To uphold direct democracy at the expense of the fundamental law is to sanction, not a constitutional, but an extra-constitutional recourse. This is clearly beyond the powers of the Court who, by sovereign mandate, is the guardian and keeper of the Constitution. IN VIEW OF THE FOREGOING, I vote to DISMISS the petition in G.R. No. 174153. CONSUELO Associate Justice

YNARES-SANTIAGO

____________________ EN BANC G.R. NO. 174153 RAUL L. LAMBINO AND ENRICO B. AUMENTADO TOGETHER WITH 6,327,952 REGISTERED VOTERS, petitioners, vs. THE COMMISSION ON ELECTIONS, respondent. TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), petitioners-intervenors, RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO BAYA, petitioners-intervenors, SULONGBAYAN MOVEMENT FOUNDATION, INC., petitioner-intervenor, PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) AND VICTORINO F. BALAIS,petitioners-intervenors, ONEVOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE AND CARLOS P. MEDINA, JR., oppositors-

intervenors, ALTERNATIVE LAW GROUPS, INC., oppositor-intervenor, ATTY. PETE QUIRINO-QUADRA, oppositor-intervenor, BAYAN, BAYAN MUNA, KILUSANG MAYO UNO, HEAD, ECUMENICAL BISHOPS FROUM, MIGRANTE, GABRIELA, GABRIELA WOMEN'S PARTY, ANAKBAYAN, LEAGUE OF FILIPINO STUDENTS,LEONARDO SAN JOSE, JOJO PINEDA, DR. DARBY SANTIAGO, AND DR. REGINALD PAMUGAS, oppositors-intervenors, LORETA ANN P. ROSALES, MARIO JOYO AGUJA, ANA THERESA HONTIVEROSBARAQUEL, oppositors-intervenors, LUWALHATI ANTONINO, oppositor-intervenor, PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F.ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS AND AMADO GAT INCION, oppositors-intervenors, SENATE MINORITY LEADER AQUILINO P. PIMENTEL, JR. AND SENATORS SERGIO R. OSMENA III, JAMBY A.S. MADRIGAL, LUISA P. EJERCIRO-ESTRADA, JINGGOY ESTRADA, ALFREDO S. LIM, AND PANFILO M. LACSON, oppositors-intervenors, JOSEPH EJERCITO ESTRADA AND PWERSA NG MASANG PILIPINO, oppositorsintervenors, INTEGRATED BAR OF THE PHILIPPINES CEBU CITY AND CEBU CHAPTER, oppositorsintervenors, JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA TANYA KARINA A. LAT, ANTONIO L. SALVADOR AND RANDALL C. TABAYOYONG, oppostors-intervenors, SENATE OF THE PHILIPPINES, REPRESENTED BY ITS PRESIDENT, MANUEL VILLAR, JR., oppositor-intervenor; G.R. NO. 174299 MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. AND RENE A. Q. SAGUISAG, petitioners, vs. COMMISSION ON ELECTIONS, REPRESENTED BY CHAIRMAN BENJAMIN S. ABALOS, SR. AND COMMISSIONERS RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR. ROMEO A. BRAWNER, RENE V. SARMIENTO AND JOHN DOE AND PETER DOE, respondents. x ---------------------------------------------------------------------------------------- x CONCURRING OPINION SANDOVAL–GUTIERREZ, J.: Vox populi vox Dei -- the voice of the people is the voice of God. Caution should be exercised in choosing one's battlecry, lest it does more harm than good to one's cause. In its original context, the complete version of this Latin phrase means exactly the opposite of what it is frequently taken to mean. It originated from a holy man, the monk Alcuin, who advised Charlemagne, "nec audiendi qui solent dicere vox populi vox Dei quum tumultuositas vulgi semper insaniae proxima sit," meaning, "And those people should not be listened to who keep on saying, 'The voice of the people is the voice of God,' since the riotousness of the crowd is always very close to madness."1 Perhaps, it is by providence that the true meaning of the Latin phrase is revealed upon petitioners and their allies – that they may reflect upon the sincerity and authenticity of their "people's initiative." History has been a witness to countless iniquities committed in the name of God. Wars were waged, despotism tolerated and oppressions justified – all these transpired as man boasted of God's imprimatur. Today, petitioners and their allies hum the same rallying call, convincing this Court that the people's initiative is the "voice of the people" and, therefore, the "voice of God." After a thorough consideration of the petitions, I have come to realize that man, with his ingenuity and arrogance, has perfected the craft of imitating the voice of God. It is against this kind of genius that the Court must guard itself. The facts of the case are undisputed.

In 1996, the Movement for People's Initiative sought to exercise the power of initiative under Section 2, Article XVII of the Constitution which reads: Section 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter, The Congress shall provide for the implementation of the exercise of this right. The exercise was thwarted by a petition for prohibition filed with this Court by Senator Miriam Defensor Santiago, et al., entitled "Miriam Defensor Santiago, Alexander Padilla and Maria Isabel Ongpin, petitioners, v. Commission on Elections (COMELEC), Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa, in their capacities as founding members of the People's Initiative for Reforms, Modernization and Action (PIRMA), respondents."2 The case was docketed as G.R. No. 127325. On March 19, 1997, this Court rendered its Decision in favor of petitioners, holding that Republic Act No. 6735 (R.A. No. 6735), An Act Providing for a System of Initiative and Referendum and Appropriating Funds Therefor, is "incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned." A majority of eight (8) Justices fully concurred with this ruling, while five (5) subscribed to the opposite view. One (1) opined that there is no need to rule on the adequacy of R.A. No. 6735. On motion for reconsideration, two (2) of the eight (8) Justices reconsidered their positions. One (1) filed an inhibition and the other one (1) joined the minority opinion. As a consequence, of the thirteen (13) Justices who participated in the deliberation, six (6) voted in favor of the majority opinion, while the other six (6) voted in favor of the minority opinion.3 A few months thereafter, or on September 23, 1997, the Court dismissed a similar case, entitled People's Initiative for Reform, Modernization and Action (PIRMA) v. Commission on Elections4 on the ground that the COMELEC did not commit grave abuse of discretion when it dismissed PIRMA's Petition for Initiative to Propose Amendments to the Constitution "it appearing that that it only complied with the dispositions in the Decision of the Court in G.R. no. 127325 (Santiago v. COMELEC) promulgated on March 19, 1997, and its Resolution of June 10, 1997." Seven (7) Justices voted that there was no need to re-examine its ruling, as regards the issue of the sufficiency of R.A. No. 6735. Another Justice concurred, but on the different premise that the case at bar is not the proper vehicle for such reexamination. Five (5) Justice opined otherwise. This time, another group known as Sigaw ng Bayan, in coordination with the Union of Local Authorities of the Philippines (ULAP), have gathered signatures in support of the proposed amendments to the Constitution, which entail a change in the form of government from bicameral-presidential to unicameral-parliamentary, thus: A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended to read as follows: Section 1. (1) The legislative and executive powers shall be vested in a unicameral Parliament which shall be composed of as many members as may be provided by law, to be apportioned among the provinces, representative districts, and cities in accordance with the number of their respective inhabitants, with at least three hundred thousand inhabitants per district, and on the basis of a uniform and progressive ratio. Each district shall comprise, as far as practicable, contiguous, compact and adjacent territory, and each province must have at least one member. (2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at least twenty-five years old on the day of the election, a resident of his district for at least one year prior thereto, and shall be elected by the qualified voters of his district for a term of five years without limitation as to the number thereof, except those under the party-list

system which shall be provided for by law and whose number shall be equal to twenty per centum of the total membership coming from the parliamentary districts. B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are hereby amended to read, as follows: Section 1. There shall be a President who shall be the Head of State. The executive power shall be exercised by a Prime Minister, with the assistance of the Cabinet. The Prime Minister shall be elected by a majority of all the Members of Parliament from among themselves. He shall be responsible to the Parliament for the program of government. C. For the purpose of insuring an orderly transition from the bicameralPresidential to a unicameral-Parliamentary form of government, there shall be a new Article XVIII, entitled "Transitory Provisions," which shall read, as follows: Section 1. (1) The incumbent President and Vice President shall serve until the expiration of their term at noon on the thirtieth day of June 2010 and shall continue to exercise their powers under the 1987 Constitution unless impeached by a vote of two thirds of all the members of the interim parliament. (2) In case of death, permanent disability, resignation or removal from office of the incumbent President, the incumbent Vice President shall succeed as President. In case of death, permanent disability, resignation or removal from office of both the incumbent President and Vice President, the interim Prime Minister shall assume all the powers and responsibilities of Prime Minister under Article VII as amended. Section 2. Upon the expiration of the term of the incumbent President and Vice President, with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall hereby be amended and Sections 18 and 24 which shall be deleted, all other Sections of Article VI are hereby retained and renumbered sequentially as Section 2, ad seriatium up to 26, unless they are inconsistent with the Parliamentary system of government, in which case, they shall be amended to conform with a unicameral parliamentary form of government; provided, however, that any and all references therein to "Congress," "Senate," "House of Representatives" and "Houses of Congress" shall be changed to read "Parliament;" that any and all references therein to "Member(s) of Congress," "Senator(s)" or "Member(s) of Parliament" and any and all references to the "President" and/or "Acting President" shall be changed to read "Prime Minister." Section 3. Upon the expiration of the term of the incumbent President and Vice President, with the exception of Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution which are hereby be amended and Sections 7, 8, 9, 10, 11 and 12 which are hereby deleted, all other Sections of Article VII shall be retained and renumbered sequentially as Section 2, ad seriatim up to 14, unless they shall be inconsistent with Section 1 hereof, in which case they shall be deemed amended so as to conform to a unicameral Parliamentary System of government; provided, however, that any and all references therein to "Congress," "Senate," "House of Representatives" and "Houses of Congress" shall be changed to read "Parliament;" that any and all references therein to "Member(s) of Congress," "Senator(s)" or "Member(s) of the House of Representatives" shall be changed to read as "Member(s) of Parliament" and any and all references to the "President" and/or "Acting President" shall be changed to read "Prime Minister." Section 4. (1) There shall exist, upon the ratification of these amendments, an interim Parliament which shall continue until the Members of the regular Parliament shall have been elected and shall have qualified. It shall be composed of the incumbent Members of the Senate and the House of Representatives and the incumbent Members of the Cabinet who are heads of executive departments. (2) The incumbent Vice President shall automatically be a Member of Parliament until noon of the thirtieth day of June 2010. He shall also be a member of the cabinet and

shall head a ministry. He shall initially convene the interim Parliament and shall preside over its sessions for the election of the interim Prime Minister and until the Speaker shall have been elected by a majority vote of all the members of the interim Parliament from among themselves. (3) Senators whose term of office ends in 2010 shall be Members of Parliament until noon of the thirtieth day of June 2010. (4) Within forty-five days from ratification of these amendments, the interim Parliament shall convene to propose amendments to, or revisions of, this Constitution consistent with the principles of local autonomy, decentralization and a strong bureaucracy. Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate, from among the members of the interim Parliament, an interim Prime Minister, who shall be elected by a majority vote of the members thereof. The interim Prime Minister shall oversee the various ministries and shall perform such powers and responsibilities as may be delegated to him by the incumbent President." (2) The interim Parliament shall provide for the election of the members of Parliament which shall be synchronized and held simultaneously with the election of all local government officials. The duty elected Prime Minister shall continue to exercise and perform the powers, duties and responsibilities of the interim Prime Minister until the expiration of the term of the incumbent President and Vice President. Sigaw ng Bayan prepared signature sheets, and written on its upper right hand portion is the abstract of the proposed amendments, quoted as follows: Abstract: Do you approve of the amendment of Article VI and VII of the 1987 Constitution, changing the form of government from the present bicameral-presidential to a unicameral-parliamentary system of government, in order to achieve greater efficiency, simplicity and economy in government; and providing an Article XVIII as Transitory Provisions for the orderly shift from one system to another? On August 25, 2006, Raul L. Lambino and Enrico B. Aumentado, herein petitioners, filed with the COMELEC a Petition for Initiative to Amend the Constitution.5 Five (5) days thereafter, they filed an Amended Petition alleging that they are filing the petition in their own behalf and together with some 6.3 million registered voters who have affixed their signatures on the signature sheets attached thereto. They claimed that the signatures of registered voters appearing on the signature sheets, constituting at least twelve per cent (12%) of all registered voters in the country, wherein each legislative district is represented by at least three per cent (3%) of all the registered voters, were verified by their respective city or municipal election officers. Several organizations opposed the petition. 6 In a Resolution dated August 31, 2006, the COMELEC denied due course to the petition, citing as basis this Court's ruling in Santiago, permanently enjoining it "from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system." Hence, the present petition for certiorari and mandamus praying that this Court set aside the COMELEC Resolution and direct the latter tocomply with Section 4, Article XVII of the Constitution, which provides: Sec. 4 x x x Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the certification by the Commission on Elections of the sufficiency of the petition.

I vote to dismiss the petition of Lambino, et al. in G.R. No. 174153 and grant the petition of Marlen Abigail Binay, et al. in G.R. No. 174299. Here, petitioners pray that the COMELEC Chairman and Commissioners be required to show why they should not be punished for contempt7 of court for disregarding the permanent injunction issued by this Court in Santiago. I Respondent COMELEC did not act with grave abuse of discretion Without necessarily brushing aside the other important issues, I believe the resolution of the present petition hinges on this singular issue -- did the COMELEC commit grave abuse of discretion when it denied Lambino, et al.'s petition for initiative to amend the Constitution on the basis of this Court's Decision in Santiago v. COMELEC? In other words, regardless of how the other remaining issues are resolved, still, the ultimate yardstick is the attendance of "grave abuse of discretion" on the part of the COMELEC. Jurisprudence teaches that an act of a court or tribunal may only be considered as committed in grave abuse of discretion when the same was performed in a capricious or whimsical exercise of judgment. The abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty or to 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 personal hostility.8 The Resolution of respondent COMELEC denying due course to the petition for initiative on the basis of a case (Santiago) decided by this Court cannot, in any way, be characterized as "capricious or whimsical," "patent and gross," or "arbitrary and despotic." On the contrary, it was the most prudent course to take. It must be stressed that in Santiago, this Court permanently enjoins respondent COMELEC "from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted." It being a fact that Congress has not enacted a sufficient law, respondent COMELEC has no alternative but to adhere to Santiago. Otherwise, it is vulnerable to a citation for contempt. As succinctly stated by Chief Justice Artemio V. Panganiban (then Associate Justice) in his Separate Opinion in the subsequent case of PIRMA vs. COMELEC:9 x x x I cannot fault the Comelec for complying with the ruling even if it, too, disagreed with said decision's ratio decidendi. Respondent Comelec was directly enjoined by the highest Court of the land. It had no choice but to obey. Its obedience cannot constitute grave abuse of discretion. Refusal to act on the PIRMA petition was the only recourse open to the Comelec. Any other mode of action would have constituted defiance of the Court and would have been struck down as grave abuse of discretion and contumacious disregard of this Court's supremacy as the final arbiter of justiciable controversies. It need not be emphasized that in our judicial hierarchy, this Court reigns supreme. All courts, tribunals and administrative bodies exercising quasi-judicial functions are obliged to conform to its pronouncements. It has the last word on what the law is; it is the final arbiter of any justifiable controversy. In other words, there is only one Supreme Court from whose decisions all other courts should take their bearings.10 As a warning to lower court judges who would not adhere to its rulings, this Court, in People v. Santos,11 held: Now, if a judge of a lower Court feels, in the fulfillment of his mission of deciding cases, that the application of a doctrine promulgated by this Superiority is against his way of reasoning, or against his conscience, he may state his opinion on the matter, but rather than disposing of the case in accordance with his personal views he must first think that it is his duty to apply the law as interpreted by the Highest Court of the Land, and that any deviation from a principle laid down by the latter would unavoidably cause, as a sequel, unnecessary inconveniences, delays and expenses to the litigants. And if despite of what is here said, a Judge still believes that he cannot follow Our rulings, then he has no other alternative than to place himself in the position that he could properly avoid the duty of having to render judgment on the case concerned (Art. 9, C.C.), and he has only one legal way to do that.

Clearly, respondent COMELEC did not gravely abuse its discretion in dismissing the petition of Lambino, et al. for it merely followed this Court's ruling in Santiago. Significantly, in PIRMA vs. COMELEC,12 a unanimous Court implicitly recognized that its ruling in Santiago is the established doctrine and that the COMELEC did not commit grave abuse of discretion in invoking it, thus: The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be attributed to the public respondent COMELEC in dismissing the petition filed by PIRMA therein, it appearing that it only complied with the dispositions of this Court in G.R. No. 127325 promulgated on March 19, 1997, and its resolution on June 10, 1997. Indeed, I cannot characterize as a "grave abuse of discretion" the COMELEC's obedience and respect to the pronouncement of this Court in Santiago. II The doctrine bars the re-examination of Santiago

of

stare

decisis

It cannot be denied that in Santiago, a majority of the members of this Court or eight (8) Justices (as against five (5) Justices) concurred in declaring R.A. No. 6735 an insufficient law. When the motion for reconsideration was denied via an equally-divided Court or a 6-6 vote, it does not mean that the Decision was overturned. It only shows that the opposite view fails to muster enough votes to modify or reverse the majority ruling. Therefore, the original Decision was upheld.13 In Ortigas and Company Limited Partnership vs. Velasco,14 this Court ruled that the denial of a motion or reconsideration signifies that the ground relied upon have been found, upon due deliberation, to be without merit, as not being of sufficient weight to warrant a modification of the judgment or final order. With Santiago being the only impediment to the instant petition for initiative, petitioners persistently stress that the doctrine of stare decisis does not bar its re-examination. I am not convinced. The maxim stare decisis et non quieta movere translates "stand by the decisions and disturb not what is settled."15 As used in our jurisprudence, it means that "once this Court has laid down a principle of law as applicable to a certain state of facts, it would adhere to that principle and apply it to all future cases in which the facts are substantially the same as in the earlier controversy."16 There is considerable literature about whether this doctrine of stare decisis is a good or bad one, but the doctrine is usually justified by arguments which focus on the desirability of stability and certainty in the law and also by notions of justice and fairness. Justice Benjamin Cardozo in his treatise, The Nature of the Judicial Process stated: It will not do to decide the same question one way between one set of litigants and the opposite way between another. 'If a group of cases involves the same point, the parties expect the same decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case was decided against me yesterday when I was a defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my rights." Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts.17 That the doctrine of stare decisis is related to justice and fairness may be appreciated by considering the observation of American philosopher William K. Frankena as to what constitutes injustice: The paradigm case of injustice is that in which there are two similar individuals in similar circumstances and one of them is treated better or worse than the other. In this case, the cry of injustice rightly goes up against the responsible agent or group; and unless that agent or group can establish that there is some relevant dissimilarity after all

between the individuals concerned and their circumstances, he or they will be guilty as charged.18 Although the doctrine of stare decisis does not prevent re-examining and, if need be, overruling prior decisions, "It is x x x a fundamental jurisprudential policy that prior applicable precedent usually must be followed even though the case, if considered anew, might be decided differently by the current justices. This policy x x x 'is based on the assumption that certainty, predictability and stability in the law are the major objectives of the legal system; i.e., that parties should be able to regulate their conduct and enter into relationships with reasonable assurance of the governing rules of law.19 Accordingly, a party urging overruling a precedent faces a rightly onerous task, the difficulty of which is roughly proportional to a number of factors, including the age of the precedent, the nature and extent of public and private reliance on it, and its consistency or inconsistency with other related rules of law. Here, petitioners failed to discharge their task. Santiago v. COMELEC was decided by this Court on March 19, 1997 or more than nine (9) years ago. During that span of time, the Filipino people, specifically the law practitioners, law professors, law students, the entire judiciary and litigants have recognized this Court's Decision as a precedent. In fact, the Santiago doctrine was applied by this Court in the subsequent case of PIRMA. Even the legislature has relied on said Decision, thus, several bills have been introduced in both Houses of Congress to cure the deficiency. I cannot fathom why it should be overturned or set aside merely on the basis of the petition of Lambino, et al. Indeed, this Court's conclusion in Santiago that R.A. No. 6735 is incomplete, inadequate or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned remains a precedent and must be upheld. III The proposed constitutional changes constitute revisions and not mere amendments Article XVII of the 1987 Constitution lays down the means for its amendment and revision. Thus: Section 1. Any amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its members; or (2) A Constitutional Convention. Section 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered votes, of which every legislative district must be represented by at least three per centum of the registered voters therein. x x x. (Emphasis supplied) At the outset, it must be underscored that initiative and referendum, as means by which the people can directly propose changes to the Constitution, were not provided for in the 1935 and 1973 Constitutions. Thus, under these two (2) Constitutions, there was no demand to draw the distinction between an amendment and a revision, both being governed by a uniform process. This is not so under our present Constitution. The distinction between an amendment and a revision becomes crucial because only amendments are allowed under the system of people's initiative. Revisions are within the exclusive domain of Congress, upon a vote of three-fourths of all its members, or of a Constitutional Convention. The deliberations of the 1986 Constitutional Commission is explicit that Section 2, Article XVII covers only amendments, thus: The sponsor, Commissioner Suarez, is recognized. MR. SUAREZ: Thank you, Madam President. May we respectfully call the attention of the Members of the Commission that pursuant to the mandate given us last night, we submitted this afternoon a complete Committee Report No. 7 which embodies the proposed provision governing initiative. This is now

covered by Section 2 of the complete committee report. With the permission of the Members, may I quote Section 2: The people may, after five years from the date of the last plebiscite held, directly propose amendments to this Constitution thru initiative upon petition of at least ten percent of the registered voters. This completes the blanks appearing in the original Committee Report No. 7. This proposal was suggested on the theory that this matter of initiative which came about because of the extraordinary developments this year, has to be separated from the traditional modes of amending the Constitution as embodied in Section 1. The committee members felt that this system of initiative should be limited to amendments to the Constitution and should not extend to the revision of the entire Constitution, so we removed it from the operation of Section 1 of the proposed Article on Amendment or Revision. xxx xxx xxx MR. MAAMBONG: Madam President, will the distinguished proponent of the amendment yield to a few questions? MR. DAVIDE: With pleasure, Madam President. MR. MAAMBONG: My first question, Commissioner Davide's proposed amendment on line I refers to "amendments." Does it not cover the word "revision" as defined by Commissioner Padilla when he made the distinction between the words "amendments" and "revision?" MR. DAVIDE: No, it does not, because "amendments" and "revision" should be covered by Section 1. So insofar as initiative is concerned, it can only relate to "amendments" not "revision" MR. MAAMBONG: Thank you.20 Considering that the initiative on the Constitution only permits amendments, it is imperative to examine whether petitioners' proposed changes partake of the nature of amendments, not revisions. The petition for initiative filed with the COMELEC by Lambino, et al. sought to amend the following provisions of the 1987 Constitution: Sections 1, 2, 3, 4, 5, 6, and 7 of Article VI (The Legislative Department); Sections 1, 2, 3 and 4 of Article VII (The Executive Department). It further includes Article XVIII (Transitory Provisions) for the purpose of insuring an orderly transition from the bicameral-presidential to a unicameral-parliamentary form of government. Succinctly, the proposals envision a change in the form of government, from bicameralpresidential to unicameral-parliamentary; conversion of the present Congress of the Philippines to an Interim National Assembly; change in the terms of Members of Parliament; and the election of a Prime Minister who shall be vested with executive power. Petitioners contend that the proposed changes are in the nature of amendments, hence, within the coverage of a "people's initiative." I disagree. The noted constitutionalist, Father Joaquin G. Bernas, S.J., who was also a member of the 1986 Constitutional Commission, characterized an amendment and a revision to the Constitution as follows: An amendment envisages an alteration of one or a few specific and separable provisions. The guiding original intention of an amendment is to improve specific parts or to add new provisions deemed necessary to meet new conditions or to suppress

specific portions that may have become obsolete or that are judged to be dangerous. In revision however, the guiding original intention and plan contemplates a reexamination of the entire document, or of provisions of the document which have over-all implications for the document to determine how and to what extent they should be altered.21 Obviously, both "revision" and amendment" connote change; any distinction between the two must be based upon the degree of change contemplated. In Kelly v. Laing,22 the Supreme Court of Michigan made the following comparison of the two terms: "Revision" and "amendment" have the common characteristics of working changes in the charter, and are sometimes used in exactly the same sense but there is an essential difference between them. "Revision" implies a reexamination of the whole law and a redraft without obligation to maintain the form, scheme, or structure of the old. As applied to fundamental law, such as a constitution or charter, it suggests a convention to examine the whole subject and to prepare and submit a new instrument whether the desired changes from the old are few or many. Amendment implies continuance of the general plan and purpose of the law, with corrections to better accomplish its purpose. Basically, revision suggests fundamental change, while amendment is a correction of detail. Although there are some authorities which indicate that a change in a city's form of government may be accomplished by a process of "amendment," the cases which so hold seem to involve statutes which only distinguish between amendment and totally new charters.23 However, as in Maine law, where the statute authorizing the changes distinguishes between "charter amendment" and "charter revision," it has been held that "(a) change in the form of government of a home rule city may be made only by revision of the city charter, not by its amendment."24 In summary, it would seem that any major change in governmental form and scheme would probably be interpreted as a "revision" and should be achieved through the more thorough process of deliberation. Although, at first glance, petitioners' proposed changes appear to cover isolated and specific provisions only, however, upon careful scrutiny, it becomes clear that the proposed changes will alter the very structure of our government and create multifarious ramifications. In other words, the proposed changes will have a "domino effect" or, more appropriately, "ripple effect" on other provisions of the Constitution. At this juncture, it must be emphasized that the power reserved to the people to effect changes in the Constitution includes the power to amend anysection in such a manner that the proposed change, if approved, would "be complete within itself, relate to one subject and not substantially affect any other section or article of the Constitution or require further amendments to the Constitution to accomplish its purpose."25 This is clearly not the case here. Firstly, a shift from a presidential to a parliamentary form of government affects the wellenshrined doctrine of separation of powers of government, embodied in our Constitution, by providing for an Executive, Legislative and Judiciary Branches. In a Parliamentary form of government, the Executive Branch is to a certain degree, dependent on the direct or indirect support of the Parliament, as expressed through a "vote of confidence." To my mind, this doctrine of separation of powers is so interwoven in the fabric of our Constitution, that any change affecting such doctrine must necessarily be a revision. In McFadden vs. Jordan,26 the California Supreme Court ruled as follows: It is thus clear that that a revision of the Constitution may be accomplished only through ratification by the people of a revised constitution proposed by a convention called for that purpose x x x. Consequently, if the scope of the proposed initiative measure

now before us is so broad that if such measure became law a substantial revision of our present state Constitution would be effected, then the measure may not properly be submitted to the electorate until and unless it is first agreed upon by a constitutional convention. x x x. Secondly, the shift from a bicameral to a unicameral form of government is not a mere amendment, but is in actuality a revision, as set forth in Adams v. Gunter27: The proposal here to amend Section I of Article III of the 1968 Constitution to provide for a Unicameral Legislature affects not only many other provisions of the Constitution but provides for a change in the form of the legislative branch of government, which has been in existence in the United States Congress and in all of the states of the nation, except one, since the earliest days. It would be difficult to visualize a more revolutionary change. The concept of a House and a Senate is basic in the American form of government. It would not only radically change the whole pattern of the government in this state and tear apart the whole fabric of the Constitution, but would even affect the physical facilities necessary to carry on government. Thirdly, the proposed changes, on their face, signify revisions rather than amendments, especially, with the inclusion of the following "omnibus provision": C. For the purpose of insuring an orderly transition from the bicameral-Presidential to a unicameral-Parliamnetary form of government, there shall be a new Article XVIII, entitled "Transitory Provisions" which shall read, as follows: xxxxxxxxx Section 3. Upon the expiration of the term of the incumbent President and VicePresident, with the exceptions of Section 1,2,3 and 4 of Article VII of the 1987 Constitution which are hereby amended x x x x x x and all other Sections of Article VII shall be retained and numbered sequentially as Section 2, ad seriatim up to 14,unless they shall be inconsistent with Section 1 hereof, in which case they shall be deemed amended so as to conform to a unicameral Parliamentary system of government x x x x x x . xxxxxxxxx Section 4. (1) x x x (3) Within forty-five days from ratification of these amendments, the Interim Parliament shall convene to propose amendments to, or revisions of, this Constitution, consistent with the principles of local autonomy, decentralization and a strong bureaucracy. The above provisions will necessarily result in a "ripple effect" on the other provisions of the Constitution to make them conform to the qualities of unicameral-parliamentary form of government. With one sweeping stroke, these proposed provisions automatically revise some provisions of the Constitution. In McFadden, the same practice was considered by the Court to be in the nature of substantial revision, necessitating a constitutional convention. I quote the pertinent portion of its ruling, thus: There is in the measure itself, no attempt to enumerate the various and many articles and sections of our present Constitution which would be affected, replaced or repealed. It purports only to add one new article but its framers found it necessary to include the omnibus provision (subdivision (7) of section XII) that "If any section, subsection, sentence, clause or phrase of the constitution is in conflict with any of the provisions of this article, such section, subsection, sentence, clause, or phrase is to the extent of such conflict hereby repealed. x x x Consequently, if the scope of the proposed intitiative measure now before us is so broad that if such measure become law a substantial revision of our present state Constitution would be be effected, then the measure may

not properly be submitted to the electorate until and unless it is first agreed upon by a constitutional convention.28 Undoubtedly, the changes proposed by the petitioners are not mere amendments which will only affect the Articles or Sections sought to be changed. Rather, they are in the nature of revisions which will affect considerable portions of the Constitution resulting in the alteration of our form of government. The proposed changes cannot be taken in isolation since these are connected or "interlocked" with the other provisions of our Constitution. Accordingly, it has been held that: "If the changes attempted are so sweeping that it is necessary to include the provisions interlocking them, then it is plain that the plan would constitute a recasting of the whole Constitution and this, we think, it was intended to be accomplished only by a convention under Section 2 which has not yet been disturbed."29 I therefore conclude that since the proposed changes partake of the nature of a revision of the Constitution, then they cannot be the subject of an initiative. On this matter, Father Bernas expressed this insight: But why limit initiative and referendum to simple amendments? The answer, which one can easily glean from the rather long deliberation on initiative and referendum in the 1986 Constitutional Commission, is practicality. In other words, who is to formulate the revision or how is it to be formulated? Revision, as concretely being proposed now, is nothing less than a rebuilding of the Philippine constitutional structure. Who were involved in formulating the structure? What debates ensued? What records are there for future use in interpreting the provisions which may be found to be unclear? In a deliberative body like Congress or a Constitutional Convention, decisions are reached after much purifying debate. And while the deliberations proceed, the public has the opportunity to get involved. It is only after the work of an authorized body has been completed that it is presented to the electorate for final judgment. Careful debate is important because the electorate tends to accept what is presented to it even sight unseen.30 IV R.A. No. 6735 is insufficient to implement the People's initiative Section 2, Article XVII of the 1987 Constitution reads: Section 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter, The Congress shall provide for the implementation of the exercise of this right. On its face, Section 2 is not a self-executory provision. This means that an enabling law is imperative for its implementation. Thus, Congress enacted R.A. No. 6735 in order to breathe life into this constitutional provision. However, as previously narrated, this Court struck the law in Santiago for being incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. The passage of time has done nothing to change the applicability of R.A. No. 6735. Congress neither amended it nor passed a new law to supply its deficiencies. Notwithstanding so, this Court is being persuaded to take a 360-degree turn, enumerating three (3) justifications why R.A. No. 6735 must be considered a sufficient law, thus: 1) The text of R.A. No. 6735 is replete with references to the right of people to initiate changes to the Constitution;

2) The legislative history of R.A. No. 6735 reveals the clear intent of the lawmakers to use it as instrument to implement the people's initiative; and 3) The sponsorship speeches by the authors of R.A. No. 6735 demonstrate the legislative intent to use it as instrument to implement people's initiative. I regret to say that the foregoing justifications are wanting. A thorough reading of R.A. No. 6735 leads to the conclusion that it covers only initiatives on national and local legislation. Its references to initiatives on the Constitution are few, isolated and misplaced. Unlike in the initiatives on national and local legislation, where R.A. No. 6735 provides a detailed, logical, and exhaustive enumeration on their implementation,31 however, as regards initiative on the Constitution, the law merely: (a) mentions the word "Constitution" in Section 2;32 (b) defines "initiative on the Constitution" and includes it in the enumeration of the three systems of initiative in Section 3;33 (c) speaks of "plebiscite" as the process by which the proposition in an initiative on the Constitution may be approved or rejected by the people;34 (d) reiterates the constitutional requirements as to the number of voters who should sign the petition;35 and (e) provides the date for the effectivity of the approved proposition.36 In other words, R.A. No. 6735 does not specify the procedure how initiative on the Constitution may be accomplished. This is not the enabling law contemplated by the Constitution. As pointed out by oppositor-intervenor Alternative Law Groups Inc., since the promulgation of the Decision in Santiago, various bills have been introduced in both Houses of Congress providing for a complete and adequate process for people's initiative, such as: · Names, signatures and addresses of petitioners who shall be registered voters; · A statement of the provision of the Constitution or any part thereof sought to be amended and the proposed amendment; · The manner of initiation - in a congressional district through a petition by any individual, group, political party or coalition with members in the congressional district; · The language used: the petition should be printed in English and translated in the local language; · Signature stations to be provided for; · Provisions pertaining to the need and manner of posting, that is, after the signatures shall have been verified by the Commission, the verified signatures shall be posted for at least thirty days in the respective municipal and city halls where the signatures were obtained; · Provisions pertaining to protests allowed any protest as to the authenticity of the signatures to be filed with the COMELEC and decided within sixty (60) days from the filing of said protest. None of the above necessary details is provided by R.A. No. 6735, thus, demonstrating its incompleteness and inadequacy.

V Petitioners are File the Petition for Initiative

not

Proper

Parties

to

VI The Petition for Initiative Filed with the COMELEC Does not Comply with Section 2, Article XVII of the Constitution and R.A. No. 6735 I shall discuss the above issues together since they are interrelated and inseparable. The determination of whether petitioners are proper parties to file the petition for initiative in behalf of the alleged 6.3 million voters will require an examination of whether they have complied with the provisions of Section 2, Article XVII of the Constitution. To reiterate, Section 2, Article XVII of the Constitution provides: Section 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right. (Underscoring supplied) The mandate of the above constitutional provisions is definite and categorical. For a people's initiative to prosper, the following requisites must be present: 1. It is "the people" themselves who must "directly propose" "amendments" to the Constitution; 2. The proposed amendments must be contained in "a petition of at least twelve per centum of the total number of registered voters;" and 3. The required minimum of 12% of the total number of registered voters "must be represented by at least three per centum of the registered voters" of "every legislative district." In this case, however, the above requisites are not present. The petition for initiative was filed with the COMELEC by petitioners Lambino and Aumentado, two registered voters. As shown in the "Verification/Certification with Affidavit of Non-Forum Shopping" contained in their petition, they alleged under oath that they have caused the preparation of the petition in their personal capacity as registered voters "and as representatives" of the supposed 6.3 million registered voters. This goes to show that the questioned petition was not initiated directly by the 6.3 million people who allegedly comprised at least 12% of the total number of registered voters, as required by Section 2. Moreover, nowhere in the petition itself could be found the signatures of the 6.3 million registered voters. Only the signatures of petitioners Lambino and Aumentado were affixed therein "as representatives" of those 6.3 million people. Certainly, that is not the petition for people's initiative contemplated by the Constitution. Petitioners Lambino and Aumentado have no authority whatsoever to file the petition "as representatives" of the alleged 6.3 million registered voters. Such act of representation is constitutionally proscribed. To repeat, Section 2 strictly requires that amendments to the Constitution shall be "directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters." Obviously, the phrase "directly proposed by the people" excludes any person acting as representative or agent of the 12% of the total number of registered voters. The Constitution has bestowed upon the people the right to directly propose amendments to the Constitution. Such right cannot be usurped by anyone under the guise of being the people's representative. Simply put, Section 2 does not

recognize acts of representation. For it is only "the people" (comprising the minimum of 12% of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein) who are the proper parties to initiate a petition proposing amendments to the Constitution. Verily, the petition filed with the COMELEC by herein petitioners Lambino and Aumentado is not a people's initiative. Necessarily, it must fail. Cororarilly, the plea that this Court should "hear" and "heed" "the people's voice" is baseless and misleading. There is no people's voice to be heard and heeded as this petition for initiative is not truly theirs, but only of petitioners Lambino and Aumentado and their allies. VII The issues at bar are not political questions. Lambino and Aumentado, petitioners in G.R. No. 174153, vehemently argue that: (1) "the validity of the exercise of the right of the sovereign people to amend the Constitution and their will, as expressed by the fact that over six million registered voters indicated their support of the Petition for initiative is a purely political question;" and (2) "[t]he power to propose amendments to the Constitution is a right explicitly bestowed upon the sovereign people. Hence, the determination by the people to exercise their right to propose amendments under the system of initiative is a sovereign act and falls squarely within the ambit of a political question." The "political question doctrine" was first enunciated by the US Supreme Court in Luther v. Borden.37 Faced with the difficult question of whether the Supreme Court was the appropriate institution to define the substantive content of republicanism, the US Supreme Court, speaking thru Mr. Justice Roger B. Taney, concluded that "the sovereignty in every State resides in the people, as to how and whether they exercised it, was under the circumstances of the case, a political question to be settled by the political power." In other words, the responsibility of settling certain constitutional questions was left to the legislative and executive branches of the government. The Luther case arose from the so-called "Dorr Rebellion" in the State of Rhode Island. Due to increased migration brought about by the Industrial Revolution, the urban population of Rhode Island increased. However, under the 1663 Royal Charter which served as the State Constitution, voting rights were largely limited to residents of the rural districts. This severe malapportionment of suffrage rights led to the "Dorr Rebellion." Despairing of obtaining remedies for their disenfranchisement from the state government, suffrage reformers invoked their rights under the American Declaration of Independence to "alter or abolish" the government and to institute a new one. The reformers proceeded to call for and hold an extralegal constitutional convention, drafted a new State Constitution, submitted the document for popular ratification, and held elections under it. The State government, however, refused to cede power, leading to an anomalous situation in that for a few months in 1842, there were two opposing state governments contending for legitimacy and possession of state of offices. The Rhode Island militia, under the authority of martial law, entered and searched the house of Martin Luther, a Dorr supporter. He brought suit against Luther Borden, a militiaman. Before the US Supreme Court, Luther's counsel argued that since the State's archaic Constitution prevented a fair and peaceful address of grievances through democratic processes, the people of Rhode Island had instead chosen to exercise their inherent right in popular sovereignty of replacing what they saw as an oppressive government. The US Supreme Court deemed the controversy as non-justiciable and inappropriate for judicial resolution. In Colgrove v. Green,38 Mr. Justice Felix Frankfurter, coined the phrase "political thicket" to describe situations where Federal courts should not intervene in political questions which they have neither the competence nor the commission to decide. In Colgrove, the US Supreme Court, with a narrow 4-3 vote branded the apportionment of legislative districts in Illinois "as a political question and that the invalidation of the districts might, in requiring statewide elections, create an evil greater than that sought to be remedied."

While this Court has adopted the use of Frankfurter's "political thicket," nonetheless, it has sought to come up with a definition of the term "political question." Thus, in Vera v. Avelino,39 this Court ruled that properly, political questions are "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 the government." In Tañada and Macapagal v. Cuenco,40 the Court held that the term political question connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy. It is concerned with issues dependent upon the wisdom, not legality, of a particular measure. In Aquino v. Enrile,41 this Court adopted the following guidelines laid down in Baker v. Carr42 in determining whether a question before it is political, rather than judicial in nature, to wit: 1) there is a textually demonstrable constitutional commitment of the issue to a coordinate political department; or 2) there is a lack of judicially discoverable and manageable standards for resolving it; or 3) there is the sheer impossibility of deciding the matter without an initial policy determination of a kind clearly for non-judicial discretion; or 4) there is the sheer impossibility of the Court's undertaking an independent resolution without expressing lack of respect due the coordinate branches of government; or 5) there is an unusual need for unquestioning adherence to a political decision already made; or 6) there exists the potentiality of embarrassment pronouncements by various departments on one question.

arising

from

multifarious

None of the foregoing standards is present in the issues raised before this Court. Accordingly, the issues are justiciable. What is at stake here is the legality and not the wisdom of the act complained of. Moreover, even assuming arguendo that the issues raised before this Court are political in nature, it is not precluded from resolving them under its expanded jurisdiction conferred upon it by Section 1, Article VIII of the Constitution, following Daza v. Singson.43 As pointed out in Marcos v. Manglapus,44 the present Constitution limits resort to the political question doctrine and broadens the scope of judicial power which the Court, under previous charters, would have normally and ordinarily left to the political departments to decide. CONCLUSION In fine, considering the political scenario in our country today, it is my view that the so-called people's initiative to amend our Constitution from bicameral-presidential to unicameralparliamentary is actually not an initiative of the people, but an initiative of some of our politicians. It has not been shown by petitioners, during the oral arguments in this case, that the 6.3 million registered voters who affixed their signatures understood what they signed. In fact, petitioners admitted that the Constitutional provisions sought to be amended and the proposed amendments were not explained to all those registered voters. Indeed, there will be no means of knowing, to the point of judicial certainty, whether they really understood what petitioners and their group asked them to sign. Let us not repeat the mistake committed by this Court in Javellana v. The Executive Secretary.45 The Court then ruled that "This being the vote of the majority, there is no further judicial obstacle to the new Constitution being considered in force and effect," although it had notice that the Constitution proposed by the 1971 Constitutional Convention was not validly ratified by the people in accordance with the 1935 Constitution. The Court concluded, among others, that the viva voce voting in the Citizens' Assemblies "was and is null and void ab initio." That was during martial law when perhaps majority of the justices were scared of the dictator. Luckily at present, we are not under a martial law regime. There is, therefore, no reason why

this Court should allow itself to be used as a legitimizing authority by the so-called people's initiative for those who want to perpetuate themselves in power. At this point, I can say without fear that there is nothing wrong with our present government structure. Consequent1y, we must not change it. America has a presidential type of government. Yet, it thrives ideally and has become a super power. It is then safe to conclude that what we should change are some of the people running the government, NOT the SYSTEM. According to petitioners, the proposed amendment would effect a more efficient, more economical and more responsive government. Is there hope that a new breed of politicians, more qualified and capable, may be elected as members and leaders of the unicameral-parliament? Or will the present members of the Lower House continue to hold their respective positions with limitless terms? Will the new government be more responsive to the needs of the poor and the marginalized? Will it be able to provide homes for the homeless, food for the hungry, jobs for the jobless and protection for the weak? This is a defining moment in our history. The issue posed before us is crucial with transcendental significance. And history will judge us on how we resolve this issue – shall we allow the revision of our Constitution, of which we are duty bound to guard and revere, on the basis of a doubtful people's initiative? Amending the Constitution involving a change of government system or structure is a herculean task affecting the entire Filipino people and the future generations. Let us, therefore, entrust this duty to more knowledgeable people elected as members of a Constitutional Convention. Yes, the voice of the people is the voice of God. But under the circumstances in this case, the voice of God is not audible. WHEREFORE, I vote to DISMISS the petition in G.R. No. 174153 and to GRANT the petition in G.R. No. 174299. ANGELINA Associate Justice

SANDOVAL-GUTIERREZ

____________________ EN BANC G.R. No. 174153 RAUL L. LAMBINO and ERICO B. AUMENTADO, together with 6,327,952 REGISTERED VOTERS, petitioners, vs. THE COMMISSION ON ELECTIONS, respondent. G.R. No. 174299 MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and RENE A.Q. SAGUISAG, petitioners, vs. THE COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, SR., and Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and JOHN DOE and PETER DOE, respondents. x ---------------------------------------------------------------------------------------- x

SEPARATE CONCURRING OPINION CALLEJO, SR., J.: I am convinced beyond cavil that the respondent Commission on Elections (COMELEC) did not commit an abuse of its discretion in dismissing the amended petition before it. The proposals of petitioners incorporated in said amended petition are for the revision of the 1987 Constitution. Further, the amended petition before the respondent COMELEC is insufficient in substance. The Antecedents On August 25, 2006, petitioners Raul L. Lambino and Erico B. Aumentado filed with the COMELEC a petition entitled "IN THE MATTER OF PROPOSING AMENDMENTS TO THE 1987 CONSTITUTION THROUGH A PEOPLE'S INITIATIVE: A SHIFT FROM A BICAMERAL PRESIDENTIAL TO A UNICAMERAL PARLIAMENTARY GOVERNMENT BY AMENDING ARTICLES VI AND VII; AND PROVIDING TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM THE PRESIDENTIAL TO THE PARLIAMENTARY SYSTEM." The case was docketed as EM (LD)-06-01. On August 30, 2006, petitioners filed an amended petition. For brevity, it is referred to as the petition for initiative. Petitioners alleged therein, inter alia, that they filed their petition in their own behalf and together with those who have affixed their signatures to the signature sheets appended thereto who are Filipino citizens, residents and registered voters of the Philippines, and they constitute at least twelve percent (12%) of all the registered voters in the country, wherein each legislative district is represented by at least three percent (3%) of all the registered voters therein. Petitioners further alleged therein that the filing of the petition for initiative is based on their constitutional right to propose amendments to the 1987 Constitution by way of people's initiative, as recognized in Section 2, Article XVII thereof, which provides: SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right." According to petitioners, while the above provision states that "(T)he Congress shall provide for the implementation of the exercise of this right," the provisions of Section 5(b) and (c), along with Section 7 of Republic Act (RA) 6735,1are sufficient enabling details for the people's exercise of the power. The said sections of RA 6735 state: Sec. 5. Requirements. – (a) To exercise the power x x x (b) A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein. Initiative on the Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five (5) years thereafter. (c) The petition shall state the following: c.1. contents or text of the proposed law sought to be enacted, approved or rejected, amended or repealed, as the case may be; c.2. the proposition; c.3. the reason or reasons therefor;

c.4. that it is not one of the exceptions provided herein; c.5. signatures of the petitioners or registered voters; and c.6. an abstract or summary in not more than one hundred (100) words which shall be legibly written or printed at the top of every page of the petition. xxxx Sec. 7. Verification of Signatures. – The Election Registrar shall verify the signatures on the basis of the registry list of voters, voters' affidavits and voters identification cards used in the immediately preceding election. They also alleged that the COMELEC has the authority, mandate and obligation to give due course to the petition for initiative, in compliance with the constitutional directive for the COMELEC to "enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall."2 Petitioners incorporated in their petition for initiative the changes they proposed to be incorporated in the 1987 Constitution and prayed that the COMELEC issue an order: 1. Finding the Petition to be sufficient pursuant to Section 4, Article XVII of the 1987 Constitution; 2. Directing the publication of the Petition in Filipino and English at least twice in newspapers of general and local circulation; and 3. Calling a plebiscite to be held not earlier than sixty nor later than ninety days after the Certification by this Honorable Commission of the sufficiency of this Petition, to allow the Filipino people to express their sovereign will on the proposition. Petitioners pray for such other reliefs deemed just and equitable in the premises. The Ruling of the respondent COMELEC On August 31, 2006, the COMELEC promulgated the assailed Resolution denying due course and dismissing the petition for initiative. The COMELEC ruled that: We agree with the petitioners that this Commission has the solemn Constitutional duty to enforce and administer all laws and regulations relative to the conduct of, as in this case, initiative. This mandate, however, should be read in relation to the other provisions of the Constitution particularly on initiative. Section 2, Article XVII of the 1987 Constitution provides: "Sec. 2. Amendments to this Constitution may, likewise, be directly proposed by the people through initiative, upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. x x x. The Congress shall provide for the implementation of the exercise of this right." The aforequoted provision of the Constitution being a non-self-executory provision needed an enabling law for its implementation. Thus, in order to breathe life into the constitutional right of the people under a system of initiative to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolution, Congress enacted RA 6735.

However, the Supreme Court, in the landmark case of Santiago v. Commission on Elections struck down the said law for being incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned The Supreme Court, likewise, declared that this Commission should be permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system. Thus, even if the signatures in the instant Petition appear to meet the required minimum per centum of the total number of registered voters, of which every legislative district is represented by at least three per centum of the registered voters therein, still the Petition cannot be given due course since the Supreme Court categorically declared RA 6735 as inadequate to cover the system of initiative on amendments to the Constitution. This Commission is not unmindful of the transcendental importance of the right of the people under a system of initiative. However, neither can we turn a blind eye to the pronouncement of the High Court that in the absence of a valid enabling law, this right of the people remains nothing but an "empty right," and that this Commission is permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution. (Citations omitted.) Aggrieved, petitioners elevated the case to this for certiorari and mandamus under Rule 65 of the Rules of Court.

Court

on

a

petition

The Petitioners' Case In support of their petition, petitioners alleged, inter alia, that: I. THE HONORABLE PUBLIC RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION IN REFUSING TO TAKE COGNIZANCE OF, AND TO GIVE DUE COURSE TO THE PETITION FOR INITIATIVE, BECAUSE THE CITED SANTIAGO RULING OF 19 MARCH 1997 CANNOT BE CONSIDERED THE MAJORITY OPINION OF THE SUPREME COURT EN BANC, CONSIDERING THAT UPON ITS RECONSIDERATION AND FINAL VOTING ON 10 JUNE 1997, NO MAJORITY VOTE WAS SECURED TO DECLARE REPUBLIC ACT NO. 6735 AS INADEQUATE, INCOMPLETE AND INSUFFICIENT IN STANDARD. II. THE 1987 CONSTITUTION, REPUBLIC ACT NO. 6735, REPUBLIC ACT NO. 8189 AND EXISTING APPROPRIATION OF THE COMELEC PROVIDE FOR SUFFICIENT DETAILS AND AUTHORITY FOR THE EXERCISE OF PEOPLE'S INITIATIVE, THUS, EXISTING LAWS TAKEN TOGETHER ARE ADEQUATE AND COMPLETE. III. THE HONORABLE PUBLIC RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION IN REFUSING TO TAKE COGNIZANCE OF, AND IN REFUSING TO GIVE DUE COURSE TO THE PETITION FOR INITIATIVE, THEREBY VIOLATING AN EXPRESS CONSTITUTIONAL MANDATE AND DISREGARDING AND CONTRAVENING THE WILL OF THE PEOPLE. A. THE SANTIAGO RULING OF 19 MARCH 1997 IS NOT APPLICABLE TO THE INSTANT PETITION FOR INITIATIVE FILED BY THE PETITIONERS.

1. THE FRAMERS OF THE CONSTITUTION INTENDED TO GIVE THE PEOPLE THE POWER TO PROPOSE AMENDMENTS AND THE PEOPLE THEMSELVES ARE NOW GIVING VIBRANT LIFE TO THIS CONSTITUTIONAL PROVISION 2. PRIOR TO THE QUESTIONED SANTIAGO RULING OF 19 MARCH 1997, THE RIGHT OF THE PEOPLE TO EXERCISE THE SOVEREIGN POWER OF INITIATIVE AND RECALL HAS BEEN INVARIABLY UPHELD 3. THE EXERCISE OF THE INITIATIVE TO PROPOSE AMENDMENTS IS A POLITICAL QUESTION WHICH SHALL BE DETERMINED SOLELY BY THE SOVEREIGN PEOPLE. 4. BY SIGNING THE SIGNATURE SHEETS ATTACHED TO THE PETITION FOR INITIATIVE DULY VERIFIED BY THE ELECTION OFFICERS, THE PEOPLE HAVE CHOSEN TO PERFORM THIS SACRED EXERCISE OF THEIR SOVEREIGN POWER. B. THE SANTIAGO RULING OF 19 MARCH 1997 IS NOT APPLICABLE TO THE INSTANT PETITION FOR INITIATIVE FILED BY THE PETITIONERS C. THE PERMANENT INJUNCTION ISSUED IN SANTIAGO V. COMELEC ONLY APPLIES TO THE DELFIN PETITION. 1. IT IS THE DISPOSITIVE PORTION OF THE DECISION AND NOT OTHER STATEMENTS IN THE BODY OF THE DECISION THAT GOVERNS THE RIGHTS IN CONTROVERSY. IV. THE HONORABLE PUBLIC RESPONDENT FAILED OR NEGLECTED TO ACT OR PERFORM A DUTY MANDATED BY LAW. A. THE MINISTERIAL DUTY OF THE COMELEC IS TO SET THE INITIATIVE FOR PLEBISCITE.3 Petitioners Failed to Allege and Demonstrate Facts To Establish the Right to a Writ of Certiorari

All

the

Essential

Section 1, Rule 65 of the Rules of Court reads: Sec. 1. Petition for certiorari. – When any tribunal, board 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 amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of Section 3, Rule 46. A writ for certiorari may issue only when the following requirements are set out in the petition and established: (1) the writ is directed against a tribunal, a board or any officer exercising judicial or quasi-judicial functions; (2) such tribunal, board or officer has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; and (3) there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law. x x x4 The Court has invariably defined "grave abuse of discretion," thus: By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, and it must be shown that the discretion was exercised arbitrarily or despotically. For certiorari to lie, there must be a capricious, arbitrary and whimsical exercise of power, the very antithesis of the judicial prerogative in accordance with centuries of both civil law and common law traditions.5 There is thus grave abuse of discretion on the part of the COMELEC when it acts in a capricious, whimsical, arbitrary or despotic manner in the exercise of its judgment amounting to lack of jurisdiction. Mere abuse of discretion is not enough.6 The only question involved is jurisdiction, either the lack or excess thereof, and abuse of discretion warrants the issuance of the extraordinary remedy of certiorari only when the same is grave, as when the power is exercised in an arbitrary or despotic manner by reason of passion, prejudice or personal hostility. A writ of certiorari is a remedy designed for the correction of errors of jurisdiction and not errors of judgment.7 An error of judgment is one in which the court may commit in the exercise of its jurisdiction, which error is reversible only by an appeal.8 In the present case, it appears from the assailed Resolution of the COMELEC that it denied the petition for initiative solely in obedience to the mandate of this Court in Santiago v. Commission on Elections.9 In said case, the Court En Banc permanently enjoined the COMELEC from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system. When the COMELEC denied the petition for initiative, there was as yet no valid law enacted by Congress to provide for the implementation of the system. It is a travesty for the Court to declare the act of the COMELEC in denying due course to the petition for initiative as "capricious, despotic, oppressive or whimsical exercise of judgment as is equivalent to lack of jurisdiction." In fact, in so doing, the COMELEC merely followed or applied, as it ought to do, the Court's ruling in Santiago to the effect that Section 2, Article XVII of the Constitution on the system of initiative is a non self-executory provision and requires an enabling law for its implementation. In relation thereto, RA 6735 was found by the Court to be "incomplete, inadequate, or wanting in essential terms and conditions" to implement the constitutional provision on initiative. Consequently, the COMELEC was "permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system." The decision of the Court En Banc interpreting RA 6735 forms

part of the legal system of the Philippines.10 And no doctrine or principle laid down by the Court En Banc may be modified or reversed except by the Court En Banc,11 certainly not by the COMELEC. Until the Court En Banc modifies or reverses its decision, the COMELEC is bound to follow the same.12 As succinctly held in Fulkerson v. Thompson:13 Whatever was before the Court, and is disposed of, is considered as finally settled. The inferior court is bound by the judgment or decree as the law of the case, and must carry it into execution according to the mandate. The inferior court cannot vary it, or judicially examine it for any other purpose than execution. It can give no other or further relief as to any matter decided by the Supreme Court even where there is error apparent; or in any manner intermeddle with it further than to execute the mandate and settle such matters as have been remanded, not adjudicated by the Supreme Court…. The principles above stated are, we think, conclusively established by the authority of adjudged cases. And any further departure from them would inevitably mar the harmony of the whole judiciary system, bring its parts into conflict, and produce therein disorganization, disorder, and incalculable mischief and confusion. Besides, any rule allowing the inferior courts to disregard the adjudications of the Supreme Court, or to refuse or omit to carry them into execution would be repugnant to the principles established by the constitution, and therefore void.14 At this point, it is well to recall the factual context of Santiago as well as the pronouncement made by the Court therein. Like petitioners in the instant case, in Santiago, Atty. Jesus Delfin, the People's Initiative for Reforms, Modernization and Action (PIRMA), et al., invoked Section 2, Article XVII of the Constitution as they filed with the COMELEC a "Petition to Amend the Constitution, to Lift Term Limits of Elective Officials, By People's Initiative" (the Delfin petition). They asked the COMELEC to issue an order fixing the time and date for signature gathering all over the country; causing the necessary publications of said order and their petition in newspapers of general and local circulation and instructing municipal election registrars in all regions all over the country and to assist petitioners in establishing signing stations. Acting thereon, the COMELEC issued the order prayed for. Senator Miriam Santiago, et al. forthwith filed with this Court a petition for prohibition to enjoin the COMELEC from implementing its order. The Court, speaking through Justice Hilario G. Davide, Jr. (later Chief Justice), granted the petition as it declared: 1. RA 6735 "incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned"; 2. COMELEC Resolution No. 230015 invalid insofar as it prescribed rules and regulations on the conduct of initiative on amendments to the Constitution because the COMELEC is without authority to promulgate the rules and regulations to implement the exercise of the right of the people to directly propose amendments to the Constitution through the system of initiative; and 3. The Delfin petition insufficient as it did not contain the required number of signatures of registered voters. The Court concluded in Santiago that "the COMELEC should be permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system." The dispositive portion of the decision reads: WHEREFORE, judgment is hereby rendered: a) GRANTING the instant petition; b) DECLARING RA 6735 inadequate to cover the system of initiative on amendments to the Constitution, and to have failed to provide sufficient standard for subordinate legislation;

c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections prescribing rules and regulations on the conduct of initiative or amendments to the Constitution; and d) ORDERING the Commission on Elections to forthwith DISMISS the Delfin petition (UND-96-037). The Temporary Restraining Order issued on December 18, 1996 is made permanent as against the Commission on Elections, but is LIFTED as against private respondents.16 The Court reiterated its ruling in Santiago in another petition which was filed with the Court by PIRMA and the spouses Alberto and Carmen Pedrosa (who were parties in Santiago) docketed as PIRMA v. Commission on Elections.17 The said petitioners, undaunted by Santiago and claiming to have gathered 5,793,213 signatures, filed a petition with the COMELEC praying, inter alia, that COMELEC officers be ordered to verify all the signatures collected in behalf of the petition and, after due hearing, that it (COMELEC) declare the petition sufficient for the purpose of scheduling a plebiscite to amend the Constitution. Like the Delfin petition in Santiago, the PIRMA petition proposed to submit to the people in a plebiscite the amendment to the Constitution on the lifting of the term limits of elected officials. The opinion of the minority that there was no doctrine enunciated by the Court in PIRMA has no basis. The COMELEC, in its Resolution dated July 8, 1997, dismissed the PIRMA petition citing the permanent restraining order issued against it by the Court in Santiago. PIRMA and the spouses Pedrosa forthwith elevated the matter to the Court alleging grave abuse of discretion on the part of the COMELEC in refusing to exercise jurisdiction over, and thereby dismissing, their petition for initiative to amend the Constitution. The Court dismissed outright, by a unanimous vote, the petition filed by PIRMA and the spouses Albert Pedrosa. The Court declared that the COMELEC merely complied with the dispositions in the decision of the Court in Santiago and, hence, cannot be held to have committed a grave abuse of its discretion in dismissing the petition before it: The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be attributed to the public respondent COMELEC in dismissing the petition filed by PIRMA therein, it appearing that it only complied with the dispositions in the Decision of this Court in G.R. No. 127325, promulgated on March 19, 1997, and its Resolution of June 10, 1997. The Court next considered the question of whether there was need to resolve the second issue posed by the petitioners, namely, that the Court re-examine its ruling as regards R.A. 6735. On this issue, the Chief Justice and six (6) other members of the Court, namely, Regalado, Davide, Romero, Bellosillo, Kapunan and Torres, JJ., voted that there was no need to take it up. Vitug, J., agreed that there was no need for reexamination of said second issue since the case a bar is not the proper vehicle for that purpose. Five (5) other members of the Court, namely, Melo, Puno, Francisco, Hermosisima and Panganiban, JJ., opined that there was need for such a reexamination. x x x WHEREFORE, the petition is DISMISSED.18 (Underscoring supplied.) In the present case, the Office of the Solicitor General (OSG) takes the side of petitioners and argues that the COMELEC should not have applied the ruling in Santiago to the petition for initiative because the permanent injunction therein referred only to the Delfin petition. The OSG buttresses this argument by pointing out that the Temporary Restraining Order dated December 18, 1996 that was made permanent in the dispositive portion referred only to the Delfin petition. The OSG's attempt to isolate the dispositive portion from the body of the Court's decision in Santiago is futile. It bears stressing that the dispositive portion must not be read separately but in connection with the other portions of the decision of which it forms a part. To get to the true intent and meaning of a decision, no specific portion thereof should be resorted to but the

same must be considered in its entirety. Hence, a resolution or ruling may and does appear in other parts of the decision and not merely in the fallo thereof.19 The pronouncement in the body of the decision in Santiago permanently enjoining the COMELEC "from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system" is thus as much a part of the Court's decision as its dispositive portion. The ruling of this Court is of the nature of an in rem judgment barring any and all Filipinos from filing a petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted. Clearly, the COMELEC, in denying due course to the present petition for initiative on amendments to the Constitution conformably with the Court's ruling in Santiago did not commit grave abuse of discretion. On the contrary, its actuation is in keeping with the salutary principle of hierarchy of courts. For the Court to find the COMELEC to have abused its discretion when it dismissed the amended petition based on the ruling of this Court in Santiago would be sheer judicial apostasy. As eloquently put by Justice J.B.L. Reyes, "there is only one Supreme Court from whose decisions all other courts should take their bearings."20 This truism applies with equal force to the COMELEC as a quasi-judicial body for, after all, judicial decisions applying or interpreting laws or the Constitution "assume the same authority as the statute itself and, until authoritatively abandoned, necessarily become, to the extent that they are applicable, the criteria which must control the actuations not only of those called upon to abide thereby but also of those duty bound to enforce obedience thereto."21 Petitioners Grave Abuse the COMELEC Minority Opinion in Santiago

Cannot of Based

Discretion on

Ascribe on the

It is elementary that the opinion of the majority of the members of the Court, not the opinion of the minority, prevails. As a corollary, the decision of the majority cannot be modified or reversed by the minority of the members of the Court. However, to eschew the binding effect of Santiago, petitioners argue, albeit unconvincingly, that the Court's declaration therein on the inadequacy, incompleteness and insufficiency of RA 6735 to implement the system of initiative to propose constitutional amendments did not constitute the majority opinion. This contention is utterly baseless. Santiago was concurred in, without any reservation, by eight Justices,22 or the majority of the members of the Court, who actually took part in the deliberations thereon. On the other hand, five Justices,23 while voting for the dismissal of the Delfin petition on the ground of insufficiency, dissented from the majority opinion as they maintained the view that RA 6735 was sufficient to implement the system of initiative. Given that a clear majority of the members of the Court, eight Justices, concurred in the decision in Santiago, the pronouncement therein that RA 6735 is "incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned" constitutes a definitive ruling on the matter. In the Resolution dated June 10, 1997, the motions for reconsideration of the Santiago decision were denied with finality as only six Justices, or less than the majority, voted to grant the same. The Resolution expressly stated that the motion for reconsideration failed "to persuade the requisite majority of the Court to modify or reverse the Decision of 19 March 1977." 24 In fine, the pronouncement in Santiago as embodied in the Decision of March 19, 1997 remains the definitive ruling on the matter. It bears stressing that in PIRMA, petitioners prayed for the Court to resolve the issue posed by them and to re-examine its ruling as regards RA 6735. By a vote of seven members of the Court, including Justice Justo P. Torres, Jr. and Justice Jose C. Vitug, the Court voted that there was no need to resolve the issue. Five members of the Court opined that there was a need for

the re-examination of said ruling. Thus, the pronouncement of the Court in Santiago remains the law of the case and binding on petitioners. If, as now claimed by the minorty, there was no doctrine enunciated by the Court in Santiago, the Court should have resolved to set aside its original resolution dismissing the petition and to grant the motion for reconsideration and the petition. But the Court did not. The Court positively and unequivocally declared that the COMELEC merely followed the ruling of the Court in Santiago in dismissing the petition before it. No less than Senior Justice Reynato S. Puno concurred with the resolution of the Court. It behooved Justice Puno to dissent from the ruling of the Court on the motion for reconsideration of petitioners precisely on the ground that there was no doctrine enunciated by the Court in Santiago. He did not. Neither did Chief Justice Artemio V. Panganiban, who was a member of the Court. That RA 6735 has failed to validly implement the people's right to directly propose constitutional amendments through the system of initiative had already been conclusively settled in Santiago as well as in PIRMA. Heeding these decisions, several lawmakers, including no less than Solicitor General Antonio Eduardo Nachura when he was then a member of the House of Representatives,25 have filed separate bills to implement the system of initiative under Section 2, Article XVII of the Constitution. In the present Thirteenth (13th) Congress, at least seven (7) bills are pending. In the Senate, the three (3) pending bills are: Senate Bill No. 119 entitled An Act Providing for People's Initiative to Amend the Constitution introduced by Senator Luisa "Loi" P. Ejercito Estrada; Senate Bill No. 2189 entitled An Act Providing for People's Initiative to Amend the Constitution introduced by Senator Miriam Defensor Santiago; and Senate Bill No. 2247 entitled An Act Providing for a System of People's Initiative to Propose Amendments to the Constitution introduced by Senator Richard Gordon. In the House of Representatives, there are at least four (4) pending bills: House Bill No. 05281 filed by Representative Carmen Cari, House Bill No. 05017 filed by Representative Imee Marcos, House Bill No. 05025 filed by Representative Roberto Cajes, and House Bill No. 05026 filed by Representative Edgardo Chatto. These House bills are similarly entitled An Act Providing for People's Initiative to Amend the Constitution. The respective explanatory notes of the said Senate and House bills uniformly recognize that there is, to date, no law to govern the process by which constitutional amendments are introduced by the people directly through the system of initiative. Ten (10) years after Santiago and absent the occurrence of any compelling supervening event, i.e., passage of a law to implement the system of initiative under Section 2, Article XVII of the Constitution, that would warrant the re-examination of the ruling therein, it behooves the Court to apply to the present case the salutary and well-recognized doctrine of stare decisis. As earlier shown, Congress and other government agencies have, in fact, abided by Santiago. The Court can do no less with respect to its own ruling. Contrary to the stance taken by petitioners, the validity or constitutionality of a law cannot be made to depend on the individual opinions of the members who compose it – the Supreme Court, as an institution, has already determined RA 6735 to be "incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned" and therefore the same remains to be so regardless of any change in the Court's composition.26 Indeed, it is vital that there be stability in the courts in adhering to decisions deliberately made after ample consideration. Parties should not be encouraged to seek reexamination of determined principles and speculate on fluctuation of the law with every change in the expounders of it.27 Proposals As in the Proposal to Government, Cannot be Through the Which by

to Revise the Case Change System Express

of

Constitution, Petitioners' Form of Effected of Initiative, Provision of the

the

Section 2, Article Constitution, is Limited to Amendments

XVII

of

the

Even granting arguendo the Court, in the present case, abandons its pronouncement in Santiago and declares RA 6735, taken together with other extant laws, sufficient to implement the system of initiative, still, the amended petition for initiative cannot prosper. Despite the denomination of their petition, the proposals of petitioners to change the form of government from the present bicameral-presidential to a unicameral-parliamentary system of government are actually for the revision of the Constitution. Petitioners propose to "amend" Articles VI and VII of the Constitution in this manner: A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended to read as follows: "Section 1. (1) The legislative and executive powers shall be vested in a unicameral Parliament which shall be composed of as many members as may be provided by law, to be apportioned among the provinces, representative districts, and cities in accordance with the number of their respective inhabitants, with at least three hundred thousand inhabitants per district, and on the basis of a uniform and progressive ratio. Each district shall comprise, as far as practicable, contiguous, compact and adjacent territory, and each province must have at least one member. "(2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at least twenty-five years old on the day of the election, a resident of his district for at least one year prior thereto, and shall be elected by the qualified voters of his district for a term of five years without limitation as to the number thereof, except those under the party-list system which shall be provided for by law and whose number shall be equal to twenty per centum of the total membership coming from the parliamentary districts." B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are hereby amended to read, as follows: "Section 1. There shall be a President who shall be the Head of State. The executive power shall be exercised by a Prime Minister, with the assistance of the Cabinet. The Prime Minister shall be elected by a majority of all the Members of Parliament from among themselves. He shall be responsible to the Parliament for the program of government. C. For the purpose of insuring an orderly transition from the bicameral-Presidential to a unicameral-Parliamentary form of government, there shall be a new Article XVIII, entitled "Transitory Provisions," which shall read as follows: Section 1. (1) The incumbent President and Vice President shall serve until the expiration of their term at noon on the thirtieth day of June 2010 and shall continue to exercise their powers under the 1987 Constitution unless impeached by a vote of two thirds of all the members of the interim parliament., (2) In case of death, permanent disability, resignation or removal from office of the incumbent President, the incumbent Vice President shall succeed as President. In case of death, permanent disability, resignation or removal from office of both the incumbent President and Vice President, the interim Prime Minister shall assume all the powers and responsibilities of Prime Minister under Article VII as amended. Section 2. "Upon the expiration of the term of the incumbent President and Vice President, with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall hereby be amended and Sections 18 and 24 which shall be deleted, all other Sections of Article VI are hereby retained and renumbered sequentially as Section 2, ad seriatim up to 26, unless they are inconsistent with the Parliamentary system of government, in which case, they shall be amended to conform with a unicameral parliamentary form of government; provided, however, that any and all references therein to "Congress," "Senate," "House of Representatives" and "House of

Congress," "Senator[s] or "Member[s] of the House of Representatives" and "House of Congress" shall be changed to read "Parliament"; that any and all references therein to "Member[s] of the House of Representatives" shall be changed to read as "Member[s] of Parliament" and any and all references to the "President" and or "Acting President" shall be changed to read "Prime Minister." Section 3. "Upon the expiration of the term of the incumbent President and Vice President, with the exception of Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution which are hereby amended and Sections 7, 8, 9, 10, 11 and 12 which are hereby deleted, all other Sections of Article VII shall be retained and renumbered sequentially as Section 2, ad seriatim up to 14, unless they shall be inconsistent with Section 1 hereof, in which case they shall be deemed amended so as to conform to a unicameral Parliamentary System of government; provided, however, that any and all references therein to "Congress," "Senate," "House of Representatives" and "Houses of Congress" shall be changed to read "Parliament"; that any and all references therein to "Member[s] of Congress," "Senator[s]" or "Member[s] of the House of Parliament" and any and all references to the "President" and of "Acting President" shall be changed to read "Prime Minister." Section 4. (1) There shall exist, upon the ratification of these amendments, an interim Parliament which shall continue until the Members of the regular Parliament shall have been elected and shall have qualified. It shall be composed of the incumbent Members of the Senate and the House of Representatives and the incumbent Members of the Cabinet who are heads of executive departments. (2) The incumbent Vice President shall automatically be a Member of Parliament until noon of the thirtieth day of June 2010. He shall also be a member of the cabinet and shall head a ministry. He shall initially convene the interim Parliament and shall preside over its session for the election of the interim Prime Minister and until the Speaker shall have been elected by a majority vote of all the members of the interim Parliament from among themselves. (3) Senators whose term of office ends in 2010 shall be Members of Parliament until noon of the thirtieth day of June 2010. (4) Within forty-five days from ratification of these amendments, the interim Parliament shall convene to propose amendments to, or revisions of, this Constitution consistent with the principles of local autonomy, decentralization and a strong bureaucracy. "Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate, from among the members of the interim Parliament, an interim Prime Minister, who shall be elected by a majority vote of the members thereof. The interim Prime Minister shall oversee the various ministries and shall perform such powers and responsibilities as may be delegated to him by the incumbent President." (2) The interim Parliament shall provide for the election of the members of Parliament, which shall be synchronized and held simultaneously with the election of all local government officials. [Thereafter, the Vice-President, as Member of Parliament, shall immediately convene the Parliament and shall initially preside over its session for the purpose of electing the Prime Minister, who shall be elected by a majority vote of all its members, from among themselves.] The duly-elected Prime Minister shall continue to exercise and perform the powers, duties and responsibilities of the interim Prime Minister until the expiration of the term of the incumbent President and Vice President.28 Petitioners claim that the required number of signatures of registered voters have been complied with, i.e., the signatories to the petition constitute twelve percent (12%) of all the registered voters in the country, wherein each legislative district is represented by at least three percent (3%) of all the registered voters therein. Certifications allegedly executed by the respective COMELEC Election Registrars of each municipality and city verifying these signatures were attached to the petition for initiative. The verification was allegedly done on the

basis of the list of registered voters contained in the official COMELEC list used in the immediately preceding election. The proposition, as formulated by petitioners, to be submitted to the Filipino people in a plebiscite to be called for the said purpose reads: DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM, AND PROVIDING ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO THE OTHER?29 According to petitioners, the proposed amendment of Articles VI and VII would effect a more efficient, more economical and more responsive government. The parliamentary system would allegedly ensure harmony between the legislative and executive branches of government, promote greater consensus, and provide faster and more decisive governmental action. Sections 1 and 2 of Article XVII pertinently read: Article XVII SECTION 1. Any amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its Members; or (2) A constitutional convention. SECTION 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right. It can be readily gleaned that the above provisions set forth different modes and procedures for proposals for the amendment and revision of the Constitution: 1. Under Section 1, Article XVII, any amendment to, or revision of, the Constitution may be proposed by – a. Congress, upon a vote of three-fourths of all its members; or b. A constitutional convention. 2. Under Section 2, Article XVII, amendments to the Constitution may be likewise directly proposed by the people through initiative. The framers of the Constitution deliberately adopted the terms "amendment" and "revision" and provided for their respective modes and procedures for effecting changes of the Constitution fully cognizant of the distinction between the two concepts. Commissioner Jose E. Suarez, the Chairman of the Committee on Amendments and Transitory Provisions, explained: MR. SUAREZ. One more point, and we will be through. We mentioned the possible use of only one term and that is, "amendment." However, the Committee finally agreed to use the terms – "amendment" or "revision" when our attention was called by the honorable Vice-President to the substantial difference in the connotation and significance between the said terms. As a result of our research, we

came up with the observations made in the famous – or notorious – Javellana doctrine, particularly the decision rendered by Honorable Justice Makasiar, wherein he made the following distinction between "amendment" and "revision" of an existing Constitution: "Revision" may involve a rewriting of the whole Constitution. On the other hand, the act of amending a constitution envisages a change of specific provisions only. The intention of an act to amend is not the change of the entire Constitution, but only the improvement of specific parts or 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. 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. So, the Committee finally came up with the proposal that these two terms should be employed in the formulation of the Article governing amendments or revisions to the new Constitution.30 Further, the framers of the Constitution deliberately omitted the term "revision" in Section 2, Article XVII of the Constitution because it was their intention to reserve the power to propose a revision of the Constitution to Congress or the constitutional convention. Stated in another manner, it was their manifest intent that revision thereof shall not be undertaken through the system of initiative. Instead, the revision of the Constitution shall be done either by Congress or by a constitutional convention. It is significant to note that, originally, the provision on the system of initiative was included in Section 1 of the draft Article on Amendment or Revision proposed by the Committee on Amendments and Transitory Provisions. The original draft provided: SEC. 1. Any amendment to, or revision of, this Constitution may be proposed: (a) by the National Assembly upon a vote of three-fourths of all its members; or (b) by a constitutional convention; or (c) directly by the people themselves thru initiative as provided for in Article __ Section __ of the Constitution.31 However, after deliberations and interpellations, the members of the Commission agreed to remove the provision on the system of initiative from Section 1 and, instead, put it under a separate provision, Section 2. It was explained that the removal of the provision on initiative from the other "traditional modes" of changing the Constitution was precisely to limit the former (system of initiative) to amendments to the Constitution. It was emphasized that the system of initiative should not extend to revision. MR. SUAREZ. Thank you, Madam President. May we respectfully call the attention of the Members of the Commission that pursuant to the mandate given to us last night, we submitted this afternoon a complete Committee Report No. 7 which embodies the proposed provision governing the matter of initiative. This is now covered by Section 2 of the complete committee report. With the permission of the Members, may I quote Section 2: The people may, after five years from the date of the last plebiscite held, directly propose amendments to this Constitution thru initiative upon petition of at least ten percent of the registered voters. This completes the blanks appearing in the original Committee Report No. 7. This proposal was suggested on the theory that this matter of initiative, which came about because of the extraordinary developments this year, has to be separated from the traditional modes of amending the Constitution as embodied in Section 1. The

committee members felt that this system of initiative should be limited to amendments to the Constitution and should not extend to the revision of the entire Constitution, so we removed it from the operation of Section 1 of the proposed Article on Amendment or Revision. x x x32 The intention to exclude "revision" of the Constitution as a mode that may be undertaken through the system of initiative was reiterated and made clear by Commissioner Suarez in response to a suggestion of Commissioner Felicitas Aquino: MR. SUAREZ. Section 2 must be interpreted together with the provisions of Section 4, except that in Section 4, as it is presently drafted, there is no take-off date for the 60-day and 90-day periods. MS. AQUINO. Yes. In other words, Section 2 is another alternative mode of proposing amendments to the Constitution which would further require the process of submitting it in a plebiscite, in which case it is not self-executing. MR. SUAREZ. No, not unless we settle and determine the take-off period. MS. AQUINO. In which case, I am seriously bothered by providing this process of initiative as a separate section in the Article on Amendment. Would the sponsor be amenable to accepting an amendment in terms of realigning Section 2 as another subparagraph (c) of Section 1, instead of setting it up as another separate section as if it were a self-executing provision? MR SUAREZ. We would be amenable except that, as we clarified a while ago, this process of initiative is limited to the matter of amendment and should not expand into a revision which contemplates a total overhaul of the Constitution. That was the sense conveyed by the Committee. MS. AQUINO. In other words, the Committee was attempting to distinguish the coverage of modes (a) and (b) in Section 1 to include the process of revision; whereas, the process of initiation to amend, which is given to the public, would only apply to amendments? MR. SUAREZ. That is right. Those were the terms envisioned by the Committee.33 Then Commissioner Hilario P. Davide, Jr. (later Chief Justice) also made the clarification with respect to the observation of Commissioner Regalado Maambong: MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment on line 1 refers to "amendments." Does it not cover the word "revision" as defined by Commissioner Padilla when he made the distinction between the words "amendments" and "revision"? MR. DAVIDE. No, it does not, because "amendments" and "revision" should be covered by Section 1. So insofar as initiative is concerned, it can only relate to "amendments" not "revision."34 After several amendments, the Commission voted in favor of the following wording of Section 2: AMENDMENTS TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER OF REGISTERED VOTERS OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST THREE PERCENT OF THE REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT. Sections 1 and 2, Article XVII as eventually worded read: Article XVII SECTION 1. Any amendment to, or revision of, this Constitution may be proposed by: (3) The Congress, upon a vote of three-fourths of all its Members; or (4) A constitutional convention. SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative, upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right. The final text of Article XVII on Amendments or Revisions clearly makes a substantial differentiation not only between the two terms but also between two procedures and their respective fields of application. Ineluctably, the system of initiative under Section 2, Article XVII as a mode of effecting changes in the Constitution is strictly limited to amendments – not to a revision – thereof. As opined earlier, the framers of the Constitution, in providing for "amendment" and "revision" as different modes of changing the fundamental law, were cognizant of the distinction between the two terms. They particularly relied on the distinction made by Justice Felix Antonio in his concurring opinion in Javellana v. Executive Secretary,35 the controversial decision which gave imprimatur to the 1973 Constitution of former President Ferdinand E. Marcos, as follows: 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. 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.36 Other elucidation on the distinction between "amendment" and "revision" is enlightening. For example, Dean Vicente G. Sinco, an eminent authority on political law, distinguished the two terms in this manner: Strictly speaking, the act of revising a constitution involves alterations of different portions of the entire document. It may result in the rewriting either of the whole constitution, or the greater portion of it, or perhaps only some of its important provisions. But whatever results the revisions may produce, the factor that characterizes it as an act of revision is the original intention and plan authorized to be carried out. That intention and plan must contemplate a consideration of all the provisions of the constitution to determine which one should be altered or suppressed or whether the whole document should be replaced with an entirely new one. The act of amending a constitution, on the other hand, envisages a change of only a few specific provisions. The intention of an act to amend is not to consider the advisability of changing the entire constitution or of considering that possibility. The intention rather is to improve the specific parts of the existing constitution or to add to it provisions deemed

essential on account of changed conditions or to suppress portions of it that seemed obsolete, or dangerous, or misleading in their effect.37 In the United States, the Supreme Court of Georgia in Wheeler v. Board of Trustees38 had the occasion to make the distinction between the two terms with respect to Ga.L. 1945, an instrument which "amended" the 1877 Constitution of Georgia. It explained the term "amendment:" "Amendment" of a statute implies its survival and not destruction. It repeals or changes some provision, or adds something thereto. A law is amended when it is in whole or in part permitted to remain, and something is added to or taken from it, or it is in some way changed or altered to make it more complete or perfect, or to fit it the better to accomplish the object or purpose for which it was made, or some other object or purpose.39 On the other hand, the term "revision" was explained by the said US appellate court: x x x When a house is completely demolished and another is erected on the same location, do you have a changed, repaired and altered house, or do you have a new house? Some of the materials contained in the old house may be used again, some of the rooms may be constructed the same, but this does not alter the fact that you have altogether another or a new house. We conclude that the instrument as contained in Ga.L. 1945, pp. 8 to 89, inclusive, is not an amendment to the constitution of 1877; but on the contrary it is a completely revised or new constitution.40 Fairly recently, Fr. Joaquin Bernas, SJ, a member of the Constitutional Commission, expounded on the distinction between the two terms thus: An amendment envisages an alteration of one or a few specific and separable provisions. The guiding original intention of an amendment is to improve specific parts or to add new provisions deemed necessary to meet new conditions or to suppress specific portions that may have become obsolete or that are judged to be dangerous. In revision, however, the guiding original intention and plan contemplate a re-examination of the entire document – or of provisions of the document (which have overall implications for the entire document or for the fundamental philosophical underpinnings of the document) – to determine how and to what extent it should be altered. Thus, for instance, a switch from the presidential system to a parliamentary system would be a revision because of its overall impact on the entire constitutional structure. So would a switch from a bicameral system to a unicameral system because of its effect on other important provisions of the Constitution. It is thus clear that what distinguishes revision from amendment is not the quantum of change in the document. Rather, it is the fundamental qualitative alteration that effects revision. Hence, I must reject the puerile argument that the use of the plural form of "amendments" means that a revision can be achieved by the introduction of a multiplicity of amendments!41 Given that revision necessarily entails a more complex, substantial and far-reaching effects on the Constitution, the framers thereof wisely withheld the said mode from the system of initiative. It should be recalled that it took the framers of the present Constitution four months from June 2, 1986 until October 15, 1986 to come up with the draft Constitution which, as described by the venerable Justice Cecilia Muñoz Palma, the President of the Constitutional Commission of 1986, "gradually and painstakingly took shape through the crucible of sustained sometimes passionate and often exhilarating debates that intersected all dimensions of the national life."42 Evidently, the framers of the Constitution believed that a revision thereof should, in like manner, be a product of the same extensive and intensive study and debates. Consequently, while providing for a system of initiative where the people would directly propose amendments to the Constitution, they entrusted the formidable task of its revision to a deliberative body, the Congress or Constituent Assembly.

The Constitution is the fundamental law of the state, containing the principles upon which the government is founded, and regulating the division of sovereign powers, directing to what persons each of those powers is to be confided and the manner in which it is to be exercised.43 The Philippines has followed the American constitutional legal system in the sense that the term constitution is given a more restricted meaning, i.e., as a written organic instrument, under which governmental powers are both conferred and circumscribed.44 The Constitution received its force from the express will of the people. An overwhelming 16,622,111, out of 21,785,216 votes cast during the plebiscite, or 76.30% ratified the present Constitution on February 2, 1987.45 In expressing that will, the Filipino people have incorporated therein the method and manner by which the same can be amended and revised, and when the electorate have incorporated into the fundamental law the particular manner in which the same may be altered or changed, then any course which disregards that express will is a direct violation of the fundamental law.46 Further, these provisions having been incorporated in the Constitution, where the validity of a constitutional amendment or revision depends upon whether such provisions have been complied with, such question presents for consideration and determination a judicial question, and the courts are the only tribunals vested with power under the Constitution to determine such question.47 Earlier, it was mentioned that Article XVII, by the use of the terms "amendment" and "revision," clearly makes a differentiation not only between the two terms but also between two procedures and their respective fields of application. On this point, the case of McFadden v. Jordan48 is instructive. In that case, a "purported initiative amendment" (referred to as the proposed measure) to the State Constitution of California, then being proposed to be submitted to the electors for ratification, was sought to be enjoined. The proposed measure, denominated as "California Bill of Rights," comprised a single new article with some 208 subsections which would repeal or substantially alter at least 15 of the 25 articles of the California State Constitution and add at least four new topics. Among the likely effects of the proposed measure were to curtail legislative and judicial functions, legalize gaming, completely revise the taxation system and reduce the powers of cities, counties and courts. The proposed measure also included diverse matters as ministers, mines, civic centers, liquor control and naturopaths. The Supreme Court of California enjoined the submission of the proposed measure to the electors for ratification because it was not an "amendment" but a "revision" which could only be proposed by a convention. It held that from an examination of the proposed measure itself, considered in relation to the terms of the California State Constitution, it was clear that the proposed initiative enactment amounted substantially to an attempted revision, rather than amendment, thereof; and that inasmuch as the California State Constitution specifies (Article XVIII §2 thereof) that it may be revised by means of constitutional convention but does not provide for revision by initiative measure, the submission of the proposed measure to the electorate for ratification must be enjoined. As piercingly enunciated by the California State Supreme Court in McFadden, the differentiation required (between amendment and revision) is not merely between two words; more accurately it is between two procedures and between their respective fields of application. Each procedure, if we follow elementary principles of statutory construction, must be understood to have a substantial field of application, not to be a mere alternative procedure in the same field. Each of the two words, then, must be understood to denote, respectively, not only a procedure but also a field of application appropriate to its procedure.49 Provisions regulating the time and mode of effecting organic changes are in the nature of safety-valves – they must not be so adjusted as to discharge their peculiar function with too great facility, lest they become the ordinary escape-pipes of party passion; nor, on the other hand, must they discharge it with such difficulty that the force needed to induce action is sufficient also to explode the machine. Hence, the problem of the Constitution maker is, in this particular, one of the most difficult in our whole system, to reconcile the requisites for progress with the requisites for safety.50

Like in McFadden, the present petition for initiative on amendments to the Constitution is, despite its denomination, one for its revision. It purports to seek the amendment only of Articles VI and VII of the Constitution as well as to provide transitory provisions. However, as will be shown shortly, the amendment of these two provisions will necessarily affect other numerous provisions of the Constitution particularly those pertaining to the specific powers of Congress and the President. These powers would have to be transferred to the Parliament and the Prime Minister and/or President, as the case may be. More than one hundred (100) sections will be affected or altered thereby: 1. Section 19 of Article III (Bill of Rights) on the power of Congress to impose the death penalty for compelling reasons involving heinous crimes; 2. Section 2 of Article V (Suffrage) on the power of Congress to provide for securing the secrecy and sanctity of the ballot as well as a system for absentee voting; 3. All 32 Sections of Article VI on the Legislative Department; 4. All 23 Sections of Article VII on the Executive Department; 5. The following Sections of Article VIII (Judicial Department): - Section 2 on power of Congress to define, prescribe and apportion the jurisdiction of various courts; - Section 7 on the power of Congress to prescribe the qualifications of judges of lower courts; - Section 8 on the composition of Judicial Bar Council (JBC) which includes representatives of Congress as ex officio members and on the power of the President to appoint the regular members of the JBC; - Section 9 on the power of the President to appoint the members of the Supreme Court and judges of lower courts; - Section 16 on duty of Supreme Court to make annual report to the President and Congress. 6. The following Sections of Article IX (Constitutional Commissions); - (B) Section 3 on duty of Civil Service Commission to make annual report to the President and Congress; - (B) Section 5 on power of Congress to provide by law for the standardization of compensation of government officials; - (B) Section 8 which provides in part that "no public officer shall accept, without the consent of Congress, any present, emolument, etc. x x x" - (C) Section 1 on the power of the President to appoint the Chairman and Commissioners of the Commission on Elections with the consent of the Commission on Appointments; - (C) Section 2 (7) on the power of the COMELEC to recommend to Congress measures to minimize election spending x x x; - (C) Section 2 (8) on the duty of the COMELEC to recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action x x x;

- (C) Section 2 (9) on the duty of the COMELEC to submit to the President and Congress a report on the conduct of election, plebiscite, etc.; - (C) Section 5 on the power of the President, with the favorable recommendation of the COMELEC, to grant pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules and regulations; - (C) Section 7 which recognizes as valid votes cast in favor of organization registered under party-list system; - (C) Section 8 on political parties, organizations or coalitions under the party-list system; - (D) Section 1 (2) on the power of the President to appoint the Chairman and Commissioners of the Commission on Audit (COA) with the consent of the Commission of Appointments; - Section 4 on duty of the COA to make annual report to the President and Congress. 7. The following Sections of Article X (Local Government): - Section 3 on the power of Congress to enact a local government code; - Section 4 on the power of the President to exercise general supervision over local government units (LGUs); - Section 5 on the power of LGUs to create their own sources of income x x x, subject to such guidelines as Congress may provide; - Section 11 on the power of Congress to create special metropolitan political subdivisions; - Section 14 on the power of the President to provide for regional development councils x x x; - Section 16 on the power of the President to exercise general supervision over autonomous regions; - Section 18 on the power of Congress to enact organic act for each autonomous region as well as the power of the President to appoint the representatives to the regional consultative commission; - Section 19 on the duty of the first Congress elected under the Constitution to pass the organic act for autonomous regions in Muslim Mindanao and the Cordilleras. 8. The following Sections of Article XI (Accountability of Public Officers): - Section 2 on the impeachable officers (President, Vice-President, etc.); - Section 3 on impeachment proceedings (exclusive power of the House to initiate complaint and sole power of the Senate to try and decide impeachment cases); - Section 9 on the power of the President to appoint the Ombudsman and his deputies; - Section 16 which provides in part that "x x x no loans or guaranty shall be granted to the President, Vice-President, etc.

- Section 17 on mandatory disclosure of assets and liabilities by public officials including the President, Vice-President, etc. 9. The following Sections of Article XII (National Economy and Patrimony): - Section 2 on the power of Congress to allow, by law, small-scale utilization of natural resources and power of the President to enter into agreements with foreign-owned corporations and duty to notify Congress of every contract; - Section 3 on the power of Congress to determine size of lands of public domain; - Section 4 on the power of Congress to determine specific limits of forest lands; - Section 5 on the power of Congress to provide for applicability of customary laws; - Section 9 on the power of Congress to establish an independent economic and planning agency to be headed by the President; - Section 10 on the power of Congress to reserve to Filipino citizens or domestic corporations(at least 60% Filipino-owned) certain areas of investment; - Section 11 on the sole power of Congress to grant franchise for public utilities; - Section 15 on the power of Congress to create an agency to promote viability of cooperatives; - Section 16 which provides that Congress shall not, except by general law, form private corporations; - Section 17 on the salaries of the President, Vice-President, etc. and the power of Congress to adjust the same; - Section 20 on the power of Congress to establish central monetary authority. 10. The following Sections of Article XIII (Social Justice and Human Rights): - Section 1 on the mandate of Congress to give highest priority to enactment of measures that protect and enhance the right of people x x x - Section 4 on the power of Congress to prescribe retention limits in agrarian reform; - Section 18 (6) on the duty of the Commission on Human Rights to recommend to Congress effective measures to promote human rights; - Section 19 on the power of Congress to provide for other cases to fall within the jurisdiction of the Commission on Human Rights. 11. The following Sections of Article XIV (Education, Science and Technology, etc.): - Section 4 on the power of Congress to increase Filipino equity participation in educational institutions; - Section 6 which provides that subject to law and as Congress may provide, the Government shall sustain the use of Filipino as medium of official communication;

- Section 9 on the power of Congress to establish a national language commission; - Section 11 on the power of Congress to provide for incentives to promote scientific research. 12. The following Sections of Article XVI (General Provisions): - Section 2 on the power of Congress to adopt new name for the country, new national anthem, etc.; - Section 5 (7) on the tour of duty of the Chief of Staff which may be extended by the President in times of war or national emergency declared by Congress; - Section 11 on the power of Congress to regulate or prohibit monopolies in mass media; - Section 12 on the power of Congress to create consultative body to advise the President on indigenous cultural communities. 13. The following Sections of Article XVII (Amendments or Revisions): - Section 1 on the amendment or revision of Constitution by Congress; - Section 2 on the duty of Congress to provide for the implementation of the system of initiative; - Section 3 on the power of Congress to call constitutional convention to amend or revise the Constitution. 14. All 27 Sections of Article XVIII (Transitory Provisions). The foregoing enumeration negates the claim that "the big bulk of the 1987 Constitution will not be affected."51Petitioners' proposition, while purportedly seeking to amend only Articles VI and VII of the Constitution and providing transitory provisions, will, in fact, affect, alter, replace or repeal other numerous articles and sections thereof. More than the quantitative effects, however, the revisory character of petitioners' proposition is apparent from the qualitative effects it will have on the fundamental law. I am not impervious to the commentary of Dean Vicente G. Sinco that the revision of a constitution, in its strict sense, refers to a consideration of the entire constitution and the procedure for effecting such change; while amendment refers only to particular provisions to be added to or to be altered in a constitution.52 For clarity and accuracy, however, it is necessary to reiterate below Dean Sinco's more comprehensive differentiation of the terms: Strictly speaking, the act of revising a constitution involves alterations of different portions of the entire document. It may result in the rewriting either of the whole constitution, or the greater portion of it, or perhaps only some of its important provisions. But whatever results the revisions may produce, the factor that characterizes it as an act of revision is the original intention and plan authorized to be carried out. That intention and plan must contemplate a consideration of all the provisions of the constitution to determine which one should be altered or suppressed or whether the whole document should be replaced with an entirely new one. The act of amending a constitution, on the other hand, envisages a change of only a few specific provisions. The intention of an act to amend is not to consider the advisability of changing the entire constitution or of considering that possibility. The intention rather is to improve the specific parts of the existing constitution or to add to it provisions deemed

essential on account of changed conditions or to suppress portions of it that seemed obsolete, or dangerous, or misleading in their effect.53 A change in the form of government from bicameral-presidential to unicameral-parliamentary, following the above distinction, entails a revision of the Constitution as it will involve "alteration of different portions of the entire document" and "may result in the rewriting of the whole constitution, or the greater portion of it, or perhaps only some of its important provisions." More importantly, such shift in the form of government will, without doubt, fundamentally change the basic plan and substance of the present Constitution. The tripartite system ordained by our fundamental law divides governmental powers into three distinct but co-equal branches: the legislative, executive and judicial. Legislative power, vested in Congress which is a bicameral body consisting of the House of Representatives and the Senate, is the power to make laws and to alter them at discretion. Executive power, vested in the President who is directly elected by the people, is the power to see that the laws are duly executed and enforced. Judicial power, vested in the Supreme Court and the lower courts, is the power to construe and apply the law when controversies arise concerning what has been done or omitted under it. This separation of powers furnishes a system of checks and balances which guards against the establishment of an arbitrary or tyrannical government. Under a unicameral-parliamentary system, however, the tripartite separation of power is dissolved as there is a fusion between the executive and legislative powers. Essentially, the President becomes a mere "symbolic head of State" while the Prime Minister becomes the head of government who is elected, not by direct vote of the people, but by the members of the Parliament. The Parliament is a unicameral body whose members are elected by legislative districts. The Prime Minister, as head of government, does not have a fixed term of office and may only be removed by a vote of confidence of the Parliament. Under this form of government, the system of checks and balances is emasculated. Considering the encompassing scope and depth of the changes that would be effected, not to mention that the Constitution's basic plan and substance of a tripartite system of government and the principle of separation of powers underlying the same would be altered, if not entirely destroyed, there can be no other conclusion than that the proposition of petitioners Lambino, et al. would constitute a revision of the Constitution rather than an amendment or "such an addition or change within the lines of the original instrument as will effect an improvement or better carry out the purpose for which it was framed."54 As has been shown, the effect of the adoption of the petitioners' proposition, rather than to "within the lines of the original instrument" constitute "an improvement or better carry out the purpose for which it was framed," is to "substantially alter the purpose and to attain objectives clearly beyond the lines of the Constitution as now cast."55 To paraphrase McFadden, petitioners' contention that any change less than a total one is amendatory would reduce to the rubble of absurdity the bulwark so carefully erected and preserved. A case might, conceivably, be presented where the question would be occasion to undertake to define with nicety the line of demarcation; but we have no case or occasion here. As succinctly by Fr. Joaquin Bernas, "a switch from the presidential system to a parliamentary system would be a revision because of its overall impact on the entire constitutional structure. So would a switch from a bicameral system to a unicameral system because of its effect on other important provisions of the Constitution. It is thus clear that what distinguishes revision from amendment is not the quantum of change in the document. Rather, it is the fundamental qualitative alteration that effects revision."56 The petition for initiative on amendments to the Constitution filed by petitioners Lambino, et al., being in truth and in fact a proposal for the revision thereof, is barred from the system of initiative upon any legally permissible construction of Section 2, Article XVII of the Constitution. The Petition Amendments is, on Form and Substance

for to its

Initiative the

Face,

Insufficient

on Constitution in

Again, even granting arguendo RA 6735 is declared sufficient to implement the system of initiative and that COMELEC Resolution No. 2300, as it prescribed rules and regulations on the conduct of initiative on amendments to the Constitution, is valid, still, the petition for initiative on amendments to the Constitution must be dismissed for being insufficient in form and substance. Section 5 of RA 6735 requires that a petition for initiative on the Constitution must state the following: 1. Contents or text of the proposed law sought to be enacted, approved or rejected, amended or repealed, as the case may be; 2. The proposition; 3. The reason or reasons therefor; 4. That it is not one of the exceptions provided herein; 5. Signatures of the petitioners or registered voters; and 6. An abstract or summary proposition in not more than one hundred (100) words which shall be legibly written or printed at the top of every page of the petition. Section 7 thereof requires that the signatures be verified in this wise: SEC. 7. Verification of Signatures. – The Election Registrar shall verify the signatures on the basis of the registry list of voters, voters' affidavits and voters' identification cards used in the immediately preceding election. The law mandates upon the election registrar to personally verify the signatures. This is a solemn and important duty imposed on the election registrar which he cannot delegate to any other person, even to barangay officials. Hence, a verification of signatures made by persons other than the election registrars has no legal effect. In patent violation of the law, several certifications submitted by petitioners showed that the verification of signatures was made, not by the election registrars, but by barangay officials. For example, the certification of the election officer in Lumbatan, Lanao del Sur reads in full: LOCAL ELECTION OFFICER'S CERTIFICATION57 THIS IS TO CERTIFY that based on the verifications made by the Barangay Officials in this City/Municipality, as attested to by two (2) witnesses from the same Barangays, which is part of the 2nd Legislative District of the Province of Lanao del Sur, the names appearing on the attached signature sheets relative to the proposed initiative on Amendments to the 1987 Constitution, are those of bonafide resident of the said Barangays and correspond to the names found in the official list of registered voters of the Commission on Elections and/or voters' affidavit and/or voters' identification cards. It is further certified that the total number of signatures of the registered voters for the City/Municipality of LUMBATAN, LANAO DEL SUR as appearing in the affixed signatures sheets is ONE THOUSAND ONE HUNDRED EIGHTY (1,180). April 2, 2006 IBRAHIM Election Officer

M.

MACADATO

(Underscoring supplied) The ineffective verification in almost all the legislative districts in the Autonomous Region of Muslim Mindanao (ARMM) alone is shown by the certifications, similarly worded as above-

quoted, of the election registrars of Buldon, Maguindanao;58 Cotabato City (Special Province);59 Datu Odin Sinsuat, Maguindanao;60 Matanog, Maguindanao;61 Parang, 62 63 Maguindanao; Kabantalan, Maguindanao; Upi, Maguinadano;64 Barira, 65 66 67 Maguindanao; Sultan, Mastura; Ampatuan, Maguindanao; Buluan, Maguindanao;68 Datu Paglas, Maguindanao;69 Datu Piang, Maguindanao;70 Shariff Aguak, Maguindanao;71 Pagalungan, Maguindanao;72Talayan, Maguindanao;73 Gen. S.K. Pendatun, Maguindanao;74 Mamasapano, Maguindanao;75 Talitay, Maguindanao;76 Guindulungan, 77 Maguindanao; Datu Saudi Ampatuan, Maguindanao;78 Datu Unsay, 79 80 Maguindanao; Pagagawan, Maguindanao; Rajah Buayan, Maguindanao;81 Indanan, Sulu;82 Jolo, Sulu;83Maimbung, Sulu;84 Hadji Panglima, Sulu;85 Pangutaran, Sulu;86 Parang, Sulu;87 Kalingalan Caluang, Sulu;88 Luuk, Sulu;89 Panamao, Sulu;90 Pata, Sulu;91 Siasi, Sulu;92 Tapul, Sulu;93 Panglima Estino, Sulu;94 Lugus, Sulu;95 and Pandami, Sulu. 96 Section 7 of RA 6735 is clear that the verification of signatures shall be done by the election registrar, and by no one else, including the barangay officials. The foregoing certifications submitted by petitioners, instead of aiding their cause, justify the outright dismissal of their petition for initiative. Because of the illegal verifications made by barangay officials in the abovementioned legislative districts, it necessarily follows that the petition for initiative has failed to comply with the requisite number of signatures, i.e., at least twelve percent (12%) of the total number of registered voters, of which every legislative district must be represented by at least three percent (3%) of the registered voters therein. Petitioners cannot disclaim the veracity of these damaging certifications because they themselves submitted the same to the COMELEC and to the Court in the present case to support their contention that the requirements of RA 6735 had been complied with and that their petition for initiative is on its face sufficient in form and substance. They are in the nature of judicial admissions which are conclusive and binding on petitioners.97 This being the case, the Court must forthwith order the dismissal of the petition for initiative for being, on its face, insufficient in form and substance. The Court should make the adjudication entailed by the facts here and now, without further proceedings, as it has done in other cases.98 It is argued by petitioners that, assuming arguendo that the COMELEC is correct in relying on Santiago that RA 6735 is inadequate to cover initiative to the Constitution, this cannot be used to legitimize its refusal to heed the people's will. The fact that there is no enabling law should not prejudice the right of the sovereign people to propose amendments to the Constitution, which right has already been exercised by 6,327,952 voters. The collective and resounding act of the particles of sovereignty must not be set aside. Hence, the COMELEC should be ordered to comply with Section 4, Article XVII of the 1987 Constitution via a writ of mandamus. The submission of petitioners, however, is unpersuasive. Mandamus is a proper recourse for citizens who act to enforce a public right and to compel the persons of a public duty most especially when mandated by the Constitution.99 However, under Section 3, Rule 65 of the 1997 Rules of Court, for a petition for mandamus to prosper, it must be shown that the subject of the petition is a ministerial act or duty and not purely discretionary on the part of the board, officer or person, and that petitioner has a well-defined, clear and certain right to warrant the grant thereof. A purely ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done. If the law imposes a duty upon a public official and gives him the right to decide how or when the duty should be performed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires neither the exercise of an official discretion nor judgment.100 To stress, in a petition for mandamus, petitioner must show a well defined, clear and certain right to warrant the grant thereof.101 In this case, petitioners failed to establish their right to a writ of mandamus as shown by the foregoing disquisitions. Remand of the COMELEC is Not RA 6735 and COMELEC Resolution No. 2300

Case

to Authorized

the by

The dissenting opinion posits that the issue of whether or not the petition for initiative has complied with the requisite number of signatures of at least twelve percent (12%) of the total number of registered voters, of which every legislative district must be represented by at least three percent (3%) of the registered voters therein, involves contentious facts. The dissenting opinion cites the petitioners' claim that they have complied with the same while the oppositorsintervenors have vigorously refuted this claim by alleging, inter alia, that the signatures were not properly verified or were not verified at all. Other oppositors-intervenors have alleged that the signatories did not fully understand what they have signed as they were misled into signing the signature sheets. According to the dissenting opinion, the sufficiency of the petition for initiative and its compliance with the requirements of RA 6735 on initiative and its implementing rules is a question that should be resolved by the COMELEC at the first instance. It thus remands the case to the COMELEC for further proceedings. To my mind, the remand of the case to the COMELEC is not warranted. There is nothing in RA 6735, as well as in COMELEC Resolution No. 2300, granting that it is valid to implement the former statute, that authorizes the COMELEC to conduct any kind of hearing, whether full-blown or trial-type hearing, summary hearing or administrative hearing, on a petition for initiative. Section 41 of COMELEC Resolution No. 2300 provides that "[a]n initiative shall be conducted under the control and supervision of the Commission in accordance with Article III hereof." Pertinently, Sections 30, 31 and 32 of Article III of the said implementing rules provide as follows: Sec. 30. Verification of signatures. – The Election Registrar shall verify the signatures on the basis of the registry list of voters, voters' affidavits and voters' identification cards used in the immediately preceding election. Sec. 31. Determination by the Commission. – The Commission shall act on the findings of the sufficiency or insufficiency of the petition for initiative or referendum. If it should appear that the required number of signatures has not been obtained, the petition shall be deemed defeated and the Commission shall issue a declaration to that effect. If it should appear that the required number of signatures has been obtained, the Commission shall set the initiative or referendum in accordance with the succeeding sections. Sec. 32. Appeal. – The decision of the Commission on the findings of the sufficiency and insufficiency of the petition for initiative or referendum may be appealed to the Supreme Court within thirty (30) days from notice hereof. Clearly, following the foregoing procedural rules, the COMELEC is not authorized to conduct any kind of hearing to receive any evidence for or against the sufficiency of the petition for initiative. Rather, the foregoing rules require of the COMELEC to determine the sufficiency or insufficiency of the petition for initiative on its face. And it has already been shown, by the annexes submitted by the petitioners themselves, their petition is, on its face, insufficient in form and substance. The remand of the case to the COMELEC for reception of evidence of the parties on the contentious factual issues is, in effect, an amendment of the abovequoted rules of the COMELEC by this Court which the Court is not empowered to do. The Present Petition Presents Justiciable Controversy; a Non-Political Question. the People, Acting in their Capacity, Have Bound to Abide by the Constitution

a Hence, Further, Sovereign Themselves

Political questions refer 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.102 A political question has two aspects: (1) those matters that are to be exercised by the people in their primary political capacity; and (2) matters which have been specifically designated to some other department or particular office of the government, with discretionary power to act.103 In his concurring and dissenting opinion in Arroyo v. De Venecia,104 Senior Associate Justice Reynato S. Puno explained the doctrine of political question vis-à-vis the express mandate of the present Constitution for the courts to determine whether or not there has been a grave abuse of discretion on the part of any branch or instrumentality of the Government: In the Philippine setting, there is more compelling reason for courts to categorically reject the political question defense when its interposition will cover up abuse of power. For Section 1, Article VIII of our Constitution was intentionally cobbled to empower courts "... to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." This power is new and was not granted to our courts in the 1935 and 1972 Constitutions. It was also not xeroxed from the US Constitution or any foreign state constitution. The CONCOM [Constitutional Commission] granted this enormous power to our courts in view of our experience under martial law where abusive exercises of state power were shielded from judicial scrutiny by the misuse of the political question doctrine. Led by the eminent former Chief Justice Roberto Concepcion, the CONCOM expanded and sharpened the checking powers of the judiciary vis-à-vis the Executive and the Legislative departments of government. In cases involving the proclamation of martial law and suspension of the privilege of habeas corpus, it is now beyond dubiety that the government can no longer invoke the political question defense. xxxx To a great degree, it diminished its [political question doctrine] use as a shield to protect other abuses of government by allowing courts to penetrate the shield with new power to review acts of any branch or instrumentality of the government ". . . to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction." Even if the present petition involves the act, not of a governmental body, but of purportedly more than six million registered voters who have signified their assent to the proposal to amend the Constitution, the same still constitutes a justiciable controversy, hence, a non-political question. There is no doubt that the Constitution, under Article XVII, has explicitly provided for the manner or method to effect amendments thereto, or revision thereof. The question, therefore, of whether there has been compliance with the terms of the Constitution is for the Court to pass upon.105 In the United States, in In re McConaughy,106 the State Supreme Court of Minnesota exercised jurisdiction over the petition questioning the result of the general election holding that "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." The cases cited were Dayton v. St. Paul,107 Rice v. Palmer,108 Bott v. Wurtz,109 State v. Powell,110 among other cases. There is no denying that "the Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them."111 However, I find to be tenuous the asseveration that "the argument that the people through initiative cannot propose substantial amendments to change the Constitution turns sovereignty in its head. At the very least, the submission constricts the democratic space for the exercise of the direct sovereignty of the people."112 In effect, it is theorized that despite the unambiguous text of Section 2, Article XVII of the Constitution withholding the power to revise it from the system of initiative, the people, in their sovereign capacity, can conveniently disregard the said provision.

I strongly take exception to the view that the people, in their sovereign capacity, can disregard the Constitution altogether. Such a view directly contravenes the fundamental constitutional theory that while indeed "the ultimate sovereignty is in the people, from whom springs all legitimate authority"; nonetheless, "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."113 The Constitution, it should be remembered, "is the protector of the people, placed on guard by them to save the rights of the people against injury by the people."114 This is the essence of constitutionalism: Through constitutionalism we placed limits on both our political institutions and ourselves, hoping that democracies, historically always turbulent, chaotic and even despotic, might now become restrained, principled, thoughtful and just. So we bound ourselves over to a law that we made and promised to keep. And though a government of laws did not displace governance by men, it did mean that now men, democratic men, would try to live by their word.115 Section 2, Article XVII of the Constitution on the system of initiative is limited only to proposals to amend to the Constitution, and does not extend to its revision. The Filipino people have bound themselves to observe the manner and method to effect the changes of the Constitution. They opted to limit the exercise of the right to directly propose amendments to the Constitution through initiative, but did not extend the same to the revision thereof. The petition for initiative, as it proposes to effect the revision thereof, contravenes the Constitution. The fundamental law of the state prescribes the limitations under which the electors of the state may change the same, and, unless such course is pursued, the mere fact that a majority of the electors are in favor of a change and have so expressed themselves, does not work a change. Such a course would be revolutionary, and the Constitution of the state would become a mere matter of form.116 The very term Constitution implies an instrument of a permanent and abiding nature, and the provisions contained therein for its revision indicated the will of the people that the underlying principles upon which it rests, as well as the substantial entirety of the instrument, shall be of a like permanent and abiding nature.117 The Filipino people have incorporated the safety valves of amendment and revision in Article XVII of the Constitution. The Court is mandated to ensure that these safety valves embodied in the Constitution to guard against improvident and hasty changes thereof are not easily trifled with. To be sure, by having overwhelmingly ratified the Constitution, the Filipino people believed that it is "a good Constitution" and in the words of the learned Judge Cooley: x x x 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 worse.118 Indisputably, the issues posed in the present case are of transcendental importance. Accordingly, I have approached and grappled with them with full appreciation of the responsibilities involved in the present case, and have given to its consideration the earnest attention which its importance demands. I have sought to maintain the supremacy of the Constitution at whatever hazard. I share the concern of Chief Justice Day in Koehler v. Hill:119 "it is for the protection of minorities that constitutions are framed. Sometimes constitutions must be interposed for the protection of majorities even against themselves. Constitutions are adopted in times of public repose, when sober reason holds her citadel, and are designed to check the surging passions in times of popular excitement. But if courts could be coerced by popular majorities into a disregard of their provisions, constitutions would become mere 'ropes of sand,' and there would be an end of social security and of constitutional freedom. The cause of temperance can sustain no injury from the loss of this amendment which would be at all comparable to the injury to republican institutions which a violation of the constitution would

inflict. That large and respectable class of moral reformers which so justly demands the observance and enforcement of law, cannot afford to take its first reformatory step by a violation of the constitution. How can it consistently demand of others obedience to a constitution which it violates itself? The people can in a short time re-enact the amendment. In the manner of a great moral reform, the loss of a few years is nothing. The constitution is the palladium of republican freedom. The young men coming forward upon the stage of political action must be educated to venerate it; those already upon the stage must be taught to obey it. Whatever interest may be advanced or may suffer, whoever or whatever may be 'voted up or voted down,' no sacrilegious hand must be laid upon the constitution."120 WHEREFORE, I vote to DISMISS the petition in G.R. No. 174153 and to GRANT the petition in G.R. No. 174299. ROMEO Associate Justice

J.

CALLEJO,

SR.

____________________ EN BANC G.R. No. 174153 (RAUL LAMBINO, ET AL. vs. COMMISSION ON ELECTIONS, ET AL.) and G.R. No. 174299 (MAR-LEN ABIGAIL BINAY, ET AL. vs. COMMISSION ON ELECTIONS, ET AL.). x ---------------------------------------------------------------------------------------- x SEPARATE OPINION AZCUNA, J.: "Why, friends, you go to do you know not what." -- Shakespeare, Julius Caesar, Act III, Sc. 2. Article XVII of the Constitution states: AMENDMENTS OR REVISIONS Section 1. Any amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its members; or (2) A constitutional convention. Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered votes therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right. Sec. 3. The Congress 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 to the electorate the question of calling such a convention.

Sec. 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the approval of such amendment or revision. Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the certification by the Commission on Elections of the sufficiency of the petition. This Article states the procedure for changing the Constitution. Constitutions have three parts – the Constitution of Liberty, which states the fundamental rights of the people; the Constitution of Government, which establishes the structure of government, its branches and their operation; and the Constitution of Sovereignty, which provides how the Constitution may be changed. Article XVII is the Constitution of Sovereignty. As a result, the powers therein provided are called constituent powers. So when Congress acts under this provision, it acts not as a legislature exercising legislative powers. It acts as a constituent body exercising constituent powers. The rules, therefore, governing the exercise of legislative powers do not apply, or do not apply strictly, to the actions taken under Article XVII. Accordingly, since Article XVII states that Congress shall provide for the implementation of the exercise of the people's right directly to propose amendments to the Constitution through initiative, the act of Congress pursuant thereto is not strictly a legislative action but partakes of a constituent act. As a result, Republic Act No. 6735, the act that provides for the exercise of the people of the right to propose a law or amendments to the Constitution is, with respect to the right to propose amendments to the Constitution, a constituent measure, not a mere legislative one. The consequence of this special character of the enactment, insofar as it relates to proposing amendments to the Constitution, is that the requirements for statutory enactments, such as sufficiency of standards and the like, do not and should not strictly apply. As long as there is a sufficient and clear intent to provide for the implementation of the exercise of the right, it should be sustained, as it is simply a compliance of the mandate placed on Congress by the Constitution. Seen in this light, the provisions of Republic Act No. 6735 relating to the procedure for proposing amendments to the Constitution, can and should be upheld, despite shortcomings perhaps in legislative headings and standards. For this reason, I concur in the view that Santiago v. Comelec1 should be re-examined and, after doing so, that the pronouncement therein regarding the insufficiency or inadequacy of the measure to sustain a people's initiative to amend the Constitution should be reconsidered in favor of allowing the exercise of this sovereign right. And applying the doctrine stated in Senarillos v. Hermosisima,2 penned by Justice J.B.L. Reyes, in relation to Article 8 of the Civil Code, that a decision of this Court interpreting a law forms part of the law interpreted as of the time of its enactment, Republic Act No. 6735 should be deemed sufficient and adequate from the start. This next point to address, there being a sufficient law, is whether the petition for initiative herein involved complies with the requirements of that law as well as those stated in Article XVII of the Constitution.

True it is that ours is a democratic state, as explicitated in the Declaration of Principles, to emphasize precisely that there are instances recognized and provided for in the Constitution where our people directly exercise their sovereign powers, new features set forth in this People Power Charter, namely, the powers of recall, initiative and referendum. Nevertheless, this democratic nature of our polity is that of a democracy under the rule of law. This equally important point is emphasized in the very Preamble to the Constitution, which states: ". . . the blessings of . . . democracy under the rule of law . . . ." Such is the case with respect to the power to initiate changes in the Constitution. The power is subject to limitations under the Constitution itself, thus: The power could not be exercised for the first five years after the Constitution took effect and thereafter can only be exercised once every five years; the power only extends to proposing amendments but not revisions; and the power needs an act of Congress providing for its implementation, which act is directed and mandated. The question, therefore, arises whether the proposed changes in the Constitution set forth in the petition for initiative herein involved are mere amendments or rather are revisions. Revisions are changes that affect the entire Constitution and not mere parts of it. The reason why revisions are not allowed through direct proposals by the people through initiative is a practical one, namely, there is no one to draft such extensive changes, since 6.3 million people cannot conceivably come up with a single extensive document through a direct proposal from each of them. Someone would have to draft it and that is not authorized as it would not be a direct proposal from the people. Such indirect proposals can only take the form of proposals from Congress as a Constituent Assembly under Article XVII, or a Constitutional Convention created under the same provision. Furthermore, there is a need for such deliberative bodies for revisions because their proceedings and debates are duly and officially recorded, so that future cases of interpretations can be properly aided by resort to the record of their proceedings. Even a cursory reading of the proposed changes contained in the petition for initiative herein involved will show on its face that the proposed changes constitute a revision of the Constitution. The proposal is to change the system of government from that which is bicameralpresidential to one that is unicameral-parliamentary. While purportedly only Articles VI, VII, and XVIII are involved, the fact is, as the petition and text of the proposed changes themselves state, every provision of the Constitution will have to be examined to see if they conform to the nature of a unicameral-parliamentary form of government and changed accordingly if they do not so conform to it. For example, Article VIII on Judicial Department cannot stand as is, in a parliamentary system, for under such a system, the Parliament is supreme, and thus the Court's power to declare its act a grave abuse of discretion and thus void would be an anomaly. Now, who is to do such examination and who is to do such changes and how should the changes be worded? The proposed initiative does not say who nor how. Not only, therefore, is the proposed initiative, on this score, a prohibited revision but it also suffers from being incomplete and insufficient on its very face. It, therefore, in that form, cannot pass muster the very limits contained in providing for the power under the Constitution. Neither does it comply with Republic Act No. 6735, which states in Section 10 that not more than one subject shall be proposed as an amendment or amendments to the Constitution. The petition herein would propose at the very least two subjects – a unicameral legislature and a parliamentary form of government. Again, for this clear and patent violation of the very act that provides for the exercise of the power, the proposed initiative cannot lie.

This does not mean, however, that all is lost for petitioners. For the proposed changes can be separated and are, in my view, separable in nature – a unicameral legislature is one; a parliamentary form of government is another. The first is a mere amendment and contains only one subject matter. The second is clearly a revision that affects every article and every provision in the Constitution to an extent not even the proponents could at present fully articulate. Petitioners Lambino, et al. thus go about proposing changes the nature and extent of which they do not as yet know exactly what. The proposal, therefore, contained in the petition for initiative, regarding a change in the legislature from a bicameral or two-chamber body to that of a unicameral or one-chamber body, is sustainable. The text of the changes needed to carry it out are perfunctory and ministerial in nature. Once it is limited to this proposal, the changes are simply one of deletion and insertions, the wordings of which are practically automatic and non-discretionary. As an example, I attach to this opinion an Appendix "A" showing how the Constitution would read if we were to change Congress from one consisting of the Senate and the House of Representatives to one consisting only of the House of Representatives. It only affects Article VI on the Legislative Department, some provisions on Article VII on the Executive Department, as well as Article XI on the Accountability of Public Officers, and Article XVIII on Transitory Provisions. These are mere amendments, substantial ones indeed but still only amendments, and they address only one subject matter. Such proposal, moreover, complies with the intention and rationale behind the present initiative, which is to provide for simplicity and economy in government and reduce the stalemates that often prevent needed legislation. For the nonce, therefore, I vote to DISMISS the petition, without prejudice to the filing of an appropriate initiative to propose amendments to the Constitution to change Congress into a unicameral body. This is not say that I favor such a change. Rather, such a proposal would come within the purview of an initiative allowed under Article XVII of the Constitution and its implementing Republic Act, and should, therefore, be submitted to our people in a plebiscite for them to decide in their sovereign capacity. After all is said and done, this is what democracy under the rule of law is about. ADOLFO Associate Justice

S.

AZCUNA

____________________ EN BANC G. R. No. 174153

October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED VOTERS vs. THE COMMISSION ON ELECTIONS G.R. No. 174299

October 25, 2006

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

"It is a Constitution we are expounding…"1 – Chief Justice John Marshall DISSENTING OPINION PUNO, J.: The petition at bar is not a fight over molehills. At the crux of the controversy is the critical understanding of the first and foremost of our constitutional principles — "the Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them."2 Constitutionalism dictates that this creed must be respected with deeds; our belief in its validity must be backed by behavior. This is a Petition for Certiorari and Mandamus to set aside the resolution of respondent Commission on Elections (COMELEC) dated August 31, 2006, denying due course to the Petition for Initiative filed by petitioners Raul L. Lambino and Erico B. Aumentado in their own behalf and together with some 6.3 million registered voters who have affixed their signatures thereon, and praying for the issuance of a writ of mandamus to compel respondent COMELEC to set the date of the plebiscite for the ratification of the proposed amendments to the Constitution in accordance with Section 2, Article XVII of the 1987 Constitution. First, a flashback of the proceedings of yesteryears. In 1996, the Movement for People's Initiative sought to exercise the sovereign people's power to directly propose amendments to the Constitution through initiative under Section 2, Article XVII of the 1987 Constitution. Its founding member, Atty. Jesus S. Delfin, filed with the COMELEC on December 6, 1996, a "Petition to Amend the Constitution, to Lift Term Limits of Elective Officials, by People's Initiative" (Delfin Petition). It proposed to amend Sections 4 and 7 of Article VI, Section 4 of Article VII, and Section 8 of Article X of the 1987 Constitution by deleting the provisions on the term limits for all elective officials. The Delfin Petition stated that the Petition for Initiative would first be submitted to the people and would be formally filed with the COMELEC after it is signed by at least twelve per cent (12%) of the total number of registered voters in the country. It thus sought the assistance of the COMELEC in gathering the required signatures by fixing the dates and time therefor and setting up signature stations on the assigned dates and time. The petition prayed that the COMELEC issue an Order (1) fixing the dates and time for signature gathering all over the country; (2) causing the publication of said Order and the petition for initiative in newspapers of general and local circulation; and, (3) instructing the municipal election registrars in all the regions of the Philippines to assist petitioner and the volunteers in establishing signing stations on the dates and time designated for the purpose. The COMELEC conducted a hearing on the Delfin Petition. On December 18, 1996, Senator Miriam Defensor Santiago, Alexander Padilla and Maria Isabel Ongpin filed a special civil action for prohibition before this Court, seeking to restrain the COMELEC from further considering the Delfin Petition. They impleaded as respondents the COMELEC, Delfin, and Alberto and Carmen Pedrosa (Pedrosas) in their capacities as founding members of the People's Initiative for Reforms, Modernization and Action (PIRMA) which was likewise engaged in signature gathering to support an initiative to amend the Constitution. They argued that the constitutional provision on people's initiative may only be implemented by a law passed by Congress; that no such law has yet been enacted by Congress; that Republic Act No. 6735 relied upon by Delfin does not cover the initiative to amend the Constitution; and that COMELEC Resolution No. 2300, the implementing rules adopted by the COMELEC on the conduct of initiative, was ultra vires insofar as the initiative to amend the Constitution was concerned. The case was docketed as G.R. No. 127325, entitled Santiago v. Commission on Elections.3 Pending resolution of the case, the Court issued a temporary restraining order enjoining the COMELEC from proceeding with the Delfin Petition and the Pedrosas from conducting a signature drive for people's initiative to amend the Constitution.

On March 19, 1997, the Court rendered its decision on the petition for prohibition. The Court ruled that the constitutional provision granting the people the power to directly amend the Constitution through initiative is not self-executory. An enabling law is necessary to implement the exercise of the people's right. Examining the provisions of R.A. 6735, a majority of eight (8) members of the Court held that said law was "incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned,"4 and thus voided portions of COMELEC Resolution No. 2300 prescribing rules and regulations on the conduct of initiative on amendments to the Constitution. It was also held that even if R.A. 6735 sufficiently covered the initiative to amend the Constitution and COMELEC Resolution No. 2300 was valid, the Delfin Petition should still be dismissed as it was not the proper initiatory pleading contemplated by law. Under Section 2, Article VII of the 1987 Constitution and Section 5(b) of R.A. 6735, a petition for initiative on the Constitution must be signed by at least twelve per cent (12%) of the total number of registered voters, of which every legislative district is represented by at least three per cent (3%) of the registered voters therein. The Delfin Petition did not contain signatures of the required number of voters. The decision stated: CONCLUSION This petition must then be granted, and the COMELEC should be permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system. We feel, however, that the system of initiative to propose amendments to the Constitution should no longer be kept in the cold; it should be given flesh and blood, energy and strength. Congress should not tarry any longer in complying with the constitutional mandate to provide for the implementation of the right of the people under that system. WHEREFORE, judgment is hereby rendered a) GRANTING the instant petition; b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to the Constitution, and to have failed to provide sufficient standard for subordinate legislation; c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections prescribing rules and regulations on the conduct of initiative or amendments to the Constitution; and d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-037). The Temporary Restraining Order issued on 18 December 1996 is made permanent against the Commission on Elections, but is LIFTED as against private respondents.5 Eight (8) members of the Court, namely, then Associate Justice Hilario G. Davide, Jr. (ponente), Chief Justice Andres R. Narvasa, and Associate Justices Florenz D. Regalado, Flerida Ruth P. Romero, Josue N. Bellosillo, Santiago M. Kapunan, Regino C. Hermosisima, Jr. and Justo P. Torres, fully concurred in the majority opinion. While all the members of the Court who participated in the deliberation6 agreed that the Delfin Petition should be dismissed for lack of the required signatures, five (5) members, namely, Associate Justices Jose A.R. Melo, Reynato S. Puno, Vicente V. Mendoza, Ricardo J. Francisco and Artemio V. Panganiban, held that R.A. 6735 was sufficient and adequate to implement the people's right to amend the Constitution through initiative, and that COMELEC Resolution No. 2300 validly provided the details for the actual exercise of such right. Justice Jose C. Vitug, on the other hand, opined that the Court should confine itself to resolving the

issue of whether the Delfin Petition sufficiently complied with the requirements of the law on initiative, and there was no need to rule on the adequacy of R.A. 6735. The COMELEC, Delfin and the Pedrosas filed separate motions for reconsideration of the Court's decision. After deliberating on the motions for reconsideration, six (6)7 of the eight (8) majority members maintained their position that R.A. 6735 was inadequate to implement the provision on the initiative on amendments to the Constitution. Justice Torres filed an inhibition, while Justice Hermosisima submitted a Separate Opinion adopting the position of the minority that R.A. 6735 sufficiently covers the initiative to amend the Constitution. Hence, of the thirteen (13) members of the Court who participated in the deliberation, six (6) members, namely, Chief Justice Narvasa and Associate Justices Regalado, Davide, Romero, Bellosillo and Kapunan voted to deny the motions for lack of merit; and six (6) members, namely, Associate Justices Melo, Puno, Mendoza, Francisco, Hermosisima and Panganiban voted to grant the same. Justice Vitug maintained his opinion that the matter was not ripe for judicial adjudication. The motions for reconsideration were therefore denied for lack of sufficient votes to modify or reverse the decision of March 19, 1997.8 On June 23, 1997, PIRMA filed with the COMELEC a Petition for Initiative to Propose Amendments to the Constitution (PIRMA Petition). The PIRMA Petition was supported by around five (5) million signatures in compliance with R.A. 6735 and COMELEC Resolution No. 2300, and prayed that the COMELEC, among others: (1) cause the publication of the petition in Filipino and English at least twice in newspapers of general and local circulation; (2) order all election officers to verify the signatures collected in support of the petition and submit these to the Commission; and (3) set the holding of a plebiscite where the following proposition would be submitted to the people for ratification: Do you approve amendments to the 1987 Constitution giving the President the chance to be reelected for another term, similarly with the Vice-President, so that both the highest officials of the land can serve for two consecutive terms of six years each, and also to lift the term limits for all other elective government officials, thus giving Filipino voters the freedom of choice, amending for that purpose, Section 4 of Article VII, Sections 4 and 7 of Article VI and Section 8 of Article X, respectively? The COMELEC dismissed the PIRMA Petition in view of the permanent restraining order issued by the Court in Santiago v. COMELEC. PIRMA filed with this Court a Petition for Mandamus and Certiorari seeking to set aside the COMELEC Resolution dismissing its petition for initiative. PIRMA argued that the Court's decision on the Delfin Petition did not bar the COMELEC from acting on the PIRMA Petition as said ruling was not definitive based on the deadlocked voting on the motions for reconsideration, and because there was no identity of parties and subject matter between the two petitions. PIRMA also urged the Court to reexamine its ruling in Santiago v. COMELEC. The Court dismissed the petition for mandamus and certiorari in its resolution dated September 23, 1997. It explained: The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be attributed to the public respondent COMELEC in dismissing the petition filed by PIRMA therein, it appearing that it only complied with the dispositions in the Decision of this Court in G.R. No. 127325 promulgated on March 19, 1997, and its Resolution of June 10, 1997. The Court next considered the question of whether there was need to resolve the second issue posed by the petitioners, namely, that the Court re-examine its ruling as regards R.A. 6735. On this issue, the Chief Justice and six (6) other members of the Court, namely, Regalado, Davide, Romero, Bellosillo, Kapunan and Torres, JJ., voted that there was no need to take it up. Vitug, J., agreed that there was no need for reexamination of said second issue since the case at bar is not the proper vehicle for that purpose. Five (5) other members of the Court, namely, Melo, Puno, Francisco,

Hermosisima, and Panganiban, JJ., opined that there was a need for such a reexamination x x x x9 In their Separate Opinions, Justice (later Chief Justice) Davide and Justice Bellosillo stated that the PIRMA petition was dismissed on the ground of res judicata. Now, almost a decade later, another group, Sigaw ng Bayan, seeks to utilize anew the system of initiative to amend the Constitution, this time to change the form of government from bicameral-presidential to unicameral-parliamentary system. Let us look at the facts of the petition at bar with clear eyes. On February 15, 2006, Sigaw ng Bayan, in coordination with Union of Local Authorities of the Philippines (ULAP), embarked on a nationwide drive to gather signatures to support the move to adopt the parliamentary form of government in the country through charter change. They proposed to amend the Constitution as follows: A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended to read as follows: Section 1. (1) The legislative and executive powers shall be vested in a unicameral Parliament which shall be composed of as many members as may be provided by law, to be apportioned among the provinces, representative districts, and cities in accordance with the number of their respective inhabitants, with at least three hundred thousand inhabitants per district, and on the basis of a uniform and progressive ratio. Each district shall comprise, as far as practicable, contiguous, compact and adjacent territory, and each province must have at least one member. (2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at least twenty-five years old on the day of the election, a resident of his district for at least one year prior thereto, and shall be elected by the qualified voters of his district for a term of five years without limitation as to the number thereof, except those under the party-list system which shall be provided for by law and whose number shall be equal to twenty per centum of the total membership coming from the parliamentary districts. B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are hereby amended to read, as follows: Section 1. There shall be a President who shall be the Head of State. The executive power shall be exercised by a Prime Minister, with the assistance of the Cabinet. The Prime Minister shall be elected by a majority of all the Members of Parliament from among themselves. He shall be responsible to the Parliament for the program of government. C. For the purpose of insuring an orderly transition from the bicameralPresidential to a unicameral-Parliamentary form of government, there shall be a new Article XVIII, entitled "Transitory Provisions," which shall read, as follows: Section 1. (1) The incumbent President and Vice President shall serve until the expiration of their term at noon on the thirtieth day of June 2010 and shall continue to exercise their powers under the 1987 Constitution unless impeached by a vote of two thirds of all the members of the interim parliament. (2) In case of death, permanent disability, resignation or removal from office of the incumbent President, the incumbent Vice President shall succeed as President. In case of death, permanent disability, resignation or removal from office of both the incumbent President and Vice President, the interim Prime Minister shall assume all the powers and responsibilities of Prime Minister under Article VII as amended.

Section 2. Upon the expiration of the term of the incumbent President and Vice President, with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall hereby be amended and Sections 18 and 24 which shall be deleted, all other Sections of Article VI are hereby retained and renumbered sequentially as Section 2, ad seriatim up to 26, unless they are inconsistent with the Parliamentary system of government, in which case, they shall be amended to conform with a unicameral parliamentary form of government; provided, however, that any and all references therein to "Congress," "Senate," "House of Representatives" and "Houses of Congress" shall be changed to read "Parliament;" that any and all references therein to "Member(s) of Congress," "Senator(s)" or "Member(s) of the House of Representatives" shall be changed to read as "Member(s) of Parliament" and any and all references to the "President" and/or "Acting President" shall be changed to read "Prime Minister." Section 3. Upon the expiration of the term of the incumbent President and Vice President, with the exception of Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution which are hereby amended and Sections 7, 8, 9, 10, 11 and 12 which are hereby deleted, all other Sections of Article VII shall be retained and renumbered sequentially as Section 2, ad seriatim up to 14, unless they shall be inconsistent with Section 1 hereof, in which case they shall be deemed amended so as to conform to a unicameral Parliamentary System of government; provided, however, that any all references therein to "Congress," "Senate," "House of Representatives" and "Houses of Congress" shall be changed to read "Parliament;" that any and all references therein to "Member(s) of Congress," "Senator(s)" or "Member(s) of the House of Representatives" shall be changed to read as "Member(s) of Parliament" and any and all references to the "President" and or "Acting President" shall be changed to read "Prime Minister." Section 4. (1) There shall exist, upon the ratification of these amendments, an interim Parliament which shall continue until the Members of the regular Parliament shall have been elected and shall have qualified. It shall be composed of the incumbent Members of the Senate and the House of Representatives and the incumbent Members of the Cabinet who are heads of executive departments. (2) The incumbent Vice President shall automatically be a Member of Parliament until noon of the thirtieth day of June 2010. He shall also be a member of the cabinet and shall head a ministry. He shall initially convene the interim Parliament and shall preside over its sessions for the election of the interim Prime Minister and until the Speaker shall have been elected by a majority vote of all the members of the interim Parliament from among themselves. (3) Senators whose term of office ends in 2010 shall be Members of Parliament until noon of the thirtieth day of June 2010. (4) Within forty-five days from ratification of these amendments, the interim Parliament shall convene to propose amendments to, or revisions of, this Constitution consistent with the principles of local autonomy, decentralization and a strong bureaucracy. Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate, from among the members of the interim Parliament, an interim Prime Minister, who shall be elected by a majority vote of the members thereof. The interim Prime Minister shall oversee the various ministries and shall perform such powers and responsibilities as may be delegated to him by the incumbent President." (2) The interim Parliament shall provide for the election of the members of Parliament, which shall be synchronized and held simultaneously with the election of all local government officials. The duly elected Prime Minister shall

continue to exercise and perform the powers, duties and responsibilities of the interim Prime Minister until the expiration of the term of the incumbent President and Vice President.10 Sigaw ng Bayan prepared signature sheets, on the upper portions of which were written the abstract of the proposed amendments, to wit: Abstract: Do you approve of the amendment of Articles VI and VII of the 1987 Constitution, changing the form of government from the present bicameral-presidential to a unicameral-parliamentary system of government, in order to achieve greater efficiency, simplicity and economy in government; and providing an Article XVIII as Transitory Provisions for the orderly shift from one system to another? The signature sheets were distributed nationwide to affiliated non-government organizations and volunteers of Sigaw ng Bayan, as well as to the local officials. Copies of the draft petition for initiative containing the proposition were also circulated to the local officials and multi-sectoral groups. Sigaw ng Bayan alleged that it also held barangay assemblies which culminated on March 24, 25 and 26, 2006, to inform the people and explain to them the proposed amendments to the Constitution. Thereafter, they circulated the signature sheets for signing. The signature sheets were then submitted to the local election officers for verification based on the voters' registration record. Upon completion of the verification process, the respective local election officers issued certifications to attest that the signature sheets have been verified. The verified signature sheets were subsequently transmitted to the office of Sigaw ng Bayan for the counting of the signatures. On August 25, 2006, herein petitioners Raul L. Lambino and Erico B. Aumentado filed with the COMELEC a Petition for Initiative to Amend the Constitution entitled "In the Matter of Proposing Amendments to the 1987 Constitution through a People's Initiative: A Shift from a Bicameral Presidential to a Unicameral Parliamentary Government by Amending Articles VI and VII; and Providing Transitory Provisions for the Orderly Shift from the Presidential to the Parliamentary System." They filed an Amended Petition on August 30, 2006 to reflect the text of the proposed amendment that was actually presented to the people. They alleged that they were filing the petition in their own behalf and together with some 6.3 million registered voters who have affixed their signatures on the signature sheets attached thereto. Petitioners appended to the petition signature sheets bearing the signatures of registered voters which they claimed to have been verified by the respective city or municipal election officers, and allegedly constituting at least twelve per cent (12%) of all registered voters in the country, wherein each legislative district is represented by at least three per cent (3%) of all the registered voters therein. As basis for the filing of their petition for initiative, petitioners averred that Section 5 (b) and (c), together with Section 7 of R.A. 6735, provide sufficient enabling details for the people's exercise of the power. Hence, petitioners prayed that the COMELEC issue an Order: 1. Finding the petition to be sufficient pursuant to Section 4, Article XVII of the 1987 Constitution; 2. Directing the publication of the petition in Filipino and English at least twice in newspapers of general and local circulation; and 3. Calling a plebiscite to be held not earlier than sixty nor later than ninety days after the Certification by the COMELEC of the sufficiency of the petition, to allow the Filipino people to express their sovereign will on the proposition. Several groups filed with the COMELEC their respective oppositions to the petition for initiative, among them ONEVOICE, Inc., Christian S. Monsod, Rene B. Azurin, Manuel L. Quezon III, Benjamin T. Tolosa, Jr., Susan V. Ople, and Carlos P. Medina, Jr.; Alternative Law Groups, Inc., Senate Minority Leader Aquilino Q. Pimentel, Jr., Senators Sergio Osmeña III,

Jamby A.S. Madrigal, Alfredo S. Lim, Panfilo M. Lacson, Luisa P. Ejercito-Estrada, and Jinggoy Estrada; Representatives Loretta Ann P. Rosales, Mario Joyo Aguja, and Ana Theresia Hontiveros-Baraquel; Bayan, Kilusang Mayo Uno, Ecumenical Bishops Forum, Migrante, Gabriela, Gabriela Women's Party, Anakbayan, League of Filipino Students, Leonardo San Jose, Jojo Pineda, Drs. Darby Santiago and Reginald Pamugas; Attys. Pete Quirino-Quadra, Jose Anselmo I. Cadiz, Byron D. Bocar, Ma. Tanya Karina A. Lat, Antonio L. Salvador, and Randall C. Tabayoyong. On August 31, 2006, the COMELEC denied due course to the Petition for Initiative. It cited this Court's ruling in Santiago v. COMELEC11 permanently enjoining the Commission from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system. Forthwith, petitioners filed with this Court the instant Petition for Certiorari and Mandamus praying that the Court set aside the August 31, 2006 resolution of the COMELEC, direct respondent COMELEC to comply with Section 4, Article XVII of the Constitution, and set the date of the plebiscite. They state the following grounds in support of the petition: I. The Honorable public respondent COMELEC committed grave abuse of discretion in refusing to take cognizance of, and to give due course to the petition for initiative, because the cited Santiago ruling of 19 March 1997 cannot be considered the majority opinion of the Supreme Court en banc, considering that upon its reconsideration and final voting on 10 June 1997, no majority vote was secured to declare Republic Act No. 6735 as inadequate, incomplete and insufficient in standard. II. The 1987 Constitution, Republic Act No. 6735, Republic Act No. 8189 and existing appropriation of the COMELEC provide for sufficient details and authority for the exercise of people's initiative, thus, existing laws taken together are adequate and complete. III. The Honorable public respondent COMELEC committed grave abuse of discretion in refusing to take cognizance of, and in refusing to give due course to the petition for initiative, thereby violating an express constitutional mandate and disregarding and contravening the will of the people. A. Assuming in arguendo that there is no enabling law, respondent COMELEC cannot ignore the will of the sovereign people and must accordingly act on the petition for initiative. 1. The framers of the Constitution intended to give the people the power to propose amendments and the people themselves are now giving vibrant life to this constitutional provision. 2. Prior to the questioned Santiago ruling of 19 March 1997, the right of the people to exercise the sovereign power of initiative and recall has been invariably upheld. 3.

The exercise of the initiative to propose amendments is a political question which shall be determined solely by the sovereign people. 4. By signing the signature sheets attached to the petition for initiative duly verified by the election officers, the people have chosen to perform this sacred exercise of their sovereign power. B. The Santiago ruling of 19 March 1997 is not applicable to the instant petition for initiative filed by the petitioners. C. The permanent injunction issued in Santiago vs. COMELEC only applies to the Delfin petition. 1. It is the dispositive portion of the decision and not other statements in the body of the decision that governs the rights in controversy. IV. The Honorable public respondent failed or neglected to act or perform a duty mandated by law. A. The ministerial duty of the COMELEC is to set the initiative for plebiscite.12 The oppositors-intervenors, ONEVOICE, Inc., Christian S. Monsod, Rene B. Azurin, Manuel L. Quezon III, Benjamin T. Tolosa, Jr., Susan V. Ople, and Carlos P. Medina, Jr.; Alternative Law Groups, Inc.; Bayan, Kilusang Mayo Uno, Ecumenical Bishops Forum, Migrante Gabriela, Gabriela Women's Party, Anakbayan, League of Filipino Students, Leonardo San Jose, Jojo Pineda, Dr. Darby Santiago, and Dr. Reginald Pamugas; Senate Minority Leader Aquilino Q. Pimentel, Jr., and Senators Sergio Osmeña III, Jamby A.S. Madrigal, Alfredo S. Lim, Panfilo M. Lacson, Luisa P. Ejercito-Estrada, and Jinggoy Estrada; Representatives Loretta Ann P. Rosales, Mario Joyo Aguja, and Ana Theresia Hontiveros-Baraquel; and Attys. Pete QuirinoQuadra, Jose Anselmo I. Cadiz, Byron D. Bocar, Ma. Tanya Karina A. Lat, Antonio L. Salvador, and Randall C. Tabayoyong moved to intervene in this case and filed their respective Oppositions/Comments-in-Intervention. The Philippine Constitution Association, Conrado F. Estrella, Tomas C. Toledo, Mariano M. Tajon, Froilan M. Bacungan, Joaquin T. Venus, Jr., Fortunato P. Aguas, and Amado Gat Inciong; the Integrated Bar of the Philippines Cebu City and Cebu Province Chapters; former President Joseph Ejercito Estrada and Pwersa ng Masang Pilipino; and the Senate of the Philippines, represented by Senate President Manuel Villar, Jr., also filed their respective motions for intervention and Comments-in-Intervention. The Trade Union Congress of the Philippines, Sulongbayan Movement Foundation, Inc., Ronald L. Adamat, Rolando Manuel Rivera, Ruelo Baya, Philippine Transport and General Workers Organization, and Victorino F. Balais likewise moved to intervene and submitted to the Court a Petition-in-Intervention. All interventions and oppositions were granted by the Court. The oppositors-intervenors essentially submit that the COMELEC did not commit grave abuse of discretion in denying due course to the petition for initiative as it merely followed this Court's

ruling in Santiago v. COMELEC as affirmed in the case of PIRMA v. COMELEC, based on the principle of stare decisis; that there is no sufficient law providing for the authority and the details for the exercise of people's initiative to amend the Constitution; that the proposed changes to the Constitution are actually revisions, not mere amendments; that the petition for initiative does not meet the required number of signatories under Section 2, Article XVII of the 1987 Constitution; that it was not shown that the people have been informed of the proposed amendments as there was disparity between the proposal presented to them and the proposed amendments attached to the petition for initiative, if indeed there was; that the verification process was done ex parte, thus rendering dubious the signatures attached to the petition for initiative; and that petitioners Lambino and Aumentado have no legal capacity to represent the signatories in the petition for initiative. The Office of the Solicitor General (OSG), in compliance with the Court's resolution of September 5, 2006, filed its Comment to the petition. Affirming the position of the petitioners, the OSG prayed that the Court grant the petition at bar and render judgment: (1) declaring R.A. 6735 as adequate to cover or as reasonably sufficient to implement the system of initiative on amendments to the Constitution and as having provided sufficient standards for subordinate legislation; (2) declaring as valid the provisions of COMELEC Resolution No. 2300 on the conduct of initiative or amendments to the Constitution; (3) setting aside the assailed resolution of the COMELEC for having been rendered with grave abuse of discretion amounting to lack or excess of jurisdiction; and, (4) directing the COMELEC to grant the petition for initiative and set the corresponding plebiscite pursuant to R.A. 6735, COMELEC Resolution No. 2300, and other pertinent election laws and regulations. The COMELEC filed its own Comment stating that its resolution denying the petition for initiative is not tainted with grave abuse of discretion as it merely adhered to the ruling of this Court in Santiago v. COMELEC which declared that R.A. 6735 does not adequately implement the constitutional provision on initiative to amend the Constitution. It invoked the permanent injunction issued by the Court against the COMELEC from taking cognizance of petitions for initiative on amendments to the Constitution until a valid enabling law shall have been passed by Congress. It asserted that the permanent injunction covers not only the Delfin Petition, but also all other petitions involving constitutional initiatives. On September 26, 2006, the Court heard the case. The parties were required to argue on the following issues:13 1. Whether petitioners Lambino and Aumentado are proper parties to file the present Petition in behalf of the more than six million voters who allegedly signed the proposal to amend the Constitution. 2. Whether the Petitions for Initiative filed before the Commission on Elections complied with Section 2, Article XVII of the Constitution. 3. Whether the Court's decision in Santiago v. COMELEC (G.R. No. 127325, March 19, 1997) bars the present petition. 4. Whether the Court should re-examine the ruling in Santiago v. COMELEC that there is no sufficient law implementing or authorizing the exercise of people's initiative to amend the Constitution. 5. Assuming R.A. 6735 is sufficient, whether the Petitions for Initiative filed with the COMELEC have complied with its provisions. 5.1 Whether the said petitions are sufficient in form and substance. 5.2 Whether the proposed changes embrace more than one subject matter. 6. Whether the proposed changes constitute an amendment or revision of the Constitution. 6.1 Whether the proposed changes are the proper subject of an initiative.

7. Whether the exercise of an initiative to propose amendments to the Constitution is a political question to be determined solely by the sovereign people. 8. Whether the Commission on Elections committed grave abuse of discretion in dismissing the Petitions for Initiative filed before it. With humility, I offer the following views to these issues as profiled: I Petitioners Lambino and Aumentado are proper parties to file the present Petition in behalf of the more than six million voters who allegedly signed the proposal to amend the Constitution. Oppositors-intervenors contend that petitioners Lambino and Aumentado are not the proper parties to file the instant petition as they were not authorized by the signatories in the petition for initiative. The argument deserves scant attention. The Constitution requires that the petition for initiative should be filed by at least twelve per cent (12%) of all registered voters, of which every legislative district must be represented by at least three per cent (3%) of all the registered voters therein. The petition for initiative filed by Lambino and Aumentado before the COMELEC was accompanied by voluminous signature sheets which prima facie show the intent of the signatories to support the filing of said petition. Stated above their signatures in the signature sheets is the following: x x x My signature herein which shall form part of the petition for initiative to amend the Constitution signifies my support for the filing thereof.14 There is thus no need for the more than six (6) million signatories to execute separate documents to authorize petitioners to file the petition for initiative in their behalf. Neither is it necessary for said signatories to authorize Lambino and Aumentado to file the petition for certiorari and mandamus before this Court. Rule 65 of the 1997 Rules of Civil Procedure provides who may file a petition for certiorari and mandamus. Sections 1 and 3 of Rule 65 read: SECTION 1. Petition for certiorari.—When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court x x x x. SEC. 3. Petition for mandamus.—When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station x x x and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court x x x x. Thus, any person aggrieved by the act or inaction of the respondent tribunal, board or officer may file a petition for certiorari or mandamus before the appropriate court. Certainly, Lambino and Aumentado, as among the proponents of the petition for initiative dismissed by the COMELEC, have the standing to file the petition at bar. II The doctrine of stare decisis does not bar the reexamination of Santiago. The latin phrase stare decisis et non quieta movere means "stand by the thing and do not disturb the calm." The doctrine started with the English Courts.15 Blackstone observed that at the beginning of the 18th century, "it is an established rule to abide by former precedents where

the same points come again in litigation."16 As the rule evolved, early limits to its application were recognized: (1) it would not be followed if it were "plainly unreasonable;" (2) where courts of equal authority developed conflicting decisions; and, (3) the binding force of the decision was the "actual principle or principles necessary for the decision; not the words or reasoning used to reach the decision."17 The doctrine migrated to the United States. It was recognized by the framers of the U.S. Constitution.18 According to Hamilton, "strict rules and precedents" are necessary to prevent "arbitrary discretion in the courts."19 Madison agreed but stressed that "x x x once the precedent ventures into the realm of altering or repealing the law, it should be rejected."20 Prof. Consovoy well noted that Hamilton and Madison "disagree about the countervailing policy considerations that would allow a judge to abandon a precedent." 21 He added that their ideas "reveal a deep internal conflict between the concreteness required by the rule of law and the flexibility demanded in error correction. It is this internal conflict that the Supreme Court has attempted to deal with for over two centuries."22 Indeed, two centuries of American case law will confirm Prof. Consovoy's observation although stare decisisdeveloped its own life in the United States. Two strains of stare decisis have been isolated by legal scholars.23 The first, known as vertical stare decisis deals with the duty of lower courts to apply the decisions of the higher courts to cases involving the same facts. The second, known as horizontal stare decisis requires that high courts must follow its own precedents. Prof. Consovoy correctly observes that vertical stare decisis has been viewed as an obligation, while horizontal stare decisis, has been viewed as a policy, imposing choice but not a command.24 Indeed, stare decisis is not one of the precepts set in stone in our Constitution. It is also instructive to distinguish the two kinds of horizontal stare decisis — constitutional stare decisis and statutory stare decisis.25 Constitutional stare decisis involves judicial interpretations of the Constitution while statutory stare decisis involves interpretations of statutes. The distinction is important for courts enjoy more flexibility in refusing to apply stare decisis in constitutional litigations. Justice Brandeis' view on the binding effect of the doctrine in constitutional litigations still holds sway today. In soothing prose, Brandeis stated: "Stare decisis is not . . . a universal and inexorable command. The rule of stare decisis is not inflexible. Whether it shall be followed or departed from, is a question entirely within the discretion of the court, which is again called upon to consider a question once decided."26 In the same vein, the venerable Justice Frankfurter opined: "the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it."27 In contrast, the application of stare decisis on judicial interpretation of statutes is more inflexible. As Justice Stevens explains: "after a statute has been construed, either by this Court or by a consistent course of decision by other federal judges and agencies, it acquires a meaning that should be as clear as if the judicial gloss had been drafted by the Congress itself."28 This stance reflects both respect for Congress' role and the need to preserve the courts' limited resources. In general, courts follow the stare decisis rule for an ensemble of reasons,29 viz: (1) it legitimizes judicial institutions; (2) it promotes judicial economy; and, (3) it allows for predictability. Contrariwise, courts refuse to be bound by the stare decisis rule where30 (1) its application perpetuates illegitimate and unconstitutional holdings; (2) it cannot accommodate changing social and political understandings; (3) it leaves the power to overturn bad constitutional law solely in the hands of Congress; and, (4) activist judges can dictate the policy for future courts while judges that respect stare decisis are stuck agreeing with them. In its 200-year history, the U.S. Supreme Court has refused to follow the stare decisis rule and reversed its decisions in 192 cases.31 The most famous of these reversals is Brown v. Board of Education32 which junked Plessy v. Ferguson's33 "separate but equal doctrine." Plessy upheld as constitutional a state law requirement that races be segregated on public transportation. In Brown, the U.S. Supreme Court, unanimously held that "separate . . . is inherently unequal." Thus, by freeing itself from the shackles of stare decisis, the U.S. Supreme Court freed the colored Americans from the chains of inequality. In the Philippine setting, this Court has likewise refused to be straitjacketed by the stare decisis rule in order to promote public welfare. In La Bugal-B'laan Tribal Association, Inc. v. Ramos,34 we reversed our original ruling that certain provisions of the Mining Law are unconstitutional. Similarly,

in Secretary of Justice v. Lantion,35 we overturned our first ruling and held, on motion for reconsideration, that a private respondent is bereft of the right to notice and hearing during the evaluation stage of the extradition process. An examination of decisions on stare decisis in major countries will show that courts are agreed on the factors that should be considered before overturning prior rulings. These are workability, reliance, intervening developments in the law and changes in fact. In addition, courts put in the balance the following determinants: closeness of the voting, age of the prior decision and its merits.36 The leading case in deciding whether a court should follow the stare decisis rule in constitutional litigations is Planned Parenthood v. Casey.37 It established a 4-pronged test. The court should (1) determine whether the rule has proved to be intolerable simply in defying practical workability; (2) consider whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation; (3) determine whether related principles of law have so far developed as to have the old rule no more than a remnant of an abandoned doctrine; and, (4) find out whether facts have so changed or come to be seen differently, as to have robbed the old rule of significant application or justification. Following these guidelines, I submit that the stare decisis rule should not bar the reexamination of Santiago. On the factor of intolerability, the six (6) justices in Santiago held R.A. 6735 to be insufficient as it provided no standard to guide COMELEC in issuing its implementing rules. The Santiago ruling that R.A. 6735 is insufficient but without striking it down as unconstitutional is an intolerable aberration, the only one of its kind in our planet. It improperly assails the ability of legislators to write laws. It usurps the exclusive right of legislators to determine how far laws implementing constitutional mandates should be crafted. It is elementary that courts cannot dictate on Congress the style of writing good laws, anymore than Congress can tell courts how to write literate decisions. The doctrine of separation of powers forbids this Court to invade the exclusive lawmaking domain of Congress for courts can construe laws but cannot construct them. The end result of the ruling of the six (6) justices that R.A. 6735 is insufficient is intolerable for it rendered lifeless the sovereign right of the people to amend the Constitution via an initiative. On the factor of reliance, the ruling of the six (6) justices in Santiago did not induce any expectation from the people. On the contrary, the ruling smothered the hope of the people that they could amend the Constitution by direct action. Moreover, reliance is a non-factor in the case at bar for it is more appropriate to consider in decisions involving contracts where private rights are adjudicated. The case at bar involves no private rights but the sovereignty of the people. On the factor of changes in law and in facts, certain realities on ground cannot be blinked away. The urgent need to adjust certain provisions of the 1987 Constitution to enable the country to compete in the new millennium is given. The only point of contention is the mode to effect the change - - - whether through constituent assembly, constitutional convention or people's initiative. Petitioners claim that they have gathered over six (6) million registered voters who want to amend the Constitution through people's initiative and that their signatures have been verified by registrars of the COMELEC. The six (6) justices who ruled that R.A. 6735 is insufficient to implement the direct right of the people to amend the Constitution through an initiative cannot waylay the will of 6.3 million people who are the bearers of our sovereignty and from whom all government authority emanates. New developments in our internal and external social, economic, and political settings demand the reexamination of the Santiago case. The stare decisis rule is no reason for this Court to allow the people to step into the future with a blindfold. III A reexamination of R.A. 6735 will show that it is sufficient to implement the people's initiative.

Let us reexamine the validity of the view of the six (6) justices that R.A. 6735 is insufficient to implement Section 2, Article XVII of the 1987 Constitution allowing amendments to the Constitution to be directly proposed by the people through initiative. When laws are challenged as unconstitutional, courts are counseled to give life to the intent of legislators. In enacting R.A. 6735, it is daylight luminous that Congress intended the said law to implement the right of the people, thru initiative, to propose amendments to the Constitution by direct action. This all-important intent is palpable from the following: First. The text of R.A. 6735 is replete with references to the right of the people to initiate changes to the Constitution: The policy statement declares: Sec. 2. Statement of Policy. -- The power of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed. (emphasis supplied) It defines "initiative" as "the power of the people to propose amendments to the Constitution or to propose and enact legislations through an election called for the purpose," and "plebiscite" as "the electoral process by which an initiative on the Constitution is approved or rejected by the people." It provides the requirements for a petition for initiative to amend the Constitution, viz: (1) That "(a) petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein;"38 and (2) That "(i)nitiative on the Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five (5) years thereafter."39 It fixes the effectivity date of the amendment under Section 9(b) which provides that "(t)he proposition in an initiative on the Constitution approved by a majority of the votes cast in the plebiscite shall become effective as to the day of the plebiscite." Second. The legislative history of R.A. 6735 also reveals the clear intent of the lawmakers to use it as the instrument to implement people's initiative. No less than former Chief Justice Hilario G. Davide, Jr., the ponente in Santiago, concedes:40 We agree that R.A. No. 6735 was, as its history reveals, intended to cover initiative to propose amendments to the Constitution. The Act is a consolidation of House Bill No. 21505 and Senate Bill No. 17 x x x x The Bicameral Conference Committee consolidated Senate Bill No. 17 and House Bill No. 21505 into a draft bill, which was subsequently approved on 8 June 1989 by the Senate and by the House of Representatives. This approved bill is now R.A. No. 6735. Third. The sponsorship speeches by the authors of R.A. 6735 similarly demonstrate beyond doubt this intent. In his sponsorship remarks, the late Senator Raul Roco (then a Member of the House of Representatives) emphasized the intent to make initiative as a mode whereby the people can propose amendments to the Constitution. We quote his relevant remarks:41 SPONSORSHIP REMAKRS OF REP. ROCO MR. ROCO. Mr. Speaker, with the permission of the committee, we wish to speak in support of House Bill No. 497, entitled: INITIATIVE AND REFERENDUM ACT OF 1987, which later on may be called Initiative and Referendum Act of 1989.

As a background, we want to point out the constitutional basis of this particular bill. The grant of plenary legislative power upon the Philippine Congress by the 1935, 1973 and 1987 Constitutions, Mr. Speaker, was based on the principle that any power deemed to be legislative by usage and tradition is necessarily possessed by the Philippine Congress unless the Organic Act has lodged it elsewhere. This was a citation from Vera vs. Avelino (1946). The presidential system introduced by the 1935 Constitution saw the application of the principle of separation of powers. While under the parliamentary system of the 1973 Constitution the principle remained applicable, Amendment 6 or the 1981 amendments to the 1973 Constitution ensured presidential dominance over the Batasang Pambansa. Our constitutional history saw the shifting and sharing of legislative power between the legislature and the executive. Transcending such changes in the exercise of legislative power is the declaration in the Philippine Constitution that he Philippines is a Republican State where sovereignty resides in the people and all government authority emanates from them. In a Republic, Mr. Speaker, the power to govern is vested in its citizens participating through the right of suffrage and indicating thereby their choice of lawmakers. Under the 1987 Constitution, lawmaking power is still preserved in Congress. However, to institutionalize direct action of the people as exemplified in the 1986 Revolution, there is a practical recognition of what we refer to as people's sovereign power. This is the recognition of a system of initiative and referendum. Section 1, Article VI of the 1987 Constitution provides, and I quote: The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum. In other words, Mr. Speaker, under the 1987 Constitution, Congress does not have plenary powers. There is a reserved legislative power given to the people expressly. Section 32, the implementing provision of the same article of the Constitution provides, and I quote: The Congress shall, as early as possible, provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress or local legislative body after the registration of a petition therefor signed by at least ten per centum of the total number of registered voters, or which every legislative district must be represented by at least three per centum of the registered voters thereof. In other words, Mr. Speaker, in Section 1 of Article VI which describes legislative power, there are reserved powers given to the people. In Section 32, we are specifically told to pass at the soonest possible time a bill on referendum and initiative. We are specifically mandated to share the legislative powers of Congress with the people. Of course, another applicable provision in the Constitution is Section 2, Article XVII, Mr. Speaker. Under the provision on amending the Constitution, the section reads, and I quote: Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this

section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. We in Congress therefore, Mr. Speaker, are charged with the duty to implement the exercise by the people of the right of initiative and referendum. House Bill No. 21505, as reported out by the Committee on Suffrage and Electoral Reforms last December 14, 1988, Mr. Speaker, is the response to such a constitutional duty. Mr. Speaker, if only to allay apprehensions, allow me to show where initiative and referendum under Philippine law has occurred. Mr. Speaker, the system of initiative and referendum is not new. In a very limited extent, the system is provided for in our Local Government Code today. On initiative, for instance, Section 99 of the said code vests in the barangay assembly the power to initiate legislative processes, to hold plebiscites and to hear reports of the sangguniang barangay. There are variations of initiative and referendum. The barangay assembly is composed of all persons who have been actual residents of the barangay for at least six months, who are at least 15 years of age and citizens of the Philippines. The holding of barangay plebiscites and referendum is also provided in Sections 100 and 101 of the same Code. Mr. Speaker, for brevity I will not read the pertinent quotations but will just submit the same to the Secretary to be incorporated as part of my speech. To continue, Mr. Speaker these same principles are extensively applied by the Local Government Code as it is now mandated by the 1987 Constitution. In other jurisdictions, Mr. Speaker, we have ample examples of initiative and referendum similar to what is now contained in House Bill No. 21505. As in the 1987 Constitutions and House Bill No. 21505, the various constitutions of the states in the United States recognize the right of registered voters to initiate the enactment of any statute or to reject any existing law or parts thereof in a referendum. These states are Alaska, Alabama, Montana, Massachusetts, Dakota, Oklahoma, Oregon, and practically all other states. In certain American states, the kind of laws to which initiative and referendum applies is also without ay limitation, except for emergency measures, which is likewise incorporated in Section 7(b) of House Bill No. 21505. The procedure provided by the House bill – from the filing of the petition, the requirement of a certain percentage of supporters to present a proposition to submission to electors – is substantially similar to those of many American laws. Mr. Speaker, those among us who may have been in the United States, particularly in California, during election time or last November during the election would have noticed different propositions posted in the city walls. They were propositions submitted by the people for incorporation during the voting. These were in the nature of initiative, Mr. Speaker. Although an infant then in Philippine political structure, initiative and referendum is a tried and tested system in other jurisdictions, and House Bill No. 21505 through the various consolidated bills is patterned after American experience in a great respect. What does the bill essentially say, Mr. Speaker? Allow me to try to bring our colleagues slowly through the bill. The bill has basically only 12 sections. The constitutional Commissioners, Mr. Speaker, saw this system of initiative and referendum as an instrument which can be used should the legislature show itself indifferent to the needs of the people. That is why, Mr. Speaker, it may be timely, since we seem to be amply criticized, as regards our responsiveness, to pass this bill on referendum and initiative now. While indifference would not be an appropriate term to use at this time, and surely it is not the case although we are so criticized, one must note that it is a felt necessity of our times that laws need to be proposed and adopted at the soonest possible time to

spur economic development, safeguard individual rights and liberties, and share governmental power with the people. With the legislative powers of the President gone, we alone, together with the Senators when they are minded to agree with us, are left with the burden of enacting the needed legislation. Let me now bring our colleagues, Mr. Speaker, to the process advocated by the bill. First, initiative and referendum, Mr. Speaker, is defined. Initiative essentially is what the term connotes. It means that the people, on their own political judgment, submit fore the consideration and voting of the general electorate a bill or a piece of legislation. Under House Bill No. 21505, there are three kinds of initiative. One is an initiative to amend the Constitution. This can occur once every five years. Another is an initiative to amend statutes that we may have approved. Had this bill been an existing law, Mr. Speaker, it is most likely that an overwhelming majority of the barangays in the Philippines would have approved by initiative the matter of direct voting. The third mode of initiative, Mr. Speaker, refers to a petition proposing to enact regional, provincial, city, municipal or barangay laws or ordinances. It comes from the people and it must be submitted directly to the electorate. The bill gives a definite procedure and allows the COMELEC to define rules and regulations to give teeth to the power of initiative. On the other hand, referendum, Mr. Speaker, is the power of the people to approve or reject something that Congress has already approved. For instance, Mr. Speaker, when we divide the municipalities or the barangays into two or three, we must first get the consent of the people affected through plebiscite or referendum. Referendum is a mode of plebiscite, Mr. Speaker. However, referendum can also be petitioned by the people if, for instance, they do not life the bill on direct elections and it is approved subsequently by the Senate. If this bill had already become a law, then the people could petition that a referendum be conducted so that the acts of Congress can be appropriately approved or rebuffed. The initial stage, Mr. Speaker, is what we call the petition. As envisioned in the bill, the initiative comes from the people, from registered voters of the country, by presenting a proposition so that the people can then submit a petition, which is a piece of paper that contains the proposition. The proposition in the example I have been citing is whether there should be direct elections during the barangay elections. So the petition must be filed in the appropriate agency and the proposition must be clear stated. It can be tedious but that is how an effort to have direct democracy operates. Section 4 of the bill gives requirements, Mr. Speaker. It will not be all that easy to have referendum or initiative petitioned by the people. Under Section 4 of the committee report, we are given certain limitations. For instance, to exercise the power of initiative or referendum, at least 10 percent of the total number of registered voters, of which every legislative district is represented by at least 3 percent of the registered voters thereof, shall sign a petition. These numbers, Mr. Speaker, are not taken from the air. They are mandated by the Constitution. There must be a requirement of 10 percent for ordinary laws and 3 percent representing all districts. The same requirement is mutatis mutandis or appropriately modified and applied to the different sections. So if it is, for instance, a petition on initiative or referendum for a barangay, there is a 10 percent or a certain number required of the voters of the barangay. If it is for a district, there is also a certain number required of all towns of the district that must seek the petition. If it is for a province then again a certain percentage of the provincial electors is required. All these are based with reference to the constitutional mandate.

The conduct of the initiative and referendum shall be supervised and shall be upon the call of the Commission on Elections. However, within a period of 30 days from receipt of the petition, the COMELEC shall determine the sufficiency of the petition, publish the same and set the date of the referendum which shall not be earlier than 45 days but not later than 90 days from the determination by the commission of the sufficiency of the petition. Why is this so, Mr. Speaker? The petition must first be determined by the commission as to its sufficiency because our Constitution requires that no bill can be approved unless it contains one subject matter. It is conceivable that in the fervor of an initiative or referendum, Mr. Speaker, there may be more than two topics sought to be approved and that cannot be allowed. In fact, that is one of the prohibitions under this referendum and initiative bill. When a matter under initiative or referendum is approved by the required number of votes, Mr. Speaker, it shall become effective 15 days following the completion of its publication in the Official Gazette. Effectively then, Mr. Speaker, all the bill seeks to do is to enlarge and recognize the legislative powers of the Filipino people. Mr. Speaker, I think this Congress, particularly this House, cannot ignore or cannot be insensitive to the call for initiative and referendum. We should have done it in 1987 but that is past. Maybe we should have done it in 1988 but that too had already passed, but it is only February 1989, Mr. Speaker, and we have enough time this year at least to respond to the need of our people to participate directly in the work of legislation. For these reasons, Mr. Speaker, we urge and implore our colleagues to approve House Bill No. 21505 as incorporated in Committee Report No. 423 of the Committee on Suffrage and Electoral Reforms. In closing, Mr. Speaker, I also request that the prepared text of my speech, together with the footnotes since they contain many references to statutory history and foreign jurisdiction, be reproduced as part of the Record for future purposes. Equally unequivocal on the intent of R.A. 6735 is the sponsorship speech of former Representative Salvador Escudero III, viz:42 SPONSORSHIP REMARKS OF REP. ESCUDERO MR. ESCUDERO. Thank you, Mr. Speaker. Mr. Speaker and my dear colleagues: Events in recent years highlighted the need to heed the clamor of the people for a truly popular democracy. One recalls the impatience of those who actively participated in the parliament of the streets, some of whom are now distinguished Members of this Chamber. A substantial segment of the population feel increasingly that under the system, the people have the form but not the reality or substance of democracy because of the increasingly elitist approach of their chosen Representatives to many questions vitally affecting their lives. There have been complaints, not altogether unfounded, that many candidates easily forge their campaign promises to the people once elected to office. The 1986 Constitutional Commission deemed it wise and proper to provide for a means whereby the people can exercise the reserve power to legislate or propose amendments to the Constitution directly in case their chose Representatives fail to live up to their expectations. That reserve power known as initiative is explicitly recognized in three articles and four sections of the 1987 Constitution, namely: Article VI Section 1; the same article, Section 312; Article X, Section 3; and Article XVII, Section 2. May I request that he explicit provisions of these three articles and four sections be made part of my sponsorship speech, Mr. Speaker. These constitutional provisions are, however, not self-executory. There is a need for an implementing law that will give meaning and substance to the process of initiative and referendum which are considered valuable adjuncts to representative democracy. It is needless to state that this bill when enacted into law will probably open the door to strong competition of the people, like pressure groups, vested interests, farmers' group, labor groups, urban dwellers, the urban poor and the like, with Congress in the field of legislation.

Such probability, however, pales in significance when we consider that through this bill we can hasten the politization of the Filipino which in turn will aid government in forming an enlightened public opinion, and hopefully produce better and more responsive and acceptable legislations. Furthermore, Mr. Speaker, this would give the parliamentarians of the streets and causeoriented groups an opportunity to articulate their ideas in a truly democratic forum, thus, the competition which they will offer to Congress will hopefully be a healthy one. Anyway, in an atmosphere of competition there are common interests dear to all Filipinos, and the pursuit of each side's competitive goals can still take place in an atmosphere of reason and moderation. Mr. Speaker and my dear colleagues, when the distinguished Gentleman from Camarines Sur and this Representation filed our respective versions of the bill in 1987, we were hoping that the bill would be approved early enough so that our people could immediately use the agrarian reform bill as an initial subject matter or as a take-off point. However, in view of the very heavy agenda of the Committee on Local Government, it took sometime before the committee could act on these. But as they say in Tagalog, huli man daw at magaling ay naihahabol din. The passage of this bill therefore, my dear colleagues, could be one of our finest hours when we can set aside our personal and political consideration for the greater good of our people. I therefore respectfully urge and plead that this bill be immediately approved. Thank you, Mr. Speaker. We cannot dodge the duty to give effect to this intent for the "[c]ourts have the duty to interpret the law as legislated and when possible, to honor the clear meaning of statutes as revealed by its language, purpose and history."43 The tragedy is that while conceding this intent, the six (6) justices, nevertheless, ruled that "x x x R.A. No. 6735 is incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned" for the following reasons: (1) Section 2 of the Act does not suggest an initiative on amendments to the Constitution; (2) the Act does not provide for the contents of the petition for initiative on the Constitution; and (3) while the Act provides subtitles for National Initiative and Referendum (Subtitle II) and for Local Initiative and Referendum (Subtitle III), no subtitle is provided for initiative on the Constitution. To say the least, these alleged omissions are too weak a reason to throttle the right of the sovereign people to amend the Constitution through initiative. R.A. 6735 clearly expressed the legislative policy for the people to propose amendments to the Constitution by direct action. The fact that the legislature may have omitted certain details in implementing the people's initiative in R.A. 6735, does not justify the conclusion that, ergo, the law is insufficient. What were omitted were mere details and not fundamental policies which Congress alone can and has determined. Implementing details of a law can be delegated to the COMELEC and can be the subject of its rule-making power. Under Section 2(1), Article IX-C of the Constitution, the COMELEC has the power to enforce and administer all laws and regulations relative to the conduct of initiatives. Its rule-making power has long been recognized by this Court. In ruling R.A. 6735 insufficient but without striking it down as unconstitutional, the six (6) justices failed to give due recognition to the indefeasible right of the sovereign people to amend the Constitution. IV The proposed constitutional changes, albeit substantial, are mere amendments and can be undertaken through people's initiative. Oppositors-intervenors contend that Sections 1 and 2, Article XVII of the 1987 Constitution, only allow the use of people's initiative to amend and not to revise the Constitution. They theorize

that the changes proposed by petitioners are substantial and thus constitute a revision which cannot be done through people's initiative. In support of the thesis that the Constitution bars the people from proposing substantial amendments amounting to revision, the oppositors-intervenors cite the following deliberations during the Constitutional Commission, viz:44 MR. SUAREZ: x x x x This proposal was suggested on the theory that this matter of initiative, which came about because of the extraordinary developments this year, has to be separated from the traditional modes of amending the Constitution as embodied in Section 1. The Committee members felt that this system of initiative should not extend to the revision of the entire Constitution, so we removed it from the operation of Section 1 of the proposed Article on Amendment or Revision. xxxxxxxxxxxx MS. AQUINO. In which case, I am seriously bothered by providing this process of initiative as a separate section in the Article on Amendment. Would the sponsor be amenable to accepting an amendment in terms of realigning Section 2 as another subparagraph (c) of Section 1, instead of setting it up as another separate section as if it were a self-executing provision? MR. SUAREZ. We would be amenable except that, as we clarified a while ago, this process of initiative is limited to the matter of amendment and should not expand into a revision which contemplates a total overhaul of the Constitution. That was the sense that was conveyed by the Committee. MS. AQUINO. In other words, the Committee was attempting to distinguish the coverage of modes (a) and (b) in Section 1 to include the process of revision; whereas the process of initiation to amend, which is given to the public, would only apply to amendments? MR. SUAREZ. That is right. Those were the terms envisioned in the Committee. Commissioner (later Chief Justice) Hilario G. Davide, Jr., espoused the same view: 45 MR. DAVIDE. x x x x We are limiting the right of the people, by initiative, to submit a proposal for amendment only, not for revision, only once every five years x x x x MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment on line 1 refers to "amendment." Does it cover the word "revision" as defined by Commissioner Padilla when he made the distinction between the words "amendments" and "revision?" MR. DAVIDE. No, it does not, because "amendments" and "revision" should be covered by Section 1. So insofar as initiative is concerned, it can only relate to "amendments" not "revision." Commissioner (now a distinguished Associate Justice of this Court) Adolfo S. Azcuna also clarified this point46 MR. OPLE. To more closely reflect the intent of Section 2, may I suggest that we add to "Amendments" "OR REVISIONS OF" to read: "Amendments OR REVISION OF this Constitution." MR. AZCUNA. I think it was not allowed to revise the Constitution by initiative. MR. OPLE. How is that again? MR. AZCUNA. It was not our intention to allow a revision of the Constitution by initiative but merely by amendments.

MR. BENGZON. Only by amendments. MR. AZCUNA. I remember that was taken on the floor. MR. RODRIGO. Yes, just amendments. The oppositors-intervenors then point out that by their proposals, petitioners will "change the very system of government from presidential to parliamentary, and the form of the legislature from bicameral to unicameral," among others. They allegedly seek other major revisions like the inclusion of a minimum number of inhabitants per district, a change in the period for a term of a Member of Parliament, the removal of the limits on the number of terms, the election of a Prime Minister who shall exercise the executive power, and so on and so forth.47 In sum, oppositorsintervenors submit that "the proposed changes to the Constitution effect major changes in the political structure and system, the fundamental powers and duties of the branches of the government, the political rights of the people, and the modes by which political rights may be exercised."48 They conclude that they are substantial amendments which cannot be done through people's initiative. In other words, they posit the thesis that only simple but not substantial amendments can be done through people's initiative. With due respect, I disagree. To start with, the words "simple" and "substantial" are not subject to any accurate quantitative or qualitative test. Obviously, relying on the quantitative test, oppositors-intervenors assert that the amendments will result in some one hundred (100) changes in the Constitution. Using the same test, however, it is also arguable that petitioners seek to change basically only two (2) out of the eighteen (18) articles of the 1987 Constitution, i.e. Article VI (Legislative Department) and Article VII (Executive Department), together with the complementary provisions for a smooth transition from a presidential bicameral system to a parliamentary unicameral structure. The big bulk of the 1987 Constitution will not be affected including Articles I (National Territory), II (Declaration of Principles and State Policies), III (Bill of Rights), IV (Citizenship), V (Suffrage), VIII (Judicial Department), IX (Constitutional Commissions), X (Local Government), XI (Accountability of Public Officers), XII (National Economy and Patrimony), XIII (Social Justice and Human Rights), XIV (Education, Science and Technology, Arts, Culture, and Sports), XV (The Family), XVI (General Provisions), and even XVII (Amendments or Revisions). In fine, we stand on unsafe ground if we use simple arithmetic to determine whether the proposed changes are "simple" or "substantial." Nor can this Court be surefooted if it applies the qualitative test to determine whether the said changes are "simple" or "substantial" as to amount to a revision of the Constitution. The well-regarded political scientist, Garner, says that a good constitution should contain at least three (3) sets of provisions: the constitution of liberty which sets forth the fundamental rights of the people and imposes certain limitations on the powers of the government as a means of securing the enjoyment of these rights; the constitution of government which deals with the framework of government and its powers, laying down certain rules for its administration and defining the electorate; and, the constitution of sovereignty which prescribes the mode or procedure for amending or revising the constitution.49 It is plain that the proposed changes will basically affect only the constitution of government. The constitutions of liberty and sovereignty remain unaffected. Indeed, the proposed changes will not change the fundamental nature of our state as "x x x a democratic and republican state."50 It is selfevident that a unicameral-parliamentary form of government will not make our State any less democratic or any less republican in character. Hence, neither will the use of the qualitative test resolve the issue of whether the proposed changes are "simple" or "substantial." For this reason and more, our Constitutions did not adopt any quantitative or qualitative test to determine whether an "amendment" is "simple" or "substantial." Nor did they provide that "substantial" amendments are beyond the power of the people to propose to change the Constitution. Instead, our Constitutions carried the traditional distinction between "amendment" and "revision," i.e., "amendment" means change, including complex changes while "revision" means complete change, including the adoption of an entirely new covenant. The legal dictionaries express this traditional difference between "amendment" and "revision." Black's Law Dictionary defines "amendment" as "[a] formal revision or addition proposed or made to a statute, constitution, pleading, order, or other

instrument; specifically, a change made by addition, deletion, or correction."51 Black's also refers to "amendment" as "the process of making such a revision."52 Revision, on the other hand, is defined as "[a] reexamination or careful review for correction or improvement." 53 In parliamentary law, it is described as "[a] general and thorough rewriting of a governing document, in which the entire document is open to amendment."54 Similarly, Ballentine's Law Dictionary defines "amendment" – as "[a] correction or revision of a writing to correct errors or better to state its intended purpose"55 and "amendment of constitution" as "[a] process of proposing, passing, and ratifying amendments to the x x x constitution."56 In contrast, "revision," when applied to a statute (or constitution), "contemplates the reexamination of the same subject matter contained in the statute (or constitution), and the substitution of a new, and what is believed to be, a still more perfect rule."57 One of the most authoritative constitutionalists of his time to whom we owe a lot of intellectual debt, Dean Vicente G. Sinco, of the University of the Philippines College of Law, (later President of the U.P. and delegate to the Constitutional Convention of 1971) similarly spelled out the difference between "amendment" and "revision." He opined: "the revision of a constitution, in its strict sense, refers to a consideration of the entire constitution and the procedure for effecting such change; while amendment refers only to particular provisions to be added to or to be altered in a constitution."58 Our people were guided by this traditional distinction when they effected changes in our 1935 and 1973 Constitutions. In 1940, the changes to the 1935 Constitution which included the conversion from a unicameral system to a bicameral structure, the shortening of the tenure of the President and Vice-President from a six-year term without reelection to a four-year term with one reelection, and the establishment of the COMELEC, together with the complementary constitutional provisions to effect the changes, were considered amendments only, not a revision. The replacement of the 1935 Constitution by the 1973 Constitution was, however, considered a revision since the 1973 Constitution was "a completely new fundamental charter embodying new political, social and economic concepts."59 Among those adopted under the 1973 Constitution were: the parliamentary system in place of the presidential system, with the leadership in legislation and administration vested with the Prime Minister and his Cabinet; the reversion to a single-chambered lawmaking body instead of the two-chambered, which would be more suitable to a parliamentary system of government; the enfranchisement of the youth beginning eighteen (18) years of age instead of twenty-one (21), and the abolition of literacy, property, and other substantial requirements to widen the basis for the electorate and expand democracy; the strengthening of the judiciary, the civil service system, and the Commission on Elections; the complete nationalization of the ownership and management of mass media; the giving of control to Philippine citizens of all telecommunications; the prohibition against alien individuals to own educational institutions, and the strengthening of the government as a whole to improve the conditions of the masses.60 The 1973 Constitution in turn underwent a series of significant changes in 1976, 1980, 1981, and 1984. The two significant innovations introduced in 1976 were (1) the creation of an interim Batasang Pambansa, in place of the interim National Assembly, and (2) Amendment No. 6 which conferred on the President the power to issue decrees, orders, or letters of instruction, whenever the Batasang Pambansa fails to act adequately on any matter for any reason that in his judgment requires immediate action, or there is grave emergency or threat or imminence thereof, with such decrees, or letters of instruction to form part of the law of the land. In 1980, the retirement age of seventy (70) for justices and judges was restored. In 1981, the presidential system with parliamentary features was installed. The transfer of private land for use as residence to natural-born citizens who had lost their citizenship was also allowed. Then, in 1984, the membership of the Batasang Pambansa was reapportioned by provinces, cities, or districts in Metro Manila instead of by regions; the Office of the Vice-President was created while the executive committee was abolished; and, urban land reform and social housing programs were strengthened.61 These substantial changes were simply considered as mere amendments. In 1986, Mrs. Corazon C. Aquino assumed the presidency, and repudiated the 1973 Constitution. She governed under Proclamation No. 3, known as the Freedom Constitution.

In February 1987, the new constitution was ratified by the people in a plebiscite and superseded the Provisional or Freedom Constitution. Retired Justice Isagani Cruz underscored the outstanding features of the 1987 Constitution which consists of eighteen articles and is excessively long compared to the Constitutions of 1935 and 1973, on which it was largely based. Many of the original provisions of the 1935 Constitution, particularly those pertaining to the legislative and executive departments, have been restored because of the revival of the bicameral Congress of the Philippines and the strictly presidential system. The independence of the judiciary has been strengthened, with new provisions for appointment thereto and an increase in its authority, which now covers even political questions formerly beyond its jurisdiction. While many provisions of the 1973 Constitution were retained, like those on the Constitutional Commissions and local governments, still the new 1987 Constitution was deemed as a revision of the 1973 Constitution. It is now contended that this traditional distinction between amendment and revision was abrogated by the 1987 Constitution. It is urged that Section 1 of Article XVII gives the power to amend or revise to Congress acting as a constituent assembly, and to a Constitutional Convention duly called by Congress for the purpose. Section 2 of the same Article, it is said, limited the people's right to change the Constitution via initiative through simple amendments. In other words, the people cannot propose substantial amendments amounting to revision. With due respect, I do not agree. As aforestated, the oppositors-intervenors who peddle the above proposition rely on the opinions of some Commissioners expressed in the course of the debate on how to frame the amendment/revision provisions of the 1987 Constitution. It is familiar learning, however, that opinions in a constitutional convention, especially if inconclusive of an issue, are of very limited value as explaining doubtful phrases, and are an unsafe guide (to the intent of the people) since the constitution derives its force as a fundamental law, not from the action of the convention but from the powers (of the people) who have ratified and adopted it.62 "Debates in the constitutional convention 'are of value as showing the views of the individual members, and as indicating the reasons for their votes, but they give us no light as to the views of the large majority who did not talk, much less of the mass of our fellow citizens whose votes at the polls gave that instrument the force of fundamental law.'"63 Indeed, a careful perusal of the debates of the Constitutional Commissioners can likewise lead to the conclusion that there was no abandonment of the traditional distinction between "amendment" and "revision." For during the debates, some of the commissioners referred to the concurring opinion of former Justice Felix Q. Antonio in Javellana v. The Executive Secretary,64 that stressed the traditional distinction between amendment and revision, thus:65 MR. SUAREZ: We mentioned the possible use of only one term and that is, "amendment." However, the Committee finally agreed to use the terms – "amendment" or "revision" when our attention was called by the honorable Vice-President to the substantial difference in the connotation and significance between the said terms. As a result of our research, we came up with the observations made in the famous – or notorious – Javellana doctrine, particularly the decision rendered by Honorable Justice Makasiar,66 wherein he made the following distinction between "amendment" and "revision" of an existing Constitution: "Revision" may involve a rewriting of the whole Constitution. On the other hand, the act of amending a constitution envisages a change of specific provisions only. The intention of an act to amend is not the change of the entire Constitution, but only the improvement of specific parts or 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. 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. So, the Committee finally came up with the proposal that these two terms should be employed in the formulation of the Article governing amendments or revisions to the new Constitution.

To further explain "revision," former Justice Antonio, in his concurring opinion, used an analogy – "When a house is completely demolished and another is erected on the same location, do you have a changed, repaired and altered house, or do you have a new house? Some of the material contained in the old house may be used again, some of the rooms may be constructed the same, but this does not alter the fact that you have altogether another or a new house."67 Hence, it is arguable that when the framers of the 1987 Constitution used the word "revision," they had in mind the "rewriting of the whole Constitution," or the "total overhaul of the Constitution." Anything less is an "amendment" or just "a change of specific provisions only," the intention being "not the change of the entire Constitution, but only the improvement of specific parts or 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." Under this view, "substantial" amendments are still "amendments" and thus can be proposed by the people via an initiative. As we cannot be guided with certainty by the inconclusive opinions of the Commissioners on the difference between "simple" and "substantial" amendments or whether "substantial" amendments amounting to revision are covered by people's initiative, it behooves us to follow the cardinal rule in interpreting Constitutions, i.e., construe them to give effect to the intention of the people who adopted it. The illustrious Cooley explains its rationale well, viz:68 x x x the constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed. These proceedings therefore are less conclusive of the proper construction of the instrument than are legislative proceedings of the proper construction of a statute; since in the latter case it is the intent of the legislature we seek, while in the former we are endeavoring to arrive at the intent of the people through the discussion and deliberations of their representatives. The history of the calling of the convention, the causes which led to it, and the discussions and issues before the people at the time of the election of the delegates, will sometimes be quite as instructive and satisfactory as anything to be gathered form the proceedings of the convention. Corollarily, a constitution is not to be interpreted on narrow or technical principles, but liberally and on broad general lines, to accomplish the object of its establishment and carry out the great principles of government – not to defeat them.69 One of these great principles is the sovereignty of the people. Let us now determine the intent of the people when they adopted initiative as a mode to amend the 1987 Constitution. We start with the Declaration of Principles and State Policies which Sinco describes as "the basic political creed of the nation"70 as it "lays down the policies that government is bound to observe."71 Section 1, Article II of the 1935 Constitution and Section 1, Article II of the 1973 Constitution, similarly provide that "the Philippines is a republican state. Sovereignty resides in the people and all government authority emanates from them." In a republican state, the power of the sovereign people is exercised and delegated to their representatives. Thus in Metropolitan Transportation Service v. Paredes, this Court held that "a republican state, like the Philippines x x x (is) derived from the will of the people themselves in freely creating a government 'of the people, by the people, and for the people' – a representative government through which they have agreed to exercise the powers and discharge the duties of their sovereignty for the common good and general welfare." 72 In both the 1935 and 1973 Constitutions, the sovereign people delegated to Congress or to a convention, the power to amend or revise our fundamental law. History informs us how this delegated power to amend or revise the Constitution was abused particularly during the Marcos regime. The Constitution was changed several times to satisfy the power requirements of the regime. Indeed, Amendment No. 6 was passed giving unprecedented legislative powers to then President Ferdinand E. Marcos. A conspiracy of circumstances from above and below, however, brought down the Marcos regime through an extra constitutional

revolution, albeit a peaceful one by the people. A main reason for the people's revolution was the failure of the representatives of the people to effectuate timely changes in the Constitution either by acting as a constituent assembly or by calling a constitutional convention. When the representatives of the people defaulted in using this last peaceful process of constitutional change, the sovereign people themselves took matters in their own hands. They revolted and replaced the 1973 Constitution with the 1987 Constitution. It is significant to note that the people modified the ideology of the 1987 Constitution as it stressed the power of the people to act directly in their capacity as sovereign people. Correspondingly, the power of the legislators to act as representatives of the people in the matter of amending or revising the Constitution was diminished for the spring cannot rise above its source. To reflect this significant shift, Section 1, Article II of the 1987 Constitution was reworded. It now reads: "the Philippines is a democratic and republican state. Sovereignty resides in the people and all government authority emanates from them." The commissioners of the 1986 Constitutional Commission explained the addition of the word "democratic," in our first Declaration of Principles, viz: MR. NOLLEDO. I am putting the word "democratic" because of the provisions that we are now adopting which are covering consultations with the people. For example, we have provisions on recall, initiative, the right of the people even to participate in lawmaking and other instances that recognize the validity of interference by the people through people's organizations x x x x73 MR. OPLE. x x x x The Committee added the word "democratic" to "republican," and, therefore, the first sentence states: "The Philippines is a republican and democratic state xxxx May I know from the committee the reason for adding the word "democratic" to "republican"? The constitutional framers of the 1935 and 1973 Constitutions were content with "republican." Was this done merely for the sake of emphasis? MR. NOLLEDO. x x x x "democratic" was added because of the need to emphasize people power and the many provisions in the Constitution that we have approved related to recall, people's organizations, initiative and the like, which recognize the participation of the people in policy-making in certain circumstances x x x x MR. OPLE. I thank the Commissioner. That is a very clear answer and I think it does meet a need x x x x MR. NOLLEDO. According to Commissioner Rosario Braid, "democracy" here is understood as participatory democracy. 74 (emphasis supplied) The following exchange between Commissioners Rene V. Sarmiento and Adolfo S. Azcuna is of the same import:75 MR. SARMIENTO. When we speak of republican democratic state, are we referring to representative democracy? MR. AZCUNA. That is right. MR. SARMIENTO. So, why do we not retain the old formulation under the 1973 and 1935 Constitutions which used the words "republican state" because "republican state" would refer to a democratic state where people choose their representatives? MR. AZCUNA. We wanted to emphasize the participation of the people in government. MR. SARMIENTO. But even in the concept "republican state," we are stressing the participation of the people x x x x So the word "republican" will suffice to cover popular representation. MR. AZCUNA. Yes, the Commissioner is right. However, the committee felt that in view of the introduction of the aspects of direct democracy such as initiative, referendum or

recall, it was necessary to emphasize the democratic portion of republicanism, of representative democracy as well. So, we want to add the word "democratic" to emphasize that in this new Constitution there are instances where the people would act directly, and not through their representatives. (emphasis supplied) Consistent with the stress on direct democracy, the systems of initiative, referendum, and recall were enthroned as polestars in the 1987 Constitution. Thus, Commissioner Blas F. Ople who introduced the provision on people's initiative said:76 MR. OPLE. x x x x I think this is just the correct time in history when we should introduce an innovative mode of proposing amendments to the Constitution, vesting in the people and their organizations the right to formulate and propose their own amendments and revisions of the Constitution in a manner that will be binding upon the government. It is not that I believe this kind of direct action by the people for amending a constitution will be needed frequently in the future, but it is good to know that the ultimate reserves of sovereign power still rest upon the people and that in the exercise of that power, they can propose amendments or revision to the Constitution. (emphasis supplied) Commissioner Jose E. Suarez also explained the people's initiative as a safety valve, as a peaceful way for the people to change their Constitution, by citing our experiences under the Marcos government, viz:77 MR. SUAREZ. We agree to the difficulty in implementing this particular provision, but we are providing a channel for the expression of the sovereign will of the people through this initiative system. MR. BENGZON. Is Section 1, paragraphs (a) and (b), not sufficient channel for expression of the will of the people, particularly in the amendment or revision of the Constitution? MR. SUAREZ. Under normal circumstances, yes. But we know what happened during the 20 years under the Marcos administration. So, if the National Assembly, in a manner of speaking, is operating under the thumb of the Prime Minister or the President as the case may be, and the required number of votes could not be obtained, we would have to provide for a safety valve in order that the people could ventilate in a very peaceful way their desire for amendment to the Constitution. It is very possible that although the people may be pressuring the National Assembly to constitute itself as a constituent assembly or to call a constitutional convention, the members thereof would not heed the people's desire and clamor. So this is a third avenue that we are providing for the implementation of what is now popularly known as people's power. (emphasis supplied) Commissioner Regalado E. Maambong opined that the people's initiative could avert a revolution, viz:78 MR. MAAMBONG. x x x x the amending process of the Constitution could actually avert a revolution by providing a safety valve in bringing about changes in the Constitution through pacific means. This, in effect, operationalizes what political law authors call the "prescription of sovereignty." (emphasis supplied) The end result is Section 2, Article XVII of the 1987 Constitution which expressed the right of the sovereign people to propose amendments to the Constitution by direct action or through initiative. To that extent, the delegated power of Congress to amend or revise the Constitution has to be adjusted downward. Thus, Section 1, Article VI of the 1987 Constitution has to be reminted and now provides: "The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum."

Prescinding from these baseline premises, the argument that the people through initiative cannot propose substantial amendments to change the Constitution turns sovereignty on its head. At the very least, the submission constricts the democratic space for the exercise of the direct sovereignty of the people. It also denigrates the sovereign people who they claim can only be trusted with the power to propose "simple" but not "substantial" amendments to the Constitution. According to Sinco, the concept of sovereignty should be strictly understood in its legal meaning as it was originally developed in law. 79 Legal sovereignty, he explained, is "the possession of unlimited power to make laws. Its possessor is the legal sovereign. It implies the absence of any other party endowed with legally superior powers and privileges. It is not subject to law 'for it is the author and source of law.' Legal sovereignty is thus the equivalent of legal omnipotence."80 To be sure, sovereignty or popular sovereignty, emphasizes the supremacy of the people's will over the state which they themselves have created. The state is created by and subject to the will of the people, who are the source of all political power. Rightly, we have ruled that "the sovereignty of our people is not a kabalistic principle whose dimensions are buried in mysticism. Its metes and bounds are familiar to the framers of our Constitutions. They knew that in its broadest sense, sovereignty is meant to be supreme, the jus summi imperu, the absolute right to govern."81 James Wilson, regarded by many as the most brilliant, scholarly, and visionary lawyer in the United States in the 1780s, laid down the first principles of popular sovereignty during the Pennsylvania ratifying convention of the 1787 Constitution of the United States:82 There necessarily exists, in every government, a power from which there is no appeal, and which, for that reason, may be termed supreme, absolute, and uncontrollable. x x x x Perhaps some politician, who has not considered with sufficient accuracy our political systems, would answer that, in our governments, the supreme power was vested in the constitutions x x x x This opinion approaches a step nearer to the truth, but does not reach it. The truth is, that in our governments, the supreme, absolute, and uncontrollable power remains in the people. As our constitutions are superior to our legislatures, so the people are superior to our constitutions. Indeed the superiority, in this last instance, is much greater; for the people possess over our constitution, control in act, as well as right. (emphasis supplied) I wish to reiterate that in a democratic and republican state, only the people is sovereign - - - not the elected President, not the elected Congress, not this unelected Court. Indeed, the sovereignty of the people which is indivisible cannot be reposed in any organ of government. Only its exercise may be delegated to any of them. In our case, the people delegated to Congress the exercise of the sovereign power to amend or revise the Constitution. If Congress, as delegate, can exercise this power to amend or revise the Constitution, can it be argued that the sovereign people who delegated the power has no power to substantially amend the Constitution by direct action? If the sovereign people do not have this power to make substantial amendments to the Constitution, what did it delegate to Congress? How can the people lack this fraction of a power to substantially amend the Constitution when by their sovereignty, all power emanates from them? It will take some mumbo jumbo to argue that the whole is lesser than its part. Let Sinco clinch the point:83 But although possession may not be delegated, the exercise of sovereignty often is. It is delegated to the organs and agents of the state which constitute its government, for it is only through this instrumentality that the state ordinarily functions. However ample and complete this delegation may be, it is nevertheless subject to withdrawal at any time by the state. On this point Willoughby says: Thus, States may concede to colonies almost complete autonomy of government and reserve to themselves a right to control of so slight and so negative a character as to make its exercise a rare and improbable occurrence; yet so long as such right of control is recognized to exist, and the autonomy of the colonies is conceded to be founded upon a grant and continuing consent of the mother countries the sovereignty of those mother countries over them is complete and

they are to be considered as possessing only administrative autonomy and not political independence. At the very least, the power to propose substantial amendments to the Constitution is shared with the people. We should accord the most benign treatment to the sovereign power of the people to propose substantial amendments to the Constitution especially when the proposed amendments will adversely affect the interest of some members of Congress. A contrary approach will suborn the public weal to private interest and worse, will enable Congress (the delegate) to frustrate the power of the people to determine their destiny (the principal). All told, the teaching of the ages is that constitutional clauses acknowledging the right of the people to exercise initiative and referendum are liberally and generously construed in favor of the people.84 Initiative and referendum powers must be broadly construed to maintain maximum power in the people.85 We followed this orientation in Subic Bay Metropolitan Authority v. Commission on Elections.86 There is not an iota of reason to depart from it. V The issues at bar are not political questions. Petitioners submit that "[t]he validity of the exercise of the right of the sovereign people to amend the Constitution and their will, as expressed by the fact that over six million registered voters indicated their support of the Petition for Initiative, is a purely political question which is beyond even the very long arm of this Honorable Court's power of judicial review. Whether or not the 1987 Constitution should be amended is a matter which the people and the people alone must resolve in their sovereign capacity."87 They argue that "[t]he power to propose amendments to the Constitution is a right explicitly bestowed upon the sovereign people. Hence, the determination by the people to exercise their right to propose amendments under the system of initiative is a sovereign act and falls squarely within the ambit of a 'political question.'"88 The petitioners cannot be sustained. This issue has long been interred by Sanidad v. Commission on Elections, viz:89 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 be a brutum fulmen. If the Constitution provides how it may be amended, the judiciary as the interpreter of that Constitution, can declare whether the procedure followed or the authority assumed was valid or not. We cannot accept the view of the Solicitor General, in pursuing his theory of nonjusticiability, 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 cycle. 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.

In the instant case, the Constitution sets in black and white the requirements for the exercise of the people's initiative to amend the Constitution. The amendments must be proposed by the people "upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter."90Compliance with these requirements is clearly a justiciable and not a political question. Be that as it may, how the issue will be resolved by the people is addressed to them and to them alone. VI Whether the Petition for Initiative filed before the COMELEC complied with Section 2, Article XVII of the Constitution and R.A. 6735 involves contentious issues of fact which should first be resolved by the COMELEC. Oppositors-intervenors impugn the Petition for Initiative as it allegedly lacks the required number of signatures under Section 2, Article XVII of the Constitution. Said provision requires that the petition for initiative be supported by at least twelve per cent (12%) of the total number of registered voters, of which every legislative district must be represented by at least three per cent (3%) of the registered voters therein. Oppositors-intervenors contend that no proper verification of signatures was done in several legislative districts. They assert that mere verification of the names listed on the signature sheets without verifying the signatures reduces the signatures submitted for their respective legislative districts to mere scribbles on a piece of paper. Oppositor-intervenor ONEVOICE, Inc., submitted to this Court a certification dated August 23, 2006 issued by Atty. Marlon S. Casquejo, Election Officer IV, Third District and OIC, First and Second District, Davao City, stating that his office has not verified the signatures submitted by the proponents of the people's initiative. The certification reads: This is to CERTIFY that this office (First, Second and Third District, Davao City) HAS NOT VERIFIED the signatures of registered voters as per documents submitted in this office by the proponents of the People's Initiative. Consequently, NO ELECTION DOCUMENTS AND/OR ORDER ISSUED BY HIGHER SUPERIORSused as basis for such verification of signatures.91 Senate Minority Leader Aquilino Pimentel, Jr., among others, further clarified that although Atty. Casquejo and Reynne Joy B. Bullecer, Acting Election Officer IV, First District, Davao City, later issued certifications stating that the Office of the City Election Officer has examined the list of individuals appearing in the signature sheets,92 the certifications reveal that the office had verified only the names of the signatories, but not their signatures. Oppositors-intervenors submit that not only the names of the signatories should be verified, but also their signatures to ensure the identities of the persons affixing their signatures on the signature sheets. Oppositor-intervenor Luwalhati Antonino also alleged that petitioners failed to obtain the signatures of at least three per cent (3%) of the total number of registered voters in the First Legislative District of South Cotabato. For the First District of South Cotabato, petitioners submitted 3,182 signatures for General Santos City, 2,186 signatures for Tupi, 3,308 signatures for Tampakan and 10,301 signatures for Polomolok, or 18,977 signatures out of 359,488 registered voters of said district. Antonino, however, submitted to this Court a copy of the certification by Glory D. Rubio, Election Officer III, Polomolok, dated May 8, 2006, showing that the signatures from Polomolok were not verified because the Book of Voters for the whole municipality was in the custody of the Clerk of Court of the Regional Trial Court, Branch 38, Polomolok, South Cotabato.93 Excluding the signatures from Polomolok from the total number of signatures from the First District of South Cotabato would yield only a total of 8,676 signatures which falls short of the three per cent (3%) requirement for the district. Former President Joseph Ejercito Estrada and Pwersa ng Masang Pilipino likewise submitted to this Court a certification issued by Atty. Stalin A. Baguio, City Election Officer IV, Cagayan de Oro City, stating that the list of names appearing on the signature sheets corresponds to the

names of registered voters in the city, thereby implying that they have not actually verified the signatures.94 The argument against the sufficiency of the signatures is further bolstered by Alternative Law Groups, Inc., which submitted copies of similarly worded certifications from the election officers from Zamboanga del Sur95 and from Compostela Valley.96 Alternative Law Groups, Inc., further assails the regularity of the verification process as it alleged that verification in some areas were conducted by Barangay officials and not by COMELEC election officers. It filed with this Court copies of certifications from Sulu and Sultan Kudarat showing that the verification was conducted by local officials instead of COMELEC personnel.97 Petitioners, on the other hand, maintain that the verification conducted by the election officers sufficiently complied with the requirements of the Constitution and the law on initiative. Contravening the allegations of oppositors-intervenors on the lack of verification in Davao City and in Polomolok, South Cotabato, petitioner Aumentado claimed that the same election officers cited by the oppositors-intervenors also issued certifications showing that they have verified the signatures submitted by the proponents of the people's initiative. He presented copies of the certifications issued by Atty. Marlon S. Casquejo for the Second and Third Legislative Districts of Davao City stating that he verified the signatures of the proponents of the people's initiative. His certification for the Second District states: This is to CERTIFY that this Office has examined the list of individuals as appearing in the Signature Sheets of the Registered Voters of District II, Davao City, submitted on April 7, 2006 by MR. NONATO BOLOS, Punong Barangay, Centro, Davao City for verification which consists of THIRTY THOUSAND SIX HUNDRED SIXTY-TWO (30,662) signatures. Anent thereto, it appears that of the THIRTY THOUSAND SIX HUNDRED SIXTY-TWO (30,662) individuals, only TWENTY-TWO THOUSAND SIX HUNDRED SIXTY-EIGHT (22,668) individuals were found to be REGISTERED VOTERS, in the Computerized List of Voters of SECOND CONGRESSIONAL DISTRICT, DAVAO CITY.98 It was also shown that Atty. Casquejo had issued a clarificatory certification regarding the verification process conducted in Davao City. It reads: Regarding the verification of the signatures of registered voters, this Office has previously issued two (2) separate certifications for the 2nd and 3rd Districts of Davao City on April 20, 2006 and April 26, 2006, respectively, specifically relating to the voters who supported the people's initiative. It was stated therein that the names submitted, comprising 22,668 individual voters in the 2nd District and 18,469 individual voters in the 3rd District, were found [to] be registered voters of the respective districts mentioned as verified by this Office based on the Computerized List of Voters. It must be clarified that the August 23, 2006 Certification was issued in error and by mistake for the reason that the signature verification has not been fully completed as of that date. I hereby CERTIFY that this Office has examined the signatures of the voters as appearing in the signature sheets and has compared these with the signatures appearing in the book of voters and computerized list of voters x x x 99 Petitioner Aumentado also submitted a copy of the certification dated May 8, 2006 issued by Polomolok Election Officer Glory D. Rubio to support their claim that said officer had conducted a verification of signatures in said area. The certification states: This is to certify further, that the total 68,359 registered voters of this municipality, as of the May 10, 2004 elections, 10,804 names with signatures were submitted for verification and out of which 10,301 were found to be legitimate voters as per official list of registered voters, which is equivalent to 15.07% of the total number of registered voters of this Municipality.100

In addition to the lack of proper verification of the signatures in numerous legislative districts, allegations of fraud and irregularities in the collection of signatures in Makati City were cited by Senator Pimentel, among others, to wit: (1) No notice was given to the public, for the benefit of those who may be concerned, by the Makati COMELEC Office that signature sheets have already been submitted to it for "verification." The camp of Mayor Binay was able to witness the "verification process" only because of their pro-active stance; (2) In District 1, the proponents of charter change submitted 43,405 signatures for verification. 36,219 alleged voters' signatures (83% of the number of signatures submitted) were rejected outright. 7,186 signatures allegedly "passed" COMELEC's initial scrutiny. However, upon examination of the signature sheets by Atty. Mar-len Abigail Binay, the said 7,186 signatures could not be accounted for. Atty. Binay manually counted 2,793 signatures marked with the word "OK" and 3,443 signatures marked with a check, giving only 6,236 "apparently verified signatures." Before the COMELEC officer issued the Certification, Atty. Binay already submitted to the said office not less than 55 letters of "signature withdrawal," but no action was ever taken thereon; (3) In District 2, 29,411 signatures were submitted for verification. 23,521 alleged voters' signatures (80% of those submitted) were rejected outright. Of the 5,890 signatures which allegedly passed the COMELEC's initial scrutiny, some more will surely fail upon closer examination; (4) In the absence of clear, transparent, and uniform rules the COMELEC personnel did not know how to treat the objections and other observations coming from the camp of Mayor Binay. The oppositors too did not know where to go for their remedy when the COMELEC personnel merely "listened" to their objections and other observations. As mentioned earlier, the COMELEC personnel did not even know what to do with the many "letters of signature withdrawal" submitted to it; (5) Signatures of people long dead, in prison, abroad, and other forgeries appear on the Sigaw ng Bayan Signature Sheets. There is even a 15-year old alleged signatory; (6) There are Signature Sheets obviously signed by one person; (7) A Calara M. Roberto and a Roberto M. Calara both allegedly signed the Signature Sheets.101 Also, there are allegations that many of the signatories did not understand what they have signed as they were merely misled into signing the signature sheets. Opposed to these allegations are rulings that a person who affixes his signature on a document raises the presumption that the person so signing has knowledge of what the document contains. Courts have recognized that there is great value in the stability of records, so to speak, that no one should commit herself or himself to something in writing unless she or he is fully aware and cognizant of the effect it may have upon her on him.102 In the same vein, we have held that a person is presumed to have knowledge of the contents of a document he has signed. 103 But as this Court is not a trier of facts, it cannot resolve the issue. In sum, the issue of whether the petitioners have complied with the constitutional requirement that the petition for initiative be signed by at least twelve per cent (12%) of the total number of registered voters, of which every legislative district must be represented by at least three per cent (3%) of the registered voters therein, involves contentious facts. Its resolution will require presentation of evidence and their calibration by the COMELEC according to its rules. During the oral argument on this case, the COMELEC, through Director Alioden Dalaig of its Law Department, admitted that it has not examined the documents submitted by the petitioners in support of the petition for initiative, as well as the documents filed by the oppositors to buttress their claim that the required number of signatures has not been met. The exchanges during the oral argument likewise clearly show the need for further clarification and presentation of evidence to prove certain material facts.104

The only basis used by the COMELEC to dismiss the petition for initiative was this Court's ruling in Santiago v. COMELEC that R.A. 6735 was insufficient. It has yet to rule on the sufficiency of the form and substance of the petition. I respectfully submit that this issue should be properly litigated before the COMELEC where both parties will be given full opportunity to prove their allegations. For the same reasons, the sufficiency of the Petition for Initiative and its compliance with the requirements of R.A. 6735 on initiative and its implementing rules is a question that should be resolved by the COMELEC at the first instance, as it is the body that is mandated by the Constitution to administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall.105 VII COMELEC gravely abused its discretion when it denied due course to the Lambino and Aumentado petition. In denying due course to the Lambino and Aumentado petition, COMELEC relied on this Court's ruling in Santiagopermanently enjoining it from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system. Again, I respectfully submit that COMELEC's reliance on Santiago constitutes grave abuse of discretion amounting to lack of jurisdiction. The Santiago case did not establish the firm doctrine that R.A. 6735 is not a sufficient law to implement the constitutional provision allowing people's initiative to amend the Constitution. To recapitulate, the records show that in the original decision, eight (8) justices106 voted that R.A. 6735 was not a sufficient law; five (5) justices107 voted that said law was sufficient; and one (1) justice108 abstained from voting on the issue holding that unless and until a proper initiatory pleading is filed, the said issue is not ripe for adjudication.109 Within the reglementary period, the respondents filed their motion for reconsideration. On June 10, 1997, the Court denied the motion. Only thirteen (13) justices resolved the motion for Justice Torres inhibited himself.110 Of the original majority of eight (8) justices, only six (6) reiterated their ruling that R.A. 6735 was an insufficient law. Justice Hermosisima, originally part of the majority of eight (8) justices, changed his vote and joined the minority of five (5) justices. He opined without any equivocation that R.A. 6735 was a sufficient law, thus: It is one thing to utter a happy phrase from a protected cluster; another to think under fire – to think for action upon which great interests depend." So said Justice Oliver Wendell Holmes, and so I am guided as I reconsider my concurrence to the holding of the majority that "R.A. No. 6735 is inadequate to cover the system of initiative on amendments to the Constitution and to have failed to provide sufficient standard for subordinate legislation" and now to interpose my dissent thereto. xxx WHEREFORE, I vote to dismiss the Delfin petition. I vote, however, to declare R.A. No. 6735 as adequately providing the legal basis for the exercise by the people of their right to amend the Constitution through initiative proceedings and to uphold the validity of COMELEC Resolution No. 2300 insofar as it does not sanction the filing of the initiatory petition for initiative proceedings to amend the Constitution without the required names and/or signatures of at least 12% of all the registered voters, of which every legislative district must be represented by at least 3% of the registered voters therein. (emphasis supplied) Justice Vitug remained steadfast in refusing to rule on the sufficiency of R.A. 6735. In fine, the final vote on whether R.A. 6735 is a sufficient law was 6-6 with one (1) justice inhibiting himself and another justice refusing to rule on the ground that the issue was not ripe for adjudication.

It ought to be beyond debate that the six (6) justices who voted that R.A. 6735 is an insufficient law failed to establish a doctrine that could serve as a precedent. Under any alchemy of law, a deadlocked vote of six (6) is not a majority and a non-majority cannot write a rule with precedential value. The opinion of the late Justice Ricardo J. Francisco is instructive, viz: As it stands, of the thirteen justices who took part in the deliberations on the issue of whether the motion for reconsideration of the March 19, 1997 decision should be granted or not, only the following justices sided with Mr. Justice Davide, namely: Chief Justice Narvasa, and Justices Regalado, Romero, Bellosillo and Kapunan. Justices Melo, Puno, Mendoza, Hermosisima, Panganiban and the undersigned voted to grant the motion; while Justice Vitug "maintained his opinion that the matter was not ripe for judicial adjudication." In other words, only five, out of the other twelve justices, joined Mr. Justice Davide's June 10, 1997 ponencia finding R.A. No. 6735 unconstitutional for its failure to pass the so called "completeness and sufficiency standards" tests. The "concurrence of a majority of the members who actually took part in the deliberations" which Article VII, Section 4(2) of the Constitution requires to declare a law unconstitutional was, beyond dispute, not complied with. And even assuming, for the sake of argument, that the constitutional requirement on the concurrence of the "majority" was initially reached in the March 19, 1997 ponencia, the same is inconclusive as it was still open for review by way of a motion for reconsideration. It was only on June 10, 1997 that the constitutionality of R.A. No. 6735 was settled with finality, sans the constitutionally required "majority." The Court's declaration, therefore, is manifestly grafted with infirmity and wanting in force necessitating, in my view, the reexamination of the Court's decision in G.R. No. 127325. It behooves the Court "not to tarry any longer" nor waste this opportunity accorded by this new petition (G.R. No. 129754) to relieve the Court's pronouncement from constitutional infirmity. The jurisprudence that an equally divided Court can never set a precedent is well-settled. Thus, in the United States, an affirmance in the Federal Supreme Court upon equal division of opinion is not an authority for the determination of other cases, either in that Court or in the inferior federal courts. In Neil v. Biggers,111 which was a habeas corpusstate proceeding by a state prisoner, the U.S. Supreme Court held that its equally divided affirmance of petitioner's state court conviction was not an "actual adjudication" barring subsequent consideration by the district court on habeas corpus. In discussing the non-binding effect of an equal division ruling, the Court reviewed the history of cases explicating the disposition "affirmed by an equally divided Court:" In this light, we review our cases explicating the disposition "affirmed by an equally divided Court." On what was apparently the first occasion of an equal division, The Antelope, 10 Wheat, 66, 6 L. Ed. 268 (1825), the Court simply affirmed on the point of division without much discussion. Id., at 126-127. Faced with a similar division during the next Term, the Court again affirmed, Chief Justice Marshall explaining that "the principles of law which have been argued, cannot be settled; but the judgment is affirmed, the court being divided in opinion upon it." Etting v. Bank of United States, 11 Wheat. 59, 78, 6 L. Ed. 419 (1826). As was later elaborated in such cases, it is the appellant or petitioner who asks the Court to overturn a lower court's decree. "If the judges are divided, the reversal cannot be had, for no order can be made. The judgment of the court below, therefore, stands in full force. It is indeed, the settled practice in such case to enter a judgment of affirmance; but this is only the most convenient mode of expressing the fact that the cause is finally disposed of in conformity with the action of the court below, and that that court can proceed to enforce its judgment. The legal effect would be the same if the appeal, or writ of error, were dismissed." Durant v. Essex Co., 7 Wall. 107, 112, 19 L. Ed. 154 (1869). Nor is an affirmance by an equally divided Court entitled to precedential weight. Ohio ex rel. Eaton v. Price, 364 U.S. 263, 264, 80 S. Ct. 1463, 1464, 4 L. Ed. 2d 1708 (1960).xxx" This doctrine established in Neil has not been overturned and has been cited with approval in a number of subsequent cases,112 and has been applied in various state jurisdictions. In the case of In the Matter of the Adoption of Erin G., a Minor Child,113 wherein a putative father sought to set aside a decree granting petition for adoption of an Indian child on grounds of noncompliance with the requirements of Indian Child Welfare Act (ICWA), the Supreme Court

of Alaska held that its decision in In re Adoption of T.N.F. (T.N.F.),114 which lacked majority opinion supporting holding that an action such as the putative father's would be governed by the state's one-year statute of limitations, was not entitled to stare decisis effect. In T.N.F., a majority of the justices sitting did not agree on a common rationale, as two of four participating justices agreed that the state's one-year statute of limitations applied, one justice concurred in the result only, and one justice dissented. There was no "narrower" reasoning agreed upon by all three affirming justices. The concurring justice expressed no opinion on the statute of limitations issue, and in agreeing with the result, he reasoned that ICWA did not give the plaintiff standing to sue.115 The two-justice plurality, though agreeing that the state's oneyear statute of limitations applied, specifically disagreed with the concurring justice on the standing issue.116 Because a majority of the participating justices in T.N.F. did not agree on any one ground for affirmance, it was not accorded stare decisis effect by the state Supreme Court. The Supreme Court of Michigan likewise ruled that the doctrine of stare decisis does not apply to plurality decisions in which no majority of the justices participating agree to the reasoning and as such are not authoritative interpretations binding on the Supreme Court.117 In State ex rel. Landis v. Williams,118 the Supreme Court of Florida, in an equally divided opinion on the matter,119 held that chapter 15938, Acts of 1933 must be allowed to stand, dismissing a quo warranto suit without prejudice. The Court held: In a cause of original jurisdiction in this court a statute cannot be declared unconstitutional nor its enforcement nor operation judicially interfered with, except by the concurrence of a majority of the members of the Supreme Court sitting in the cause wherein the constitutionality of the statute is brought in question or judicial relief sought against its enforcement. Section 4 of Article 5, state Constitution. Therefore in this case the concurrence of a majority of the members of this court in holding unconstitutional said chapter 15938, supra, not having been had, it follows that the statute in controversy must be allowed to stand and accordingly be permitted to be enforced as a presumptively valid act of the Legislature, and that this proceeding in quo warranto must be dismissed without prejudice. Spencer v. Hunt (Fla.) 147 So. 282. This decision is not to be regarded as a judicial precedent on the question of constitutional law involved concerning the constitutionality vel non of chapter 15938. State ex rel. Hampton v. McClung, 47 Fla. 224, 37 So. 51. Quo warranto proceeding dismissed without prejudice by equal division of the court on question of constitutionality of statute involved. In U.S. v. Pink,120 the Court held that the affirmance by the U.S. Supreme Court by an equally divided vote of a decision of the New York Court of Appeals that property of a New York branch of a Russian insurance company was outside the scope of the Russian Soviet government's decrees terminating existence of insurance companies in Russia and seizing their assets, while conclusive and binding upon the parties as respects the controversy in that action, did not constitute an authoritative "precedent." In Berlin v. E.C. Publications, Inc.,121 the U.S. Court of Appeals Second Circuit, in holding that printed lyrics which had the same meter as plaintiffs' lyrics, but which were in form a parody of the latter, did not constitute infringement of plaintiffs' copyrights, ruled that the prior case of Benny v. Loew's, Inc.,122 which was affirmed by an equally divided court, was not binding upon it, viz: Under the precedents of this court, and, as seems justified by reason as well as by authority, an affirmance by an equally divided court is as between the parties, a conclusive determination and adjudication of the matter adjudged; but the principles of law involved not having been agreed upon by a majority of the court sitting prevents the case from becoming an authority for the determination of other cases, either in this or in inferior courts.123 In Perlman v. First National Bank of Chicago,124 the Supreme Court of Illinois dismissed the appeal as it was unable to reach a decision because two judges recused themselves and the

remaining members of the Court were so divided, it was impossible to secure the concurrence of four judges as is constitutionally required. The Court followed the procedure employed by the U.S. Supreme Court when the Justices of that Court are equally divided, i.e. affirm the judgment of the court that was before it for review. The affirmance is a conclusive determination and adjudication as between the parties to the immediate case, it is not authority for the determination of other cases, either in the Supreme Court or in any other court. It is not "entitled to precedential weight." The legal effect of such an affirmance is the same as if the appeal was dismissed.125 The same rule is settled in the English Courts. Under English precedents,126 an affirmance by an equally divided Court is, as between the parties, a conclusive determination and adjudication of the matter adjudged; but the principles of law involved not having been agreed upon by a majority of the court sitting prevents the case from becoming an authority for the determination of other cases, either in that or in inferior courts. After a tour of these cases, we can safely conclude that the prevailing doctrine is that, the affirmance by an equally divided court merely disposes of the present controversy as between the parties and settles no issue of law; the affirmance leaves unsettled the principle of law presented by the case and is not entitled to precedential weight or value. In other words, the decision only has res judicata and not stare decisis effect. It is not conclusive and binding upon other parties as respects the controversies in other actions. Let us now examine the patent differences between the petition at bar and the Delfin Petition in the Santiago case which will prevent the Santiago ruling from binding the present petitioners. To start with, the parties are different. More importantly, the Delfin Petition did not contain the signatures of the required number of registered voters under the Constitution: the requirement that twelve per cent (12%) of all the registered voters in the country wherein each legislative district is represented by at least three per cent (3%) of all the registered voters therein was not complied with. For this reason, we ruled unanimously that it was not the initiatory petition which the COMELEC could properly take cognizance of. In contrast, the present petition appears to be accompanied by the signatures of the required number of registered voters. Thus, while the Delfin Petition prayed that an Order be issued fixing the time and dates for signature gathering all over the country, the Lambino and Aumentado petition, prayed for the calling of a plebiscite to allow the Filipino people to express their sovereign will on the proposition. COMELEC cannot close its eyes to these material differences. Plainly, the COMELEC committed grave abuse of discretion amounting to lack of jurisdiction in denying due course to the Lambino and Aumentado petition on the basis of its mistaken notion that Santiago established the doctrine that R.A. 6735 was an insufficient law. As aforestressed, that ruling of six (6) justices who do not represent the majority lacks precedential status and is non-binding on the present petitioners. The Court's dismissal of the PIRMA petition is of no moment. Suffice it to say that we dismissed the PIRMA petition on the principle of res judicata. This was stressed by former Chief Justice Hilario G. Davide Jr., viz: The following are my reasons as to why this petition must be summarily dismissed: First, it is barred by res judicata. No one aware of the pleadings filed here and in Santiago v. COMELEC (G.R. No. 127325, 19 March 1997) may plead ignorance of the fact that the former is substantially identical to the latter, except for the reversal of the roles played by the principal parties and inclusion of additional, yet not indispensable, parties in the present petition. But plainly, the same issues and reliefs are raised and prayed for in both cases. The principal petitioner here is the PEOPLE'S INITIATIVE FOR REFORM, MODERNIZATION, AND ACTION (PIRMA) and spouses ALBERTO PEDROSA and CARMEN PEDROSA. PIRMA is self-described as "a non-stock, non-profit organization duly organized and existing under Philippine laws with office address at Suite 403, Fedman Suites, 199 Salcedo Street, Legaspi Village, Makati City," with "ALBERTO PEDROSA and CARMEN PEDROSA" as among its "officers." In Santiago, the

PEDROSAS were made respondents as founding members of PIRMA which, as alleged in the body of the petition therein, "proposes to undertake the signature drive for a people's initiative to amend the Constitution." In Santiago then, the PEDROSAS were sued in their capacity as founding members of PIRMA. The decision in Santiago specifically declared that PIRMA was duly represented at the hearing of the Delfin petition in the COMELEC. In short, PIRMA was intervenor-petitioner therein. Delfin alleged in his petition that he was a founding member of the Movement for People's Initiative, and under footnote no. 6 of the decision, it was noted that said movement was "[l]ater identified as the People's Initiative for Reforms, Modernization and Action, or PIRMA for brevity." In their Comment to the petition in Santiago, the PEDROSAS did not deny that they were founding members of PIRMA, and by their arguments, demonstrated beyond a shadow of a doubt that they had joined Delfin or his cause. No amount of semantics may then shield herein petitioners PIRMA and the PEDROSAS, as well as the others joining them, from the operation of the principle of res judicata, which needs no further elaboration. (emphasis supplied) Justice Josue N. Bellosillo adds: The essential requisites of res judicata are: (1) the former judgment must be final; (2) it must have been rendered by a court having jurisdiction over the subject matter and the parties; (3) it must be a judgment on the merits; and (4) there must be between the first and second actions identity of parties, identity of subject matter, and identity of causes of action.127 Applying these principles in the instant case, we hold that all the elements of res judicata are present. For sure, our Decision in Santiago v. COMELEC, which was promulgated on 19 March 1997, and the motions for reconsideration thereof denied with finality on 10 June 1997, is undoubtedly final. The said Decision was rendered by this Court which had jurisdiction over the petition for prohibition under Rule 65. Our judgment therein was on the merits, i.e., rendered only after considering the evidence presented by the parties as well as their arguments in support of their respective claims and defenses. And, as between Santiago v. COMELEC case and COMELEC Special Matter No. 97-001 subject of the present petition, there is identity of parties, subject matter and causes of action. Petitioners contend that the parties in Santiago v. COMELEC are not identical to the parties in the instant case as some of the petitioners in the latter case were not parties to the former case. However, a perusal of the records reveals that the parties in Santiago v. COMELEC included the COMELEC, Atty. Jesus S. Delfin, spouses Alberto and Carmen Pedrosa, in their capacities as founding members of PIRMA, as well as Atty. Pete Quirino-Quadra, another founding member of PIRMA, representing PIRMA, as respondents. In the instant case, Atty. Delfin was never removed, and the spouses Alberto and Carmen Pedrosa were joined by several others who were made parties to the petition. In other words, what petitioners did was to make it appear that the PIRMA Petition was filed by an entirely separate and distinct group by removing some of the parties involved in Santiago v. COMELEC and adding new parties. But as we said in Geralde v. Sabido128A party may not evade the application of the rule of res judicata by simply including additional parties in the subsequent case or by not including as parties in the later case persons who were parties in the previous suit. The joining of new parties does not remove the case from the operation of the rule on res judicata if the party against whom the judgment is offered in evidence was a party in the first action; otherwise, the parties might renew the litigation by simply joining new parties. The fact that some persons or entities joined as parties in the PIRMA petition but were not parties in Santiago v. COMELEC does not affect the operation of the prior judgment

against those parties to the PIRMA Petition who were likewise parties in Santiago v. COMELEC, as they are bound by such prior judgment. Needless to state, the dismissal of the PIRMA petition which was based on res judicata binds only PIRMA but not the petitioners. VIII Finally, let the people speak. "It is a Constitution we are expounding" solemnly intoned the great Chief Justice John Marshall of the United States in the 1819 case of M'cCulloch v. Maryland.129 Our Constitution is not a mere collection of slogans. Every syllable of our Constitution is suffused with significance and requires our full fealty. Indeed, the rule of law will wither if we allow the commands of our Constitution to underrule us. The first principle enthroned by blood in our Constitution is the sovereignty of the people. We ought to be concerned with this first principle, i.e., the inherent right of the sovereign people to decide whether to amend the Constitution. Stripped of its abstractions, democracy is all about who has the sovereign right to make decisions for the people and our Constitution clearly and categorically says it is no other than the people themselves from whom all government authority emanates. This right of the people to make decisions is the essence of sovereignty, and it cannot receive any minimalist interpretation from this Court. If there is any principle in the Constitution that cannot be diluted and is non-negotiable, it is this sovereign right of the people to decide. This Court should always be in lockstep with the people in the exercise of their sovereignty. Let them who will diminish or destroy the sovereign right of the people to decide be warned. Let not their sovereignty be diminished by those who belittle their brains to comprehend changes in the Constitution as if the people themselves are not the source and author of our Constitution. Let not their sovereignty be destroyed by the masters of manipulation who misrepresent themselves as the spokesmen of the people. Be it remembered that a petition for people's initiative that complies with the requirement that it "must be signed by at least 12% of the total number of registered voters of which every legislative district is represented by at least 3% of the registered voters therein" is but the first step in a long journey towards the amendment of the Constitution. Lest it be missed, the case at bar involves but a proposal to amend the Constitution. The proposal will still be debated by the people and at this time, there is yet no fail-safe method of telling what will be the result of the debate. There will still be a last step to the process of amendment which is the ratification of the proposal by a majority of the people in a plebiscite called for the purpose. Only when the proposal is approved by a majority of the people in the plebiscite will it become an amendment to the Constitution. All the way, we cannot tie the tongues of the people. It is the people who decide for the people are not an obscure footnote in our Constitution. The people's voice is sovereign in a democracy. Let us hear them. Let us heed them. Let us not only sing paens to the people's sovereignty. Yes, it is neither too soon nor too late to let the people speak. IN VIEW WHEREOF, I vote to REVERSE and SET ASIDE the resolution of the Commission on Elections dated August 31, 2006, denying due course to the Petition for Initiative filed by Raul L. Lambino and Erico B. Aumentado in their own behalf and together with some 6.3 million registered voters who affixed their signatures thereon and to REMAND the petition at bar to the Commission on Elections for further proceedings. REYNATO Associate Justice ____________________

S.

PUNO

EN BANC G. R. No. 174153

October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED VOTERS, Petitioners vs. THE COMMISSION ON ELECTIONS, Respondent; TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO BAYA, SULONGBAYAN MOVEMENT FOUNDATION, INC., PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and VICTORINO F. BALAIS, PetitionersIntervenors; ONE VOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE and CARLOS P. MEDINA, JR., ALTERNATIVE LAW GROUPS, INC., ATTY. PETE QUIRINO-QUADRA, BAYAN, BAYAN MUNA, KILUSANG MAYO UNO, HEAD, ECUMENICAL BISHOPS FORUM, MIGRANTE, GABRIELA, GABRIELA WOMEN'S PARTY, ANAKBAYAN, LEAGUE OF FILIPINO STUDENTS, LEONADO SAN JOSE, JOJO PINEDA, DR. DARBY SANTIAGO, and DR. REGINALD PAMUGAS, LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, ANA THERESIA HONTIVEROS-BARAQUEL, LUWALHATI ANTONINO, PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS, and AMADO GAT INCIONG, SENATE MINORITY LEADER AQUILINO P. PIMENTEL, JR., and SENATORS SERGIO R. OSMEÑA III, JAMBY A.S. MADRIGAL, LUISA P. EJERCITO-ESTRADA, JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO M. LACSON, JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO, INTEGRATED BAR OF THE PHILIPPINES CEBU CITY CHAPTER and CEBU CHAPTER, JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANTONIO L. SALVADOR and RANDALL C. TABAYOYONG, SENATE OF THE PHILIPPINES, Represented by its President, MANUEL VILLAR, JR., Oppositors-Intervenors; G.R. No. 174299 October 25, 2006 MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q. SAGUISAG, Petitioners vs. COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, SR., and Commissioners RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, Respondents. x ---------------------------------------------------------------------------------------- x SEPARATE OPINION QUISUMBING, J.: 1. With due respect to the main opinion written by J. Antonio T. Carpio, and the dissent of J. Reynato S. Puno, I view the matter before us in this petition as one mainly involving a complex political question.1 While admittedly the present Constitution lays down certain numerical requirements for the conduct of a People's Initiative, such as the percentages of signatures – being 12% of the total number of registered voters, provided each legislative district is represented by at least 3% – they are not the main points of controversy. Stated in simple terms, what this Court must decide is whether the Commission on Elections gravely abused its discretion when it denied the petition to submit the proposed changes to the Constitution directly to the vote of the sovereign people in a plebiscite. Technical questions, e.g. whether petitioners should have filed a Motion for Reconsideration before coming to us, are of no moment in the face of the transcendental issue at hand. What deserve our full attention are the issues concerning the applicable rules as well as statutory and constitutional limitations on the conduct of the People's Initiative. 2. It must be stressed that no less than the present Constitution itself empowers the people to "directly" propose amendments through their own "initiative." The subject of the instant petition

is by way of exercising that initiative in order to change our form of government from presidential to parliamentary. Much has been written about the fulsome powers of the people in a democracy. But the most basic concerns the idea that sovereignty resides in the people and that all government authority emanates from them. Clearly, by the power of popular initiative, the people have the sovereign right to change the present Constitution. Whether the initial moves are done by a Constitutional Convention, a Constitutional Assembly, or a People's Initiative, in the end every amendment -- however insubstantial or radical -- must be submitted to a plebiscite. Thus, it is the ultimate will of the people expressed in the ballot, that matters. 2 3. I cannot fault the COMELEC, frankly, for turning down the petition of Messrs. Lambino, et al. For the COMELEC was just relying on precedents, with the common understanding that, pursuant to the cases of Santiago v. COMELEC3 and PIRMA v. COMELEC,4 the COMELEC had been permanently enjoined from entertaining any petition for a people's initiative to amend the Constitution by no less than this Court. In denying due course below to Messrs. Lambino and Aumentado's petition, I could not hold the COMELEC liable for grave abuse of discretion when they merely relied on this Court's unequivocal rulings. Of course, the Santiago and the PIRMA decisions could be reviewed and reversed by this Court, as J. Reynato S. Puno submits now. But until the Court does so, the COMELEC was duty bound to respect and obey this Court's mandate, for the rule of law to prevail. 4. Lastly, I see no objection to the remand to the COMELEC of the petition of Messrs. Lambino and Aumentado and 6.327 million voters, for further examination of the factual requisites before a plebiscite is conducted. On page 4 of the assailed Resolution of the respondent dated August 31, 2006, the COMELEC tentatively expressed its view that "even if the signatures in the instant Petition appear to meet the required minimum per centum of the total number of registered voters", the COMELEC could not give the Petition due course because of our view that R.A. No. 6735 was inadequate. That, however, is now refuted by Mr. Justice Puno's scholarly ponencia. Now that we have revisited the Santiago v. COMELEC decision, there is only one clear task for COMELEC. In my view, the only doable option left for the COMELEC, once factual issues are heard and resolved, is to give due course to the petition for the initiative to amend our Constitution so that the sovereign people can vote on whether a parliamentary system of government should replace the present presidential system. 5. I am therefore in favor of letting the sovereign people speak on their choice of the form of government as a political question soonest. (This I say without fear of media opinion that our judicial independence has been tainted or imperiled, for it is not.) Thus I vote for the remand of the petition. Thereafter, as prayed for, COMELEC should forthwith certify the Petition as sufficient in form and substance and call for the holding of a plebiscite within the period mandated by the basic law, not earlier than sixty nor later than ninety days from said certification. Only a credible plebiscite itself, conducted peacefully and honestly, can bring closure to the instant political controversy. LEONARDO Associate Justice

A.

QUISUMBING

____________________ EN BANC G. R. No. 174153

October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED VOTERS, petitioners, vs. THE COMMISSION ON ELECTIONS, respondent. G. R. No. 174299

October 25, 2006

MAR-LEN ABIGAIL BINAY, SAGUISAG, petitioners,

SOFRONIO

UNTALAN,

JR.

and

RENE

A.Q.

vs. HE COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, SR., and Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, respondents. x ---------------------------------------------------------------------------------------- x DISSENTING OPINION CORONA, J.: The life of the law is not logic but experience.1 Our collective experience as a nation breathes life to our system of laws, especially to the Constitution. These cases promise to significantly contribute to our collective experience as a nation. Fealty to the primary constitutional principle that the Philippines is not merely a republican State but a democratic one as well behooves this Court to affirm the right of the people to participate directly in the process of introducing changes to their fundamental law. These petitions present such an opportunity. Thus, this is an opportune time for this Court to uphold the sovereign rights of the people. I agree with the opinion of Mr. Justice Reynato Puno who has sufficiently explained the rationale for upholding the people's initiative. However, I wish to share my own thoughts on certain matters I deem material and significant. Santiago Does Not Apply to This Case But Only to the 1997 Delfin Petition The COMELEC denied the petition for initiative filed by petitioners purportedly on the basis of this Court's ruling in Santiago v. COMELEC2 that: (1) RA 6753 was inadequate to cover the system of initiative regarding amendments to the Constitution and (2) the COMELEC was permanently enjoined from entertaining or taking cognizance of any petition for initiative regarding amendments to the Constitution until a sufficient law was validly enacted to provide for the implementation of the initiative provision. However, Santiago should not apply to this case but only to the petition of Delfin in 1997. It would be unreasonable to make it apply to all petitions which were yet unforeseen in 1997. The fact is that Santiago was focused on the Delfin petition alone. Those who oppose the exercise of the people's right to initiate changes to the Constitution via initiative claim that Santiago barred any and all future petitions for initiative by virtue of the doctrines of stare decisis and res judicata. The argument is flawed. The ponencia of Mr. Justice Puno has amply discussed the arguments relating to stare decisis. Hence, I will address the argument from the viewpoint of res judicata. Res judicata is the rule that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action.3 It has the following requisites: (1) the former judgment or order must be final; (2) it must have been rendered by a court having jurisdiction of the subject matter and of the parties; (3) it must be a judgment or order on the merits and (4) there must be identity of parties, of subject matter, and of cause of action between the first and second actions.4 There is no identity of parties in Santiago and the instant case. While the COMELEC was also the respondent in Santiago, the petitioners in that case and those in this case are different. More significantly, there is no identity of causes of action in the two cases. Santiago involved amendments to Sections 4 and 7 of Article VI, Section 4 of Article VII and Section 8 of Article X of the Constitution while the present petition seeks to amend Sections 1to 7 of Article VI and Sections 1 to 4 of the 1987 Constitution. Clearly, therefore, the COMELEC committed grave abuse of discretion when it ruled that the present petition for initiative was barred by Santiago and, on that ground, dismissed the petition.

The present petition and that in Santiago are materially different from each other. They are not based on the same facts. There is thus no cogent reason to frustrate and defeat the present direct action of the people to exercise their sovereignty by proposing changes to their fundamental law. People's Initiative Be Subjected to Conditions

Should

Not

People's initiative is an option reserved by the people for themselves exclusively. Neither Congress nor the COMELEC has the power to curtail or defeat this exclusive power of the people to change the Constitution. Neither should the exercise of this power be made subject to any conditions, as some would have us accept. Oppositors to the people's initiative point out that this Court ruled in Santiago that RA 6735 was inadequate to cover the system of initiative on amendments to the Constitution and, thus, no law existed to enable the people to directly propose changes to the Constitution. This reasoning is seriously objectionable. The pronouncement on the insufficiency of RA 6735 was, to my mind, out of place. It was unprecedented and dangerously transgressed the domain reserved to the legislature. While the legislature is authorized to establish procedures for determining the validity and sufficiency of a petition to amend the constitution,5 that procedure cannot unnecessarily restrict the initiative privilege.6 In the same vein, this Court cannot unnecessarily and unreasonably restrain the people's right to directly propose changes to the Constitution by declaring a law inadequate simply for lack of a sub-heading and other grammatical but insignificant omissions. Otherwise, the constitutional intent to empower the people will be severely emasculated, if not rendered illusory. People's Right and Power to Propose Changes to the Constitution Directly Should not be Unreasonably Curtailed If Congress and a constitutional convention, both of which are mere representative bodies, can propose changes to the Constitution, there is no reason why the supreme body politic itself – the people – may not do so directly. Resort to initiative to amend the constitution or enact a statute is an exercise of "direct democracy" as opposed to "representative democracy." The system of initiative allows citizens to directly propose constitutional amendments for the general electorate to adopt or reject at the polls, particularly in a plebiscite. While representative government was envisioned to "refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations," 7 the exercise of "direct democracy" through initiative reserves direct lawmaking power to the people by providing them a method to make new laws via the constitution, or alternatively by enacting statutes.8 Efforts of the represented to control their representatives through initiative have been described as curing the problems of democracy with more democracy.9 The Constitution celebrates the sovereign right of the people and declares that "sovereignty resides in the people and all government authority emanates from them."10 Unless the present petition is granted, this constitutional principle will be nothing but empty rhetoric, devoid of substance for those whom it seeks to empower. The right of the people to pass legislation and to introduce changes to the Constitution is a fundamental right and must be jealously guarded.11 The people should be allowed to directly seek redress of the problems of society and representative democracy with the constitutional tools they have reserved for their use alone. Accordingly, I vote to GRANT the petition in G.R. No. 174513.

RENATO Associate Justice

C.

CORONA

____________________ EN BANC G. R. No. 174153 RAUL LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED VOTERS, Petitioners vs. THE COMMISSION ON ELECTIONS, Respondent; TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO BAYA, SULONGBAYAN MOVEMENT FOUNDATION, INC., PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and VICTORINO F. BALAIS, Petitioners-Intervenors; ONE VOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE and CARLOS P. MEDINA, JR., ALTERNATIVE LAW GROUPS, INC., ATTY. PETE QUIRINO-QUADRA, BAYAN, BAYAN MUNA, KILUSANG MAYO UNO, HEAD, ECUMENICAL BISHOPS FORUM, MIGRANTE, GABRIELA, GABRIELA WOMEN'S PARTY, ANAKBAYAN, LEAGUE OF FILIPINO STUDENTS, LEONADO SAN JOSE, JOJO PINEDA, DR. DARBY SANTIAGO, and DR. REGINALD PAMUGAS, LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, ANA THERESIA HONTIVEROS-BARAQUEL, LUWALHATI ANTONINO, PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS, and AMADO GAT INCIONG, SENATE MINORITY LEADER AQUILINO P. PIMENTEL, JR., and SENATORS SERGIO R. OSMEÑA III, JAMBY A.S. MADRIGAL, LUISA P. EJERCITO-ESTRADA, JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO M. LACSON, JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO, INTEGRATED BAR OF THE PHILIPPINES CEBU CITY CHAPTER and CEBU CHAPTER, JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANOTNIO L. SALVADOR and RANDALL C. TABAYOYONG, SENATE OF THE PHILIPPINES, Represented by its President, MANUEL VILLAR, JR.,Oppositors-Intervenors; G.R. No. 174299 entitled MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q. SAGUISAG, Petitioners vs. COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, SR., and Commissioners RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, Respondents. x ---------------------------------------------------------------------------------------- x SEPARATE OPINION TINGA, J: I join in full the opinion of Senior Associate Justice Puno. Its enviable sang-froid, inimitable lucidity, and luminous scholarship are all so characteristic of the author that it is hardly a waste of pen and ink to write separately if only to express my deep admiration for his disquisition. It is compelling because it derives from the fundamental democratic ordinance that sovereignty resides in the people, and it seeks to effectuate that principle through the actual empowerment of the sovereign people. Justice Puno's opinion will in the short term engender reactions on its impact on present attempts to amend the Constitution, but once the political passion of the times have been shorn, it will endure as an unequivocal message to the taongbayan that they are to be trusted to chart the course of their future.

Nothing that I inscribe will improve on Justice Puno's opinion. I only write separately to highlight a few other points which also inform my vote to grant the petitions. I. I agree with Justice Puno that Santiago v. COMELEC1 and PIRMA v. COMELEC2 had not acquired value as precedent and should be reversed in any case. I add that the Court has long been mindful of the rule that it necessitates a majority, and not merely a plurality, in order that a decision can stand as precedent. That principle has informed the members of this Court as they deliberated and voted upon contentious petitions, even if this consideration is not ultimately reflected on the final draft released for promulgation. The curious twist to Santiago and PIRMA is that for all the denigration heaped upon Rep. Act No. 6735 in those cases, the Court did not invalidate any provision of the statute. All the Court said then was that the law was "inadequate". Since this "inadequate" law was not annulled by the Court, or repealed by Congress, it remained part of the statute books.3 I maintain that even if Rep. Act No. 6735 is truly "inadequate", the Court in Santiago should not have simply let the insufficiency stand given that it was not minded to invalidate the law itself. Article 9 of the Civil Code provides that "[n]o judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws."4As explained by the Court recently in Reyes v. Lim,5 "[Article 9] calls for the application of equity, which[, in the revered Justice Cardozo's words,] 'fills the open spaces in the law.'"6 Certainly, any court that refuses to rule on an action premised on Rep. Act No. 6735 on the ground that the law is "inadequate" would have been found in grave abuse of discretion. The previous failure by the Court to "fill the open spaces" in Santiago further highlights that decision's status as an unfortunate aberration. I am mindful of the need to respect stare decisis, to the point of having recently decried a majority ruling that was clearly minded to reverse several precedents but refused to explicitly say so.7 Yet the principle is not immutable.8The passionate words of Chief Justice Panganiban in Osmeña v. COMELEC9 bear quoting: Before I close, a word about stare decisis. In the present case, the Court is maintaining the ad ban to be consistent with its previous holding in NPC vs. Comelec. Thus, respondent urges reverence for the stability of judicial doctrines. I submit, however, that more important than consistency and stability are the verity, integrity and correctness of jurisprudence. As Dean Roscoe Pound explains, "Law must be stable but it cannot stand still." Verily, it must correct itself and move in cadence with the march of the electronic age. Error and illogic should not be perpetuated. After all, the Supreme Court, in many cases, has deviated from stare decisis and reversed previous doctrines and decisions.10 It should do no less in the present case.11 Santiago established a tenet that the Supreme Court may affirm a law as constitutional, yet declare its provisions as inadequate to accomplish the legislative purpose, then barred the enforcement of the law. That ruling is erroneous, illogical, and should not be perpetuated. II. Following Justice Puno's clear demonstration why Santiago should not be respected as precedent, I agree that the COMELEC's failure to take cognizance of the petitions as mandated by Rep. Act No. 6735 constitutes grave abuse of discretion correctible through the petitions before this Court. The Court has consistently held in cases such as Abes v. COMELEC12, Sanchez v. COMELEC13, and Sambarani v. COMELEC14 that "the functions of the COMELEC under the Constitution are essentially executive and administrative in nature".15 More pertinently, in Buac v. COMELEC16, the Court held that the jurisdiction of the COMELEC relative to the enforcement and administration of a law relative to a plebiscite fell under the jurisdiction of the poll body under its constitutional mandate "to enforce and administer all laws and regulations relative to the conduct of a xxx plebiscite".17

Rep. Act No. 6735 is a law relative to the conduct of a plebiscite. The primary task of the COMELEC under Rep. Act No. 6735 is to enforce and administer the said law, functions that are essentially executive and administrative in nature. Even the subsequent duty of the COMELEC of determining the sufficiency of the petitions after they have been filed is administrative in character. By any measure, the COMELEC's failure to perform its executive and administrative functions under Rep. Act No. 6735 constitutes grave abuse of discretion. III. It has been argued that the subject petitions for initiative are barred under Republic Act No. 6735 as they allegedly embrace more than one subject. Section 10 of Rep. Act No. 6735 classifies as a "prohibited measure," a petition submitted to the electorate that embraces more than one subject.18 On this point, reliance is apparently placed on the array of provisions which are to be affected by the amendments proposed in the initiative petition. Section 10 of Rep. Act No. 6735 is a reflection of the long-enshrined constitutional principle that the laws passed by Congress "shall embrace only one subject which shall be expressed in the title thereof".19 The one-subject requirement under the Constitution is satisfied if all the parts of the statute are related, and are germane to the subject matter expressed in the title, or as long as they are not inconsistent with or foreign to the general subject and title.20 An act having a single general subject, indicated in the title, may contain any number of provisions, no matter how diverse they may be, so long as they are not inconsistent with or foreign to the general subject, and may be considered in furtherance of such subject by providing for the method and means of carrying out the general object.21 The precedents governing the one-subject, one-title rule under the Constitution should apply as well in the interpretation of Section 10 of Rep. Act No. 6735. For as long as it can be established that an initiative petition embraces a single general subject, the petition may be allowed no matter the number of constitutional provisions proposed for amendment if the amendments are germane to the subject of the petition. Both the Sigaw ng Bayan and the Lambino initiative petitions expressly propose the changing of the form of government from bicameral-presidential to unicameral-parliamentary. Such a proposal may strike as comprehensive, necessitating as it will the reorganization of the executive and legislative branches of government, nevertheless it ineluctably encompasses only a single general subject still. The 1987 Constitution (or any constitution for that matter) is susceptible to division into several general spheres. To cite the broadest of these spheres by way of example, Article III enumerates the guaranteed rights of the people under the Bill of Rights; Articles VI, VII and VIII provide for the organizational structure of government; while Articles II, XII, XIII & XIV, XV and XVI enunciate policy principles of the State. What would clearly be prohibited under Section 10 of Rep. Act No. 6735 is an initiative petition that seeks to amend provisions which do not belong to the same sphere. For example, had a single initiative petition sought not only to change the form of government from presidential to parliamentary but also to amend the Bill of Rights, said petition would arguably have been barred under Section 10, as that petition ostensibly embraces more than one subject, with each subject bearing no functional relation to the other. But that is not the case with the present initiative petitions. Neither can it be argued that the initiative petitions embrace more than one subject since the proposed amendments seek to affect two separate branches of government. The very purpose of the initiative petitions is to fuse the powers of the executive and legislative branches of government; hence, the amendments intended to effect such general intent necessarily affects the two branches. If it required that to propose a shift in government from presidential to parliamentary, the amendments to Article VII (Executive Branch) have to be segregated to a different petition from that which would propose amendments to Article VI (Legislative Branch), then the result would be two initiative petitions ─ both subject to separate authentications, consideration and even plebiscites, all to effect one general proposition. This scenario, which entertains the possibility that one petition would ultimately fail while the other succeeds, could thus allow for the risk that the executive branch could be abolished without transferring executive power to the legislative branch. An absurd result, indeed.

I am not even entirely comfortable with the theoretical underpinnings of Section 10. The Constitution indubitably grants the people the right to seek amendment of the charter through initiative, and mandates Congress to "provide for the implementation of the exercise of this right." In doing so, Congress may not restrict the right to initiative on grounds that are not provided for in the Constitution. If for example the implementing law also provides that certain provisions of the Constitution may not be amended through initiative, that prohibition should not be sustained. Congress is tasked with the implementation, and not the restriction of the right to initiative. The one-subject requirement under Section 10 is not provided for as a bar to amendment under the Constitution. Arguments can be supplied for the merit of such a requirement, since it would afford a measure of orderliness when the vital question of amending the Constitution arises. The one-subject requirement does allow the voters focus when deliberating whether or not to vote for the amendments. These factors of desirability nonetheless fail to detract from the fact that the one-subject requirement imposes an additional restriction on the right to initiative not contemplated by the Constitution. Short of invalidating the requirement, a better course of action would be to insist upon its liberal interpretation. After all, the Court has consistently adhered to a liberal interpretation of the one-subject, one-title rule.22 There is no cause to adopt a stricter interpretative rule with regard to the one-subject rule under Section 10 of Rep. Act No. 6735. IV. During the hearing on the petitions, the argument was raised that provisions of the Constitution amended through initiative would not have the benefit of a reference source from the record of a deliberative body such as Congress or a constitutional convention. It was submitted that this consideration influenced the Constitutional Commission as it drafted Section 2, Article XVII, which expressly provided that only amendments, and not revisions, may be the subject of initiative petitions. This argument clearly proceeds from a premise that accords supreme value to the record of deliberations of a constitutional convention or commission in the interpretation of the charter. Yet if the absence of a record of deliberations stands as so serious a flaw as to invalidate or constrict processes which change a constitution or its provisions, then the entire initiative process authorized by the Constitution should be scarlet-marked as well. Even if this position can be given any weight in the consideration of these petitions, I would like to point out that resort to the records of deliberations is only one of many aids to constitutional construction. For one, it should be abhorred if the provision under study is itself clear, plain, and free from ambiguity. As the Court held in Civil Liberties Union v. Executive Secretary:23 While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other guides fail as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debates in the constitutional convention "are of value as showing the views of the individual members, and as indicating the reasons for their votes, but they give us no light as to the views of the large majority who did not talk . . . We think it safer to construe the constitution from what appears upon its face."24 Even if there is need to refer to extrinsic sources in aid of constitutional interpretation, the constitutional record does not provide the exclusive or definitive answer on how to interpret the provision. The intent of a constitutional convention is not controlling by itself, and while the historical discussion on the floor of the constitutional convention is valuable, it is not necessarily decisive. The Court has even held in Vera v. Avelino25 that "the proceedings of the [constitutional] convention are less conclusive of the proper construction of the fundamental law than are legislative proceedings of the proper construction of a statute, since in the latter case it is the intent of the legislature that courts seek, while in the former courts are endeavoring to arrive at the intent of the people through the discussions and deliberations of their representatives."26 The proper interpretation of a constitution depends more on how it was understood by the people adopting it than the framers' understanding thereof.27

If there is fear in the absence of a constitutional record as guide for interpretation of any amendments adopted via initiative, such absence would not preclude the courts from interpreting such amendments in a manner consistent with how courts generally construe the Constitution. For example, reliance will be placed on the other provisions of the Constitution to arrive at a harmonized and holistic constitutional framework. The constitutional record is hardly the Rosetta Stone that unlocks the meaning of the Constitution. V. I fully agree with Justice Puno that all issues relating to the sufficiency of the initiative petitions should be remanded to the COMELEC. Rep. Act No. 6735 clearly reposes on the COMELEC the task of determining the sufficiency of the petitions, including the ascertainment of whether twelve percent (12%) of all registered voters, including three percent (3%) of registered voters in every legislative district have indeed signed the initiative petitions.28 It should be remembered that the COMELEC had dismissed the initiative petitions outright, and had yet to undertake the determination of sufficiency as required by law. It has been suggested to the end of leading the Court to stifle the initiative petitions that the Court may at this juncture pronounce the initiative petitions as insufficient. The derivation of the factual predicates leading to the suggestion is uncertain, considering that the trier of facts, the COMELEC in this instance, has yet to undertake the necessary determination. Still, the premise has been floated that petitioners have made sufficient admissions before this Court that purportedly established the petitions are insufficient. That premise is highly dubitable. Yet the more fundamental question that we should ask, I submit, is whether it serves well on the Court to usurp trier of facts even before the latter exercises its functions? If the Court, at this stage, were to declare the petitions as insufficient, it would be akin to the Court pronouncing an accused as guilty even before the lower court trial had began. Matugas v. COMELEC29 inveighs against the propriety of the Court uncharacteristically assuming the role of trier of facts, and resolving factual questions not previously adjudicated by the lower courts or tribunals: [P]etitioner in this case cannot "enervate" the COMELEC's findings by introducing new evidence before this Court, which in any case is not a trier of facts, and then ask it to substitute its own judgment and discretion for that of the COMELEC. The rule in appellate procedure is that a factual question may not be raised for the first time on appeal, and documents forming no part of the proofs before the appellate court will not be considered in disposing of the issues of an action. This is true whether the decision elevated for review originated from a regular court or an administrative agency or quasi-judicial body, and whether it was rendered in a civil case, a special proceeding, or a criminal case. Piecemeal presentation of evidence is simply not in accord with orderly justice.30 Any present determination by the Court on the sufficiency of the petitions constitutes in effect a trial de novo, the Justices of the Supreme Court virtually descending to the level of trial court judges. This is an unbecoming recourse, and it simply is not done. VI. The worst position this Court could find itself in is to acquiesce to a plea that it make the choice whether to amend the Constitution or not. This is a matter which should not be left to fifteen magistrates who have not been elected by the people to make the choice for them. A vote to grant the petitions is not a vote to amend the 1987 Constitution. It is merely a vote to allow the people to directly exercise that option. In fact, the position of Justice Puno which I share would not even guarantee that the Lambino and Sigaw ng Bayan initiative petitions would be submitted to the people in a referendum. The COMELEC will still have to determine the sufficiency of the petition. Among the questions which still have to be determined by the poll

body in considering the sufficiency of the petitions is whether twelve percent (12%) of all registered voters nationwide, including three percent (3%) of registered voters in every legislative district, have indeed signed the initiative petitions.31 And even should the COMELEC find the initiative petitions sufficient, the matter of whether the Constitution should be amended would still depend on the choice of the electorate. The oppositors are clearly queasy about some of the amendments proposed, or the imputed motives behind the amendments. A referendum, should the COMELEC find the petitions as sufficient, would allow them to convey their uneasiness to the public at large, as well as for the proponents of the amendment to defend their proposal. The campaign period alone would allow the public to be involved in the significant deliberation on the course our nation should take, with the ensuing net benefit of a more informed, more politically aware populace. And of course, the choice on whether the Constitution should be amended would lie directly with the people. The initiative process involves participatory democracy at its most elemental; wherein the consequential debate would not be confined to the august halls of Congress or the hallowed chambers of this Court, as it would spill over to the public squares and town halls, the academic yards and the Internet blogosphere, the dining areas in the homes of the affluent and the impoverished alike. The prospect of informed and widespread discussion on constitutional change engaged in by a people who are actually empowered in having a say whether these changes should be enacted, gives fruition to the original vision of pure democracy, as formulated in Athens two and a half millennia ago. The great hero of Athenian democracy, Pericles, was recorded as saying in his famed Funeral Oration, "We differ from other states in regarding the man who keeps aloof from public life not as 'private' but as useless; we decide or debate, carefully and in person all matters of policy, and we hold, not that words and deeds go ill together, but that acts are foredoomed to failure when undertaken undiscussed."32 Unfortunately, given the highly politicized charge of the times, it has been peddled that an act or vote that assists the initiative process is one for the willful extinction of democracy or democratic institutions. Such a consideration should of course properly play its course in the public debates and deliberations attendant to the initiative process. Yet as a result of the harum-scarum, the temptation lies heavy for a member of this Court perturbed with the prospect of constitutional change to relieve those anxieties by simply voting to enjoin any legal procedure that initiates the amendment or revision of the fundamental law, even at the expense of the people's will or what the Constitution allows. A vote so oriented takes the conservative path of least resistance, even as it may gain the admiration of those who do not want to see the Constitution amended. Still, the biases we should enforce as magistrates are those of the Constitution and the elements of democracy on which our rule of law is founded. Direct democracy, as embodied in the initiative process, is but a culmination of the evolution over the centuries of democratic rights of choice and self-governance. The reemergence of the Athenian democratic ideal after centuries of tyrannical rules arrived very slowly, the benefits parceled out at first only to favored classes. The Magna Carta granted limited rights to self-determination and self-governance only to a few English nobles; the American Constitution was originally intended to give a meaningful voice only to free men, mostly Caucasian, who met the property-holding requirements set by the states for voting. Yet even the very idea of popular voting, limited as it may have already been within the first few years of the American Union, met resistance from no less a revered figure as Alexander Hamilton, to whom the progressive historian Howard Zinn attributes these disconcerting words: The voice of the people has been said to be the voice of God; and however generally this maxim has been quoted and believed, it is not true in fact. The people are turbulent and changing; they seldom judge or determine right. Give therefore to the first class a distinct permanent share in the government… Can a democratic assembly who annually revolve in the mass of the people be supposed steadily to pursue the public good? Nothing but a permanent body can check the imprudence of democracy…33 This utterly paternalistic and bigoted view has not survived into the present age of modern democracy where a person's poverty, color, or gender no longer impedes the exercise of full democratic rights. Yet a democracy that merely guarantees its citizens the right to live their lives

freely is incomplete if there is no corresponding allowance for a means by which the people have a direct choice in determining their country's direction. Initiative as a mode of amending a constitution may seem incompatible with representative democracy, yet it embodies an even purer form of democracy. Initiative, which our 1987 Constitution saw fit to grant to the people, is a progressive measure that is but a continuation of the line of evolution of the democratic ideal. By allowing the sovereign people to directly propose and enact constitutional amendments, the initiative process should be acknowledged as the purest implement of democratic rule under law. This right granted to over sixty million Filipinos cannot be denied by the votes of less than eight magistrates for reasons that bear no cogitation on the Constitution. I VOTE to GRANT the petitions. DANTE Associate Justice

O.

TINGA

____________________ EN BANC G. R. No. 174153 RAUL LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED VOTERS, Petitioners vs. THE COMMISSION ON ELECTIONS, Respondent; TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO BAYA, SULONGBAYAN MOVEMENT FOUNDATION, INC., PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and VICTORINO F. BALAIS, Petitioners-Intervenors; ONE VOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE and CARLOS P. MEDINA, JR., ALTERNATIVE LAW GROUPS, INC., ATTY. PETE QUIRINO-QUADRA, BAYAN, BAYAN MUNA, KILUSANG MAYO UNO, HEAD, ECUMENICAL BISHOPS FORUM, MIGRANTE, GABRIELA, GABRIELA WOMEN'S PARTY, ANAKBAYAN, LEAGUE OF FILIPINO STUDENTS, LEONADO SAN JOSE, JOJO PINEDA, DR. DARBY SANTIAGO, and DR. REGINALD PAMUGAS, LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, ANA THERESIA HONTIVEROS-BARAQUEL, LUWALHATI ANTONINO, PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS, and AMADO GAT INCIONG, SENATE MINORITY LEADER AQUILINO P. PIMENTEL, JR., and SENATORS SERGIO R. OSMEÑA III, JAMBY A.S. MADRIGAL, LUISA P. EJERCITO-ESTRADA, JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO M. LACSON, JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO, INTEGRATED BAR OF THE PHILIPPINES CEBU CITY CHAPTER and CEBU CHAPTER, JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANOTNIO L. SALVADOR and RANDALL C. TABAYOYONG, SENATE OF THE PHILIPPINES, Represented by its President, MANUEL VILLAR, JR.,Oppositors-Intervenors; G.R. No. 174299 MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q. SAGUISAG, Petitioners vs. COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, SR., and Commissioners RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, Respondents. x ---------------------------------------------------------------------------------------- x DISSENTING OPINION

CHICO-NAZARIO, J.: "The people made the constitution, and the people can unmake it. It is the creature of their will, and lives only by their will. But this supreme and irresistible power to make or unmake, resides only in the whole body of the people; not in any subdivision of them." -- Marshall, C.J., Cohens v. Virginia (1821, US) 6 Wheat 264, 389, 5 L ed. 257, 287. I express my concurrence in the discussions and conclusions presented in the persuasive and erudite dissent of Justice Reynato S. Puno. However, I make some additional observations in connection with my concurrence. While it is but proper to accord great respect and reverence to the Philippine Constitution of 1987 for being the supreme law of the land, we should not lose sight of the truth that there is an ultimate authority to which the Constitution is also subordinate – the will of the people. No less than its very first paragraph, the Preamble,1expressly recognizes that the Constitution came to be because it was ordained and promulgated by the sovereign Filipino people. It is a principle reiterated yet again in Article II, Section 1, of the Constitution, which explicitly declares that "[t]he Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them." Thus, the resolution of the issues and controversies raised by the instant Petition should be guided accordingly by the foregoing principle. If the Constitution is the expression of the will of the sovereign people, then, in the event that the people change their will, so must the Constitution be revised or amended to reflect such change. Resultantly, the right to revise or amend the Constitution inherently resides in the sovereign people whose will it is supposed to express and embody. The Constitution itself, under Article XVII, provides for the means by which the revision or amendment of the Constitution may be proposed and ratified. Under Section 1 of the said Article, proposals to amend or revise the Constitution may be made (a) by Congress, upon a vote of three-fourths of all its Members, or (b) by constitutional convention. The Congress and the constitutional convention possess the power to propose amendments to, or revisions of, the Constitution not simply because the Constitution so provides, but because the sovereign people had chosen to delegate their inherent right to make such proposals to their representatives either through Congress or through a constitutional convention. On the other hand, the sovereign people, well-inspired and greatly empowered by the People Power Revolution of 1986, reserved to themselves the right to directly propose amendments to the Constitution through initiative, to wit – SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right. 2 The afore-quoted section does not confer on the Filipino people the right to amend the Constitution because, as previously discussed, such right is inherent in them. The section only reduces into writing this right to initiate amendments to the Constitution where they collectively and willfully agreed in the manner by which they shall exercise this right: (a) through the filing of a petition; (b) supported by at least twelve percent (12%) of the total number of registered voters nationwide; (c) with each legislative district represented by at least three percent (3%) of the registered voters therein; (d) subject to the limitation that no such petition may be filed within five years after the ratification of the Constitution, and not oftener than once every five years thereafter; and (e) a delegation to Congress of the authority to provide the formal requirements and other details for the implementation of the right.

It is my earnest opinion that the right of the sovereign people to directly propose amendments to the Constitution through initiative is more superior than the power they delegated to Congress or to a constitutional convention to amend or revise the Constitution. The initiative process gives the sovereign people the voice to express their collective will, and when the people speak, we must be ready to listen. Article XVII, Section 2 of the Constitution recognizes and guarantees the sovereign people's right to initiative, rather than limits it. The enabling law which Congress has been tasked to enact must give life to the said provision and make the exercise of the right to initiative possible, not regulate, limit, or restrict it in any way that would render the people's option of resorting to initiative to amend the Constitution more stringent, difficult, and less feasible, as compared to the other constitutional means to amend or revise the Constitution. In fact, it is worth recalling that under Article VI, Section 1 of the Constitution, the legislative power of Congress is limited to the extent reserved to the people by the provisions on initiative and referendum. It is with this frame of mind that I review the issues raised in the instant Petitions, and which has led me to the conclusions, in support of the dissent of Justice Puno, that (a) The Commission on Election (COMELEC) had indeed committed grave abuse of discretion in summarily dismissing the petition for initiative to amend the Constitution filed by herein petitioners Raul L. Lambino and Erico B. Aumentado; (b) The Court should revisit the pronouncements it made in Santiago v. Commission on Elections;3 (c) It is the sovereign people's inherent right to propose changes to the Constitution, regardless of whether they constitute merely amendments or a total revision thereof; and (d) The COMELEC should take cognizance of Lambino and Aumentado's petition for initiative and, in the exercise of its jurisdiction, determine the factual issues raised by the oppositors before this Court. I The COMELEC had indeed committed grave abuse of discretion when it summarily dismissed Lambino and Aumentado's petition for initiative entirely on the basis of the Santiago case which, allegedly, permanently enjoined it from entertaining or taking cognizance of any petition for initiative to amend the Constitution in the absence of a sufficient law. After a careful reading, however, of the Santiago case, I believe in earnest that the permanent injunction actually issued by this Court against the COMELEC pertains only to the petition for initiative filed by Jesus S. Delfin, and not to all subsequent petitions for initiative to amend the Constitution. The Conclusion4 in the majority opinion in the Santiago case reads – CONCLUSION This petition must then be granted, and the COMELEC should be permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system. We feel, however, that the system of initiative to propose amendments to the Constitution should no longer be kept in the cold; it should be given flesh and blood, energy and strength. Congress should not tarry any longer in complying with the constitutional mandate to provide for the implementation of the right of the people under that system. WHEREFORE, judgment is hereby rendered a) GRANTING the instant petition; b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to the Constitution, and to have failed to provide sufficient standard for subordinate legislation;

c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections prescribing rules and regulations on the conduct of initiative or amendments to the Constitution; and d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-037). The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the Commission on Elections, but is LIFTED as against private respondents. Resolution on the matter of contempt is hereby reserved. It is clear from the fallo, as it is reproduced above, that the Court made permanent the Temporary Restraining Order (TRO) it issued on 18 December 1996 against the COMELEC. The said TRO enjoined the COMELEC from proceeding with the Delfin Petition, and Alberto and Carmen Pedrosa from conducting a signature drive for people's initiative.5 It was this restraining order, more particularly the portion thereof referring to the Delfin Petition, which was expressly made permanent by the Court. It would seem to me that the COMELEC and all other oppositors to Lambino and Aumentado's petition for initiative gave unwarranted significance and weight to the first paragraph of the Conclusion in the Santiago case. The first and second paragraphs of the Conclusion, preceding the dispositive portion, merely express the opinion of the ponente; while the definite orders of the Court for implementation are found in the dispositive portion. We have previously held that – The dispositive portion or the fallo is what actually constitutes the resolution of the court and which is the subject of execution, although the other parts of the decision may be resorted to in order to determine the ratio decidendi for such a resolution. Where there is conflict between the dispositive part and the opinion of the court contained in the text of the decision, the former must prevail over the latter on the theory that the dispositive portion is the final order while the opinion is merely a statement ordering nothing. Hence execution must conform more particularly to that ordained or decreed in the dispositive portion of the decision.6 Is there a conflict between the first paragraph of the Conclusion and the dispositive portion of the Santiago case? Apparently, there is. The first paragraph of the Conclusion states that the COMELEC should be permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until the enactment of a valid law. On the other hand, the fallo only makes permanent the TRO7 against COMELEC enjoining it from proceeding with the Delfin Petition. While the permanent injunction contemplated in the Conclusion encompasses all petitions for initiative on amendments to the Constitution, the fallo is expressly limited to the Delfin Petition. To resolve the conflict, the final order of the Court as it is stated in the dispositive portion or the fallo should be controlling. Neither can the COMELEC dismiss Lambino and Aumentado's petition for initiative on the basis of this Court's Resolution, dated 23 September 1997, in the case of People's Initiative for Reform, Modernization and Action (PIRMA) v. The Commission on Elections, et al.8 The Court therein found that the COMELEC did not commit grave abuse of discretion in dismissing the PIRMA Petition for initiative to amend the Constitution for it only complied with the Decision in the Santiago case. It is only proper that the Santiago case should also bar the PIRMA Petition on the basis of res judicata because PIRMA participated in the proceedings of the said case, and had knowledge of and, thus, must be bound by the judgment of the Court therein. As explained by former Chief Justice Hilario G. Davide, Jr. in his separate opinion to the Resolution in the PIRMA case – First, it is barred by res judicata. No one aware of the pleadings filed here and in Santiago v. COMELEC (G.R. No. 127325, 19 March 1997) may plead ignorance of the fact that the former is substantially identical to the latter, except for the reversal of the roles played by the principal parties and inclusion of additional, yet not

indispensable, parties in the present petition. But plainly, the same issues and reliefs are raised and prayed for in both cases. The principal petitioner here is the PEOPLE'S INITIATIVE FOR REFORM, MODERNIZATION, AND ACTION (PIRMA) and Spouses ALBERTO PEDROSA and CARMEN PEDROSA. PIRMA is self-described as "a non-stock, non-profit organization duly organized and existing under Philippine laws with office address at Suite 403, Fedman Suites, 199 Salcedo Street, Legaspi Village, Makati City," with "ALBERTO PEDROSA and CARMEN PEDROSA" as among its "officers." In Santiago, the PEDROSAS were made respondents as founding members of PIRMA which, as alleged in the body of the petition therein, "proposes to undertake the signature drive for a people's initiative to amend the Constitution." In Santiago then, the PEDROSAS were sued in their capacity as founding members of PIRMA. The decision in Santiago specifically declared that PIRMA was duly represented at the hearing of the Delfin petition in the COMELEC. In short, PIRMA was intervenor-petitioner therein. Delfin alleged in his petition that he was a founding member of the Movement for People's Initiative, and under footnote no. 6 of the decision, it was noted that said movement was "[l]ater identified as the People's Initiative for Reforms, Modernization and Action, or PIRMA for brevity." In their Comment to the petition in Santiago, the PEDROSA'S did not deny that they were founding members of PIRMA, and by their arguments, demonstrated beyond a shadow of a doubt that they had joined Delfin or his cause. No amount of semantics may then shield herein petitioners PIRMA and the PEDROSAS, as well as the others joining them, from the operation of the principle of res judicata, which needs no further elaboration.9 While the Santiago case bars the PIRMA case because of res judicata, the same cannot be said to the Petition at bar. Res judicata is an absolute bar to a subsequent action for the same cause; and its requisites are: (a) the former judgment or order must be final; (b) the judgment or order must be one on the merits; (c) it must have been rendered by a court having jurisdiction over the subject matter and parties; and (d) there must be between the first and second actions, identity of parties, of subject matter and of causes of action.10 Even though it is conceded that the first three requisites are present herein, the last has not been complied with. Undoubtedly, the Santiago case and the present Petition involve different parties, subject matter, and causes of action, and the former should not bar the latter. In the Santiago case, the petition for initiative to amend the Constitution was filed by Delfin alone. His petition does not qualify as the initiatory pleading over which the COMELEC can acquire jurisdiction, being unsupported by the required number of registered voters, and actually imposing upon the COMELEC the task of gathering the voters' signatures. In the case before us, the petition for initiative to amend the Constitution was filed by Lambino and Aumentado, on behalf of the 6.3 million registered voters who affixed their signatures on the signature sheets attached thereto. Their petition prays that the COMELEC issue an Order – 1. Finding the petition to be sufficient pursuant to Section 4, Article XVII of the 1987 Constitution; 2. Directing the publication of the petition in Filipino and English at least twice in newspapers of general and local circulation; and 3. Calling a plebiscite to be held not earlier than sixty nor later than ninety days after the Certification by the COMELEC of the sufficiency of the petition, to allow the Filipino people to express their sovereign will on the proposition. Although both cases involve the right of the people to initiate amendments to the Constitution, the personalities concerned and the other factual circumstances attendant in the two cases differ. Also dissimilar are the particular prayer and reliefs sought by the parties from the COMELEC, as well as from this Court. For these reasons, I find that the COMELEC acted with

grave abuse of discretion when it summarily dismissed the petition for initiative filed by Lambino and Aumentado. It behooves the COMELEC to accord due course to a petition which on its face complies with the rudiments of the law. COMELEC was openly negligent in summarily dismissing the Lambino and Aumentado petition. The haste by which the instant Petition was struck down is characteristic of bad faith, which, to my mind, is a patent and gross evasion of COMELEC's positive duty. It has so obviously copped out of its duty and responsibility to determine the sufficiency thereof and sought protection and justification for its craven decision in the supposed permanent injunction issued against it by the Court in the Santiago case. The COMELEC had seemingly expanded the scope and application of the said permanent injunction, reading into it more than what it actually states, which is surprising, considering that the Chairman and majority of the members of COMELEC are lawyers who should be able to understand and appreciate, more than a lay person, the legal consequences and intricacies of the pronouncements made by the Court in the Santiago case and the permanent injunction issued therein. No less than the Constitution itself, under the second paragraph of Article XVII, Section 4, imposes upon the COMELEC the mandate to set a date for plebiscite after a positive determination of the sufficiency of a petition for initiative on amendments to the Constitution, viz – SEC. 4. x x x Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the certification by the Commission on Elections of the sufficiency of the petition. As a rule, the word "shall" commonly denotes an imperative obligation and is inconsistent with the idea of discretion, and that the presumption is that the word "shall" when used, is mandatory.11 Under the above-quoted constitutional provision, it is the mandatory or imperative obligation of the COMELEC to (a) determine the sufficiency of the petition for initiative on amendments to the Constitution and issue a certification on its findings; and (b) in case such petition is found to be sufficient, to set the date for the plebiscite on the proposed amendments not earlier than 60 days nor later than 90 days after its certification. The COMELEC should not be allowed to shun its constitutional mandate under the second paragraph of Article XVII, Section 4, through the summary dismissal of the petition for initiative filed by Lambino and Aumentado, when such petition is supported by 6.3 million signatures of registered voters. Should all of these signatures be authentic and representative of the required percentages of registered voters for every legislative district and the whole nation, then the initiative is a true and legitimate expression of the will of the people to amend the Constitution, and COMELEC had caused them grave injustice by silencing their voice based on a patently inapplicable permanent injunction. II We should likewise take the opportunity to revisit the pronouncements made by the Court in its Decision in the Santiago case, especially as regards the supposed insufficiency or inadequacy of Republic Act No. 6735 as the enabling law for the implementation of the people's right to initiative on amendments to the Constitution. The declaration of the Court that Republic Act No. 6735 is insufficient or inadequate actually gave rise to more questions rather than answers, due to the fact that there has never been a judicial precedent wherein the Court invalidated a law for insufficiency or inadequacy. The confusion over such a declaration thereby impelled former Chief Justice Davide, Jr., the ponente in the Santiago case, to provide the following clarification in his separate opinion to the Resolution in the PIRMA case, thus – Simply put, Santiago did, in reality, declare as unconstitutional that portion of R.A. No. 6735 relating to Constitutional initiatives for failure to comply with the "completeness and sufficient standard tests" with respect to permissible delegation of legislative power or

subordinate legislation. However petitioners attempt to twist the language in Santiago, the conclusion is inevitable; the portion of R.A. No. 6735 was held to be unconstitutional. It is important to note, however, that while the Decision in the Santiago case pronounced repeatedly that Republic Act No. 6735 was insufficient and inadequate, there is no categorical declaration therein that the said statute was unconstitutional. The express finding that Republic Act No. 6735 is unconstitutional can only be found in the separate opinion of former Chief Justice Davide to the Resolution in the PIRMA case, which was not concurred in by the other members of the Court. Even assuming arguendo that the declaration in the Santiago case, that Republic Act No. 6735 is insufficient and inadequate, is already tantamount to a declaration that the statute is unconstitutional, it was rendered in violation of established rules in statutory construction, which state that – [A]ll presumptions are indulged in favor of constitutionality; one who attacks a statute, alleging unconstitutionality must prove its invalidity beyond a reasonable doubt (Victoriano v. Elizalde Rope Workers' Union, 59 SCRA 54 [19741). In fact, this Court does not decide questions of a constitutional nature unless that question is properly raised and presented in appropriate cases and is necessary to a determination of the case, i.e., the issue of constitutionality must be lis mota presented (Tropical Homes v. National Housing Authority, 152 SCRA 540 [1987]). First, the Court, in the Santiago case, could have very well avoided the issue of constitutionality of Republic Act No. 6735 by ordering the COMELEC to dismiss the Delfin petition for the simple reason that it does not constitute an initiatory pleading over which the COMELEC could acquire jurisdiction. And second, the unconstitutionality of Republic Act No. 6735 has not been adequately shown. It was by and large merely inferred or deduced from the way Republic Act No. 6735 was worded and the provisions thereof arranged and organized by Congress. The dissenting opinions rendered by several Justices in the Santiago case reveal the other side to the argument, adopting the more liberal interpretation that would allow the Court to sustain the constitutionality of Republic Act No. 6735. It would seem that the majority in the Santiago case failed to heed the rule that all presumptions should be resolved in favor of the constitutionality of the statute. The Court, acting en banc on the Petition at bar, can revisit its Decision in the Santiago case and again open to judicial review the constitutionality of Republic Act No. 6735; in which case, I shall cast my vote in favor of its constitutionality, having satisfied the completeness and sufficiency of standards tests for the valid delegation of legislative power. I fully agree in the conclusion made by Justice Puno on this matter in his dissenting opinion12 in the Santiago case, that reads – R.A. No. 6735 sufficiently states the policy and the standards to guide the COMELEC in promulgating the law's implementing rules and regulations of the law. As aforestated, Section 2 spells out the policy of the law; viz: "The power of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed." Spread out all over R.A. No. 6735 are the standards to canalize the delegated power to the COMELEC to promulgate rules and regulations from overflowing. Thus, the law states the number of signatures necessary to start a people's initiative, directs how initiative proceeding is commenced, what the COMELEC should do upon filing of the petition for initiative, how a proposition is approved, when a plebiscite may be held, when the amendment takes effect, and what matters may not be the subject of any initiative. By any measure, these standards are adequate. III The dissent of Justice Puno has already a well-presented discourse on the difference between an "amendment" and a "revision" of the Constitution. Allow me also to articulate my additional thoughts on the matter.

Oppositors to Lambino and Aumentado's petition for initiative argue that the proposed changes therein to the provisions of the Constitution already amount to a revision thereof, which is not allowed to be done through people's initiative; Article XVII, Section 2 of the Constitution on people's initiative refers only to proposals for amendments to the Constitution. They assert the traditional distinction between an amendment and a revision, with amendment referring to isolated or piecemeal change only, while revision as a revamp or rewriting of the whole instrument.13 However, as pointed out by Justice Puno in his dissent, there is no quantitative or qualitative test that can establish with definiteness the distinction between an amendment and a revision, or between a substantial and simple change of the Constitution. The changes proposed to the Constitution by Lambino and Aumentado's petition for initiative basically affect only Article VI on the Legislative Department and Article VII on the Executive Department. While the proposed changes will drastically alter the constitution of our government by vesting both legislative and executive powers in a unicameral Parliament, with the President as the Head of State and the Prime Minister exercising the executive power; they would not essentially affect the other 16 Articles of the Constitution. The 100 or so changes counted by the oppositors to the other provisions of the Constitution are constituted mostly of the nominal substitution of one word for the other, such as Parliament for Congress, or Prime Minister for President. As eloquently pointed out in the dissent of Justice Puno, the changes proposed to transform our form of government from bicameral-presidential to unicameral-parliamentary, would not affect the fundamental nature of our state as a democratic and republican state. It will still be a representative government where officials continue to be accountable to the people and the people maintain control over the government through the election of members of the Parliament. Furthermore, should the people themselves wish to change a substantial portion or even the whole of the Constitution, what or who is to stop them? Article XVII, Section 2 of the Constitution which, by the way it is worded, refers only to their right to initiative on amendments of the Constitution? The delegates to the Constitutional Convention who, according to their deliberations, purposely limited Article XVII, Section 2 of the Constitution to amendments? This Court which has the jurisdiction to interpret the provision? Bearing in mind my earlier declaration that the will of the sovereign people is supreme, there is nothing or no one that can preclude them from initiating changes to the Constitution if they choose to do so. To reiterate, the Constitution is supposed to be the expression and embodiment of the people's will, and should the people's will clamor for a revision of the Constitution, it is their will which should prevail. Even the fact that the people ratified the 1987 Constitution, including Article XVII, Section 2 thereof, as it is worded, should not prevent the exercise by the sovereign people of their inherent right to change the Constitution, even if such change would be tantamount to a substantial amendment or revision thereof, for their actual exercise of the said right should be a clear renunciation of the limitation which the said provision imposes upon it. It is the inherent right of the people as sovereign to change the Constitution, regardless of the extent thereof. IV Lastly, I fail to see the injustice in allowing the COMELEC to give due course to and take cognizance of Lambino and Aumentado's petition for initiative to amend the Constitution. I reiterate that it would be a greater evil if one such petition which is ostensibly supported by the required number of registered voters all over the country, be summarily dismissed. Giving due course and taking cognizance of the petition would not necessarily mean that the same would be found sufficient and set for plebiscite. The COMELEC still faces the task of reviewing the petition to determine whether it complies with the requirements for a valid exercise of the right to initiative. Questions raised by the oppositors to the petition, such as those on the authenticity of the registered voters' signatures or compliance with the requisite number of registered voters for every legislative district, are already factual in nature and require the reception and evaluation of evidence of the parties. Such questions are best presented and resolved before the COMELEC since this Court is not a trier of facts.

In view of the foregoing, I am of the position that the Resolution of the COMELEC dated 31 August 2006 denying due course to the Petition for Initiative filed by Lambino and Aumentado be reversed and set aside for having been issued in grave abuse of discretion, amounting to lack of jurisdiction, and that the Petition be remanded to the COMELEC for further proceedings. In short, I vote to GRANT the petition for Initiative of Lambino and Aumentado. MINITA Associate Justice

V.

CHICO-NAZARIO

____________________ EN BANC G.R. No. 174153

October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO, together with 6,327,952 REGISTERED VOTERS, petitioners, vs. The COMMISSION ON ELECTIONS, respondent. G.R. No. 174299

October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q. SAGUISAG, petitioners vs. COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, JR., and Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, respondents. x ---------------------------------------------------------------------------------------- x SEPARATE OPINION VELASCO, JR., J.: Introduction The fate of every democracy, of every government based on the Sovereignty of the people, depends on the choices it makes between these opposite principles: absolute power on the one hand, and on the other the restraints of legality and the authority of tradition. —John Acton In this thorny matter of the people's initiative, I concur with the erudite and highly persuasive opinion of Justice Reynato S. Puno upholding the people's initiative and raise some points of my own. The issue of the people's power to propose amendments to the Constitution was once discussed in the landmark case of Santiago v. COMELEC.1 Almost a decade later, the issue is once again before the Court, and I firmly believe it is time to reevaluate the pronouncements made in that case. The issue of Charter Change is one that has sharply divided the nation, and its proponents and opponents will understandably take all measures to advance their position and defeat that of their opponents. The wisdom or folly of Charter Change does not concern the Court. The only thing that the Court must review is the validity of the present step taken by the proponents of Charter Change, which is the People's Initiative, as set down in Article XVII, Sec. 2 of the 1987 Constitution: Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of

registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right. In the Santiago case, the Court discussed whether the second paragraph of that section had been fulfilled. It determined that Congress had not provided for the implementation of the exercise of the people's initiative, when it held that Republic Act No. 6735, or "The Initiative and Referendum Act," was "inadequate to cover the system of initiative on amendments to the Constitution, and to have failed to provide sufficient standard for subordinate legislation."2 With all due respect to those Justices who made that declaration, I must disagree. Republic Act No. 6735 is the proper law for proposing constitutional amendments and it should not have been considered inadequate. The decision in Santiago focused on what it perceived to be fatal flaws in the drafting of the law, in the failings of the way the law was structured, to come to the conclusion that the law was inadequate. The Court itself recognized the legislators' intent, but disregarded this intent. The law was found wanting. The Court then saw the inclusion of the Constitution in RA 6735 as an afterthought. However, it was included, and it should not be excluded by the Court via a strained analysis of the law. The difficult construction of the law should not serve to frustrate the intent of the framers of the 1987 Constitution: to give the people the power to propose amendments as they saw fit. It is a basic precept in statutory construction that the intent of the legislature is the controlling factor in the interpretation of a statute.3 The intent of the legislature was clear, and yet RA 6735 was declared inadequate. It was not specifically struck down or declared unconstitutional, merely incomplete. The Court focused on what RA 6735 was not, and lost sight of what RA 6735 was. It is my view that the reading of RA 6735 in Santiago should have been more flexible. It is also a basic precept of statutory construction that statutes should be construed not so much according to the letter that killeth but in line with the purpose for which they have been enacted.4 The reading of the law should not have been with the view of its defeat, but with the goal of upholding it, especially with its avowed noble purpose. Congress has done its part in empowering the people themselves to propose amendments to the Constitution, in accordance with the Constitution itself. It should not be the Supreme Court that stifles the people, and lets their cries for change go unheard, especially when the Constitution itself grants them that power. The court's ruling in the Santiago case does not bar the present petition because the fallo in the Santiago case is limited to the Delfin petition. The Santiago case involved a petition for prohibition filed by Miriam Defensor-Santiago, et al., against the COMELEC, et al., which sought to prevent the COMELEC from entertaining the "Petition to Amend the Constitution, to Lift Term Limits of Elective Officials, by People's Initiative" filed by Atty. Jesus Delfin. In the body of the judgment, the Court made the following conclusion, viz: This petition must then be granted and the COMELEC should be permanently enjoined from entertaining or taking cognizance of any petition or initiative on amendments on the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system (emphasis supplied). We feel, however, that the system of initiative to propose amendments to the Constitution should no longer be kept in the cold; it should be given flesh and blood, energy and strength. Congress should not tarry any longer in complying with the constitutional mandate to provide for the implementation of the right of the people under that system.

In the said case, the Court's fallo states as follows: WHEREFORE, judgment is hereby rendered a) GRANTING the instant petition; b) DECLARING R. A. 6735 inadequate to cover the system of initiative on amendments to the Constitution, and to have failed to provide sufficient standard for subordinate legislation; c) DECLARING void those parts of Resolutions No. 2300 of the Commission on Elections prescribing rules and regulations on the conduct of initiative or amendments to the Constitution; and d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-037). The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the Commission on Elections, but is LIFTED against private respondents. Resolution on the matter of contempt is hereby reserved. SO ORDERED. The question now is if the ruling in Santiago is decisive in this case. It is elementary that when there is conflict between the dispositive portion or fallo of the decision and the opinion of the court contained in the text or body of the judgment, the former prevails over the latter. An order of execution is based on the disposition, not on the body, of the decision. 5 The dispositive portion is its decisive resolution; thus, it is the subject of execution. The other parts of the decision may be resorted to in order to determine the ratio decidendi for the disposition. Where there is conflict between the dispositive part and the opinion of the court contained in the text or body of the decision, the former must prevail over the latter on the theory that the dispositive portion is the final order, while the opinion is merely a statement ordering nothing. Hence, the execution must conform with that which is ordained or decreed in the dispositive portion of the decision.6 A judgment must be distinguished from an opinion. The latter is an informal expression of the views of the court and cannot prevail against its final order or decision. While the two may be combined in one instrument, the opinion forms no part of the judgment. So there is a distinction between the findings and conclusions of a court and its Judgment. While they may constitute its decision and amount to the rendition of a judgment, they are not the judgment itself. It is not infrequent that the grounds of a decision fail to reflect the exact views of the court, especially those of concurring justices in a collegiate court. We often encounter in judicial decisions lapses, findings, loose statements and generalities which do not bear on the issues or are apparently opposed to the otherwise sound and considered result reached by the court as expressed in the dispositive part, so called, of the decision.7 Applying the foregoing argument to the Santiago case, it immediately becomes apparent that the disposition in the latter case categorically made permanent the December 18, 1996 Temporary Restraining Order issued against the COMELEC in the Delfin petition but did NOT formally incorporate therein any directive PERMANENTLY enjoining the COMELEC "from entertaining or taking cognizance of any petition for initiative on amendments." Undeniably, the perpetual proscription against the COMELEC from assuming jurisdiction over any other petition on Charter Change through a People's Initiative is just a conclusion and cannot bind the poll body, for such unending ban would trench on its constitutional power to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall under Section 2, Article IX of the Constitution. RA 6735 gave the COMELEC the jurisdiction to determine the sufficiency of the petition on the initiative under Section 8, Rule 11 and the form of the petition under Section 3, Rule I; hence, it cannot be barred from entertaining any such petition.

In sum, the COMELEC still retains its jurisdiction to take cognizance of any petition on initiative under RA 6735 and it can rule on the petition and its action can only be passed upon by the Court when the same is elevated through a petition for certiorari. COMELEC cannot be barred from acting on said petitions since jurisdiction is conferred by law (RA 6735) and said law has not been declared unconstitutional and hence still valid though considered inadequate in the Santiago case. Respondents, however, claim that the Court in the subsequent case of PIRMA v. Commission on Elections8confirmed the statement of the Court in the Santiago case that the COMELEC was "permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments." Much reliance is placed on the ruling contained in a Minute Resolution which reads: The Court ruled, first, by a unanimous vote, that no grave abuse of Discretion could be attributed to the public respondent COMELEC in Dismissing the petition filed by PIRMA therein, it appearing that it only Complied with the DISPOSITIONS in the Decision of this Court in G.R. No. 127325, promulgated on March 19, 1997, and its Resolution of June 10, 1997. Take note that the Court specifically referred to "dispositions" in the March 19, 1997 Decision. To reiterate, the dispositions in the Santiago case decision refer specifically to the December 18, 1996 TRO being made permanent against the COMELEC but do not pertain to a permanent injunction against any other petition for initiative on amendment. Thus, what was confirmed or even affirmed in the Minute Resolution in the PIRMA case pertains solely to the December 18, 1996 TRO which became permanent, the declaration of the inadequacy of RA 6735, and the annulment of certain parts of Resolution No. 2300 but certainly not the alleged perpetual injunction against the initiative petition. Thus, the resolution in the PIRMA case cannot be considered res judicata to the Lambino petition. Amendment or Revision One last matter to be considered is whether the petition may be allowed under RA 6735, since only amendments to the Constitution may be the subject of a people's initiative. The Lambino petition cannot be considered an act of revising the Constitution; it is merely an attempt to amend it. The term amendment has to be liberally construed so as to effectuate the people's efforts to amend the Constitution. As an eminent constitutionalist, Dean Vicente G. Sinco,9 explained: Strictly speaking, the act of revising a constitution involves alterations of different portions of the entire document. It may result in the rewriting either of the whole constitution, or the greater portion of it, or perhaps only some of its important provisions. But whatever results the revision may produce, the factor that characterizes it as an act of revision is the original intention and plan authorized to be carried out. That intention and plan must contemplate a consideration of all the provisions of the constitution to determine which one should be altered or suppressed or whether the whole document should be replaced with an entirely new one. The act of amending a constitution, on the other hand, envisages a change of only a few specific provisions. The intention of an act to amend is not to consider the advisability of changing the entire constitution or of considering that possibility. The intention rather is to improve specific parts of the existing constitution or to add to it provisions deemed essential on account of changed conditions or to suppress portions of it that seem obsolete, or dangerous, or misleading in their effect. In this case, the Lambino petition is not concerned with rewriting the entire Constitution. It was never its intention to revise the whole Constitution. It merely concerns itself with amending a few provisions in our fundamental charter.

When there are gray areas in legislation, especially in matters that pertain to the sovereign people's political rights, courts must lean more towards a more liberal interpretation favoring the people's right to exercise their sovereign power. Conclusion Sovereignty residing in the people is the highest form of sovereignty and thus deserves the highest respect even from the courts. It is not something that can be overruled, set aside, ignored or stomped over by whatever amount of technicalities, blurred or vague provisions of the law. As I find RA 6735 to be adequate as the implementing law for the People's Initiative, I vote to grant the petition in G.R. No. 174153 and dismiss the petition in G.R. No. 174299. The Amended Petition for Initiative filed by petitioners Raul L. Lambino and Erico B. Aumentado should be remanded to the COMELEC for determination whether or not the petition is sufficient under RA 6735, and if the petition is sufficient, to schedule and hold the necessary plebiscite as required by RA 6735. It is time to let the people's voice be heard once again as it was twenty years ago. And should this voice demand a change in the Constitution, the Supreme Court should not be one to stand in its way. PRESBITERO Associate Justice

J.

VELASCO,

JR.

Footnotes 1

Including Sigaw ng Bayan and Union of Local Authorities of the Philippines (ULAP).

2

This provision states: "Requirements. — x x x x (b) A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein. Initiative on the Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five (5) years thereafter. (c) The petition shall state the following: c.1. contents or text of the proposed law sought to be enacted, approved or rejected, amended or repealed, as the case may be; c.2. the proposition; c.3. the reason or reasons therefor; c.4. that it is not one of the exceptions provided herein; c.5. signatures of the petitioners or registered voters; and c.6. an abstract or summary in not more than one hundred (100) words which shall be legibly written or printed at the top of every page of the petition."

3

This provision states: "Verification of Signatures. — The Election Registrar shall verify the signatures on the basis of the registry list of voters, voters' affidavits and voters identification cards used in the immediately preceding election." 4

Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI will be changed thus:

Section 1. (1) The legislative and executive powers shall be vested in a unicameral Parliament which shall be composed of as many members as may be provided by law, to be apportioned among the provinces, representative districts, and cities in accordance with the number of their respective inhabitants, with at least three hundred thousand inhabitants per district, and on the basis of a uniform and progressive ratio. Each district shall comprise, as far as practicable, contiguous, compact and adjacent territory, and each province must have at least one member. (2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at least twenty-five years old on the day of the election, a resident of his district for at least one year prior thereto, and shall be elected by the qualified voters of his district for a term of five years without limitation as to the number thereof, except those under the party-list system which shall be provided for by law and whose number shall be equal to twenty per centum of the total membership coming from the parliamentary districts. 5

Sections 1, 2, 3, and 4 of Article VII will be changed thus:

Section 1. There shall be a President who shall be the Head of State. The executive power shall be exercised by a Prime Minister, with the assistance of the Cabinet. The Prime Minister shall be elected by a majority of all the Members of Parliament from among themselves. He shall be responsible to the Parliament for the program of government. 6

Sections 1-5 of the Transitory Provisions read:

Section 1. (1) The incumbent President and Vice President shall serve until the expiration of their term at noon on the thirtieth day of June 2010 and shall continue to exercise their powers under the 1987 Constitution unless impeached by a vote of two thirds of all the members of the interim parliament. (2) In case of death, permanent disability, resignation or removal from office of the incumbent President, the incumbent Vice President shall succeed as President. In case of death, permanent disability, resignation or removal from office of both the incumbent President and Vice President, the interim Prime Minister shall assume all the powers and responsibilities of Prime Minister under Article VII as amended. Section 2. Upon the expiration of the term of the incumbent President and Vice President, with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall hereby be amended and Sections 18 and 24 which shall be deleted, all other sections of Article VI are hereby retained and renumbered sequentially as Section 2, ad seriatim up to 26, unless they are inconsistent with the Parliamentary system of government, in which case, they shall be amended to conform with a unicameral parliamentary form of government; provided, however, that any and all references therein to "Congress", "Senate", "House of Representatives" and "Houses of Congress" shall be changed to read "Parliament"; that any and all references therein to "Member[s] of Congress", "Senator[s]" or "Member[s] of the House of Representatives" shall be changed to read as "Member[s] of Parliament" and any and all references to the "President" and or "Acting President" shall be changed to read "Prime Minister". Section 3. Upon the expiration of the term of the incumbent President and Vice President, with the exception of Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution which are hereby amended and Sections 7, 8, 9, 10, 11 and 12 which are hereby deleted, all other Sections of Article VII shall be retained and renumbered sequentially as Section 2, ad seriatim up to 14, unless they shall be inconsistent with Section 1 hereof, in which case they shall be deemed amended so as to conform to a unicameral Parliamentary System of government; provided however that any and all references therein to "Congress", "Senate", "House of Representatives" and "Houses of Congress" shall be changed to read "Parliament"; that any and all references therein to "Member[s] of Congress", "Senator[s]" or "Member[s] of the House of Representatives" shall be changed to read as "Member[s] of Parliament" and any and all references to the "President" and or "Acting President" shall be changed to read "Prime Minister".

Section 4. (1) There shall exist, upon the ratification of these amendments, an interim Parliament which shall continue until the Members of the regular Parliament shall have been elected and shall have qualified. It shall be composed of the incumbent Members of the Senate and the House of Representatives and the incumbent Members of the Cabinet who are heads of executive departments. (2) The incumbent Vice President shall automatically be a Member of Parliament until noon of the thirtieth day of June 2010. He shall also be a member of the cabinet and shall head a ministry. He shall initially convene the interim Parliament and shall preside over its sessions for the election of the interim Prime Minister and until the Speaker shall have been elected by a majority vote of all the members of the interim Parliament from among themselves. (3) Within forty-five days from ratification of these amendments, the interim Parliament shall convene to propose amendments to, or revisions of, this Constitution consistent with the principles of local autonomy, decentralization and a strong bureaucracy. Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate, from among the members of the interim Parliament, an interim Prime Minister, who shall be elected by a majority vote of the members thereof. The interim Prime Minister shall oversee the various ministries and shall perform such powers and responsibilities as may be delegated to him by the incumbent President. (2) The interim Parliament shall provide for the election of the members of Parliament, which shall be synchronized and held simultaneously with the election of all local government officials. Thereafter, the Vice President, as Member of Parliament, shall immediately convene the Parliament and shall initially preside over its session for the purpose of electing the Prime Minister, who shall be elected by a majority vote of all its members, from among themselves. The duly elected Prime Minister shall continue to exercise and perform the powers, duties and responsibilities of the interim Prime Minister until the expiration of the term of incumbent President and Vice President. 7

As revised, Article XVIII contained a new paragraph in Section 4 (paragraph 3) and a modified paragraph 2, Section 5, thus: Section 4. x x x x (3) Senators whose term of office ends in 2010 shall be Members of Parliament until noon of the thirtieth day of June 2010. xxxx Section 5. x x x x (2) The interim Parliament shall provide for the election of the members of Parliament, which shall be synchronized and held simultaneously with the election of all local government officials. The duly elected Prime Minister shall continue to exercise and perform the powers, duties and responsibilities of the interim Prime Minister until the expiration of the term of the incumbent President and Vice President. 8

336 Phil. 848 (1997); Resolution dated 10 June 1997.

9

The COMELEC held: We agree with the Petitioners that this Commission has the solemn Constitutional duty to enforce and administer all laws and regulations relative to the conduct of, as in this case, initiative. This mandate, however, should be read in relation to the other provisions of the Constitution particularly on initiative.

Section 2, Article XVII of the 1987 Constitution provides: Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative, upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. x x x. The Congress shall provide for the implementation of the exercise of this right. The afore-quoted provision of the Constitution being a non self-executory provision needed an enabling law for its implementation. Thus, in order to breathe life into the constitutional right of the people under a system of initiative to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolution, Congress enacted Republic Act No. 6735. However, the Supreme Court, in the landmark case of Santiago vs. Commission on Elections struck down the said law for being incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. The Supreme Court likewise declared that this Commission should be permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system. Thus, even if the signatures in the instant Petition appear to meet the required minimum per centum of the total number of registered voters, of which every legislative district is represented by at least three per centumof the registered voters therein, still the Petition cannot be given due course since the Supreme Court categorically declared R.A. No. 6735 as inadequate to cover the system of initiative on amendments to the Constitution. This Commission is not unmindful of the transcendental importance of the right of the people under a system of initiative. However, neither can we turn a blind eye to the pronouncement of the High Court that in the absence of a valid enabling law, this right of the people remains nothing but an "empty right", and that this Commission is permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution. Considering the foregoing, We are therefore constrained not to entertain or give due course to the instant Petition. 10

Arturo M. De Castro; Ronald L. Adamat, Rolando Manuel Rivera, Ruelo Baya; Philippine Transport and General Workers Organization (PTGWO); Trade Union Congress of the Philippines; Sulong Bayan Movement Foundation, Inc. 11

Onevoice Inc., Christian S. Monsod, Rene B. Azurin, Manuel L. Quezon III, Benjamin T. Tolosa, Jr., Susan V. Ople and Carlos P. Medina, Jr.; Alternative Law Groups, Inc.; Atty. Pete Quirino Quadra; Bayan, Bayan Muna, Kilusang Mayo Uno, Head, Ecumenical Bishops Forum, Migrante, Gabriela, Gabriela Women's Party, Anakbayan, League of Filipino Students, Jojo Pineda, Dr. Darby Santiago, Dr. Reginald Pamugas; Loretta Ann P. Rosales, and Mario Joyo Aguja, Ana Theresa Hontiveros-Baraquel, Luwalhati Ricasa Antonino; Philippine Constitution Association (PHILCONSA), Conrado F. Estrella, Tomas C. Toledo, Mariano M. Tajon, Froilan M. Bacungan, Joaquin T. Venus, Jr., Fortunato P. Aguas, and Amado Gat Inciong; Senate of the Philippines; Jose Anselmo I. Cadiz, Byron D. Bocar, Ma. Tanya Karina A. Lat, Antonio L. Salvador and Randall C. Tabayoyong, Integrated Bar of the Philippines, Cebu City and Cebu Province Chapters; Senate Minority Leader Aquilino Q. Pimentel, Jr., and Senators Sergio R. Osmeňa III, Jamby Madrigal, Jinggoy Estrada, Alfredo S. Lim and Panfilo Lacson; Joseph Ejercito Estrada and Pwersa ng Masang Pilipino.

12

This provision states: "Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years." 13

I RECORD, 387-388.

14

During the deliberations of the Constitutional Commission, Commissioner Rene V. Sarmiento made the following report (I RECORD 389): MR. SARMIENTO: Madam President, I am happy that the Committee on Amendments and Transitory Provisions decided to retain the system of initiative as a mode of amending the Constitution. I made a survey of American constitutions and I discovered that 13 States provide for a system of initiative as a mode of amending the Constitution — Arizona, Arkansas, California, Colorado, Massachusetts, Michigan, Missouri, Nebraska, Nevada, North Dakota, Ohio, Oklahoma and Oregon. The initiative for ordinary laws only is used in Idaho, Maine, Montana and South Dakota. So, I am happy that this was accepted or retained by the Committee. xxxx The Americans in turn copied the concept of initiatives from the Swiss beginning in 1898 when South Dakota adopted the initiative in its constitution. The Swiss cantons experimented with initiatives in the 1830s. In 1891, the Swiss incorporated the initiative as a mode of amending their national constitution. Initiatives promote "direct democracy" by allowing the people to directly propose amendments to the constitution. In contrast, the traditional mode of changing the constitution is known as "indirect democracy" because the amendments are referred to the voters by the legislature or the constitutional convention. 15

Florida requires only that the title and summary of the proposed amendment are "printed in clear and unambiguous language." Advisory Opinion to the Attorney General RE Right of Citizens to Choose Health Care Providers, No. 90160, 22 January 1998, Supreme Court of Florida. 16

State ex. rel Patton v. Myers, 127 Ohio St. 95, 186 N.E. 872 (1933); Whitman v. Moore, 59 Ariz. 211, 125 P.2d 445 (1942); Heidtman v. City of Shaker Heights, 99 Ohio App. 415, 119 N.E. 2d 644 (1954); Christen v. Baker, 138 Colo. 27, 328 P.2d 951 (1958); Stop the Pay Hike Committee v. Town Council of Town of Irvington, 166 N.J. Super. 197, 399 A.2d 336 (1979); State ex rel Evans v. Blackwell, Slip copy, 2006 WL 1102804 (Ohio App. 10 Dist.), 2006-Ohio2076. 17

407 Mass. 949, 955 (1990). Affirmed by the District Court of Massachusetts in Henry v. Conolly, 743 F. Supp. 922 (1990) and by the Court of Appeals, First Circuit, in Henry v. Conolly, 9109 F. 2d. 1000 (1990), and cited in Marino v. Town Council of Southbridge, 13 Mass.L.Rptr. 14 (2001). 18

89 P.3d 1227, 1235 (2004).

19

Stumpf v. Law, 839 P. 2d 120, 124 (1992).

20

Exhibit "B" of the Lambino Group's Memorandum filed on 11 October 2006.

21

Annex "B" of the Comment/Opposition in Intervention of Atty. Pete Quirino-Quadra filed on 7 September 2006. 22

www.ulap.gov.ph.

23

www.ulap.gov.ph/reso2006-02.html.

24

The full text of the proposals of the Consultative Commission on Charter Change can be downloaded at its official website at www.concom.ph. 25

The Lambino Group's Memorandum, p. 5.

26

Under the proposed Section 1(2), Article VI of the Constitution, members of Parliament shall be elected for a term of five years "without limitation as to the number thereof." 27

Under the proposed Section 4(1), Article XVIII, Transitory Provisions of the Constitution, the interim Parliament "shall continue until the Members of the regular Parliament shall have been elected and shall have qualified." Also, under the proposed Section 5(2), Article XVIII, of the same Transitory Provisions, the interim Parliament "shall provide for the election of the members of Parliament." 28

Under the proposed Section 4(3), Article XVIII, Transitory Provisions of the Constitution, the interim Parliament, within 45 days from ratification of the proposed changes, "shall convene to propose amendments to, or revisions of, this Constitution." 29

448 So.2d 984, 994 (1984), internal citations omitted.

30

698 P.2d 1173, 1184 (1985).

31

I RECORD 386, 392, 402-403.

32

196 P.2d 787, 790 (1948). See also Lowe v. Keisling, 130 Or.App. 1, 882 P.2d 91 (1994).

33

392 P.2d 636, 638 (1964).

34

930 P.2d 186, 196 (1996), internal citations omitted.

35

Livermore v. Waite, 102 Cal. 113, 118-119 (1894).

36

Amador Valley Joint Union High School District v. State Board of Equalization, 583 P.2d 1281, 1286 (1978). 37

Id.

38

Legislature of the State of California v. EU, 54 Cal.3d 492, 509 (1991).

39

California Association of Retail Tobacconists v. State, 109 Cal.App.4th 792, 836 (2003).

40

See note 44, infra.

41

Joaquin Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, p. 1294 (2003). 42

238 So.2d 824 (1970).

43

Id. at 830-832.

44

As stated by Associate Justice Romeo J. Callejo, Sr. during the 26 September 2006 oral arguments. 45

Francisco, Jr. v. House of Representatives, G.R. No. 160261, 10 November 2003, 415 SCRA 44; J.M. Tuason & Co., Inc. v. Land Tenure Administration, 142 Phil. 393 (1970); Gold Creek Mining Corporation v. Rodriguez, 66 Phil. 259 (1938). 46

882 P.2d 91, 96-97 (1994). On the merits, the Court in Lowe v. Keisling found the amendment in question was not a revision.

47

Section 1, Article V of the Constitution.

48

Section 11(1), Article XVI of the Constitution.

49

Section 2, Article VII of the Constitution.

50

This section provides: "The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them." 51

Spouses Mirasol v. Court of Appeals, 403 Phil. 760 (2001); Intia Jr. v. COA, 366 Phil. 273 (1999). 52

G.R. No. 129754, Resolution dated 23 September 1997.

53

Presidential Proclamation No. 58 dated February 11, 1987, entitled "Proclaiming the Ratification of the Constitution of the Republic of the Philippines Adopted by the Constitutional Commission of 1986, including the Ordinance Appended thereto." PANGANIBAN, CJ.: 1

Chief Justice McLachlin spoke on "Liberty, Prosperity and the Rule of Law" in her speech before the Global Forum on Liberty and Prosperity held on October 18-20, 2006 in Manila. She further stated: "Without the rule of law, government officials are not bound by standards of conduct. Without the rule of law, the dignity and equality of all people is not affirmed and their ability to seek redress for grievances and societal commitments is limited. Without the rule of law, we have no means of ensuring meaningful participation by people in formulating and enacting the norms and standards which organize the kinds of societies in which we want to live." 2

GR No. 127325, March 19, 1997, 336 Phil. 848. For ease of reference, my Separate Opinion is reproduced in full: "Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for the majority, holds that: '(1) The Comelec acted without jurisdiction or with grave abuse of discretion in entertaining the 'initiatory' Delfin Petition. '(2) While the Constitution allows amendments to 'be directly proposed by the people through initiative,' there is no implementing law for the purpose. RA 6735 is 'incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned.' '(3) Comelec Resolution No. 2300, 'insofar as it prescribes rules and regulations on the conduct of initiative on amendments to the Constitution, is void.' "I concur with the first item above. Until and unless an initiatory petition can show the required number of signatures — in this case, 12% of all the registered voters in the Philippines with at least 3% in every legislative district — no public funds may be spent and no government resources may be used in an initiative to amend the Constitution. Verily, the Comelec cannot even entertain any petition absent such signatures. However, I dissent most respectfully from the majority's two other rulings. Let me explain. "Under the above restrictive holdings espoused by the Court's majority, the Constitution cannot be amended at all through a people's initiative. Not by Delfin, not by PIRMA, not by anyone, not even by all the voters of the country acting together. This decision will effectively but unnecessarily curtail, nullify, abrogate and render inutile the people's right to change the basic law. At the very least, the majority holds the right hostage to congressional discretion on whether to pass a new law to implement it, when there is

already one existing at present. This right to amend through initiative, it bears stressing, is guaranteed by Section 2, Article XVII of the Constitution, as follows: their final weapons against political excesses, opportunism, inaction, oppression and misgovernance; as well as their reserved instruments to exact transparency, accountability and faithfulness from their chosen leaders. While on the one hand, their misuse and abuse must be resolutely struck down, on the other, their legitimate exercise should be carefully nurtured and zealously protected. "WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et al. and to DIRECT Respondent Commission on Elections to DISMISS the Delfin Petition on the ground of prematurity, but not on the other grounds relied upon by the majority. I also vote to LIFT the temporary restraining order issued on 18 December 1996 insofar as it prohibits Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa from exercising their right to free speech in proposing amendments to the Constitution." 3

GR No. 129754, September 23, 1997 (still unpublished in the Philippine Reports or in the Supreme Court Reports Annotated). Again, for ease of reference, I reproduce my Separate Opinion in full: "Petitioners assail the July 8, 1997 Resolution of Respondent Commission dismissing their petition for a people's initiative to amend the Constitution. Said petition before the Comelec (henceforth, PIRMA petition) was backed up by nearly six (6) million signatures constituting about 16% of the registered voters of the country with at least 3% in each legislative district. The petition now before us presents two grounds: "1. In refusing to act on the PIRMA petition, the Comelec allegedly acted with grave abuse of discretion amounting to lack or excess of jurisdiction; and "2. In declaring R.A. 6735 "inadequate to cover its system of initiative on amendments to the Constitution" and "declaring void those parts of Resolution 2300 of the Commission on Elections prescribing rules and regulations on the conduct of [an] initiative [on] amendments to the Constitution," the Supreme Court's Decision in G.R. No. 127325 entitled Miriam Defensor Santiago vs. Commission on Elections (hereafter referred to as Santiago) should be reexamined because said Decision is allegedly "unconstitutional," and because, in any event, the Supreme Court itself, in reconsidering the said issue per its June 10, 1997 Resolution, was deadlocked at six votes one each side. "The following in my position on each of these two issues: First Issue: No Grave Abuse of Discretion in Comelec's Refusal to Act "The Respondent Commission's refusal to act on the "prayers" of the PIRMA petition cannot in any wise be branded as "grave abuse of discretion." Be it remembered that the Court's Decision in Santiago permanently enjoined the Comelec "from entertaining or taking cognizance of any petition for initiative on amendments to the 4

Republic v. COCOFED, 423 Phil. 735, December 14, 2001.

5

Well-entrenched is this definition of grave abuse of discretion. Id.; Benito v. Comelec, 349 SCRA 705, January 19, 2001; Defensor-Santiago v. Guingona Jr., 359 Phil. 276, November 18, 1998; and Philippine Airlines, Inc. v. Confesor, 231 SCRA 41, March 10, 1994. 6

In PIRMA, I submitted as follows: "I believed, and still do, that the majority gravely erred in rendering such a sweeping injunction [that covered ANY petition, not just the Delfin petition], but I cannot fault the Comelec for complying with the ruling even if it, too, disagreed with said decision's ratio decidendi. Respondent Comelec was directly enjoined by the highest Court of the land. It had no choice but to obey. Its obedience cannot constitute grave abuse of discretion.

Regusal to act on the PIRMA petition was the only recourse open to the Comelec. Any other mode of action would have constituted defiance of the Court and would have been struck down as grave abuse of discretion and contumacious disregard of this Court's supremacy as the final arbiter of justiciable controversies." 7

42 Am. Jr. 2d, §26, citing Birmingham Gas Co. v. Bessemer; 250 Ala 137, 33 So 2d 475, 250 Ala 137; Tacker v. Board of Comrs., 127 Fla 248, 170 So 458; Hoxie V. Scott, 45 Neb 199, 63 NW 387; Gill v. Board of Comrs., 160 NC 176, 76, SE 204. 8

Partido ng Manggagawa v. Comelec, GR No. 164702, March 15, 2006.

9

Article XVII (AMENDMENTS OR REVISIONS) "SEC. 1. Any amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon the vote of three-fourths of all its Members; or (2) A constitutional convention. "SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people though initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. "SEC. 3. The Congress 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 to the electorate the question of calling such a convention. "SEC. 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the approval of such amendment or revision. "Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the certification by the Commission on Elections of the sufficiency of the petition."

10

Republic Act 6735, Sec. 10, provides: "SEC. 10. Prohibited Measures. – The following cannot be the subject of an initiative or referendum petition: (a) No petition embracing more than one subject shall be submitted to the electorate; and (b) Statutes involving emergency measures, the enactment of which are specifically vested in Congress by the Constitution, cannot be subject to referendum until ninety (90) days after its effectivity."

11

The principle of separation of powers operates at the core of a presidential form of government. Thus, legislative power is given to the legislature; executive power, to a separate executive (from whose prominent position in the system, the presidential nomenclature is derived); and judicial power, to an independent judiciary. This system embodies interdependence by separation. On the other hand, a parliamentary system personifies interdependence by integration, its essential features being the following: "(1) The members of the government or cabinet or the

executive arm are, as a rule, simultaneously members of the legislature. (2) The government or cabinet, consisting of the political leaders of the majority party or of a coalition who are also members of the legislative, is in effect a committee of the legislature. (3) The government or cabinet has a pyramidal structure, at the apex of which is the Prime Minister or his equivalent. (4) The government or cabinet remains in power only for as long as it enjoys the support of the majority of the legislature. (5) Both government and legislature are possessed of control devices with which each can demand of the other immediate political responsibility." These control devices are a vote of no-confidence (censure), whereby the government may be ousted by the legislature; and the power of the government to dissolve the legislature and call for new elections. (J. BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES A COMMENTARY, Vol. II, 17-18 (1988 ed.). With respect to the transformation from a bicameral to a unicameral legislature, the change involves the form of representation and the lawmaking process. 12

Attached to the Opposition-in-Intervention of Intervenors OneVoice Inc., etc., is a photocopy of the Certification dated August 23, 2006, issued by Atty. Marlon S. Casquejo, the election officer for the 3rd District and the officer-in-charge for the 1st and the 2nd Districts of Davao City. The Certification states that "this office (First, Second and Third District, Davao City) has not verified the signatures of registered voters x x x." 13

In People v. Veneracion, the Court held: "Obedience to the rule of law forms the bedrock of our system of justice. If judges, under the guide of religious or political beliefs were allowed to roam unrestricted beyond boundaries within which they are required by law to exercise the duties of their office, then law becomes meaningless. A government of laws, not of men, excludes the exercise of broad discretionary powers by those acting under its authority. Under this system, judges are guided by the Rule of Law, and ought 'to protect and enforce it without fear or favor,' resist encroachments by governments, political parties, or even the interference of their own personal beliefs." (249 SCRA 244, October 13, 1995, per Kapunan, J.) 14

An American professor on legal philosophy, A. Altman, puts it thus: "By ratifying the constitution that included an explicit amendment process, the sovereign people committed themselves to following the rule of law, even when they wished to make changes in the basic system of government." A. ALTMAN, ARGUING ABOUT LAW 94 (2001). 15

See my Separate Opinion in Francisco Jr. v. House of Representatives, 415 SCRA 45, November 10, 2003. 16

See, for instance, the front page Malaya report entitled "Lobbyists soil dignity of Supreme Court" (October 23, 2006). 17

Lk 8:17.

YNARES-SANTIAGO, J.: 1

G.R. No. 127325, March 19, 1997, 270 SCRA 106.

2

SEC. 5. Requirements.— x x x (c) The petition shall state the following: c.1. contents or text of the proposed law sought to be enacted, approved or rejected, amended or repealed, as the case may be; c.2. the proposition; c.3. the reason or reasons therefore; c.4. that it is not one of the exceptions provided herein;

c.5. signatures of the petitioners or registered voters; and c.6. an abstract or summary proposition in not more than one hundred (100) words which shall be legibly written or printed at the top of every page of the petition. 3

SEC. 3. Definition of Terms.— For purposes of this Act, the following terms shall mean: x x x

(d) "Proposition" is the measure proposed by the voters. 4

I Record, Constitutional Commission 387-389 (July 9, 1986).

5

Community Gas and Service Company, Inc. v. Walbaum, 404 P.2d 1014, 1965 OK 118 (1965). 6

Section 26. (1) Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof. 7

The late Senator (then Congressman) Raul S. Roco stated this fact in his sponsorship presentation of H.B. No. 21505, thus: xxxx D. Prohibited Subjects. The bill provides for two kinds of measures which cannot be the subject of an initiative or referendum petition. A petition that embraces more than one subject cannot be submitted to the electorate as it would be violative of the constitutional proscription on passing bills containing more than one subject, and statutes involving emergency measures cannot be subject to referendum until 90 days after its effectivity. [Journal and record of the house of representatives, Second Regular Session, Vol. 6, p. 975 (February 14, 1989).] 8

Memorandum of petitioner Aumentado, p. 117.

9

The proposed Section 4(3) of Article XVIII of the Constitution states that Senators whose term of office ends in 2010 shall be members of parliament until noon of the thirtieth day of June 2010. No counterpart provision was provided for members of the House of Representatives who, as members of the interim parliament under the proposed changes, shall schedule the elections for the regular parliament in its discretion. 10

The proposed Section 4(3), Article XVIII of the Constitution states that the interim parliament shall convene to propose amendments to, or revisions of, the Constitution within 45 days from ratification of the proposed changes. 11

The United Kingdom, for instance, has a two-house parliament, the House of Lords and the House of Commons. 12

Philippine Political Law [1954 ed.], Vicente G. Sinco, pp. 43-44, quoted in Separate Opinion of J. Hilario G. Davide, Jr. in PIRMA v. COMELEC, G.R. No. 129754, September 23, 1997, p. 7. 13

151-A Phil. 35 (1973).

14

196 P. 2d 787 (Cal. 1948), cert. denied, 336 U.S. 918 (1949).

15

801 P. 2d 1077 (Cal. 1990).

16

583 P. 2d 1281 (Cal. 1982).

17

Raven v. Deukmeijan, supra, citing Brosnahan v. Brown, 651 P. 2d 274 (Cal. 1982).

18

Supra note 13. It may well be pointed out that in making the distinction between amendment and revision, Justice Antonio relied not only in the analogy presented in Wheeler v. Board of Trustees, 37 S.E. 2d 322, but cited also the seminal ruling of the California Supreme Court in McFadden v. Jordan, supra. 19

Philippine Political Law, 1995 ed., Justice Isagani A. Cruz, p. 71, citing Pangasinan Transportation Co. v. PSC, 40 O.G., 8th Supp. 57. 20

The 1987 Constitution of the Philippines: A Commentary, 1996 ed., Fr. Joaquin G. Bernas, S.J., p. 1161. 21

Id.

22

Supra note 14.

23

The Constitution of the Republic of the Philippines, Vol. II, 1st ed., Fr. Joaquin G. Bernas, S.J., p. 567, citing B. Schwartz, I The Powers of Government (1963). 24

16 C.J.S. §3 at 24.

25

14 T.M. Cooley, II Constitutional Limitations, 8th ed. (1927), p. 1349.

26

A bogus revolution, Philippine Daily Inquirer, September 11, 2006, Fr. Joaquin Bernas, S.J., p. A15. 27

Article II, Section 1 of the 1987 Constitution.

SANDOVAL-GUTIERREZ, J.: 1

Works, Letter 164.

2

G.R. No. 127325, March 19, 1997, 270 SCRA 106.

3

Resolution dated June 10, 1997, G.R. No. 127325.

4

G.R. No. 129754, September 23, 1997. Joining PIRMA as petitioners were its founding members, spouses Alberto Pedrosa and Carmen Pedrosa. 5

Entitled "In the Matter of Proposing Amendments to the 1987 Constitution through a People's Initiative: A Shift from a Bicameral Presidential to a Unicameral Parliamentary Government by Amending Articles VI and VII; and Providing Transitory Provisions for the Orderly Shift from the Presidential to the Parliamentary System." 6

Among them ONEVOICE, Inc., Christian S. Monsod, Rene B. Azurin, Manuel L. Quezon III, Benjamin T. Tolosa, Jr., Susan V. Ople, and Carlos P. Medina, Jr., Alternative Law Groups, Inc., Senate Minority Leader Aquilino Q. Pimentel, Jr., and Senators Sergio Osmeña III, Jamby A.S. Madrigal, Alfredo S. Lim, Panfilo M. Lacson, Luisa P. Ejercito-Estrada, and Jinggoy Estrada, Representatives Loretta Ann P. Rosales, Mario Joyo Aguja, and Ana Theresia HontiverosBaraquel, Bayan, Kilusang Mayo Uno, Ecumenical Bishops Forum, Migrante, Gabriela, Gabriela Women's Party, Anakbayan, League of Filipino Students, Leonardo San Jose, Jojo Pineda, Drs. Darby Santiago and Reginald Pamugas, and Attys. Pete Quirino-Quadra, Jose Anselmo I. Cadiz, Byron D. Bocar, Ma. Tanya Karina A. Lat, Antonio L. Salvador, and Randall C. Tabayoyong. 7

"Grounds for contempt 3. From the time the so-called People's Initiative (hereafter PI) now subject of Lambino v. Comelec, was initiated, respondents did nothing to stop what was clearly lawless, and even arguably winked at, as it were, if not condoned and allowed, the waste and misuse of its personnel, time, facilities and resources on an enterprise that

had no legal basis and in fact was permanently enjoined by this Honorable Court in 1997. Seemingly mesmerized, it is time to disenthrall them. 3.1. For instance, undersigned counsel happened to be in the Senate on August 29, 2006 (on other business) when respondent Chair sought to be stopped by the body from commenting on PI out of prudential considerations, could not be restrained. On contentious issues, he volunteered that Sigaw ng Bayan would not cheat in Makati as it was the opposition territory and that the fact that out of 43,405 signatures, only 7,186 were found authentic in one Makati District, to him, showed the "efficiency" of Comelec personnel. He could not appreciate 1) that Sigaw had no choice but to get the constitutionality-required 3% in every district, [Const., Art. VII, Sec. 2] friendly or otherwise, including administration critics' turfs, and 2) that falsus in 36,319 (93.30%) falsus in omnibus, in an exercise that could never be free, orderly, honest and credible, another constitutional requirement. [Nothing has been heard about probing and prosecuting the falsifiers.] xxxxxxxxx 3.2. It was excessively obvious to undersigned and other observers that respondent Chairman, straining at the leash, was lawyering for Sigaw ng Bayan in the Senate! It was discomfiting that he would gloss over the seeming wholesale falsification of 96.30% of the signatures in an exercise with no credibility! Even had he been asked, he should have pled to be excused from answering as the matter could come up before the Comelec for an official collegial position (different from conceding that it is enjoined). xxxxxxxxx 4. Respondents Commissioners Borra and Romeo A. Brawner, for their part, even issued widely-publicized written directives to the field, [Annex C, as to Commissioner Brawner; that as to Commissioner Borra will follow.] while the Commission itself was trying to be careful not to be explicit in what it was abetting implicitly, in hypocritical defiance of the injunction of 1997. G.R. No. 127325 March 19, 1997 MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA ISABEL ONGPIN, petitioners, vs. COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA & CARMEN PEDROSA, in their capacities as founding members of the People's Initiative for Reforms, Modernization and Action (PIRMA), respondents. SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL ANG KONSTITUSYON (DIK), MOVEMENT OF ATTORNEYS FOR BROTHERHOOD INTEGRITY AND NATIONALISM, INC. (MABINI), INTEGRATED BAR OF THE PHILIPPINES (IBP), and LABAN NG DEMOKRATIKONG PILIPINO (LABAN), petitioners-intervenors.

DAVIDE, JR., J.: The heart of this controversy brought to us by way of a petition for prohibition under Rule 65 of the Rules of Court is the right of the people to directly propose amendments to the Constitution through the system of initiative under Section 2 of Article XVII of the 1987 Constitution. Undoubtedly, this demands special attention, as this system of initiative was unknown to the people of this country, except perhaps to a few scholars, before the drafting of the 1987 Constitution. The 1986 Constitutional Commission itself, through the original proponent 1 and the main sponsor2 of the proposed Article on Amendments or Revision of the Constitution, characterized this system as "innovative".3 Indeed it is, for both under the 1935 and 1973 Constitutions, only two methods of proposing amendments to, or revision of, the Constitution

were recognized, viz., (1) by Congress upon a vote of three-fourths of all its members and (2) by a constitutional convention.4 For this and the other reasons hereafter discussed, we resolved to give due course to this petition. On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public respondent Commission on Elections (hereafter, COMELEC) a "Petition to Amend the Constitution, to Lift Term Limits of Elective Officials, by People's Initiative" (hereafter, Delfin Petition) 5 wherein Delfin asked the COMELEC for an order 1. Fixing the time and dates for signature gathering all over the country; 2. Causing the necessary publications of said Order and the attached "Petition for Initiative on the 1987 Constitution, in newspapers of general and local circulation; 3. Instructing Municipal Election Registrars in all Regions of the Philippines, to assist Petitioners and volunteers, in establishing signing stations at the time and on the dates designated for the purpose. Delfin alleged in his petition that he is a founding member of the Movement for People's Initiative,6 a group of citizens desirous to avail of the system intended to institutionalize people power; that he and the members of the Movement and other volunteers intend to exercise the power to directly propose amendments to the Constitution granted under Section 2, Article XVII of the Constitution; that the exercise of that power shall be conducted in proceedings under the control and supervision of the COMELEC; that, as required in COMELEC Resolution No. 2300, signature stations shall be established all over the country, with the assistance of municipal election registrars, who shall verify the signatures affixed by individual signatories; that before the Movement and other volunteers can gather signatures, it is necessary that the time and dates to be designated for the purpose be first fixed in an order to be issued by the COMELEC; and that to adequately inform the people of the electoral process involved, it is likewise necessary that the said order, as well as the Petition on which the signatures shall be affixed, be published in newspapers of general and local circulation, under the control and supervision of the COMELEC. The Delfin Petition further alleged that the provisions sought to be amended are Sections 4 and 7 of Article VI,7Section 4 of Article VII,8 and Section 8 of Article X9 of the Constitution. Attached to the petition is a copy of a "Petition for Initiative on the 1987 Constitution" 10 embodying the proposed amendments which consist in the deletion from the aforecited sections of the provisions concerning term limits, and with the following proposition: DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE GOVERNMENT OFFICIALS, AMENDING FOR THE PURPOSE SECTIONS 4 AND 7 OF ARTICLE VI, SECTION 4 OF ARTICLE VII, AND SECTION 8 OF ARTICLE X OF THE 1987 PHILIPPINE CONSTITUTION? According to Delfin, the said Petition for Initiative will first be submitted to the people, and after it is signed by at least twelve per cent of the total number of registered voters in the country it will be formally filed with the COMELEC. Upon the filing of the Delfin Petition, which was forthwith given the number UND 96-037 (INITIATIVE), the COMELEC, through its Chairman, issued an Order 11 (a) directing Delfin "to cause the publication of the petition, together with the attached Petition for Initiative on the 1987 Constitution (including the proposal, proposed constitutional amendment, and the signature form), and the notice of hearing in three (3) daily newspapers of general circulation at his own expense" not later than 9 December 1996; and (b) setting the case for hearing on 12 December 1996 at 10:00 a.m. At the hearing of the Delfin Petition on 12 December 1996, the following appeared: Delfin and Atty. Pete Q. Quadra; representatives of the People's Initiative for Reforms, Modernization and Action (PIRMA); intervenor-oppositor Senator Raul S. Roco, together with his two other lawyers, and representatives of, or counsel for, the Integrated Bar of the Philippines (IBP), Demokrasya-

Ipagtanggol ang Konstitusyon (DIK), Public Interest Law Center, and Laban ng Demokratikong Pilipino (LABAN). 12 Senator Roco, on that same day, filed a Motion to Dismiss the Delfin Petition on the ground that it is not the initiatory petition properly cognizable by the COMELEC. After hearing their arguments, the COMELEC directed Delfin and the oppositors to file their "memoranda and/or oppositions/memoranda" within five days. 13 On 18 December 1996, the petitioners herein — Senator Miriam Defensor Santiago, Alexander Padilla, and Maria Isabel Ongpin — filed this special civil action for prohibition raising the following arguments: (1) The constitutional provision on people's initiative to amend the Constitution can only be implemented by law to be passed by Congress. No such law has been passed; in fact, Senate Bill No. 1290 entitled An Act Prescribing and Regulating Constitution Amendments by People's Initiative, which petitioner Senator Santiago filed on 24 November 1995, is still pending before the Senate Committee on Constitutional Amendments. (2) It is true that R.A. No. 6735 provides for three systems of initiative, namely, initiative on the Constitution, on statutes, and on local legislation. However, it failed to provide any subtitle on initiative on the Constitution, unlike in the other modes of initiative, which are specifically provided for in Subtitle II and Subtitle III. This deliberate omission indicates that the matter of people's initiative to amend the Constitution was left to some future law. Former Senator Arturo Tolentino stressed this deficiency in the law in his privilege speech delivered before the Senate in 1994: "There is not a single word in that law which can be considered as implementing [the provision on constitutional initiative]. Such implementing provisions have been obviously left to a separate law. (3) Republic Act No. 6735 provides for the effectivity of the law after publication in print media. This indicates that the Act covers only laws and not constitutional amendments because the latter take effect only upon ratification and not after publication. (4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern "the conduct of initiative on the Constitution and initiative and referendum on national and local laws, is ultra vires insofar as initiative on amendments to the Constitution is concerned, since the COMELEC has no power to provide rules and regulations for the exercise of the right of initiative to amend the Constitution. Only Congress is authorized by the Constitution to pass the implementing law. (5) The people's initiative is limited to amendments to the Constitution, not to revision thereof. Extending or lifting of term limits constitutes a revision and is, therefore, outside the power of the people's initiative. (6) Finally, Congress has not yet appropriated funds for people's initiative; neither the COMELEC nor any other government department, agency, or office has realigned funds for the purpose. To justify their recourse to us via the special civil action for prohibition, the petitioners allege that in the event the COMELEC grants the Delfin Petition, the people's initiative spearheaded by PIRMA would entail expenses to the national treasury for general re-registration of voters amounting to at least P180 million, not to mention the millions of additional pesos in expenses which would be incurred in the conduct of the initiative itself. Hence, the transcendental importance to the public and the nation of the issues raised demands that this petition for prohibition be settled promptly and definitely, brushing aside technicalities of procedure and calling for the admission of a taxpayer's and legislator's suit. 14 Besides, there is no other plain, speedy, and adequate remedy in the ordinary course of law. On 19 December 1996, this Court (a) required the respondents to comment on the petition within a non-extendible period of ten days from notice; and (b) issued a temporary restraining

order, effective immediately and continuing until further orders, enjoining public respondent COMELEC from proceeding with the Delfin Petition, and private respondents Alberto and Carmen Pedrosa from conducting a signature drive for people's initiative to amend the Constitution. On 2 January 1997, private respondents, through Atty Quadra, filed their Comment petition. They argue therein that:

15

on the

1. IT IS NOT TRUE THAT "IT WOULD ENTAIL EXPENSES TO THE NATIONAL TREASURY FOR GENERAL REGISTRATION OF VOTERS AMOUNTING TO AT LEAST PESOS: ONE HUNDRED EIGHTY MILLION (P180,000,000.00)" IF THE "COMELEC GRANTS THE PETITION FILED BY RESPONDENT DELFIN BEFORE THE COMELEC. 2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL GOVERNMENT IF THE COMELEC GRANTS THE PETITION OF RESPONDENT DELFIN. ALL EXPENSES IN THE SIGNATURE GATHERING ARE ALL FOR THE ACCOUNT OF RESPONDENT DELFIN AND HIS VOLUNTEERS PER THEIR PROGRAM OF ACTIVITIES AND EXPENDITURES SUBMITTED TO THE COMELEC. THE ESTIMATED COST OF THE DAILY PER DIEM OF THE SUPERVISING SCHOOL TEACHERS IN THE SIGNATURE GATHERING TO BE DEPOSITED and TO BE PAID BY DELFIN AND HIS VOLUNTEERS IS P2,571,200.00; 3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE SIGNATURE GATHERING WHICH BY LAW COMELEC IS DUTY BOUND "TO SUPERVISE CLOSELY" PURSUANT TO ITS "INITIATORY JURISDICTION" UPHELD BY THE HONORABLE COURT IN ITS RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416; 4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING LAW IMPLEMENTING THE POWER OF PEOPLE INITIATIVE TO PROPOSE AMENDMENTS TO THE CONSTITUTION. SENATOR DEFENSORSANTIAGO'S SENATE BILL NO. 1290 IS A DUPLICATION OF WHAT ARE ALREADY PROVIDED FOR IN REP. ACT NO. 6735; 5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16, 1991 PURSUANT TO REP. ACT 6735 WAS UPHELD BY THE HONORABLE COURT IN THE RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416 WHERE THE HONORABLE COURT SAID: "THE COMMISSION ON ELECTIONS CAN DO NO LESS BY SEASONABLY AND JUDICIOUSLY PROMULGATING GUIDELINES AND RULES FOR BOTH NATIONAL AND LOCAL USE, IN IMPLEMENTING OF THESE LAWS." 6. EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 CONTAINS A PROVISION DELEGATING TO THE COMELEC THE POWER TO "PROMULGATE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PURPOSES OF THIS ACT." (SEC. 12, S.B. NO. 1290, ENCLOSED AS ANNEX E, PETITION); 7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF ELECTIVE OFFICIALS PROVIDED UNDER THE 1987 CONSTITUTION IS NOT A "REVISION" OF THE CONSTITUTION. IT IS ONLY AN AMENDMENT. "AMENDMENT ENVISAGES AN ALTERATION OF ONE OR A FEW SPECIFIC PROVISIONS OF THE CONSTITUTION. REVISION CONTEMPLATES A REEXAMINATION OF THE ENTIRE DOCUMENT TO DETERMINE HOW AND TO WHAT EXTENT IT SHOULD BE ALTERED." (PP. 412-413, 2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY JOAQUIN G. BERNAS, S.J.).

Also on 2 January 1997, private respondent Delfin filed in his own behalf a Comment 16 which starts off with an assertion that the instant petition is a "knee-jerk reaction to a draft 'Petition for Initiative on the 1987 Constitution'. . . which is not formally filed yet." What he filed on 6 December 1996 was an "Initiatory Pleading" or "Initiatory Petition," which was legally necessary to start the signature campaign to amend the Constitution or to put the movement to gather signatures under COMELEC power and function. On the substantive allegations of the petitioners, Delfin maintains as follows: (1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735, which governs the conduct of initiative to amend the Constitution. The absence therein of a subtitle for such initiative is not fatal, since subtitles are not requirements for the validity or sufficiency of laws. (2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition in an initiative to amend the Constitution approved by the majority of the votes cast in the plebiscite shall become effective as of the day of the plebiscite. (3) The claim that COMELEC Resolution No. 2300 is ultra vires is contradicted by (a) Section 2, Article IX-C of the Constitution, which grants the COMELEC the power to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall; and (b) Section 20 of R.A. 6735, which empowers the COMELEC to promulgate such rules and regulations as may be necessary to carry out the purposes of the Act. (4) The proposed initiative does not involve a revision of, but mere amendment to, the Constitution because it seeks to alter only a few specific provisions of the Constitution, or more specifically, only those which lay term limits. It does not seek to reexamine or overhaul the entire document. As to the public expenditures for registration of voters, Delfin considers petitioners' estimate of P180 million as unreliable, for only the COMELEC can give the exact figure. Besides, if there will be a plebiscite it will be simultaneous with the 1997 Barangay Elections. In any event, fund requirements for initiative will be a priority government expense because it will be for the exercise of the sovereign power of the people. In the Comment 17 for the public respondent COMELEC, filed also on 2 January 1997, the Office of the Solicitor General contends that: (1) R.A. No. 6735 deals with, inter alia, people's initiative to amend the Constitution. Its Section 2 on Statement of Policy explicitly affirms, recognizes, and guarantees that power; and its Section 3, which enumerates the three systems of initiative, includes initiative on the Constitution and defines the same as the power to propose amendments to the Constitution. Likewise, its Section 5 repeatedly mentions initiative on the Constitution. (2) A separate subtitle on initiative on the Constitution is not necessary in R.A. No. 6735 because, being national in scope, that system of initiative is deemed included in the subtitle on National Initiative and Referendum; and Senator Tolentino simply overlooked pertinent provisions of the law when he claimed that nothing therein was provided for initiative on the Constitution. (3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A. No. 6735 does not deal with initiative on the Constitution. (4) Extension of term limits of elected officials constitutes a mere amendment to the Constitution, not a revision thereof. (5) COMELEC Resolution No. 2300 was validly issued under Section 20 of R.A. No. 6735 and under the Omnibus Election Code. The rule-making power of the COMELEC to implement the provisions of R.A. No. 6735 was in fact upheld by this Court in Subic Bay Metropolitan Authority vs. COMELEC.

On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary restraining order; (b) noted the aforementioned Comments and the Motion to Lift Temporary Restraining Order filed by private respondents through Atty. Quadra, as well as the latter's Manifestation stating that he is the counsel for private respondents Alberto and Carmen Pedrosa only and the Comment he filed was for the Pedrosas; and (c) granted the Motion for Intervention filed on 6 January 1997 by Senator Raul Roco and allowed him to file his Petition in Intervention not later than 20 January 1997; and (d) set the case for hearing on 23 January 1997 at 9:30 a.m. On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and the Movement of Attorneys for Brotherhood Integrity and Nationalism, Inc. (MABINI), filed a Motion for Intervention. Attached to the motion was their Petition in Intervention, which was later replaced by an Amended Petition in Intervention wherein they contend that: (1) The Delfin proposal does not involve a mere amendment to, but a revision of, the Constitution because, in the words of Fr. Joaquin Bernas, S.J., 18 it would involve a change from a political philosophy that rejects unlimited tenure to one that accepts unlimited tenure; and although the change might appear to be an isolated one, it can affect other provisions, such as, on synchronization of elections and on the State policy of guaranteeing equal access to opportunities for public service and prohibiting political dynasties. 19 A revision cannot be done by initiative which, by express provision of Section 2 of Article XVII of the Constitution, is limited to amendments. (2) The prohibition against reelection of the President and the limits provided for all other national and local elective officials are based on the philosophy of governance, "to open up the political arena to as many as there are Filipinos qualified to handle the demands of leadership, to break the concentration of political and economic powers in the hands of a few, and to promote effective proper empowerment for participation in policy and decision-making for the common good"; hence, to remove the term limits is to negate and nullify the noble vision of the 1987 Constitution. (3) The Delfin proposal runs counter to the purpose of initiative, particularly in a conflict-of-interest situation. Initiative is intended as a fallback position that may be availed of by the people only if they are dissatisfied with the performance of their elective officials, but not as a premium for good performance. 20 (4) R.A. No. 6735 is deficient and inadequate in itself to be called the enabling law that implements the people's initiative on amendments to the Constitution. It fails to state (a) the proper parties who may file the petition, (b) the appropriate agency before whom the petition is to be filed, (c) the contents of the petition, (d) the publication of the same, (e) the ways and means of gathering the signatures of the voters nationwide and 3% per legislative district, (f) the proper parties who may oppose or question the veracity of the signatures, (g) the role of the COMELEC in the verification of the signatures and the sufficiency of the petition, (h) the appeal from any decision of the COMELEC, (I) the holding of a plebiscite, and (g) the appropriation of funds for such people's initiative. Accordingly, there being no enabling law, the COMELEC has no jurisdiction to hear Delfin's petition. (5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by COMELEC Resolution No. 2300, since the COMELEC is without authority to legislate the procedure for a people's initiative under Section 2 of Article XVII of the Constitution. That function exclusively pertains to Congress. Section 20 of R.A. No. 6735 does not constitute a legal basis for the Resolution, as the former does not set a sufficient standard for a valid delegation of power. On 20 January 1997, Senator Raul Roco filed his Petition in Intervention. 21 He avers that R.A. No. 6735 is the enabling law that implements the people's right to initiate constitutional amendments. This law is a consolidation of Senate Bill No. 17 and House Bill No. 21505; he co-authored the House Bill and even delivered a sponsorship speech thereon. He likewise submits that the COMELEC was empowered under Section 20 of that law

to promulgate COMELEC Resolution No. 2300. Nevertheless, he contends that the respondent Commission is without jurisdiction to take cognizance of the Delfin Petition and to order its publication because the said petition is not the initiatory pleading contemplated under the Constitution, Republic Act No. 6735, and COMELEC Resolution No. 2300. What vests jurisdiction upon the COMELEC in an initiative on the Constitution is the filing of a petition for initiative which is signed by the required number of registered voters. He also submits that the proponents of a constitutional amendment cannot avail of the authority and resources of the COMELEC to assist them is securing the required number of signatures, as the COMELEC's role in an initiative on the Constitution is limited to the determination of the sufficiency of the initiative petition and the call and supervision of a plebiscite, if warranted. On 20 January 1997, LABAN filed a Motion for Leave to Intervene. The following day, the IBP filed a Motion for Intervention to which it attached a Petition in Intervention raising the following arguments: (1) Congress has failed to enact an enabling law mandated under Section 2, Article XVII of the 1987 Constitution. (2) COMELEC Resolution No. 2300 cannot substitute for the required implementing law on the initiative to amend the Constitution. (3) The Petition for Initiative suffers from a fatal defect in that it does not have the required number of signatures. (4) The petition seeks, in effect a revision of the Constitution, which can be proposed only by Congress or a constitutional convention. 22 On 21 January 1997, we promulgated a Resolution (a) granting the Motions for Intervention filed by the DIK and MABINI and by the IBP, as well as the Motion for Leave to Intervene filed by LABAN; (b) admitting the Amended Petition in Intervention of DIK and MABINI, and the Petitions in Intervention of Senator Roco and of the IBP; (c) requiring the respondents to file within a nonextendible period of five days their Consolidated Comments on the aforesaid Petitions in Intervention; and (d) requiring LABAN to file its Petition in Intervention within a nonextendible period of three days from notice, and the respondents to comment thereon within a nonextendible period of five days from receipt of the said Petition in Intervention. At the hearing of the case on 23 January 1997, the parties argued on the following pivotal issues, which the Court formulated in light of the allegations and arguments raised in the pleadings so far filed: 1. Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative and Referendum and Appropriating Funds Therefor, was intended to include or cover initiative on amendments to the Constitution; and if so, whether the Act, as worded, adequately covers such initiative. 2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and Regulations Governing the Conduct of Initiative on the Constitution, and Initiative and Referendum on National and Local Laws) regarding the conduct of initiative on amendments to the Constitution is valid, considering the absence in the law of specific provisions on the conduct of such initiative. 3. Whether the lifting of term limits of elective national and local officials, as proposed in the draft "Petition for Initiative on the 1987 Constitution," would constitute a revision of, or an amendment to, the Constitution. 4. Whether the COMELEC can take cognizance of, or has jurisdiction over, a petition solely intended to obtain an order (a) fixing the time and dates for signature gathering; (b) instructing municipal election officers to assist Delfin's movement and volunteers in establishing signature stations; and (c) directing or

causing the publication of, inter alia, the unsigned proposed Petition for Initiative on the 1987 Constitution. 5. Whether it is proper for the Supreme Court to take cognizance of the petition when there is a pending case before the COMELEC. After hearing them on the issues, we required the parties to submit simultaneously their respective memoranda within twenty days and requested intervenor Senator Roco to submit copies of the deliberations on House Bill No. 21505. On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts the allegations and arguments in the main Petition. It further submits that the COMELEC should have dismissed the Delfin Petition for failure to state a sufficient cause of action and that the Commission's failure or refusal to do so constituted grave abuse of discretion amounting to lack of jurisdiction. On 28 January 1997, Senator Roco submitted copies of portions of both the Journal and the Record of the House of Representatives relating to the deliberations of House Bill No. 21505, as well as the transcripts of stenographic notes on the proceedings of the Bicameral Conference Committee, Committee on Suffrage and Electoral Reforms, of 6 June 1989 on House Bill No. 21505 and Senate Bill No. 17. Private respondents Alberto and Carmen Pedrosa filed their Consolidated Comments on the Petitions in Intervention of Senator Roco, DIK and MABINI, and IBP. 23 The parties thereafter filed, in due time, their separate memoranda. 24 As we stated in the beginning, we resolved to give due course to this special civil action. For a more logical discussion of the formulated issues, we shall first take up the fifth issue which appears to pose a prejudicial procedural question. I THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY IN THE COMELEC OF THE DELFIN PETITION. Except for the petitioners and intervenor Roco, the parties paid no serious attention to the fifth issue, i.e., whether it is proper for this Court to take cognizance of this special civil action when there is a pending case before the COMELEC. The petitioners provide an affirmative answer. Thus: 28. The Comelec has no jurisdiction to take cognizance of the petition filed by private respondent Delfin. This being so, it becomes imperative to stop the Comelec from proceeding any further, and under the Rules of Court, Rule 65, Section 2, a petition for prohibition is the proper remedy. 29. The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction and directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not legally vested. (People v. Vera, supra., p. 84). In this case the writ is an urgent necessity, in view of the highly divisive and adverse environmental consequences on the body politic of the questioned Comelec order. The consequent climate of legal confusion and political instability begs for judicial statesmanship. 30. In the final analysis, when the system of constitutional law is threatened by the political ambitions of man, only the Supreme Court can save a nation in peril and uphold the paramount majesty of the Constitution. 25

It must be recalled that intervenor Roco filed with the COMELEC a motion to dismiss the Delfin Petition on the ground that the COMELEC has no jurisdiction or authority to entertain the petition. 26 The COMELEC made no ruling thereon evidently because after having heard the arguments of Delfin and the oppositors at the hearing on 12 December 1996, it required them to submit within five days their memoranda or oppositions/memoranda. 27 Earlier, or specifically on 6 December 1996, it practically gave due course to the Delfin Petition by ordering Delfin to cause the publication of the petition, together with the attached Petition for Initiative, the signature form, and the notice of hearing; and by setting the case for hearing. The COMELEC's failure to act on Roco's motion to dismiss and its insistence to hold on to the petition rendered ripe and viable the instant petition under Section 2 of Rule 65 of the Rules of Court, which provides: Sec. 2. Petition for prohibition. — Where the proceedings of any tribunal, corporation, board, or person, whether exercising functions judicial or ministerial, are without or in excess of its or his jurisdiction, or with grave abuse of discretion, and there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered commanding the defendant to desist from further proceedings in the action or matter specified therein. It must also be noted that intervenor Roco claims that the COMELEC has no jurisdiction over the Delfin Petition because the said petition is not supported by the required minimum number of signatures of registered voters. LABAN also asserts that the COMELEC gravely abused its discretion in refusing to dismiss the Delfin Petition, which does not contain the required number of signatures. In light of these claims, the instant case may likewise be treated as a special civil action for certiorari under Section I of Rule 65 of the Rules of Court. In any event, as correctly pointed out by intervenor Roco in his Memorandum, this Court may brush aside technicalities of procedure in cases of transcendental importance. As we stated in Kilosbayan, Inc. v. Guingona, Jr. 28 A party's standing before this Court is a procedural technicality which it may, in the exercise of its discretion, set aside in view of the importance of issues raised. In the landmark Emergency Powers Cases, this Court brushed aside this technicality because the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure. II R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF INITIATIVE ON AMENDMENTS TO THE CONSTITUTION, BUT IS, UNFORTUNATELY, INADEQUATE TO COVER THAT SYSTEM. Section 2 of Article XVII of the Constitution provides: Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right. This provision is not self-executory. In his book, 29 Joaquin Bernas, a member of the 1986 Constitutional Commission, stated: Without implementing legislation Section 2 cannot operate. Thus, although this mode of amending the Constitution is a mode of amendment which bypasses

congressional action, in the last analysis it still is dependent on congressional action. Bluntly stated, the right of the people to directly propose amendments to the Constitution through the system of initiative would remain entombed in the cold niche of the Constitution until Congress provides for its implementation. Stated otherwise, while the Constitution has recognized or granted that right, the people cannot exercise it if Congress, for whatever reason, does not provide for its implementation. This system of initiative was originally included in Section 1 of the draft Article on Amendment or Revision proposed by the Committee on Amendments and Transitory Provisions of the 1986 Constitutional Commission in its Committee Report No. 7 (Proposed Resolution No. 332). 30 That section reads as follows: Sec. 1. Any amendment to, or revision of, this Constitution may be proposed: (a) by the National Assembly upon a vote of three-fourths of all its members; or (b) by a constitutional convention; or (c) directly by the people themselves thru initiative as provided for in Article___ Section ___of the Constitution. 31 After several interpellations, but before the period of amendments, the Committee submitted a new formulation of the concept of initiative which it denominated as Section 2; thus: MR. SUAREZ. Thank you, Madam President. May we respectfully call attention of the Members of the Commission that pursuant to the mandate given to us last night, we submitted this afternoon a complete Committee Report No. 7 which embodies the proposed provision governing the matter of initiative. This is now covered by Section 2 of the complete committee report. With the permission of the Members, may I quote Section 2: The people may, after five years from the date of the last plebiscite held, directly propose amendments to this Constitution thru initiative upon petition of at least ten percent of the registered voters. This completes the blanks appearing in the original Committee Report No. 7. 32 The interpellations on Section 2 showed that the details for carrying out Section 2 are left to the legislature. Thus: FR. BERNAS. Madam President, just two simple, clarificatory questions. First, on Section 1 on the matter of initiative upon petition of at least 10 percent, there are no details in the provision on how to carry this out. Do we understand, therefore, that we are leaving this matter to the legislature? MR. SUAREZ. That is right, Madam President. FR. BERNAS. And do we also understand, therefore, that for as long as the legislature does not pass the necessary implementing law on this, this will not operate? MR. SUAREZ. That matter was also taken up during the committee hearing, especially with respect to the budget

appropriations which would have to be legislated so that the plebiscite could be called. We deemed it best that this matter be left to the legislature. The Gentleman is right. In any event, as envisioned, no amendment through the power of initiative can be called until after five years from the date of the ratification of this Constitution. Therefore, the first amendment that could be proposed through the exercise of this initiative power would be after five years. It is reasonably expected that within that five-year period, the National Assembly can come up with the appropriate rules governing the exercise of this power. FR. BERNAS. Since the matter is left to the legislature — the details on how this is to be carried out — is it possible that, in effect, what will be presented to the people for ratification is the work of the legislature rather than of the people? Does this provision exclude that possibility? MR. SUAREZ. No, it does not exclude that possibility because even the legislature itself as a body could propose that amendment, maybe individually or collectively, if it fails to muster the three-fourths vote in order to constitute itself as a constituent assembly and submit that proposal to the people for ratification through the process of an initiative. xxx

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MS. AQUINO. Do I understand from the sponsor that the intention in the proposal is to vest constituent power in the people to amend the Constitution? MR. SUAREZ. That is absolutely correct, Madam President. MS. AQUINO. I fully concur with the underlying precept of the proposal in terms of institutionalizing popular participation in the drafting of the Constitution or in the amendment thereof, but I would have a lot of difficulties in terms of accepting the draft of Section 2, as written. Would the sponsor agree with me that in the hierarchy of legal mandate, constituent power has primacy over all other legal mandates? MR. SUAREZ. The Commissioner is right, Madam President. MS. AQUINO. And would the sponsor agree with me that in the hierarchy of legal values, the Constitution is source of all legal mandates and that therefore we require a great deal of circumspection in the drafting and in the amendments of the Constitution? MR. SUAREZ. That proposition is nondebatable. MS. AQUINO. Such that in order to underscore the primacy of constituent power we have a separate article in the constitution that would specifically cover the process and the modes of amending the Constitution? MR. SUAREZ. That is right, Madam President. MS. AQUINO. Therefore, is the sponsor inclined, as the provisions are drafted now, to again concede to the legislature the process or the requirement of determining the mechanics of amending the Constitution by people's initiative?

MR. SUAREZ. The matter of implementing this could very well be placed in the hands of the National Assembly, not unless we can incorporate into this provision the mechanics that would adequately cover all the conceivable situations. 33 It was made clear during the interpellations that the aforementioned Section 2 is limited to proposals to AMEND — not to REVISE — the Constitution; thus: MR. SUAREZ. . . . This proposal was suggested on the theory that this matter of initiative, which came about because of the extraordinary developments this year, has to be separated from the traditional modes of amending the Constitution as embodied in Section 1. The committee members felt that this system of initiative should not extend to the revision of the entire Constitution, so we removed it from the operation of Section 1 of the proposed Article on Amendment or Revision. 34 xxx

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MS. AQUINO. In which case, I am seriously bothered by providing this process of initiative as a separate section in the Article on Amendment. Would the sponsor be amenable to accepting an amendment in terms of realigning Section 2 as another subparagraph (c) of Section 1, instead of setting it up as another separate section as if it were a self-executing provision? MR. SUAREZ. We would be amenable except that, as we clarified a while ago, this process of initiative is limited to the matter of amendment and should not expand into a revision which contemplates a total overhaul of the Constitution. That was the sense that was conveyed by the Committee. MS. AQUINO. In other words, the Committee was attempting to distinguish the coverage of modes (a) and (b) in Section 1 to include the process of revision; whereas the process of initiation to amend, which is given to the public, would only apply to amendments? MR. SUAREZ. That is right. Those were the terms envisioned in the Committee. 35 Amendments to the proposed Section 2 were thereafter introduced by then Commissioner Hilario G. Davide, Jr., which the Committee accepted. Thus: MR. DAVIDE. Thank you Madam President. I propose to substitute the entire Section 2 with the following: MR. DAVIDE. Madam President, I have modified the proposed amendment after taking into account the modifications submitted by the sponsor himself and the honorable Commissioners Guingona, Monsod, Rama, Ople, de los Reyes and Romulo. The modified amendment in substitution of the proposed Section 2 will now read as follows: "SECTION 2. — AMENDMENTS TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER Of REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST THREE PERCENT OF THE REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF

THIS CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER. THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT. MR. SUAREZ. Madam President, considering that the proposed amendment is reflective of the sense contained in Section 2 of our completed Committee Report No. 7, we accept the proposed amendment. 36 The interpellations which ensued on the proposed modified amendment to Section 2 clearly showed that it was a legislative act which must implement the exercise of the right. Thus: MR. ROMULO. Under Commissioner Davide's amendment, is it possible for the legislature to set forth certain procedures to carry out the initiative. . .? MR. DAVIDE. It can. xxx

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MR. ROMULO. But the Commissioner's amendment does not prevent the legislature from asking another body to set the proposition in proper form. MR. DAVIDE. The Commissioner is correct. In other words, the implementation of this particular right would be subject to legislation, provided the legislature cannot determine anymore the percentage of the requirement. MR. ROMULO. But the procedures, including the determination of the proper form for submission to the people, may be subject to legislation. MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other words, none of the procedures to be proposed by the legislative body must diminish or impair the right conceded here. MR. ROMULO. In that provision of the Constitution can the procedures which I have discussed be legislated? MR. DAVIDE. Yes. 37 Commissioner Davide also reaffirmed that his modified amendment strictly confines initiative to AMENDMENTS to — NOT REVISION of — the Constitution. Thus: MR. DAVIDE. With pleasure, Madam President. MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment on line 1 refers to "amendment." Does it not cover the word "revision" as defined by Commissioner Padilla when he made the distinction between the words "amendments" and "revision"? MR. DAVIDE. No, it does not, because "amendments" and "revision" should be covered by Section 1. So insofar as initiative is concerned, it can only relate to "amendments" not "revision." 38

Commissioner Davide further emphasized that the process of proposing amendments through initiative must be more rigorous and difficult than the initiative on legislation. Thus: MR. DAVIDE. A distinction has to be made that under this proposal, what is involved is an amendment to the Constitution. To amend a Constitution would ordinarily require a proposal by the National Assembly by a vote of three-fourths; and to call a constitutional convention would require a higher number. Moreover, just to submit the issue of calling a constitutional convention, a majority of the National Assembly is required, the import being that the process of amendment must be made more rigorous and difficult than probably initiating an ordinary legislation or putting an end to a law proposed by the National Assembly by way of a referendum. I cannot agree to reducing the requirement approved by the Committee on the Legislative because it would require another voting by the Committee, and the voting as precisely based on a requirement of 10 percent. Perhaps, I might present such a proposal, by way of an amendment, when the Commission shall take up the Article on the Legislative or on the National Assembly on plenary sessions. 39 The Davide modified amendments to Section 2 were subjected to amendments, and the final version, which the Commission approved by a vote of 31 in favor and 3 against, reads as follows: MR. DAVIDE. Thank you Madam President. Section 2, as amended, reads as follows: "AMENDMENT TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST THREE PERCENT OF THE REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER. THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT. 40 The entire proposed Article on Amendments or Revisions was approved on second reading on 9 July 1986. 41Thereafter, upon his motion for reconsideration, Commissioner Gascon was allowed to introduce an amendment to Section 2 which, nevertheless, was withdrawn. In view thereof, the Article was again approved on Second and Third Readings on 1 August 1986. 42 However, the Committee on Style recommended that the approved Section 2 be amended by changing "percent" to "per centum" and "thereof" to "therein" and deleting the phrase "by law" in the second paragraph so that said paragraph reads: The Congress 43 shall provide for the implementation of the exercise of this right. 44 This amendment was approved and is the text of the present second paragraph of Section 2. The conclusion then is inevitable that, indeed, the system of initiative on the Constitution under Section 2 of Article XVII of the Constitution is not self-executory. Has Congress "provided" for the implementation of the exercise of this right? Those who answer the question in the affirmative, like the private respondents and intervenor Senator Roco, point to us R.A. No. 6735.

There is, of course, no other better way for Congress to implement the exercise of the right than through the passage of a statute or legislative act. This is the essence or rationale of the last minute amendment by the Constitutional Commission to substitute the last paragraph of Section 2 of Article XVII then reading: The Congress 45 shall by law provide for the implementation of the exercise of this right. with The Congress shall provide for the implementation of the exercise of this right. This substitute amendment was an investiture on Congress of a power to provide for the rules implementing the exercise of the right. The "rules" means "the details on how [the right] is to be carried out." 46 We agree that R.A. No. 6735 was, as its history reveals, intended to cover initiative to propose amendments to the Constitution. The Act is a consolidation of House Bill No. 21505 and Senate Bill No. 17. The former was prepared by the Committee on Suffrage and Electoral Reforms of the House of Representatives on the basis of two House Bills referred to it, viz., (a) House Bill No. 497, 47 which dealt with the initiative and referendum mentioned in Sections 1 and 32 of Article VI of the Constitution; and (b) House Bill No. 988, 48 which dealt with the subject matter of House Bill No. 497, as well as with initiative and referendum under Section 3 of Article X (Local Government) and initiative provided for in Section 2 of Article XVII of the Constitution. Senate Bill No. 17 49 solely dealt with initiative and referendum concerning ordinances or resolutions of local government units. The Bicameral Conference Committee consolidated Senate Bill No. 17 and House Bill No. 21505 into a draft bill, which was subsequently approved on 8 June 1989 by the Senate 50 and by the House of Representatives. 51 This approved bill is now R.A. No. 6735. But is R.A. No. 6735 a full compliance with the power and duty of Congress to "provide for the implementation of the exercise of the right?" A careful scrutiny of the Act yields a negative answer. First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act does not suggest an initiative on amendments to the Constitution. The said section reads: Sec. 2. Statement and Policy. — The power of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed. (Emphasis supplied). The inclusion of the word "Constitution" therein was a delayed afterthought. That word is neither germane nor relevant to said section, which exclusively relates to initiative and referendum on national laws and local laws, ordinances, and resolutions. That section is silent as to amendments on the Constitution. As pointed out earlier, initiative on the Constitution is confined only to proposals to AMEND. The people are not accorded the power to "directly propose, enact, approve, or reject, in whole or in part, the Constitution" through the system of initiative. They can only do so with respect to "laws, ordinances, or resolutions." The foregoing conclusion is further buttressed by the fact that this section was lifted from Section 1 of Senate Bill No. 17, which solely referred to a statement of policy on local initiative and referendum and appropriately used the phrases "propose and enact," "approve or reject" and "in whole or in part." 52 Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative on amendments to the Constitution and mentions it as one of the three systems of initiative, and that Section 5 (Requirements) restates the constitutional requirements as to the percentage of

the registered voters who must submit the proposal. But unlike in the case of the other systems of initiative, the Act does not provide for the contents of a petition for initiative on the Constitution. Section 5, paragraph (c) requires, among other things, statement of the proposed law sought to be enacted, approved or rejected, amended or repealed, as the case may be. It does not include, as among the contents of the petition, the provisions of the Constitution sought to be amended, in the case of initiative on the Constitution. Said paragraph (c) reads in full as follows: (c) The petition shall state the following: c.1 contents or text of the proposed law sought to be enacted, approved or rejected, amended or repealed, as the case may be; c.2 the proposition; c.3 the reason or reasons therefor; c.4 that it is not one of the exceptions provided therein; c.5 signatures of the petitioners or registered voters; and c.6 an abstract or summary proposition is not more than one hundred (100) words which shall be legibly written or printed at the top of every page of the petition. (Emphasis supplied). The use of the clause "proposed laws sought to be enacted, approved or rejected, amended or repealed" only strengthens the conclusion that Section 2, quoted earlier, excludes initiative on amendments to the Constitution. Third. While the Act provides subtitles for National Initiative and Referendum (Subtitle II) and for Local Initiative and Referendum (Subtitle III), no subtitle is provided for initiative on the Constitution. This conspicuous silence as to the latter simply means that the main thrust of the Act is initiative and referendum on national and local laws. If Congress intended R.A. No. 6735 to fully provide for the implementation of the initiative on amendments to the Constitution, it could have provided for a subtitle therefor, considering that in the order of things, the primacy of interest, or hierarchy of values, the right of the people to directly propose amendments to the Constitution is far more important than the initiative on national and local laws. We cannot accept the argument that the initiative on amendments to the Constitution is subsumed under the subtitle on National Initiative and Referendum because it is national in scope. Our reading of Subtitle II (National Initiative and Referendum) and Subtitle III (Local Initiative and Referendum) leaves no room for doubt that the classification is not based on the scope of the initiative involved, but on its nature and character. It is "national initiative," if what is proposed to be adopted or enacted is a national law, or a law which only Congress can pass. It is "local initiative" if what is proposed to be adopted or enacted is a law, ordinance, or resolution which only the legislative bodies of the governments of the autonomous regions, provinces, cities, municipalities, and barangays can pass. This classification of initiative into national and local is actually based on Section 3 of the Act, which we quote for emphasis and clearer understanding: Sec. 3. Definition of terms — xxx

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There are three (3) systems of initiative, namely: a.1 Initiative on the Constitution which refers to a petition proposing amendments to the Constitution; a.2 Initiative on Statutes which refers to a petition proposing to enact a national legislation; and

a.3 Initiative on local legislation which refers to a petition proposing to enact a regional, provincial, city, municipal, or barangay law, resolution or ordinance. (Emphasis supplied). Hence, to complete the classification under subtitles there should have been a subtitle on initiative on amendments to the Constitution. 53 A further examination of the Act even reveals that the subtitling is not accurate. Provisions not germane to the subtitle on National Initiative and Referendum are placed therein, like (1) paragraphs (b) and (c) of Section 9, which reads: (b) The proposition in an initiative on the Constitution approved by the majority of the votes cast in the plebiscite shall become effective as to the day of the plebiscite. (c) A national or local initiative proposition approved by majority of the votes cast in an election called for the purpose shall become effective fifteen (15) days after certification and proclamation of the Commission. (Emphasis supplied). (2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative with the legislative bodies of local governments; thus: Sec. 11. Indirect Initiative. — Any duly accredited people's organization, as defined by law, may file a petition for indirect initiative with the House of Representatives, and other legislative bodies. . . . and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the findings of sufficiency or insufficiency of the petition for initiative or referendum, which could be petitions for both national and local initiative and referendum. Upon the other hand, Section 18 on "Authority of Courts" under subtitle III on Local Initiative and Referendum is misplaced, 54 since the provision therein applies to both national and local initiative and referendum. It reads: Sec. 18. Authority of Courts. — Nothing in this Act shall prevent or preclude the proper courts from declaring null and void any proposition approved pursuant to this Act for violation of the Constitution or want of capacity of the local legislative body to enact the said measure. Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing for the details in the implementation of initiative and referendum on national and local legislation thereby giving them special attention, it failed, rather intentionally, to do so on the system of initiative on amendments to the Constitution. Anent the initiative on national legislation, the Act provides for the following: (a) The required percentage of registered voters to sign the petition and the contents of the petition; (b) The conduct and date of the initiative; (c) The submission to the electorate of the proposition and the required number of votes for its approval; (d) The certification by the COMELEC of the approval of the proposition; (e) The publication of the approved proposition in the Official Gazette or in a newspaper of general circulation in the Philippines; and (f) The effects of the approval or rejection of the proposition. 55

As regards local initiative, the Act provides for the following: (a) The preliminary requirement as to the number of signatures of registered voters for the petition; (b) The submission of the petition to the local legislative body concerned; (c) The effect of the legislative body's failure to favorably act thereon, and the invocation of the power of initiative as a consequence thereof; (d) The formulation of the proposition; (e) The period within which to gather the signatures; (f) The persons before whom the petition shall be signed; (g) The issuance of a certification by the COMELEC through its official in the local government unit concerned as to whether the required number of signatures have been obtained; (h) The setting of a date by the COMELEC for the submission of the proposition to the registered voters for their approval, which must be within the period specified therein; (i) The issuance of a certification of the result; (j) The date of effectivity of the approved proposition; (k) The limitations on local initiative; and (l) The limitations upon local legislative bodies. 56 Upon the other hand, as to initiative on amendments to the Constitution, R.A. No. 6735, in all of its twenty-three sections, merely (a) mentions, the word "Constitution" in Section 2; (b) defines "initiative on the Constitution" and includes it in the enumeration of the three systems of initiative in Section 3; (c) speaks of "plebiscite" as the process by which the proposition in an initiative on the Constitution may be approved or rejected by the people; (d) reiterates the constitutional requirements as to the number of voters who should sign the petition; and (e) provides for the date of effectivity of the approved proposition. There was, therefore, an obvious downgrading of the more important or the paramount system of initiative. RA. No. 6735 thus delivered a humiliating blow to the system of initiative on amendments to the Constitution by merely paying it a reluctant lip service. 57 The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. Its lacunae on this substantive matter are fatal and cannot be cured by "empowering" the COMELEC "to promulgate such rules and regulations as may be necessary to carry out the purposes of [the] Act. 58 The rule is that what has been delegated, cannot be delegated or as expressed in a Latin maxim: potestas delegata non delegari potest. 59 The recognized exceptions to the rule are as follows: (1) Delegation of tariff powers to the President under Section 28(2) of Article VI of the Constitution; (2) Delegation of emergency powers to the President under Section 23(2) of Article VI of the Constitution; (3) Delegation to the people at large;

(4) Delegation to local governments; and (5) Delegation to administrative bodies. 60 Empowering the COMELEC, an administrative body exercising quasi-judicial functions, to promulgate rules and regulations is a form of delegation of legislative authority under no. 5 above. However, in every case of permissible delegation, there must be a showing that the delegation itself is valid. It is valid only if the law (a) is complete in itself, setting forth therein the policy to be executed, carried out, or implemented by the delegate; and (b) fixes a standard — the limits of which are sufficiently determinate and determinable — to which the delegate must conform in the performance of his functions. 61 A sufficient standard is one which defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative command is to be effected. 62 Insofar as initiative to propose amendments to the Constitution is concerned, R.A. No. 6735 miserably failed to satisfy both requirements in subordinate legislation. The delegation of the power to the COMELEC is then invalid. III COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND REGULATIONS ON THE CONDUCT OF INITIATIVE ON AMENDMENTS TO THE CONSTITUTION, IS VOID. It logically follows that the COMELEC cannot validly promulgate rules and regulations to implement the exercise of the right of the people to directly propose amendments to the Constitution through the system of initiative. It does not have that power under R.A. No. 6735. Reliance on the COMELEC's power under Section 2(1) of Article IX-C of the Constitution is misplaced, for the laws and regulations referred to therein are those promulgated by the COMELEC under (a) Section 3 of Article IX-C of the Constitution, or (b) a law where subordinate legislation is authorized and which satisfies the "completeness" and the "sufficient standard" tests. IV COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN ENTERTAINING THE DELFIN PETITION. Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the power of Congress to implement the right to initiate constitutional amendments, or that it has validly vested upon the COMELEC the power of subordinate legislation and that COMELEC Resolution No. 2300 is valid, the COMELEC acted without jurisdiction or with grave abuse of discretion in entertaining the Delfin Petition. Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No. 6735, a petition for initiative on the Constitution must be signed by at least 12% of the total number of registered voters of which every legislative district is represented by at least 3% of the registered voters therein. The Delfin Petition does not contain signatures of the required number of voters. Delfin himself admits that he has not yet gathered signatures and that the purpose of his petition is primarily to obtain assistance in his drive to gather signatures. Without the required signatures, the petition cannot be deemed validly initiated. The COMELEC acquires jurisdiction over a petition for initiative only after its filing. The petition then is the initiatory pleading. Nothing before its filing is cognizable by the COMELEC, sitting en banc. The only participation of the COMELEC or its personnel before the filing of such petition are (1) to prescribe the form of the petition; 63 (2) to issue through its Election Records and Statistics Office a certificate on the total number of registered voters in each legislative district; 64 (3) to assist, through its election registrars, in the establishment of signature stations; 65 and (4) to verify, through its election registrars, the signatures on the basis of the registry list of voters, voters' affidavits, and voters' identification cards used in the immediately preceding election. 66

Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and COMELEC Resolution No. 2300, it cannot be entertained or given cognizance of by the COMELEC. The respondent Commission must have known that the petition does not fall under any of the actions or proceedings under the COMELEC Rules of Procedure or under Resolution No. 2300, for which reason it did not assign to the petition a docket number. Hence, the said petition was merely entered as UND, meaning, undocketed. That petition was nothing more than a mere scrap of paper, which should not have been dignified by the Order of 6 December 1996, the hearing on 12 December 1996, and the order directing Delfin and the oppositors to file their memoranda or oppositions. In so dignifying it, the COMELEC acted without jurisdiction or with grave abuse of discretion and merely wasted its time, energy, and resources. The foregoing considered, further discussion on the issue of whether the proposal to lift the term limits of elective national and local officials is an amendment to, and not a revision of, the Constitution is rendered unnecessary, if not academic. CONCLUSION This petition must then be granted, and the COMELEC should be permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system. We feel, however, that the system of initiative to propose amendments to the Constitution should no longer be kept in the cold; it should be given flesh and blood, energy and strength. Congress should not tarry any longer in complying with the constitutional mandate to provide for the implementation of the right of the people under that system. WHEREFORE, judgment is hereby rendered a) GRANTING the instant petition; b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to the Constitution, and to have failed to provide sufficient standard for subordinate legislation; c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections prescribing rules and regulations on the conduct of initiative or amendments to the Constitution; and d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND96-037). The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the Commission on Elections, but is LIFTED as against private respondents. Resolution on the matter of contempt is hereby reserved. SO ORDERED. Narvasa, C.J., Regalado, Romero, Bellosillo, Kapunan, Hermosisima, Jr. and Torres, Jr., JJ., concur. Padilla, J., took no part.

Separate Opinions

PUNO, J., concurring and dissenting: I join the ground-breaking ponencia of our esteemed colleague, Mr. Justice Davide insofar as it orders the COMELEC to dismiss the Delfin petition. I regret, however, I cannot share the view that R.A. No. 5735 and COMELEC Resolution No. 2300 are legally defective and cannot implement the people's initiative to amend the Constitution. I likewise submit that the petition with respect to the Pedrosas has no leg to stand on and should be dismissed. With due respect: I First, I submit that R.A. No. 6735 sufficiently implements the right of the people to initiate amendments to the Constitution thru initiative. Our effort to discover the meaning of R.A. No. 6735 should start with the search of the intent of our lawmakers. A knowledge of this intent is critical for the intent of the legislature is the law and the controlling factor in its interpretation.1 Stated otherwise, intent is the essence of the law, the spirit which gives life to its enactment.2 Significantly, the majority decision concedes that ". . . R.A. No. 6735 was intended to cover initiative to propose amendments to the Constitution." It ought to be so for this intent is crystal clear from the history of the law which was a consolidation of House Bill No. 21505 3 and Senate Bill No. 17.4 Senate Bill No. 17 was entitled "An Act Providing for a System of Initiative and Referendum and the Exception Therefrom, Whereby People in Local Government Units Can Directly Propose and Enact Resolutions and Ordinances or Approve or Reject any Ordinance or Resolution Passed by the Local Legislative Body." Beyond doubt, Senate Bill No. 17 did not include people's initiative to propose amendments to the Constitution. In checkered contrast, House Bill No. 21505 5expressly included people's initiative to amend the Constitution. Congressman (now Senator) Raul Roco emphasized in his sponsorship remarks:6 xxx xxx xxx SPONSORSHIP REMARKS OF MR. ROCO At the outset, Mr. Roco provided the following backgrounder on the constitutional basis of the proposed measure. 1. As cited in Vera vs. Avelino (1946), the presidential system which was introduced by the 1935 Constitution saw the application of the principle of separation of powers. 2. While under the parliamentary system of the 1973 Constitution the principle remained applicable, the 1981 amendments to the Constitution of 1973 ensured presidential dominance over the Batasang Pambansa. Constitutional history then saw the shifting and sharing of legislative powers between the Legislature and the Executive departments. Transcending changes in the exercise of legislative power is the declaration in the Philippine Constitution that the Philippines is a republican state where sovereignty resides in the people and all sovereignty emanates from them. 3. Under the 1987 Constitution, the lawmaking power is still preserved in Congress; however, to institutionalize direct action of the people as exemplified in the 1986 Revolution, the Constitution recognizes the power of the people, through the system of initiative and referendum. As cited in Section 1, Article VI of the 1987 Constitution, Congress does not have plenary powers since reserve powers are given to the people expressly. Section 32 of the same Article mandates Congress to pass at the soonest possible time, a bill on referendum and initiative, and to share its legislative powers with the people.

Section 2, Article XVII of the 1987 Constitution, on the other hand, vests in the people the power to directly propose amendments to the Constitution through initiative, upon petition of at least 12 percent of the total number of registered voters. Stating that House Bill No. 21505 is the Committee's response to the duty imposed on Congress to implement the exercise by the people of the right to initiative and referendum, Mr. Roco recalled the beginnings of the system of initiative and referendum under Philippine Law. He cited Section 99 of the Local Government Code which vests in the barangay assembly the power to initiate legislative processes, decide the holding of plebiscite and hear reports of the Sangguniang Barangay, all of which are variations of the power of initiative and referendum. He added that the holding of barangay plebiscites and referendum are likewise provided in Sections 100 and 101 of the same Code. Thereupon, for the sake of brevity, Mr. Roco moved that pertinent quotation on the subject which he will later submit to the Secretary of the House be incorporated as part of his sponsorship speech. He then cited examples of initiative and referendum similar to those contained in the instant Bill among which are the constitutions of states in the United States which recognize the right of registered voters to initiate the enactment of any statute or to project any existing law or parts thereof in a referendum. These states, he said, are Alaska, Alabama, Montana, Massachusets, Dakota, Oklahoma, Oregon, and practically all other states. Mr. Roco explained that in certain American states, the kind of laws to which initiative and referendum apply is also without limitation, except for emergency measures, which are likewise incorporated in House Bill No. 21505. He added that the procedure provided by the Bill from the filing of the petition, the requirements of a certain percentage of supporters to present a proposition, to the submission to electors are substantially similar to the provisions in American laws. Although an infant in Philippine political structure, the system of initiative and referendum, he said, is a tried and tested system in other jurisdictions, and the Bill is patterned after American experience. He further explained that the bill has only 12 sections, and recalled that the Constitutional Commissioners saw the system of the initiative and referendum as an instrument which can be used should the legislature show itself to be indifferent to the needs of the people. This is the reason, he claimed, why now is an opportune time to pass the Bill even as he noted the felt necessity of the times to pass laws which are necessary to safeguard individual rights and liberties. At this juncture Mr. Roco explained the process of initiative and referendum as advocated in House Bill No. 21505. He stated that: 1. Initiative means that the people, on their own political judgment, submit a Bill for the consideration of the general electorate. 2. The instant Bill provides three kinds of initiative, namely; the initiative to amend the Constitution once every five years; the initiative to amend statutes approved by Congress; and the initiative to amend local ordinances. 3. The instant Bill gives a definite procedure and allows the Commission on Elections (COMELEC) to define rules and regulations on the power of initiative. 4. Referendum means that the legislators seek the consent of the people on measures that they have approved. 5. Under Section 4 of the Bill the people can initiate a referendum which is a mode of plebiscite by presenting a petition therefor, but under certain limitations,

such as the signing of said petition by at least 10 percent of the total of registered voters at which every legislative district is represented by at least three percent of the registered voters thereof. Within 30 days after receipt of the petition, the COMELEC shall determine the sufficiency of the petition, publish the same, and set the date of the referendum within 45 to 90-day period. 6. When the matter under referendum or initiative is approved by the required number of votes, it shall become effective 15 days following the completion of its publication in the Official Gazette. In concluding his sponsorship remarks, Mr. Roco stressed that the Members cannot ignore the people's call for initiative and referendum and urged the Body to approve House Bill No. 21505. At this juncture, Mr. Roco also requested that the prepared text of his speech together with the footnotes be reproduced as part of the Congressional Records. The same sentiment as to the bill's intent to implement people's initiative to amend the Constitution was stressed by then Congressman (now Secretary of Agriculture) Salvador Escudero III in his sponsorship remarks, viz:7 xxx

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SPONSORSHIP REMARKS OF MR. ESCUDERO Mr. Escudero first pointed out that the people have been clamoring for a truly popular democracy ever since, especially in the so-called parliament of the streets. A substantial segment of the population feels, he said, that the form of democracy is there, but not the reality or substance of it because of the increasingly elitist approach of their representatives to the country's problem. Whereupon, Mr. Escudero pointed out that the Constitution has provided a means whereby the people can exercise the reserved power of initiative to propose amendments to the Constitution, and requested that Sections 1 and 32, Article VI; Section 3, Article X; and Section 2, Article XVII of the Constitution be made part of his sponsorship remarks. Mr. Escudero also stressed that an implementing law is needed for the aforecited Constitutional provisions. While the enactment of the Bill will give way to strong competition among cause-oriented and sectoral groups, he continued, it will hasten the politization of the citizenry, aid the government in forming an enlightened public opinion, and produce more responsive legislation. The passage of the Bill will also give street parliamentarians the opportunity to articulate their ideas in a democratic forum, he added. Mr. Escudero stated that he and Mr. Roco hoped for the early approval of the Bill so that it can be initially used for the Agrarian Reform Law. He said that the passage of House Bill No. 21505 will show that the Members can set aside their personal and political consideration for the greater good of the people. The disagreeing provisions in Senate Bill No. 17 and House Bill No. 21505 were threshed out in a Bicameral Conference Committee.8 In the meeting of the Committee on June 6, 1989,9 the members agreed that the two (2) bills should be consolidated and that the consolidated version should include people's initiative to amend the Constitution as contemplated by House Bill No. 21505. The transcript of the meeting states: xxx

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CHAIRMAN GONZALES. But at any rate, as I have said, because this is new in our political system, the Senate decided on a more cautious approach and limiting it only to the local government

units because even with that stage where . . . at least this has been quite popular, ano? It has been attempted on a national basis. Alright. There has not been a single attempt. Now, so, kami limitado doon. And, second, we consider also that it is only fair that the local legislative body should be given a chance to adopt the legislation bill proposed, right? Iyong sinasabing indirect system of initiative. If after all, the local legislative assembly or body is willing to adopt it in full or in toto, there ought to be any reason for initiative, ano for initiative. And, number 3, we feel that there should be some limitation on the frequency with which it should be applied. Number 4, na the people, thru initiative, cannot enact any ordinance that is beyond the scope of authority of the local legislative body, otherwise, my God, mag-aassume sila ng power that is broader and greater than the grant of legislative power to the Sanggunians. And Number 5, because of that, then a proposition which has been the result of a successful initiative can only carry the force and effect of an ordinance and therefore that should not deprive the court of its jurisdiction to declare it null and void for want of authority. Ha, di ba? I mean it is beyond powers of local government units to enact. Iyon ang main essence namin, so we concentrated on that. And that is why . . . so ang sa inyo naman includes iyon sa Constitution, amendment to the Constitution eh . . . national laws. Sa amin, if you insist on that, alright, although we feel na it will in effect become a dead statute. Alright, and we can agree, we can agree. So ang mangyayari dito, and magiging basic nito, let us not discuss anymore kung alin and magiging basic bill, ano, whether it is the Senate Bill or whether it is the House bill. Logically it should be ours sapagkat una iyong sa amin eh. It is one of the first bills approved by the Senate kaya ang number niyan, makikita mo, 17, eh. Huwag na nating pagusapan. Now, if you insist, really iyong features ng national at saka constitutional, okay. ____ gagawin na natin na consolidation of both bills. HON. ROCO. Yes, we shall consolidate. CHAIRMAN GONZALES. Consolidation of the Senate and House Bill No. so and so. 10 When the consolidated bill was presented to the House for approval, then Congressman Roco upon interpellation by Congressman Rodolfo Albano, again confirmed that it covered people's initiative to amend the Constitution. The record of the House Representative states: 11 xxx

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THE SPEAKER PRO TEMPORE. Camarines Sur is recognized.

The

Gentleman

from

MR. ROCO. On the Conference Committee Report on the disagreeing provisions between Senate Bill No. 21505 which refers to the system providing for the initiative and referendum, fundamentally, Mr. Speaker, we consolidated the Senate and the House versions, so both versions are totally intact in the bill. The Senators ironically provided for local initiative and referendum and the House Representatives correctly provided for initiative and referendum on the Constitution and on national legislation. I move that we approve the consolidated bill. MR. ALBANO. Mr. Speaker.

THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader? MR. ALBANO. Will the distinguished sponsor answer just a few questions? THE SPEAKER PRO TEMPORE. The Gentlemen will please proceed. MR. ALBANO. I heard the sponsor say that the only difference in the two bills was that in the Senate version there was a provision for local initiative and referendum, whereas the House version has none. MR. ROCO. In fact, the Senate version provide purely for local initiative and referendum, whereas in the House version, we provided purely for national and constitutional legislation. MR. ALBANO. Is it our understanding therefore, that the two provisions were incorporated? MR. ROCO. Yes, Mr. Speaker. MR. ALBANO. So that we will now have a complete initiative and referendum both in the constitutional amendment and national legislation. MR. ROCO. That is correct. MR. ALBANO. And provincial as well as municipal resolutions? MR. ROCO. Down to barangay, Mr. Speaker. MR. ALBANO. And this initiative and referendum is in consonance with the provision of the Constitution whereby it mandates this Congress to enact the enabling law, so that we shall have a system which can be done every five years. Is it five years in the provision of the Constitution? MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments in the 1987 Constitution, it is every five years. MR. ALBANO. For every five years, Mr. Speaker? MR. ROCO. Within five years, we cannot have multiple initiatives and referenda. MR. ALBANO. Therefore, basically, there was no substantial difference between the two versions? MR. ROCO. The gaps in our bill were filled by the Senate which, as I said earlier, ironically was about local, provincial and municipal legislation. MR. ALBANO. And the two bills were consolidated? MR. ROCO. Yes, Mr. Speaker. MR. ALBANO. Thank you, Mr. Speaker.

APPROVAL ON S.B. NO. 17 (The Initiative and Referendum Act)

OF AND

H.B.

NO.

C.C.R. 21505

THE SPEAKER PRO TEMPORE. There was a motion to approve this consolidated bill on Senate Bill No. 17 and House Bill No. 21505. Is there any objection? (Silence. The Chair hears none; the motion is approved. Since it is crystalline that the intent of R.A. No. 6735 is to implement the people's initiative to amend the Constitution, it is our bounden duty to interpret the law as it was intended by the legislature. We have ruled that once intent is ascertained, it must be enforced even if it may not be consistent with the strict letter of the law and this ruling is as old as the mountain. We have also held that where a law is susceptible of more than one interpretation, that interpretation which will most tend to effectuate the manifest intent of the legislature will be adopted. 12 The text of R.A. No. 6735 should therefore be reasonably construed to effectuate its intent to implement the people's initiative to amend the Constitution. To be sure, we need not torture the text of said law to reach the conclusion that it implements people's initiative to amend the Constitution. R.A. No. 6735 is replete with references to this prerogative of the people. First, the policy statement declares: Sec. 2. Statement of Policy. — The power of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed. (emphasis supplied) Second, the law defines "initiative" as "the power of the people to propose amendments to the constitution or to propose and enact legislations through an election called for the purpose," and "plebiscite" as "the electoral process by which an initiative on the Constitution is approved or rejected by the people. Third, the law provides the requirements for a petition for initiative to amend the Constitution. Section 5(b) states that "(a) petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories, of which every legislative district must be represented by at least threeper centum (3%) of the registered voters therein." It also states that "(i)nitiative on the Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five (5) years thereafter. Finally, R.A. No. 6735 fixes the effectivity date of the amendment. Section 9(b) states that "(t)he proposition in an initiative on the Constitution approved by a majority of the votes cast in the plebiscite shall become effective as to the day of the plebiscite. It is unfortunate that the majority decision resorts to a strained interpretation of R.A. No. 6735 to defeat its intent which it itself concedes is to implement people's initiative to propose amendments to the Constitution. Thus, it laments that the word "Constitution" is neither germane nor relevant to the policy thrust of section 2 and that the statute's subtitling is not accurate. These lapses are to be expected for laws are not always written in impeccable English. Rightly, the Constitution does not require our legislators to be word-smiths with the ability to write bills with poetic commas like Jose Garcia Villa or in lyrical prose like Winston Churchill. But it has always been our good policy not to refuse to effectuate the intent of a law on the ground that it is badly written. As the distinguished Vicente Francisco 13 reminds us: "Many laws contain words which have not been used accurately. But the use of inapt or inaccurate language or words, will not vitiate the statute if the legislative intention can be ascertained. The same is equally true with reference to awkward, slovenly, or ungrammatical expressions, that is, such expressions and words will be construed as carrying the meaning the legislature intended that they bear, although such a construction necessitates a departure from the literal meaning of the words used.

In the same vein, the argument that R.A. No. 7535 does not include people's initiative to amend the Constitution simply because it lacks a sub-title on the subject should be given the weight of helium. Again, the hoary rule in statutory construction is that headings prefixed to titles, chapters and sections of a statute may be consulted in aid of interpretation, but inferences drawn therefrom are entitled to very little weight, and they can never control the plain terms of the enacting clauses. 14 All said, it is difficult to agree with the majority decision that refuses to enforce the manifest intent or spirit of R.A. No. 6735 to implement the people's initiative to amend the Constitution. It blatantly disregards the rule cast in concrete that the letter of the law must yield to its spirit for the letter of the law is its body but its spirit is its soul. 15 II COMELEC Resolution No. 2300, 16 promulgated under the stewardship of Commissioner Haydee Yorac, then its Acting Chairman, spelled out the procedure on how to exercise the people's initiative to amend the Constitution. This is in accord with the delegated power granted by section 20 of R.A. No. 6735 to the COMELEC which expressly states: "The Commission is hereby empowered to promulgate such rules and regulations as may be necessary to carry out the purposes of this Act." By no means can this delegation of power be assailed as infirmed. In the benchmark case of Pelaez v. Auditor General, 17 this Court, thru former Chief Justice Roberto Concepcion laid down the test to determine whether there is undue delegation of legislative power, viz: xxx xxx xxx Although Congress may delegate to another branch of the Government the power to fill details in the execution, enforcement or administration of a law, it is essential, to forestall a violation of the principle of separation of powers, that said law: (a) be complete in itself — it must set forth therein the policy to be executed, carried out or implemented by the delegate — and (b) to fix standard — the limits of which are sufficiently determinate or determinable — to which the delegate must conform in the performance of his functions. Indeed, without a statutory declaration of policy, which is the essence of every law, and, without the aforementioned standard, there would be no means to determine, with reasonable certainty, whether the delegate has acted within or beyond the scope of his authority. Hence, he could thereby arrogate upon himself the power, not only to make the law, but, also — and this is worse — to unmake it, by adopting measures inconsistent with the end sought to be attained by the Act of Congress, thus nullifying the principle of separation of powers and the system of checks and balances, and, consequently, undermining the very foundation of our republican system. Section 68 of the Revised Administrative Code does not meet these well-settled requirements for a valid delegation of the power to fix the details in the enforcement of a law. It does not enunciate any policy to be carried out or implemented by the President. Neither does it give a standard sufficiently precise to avoid the evil effects above referred to. R.A. No. 6735 sufficiently states the policy and the standards to guide the COMELEC in promulgating the law's implementing rules and regulations of the law. As aforestated, section 2 spells out the policy of the law; viz: "The power of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed." Spread out all over R.A. No. 6735 are the standards to canalize the delegated power to the COMELEC to promulgate rules and regulations from overflowing. Thus, the law states the number of signatures necessary to start a people's initiative, 18 directs how initiative proceeding is commenced, 19 what the COMELEC should do upon filing of the petition for initiative, 20 how a proposition is approved, 21 when a plebiscite may be held, 22 when the amendment takes

effect 23 and what matters may not be the subject of any initiative. standards are adequate.

24

By any measure, these

Former Justice Isagani A. Cruz, similarly elucidated that "a sufficient standard is intended to map out the boundaries of the delegates' authority by defining the legislative policy and indicating the circumstances under which it is to be pursued and effected. The purpose of the sufficient standard is to prevent a total transference of legislative power from the lawmaking body to the delegate." 25 In enacting R.A. No. 6735, it cannot be said that Congress totally transferred its power to enact the law implementing people's initiative to COMELEC. A close look at COMELEC Resolution No. 2300 will show that it merely provided the procedure to effectuate the policy of R.A. No. 6735 giving life to the people's initiative to amend the Constitution. The debates 26 in the Constitutional Commission make it clear that the rules of procedure to enforce the people's initiative can be delegated, thus: MR. ROMULO. Under Commissioner Davide's amendment, it is possible for the legislature to set forth certain procedures to carry out the initiative. . . ? MR. DAVIDE. It can. xxx

xxx

xxx

MR. ROMULO. But the Commissioner's amendment does not prevent the legislature from asking another body to set the proposition in proper form. MR. DAVIDE. The Commissioner is correct. In other words, the implementation of this particular right would be subject to legislation, provided the legislature cannot determine anymore the percentage of the requirement. MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other words, none of the procedures to be proposed by the legislative body must diminish or impair the right conceded here. MR. ROMULO. In that provision of the Constitution can the procedures which I have discussed be legislated? MR. DAVIDE. Yes. In his book, The Intent of the 1986 Constitution Writers, 27 Father Bernas likewise affirmed: "In response to questions of Commissioner Romulo, Davide explained the extent of the power of the legislature over the process: it could for instance, prescribe the 'proper form before (the amendment) is submitted to the people,' it could authorize another body to check the proper form. It could also authorize the COMELEC, for instance, to check the authenticity of the signatures of petitioners. Davide concluded: 'As long as it will not destroy the substantive right to initiate. In other words, none of the procedures to be proposed by the legislative body must diminish or impair the right conceded here.'" Quite clearly, the prohibition against the legislature is to impair the substantive right of the people to initiate amendments to the Constitution. It is not, however, prohibited from legislating the procedure to enforce the people's right of initiative or to delegate it to another body like the COMELEC with proper standard. A survey of our case law will show that this Court has prudentially refrained from invalidating administrative rules on the ground of lack of adequate legislative standard to guide their promulgation. As aptly perceived by former Justice Cruz, "even if the law itself does not expressly pinpoint the standard, the courts will bend backward to locate the same elsewhere in order to spare the statute, if it can, from constitutional infirmity." 28 He cited the ruling in Hirabayashi v. United States, 29 viz:

xxx xxx xxx It is true that the Act does not in terms establish a particular standard to which orders of the military commander are to conform, or require findings to be made as a prerequisite to any order. But the Executive Order, the Proclamations and the statute are not to be read in isolation from each other. They were parts of a single program and must be judged as such. The Act of March 21, 1942, was an adoption by Congress of the Executive Order and of the Proclamations. The Proclamations themselves followed a standard authorized by the Executive Order — the necessity of protecting military resources in the designated areas against espionage and sabotage. In the case at bar, the policy and the standards are bright-lined in R.A. No. 6735. A 2020 look at the law cannot miss them. They were not written by our legislators in invisible ink. The policy and standards can also be found in no less than section 2, Article XVII of the Constitution on Amendments or Revisions. There is thus no reason to hold that the standards provided for in R.A. No. 6735 are insufficient for in other cases we have upheld as adequate more general standards such as "simplicity and dignity," 30 "public interest," 31 "public welfare," 32 "interest of law and order," 33 "justice and equity,"34 "adequate and efficient instruction," 35 "public safety," 36 "public policy", 37 "greater national interest", 38 "protect the local consumer by stabilizing and subsidizing domestic pump rates", 39 and "promote simplicity, economy and efficiency in government." 40 A due regard and respect to the legislature, a co-equal and coordinate branch of government, should counsel this Court to refrain from refusing to effectuate laws unless they are clearly unconstitutional. III It is also respectfully submitted that the petition should he dismissed with respect to the Pedrosas. The inclusion of the Pedrosas in the petition is utterly baseless. The records show that the case at bar started when respondent Delfin alone and by himself filed with the COMELEC a Petition to Amend the Constitution to Lift Term Limits of Elective Officials by People's Initiative. The Pedrosas did not join the petition. It was Senator Roco who moved to intervene and was allowed to do so by the COMELEC. The petition was heard and before the COMELEC could resolve the Delfin petition, the case at bar was filed by the petitioners with this Court. Petitioners sued the COMELEC. Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa in their capacities as founding members of the People's Initiative for Reform, Modernization and Action (PIRMA). The suit is an original action for prohibition with prayer for temporary restraining order and/or writ of preliminary injunction. The petition on its face states no cause of action against the Pedrosas. The only allegation against the Pedrosas is that they are founding members of the PIRMA which proposes to undertake the signature drive for people's initiative to amend the Constitution. Strangely, the PIRMA itself as an organization was not impleaded as a respondent. Petitioners then prayed that we order the Pedrosas ". . . to desist from conducting a signature drive for a people's initiative to amend the Constitution." On December 19, 1996, we temporarily enjoined the Pedrosas ". . . from conducting a signature drive for people's initiative to amend the Constitution." It is not enough for the majority to lift the temporary restraining order against the Pedrosas. It should dismiss the petition and all motions for contempt against them without equivocation. One need not draw a picture to impart the proposition that in soliciting signatures to start a people's initiative to amend the Constitution the Pedrosas are not engaged in any criminal act. Their solicitation of signatures is a right guaranteed in black and white by section 2 of Article XVII of the Constitution which provides that ". . . amendments to this Constitution may likewise be directly proposed by the people through initiative. . ." This right springs from the principle proclaimed in section 1, Article II of the Constitution that in a democratic and republican state "sovereignty resides in the people and all government authority emanates from them." The Pedrosas are part of the people and their voice is part of the voice of the people. They may constitute but a particle of our sovereignty but no power can trivialize them for sovereignty is indivisible.

But this is not all. Section 16 of Article XIII of the Constitution provides: "The right of the people and their organizations to effective and reasonable participation at all levels of social, political and economic decision-making shall not be abridged. The State shall by law, facilitate the establishment of adequate consultation mechanisms." This is another novel provision of the 1987 Constitution strengthening the sinews of the sovereignty of our people. In soliciting signatures to amend the Constitution, the Pedrosas are participating in the political decisionmaking process of our people. The Constitution says their right cannot be abridged without any ifs and buts. We cannot put a question mark on their right. Over and above these new provisions, the Pedrosas' campaign to amend the Constitution is an exercise of their freedom of speech and expression and their right to petition the government for redress of grievances. We have memorialized this universal right in all our fundamental laws from the Malolos Constitution to the 1987 Constitution. We have iterated and reiterated in our rulings that freedom of speech is a preferred right, the matrix of other important rights of our people. Undeniably, freedom of speech enervates the essence of the democratic creed of think and let think. For this reason, the Constitution encourages speech even if it protects the speechless. It is thus evident that the right of the Pedrosas to solicit signatures to start a people's initiative to amend the Constitution does not depend on any law, much less on R.A. 6735 or COMELEC Resolution No. 2300. No law, no Constitution can chain the people to an undesirable status quo. To be sure, there are no irrepealable laws just as there are no irrepealable Constitutions. Change is the predicate of progress and we should not fear change. Mankind has long recognized the truism that the only constant in life is change and so should the majority. IV In a stream of cases, this Court has rhapsodized people power as expanded in the 1987 Constitution. On October 5, 1993, we observed that people's might is no longer a myth but an article of faith in our Constitution. 41 On September 30, 1994, we postulated that people power can be trusted to check excesses of government and that any effort to trivialize the effectiveness of people's initiatives ought to be rejected. 42 On September 26, 1996, we pledged that ". . . this Court as a matter of policy and doctrine will exert every effort to nurture, protect and promote their legitimate exercise." 43 Just a few days ago, or on March 11, 1997, by a unanimous decision, 44 we allowed a recall election in Caloocan City involving the mayor and ordered that he submits his right to continue in office to the judgment of the tribunal of the people. Thus far, we have succeeded in transforming people power from an opaque abstraction to a robust reality. The Constitution calls us to encourage people empowerment to blossom in full. The Court cannot halt any and all signature campaigns to amend the Constitution without setting back the flowering of people empowerment. More important, the Court cannot seal the lips of people who are pro-change but not those who are anti-change without concerting the debate on charter change into a sterile talkaton. Democracy is enlivened by a dialogue and not by a monologue for in a democracy nobody can claim any infallibility. Melo and Mendoza, JJ., concur.

VITUG, J., concurring and dissenting: The COMELEC should have dismissed, outrightly, the Delfin Petition. It does seem to me that there is no real exigency on the part of the Court to engross, let alone to commit, itself on all the issues raised and debated upon by the parties. What is essential at this time would only be to resolve whether or not the petition filed with the COMELEC, signed by Atty. Jesus S. Delfin in his capacity as a "founding member of the Movement for People's Initiative" and seeking through a people initiative certain modifications on the 1987 Constitution, can properly be regarded and given its due course. The Constitution, relative to any proposed amendment under this method, is explicit. Section 2, Article XVII, thereof provides:

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right. The Delfin petition is thus utterly deficient. Instead of complying with the constitutional imperatives, the petition would rather have much of its burden passed on, in effect, to the COMELEC. The petition would require COMELEC to schedule "signature gathering all over the country," to cause the necessary publication of the petition "in newspapers of general and local circulation," and to instruct "Municipal Election Registrars in all Regions of the Philippines to assist petitioners and volunteers in establishing signing stations at the time and on the dates designated for the purpose. I submit, even then, that the TRO earlier issued by the Court which, consequentially, is made permanent under theponencia should be held to cover only the Delfin petition and must not be so understood as having intended or contemplated to embrace the signature drive of the Pedrosas. The grant of such a right is clearly implicit in the constitutional mandate on people initiative. The distinct greatness of a democratic society is that those who reign are the governed themselves. The postulate is no longer lightly taken as just a perceived myth but a veritable reality. The past has taught us that the vitality of government lies not so much in the strength of those who lead as in the consent of those who are led. The role of free speech is pivotal but it can only have its true meaning if it comes with the correlative end of being heard. Pending a petition for a people's initiative that is sufficient in form and substance, it behooves the Court, I most respectfully submit, to yet refrain from resolving the question of whether or not Republic Act No. 6735 has effectively and sufficiently implemented the Constitutional provision on right of the people to directly propose constitutional amendments. Any opinion or view formulated by the Court at this point would at best be only a non-binding, albeitpossibly persuasive, obiter dictum. I vote for granting the instant petition before the Court and for clarifying that the TRO earlier issued by the Court did not prescribe the exercise by the Pedrosas of their right to campaign for constitutional amendments.

FRANCISCO, J., dissenting and concurring: There is no question that my esteemed colleague Mr. Justice Davide has prepared a scholarly and well-written ponencia. Nonetheless, I cannot fully subscribe to his view that R. A. No. 6735 is inadequate to cover the system of initiative on amendments to the Constitution. To begin with, sovereignty under the constitution, resides in the people and all government authority emanates from them.1 Unlike our previous constitutions, the present 1987 Constitution has given more significance to this declaration of principle for the people are now vested with power not only to propose, enact or reject any act or law passed by Congress or by the local legislative body, but to propose amendments to the constitution as well. 2 To implement these constitutional edicts, Congress in 1989 enacted Republic Act No. 6735, otherwise known as "The initiative and Referendum Act". This law, to my mind, amply covers an initiative on the constitution. The contrary view maintained by petitioners is based principally on the alleged lack of sub-title in the law on initiative to amend the constitution and on their allegation that: Republic Act No. 6735 provides for the effectivity of the law after publication in print media. [And] [t]his indicates that Republic Act No. 6735 covers only laws

and not constitutional amendments, because constitutional amendments take effect upon ratification not after publication.3 which allegation manifests petitioners' selective interpretation of the law, for under Section 9 of Republic Act No. 6735 on the Effectivity of Initiative or Referendum Proposition paragraph (b) thereof is clear in providing that: The proposition in an initiative on the constitution approved by a majority of the votes cast in the plebiscite shall become effective as to the day of the plebiscite. It is a rule that every part of the statute must be interpreted with reference the context, i.e., that every part of the statute must be construed together with the other parts and kept subservient to the general intent of the whole enactment. 4 Thus, the provisions of Republic Act No. 6735 may not be interpreted in isolation. The legislative intent behind every law is to be extracted from the statute as a whole.5 In its definition of terms, Republic Act No. 6735 defines initiative as "the power of the people to propose amendments to the constitution or to propose and enact legislations through an election called for the purpose".6The same section, in enumerating the three systems of initiative, included an "initiative on the constitution which refers to a petition proposing amendments to the constitution"7 Paragraph (e) again of Section 3 defines "plebiscite" as "the electoral process by which an initiative on the constitution is approved or rejected by the people" And as to the material requirements for an initiative on the Constitution, Section 5(b) distinctly enumerates the following: A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of the registered voters as signatories, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein. Initiative on the constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five years thereafter. These provisions were inserted, on purpose, by Congress the intent being to provide for the implementation of the right to propose an amendment to the Constitution by way of initiative. "A legal provision", the Court has previously said, "must not be construed as to be a useless surplusage, and accordingly, meaningless, in the sense of adding nothing to the law or having no effect whatsoever thereon". 8 That this is the legislative intent is further shown by the deliberations in Congress, thus: . . . More significantly, in the course of the consideration of the Conference Committee Report on the disagreeing provisions of Senate Bill No. 17 and House Bill No. 21505, it was noted: MR. ROCO. On the Conference Committee Report on the disagreeing provisions between Senate Bill No. 17 and the consolidated House Bill No. 21505 which refers to the system providing for the initiative and referendum, fundamentally, Mr. Speaker, we consolidated the Senate and the House versions, so both versions are totally intact in the bill. The Senators ironically provided for local initiative and referendum and the House of Representatives correctly provided for initiative and referendum an the Constitution and on national legislation. I move that we approve the consolidated bill. MR. ALBANO, Mr. Speaker. THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader?

MR. ALBANO. Will the distinguished sponsor answer just a few questions? THE SPEAKER PRO TEMPORE. What does the sponsor say? MR. ROCO. Willingly, Mr. Speaker. THE SPEAKER PRO TEMPORE. The Gentleman will please proceed. MR. ALBANO. I heard the sponsor say that the only difference in the two bills was that in the Senate version there was a provision for local initiative and referendum, whereas the House version has none. MR. ROCO. In fact, the Senate version provided purely for local initiative and referendum, whereas in the House version, we provided purely for national and constitutional legislation. MR. ALBANO. Is it our understanding, therefore, that the two provisions were incorporated? MR. ROCO. Yes, Mr. Speaker. MR. ALBANO. So that we will now have a complete initiative and referendum both in the constitutional amendment and national legislation. MR. ROCO. That is correct. MR. ALBANO. And provincial as well as municipal resolutions? MR. ROCO. Down to barangay, Mr. Speaker. MR. ALBANO. And this initiative and referendum is in consonance with the provision of the Constitution to enact the enabling law, so that we shall have a system which can be done every five years. Is it five years in the provision of the Constitution? MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments to the 1987 Constitution, it is every five years." (Id. [Journal and Record of the House of Representatives], Vol. VIII, 8 June 1989, p. 960; quoted in Garcia v. Comelec, 237 SCRA 279, 292-293 [1994]; emphasis supplied) . . . The Senate version of the Bill may not have comprehended initiatives on the Constitution. When consolidated, though, with the House version of the Bill and as approved and enacted into law, the proposal included initiative on both the Constitution and ordinary laws.9 Clearly then, Republic Act No. 6735 covers an initiative on the constitution. Any other construction as what petitioners foist upon the Court constitute a betrayal of the intent and spirit behind the enactment. At any rate, I agree with the ponencia that the Commission on Elections, at present, cannot take any action (such as those contained in the Commission's orders dated December 6, 9, and 12, 1996 [Annexes B, C and B-1]) indicative of its having already assumed jurisdiction over private respondents' petition. This is so because from the tenor of Section 5 (b) of R.A. No. 6735 it would appear that proof of procurement of the required percentage of registered voters at the time the petition for initiative is filed, is a jurisdictional requirement.

Thus: A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein. Initiative on the Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five (5) years thereafter. Here private respondents' petition is unaccompanied by the required signatures. This defect notwithstanding, it is without prejudice to the refiling of their petition once compliance with the required percentage is satisfactorily shown by private respondents. In the absence, therefore, of an appropriate petition before the Commission on Elections, any determination of whether private respondents' proposal constitutes an amendment or revision is premature. ACCORDINGLY, I take exception to the conclusion reached in the ponencia that R.A. No. 6735 is an "inadequate" legislation to cover a people's initiative to propose amendments to the Constitution. I, however, register my concurrence with the dismissal, in the meantime, of private respondents' petition for initiative before public respondent Commission on Elections until the same be supported by proof of strict compliance with Section 5 (b) of R.A. No. 6735. Melo and Mendoza, JJ., concur.

PANGANIBAN, J., concurring and dissenting: Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for the majority, holds that: (1) The Comelec acted without jurisdiction or with grave abuse of discretion in entertaining the "initiatory" Delfin Petition. (2) While the Constitution allows amendments to "be directly proposed by the people through initiative," there is no implementing law for the purpose. RA 6735 is "incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned." (3) Comelec Resolution No. 2330, "insofar as it prescribes rules and regulations on the conduct of initiative on amendments to the Constitution, is void." I concur with the first item above. Until and unless an initiatory petition can show the required number of signatures — in this case, 12% of all the registered voters in the Philippines with at least 3% in every legislative district — no public funds may be spent and no government resources may be used in an initiative to amend the Constitution. Verily, the Comelec cannot even entertain any petition absent such signatures. However, I dissent most respectfully from the majority's two other rulings. Let me explain. Under the above restrictive holdings espoused by the Court's majority, the Constitution cannot be amended at all through a people's initiative. Not by Delfin, not by Pirma, not by anyone, not even by all the voters of the country acting together. This decision will effectively but unnecessarily curtail, nullify, abrogate and render inutile the people's right to change the basic law. At the very least, the majority holds the right hostage to congressional discretion on whether to pass a new law to implement it, when there is already one existing at present. This right to amend through initiative, it bears stressing, is guaranteed by Section 2, Article XVII of the Constitution, as follows: Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No

amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. With all due respect, I find the majority's position all too sweeping and all too extremist. It is equivalent to burning the whole house to exterminate the rats, and to killing the patient to relieve him of pain. What Citizen Delfin wants the Comelec to do we should reject. But we should not thereby preempt any future effort to exercise the right of initiative correctly and judiciously. The fact that the Delfin Petition proposes a misuse of initiative does not justify a ban against its proper use. Indeed, there is a right way to do the right thing at the right time and for the right reason. Taken Together and Interpreted Properly, the Constitution, RA 6735 and Comelec Resolution 2300 Are Sufficient to Implement Constitutional Initiatives While RA 6735 may not be a perfect law, it was — as the majority openly concedes — intended by the legislature to cover and, I respectfully submit, it contains enough provisions to effectuate an initiative on the Constitution.1 I completely agree with the inspired and inspiring opinions of Mr. Justice Reynato S. Puno and Mr. Justice Ricardo J. Francisco that RA 6735, the Roco law on initiative, sufficiently implements the right of the people to initiate amendments to the Constitution. Such views, which I shall no longer repeat nor elaborate on, are thoroughly consistent with this Court's unanimous en banc rulings in Subic Bay Metropolitan Authority vs. Commission on Elections, 2 that "provisions for initiative . . . are (to be) liberally construed to effectuate their purposes, to facilitate and not hamper the exercise by the voters of the rights granted thereby"; and in Garcia vs. Comelec, 3 that any "effort to trivialize the effectiveness of people's initiatives ought to be rejected." No law can completely and absolutely cover all administrative details. In recognition of this, RA 6735 wisely empowered 4 the Commission on Election "to promulgate such rules and regulations as may be necessary to carry out the purposes of this Act." And pursuant thereto, the Comelec issued its Resolution 2300 on 16 January 1991. Such Resolution, by its very words, was promulgated "to govern the conduct of initiative on the Constitution and initiative and referendum on national and local laws," not by the incumbent Commission on Elections but by one then composed of Acting Chairperson Haydee B. Yorac, Comms. Alfredo E. Abueg Jr., Leopoldo L. Africa, Andres R. Flores, Dario C. Rama and Magdara B. Dimaampao. All of these Commissioners who signed Resolution 2300 have retired from the Commission, and thus we cannot ascribe any vile motive unto them, other than an honest, sincere and exemplary effort to give life to a cherished right of our people. The majority argues that while Resolution 2300 is valid in regard to national laws and local legislations, it is void in reference to constitutional amendments. There is no basis for such differentiation. The source of and authority for the Resolution is the same law, RA 6735. I respectfully submit that taken together and interpreted properly and liberally, the Constitution (particularly Art. XVII, Sec. 2), R4 6735 and Comelec Resolution 2300 provide more than sufficient authority to implement, effectuate and realize our people's power to amend the Constitution. Petitioner Delfin Spouses Should Not Be Muzzled

and

the

Pedrosa

I am glad the majority decided to heed our plea to lift the temporary restraining order issued by this Court on 18 December 1996 insofar as it prohibited Petitioner Delfin and the Spouses Pedrosa from exercising their right of initiative. In fact, I believe that such restraining order as against private respondents should not have been issued, in the first place. While I agree that the Comelec should be stopped from using public funds and government resources to help them gather signatures, I firmly believe that this Court has no power to restrain them from exercising their right of initiative. The right to propose amendments to the Constitution is really a species of the right of free speech and free assembly. And certainly, it would be tyrannical and despotic to stop anyone from speaking freely and persuading others to conform to his/her beliefs. As the eminent Voltaire once said, "I may disagree with what you say, but I will defend

to the death your right to say it." After all, freedom is not really for the thought we agree with, but as Justice Holmes wrote, "freedom for the thought that we hate."5 Epilogue By way of epilogue, let me stress the guiding tenet of my Separate Opinion. Initiative, like referendum and recall, is a new and treasured feature of the Filipino constitutional system. All three are institutionalized legacies of the world-admired EDSA people power. Like elections and plebiscites, they are hallowed expressions of popular sovereignty. They are sacred democratic rights of our people to be used as their final weapons against political excesses, opportunism, inaction, oppression and misgovernance; as well as their reserved instruments to exact transparency, accountability and faithfulness from their chosen leaders. While on the one hand, their misuse and abuse must be resolutely struck down, on the other, their legitimate exercise should be carefully nurtured and zealously protected. WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et al. and to DIRECT Respondent Commission on Elections to DISMISS the Delfin Petition on the ground of prematurity, but not on the other grounds relied upon by the majority. I also vote to LIFT the temporary restraining order issued on 18 December 1996 insofar as it prohibits Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa from exercising their right to free speech in proposing amendments to the Constitution. Melo and Mendoza, JJ., concur.

Separate Opinions PUNO, J., concurring and dissenting: I join the ground-breaking ponencia of our esteemed colleague, Mr. Justice Davide insofar as it orders the COMELEC to dismiss the Delfin petition. I regret, however, I cannot share the view that R.A. No. 5735 and COMELEC Resolution No. 2300 are legally defective and cannot implement the people's initiative to amend the Constitution. I likewise submit that the petition with respect to the Pedrosas has no leg to stand on and should be dismissed. With due respect: I First, I submit that R.A. No. 6735 sufficiently implements the right of the people to initiate amendments to the Constitution thru initiative. Our effort to discover the meaning of R.A. No. 6735 should start with the search of the intent of our lawmakers. A knowledge of this intent is critical for the intent of the legislature is the law and the controlling factor in its interpretation.1 Stated otherwise, intent is the essence of the law, the spirit which gives life to its enactment.2 Significantly, the majority decision concedes that ". . . R.A. No. 6735 was intended to cover initiative to propose amendments to the Constitution." It ought to be so for this intent is crystal clear from the history of the law which was a consolidation of House Bill No. 21505 3 and Senate Bill No. 17.4 Senate Bill No. 17 was entitled "An Act Providing for a System of Initiative and Referendum and the Exception Therefrom, Whereby People in Local Government Units Can Directly Propose and Enact Resolutions and Ordinances or Approve or Reject any Ordinance or Resolution Passed by the Local Legislative Body." Beyond doubt, Senate Bill No. 17 did not include people's initiative to propose amendments to the Constitution. In checkered contrast, House Bill No. 21505 5expressly included people's initiative to amend the Constitution. Congressman (now Senator) Raul Roco emphasized in his sponsorship remarks:6 xxx xxx xxx SPONSORSHIP REMARKS OF MR. ROCO

At the outset, Mr. Roco provided the following backgrounder on the constitutional basis of the proposed measure. 1. As cited in Vera vs. Avelino (1946), the presidential system which was introduced by the 1935 Constitution saw the application of the principle of separation of powers. 2. While under the parliamentary system of the 1973 Constitution the principle remained applicable, the 1981 amendments to the Constitution of 1973 ensured presidential dominance over the Batasang Pambansa. Constitutional history then saw the shifting and sharing of legislative powers between the Legislature and the Executive departments. Transcending changes in the exercise of legislative power is the declaration in the Philippine Constitution that the Philippines is a republican state where sovereignty resides in the people and all sovereignty emanates from them. 3. Under the 1987 Constitution, the lawmaking power is still preserved in Congress; however, to institutionalize direct action of the people as exemplified in the 1986 Revolution, the Constitution recognizes the power of the people, through the system of initiative and referendum. As cited in Section 1, Article VI of the 1987 Constitution, Congress does not have plenary powers since reserve powers are given to the people expressly. Section 32 of the same Article mandates Congress to pass at the soonest possible time, a bill on referendum and initiative, and to share its legislative powers with the people. Section 2, Article XVII of the 1987 Constitution, on the other hand, vests in the people the power to directly propose amendments to the Constitution through initiative, upon petition of at least 12 percent of the total number of registered voters. Stating that House Bill No. 21505 is the Committee's response to the duty imposed on Congress to implement the exercise by the people of the right to initiative and referendum, Mr. Roco recalled the beginnings of the system of initiative and referendum under Philippine Law. He cited Section 99 of the Local Government Code which vests in the barangay assembly the power to initiate legislative processes, decide the holding of plebiscite and hear reports of the Sangguniang Barangay, all of which are variations of the power of initiative and referendum. He added that the holding of barangay plebiscites and referendum are likewise provided in Sections 100 and 101 of the same Code. Thereupon, for the sake of brevity, Mr. Roco moved that pertinent quotation on the subject which he will later submit to the Secretary of the House be incorporated as part of his sponsorship speech. He then cited examples of initiative and referendum similar to those contained in the instant Bill among which are the constitutions of states in the United States which recognize the right of registered voters to initiate the enactment of any statute or to project any existing law or parts thereof in a referendum. These states, he said, are Alaska, Alabama, Montana, Massachusets, Dakota, Oklahoma, Oregon, and practically all other states. Mr. Roco explained that in certain American states, the kind of laws to which initiative and referendum apply is also without limitation, except for emergency measures, which are likewise incorporated in House Bill No. 21505. He added that the procedure provided by the Bill from the filing of the petition, the requirements of a certain percentage of supporters to present a proposition, to the submission to electors are substantially similar to the provisions in American laws. Although an infant in Philippine political structure, the system of initiative

and referendum, he said, is a tried and tested system in other jurisdictions, and the Bill is patterned after American experience. He further explained that the bill has only 12 sections, and recalled that the Constitutional Commissioners saw the system of the initiative and referendum as an instrument which can be used should the legislature show itself to be indifferent to the needs of the people. This is the reason, he claimed, why now is an opportune time to pass the Bill even as he noted the felt necessity of the times to pass laws which are necessary to safeguard individual rights and liberties. At this juncture Mr. Roco explained the process of initiative and referendum as advocated in House Bill No. 21505. He stated that: 1. Initiative means that the people, on their own political judgment, submit a Bill for the consideration of the general electorate. 2. The instant Bill provides three kinds of initiative, namely; the initiative to amend the Constitution once every five years; the initiative to amend statutes approved by Congress; and the initiative to amend local ordinances. 3. The instant Bill gives a definite procedure and allows the Commission on Elections (COMELEC) to define rules and regulations on the power of initiative. 4. Referendum means that the legislators seek the consent of the people on measures that they have approved. 5. Under Section 4 of the Bill the people can initiate a referendum which is a mode of plebiscite by presenting a petition therefor, but under certain limitations, such as the signing of said petition by at least 10 percent of the total of registered voters at which every legislative district is represented by at least three percent of the registered voters thereof. Within 30 days after receipt of the petition, the COMELEC shall determine the sufficiency of the petition, publish the same, and set the date of the referendum within 45 to 90-day period. 6. When the matter under referendum or initiative is approved by the required number of votes, it shall become effective 15 days following the completion of its publication in the Official Gazette. In concluding his sponsorship remarks, Mr. Roco stressed that the Members cannot ignore the people's call for initiative and referendum and urged the Body to approve House Bill No. 21505. At this juncture, Mr. Roco also requested that the prepared text of his speech together with the footnotes be reproduced as part of the Congressional Records. The same sentiment as to the bill's intent to implement people's initiative to amend the Constitution was stressed by then Congressman (now Secretary of Agriculture) Salvador Escudero III in his sponsorship remarks, viz:7 xxx

xxx

xxx

SPONSORSHIP REMARKS OF MR. ESCUDERO Mr. Escudero first pointed out that the people have been clamoring for a truly popular democracy ever since, especially in the so-called parliament of the streets. A substantial segment of the population feels, he said, that the form of democracy is there, but not the reality or substance of it because of the increasingly elitist approach of their representatives to the country's problem. Whereupon, Mr. Escudero pointed out that the Constitution has provided a means whereby the people can exercise the reserved power of initiative to

propose amendments to the Constitution, and requested that Sections 1 and 32, Article VI; Section 3, Article X; and Section 2, Article XVII of the Constitution be made part of his sponsorship remarks. Mr. Escudero also stressed that an implementing law is needed for the aforecited Constitutional provisions. While the enactment of the Bill will give way to strong competition among cause-oriented and sectoral groups, he continued, it will hasten the politization of the citizenry, aid the government in forming an enlightened public opinion, and produce more responsive legislation. The passage of the Bill will also give street parliamentarians the opportunity to articulate their ideas in a democratic forum, he added. Mr. Escudero stated that he and Mr. Roco hoped for the early approval of the Bill so that it can be initially used for the Agrarian Reform Law. He said that the passage of House Bill No. 21505 will show that the Members can set aside their personal and political consideration for the greater good of the people. The disagreeing provisions in Senate Bill No. 17 and House Bill No. 21505 were threshed out in a Bicameral Conference Committee.8 In the meeting of the Committee on June 6, 1989,9 the members agreed that the two (2) bills should be consolidated and that the consolidated version should include people's initiative to amend the Constitution as contemplated by House Bill No. 21505. The transcript of the meeting states: xxx

xxx

xxx

CHAIRMAN GONZALES. But at any rate, as I have said, because this is new in our political system, the Senate decided on a more cautious approach and limiting it only to the local government units because even with that stage where . . . at least this has been quite popular, ano? It has been attempted on a national basis. Alright. There has not been a single attempt. Now, so, kami limitado doon. And, second, we consider also that it is only fair that the local legislative body should be given a chance to adopt the legislation bill proposed, right? Iyong sinasabing indirect system of initiative. If after all, the local legislative assembly or body is willing to adopt it in full or in toto, there ought to be any reason for initiative, ano for initiative. And, number 3, we feel that there should be some limitation on the frequency with which it should be applied. Number 4, na the people, thru initiative, cannot enact any ordinance that is beyond the scope of authority of the local legislative body, otherwise, my God, mag-aassume sila ng power that is broader and greater than the grant of legislative power to the Sanggunians. And Number 5, because of that, then a proposition which has been the result of a successful initiative can only carry the force and effect of an ordinance and therefore that should not deprive the court of its jurisdiction to declare it null and void for want of authority. Ha, di ba? I mean it is beyond powers of local government units to enact. Iyon ang main essence namin, so we concentrated on that. And that is why . . . so ang sa inyo naman includes iyon sa Constitution, amendment to the Constitution eh . . . national laws. Sa amin, if you insist on that, alright, although we feel na it will in effect become a dead statute. Alright, and we can agree, we can agree. So ang mangyayari dito, and magiging basic nito, let us not discuss anymore kung alin and magiging basic bill, ano, whether it is the Senate Bill or whether it is the House bill. Logically it should be ours sapagkat una iyong sa amin eh. It is one of the first bills approved by the Senate kaya ang number niyan, makikita mo, 17, eh. Huwag na nating pagusapan. Now, if you insist, really iyong features ng national at saka constitutional, okay. ____ gagawin na natin na consolidation of both bills.

HON. ROCO. Yes, we shall consolidate. CHAIRMAN GONZALES. Consolidation of the Senate and House Bill No. so and so. 10 When the consolidated bill was presented to the House for approval, then Congressman Roco upon interpellation by Congressman Rodolfo Albano, again confirmed that it covered people's initiative to amend the Constitution. The record of the House Representative states: 11 xxx

xxx

xxx

THE SPEAKER PRO TEMPORE. Camarines Sur is recognized.

The

Gentleman

from

MR. ROCO. On the Conference Committee Report on the disagreeing provisions between Senate Bill No. 21505 which refers to the system providing for the initiative and referendum, fundamentally, Mr. Speaker, we consolidated the Senate and the House versions, so both versions are totally intact in the bill. The Senators ironically provided for local initiative and referendum and the House Representatives correctly provided for initiative and referendum on the Constitution and on national legislation. I move that we approve the consolidated bill. MR. ALBANO. Mr. Speaker. THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader? MR. ALBANO. Will the distinguished sponsor answer just a few questions? THE SPEAKER PRO TEMPORE. The Gentlemen will please proceed. MR. ALBANO. I heard the sponsor say that the only difference in the two bills was that in the Senate version there was a provision for local initiative and referendum, whereas the House version has none. MR. ROCO. In fact, the Senate version provide purely for local initiative and referendum, whereas in the House version, we provided purely for national and constitutional legislation. MR. ALBANO. Is it our understanding therefore, that the two provisions were incorporated? MR. ROCO. Yes, Mr. Speaker. MR. ALBANO. So that we will now have a complete initiative and referendum both in the constitutional amendment and national legislation. MR. ROCO. That is correct. MR. ALBANO. And provincial as well as municipal resolutions? MR. ROCO. Down to barangay, Mr. Speaker.

MR. ALBANO. And this initiative and referendum is in consonance with the provision of the Constitution whereby it mandates this Congress to enact the enabling law, so that we shall have a system which can be done every five years. Is it five years in the provision of the Constitution? MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments in the 1987 Constitution, it is every five years. MR. ALBANO. For every five years, Mr. Speaker? MR. ROCO. Within five years, we cannot have multiple initiatives and referenda. MR. ALBANO. Therefore, basically, there was no substantial difference between the two versions? MR. ROCO. The gaps in our bill were filled by the Senate which, as I said earlier, ironically was about local, provincial and municipal legislation. MR. ALBANO. And the two bills were consolidated? MR. ROCO. Yes, Mr. Speaker. MR. ALBANO. Thank you, Mr. Speaker. APPROVAL ON S.B. NO. 17 (The Initiative and Referendum Act)

OF AND

H.B.

NO.

C.C.R. 21505

THE SPEAKER PRO TEMPORE. There was a motion to approve this consolidated bill on Senate Bill No. 17 and House Bill No. 21505. Is there any objection? (Silence. The Chair hears none; the motion is approved. Since it is crystalline that the intent of R.A. No. 6735 is to implement the people's initiative to amend the Constitution, it is our bounden duty to interpret the law as it was intended by the legislature. We have ruled that once intent is ascertained, it must be enforced even if it may not be consistent with the strict letter of the law and this ruling is as old as the mountain. We have also held that where a law is susceptible of more than one interpretation, that interpretation which will most tend to effectuate the manifest intent of the legislature will be adopted. 12 The text of R.A. No. 6735 should therefore be reasonably construed to effectuate its intent to implement the people's initiative to amend the Constitution. To be sure, we need not torture the text of said law to reach the conclusion that it implements people's initiative to amend the Constitution. R.A. No. 6735 is replete with references to this prerogative of the people. First, the policy statement declares: Sec. 2. Statement of Policy. — The power of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed. (emphasis supplied) Second, the law defines "initiative" as "the power of the people to propose amendments to the constitution or to propose and enact legislations through an election called for the purpose," and

"plebiscite" as "the electoral process by which an initiative on the Constitution is approved or rejected by the people. Third, the law provides the requirements for a petition for initiative to amend the Constitution. Section 5(b) states that "(a) petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories, of which every legislative district must be represented by at least threeper centum (3%) of the registered voters therein." It also states that "(i)nitiative on the Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five (5) years thereafter. Finally, R.A. No. 6735 fixes the effectivity date of the amendment. Section 9(b) states that "(t)he proposition in an initiative on the Constitution approved by a majority of the votes cast in the plebiscite shall become effective as to the day of the plebiscite. It is unfortunate that the majority decision resorts to a strained interpretation of R.A. No. 6735 to defeat its intent which it itself concedes is to implement people's initiative to propose amendments to the Constitution. Thus, it laments that the word "Constitution" is neither germane nor relevant to the policy thrust of section 2 and that the statute's subtitling is not accurate. These lapses are to be expected for laws are not always written in impeccable English. Rightly, the Constitution does not require our legislators to be word-smiths with the ability to write bills with poetic commas like Jose Garcia Villa or in lyrical prose like Winston Churchill. But it has always been our good policy not to refuse to effectuate the intent of a law on the ground that it is badly written. As the distinguished Vicente Francisco 13 reminds us: "Many laws contain words which have not been used accurately. But the use of inapt or inaccurate language or words, will not vitiate the statute if the legislative intention can be ascertained. The same is equally true with reference to awkward, slovenly, or ungrammatical expressions, that is, such expressions and words will be construed as carrying the meaning the legislature intended that they bear, although such a construction necessitates a departure from the literal meaning of the words used. In the same vein, the argument that R.A. No. 7535 does not include people's initiative to amend the Constitution simply because it lacks a sub-title on the subject should be given the weight of helium. Again, the hoary rule in statutory construction is that headings prefixed to titles, chapters and sections of a statute may be consulted in aid of interpretation, but inferences drawn therefrom are entitled to very little weight, and they can never control the plain terms of the enacting clauses. 14 All said, it is difficult to agree with the majority decision that refuses to enforce the manifest intent or spirit of R.A. No. 6735 to implement the people's initiative to amend the Constitution. It blatantly disregards the rule cast in concrete that the letter of the law must yield to its spirit for the letter of the law is its body but its spirit is its soul. 15 II COMELEC Resolution No. 2300, 16 promulgated under the stewardship of Commissioner Haydee Yorac, then its Acting Chairman, spelled out the procedure on how to exercise the people's initiative to amend the Constitution. This is in accord with the delegated power granted by section 20 of R.A. No. 6735 to the COMELEC which expressly states: "The Commission is hereby empowered to promulgate such rules and regulations as may be necessary to carry out the purposes of this Act." By no means can this delegation of power be assailed as infirmed. In the benchmark case of Pelaez v. Auditor General, 17 this Court, thru former Chief Justice Roberto Concepcion laid down the test to determine whether there is undue delegation of legislative power, viz: xxx xxx xxx Although Congress may delegate to another branch of the Government the power to fill details in the execution, enforcement or administration of a law, it is essential, to forestall a violation of the principle of separation of powers, that said law: (a) be complete in itself — it must set forth therein the policy to be executed, carried out or implemented by the delegate — and (b) to fix standard — the limits

of which are sufficiently determinate or determinable — to which the delegate must conform in the performance of his functions. Indeed, without a statutory declaration of policy, which is the essence of every law, and, without the aforementioned standard, there would be no means to determine, with reasonable certainty, whether the delegate has acted within or beyond the scope of his authority. Hence, he could thereby arrogate upon himself the power, not only to make the law, but, also — and this is worse — to unmake it, by adopting measures inconsistent with the end sought to be attained by the Act of Congress, thus nullifying the principle of separation of powers and the system of checks and balances, and, consequently, undermining the very foundation of our republican system. Section 68 of the Revised Administrative Code does not meet these well-settled requirements for a valid delegation of the power to fix the details in the enforcement of a law. It does not enunciate any policy to be carried out or implemented by the President. Neither does it give a standard sufficiently precise to avoid the evil effects above referred to. R.A. No. 6735 sufficiently states the policy and the standards to guide the COMELEC in promulgating the law's implementing rules and regulations of the law. As aforestated, section 2 spells out the policy of the law; viz: "The power of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed." Spread out all over R.A. No. 6735 are the standards to canalize the delegated power to the COMELEC to promulgate rules and regulations from overflowing. Thus, the law states the number of signatures necessary to start a people's initiative, 18 directs how initiative proceeding is commenced, 19 what the COMELEC should do upon filing of the petition for initiative, 20 how a proposition is approved, 21 when a plebiscite may be held, 22 when the amendment takes effect 23 and what matters may not be the subject of any initiative. 24 By any measure, these standards are adequate. Former Justice Isagani A. Cruz, similarly elucidated that "a sufficient standard is intended to map out the boundaries of the delegates' authority by defining the legislative policy and indicating the circumstances under which it is to be pursued and effected. The purpose of the sufficient standard is to prevent a total transference of legislative power from the lawmaking body to the delegate." 25 In enacting R.A. No. 6735, it cannot be said that Congress totally transferred its power to enact the law implementing people's initiative to COMELEC. A close look at COMELEC Resolution No. 2300 will show that it merely provided the procedure to effectuate the policy of R.A. No. 6735 giving life to the people's initiative to amend the Constitution. The debates 26 in the Constitutional Commission make it clear that the rules of procedure to enforce the people's initiative can be delegated, thus: MR. ROMULO. Under Commissioner Davide's amendment, it is possible for the legislature to set forth certain procedures to carry out the initiative. . . ? MR. DAVIDE. It can. xxx

xxx

xxx

MR. ROMULO. But the Commissioner's amendment does not prevent the legislature from asking another body to set the proposition in proper form. MR. DAVIDE. The Commissioner is correct. In other words, the implementation of this particular right would be subject to legislation, provided the legislature cannot determine anymore the percentage of the requirement.

MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other words, none of the procedures to be proposed by the legislative body must diminish or impair the right conceded here. MR. ROMULO. In that provision of the Constitution can the procedures which I have discussed be legislated? MR. DAVIDE. Yes. In his book, The Intent of the 1986 Constitution Writers, 27 Father Bernas likewise affirmed: "In response to questions of Commissioner Romulo, Davide explained the extent of the power of the legislature over the process: it could for instance, prescribe the 'proper form before (the amendment) is submitted to the people,' it could authorize another body to check the proper form. It could also authorize the COMELEC, for instance, to check the authenticity of the signatures of petitioners. Davide concluded: 'As long as it will not destroy the substantive right to initiate. In other words, none of the procedures to be proposed by the legislative body must diminish or impair the right conceded here.'" Quite clearly, the prohibition against the legislature is to impair the substantive right of the people to initiate amendments to the Constitution. It is not, however, prohibited from legislating the procedure to enforce the people's right of initiative or to delegate it to another body like the COMELEC with proper standard. A survey of our case law will show that this Court has prudentially refrained from invalidating administrative rules on the ground of lack of adequate legislative standard to guide their promulgation. As aptly perceived by former Justice Cruz, "even if the law itself does not expressly pinpoint the standard, the courts will bend backward to locate the same elsewhere in order to spare the statute, if it can, from constitutional infirmity." 28 He cited the ruling in Hirabayashi v. United States, 29 viz: xxx xxx xxx It is true that the Act does not in terms establish a particular standard to which orders of the military commander are to conform, or require findings to be made as a prerequisite to any order. But the Executive Order, the Proclamations and the statute are not to be read in isolation from each other. They were parts of a single program and must be judged as such. The Act of March 21, 1942, was an adoption by Congress of the Executive Order and of the Proclamations. The Proclamations themselves followed a standard authorized by the Executive Order — the necessity of protecting military resources in the designated areas against espionage and sabotage. In the case at bar, the policy and the standards are bright-lined in R.A. No. 6735. A 2020 look at the law cannot miss them. They were not written by our legislators in invisible ink. The policy and standards can also be found in no less than section 2, Article XVII of the Constitution on Amendments or Revisions. There is thus no reason to hold that the standards provided for in R.A. No. 6735 are insufficient for in other cases we have upheld as adequate more general standards such as "simplicity and dignity," 30 "public interest," 31 "public welfare," 32 "interest of law and order," 33 "justice and 34 35 equity," "adequate and efficient instruction," "public safety," 36 "public policy", 37 "greater national interest", 38 "protect the local consumer by stabilizing and subsidizing domestic pump rates", 39 and "promote simplicity, economy and efficiency in government." 40 A due regard and respect to the legislature, a co-equal and coordinate branch of government, should counsel this Court to refrain from refusing to effectuate laws unless they are clearly unconstitutional. III It is also respectfully submitted that the petition should he dismissed with respect to the Pedrosas. The inclusion of the Pedrosas in the petition is utterly baseless. The records show that the case at bar started when respondent Delfin alone and by himself filed with the

COMELEC a Petition to Amend the Constitution to Lift Term Limits of Elective Officials by People's Initiative. The Pedrosas did not join the petition. It was Senator Roco who moved to intervene and was allowed to do so by the COMELEC. The petition was heard and before the COMELEC could resolve the Delfin petition, the case at bar was filed by the petitioners with this Court. Petitioners sued the COMELEC. Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa in their capacities as founding members of the People's Initiative for Reform, Modernization and Action (PIRMA). The suit is an original action for prohibition with prayer for temporary restraining order and/or writ of preliminary injunction. The petition on its face states no cause of action against the Pedrosas. The only allegation against the Pedrosas is that they are founding members of the PIRMA which proposes to undertake the signature drive for people's initiative to amend the Constitution. Strangely, the PIRMA itself as an organization was not impleaded as a respondent. Petitioners then prayed that we order the Pedrosas ". . . to desist from conducting a signature drive for a people's initiative to amend the Constitution." On December 19, 1996, we temporarily enjoined the Pedrosas ". . . from conducting a signature drive for people's initiative to amend the Constitution." It is not enough for the majority to lift the temporary restraining order against the Pedrosas. It should dismiss the petition and all motions for contempt against them without equivocation. One need not draw a picture to impart the proposition that in soliciting signatures to start a people's initiative to amend the Constitution the Pedrosas are not engaged in any criminal act. Their solicitation of signatures is a right guaranteed in black and white by section 2 of Article XVII of the Constitution which provides that ". . . amendments to this Constitution may likewise be directly proposed by the people through initiative. . ." This right springs from the principle proclaimed in section 1, Article II of the Constitution that in a democratic and republican state "sovereignty resides in the people and all government authority emanates from them." The Pedrosas are part of the people and their voice is part of the voice of the people. They may constitute but a particle of our sovereignty but no power can trivialize them for sovereignty is indivisible. But this is not all. Section 16 of Article XIII of the Constitution provides: "The right of the people and their organizations to effective and reasonable participation at all levels of social, political and economic decision-making shall not be abridged. The State shall by law, facilitate the establishment of adequate consultation mechanisms." This is another novel provision of the 1987 Constitution strengthening the sinews of the sovereignty of our people. In soliciting signatures to amend the Constitution, the Pedrosas are participating in the political decisionmaking process of our people. The Constitution says their right cannot be abridged without any ifs and buts. We cannot put a question mark on their right. Over and above these new provisions, the Pedrosas' campaign to amend the Constitution is an exercise of their freedom of speech and expression and their right to petition the government for redress of grievances. We have memorialized this universal right in all our fundamental laws from the Malolos Constitution to the 1987 Constitution. We have iterated and reiterated in our rulings that freedom of speech is a preferred right, the matrix of other important rights of our people. Undeniably, freedom of speech enervates the essence of the democratic creed of think and let think. For this reason, the Constitution encourages speech even if it protects the speechless. It is thus evident that the right of the Pedrosas to solicit signatures to start a people's initiative to amend the Constitution does not depend on any law, much less on R.A. 6735 or COMELEC Resolution No. 2300. No law, no Constitution can chain the people to an undesirable status quo. To be sure, there are no irrepealable laws just as there are no irrepealable Constitutions. Change is the predicate of progress and we should not fear change. Mankind has long recognized the truism that the only constant in life is change and so should the majority. IV In a stream of cases, this Court has rhapsodized people power as expanded in the 1987 Constitution. On October 5, 1993, we observed that people's might is no longer a myth but an article of faith in our Constitution. 41 On September 30, 1994, we postulated that people power

can be trusted to check excesses of government and that any effort to trivialize the effectiveness of people's initiatives ought to be rejected. 42 On September 26, 1996, we pledged that ". . . this Court as a matter of policy and doctrine will exert every effort to nurture, protect and promote their legitimate exercise." 43 Just a few days ago, or on March 11, 1997, by a unanimous decision, 44 we allowed a recall election in Caloocan City involving the mayor and ordered that he submits his right to continue in office to the judgment of the tribunal of the people. Thus far, we have succeeded in transforming people power from an opaque abstraction to a robust reality. The Constitution calls us to encourage people empowerment to blossom in full. The Court cannot halt any and all signature campaigns to amend the Constitution without setting back the flowering of people empowerment. More important, the Court cannot seal the lips of people who are pro-change but not those who are anti-change without concerting the debate on charter change into a sterile talkaton. Democracy is enlivened by a dialogue and not by a monologue for in a democracy nobody can claim any infallibility. Melo and Mendoza, JJ., concur.

VITUG, J., concurring and dissenting: The COMELEC should have dismissed, outrightly, the Delfin Petition. It does seem to me that there is no real exigency on the part of the Court to engross, let alone to commit, itself on all the issues raised and debated upon by the parties. What is essential at this time would only be to resolve whether or not the petition filed with the COMELEC, signed by Atty. Jesus S. Delfin in his capacity as a "founding member of the Movement for People's Initiative" and seeking through a people initiative certain modifications on the 1987 Constitution, can properly be regarded and given its due course. The Constitution, relative to any proposed amendment under this method, is explicit. Section 2, Article XVII, thereof provides: Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right. The Delfin petition is thus utterly deficient. Instead of complying with the constitutional imperatives, the petition would rather have much of its burden passed on, in effect, to the COMELEC. The petition would require COMELEC to schedule "signature gathering all over the country," to cause the necessary publication of the petition "in newspapers of general and local circulation," and to instruct "Municipal Election Registrars in all Regions of the Philippines to assist petitioners and volunteers in establishing signing stations at the time and on the dates designated for the purpose. I submit, even then, that the TRO earlier issued by the Court which, consequentially, is made permanent under theponencia should be held to cover only the Delfin petition and must not be so understood as having intended or contemplated to embrace the signature drive of the Pedrosas. The grant of such a right is clearly implicit in the constitutional mandate on people initiative. The distinct greatness of a democratic society is that those who reign are the governed themselves. The postulate is no longer lightly taken as just a perceived myth but a veritable reality. The past has taught us that the vitality of government lies not so much in the strength of those who lead as in the consent of those who are led. The role of free speech is pivotal but it can only have its true meaning if it comes with the correlative end of being heard. Pending a petition for a people's initiative that is sufficient in form and substance, it behooves the Court, I most respectfully submit, to yet refrain from resolving the question of whether or not

Republic Act No. 6735 has effectively and sufficiently implemented the Constitutional provision on right of the people to directly propose constitutional amendments. Any opinion or view formulated by the Court at this point would at best be only a non-binding, albeitpossibly persuasive, obiter dictum. I vote for granting the instant petition before the Court and for clarifying that the TRO earlier issued by the Court did not prescribe the exercise by the Pedrosas of their right to campaign for constitutional amendments.

FRANCISCO, J., dissenting and concurring: There is no question that my esteemed colleague Mr. Justice Davide has prepared a scholarly and well-written ponencia. Nonetheless, I cannot fully subscribe to his view that R. A. No. 6735 is inadequate to cover the system of initiative on amendments to the Constitution. To begin with, sovereignty under the constitution, resides in the people and all government authority emanates from them.1 Unlike our previous constitutions, the present 1987 Constitution has given more significance to this declaration of principle for the people are now vested with power not only to propose, enact or reject any act or law passed by Congress or by the local legislative body, but to propose amendments to the constitution as well. 2 To implement these constitutional edicts, Congress in 1989 enacted Republic Act No. 6735, otherwise known as "The initiative and Referendum Act". This law, to my mind, amply covers an initiative on the constitution. The contrary view maintained by petitioners is based principally on the alleged lack of sub-title in the law on initiative to amend the constitution and on their allegation that: Republic Act No. 6735 provides for the effectivity of the law after publication in print media. [And] [t]his indicates that Republic Act No. 6735 covers only laws and not constitutional amendments, because constitutional amendments take effect upon ratification not after publication.3 which allegation manifests petitioners' selective interpretation of the law, for under Section 9 of Republic Act No. 6735 on the Effectivity of Initiative or Referendum Proposition paragraph (b) thereof is clear in providing that: The proposition in an initiative on the constitution approved by a majority of the votes cast in the plebiscite shall become effective as to the day of the plebiscite. It is a rule that every part of the statute must be interpreted with reference the context, i.e., that every part of the statute must be construed together with the other parts and kept subservient to the general intent of the whole enactment. 4 Thus, the provisions of Republic Act No. 6735 may not be interpreted in isolation. The legislative intent behind every law is to be extracted from the statute as a whole.5 In its definition of terms, Republic Act No. 6735 defines initiative as "the power of the people to propose amendments to the constitution or to propose and enact legislations through an election called for the purpose".6The same section, in enumerating the three systems of initiative, included an "initiative on the constitution which refers to a petition proposing amendments to the constitution"7 Paragraph (e) again of Section 3 defines "plebiscite" as "the electoral process by which an initiative on the constitution is approved or rejected by the people" And as to the material requirements for an initiative on the Constitution, Section 5(b) distinctly enumerates the following: A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of the registered voters as signatories, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein. Initiative on the constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five years thereafter.

These provisions were inserted, on purpose, by Congress the intent being to provide for the implementation of the right to propose an amendment to the Constitution by way of initiative. "A legal provision", the Court has previously said, "must not be construed as to be a useless surplusage, and accordingly, meaningless, in the sense of adding nothing to the law or having no effect whatsoever thereon". 8 That this is the legislative intent is further shown by the deliberations in Congress, thus: . . . More significantly, in the course of the consideration of the Conference Committee Report on the disagreeing provisions of Senate Bill No. 17 and House Bill No. 21505, it was noted: MR. ROCO. On the Conference Committee Report on the disagreeing provisions between Senate Bill No. 17 and the consolidated House Bill No. 21505 which refers to the system providing for the initiative and referendum, fundamentally, Mr. Speaker, we consolidated the Senate and the House versions, so both versions are totally intact in the bill. The Senators ironically provided for local initiative and referendum and the House of Representatives correctly provided for initiative and referendum an the Constitution and on national legislation. I move that we approve the consolidated bill. MR. ALBANO, Mr. Speaker. THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader? MR. ALBANO. Will the distinguished sponsor answer just a few questions? THE SPEAKER PRO TEMPORE. What does the sponsor say? MR. ROCO. Willingly, Mr. Speaker. THE SPEAKER PRO TEMPORE. The Gentleman will please proceed. MR. ALBANO. I heard the sponsor say that the only difference in the two bills was that in the Senate version there was a provision for local initiative and referendum, whereas the House version has none. MR. ROCO. In fact, the Senate version provided purely for local initiative and referendum, whereas in the House version, we provided purely for national and constitutional legislation. MR. ALBANO. Is it our understanding, therefore, that the two provisions were incorporated? MR. ROCO. Yes, Mr. Speaker. MR. ALBANO. So that we will now have a complete initiative and referendum both in the constitutional amendment and national legislation. MR. ROCO. That is correct. MR. ALBANO. And provincial as well as municipal resolutions?

MR. ROCO. Down to barangay, Mr. Speaker. MR. ALBANO. And this initiative and referendum is in consonance with the provision of the Constitution to enact the enabling law, so that we shall have a system which can be done every five years. Is it five years in the provision of the Constitution? MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments to the 1987 Constitution, it is every five years." (Id. [Journal and Record of the House of Representatives], Vol. VIII, 8 June 1989, p. 960; quoted in Garcia v. Comelec, 237 SCRA 279, 292-293 [1994]; emphasis supplied) . . . The Senate version of the Bill may not have comprehended initiatives on the Constitution. When consolidated, though, with the House version of the Bill and as approved and enacted into law, the proposal included initiative on both the Constitution and ordinary laws.9 Clearly then, Republic Act No. 6735 covers an initiative on the constitution. Any other construction as what petitioners foist upon the Court constitute a betrayal of the intent and spirit behind the enactment. At any rate, I agree with the ponencia that the Commission on Elections, at present, cannot take any action (such as those contained in the Commission's orders dated December 6, 9, and 12, 1996 [Annexes B, C and B-1]) indicative of its having already assumed jurisdiction over private respondents' petition. This is so because from the tenor of Section 5 (b) of R.A. No. 6735 it would appear that proof of procurement of the required percentage of registered voters at the time the petition for initiative is filed, is a jurisdictional requirement. Thus: A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein. Initiative on the Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five (5) years thereafter. Here private respondents' petition is unaccompanied by the required signatures. This defect notwithstanding, it is without prejudice to the refiling of their petition once compliance with the required percentage is satisfactorily shown by private respondents. In the absence, therefore, of an appropriate petition before the Commission on Elections, any determination of whether private respondents' proposal constitutes an amendment or revision is premature. ACCORDINGLY, I take exception to the conclusion reached in the ponencia that R.A. No. 6735 is an "inadequate" legislation to cover a people's initiative to propose amendments to the Constitution. I, however, register my concurrence with the dismissal, in the meantime, of private respondents' petition for initiative before public respondent Commission on Elections until the same be supported by proof of strict compliance with Section 5 (b) of R.A. No. 6735. Melo and Mendoza, JJ., concur.

PANGANIBAN, J., concurring and dissenting: Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for the majority, holds that: (1) The Comelec acted without jurisdiction or with grave abuse of discretion in entertaining the "initiatory" Delfin Petition.

(2) While the Constitution allows amendments to "be directly proposed by the people through initiative," there is no implementing law for the purpose. RA 6735 is "incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned." (3) Comelec Resolution No. 2330, "insofar as it prescribes rules and regulations on the conduct of initiative on amendments to the Constitution, is void." I concur with the first item above. Until and unless an initiatory petition can show the required number of signatures — in this case, 12% of all the registered voters in the Philippines with at least 3% in every legislative district — no public funds may be spent and no government resources may be used in an initiative to amend the Constitution. Verily, the Comelec cannot even entertain any petition absent such signatures. However, I dissent most respectfully from the majority's two other rulings. Let me explain. Under the above restrictive holdings espoused by the Court's majority, the Constitution cannot be amended at all through a people's initiative. Not by Delfin, not by Pirma, not by anyone, not even by all the voters of the country acting together. This decision will effectively but unnecessarily curtail, nullify, abrogate and render inutile the people's right to change the basic law. At the very least, the majority holds the right hostage to congressional discretion on whether to pass a new law to implement it, when there is already one existing at present. This right to amend through initiative, it bears stressing, is guaranteed by Section 2, Article XVII of the Constitution, as follows: Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. With all due respect, I find the majority's position all too sweeping and all too extremist. It is equivalent to burning the whole house to exterminate the rats, and to killing the patient to relieve him of pain. What Citizen Delfin wants the Comelec to do we should reject. But we should not thereby preempt any future effort to exercise the right of initiative correctly and judiciously. The fact that the Delfin Petition proposes a misuse of initiative does not justify a ban against its proper use. Indeed, there is a right way to do the right thing at the right time and for the right reason. Taken Together and Interpreted Properly, the Constitution, RA 6735 and Comelec Resolution 2300 Are Sufficient to Implement Constitutional Initiatives While RA 6735 may not be a perfect law, it was — as the majority openly concedes — intended by the legislature to cover and, I respectfully submit, it contains enough provisions to effectuate an initiative on the Constitution.1 I completely agree with the inspired and inspiring opinions of Mr. Justice Reynato S. Puno and Mr. Justice Ricardo J. Francisco that RA 6735, the Roco law on initiative, sufficiently implements the right of the people to initiate amendments to the Constitution. Such views, which I shall no longer repeat nor elaborate on, are thoroughly consistent with this Court's unanimous en banc rulings in Subic Bay Metropolitan Authority vs. Commission on Elections, 2 that "provisions for initiative . . . are (to be) liberally construed to effectuate their purposes, to facilitate and not hamper the exercise by the voters of the rights granted thereby"; and in Garcia vs. Comelec, 3 that any "effort to trivialize the effectiveness of people's initiatives ought to be rejected." No law can completely and absolutely cover all administrative details. In recognition of this, RA 6735 wisely empowered 4 the Commission on Election "to promulgate such rules and regulations as may be necessary to carry out the purposes of this Act." And pursuant thereto, the Comelec issued its Resolution 2300 on 16 January 1991. Such Resolution, by its very words, was promulgated "to govern the conduct of initiative on the Constitution and initiative and referendum on national and local laws," not by the incumbent Commission on Elections but by one then composed of Acting Chairperson Haydee B. Yorac, Comms. Alfredo E. Abueg Jr.,

Leopoldo L. Africa, Andres R. Flores, Dario C. Rama and Magdara B. Dimaampao. All of these Commissioners who signed Resolution 2300 have retired from the Commission, and thus we cannot ascribe any vile motive unto them, other than an honest, sincere and exemplary effort to give life to a cherished right of our people. The majority argues that while Resolution 2300 is valid in regard to national laws and local legislations, it is void in reference to constitutional amendments. There is no basis for such differentiation. The source of and authority for the Resolution is the same law, RA 6735. I respectfully submit that taken together and interpreted properly and liberally, the Constitution (particularly Art. XVII, Sec. 2), R4 6735 and Comelec Resolution 2300 provide more than sufficient authority to implement, effectuate and realize our people's power to amend the Constitution. Petitioner Delfin Spouses Should Not Be Muzzled

and

the

Pedrosa

I am glad the majority decided to heed our plea to lift the temporary restraining order issued by this Court on 18 December 1996 insofar as it prohibited Petitioner Delfin and the Spouses Pedrosa from exercising their right of initiative. In fact, I believe that such restraining order as against private respondents should not have been issued, in the first place. While I agree that the Comelec should be stopped from using public funds and government resources to help them gather signatures, I firmly believe that this Court has no power to restrain them from exercising their right of initiative. The right to propose amendments to the Constitution is really a species of the right of free speech and free assembly. And certainly, it would be tyrannical and despotic to stop anyone from speaking freely and persuading others to conform to his/her beliefs. As the eminent Voltaire once said, "I may disagree with what you say, but I will defend to the death your right to say it." After all, freedom is not really for the thought we agree with, but as Justice Holmes wrote, "freedom for the thought that we hate."5 Epilogue By way of epilogue, let me stress the guiding tenet of my Separate Opinion. Initiative, like referendum and recall, is a new and treasured feature of the Filipino constitutional system. All three are institutionalized legacies of the world-admired EDSA people power. Like elections and plebiscites, they are hallowed expressions of popular sovereignty. They are sacred democratic rights of our people to be used as their final weapons against political excesses, opportunism, inaction, oppression and misgovernance; as well as their reserved instruments to exact transparency, accountability and faithfulness from their chosen leaders. While on the one hand, their misuse and abuse must be resolutely struck down, on the other, their legitimate exercise should be carefully nurtured and zealously protected. WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et al. and to DIRECT Respondent Commission on Elections to DISMISS the Delfin Petition on the ground of prematurity, but not on the other grounds relied upon by the majority. I also vote to LIFT the temporary restraining order issued on 18 December 1996 insofar as it prohibits Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa from exercising their right to free speech in proposing amendments to the Constitution. Melo and Mendoza, JJ., concur. Footnotes 1 Commissioner Blas Ople. 2 Commissioner Jose Suarez. 3 I Record of the Constitutional Commission, 371, 378. 4 Section 1, Article XV of the 1935 Constitution and Section 1(1), Article XVI of the 1973 Constitution.

5 Annex "A" of Petition, Rollo, 15. 6 Later identified as the People's Initiative for Reforms, Modernization and Action, or PIRMA for brevity. 7 These sections read: Sec. 4. The term of office of the Senators shall be six years and shall commence, unless otherwise provided by law, at noon on the thirtieth day of June next following their election. No Senator shall serve for more than two consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. xxx xxx xxx Sec. 7. The Members of the House of Representatives shall be elected for a term of three years which shall begin, unless otherwise provided by law, at noon on the thirtieth day of June next following their election. No Member of the House of Representatives shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. 8 The section reads: Sec. 4. The President and the Vice-President shall be elected by direct vote of the people for a term of six years which shall begin at noon on the thirtieth day of June next following the day of the election and shall end at noon of the same date six years thereafter. The President shall not be eligible for any reelection. No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time. No Vice-President shall serve for more than two successive terms. Voluntary renunciation of the office for any length or time shall not be considered as an interruption in the continuity of the service for the full term for which he was elected. 9 The section reads: Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. G.R. No. L-28196

November 9, 1967

RAMON A. vs. COMMISSION ON ELECTIONS, DIRECTOR GENERAL, respondents. G.R. No. L-28224

November 9, 1967

GONZALES, petitioner, OF

PRINTING

and

AUDITOR

PHILIPPINE CONSTITUTION ASSOCIATION vs. COMMISSION ON ELECTIONS, respondent. No. Ramon A. Gonzales for and in Juan T. David Office of the Solicitor General for respondents. No. Salvador Araneta Office of the Solicitor General for respondent.

his as

own

(PHILCONSA), petitioner,

behalf amicus

as

for

28196: petitioner. curiae

28224: petitioner.

CONCEPCION, C.J.: G. R. No. L-28196 is an original action for prohibition, with preliminary injunction. Petitioner therein prays for judgment: 1) Restraining: (a) the Commission on Elections from enforcing Republic Act No. 4913, or from performing any act that will result in the holding of the plebiscite for the ratification of the constitutional amendments proposed in Joint Resolutions Nos. 1 and 3 of the two Houses of Congress of the Philippines, approved on March 16, 1967; (b) the Director of Printing from printing ballots, pursuant to said Act and Resolutions; and (c) the Auditor General from passing in audit any disbursement from the appropriation of funds made in said Republic Act No. 4913; and 2) declaring said Act unconstitutional and void. The main facts are not disputed. On March 16, 1967, the Senate and the House of Representatives passed the following resolutions: 1. R. B. H. (Resolution of Both Houses) No. 1, proposing that Section 5, Article VI, of the Constitution of the Philippines, be amended so as to increase the membership of the House of Representatives from a maximum of 120, as provided in the present Constitution, to a maximum of 180, to be apportioned among the several provinces as nearly as may be according to the number of their respective inhabitants, although each province shall have, at least, one (1) member; 2. R. B. H. No. 2, calling a convention to propose amendments to said Constitution, the convention to be composed of two (2) elective delegates from each representative district, to be "elected in the general elections to be held on the second Tuesday of November, 1971;" and 3. R. B. H. No. 3, proposing that Section 16, Article VI, of the same Constitution, be amended so as to authorize Senators and members of the House of Representatives to become delegates to the aforementioned constitutional convention, without forfeiting their respective seats in Congress. Subsequently, Congress passed a bill, which, upon approval by the President, on June 17, 1967, became Republic Act No. 4913, providing that the amendments to the Constitution proposed in the aforementioned Resolutions No. 1 and 3 be submitted, for approval by the people, at the general elections which shall be held on November 14, 1967. The petition in L-28196 was filed on October 21, 1967. At the hearing thereof, on October 28, 1967, the Solicitor General appeared on behalf of respondents. Moreover, Atty. Juan T. David and counsel for the Philippine Constitution Association — hereinafter referred to as the PHILCONSA — were allowed to argue as amici curiae. Said counsel for the PHILCONSA, Dr. Salvador Araneta, likewise prayed that the decision in this case be deferred until after a substantially identical case brought by said organization before the Commission on Elections,1 which was expected to decide it any time, and whose decision would, in all probability, be appealed to this Court — had been submitted thereto for final determination, for a

joint decision on the identical issues raised in both cases. In fact, on October 31, 1967, the PHILCONSA filed with this Court the petition in G. R. No. L-28224, for review by certiorari of the resolution of the Commission on Elections2 dismissing the petition therein. The two (2) cases were deemed submitted for decision on November 8, 1967, upon the filing of the answer of respondent, the memorandum of the petitioner and the reply memorandum of respondent in L28224. Ramon A. Gonzales, the petitioner in L-28196, is admittedly a Filipino citizen, a taxpayer, and a voter. He claims to have instituted case L-28196 as a class unit, for and in behalf of all citizens, taxpayers, and voters similarly situated. Although respondents and the Solicitor General have filed an answer denying the truth of this allegation, upon the ground that they have no knowledge or information to form a belief as to the truth thereof, such denial would appear to be a perfunctory one. In fact, at the hearing of case L-28196, the Solicitor General expressed himself in favor of a judicial determination of the merits of the issued raised in said case. The PHILCONSA, petitioner in L-28224, is admittedly a corporation duly organized and existing under the laws of the Philippines, and a civic, non-profit and non-partisan organization the objective of which is to uphold the rule of law in the Philippines and to defend its Constitution against erosions or onslaughts from whatever source. Despite his aforementioned statement in L-28196, in his answer in L-28224 the Solicitor General maintains that this Court has no jurisdiction over the subject-matter of L-28224, upon the ground that the same is "merely political" as held in Mabanag vs. Lopez Vito.3 Senator Arturo M. Tolentino, who appeared before the Commission on Elections and filed an opposition to the PHILCONSA petition therein, was allowed to appear before this Court and objected to said petition upon the ground: a) that the Court has no jurisdiction either to grant the relief sought in the petition, or to pass upon the legality of the composition of the House of Representatives; b) that the petition, if granted, would, in effect, render in operational the legislative department; and c) that "the failure of Congress to enact a valid reapportionment law . . . does not have the legal effect of rendering illegal the House of Representatives elected thereafter, nor of rendering its acts null and void." JURISDICTION As early as Angara vs. Electoral Commission,4 this Court — speaking through one of the leading members of the Constitutional Convention and a respected professor of Constitutional Law, Dr. Jose P. Laurel — declared that "the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof." It is true that in Mabanag vs. Lopez Vito,5 this Court characterizing the issue submitted thereto as a political one, declined to pass upon the question whether or not a given number of votes cast in Congress in favor of a proposed amendment to the Constitution — which was being submitted to the people for ratification — satisfied the three-fourths vote requirement of the fundamental law. The force of this precedent has been weakened, however, by Suanes vs. Chief Accountant of the Senate,6 Avelino vs. Cuenco,7 Tañada vs. Cuenco,8 and Macias vs. Commission on Elections.9In the first, we held that the officers and employees of the Senate Electoral Tribunal are under its supervision and control, not of that of the Senate President, as claimed by the latter; in the second, this Court proceeded to determine the number of Senators necessary for a quorum in the Senate; in the third, we nullified the election, by Senators belonging to the party having the largest number of votes in said chamber, purporting to act on behalf of the party having the second largest number of votes therein, of two (2) Senators belonging to the first party, as members, for the second party, of the, Senate Electoral Tribunal; and in the fourth, we declared unconstitutional an act of Congress purporting to apportion the representative districts for the House of Representatives, upon the ground that the apportionment had not been made as may be possible according to the number of inhabitants of each province. Thus we rejected the theory, advanced in these four (4) cases, that the issues therein raised were political questions the determination of which is beyond judicial review. Indeed, the power to amend the Constitution or to propose amendments thereto is not included in the general grant of legislative powers to Congress.10 It is part of the inherent powers of the people — as the repository of sovereignty in a republican state, such as ours11 — 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. 12 Hence, when exercising the same, it is said that Senators and Members of the House of Representatives act, not as

members of Congress, but as component elements of a constituent assembly. When acting as such, the members of Congress derive their authority from the Constitution, unlike the people, when performing the same function,13 for their authority does not emanate from the Constitution — they are the very source of all powers of government, including the Constitution itself . Since, when proposing, as a constituent assembly, amendments to the Constitution, the members of Congress derive their authority from the Fundamental Law, it follows, necessarily, that they do not have the final say on whether or not their acts are within or beyond constitutional limits. Otherwise, they could brush aside and set the same at naught, contrary to the basic tenet that ours is a government of laws, not of men, and to the rigid nature of our Constitution. Such rigidity is stressed by the fact that, the Constitution expressly confers upon the Supreme Court,14 the power to declare a treaty unconstitutional,15 despite the eminently political character of treaty-making power. In short, the issue whether or not a Resolution of Congress — acting as a constituent assembly — violates the Constitution essentially justiciable, not political, and, hence, subject to judicial review, and, to the extent that this view may be inconsistent with the stand taken in Mabanag vs. Lopez Vito,16 the latter should be deemed modified accordingly. The Members of the Court are unanimous on this point. THE MERITS Section 1 of Article XV of the Constitution, as amended, reads: The Congress in joint session assembled by a vote of three-fourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments to this Constitution or call a convention for that purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification. Pursuant to this provision, amendments to the Constitution may be proposed, either by Congress, or by a convention called by Congress for that purpose. In either case, the vote of "three-fourths of all the members of the Senate and of the House of Representatives voting separately" is necessary. And, "such amendments shall be valid as part of" the "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." In the cases at bar, it is conceded that the R. B. H. Nos. 1 and 3 have been approved by a vote of three-fourths of all the members of the Senate and of the House of Representatives voting separately. This, notwithstanding, it is urged that said resolutions are null and void because: 1. The Members of Congress, which approved the proposed amendments, as well as the resolution calling a convention to propose amendments, are, at best, de facto Congressmen; 2. Congress may adopt either one of two alternatives propose — amendments or call a convention therefore but may not avail of both — that is to say, propose amendment and call a convention — at the same time; 3. The election, in which proposals for amendment to the Constitution shall be submitted for ratification, must be a special election, not a general election, in which officers of the national and local governments — such as the elections scheduled to be held on November 14, 1967 — will be chosen; and 4. The spirit of the Constitution demands that the election, in which proposals for amendment shall be submitted to the people for ratification, must be held under such conditions — which, allegedly, do not exist — as to give the people a reasonable opportunity to have a fair grasp of the nature and implications of said amendments. Legality of Congress and Legal Status of the Congressmen

The first objection is based upon Section 5, Article VI, of the Constitution, which provides: The House of Representatives shall be composed of not more than one hundred and twenty Members who shall be apportioned among the several provinces as nearly as may be according to the number of their respective inhabitants, but each province shall have at least one Member. The Congress shall by law make an apportionment within three years after the return of every enumeration, and not otherwise. Until such apportionment shall have been made, the House of Representatives shall have the same number of Members as that fixed by law for the National Assembly, who shall be elected by the qualified electors from the present Assembly districts. Each representative district shall comprise, as far as practicable, contiguous and compact territory. It is urged that the last enumeration or census took place in 1960; that, no apportionment having been made within three (3) years thereafter, the Congress of the Philippines and/or the election of its Members became illegal; that Congress and its Members, likewise, became a de facto Congress and/or de facto congressmen, respectively; and that, consequently, the disputed Resolutions, proposing amendments to the Constitution, as well as Republic Act No. 4913, are null and void. It is not true, however, that Congress has not made an apportionment within three years after the enumeration or census made in 1960. It did actually pass a bill, which became Republic Act No. 3040,17 purporting to make said apportionment. This Act was, however, declared unconstitutional, upon the ground that the apportionment therein undertaken had not been made according to the number of inhabitants of the different provinces of the Philippines.18 Moreover, we are unable to agree with the theory that, in view of the failure of Congress to make a valid apportionment within the period stated in the Constitution, Congress became an "unconstitutional Congress" and that, in consequence thereof, the Members of its House of Representatives are de facto officers. The major premise of this process of reasoning is that the constitutional provision on "apportionment within three years after the return of every enumeration, and not otherwise," is mandatory. The fact that Congress is under legal obligation to make said apportionment does not justify, however, the conclusion that failure to comply with such obligation rendered Congress illegal or unconstitutional, or that its Members have become de facto officers. It is conceded that, since the adoption of the Constitution in 1935, Congress has not made a valid apportionment as required in said fundamental law. The effect of this omission has been envisioned in the Constitution, pursuant to which: . . . Until such apportionment shall have been made, the House of Representatives shall have the same number of Members as that fixed by law for the National Assembly, who shall be elected by the qualified electors from the present Assembly districts. . . . . The provision does not support the view that, upon the expiration of the period to make the apportionment, a Congress which fails to make it is dissolved or becomes illegal. On the contrary, it implies necessarily that Congress shall continue to function with the representative districts existing at the time of the expiration of said period. It is argued that the above-quoted provision refers only to the elections held in 1935. This theory assumes that an apportionment had to be made necessarily before the first elections to be held after the inauguration of the Commonwealth of the Philippines, or in 1938. 19 The assumption, is, however, unwarranted, for there had been no enumeration in 1935, and nobody could foretell when it would be made. Those who drafted and adopted the Constitution in 1935 could be certain, therefore, that the three-year period, after the earliest possible enumeration, would expire after the elections in 1938. What is more, considering that several provisions of the Constitution, particularly those on the legislative department, were amended in 1940, by establishing a bicameral Congress, those who drafted and adopted said amendment, incorporating therein the provision of the original Constitution regarding the apportionment of the districts for representatives, must have known

that the three-year period therefor would expire after the elections scheduled to be held and actually held in 1941. Thus, the events contemporaneous with the framing and ratification of the original Constitution in 1935 and of the amendment thereof in 1940 strongly indicate that the provision concerning said apportionment and the effect of the failure to make it were expected to be applied to conditions obtaining after the elections in 1935 and 1938, and even after subsequent elections. Then again, since the report of the Director of the Census on the last enumeration was submitted to the President on November 30, 1960, it follows that the three-year period to make the apportionment did not expire until 1963, or after the Presidential elections in 1961. There can be no question, therefore, that the Senate and the House of Representatives organized or constituted on December 30, 1961, were de jure bodies, and that the Members thereof were de jure officers. Pursuant to the theory of petitioners herein, upon expiration of said period of three years, or late in 1963, Congress became illegal and its Members, or at least, those of the House of Representatives, became illegal holder of their respective offices, and were de facto officers. Petitioners do not allege that the expiration of said three-year period without a reapportionment, had the effect of abrogating or repealing the legal provision creating Congress, or, at least, the House of Representatives, and are not aware of any rule or principle of law that would warrant such conclusion. Neither do they allege that the term of office of the members of said House automatically expired or that they ipso facto forfeited their seats in Congress, upon the lapse of said period for reapportionment. In fact, neither our political law, nor our law on public officers, in particular, supports the view that failure to discharge a mandatory duty, whatever it may be, would automatically result in the forfeiture of an office, in the absence of a statute to this effect. Similarly, it would seem obvious that the provision of our Election Law relative to the election of Members of Congress in 1965 were not repealed in consequence of the failure of said body to make an apportionment within three (3) years after the census of 1960. Inasmuch as the general elections in 1965 were presumably held in conformity with said Election Law, and the legal provisions creating Congress — with a House of Representatives composed of members elected by qualified voters of representative districts as they existed at the time of said elections — remained in force, we can not see how said Members of the House of Representatives can be regarded as de facto officers owing to the failure of their predecessors in office to make a reapportionment within the period aforementioned. Upon the other hand, the Constitution authorizes the impeachment of the President, the VicePresident, the Justices of the Supreme Court and the Auditor General for, inter alia, culpable violation of the Constitution,20 the enforcement of which is, not only their mandatory duty, but also, their main function. This provision indicates that, despite the violation of such mandatory duty, the title to their respective offices remains unimpaired, until dismissal or ouster pursuant to a judgment of conviction rendered in accordance with Article IX of the Constitution. In short, the loss of office or the extinction of title thereto is not automatic. Even if we assumed, however, that the present Members of Congress are merely de facto officers, it would not follow that the contested resolutions and Republic Act No. 4913 are null and void. In fact, the main reasons for the existence of the de facto doctrine is that public interest demands that acts of persons holding, under color of title, an office created by a valid statute be, likewise, deemed valid insofar as the public — as distinguished from the officer in question — is concerned.21 Indeed, otherwise, those dealing with officers and employees of the Government would be entitled to demand from them satisfactory proof of their title to the positions they hold, before dealing with them, or before recognizing their authority or obeying their commands, even if they should act within the limits of the authority vested in their respective offices, positions or employments.22 One can imagine this great inconvenience, hardships and evils that would result in the absence of the de facto doctrine. As a consequence, the title of a de facto officer cannot be assailed collaterally.23 It may not be contested except directly, by quo warranto proceedings. Neither may the validity of his acts be questioned upon the ground that he is merely a de facto officer.24 And the reasons are obvious: (1) it would be an indirect inquiry into the title to the office; and (2) the acts of a de facto officer, if within the competence of his office, are valid, insofar as the public is concerned.

It is argued that the foregoing rules do not apply to the cases at bar because the acts therein involved have not been completed and petitioners herein are not third parties. This pretense is untenable. It is inconsistent with Tayko vs. Capistrano.25 In that case, one of the parties to a suit being heard before Judge Capistrano objected to his continuing to hear the case, for the reason that, meanwhile, he had reached the age of retirement. This Court held that the objection could not be entertained, because the Judge was at least, a de facto Judge, whose title can not be assailed collaterally. It should be noted that Tayko was not a third party insofar as the Judge was concerned. Tayko was one of the parties in the aforementioned suit. Moreover, Judge Capistrano had not, as yet, finished hearing the case, much less rendered decision therein. No rights had vested in favor of the parties, in consequence of the acts of said Judge. Yet, Tayko's objection was overruled. Needless to say, insofar as Congress is concerned, its acts, as regards the Resolutions herein contested and Republic Act No. 4913, are complete. Congress has nothing else to do in connection therewith. The Court is, also, unanimous in holding that the objection under consideration is untenable. Available Alternatives to Congress Atty. Juan T. David, as amicus curiae, maintains that Congress may either propose amendments to the Constitution or call a convention for that purpose, but it can not do both, at the same time. This theory is based upon the fact that the two (2) alternatives are connected in the Constitution by the disjunctive "or." Such basis is, however, a weak one, in the absence of other circumstances — and none has brought to our attention — supporting the conclusion drawn by the amicus curiae. In fact, the term "or" has, oftentimes, been held to mean "and," or vice-versa, when the spirit or context of the law warrants it.26 It is, also, noteworthy that R. B. H. Nos. 1 and 3 propose amendments to the constitutional provision on Congress, to be submitted to the people for ratification on November 14, 1967, whereas R. B. H. No. 2 calls for a convention in 1971, to consider proposals for amendment to the Constitution, in general. In other words, the subject-matter of R. B. H. No. 2 is different from that of R B. H. Nos. 1 and 3. Moreover, the amendments proposed under R. B. H. Nos. 1 and 3, will be submitted for ratification several years before those that may be proposed by the constitutional convention called in R. B. H. No. 2. Again, although the three (3) resolutions were passed on the same date, they were taken up and put to a vote separately, or one after the other. In other words, they were not passed at the same time. In any event, we do not find, either in the Constitution, or in the history thereof anything that would negate the authority of different Congresses to approve the contested Resolutions, or of the same Congress to pass the same in, different sessions or different days of the same congressional session. And, neither has any plausible reason been advanced to justify the denial of authority to adopt said resolutions on the same day. Counsel ask: Since Congress has decided to call a constitutional convention to propose amendments, why not let the whole thing be submitted to said convention, instead of, likewise, proposing some specific amendments, to be submitted for ratification before said convention is held? The force of this argument must be conceded. but the same impugns the wisdom of the action taken by Congress, not its authority to take it. One seeming purpose thereof to permit Members of Congress to run for election as delegates to the constitutional convention and participate in the proceedings therein, without forfeiting their seats in Congress. Whether or not this should be done is a political question, not subject to review by the courts of justice. On this question there is no disagreement among the members of the Court. May Constitutional Amendments Be Submitted for Ratification in a General Election? Article XV of the Constitution provides: . . . The Congress in joint session assembled, by a vote of three-fourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments to this Constitution or call a contention 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. There is in this provision nothing to indicate that the "election" therein referred to is a "special," not a general, election. The circumstance that three previous amendments to the Constitution had been submitted to the people for ratification in special elections merely shows that Congress deemed it best to do so under the circumstances then obtaining. It does not negate its authority to submit proposed amendments for ratification in general elections. It would be better, from the viewpoint of a thorough discussion of the proposed amendments, that the same be submitted to the people's approval independently of the election of public officials. And there is no denying the fact that an adequate appraisal of the merits and demerits proposed amendments is likely to be overshadowed by the great attention usually commanded by the choice of personalities involved in general elections, particularly when provincial and municipal officials are to be chosen. But, then, these considerations are addressed to the wisdom of holding a plebiscite simultaneously with the election of public officer. They do not deny the authority of Congress to choose either alternative, as implied in the term "election" used, without qualification, in the abovequoted provision of the Constitution. Such authority becomes even more patent when we consider: (1) that the term "election," normally refers to the choice or selection of candidates to public office by popular vote; and (2) that the word used in Article V of the Constitution, concerning the grant of suffrage to women is, not "election," but "plebiscite." Petitioners maintain that the term "election," as used in Section 1 of Art. XV of the Constitution, should be construed as meaning a special election. Some members of the Court even feel that said term ("election") refers to a "plebiscite," without any "election," general or special, of public officers. They opine that constitutional amendments are, in general, if not always, of such important, if not transcendental and vital nature as to demand that the attention of the people be focused exclusively on the subject-matter thereof, so that their votes thereon may reflect no more than their intelligent, impartial and considered view on the merits of the proposed amendments, unimpaired, or, at least, undiluted by extraneous, if not insidious factors, let alone the partisan political considerations that are likely to affect the selection of elective officials. This, certainly, is a situation to be hoped for. It is a goal the attainment of which should be promoted. The ideal conditions are, however, one thing. The question whether the Constitution forbids the submission of proposals for amendment to the people except under such conditions, is another thing. Much as the writer and those who concur in this opinion admire the contrary view, they find themselves unable to subscribe thereto without, in effect, reading into the Constitution what they believe is not written thereon and can not fairly be deduced from the letter thereof, since the spirit of the law should not be a matter of sheer speculation. The majority view — although the votes in favor thereof are insufficient to declare Republic Act No. 4913 unconstitutional — as ably set forth in the opinion penned by Mr. Justice Sanchez, is, however, otherwise. Would the Submission now of the Contested Amendments to the People Violate the Spirit of the Constitution? It should be noted that the contested Resolutions were approved on March 16, 1967, so that, by November 14, 1967, our citizenry shall have had practically eight (8) months to be informed on the amendments in question. Then again, Section 2 of Republic Act No. 4913 provides: (1) that "the amendments shall be published in three consecutive issues of the Official Gazette, at least twenty days prior to the election;" (2) that "a printed copy of the proposed amendments shall be posted in a conspicuous place in every municipality, city and provincial office building and in every polling place not later than October 14, 1967," and that said copy "shall remain posted therein until after the election;"

(3) that "at least five copies of said amendment shall be kept in each polling place, to be made available for examination by the qualified electors during election day;" (4) that "when practicable, copies in the principal native languages, as may be determined by the Commission on Elections, shall be kept in each polling place;" (5) that "the Commission on Elections shall make available copies of said amendments in English, Spanish and, whenever practicable, in the principal native languages, for free distributing:" and (6) that the contested Resolutions "shall be printed in full" on the back of the ballots which shall be used on November 14, 1967. We are not prepared to say that the foregoing measures are palpably inadequate to comply with the constitutional requirement that proposals for amendment be "submitted to the people for their ratification," and that said measures are manifestly insufficient, from a constitutional viewpoint, to inform the people of the amendment sought to be made. These were substantially the same means availed of to inform the people of the subject submitted to them for ratification, from the original Constitution down to the Parity Amendment. Thus, referring to the original Constitution, Section 1 of Act No. 4200, provides: Said Constitution, with the Ordinance appended thereto, shall be published in the Official Gazette, in English and in Spanish, for three consecutive issues at least fifteen days prior to said election, and a printed copy of said Constitution, with the Ordinance appended thereto, shall be posted in a conspicuous place in each municipal and provincial government office building and in each polling place not later than the twentysecond day of April, nineteen hundred and thirty-five, and shall remain posted therein continually until after the termination of the election. At least ten copies of the Constitution with the Ordinance appended thereto, in English and in Spanish, shall be kept at each polling place available for examination by the qualified electors during election day. Whenever practicable, copies in the principal local dialects as may be determined by the Secretary of the Interior shall also be kept in each polling place. The provision concerning woman's suffrage is Section 1 of Commonwealth Act No. 34, reading: Said Article V of the Constitution shall be published in the Official Gazette, in English and in Spanish, for three consecutive issues at least fifteen days prior to said election, and the said Article V shall be posted in a conspicuous place in each municipal and provincial office building and in each polling place not later than the twenty-second day of April, nineteen and thirty-seven, and shall remain posted therein continually until after the termination of the plebiscite. At least ten copies of said Article V of the Constitution, in English and in Spanish, shall be kept at each polling place available for examination by the qualified electors during the plebiscite. Whenever practicable, copies in the principal native languages, as may be determined by the Secretary of the Interior, shall also be kept in each polling place. Similarly, Section 2, Commonwealth Act No. 517, referring to the 1940 amendments, is of the following tenor: The said amendments shall be published in English and Spanish in three consecutive issues of the Official Gazette at least twenty days prior to the election. A printed copy thereof shall be posted in a conspicuous place in every municipal, city, and provincial government office building and in every polling place not later than May eighteen, nineteen hundred and forty, and shall remain posted therein until after the election. At least ten copies of said amendments shall be kept in each polling place to be made available for examination by the qualified electors during election day. When practicable, copies in the principal native languages, as may be determined by the Secretary of the Interior, shall also be kept therein. As regards the Parity Amendment, Section 2 of Republic Act No. 73 is to the effect that:

The said amendment shall be published in English and Spanish in three consecutive issues of the Official Gazette at least twenty days prior to the election. A printed copy thereof shall be posted in a conspicuous place in every municipal, city, and provincial government office building and in every polling place not later than February eleven, nineteen hundred and forty-seven, and shall remain posted therein until after the election. At least, ten copies of the said amendment shall be kept in each polling place to be made available for examination by the qualified electors during election day. When practicable, copies in the principal native languages, as may be determined by the Commission on Elections, shall also be kept in each polling place. The main difference between the present situation and that obtaining in connection with the former proposals does not arise from the law enacted therefor. The difference springs from the circumstance that the major political parties had taken sides on previous amendments to the Constitution — except, perhaps, the woman's suffrage — and, consequently, debated thereon at some length before the plebiscite took place. Upon the other hand, said political parties have not seemingly made an issue on the amendments now being contested and have, accordingly, refrained from discussing the same in the current political campaign. Such debates or polemics as may have taken place — on a rather limited scale — on the latest proposals for amendment, have been due principally to the initiative of a few civic organizations and some militant members of our citizenry who have voiced their opinion thereon. A legislation cannot, however, be nullified by reason of the failure of certain sectors of the community to discuss it sufficiently. Its constitutionality or unconstitutionality depends upon no other factors than those existing at the time of the enactment thereof, unaffected by the acts or omissions of law enforcing agencies, particularly those that take place subsequently to the passage or approval of the law. Referring particularly to the contested proposals for amendment, the sufficiency or insufficiency, from a constitutional angle, of the submission thereof for ratification to the people on November 14, 1967, depends — in the view of those who concur in this opinion, and who, insofar as this phase of the case, constitute the minority — upon whether the provisions of Republic Act No. 4913 are such as to fairly apprise the people of the gist, the main idea or the substance of said proposals, which is — under R. B. H. No. 1 — the increase of the maximum number of seats in the House of Representatives, from 120 to 180, and — under R. B. H. No. 3 — the authority given to the members of Congress to run for delegates to the Constitutional Convention and, if elected thereto, to discharge the duties of such delegates, without forfeiting their seats in Congress. We — who constitute the minority — believe that Republic Act No. 4913 satisfies such requirement and that said Act is, accordingly, constitutional. A considerable portion of the people may not know how over 160 of the proposed maximum of representative districts are actually apportioned by R. B. H. No. 1 among the provinces in the Philippines. It is not improbable, however, that they are not interested in the details of the apportionment, or that a careful reading thereof may tend in their simple minds, to impair a clear vision thereof. Upon the other hand, those who are more sophisticated, may enlighten themselves sufficiently by reading the copies of the proposed amendments posted in public places, the copies kept in the polling places and the text of contested resolutions, as printed in full on the back of the ballots they will use. It is, likewise, conceivable that as many people, if not more, may fail to realize or envisage the effect of R. B. H. No. 3 upon the work of the Constitutional Convention or upon the future of our Republic. But, then, nobody can foretell such effect with certainty. From our viewpoint, the provisions of Article XV of the Constitution are satisfied so long as the electorate knows that R. B. H. No. 3 permits Congressmen to retain their seats as legislators, even if they should run for and assume the functions of delegates to the Convention. We are impressed by the factors considered by our distinguished and esteemed brethren, who opine otherwise, but, we feel that such factors affect the wisdom of Republic Act No. 4913 and that of R. B. H. Nos. 1 and 3, not the authority of Congress to approve the same. The system of checks and balances underlying the judicial power to strike down acts of the Executive or of Congress transcending the confines set forth in the fundamental laws is not in derogation of the principle of separation of powers, pursuant to which each department is supreme within its own sphere. The determination of the conditions under which the proposed

amendments shall be submitted to the people is concededly a matter which falls within the legislative sphere. We do not believe it has been satisfactorily shown that Congress has exceeded the limits thereof in enacting Republic Act No. 4913. Presumably, it could have done something better to enlighten the people on the subject-matter thereof. But, then, no law is perfect. No product of human endeavor is beyond improvement. Otherwise, no legislation would be constitutional and valid. Six (6) Members of this Court believe, however, said Act and R. B. H. Nos. 1 and 3 violate the spirit of the Constitution. Inasmuch as there are less than eight (8) votes in favor of declaring Republic Act 4913 and R. B. H. Nos. 1 and 3 unconstitutional and invalid, the petitions in these two (2) cases must be, as they are hereby, dismiss and the writs therein prayed for denied, without special pronouncement as to costs. It is so ordered. Makalintal and Bengzon, J.P., JJ., concur. Fernando, J., concurs fully with the above opinion, adding a few words on the question of jurisdiction.

Separate Opinions MAKALINTAL, J., concurring: I concur in the foregoing opinion of the Chief Justice. I would make some additional observations in connection with my concurrence. Sections 2 and 4 of Republic Act No. 4913 provide: Sec. 2. The amendments shall be published in three consecutive issues of the Official Gazette at least twenty days prior to the election. A printed copy thereof shall be posted in a conspicuous place in every municipality, city and provincial office building and in every polling place not later than October fourteen, nineteen hundred and sixty-seven, and shall remain posted therein until after the election. At least five copies of the said amendments shall be kept in each polling place to be made available for examination by the qualified electors during election day. When practicable, copies in the principal native languages, as may be determined by the Commission on Elections, shall be kept in each polling place. The Commission on Elections shall make available copies of each amendments in English, Spanish and, whenever practicable, in the principal native languages, for free distribution. xxx

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Sec. 4. The ballots which shall be used in the election for the approval of said amendments shall be printed in English and Pilipino and shall be in the size and form prescribed by the Commission on Elections: Provided, however, That at the back of said ballot there shall be printed in full Resolutions of both Houses of Congress Numbered One and Three, both adopted on March sixteen, nineteen hundred and sixty-seven, proposing the amendments: Provided, further, That the questionnaire appearing on the face of the ballot shall be as follows: Are you in favor of the proposed amendment to Section five of Article VI of our Constitution printed at the back of this ballot? Are you in favor of the proposed amendment to section sixteen of Article VI of our Constitution printed at the back of this ballot? To vote for the approval of the proposed amendments, the voter shall write the word "yes" or its equivalent in Pilipino or in the local dialect in the blank space after each question; to vote for the rejection thereof, he shall write the word "No" or its equivalent in Pilipino or in the local dialect.

I believe that intrinsically, that is, considered in itself and without reference to extraneous factors and circumstances, the manner prescribed in the aforesaid provisions is sufficient for the purpose of having the proposed amendments submitted to the people for their ratification, as enjoined in Section 1, Article XV of the Constitution. I am at a loss to say what else should have been required by the Act to make it adhere more closely to the constitutional requirement. Certainly it would have been out of place to provide, for instance, that government officials and employees should go out and explain the amendments to the people, or that they should be the subject of any particular means or form of public discussion. The objection of some members of the Court to Republic Act No. 4913 seems to me predicated on the fact that there are so many other issues at stake in the coming general election that the attention of the electorate, cannot be entirely focused on the proposed amendments, such that there is a failure to properly submit them for ratification within the intendment of the Constitution. If that is so, then the defect is not intrinsic in the law but in its implementation. The same manner of submitting the proposed amendments to the people for ratification may, in a different setting, be sufficient for the purpose. Yet I cannot conceive that the constitutionality or unconstitutionality of a law may be made to depend willy-nilly on factors not inherent in its provisions. For a law to be struck down as unconstitutional it must be so by reason of some irreconcilable conflict between it and the Constitution. Otherwise a law may be either valid or invalid, according to circumstances not found in its provisions, such as the zeal with which they are carried out. To such a thesis I cannot agree. The criterion would be too broad and relative, and dependent upon individual opinions that at best are subjective. What one may regard as sufficient compliance with the requirement of submission to the people, within the context of the same law, may not be so to another. The question is susceptible of as many views as there are viewers; and I do not think this Court would be justified in saying that its own view on the matter is the correct one, to the exclusion of the opinions of others. On the other hand, I reject the argument that the ratification must necessarily be in a special election or plebiscite called for that purpose alone. While such procedure is highly to be preferred, the Constitution speaks simply of "an election at which the amendments are submitted to the people for their ratification," and I do not subscribe to the restrictive interpretation that the petitioners would place on this provision, namely, that it means only a special election.

BENGZON, J.P., J., concurring: It is the glory of our institutions that they are founded upon law, that no one can exercise any authority over the rights and interests of others except pursuant to and in the manner authorized by law.1 Based upon this principle, petitioners Ramon A. Gonzales and Philippine Constitution Association (PHILCONSA) come to this Court in separate petitions. Petitioner Gonzales, as taxpayer, voter and citizen, and allegedly in representation thru class suit of all citizens of this country, filed this suit for prohibition with preliminary injunction to restrain the Commission on Elections, Director of Printing and Auditor General from implementing and/or complying with Republic Act 4913, assailing said law as unconstitutional. Petitioner PHILCONSA, as a civic, non-profit and non-partisan corporation, assails the constitutionality not only of Republic Act 4913 but also of Resolutions of Both Houses Nos. 1 and 3 of March 16, 1967. Republic Act 4913, effective June 17, 1967, is an Act submitting to the Filipino people for approval the amendments to the Constitution of the Philippines proposed by the Congress of the Philippines in Resolutions of Both Houses Numbered 1 and 3, adopted on March 16, 1967. Said Republic Act fixes the date and manner of the election at which the aforesaid proposed amendments shall be voted upon by the people, and appropriates funds for said election. Resolutions of Both Houses Nos. 1 and 3 propose two amendments to the Constitution: the first, to amend Sec. 5, Art. VI, by increasing the maximum membership of the House of Representatives from 120 to 180, apportioning 160 of said 180 seats and eliminating the

provision that Congress shall by law make an apportionment within three years after the return of every enumeration; the second, to amend Sec. 16, Art. VI, by allowing Senators and Representatives to be delegates to a constitutional convention without forfeiting their seats. Since both petitions relate to the proposed amendments, they are considered together herein. Specifically and briefly, petitioner Gonzales' objections are as follows: (1) Republic Act 4913 violates Sec. 1, Art. XV of the Constitution, in submitting the proposed amendments to the Constitution, to the people for approval, at the general election of 1967 instead of at a special election solely for that purpose; (2) Republic Act 4913 violates Sec. 1, Art. XV of the Constitution, since it was not passed with the 3/4 vote in joint session required when Congress proposes amendments to the Constitution, said Republic Act being a step in or part of the process of proposing amendments to the Constitution; and (3) Republic Act 4913 violates the due process clause of the Constitution (Sec. 1, Subsec. 1, Art. III), in not requiring that the substance of the proposed amendments be stated on the face of the ballot or otherwise rendering clear the import of the proposed amendments, such as by stating the provisions before and after said amendments, instead of printing at the back of the ballot only the proposed amendments. Since observance of Constitutional provisions on the procedure for amending the Constitution is concerned, the issue is cognizable by this Court under its powers to review an Act of Congress to determine its conformity to the fundamental law. For though the Constitution leaves Congress free to propose whatever Constitutional amendment it deems fit, so that the substance or content of said proposed amendment is a matter of policy and wisdom and thus a political question, the Constitution nevertheless imposes requisites as to the manner or procedure of proposing such amendments, e.g., the three-fourths vote requirement. Said procedure or manner, therefore, from being left to the discretion of Congress, as a matter of policy and wisdom, is fixed by the Constitution. And to that extent, all questions bearing on whether Congress in proposing amendments followed the procedure required by the Constitution, is perforce justiciable, it not being a matter of policy or wisdom. Turning then to petitioner Gonzales' first objection, Sec. 1, Art. XV clearly does not bear him on the point. It nowhere requires that the ratification be thru an election solely for that purpose. It only requires that it be at "an election at which the amendments are submitted to the people for their ratification." To join it with an election for candidates to public office, that is, to make it concurrent with such election, does not render it any less an election at which the proposed amendments are submitted to the people for their ratification. To prohibition being found in the plain terms of the Constitution, none should be inferred. Had the framers of requiring Constitution thought of requiring a special election for the purpose only of the proposed amendments, they could have said so, by qualifying the phrase with some word such as "special" or "solely" or "exclusively". They did not. It is not herein decided that such concurrence of election is wise, or that it would not have been better to provide for a separate election exclusively for the ratification of the proposed amendments. The point however is that such separate and exclusive election, even if it may be better or wiser, which again, is not for this Court to decide, is not included in the procedure required by the Constitution to amend the same. The function of the Judiciary is "not to pass upon questions of wisdom, justice or expediency of legislation".2 It is limited to determining whether the action taken by the Legislative Department has violated the Constitution or not. On this score, I am of the opinion that it has not. Petitioner Gonzales' second point is that Republic Act 4913 is deficient for not having been passed by Congress in joint session by 3/4 vote. Sec. 1, Art. XV of the Constitution provides: Sec. 1. The Congress in joint session assembled, by a vote of three-fourths of all the members of the Senate and of the House of Representatives voting separately, may propose amendments to this Constitution or call a convention for that purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of

the votes cast at an election to which the amendments are submitted to the people for their ratification. Does Republic Act 4913 propose amendments to the Constitution? If by the term "propose amendment" is meant to determine WHAT said amendment shall be, then Republic Act 4913 does not; Resolutions of Both Houses 1 and 3 already did that. If, on the other hand, it means, or also means, to provide for how, when, and by what means the amendments shall be submitted to the people for approval, then it does. A careful reading of Sec. 1, Art. XV shows that the first sense. is the one intended. Said Section has two sentences: in the first, it requires the 3/4 voting in joint session, for Congress to "propose amendments". And then in the second sentence, it provides that "such amendments . . . shall be submitted to the people for their ratification". This clearly indicates that by the term "propose amendments" in the first sentence is meant to frame the substance or the content or the WHAT-element of the amendments; for it is this and this alone that is submitted to the people for their ratification. The details of when the election shall be held for approval or rejection of the proposed amendments, or the manner of holding it, are not submitted for ratification to form part of the Constitution. Stated differently, the plain language of Section 1, Art. XV, shows that the act of proposing amendments is distinct from — albeit related to — that of submitting the amendments to the people for their ratification; and that the 3/4 voting requirement applies only to the first step, not to the second one. It follows that the submission of proposed amendments can be done thru an ordinary statute passed by Congress. The Constitution does not expressly state by whom the submission shall be undertaken; the rule is that a power not lodged elsewhere under the Constitution is deemed to reside with the legislative body, under the doctrine of residuary powers. Congress therefore validly enacted Republic Act 4913 to fix the details of the date and manner of submitting the proposed amendments to the people for their ratification. Since it does not "propose amendments" in the sense referred to by Sec. 1, Art. XV of the Constitution, but merely provides for how and when the amendments, already proposed, are going to be voted upon, the same does not need the 3/4 vote in joint session required in Sec. 1, Art. XV of the Constitution. Furthermore, Republic Act 4913 is an appropriation measure. Sec. 6 thereof appropriates P1,000,000 for carrying out its provisions. Sec. 18, Art. VI of the Constitution states that "All appropriation . . . bills shall originate exclusively in the House of Representatives". Republic Act 4913, therefore, could not have been validly adopted in a joint session, reinforcing the view that Sec. 1, Art. XV does not apply to such a measure providing for the holding of the election to ratify the proposed amendments, which must perforce appropriate funds for its purpose. Petitioner Gonzales contends, thirdly, that Republic Act 4913 offends against substantive due process. An examination of the provisions of the law shows no violation of the due process clause of the Constitution. The publication in the Official Gazette at least 20 days before the election, the posting of notices in public buildings not later than October 14, 1967, to remain posted until after the elections, the placing of copies of the proposed amendments in the polling places, aside from printing the same at the back of the ballot, provide sufficient opportunity to the voters to cast an intelligent vote on the proposal. Due process refers only to providing fair opportunity; it does not guarantee that the opportunity given will in fact be availed of; that is the look-out of the voter and the responsibility of the citizen. As long as fair and reasonable opportunity to be informed is given, and it is, the due process clause is not infringed. Non-printing of the provisions to be amended as they now stand, and the printing of the full proposed amendments at the back of the ballot instead of the substance thereof at the face of the ballot, do not deprive the voter of fair opportunity to be informed. The present wording of the Constitution is not being veiled or suppressed from him; he is conclusively presumed to know them and they are available should he want to check on what he is conclusively presumed to know. Should the voters choose to remain ignorant of the present Constitution, the fault does not lie with Congress. For opportunity to familiarize oneself with the Constitution as it stands has been available thru all these years. Perhaps it would have been more convenient for the voters if the present wording of the provisions were also to be printed on the ballot. The same however is a matter of policy. As long as the method adopted provides sufficiently reasonable chance to intelligently vote on the amendments, and I think it does in this case, it is not constitutionally defective.

Petitioner Gonzales' other arguments touch on the merits or wisdom of the proposed amendments. These are for the people in their sovereign capacity to decide, not for this Court. Two arguments were further advanced: first, that Congress cannot both call a convention and propose amendments; second, that the present Congress is a de facto one, since no apportionment law was adopted within three years from the last census of 1960, so that the Representatives elected in 1961 are de facto officers only. Not being de jure, they cannot propose amendments, it is argued. As to the first point, Sec. 1 of Art. XV states that Congress "may propose amendments or call a convention for that purpose". The term "or", however, is frequently used as having the same meaning as "and" particularly in permissive, affirmative sentences so that the interpretation of the word "or" as "and" in the Constitution in such use will not change its meaning (Vicksburg S. & P. R. Co. v. Goodenough, 32 So. 404, 411, 108 La, 442). And it should be pointed out that the resolutions proposing amendments (R.B.H. Nos. 1 and 3) are different from that calling for a convention (R.B.H. No. 2). Surely, if Congress deems it better or wise to amend the Constitution before a convention called for is elected, it should not be fettered from doing so. For our purposes in this case, suffice it to note that the Constitution does not prohibit it from doing so. As to the second argument, it is also true that Sec. 5 of Art. VI of the Constitution provides in part that "The Congress shall by law make an apportionment within three years after the return of every enumeration, and not otherwise". It however further states in the next sentence: "Until such apportionment shall have been made, the House of Representatives shall have the same number of Members as that fixed by law for the National Assembly, who shall be elected by the qualified electors from the present assembly districts." The failure of Congress, therefore, to pass a valid redistricting law since the time the above provision was adopted, does not render the present districting illegal or unconstitutional. For the Constitution itself provides for its continuance in such case, rendering legal and de jure the status quo. For the above reasons, I vote to uphold the constitutionality of Republic Act 4913, and fully concur with the opinion of the Chief Justice.

FERNANDO, J., concurring: At the outset, we are faced with a question of jurisdiction. The opinion prepared by the Chief Justice discusses the matter with a fullness that erases doubts and misgivings and clarifies the applicable principles. A few words may however be added. We start from the premise that only where it can be shown that the question is to be solved by public opinion or where the matter has been left by the Constitution to the sole discretion of any of the political branches, as was so clearly stated by the then Justice Concepcion in Tañada v. Cuenco,1 may this Court avoid passing on the issue before it. Whatever may be said about the present question, it is hard to speak with certitude considering Article XV, that Congress may be entrusted with the full and uncontrolled discretion on the procedure leading to proposals for an amendment of the Constitution. It may be said however that in Mabanag v. Lopez Vito,2 this Court through Justice Tuason followed Coleman v. Miller,3 in its holding that certain aspects of the amending process may be considered political. His opinion quoted with approval the view of Justice Black, to which three other members of the United States Supreme Court agreed, that the process itself is political in its entirety, "from submission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control or interference at any point." In a sense that would solve the matter neatly. The judiciary would be spared the at times arduous and in every case soulsearching process of determining whether the procedure for amendments required by the Constitution has been followed. At the same time, without impugning the motives of Congress, which cannot be judicially inquired into at any rate, it is not beyond the realm of possibility that a failure to observe the

requirements of Article XV would occur. In the event that judicial intervention is sought, to rely automatically on the theory of political question to avoid passing on such a matter of delicacy might under certain circumstances be considered, and rightly so, as nothing less than judicial abdication or surrender. What appears regrettable is that a major opinion of an esteemed jurist, the late Justice Tuason, would no longer be controlling. There is comfort in the thought that the view that then prevailed was itself a product of the times. It could very well be that considering the circumstances existing in 1947 as well as the particular amendment sought to be incorporated in the Constitution, the parity rights ordinance, the better part of wisdom in view of the grave economic situation then confronting the country would be to avoid the existence of any obstacle to its being submitted for ratification. Moreover, the Republic being less than a year old, American Supreme Court opinions on constitutional questions were-invariably accorded uncritical acceptance. Thus the approach followed by Justice Tuason is not difficult to understand. It may be said that there is less propensity now, which is all to the good, for this Court to accord that much deference to constitutional views coming from the quarter. Nor is this mode of viewing the opinion of Justice Tuason to do injustice to his memory. For as he stated in another major opinion in Araneta v. Dinglasan,4 in ascertaining the meaning to be given the Emergency Powers Act,5 one should not ignore what would ensue if a particular mode of construction were followed. As he so emphatically stated, "We test a rule by its results." The consequences of a judicial veto on the then proposed amendment on the economic survival of the country, an erroneous appraisal it turned out later, constituted an effective argument for its submission. Why not then consider the question political and let the people decide? That assumption could have been indulged in. It could very well be the inarticulate major premise. For many it did bear the stamp of judicial statesmanship. The opinion of Chief Justice Concepcion renders crystal-clear why as of this date and in the foreseeable future judicial inquiry to assure the utmost compliance with the constitutional requirement would be a more appropriate response.

SANCHEZ, J., in separate opinion: Right at the outset, the writer expresses his deep appreciation to Mr. Justice Calixto O. Zaldivar and Mr. Justice Fred Ruiz Castro for their invaluable contribution to the substance and form of the opinion which follows. Directly under attack in this, a petition for prohibition, is the constitutionality of Republic Act 4913, approved on June 17, 1967. This Act seeks to implement Resolutions 1 and 3 adopted by the Senate and the House of Representatives on March 16, 1967 with the end in view of amending vital portions of the Constitution. Since the problem here presented has its roots in the resolutions aforesaid of both houses of Congress, it may just as well be that we recite in brief the salient features thereof. Resolution No. 1 increases the membership of the House of Representatives from 120 to 180 members, and immediately apportions 160 seats. A companion resolution is Resolution No. 3 which permits Senators and Congressmen — without forfeiting their seats in Congress — to be members of the Constitutional Convention1 to be convened, as provided in another resolution — Resolution No. 2. Parenthetically, two of these proposed amendments to the Constitution (Resolutions I and 3) are to be submitted to the people for their ratification next November 14, 1967. Resolution No. 2 just adverted to calls for a constitutional convention also to propose amendments to the Constitution. The delegates thereto are to be elected on the second Tuesday of November 1970; the convention to sit on June 1, 1971; and the amendments proposed by the convention to be submitted to the people thereafter for their ratification. Of importance now are the proposed amendments increasing the number of members of the House of representatives under Resolution No. 1, and that in Resolution No. 3 which gives

Senators and Congressmen the right to sit as members of the constitutional convention to be convened on June 1, 1971. Because, these are the two amendments to be submitted to the people in the general elections soon to be held on November 14, 1967, upon the provisions of Section 1, Republic Act 4913, which reads: The amendments to the Constitution of the Philippines proposed by the Congress of the Philippines in Resolutions of both Houses Numbered One and Three, both adopted on March sixteen, nineteen hundred and sixty- seven, shall be submitted to the people for approval at the general election which shall be held on November fourteen, nineteen hundred and sixty- seven, in accordance with the provisions of this Act. Republic Act 4913 projects the basic angle of the problem thrust upon us — the manner in which the amendments proposed by Congress just adverted to be brought to the people's attention. First, to the controlling constitutional precept. In order that proposed amendments to the Constitution may become effective, Section 1, Article XV thereof commands that such amendments must be "approved by a majority of the votes cast at an election at which amendments are submitted to the people for their ratification."2 The accent is on two words complementing each other, namely, "submitted" and "ratification." 1. We are forced to take a long hard look at the core of the problem facing us. And this, because the amendments submitted are transcendental and encompassing. The ceiling of the number of Congressmen is sought to be elevated from 120 to 180 members; and Senators and Congressmen may run in constitutional conventions without forfeiting their seats. These certainly affect the people as a whole. The increase in the number of Congressmen has its proportional increase in the people's tax burdens. They may not look at this with favor, what with the constitutional provision (Section 5, Article VI) that Congress "shall by law make an apportionment", without the necessity of disturbing the present constitutionally provided number of Congressmen. People in Quezon City, for instance, may balk at the specific apportionment of the 160 seats set forth in Resolution No. 1, and ask for a Congressman of their own, on the theory of equal representation. And then, people may question the propriety of permitting the increased 180 Congressmen from taking part in the forthcoming constitutional convention and future conventions for fear that they may dominate its proceedings. They may entertain the belief that, if at all, increase in the number of Congressmen should be a proper topic for deliberation in a constitutional convention which, anyway, will soon take place. They probably would ask: Why the hurry? These ponderables require the people's close scrutiny. 2. With these as backdrop, we perforce go into the philosophy behind the constitutional directive that constitutional amendments be submitted to the people for their ratification. A constitutional amendment is not a temporary expedient. Unlike a statute which may suffer amendments three or more times in the same year, it is intended to stand the test of time. It is an expression of the people's sovereign will. And so, our approach to the problem of the mechanics of submission for ratification of amendments is that reasoning on the basis of the spirit of the Constitution is just as important as reasoning by a strict adherence to the phraseology thereof. We underscore this, because it is within the realm of possibility that a Constitution maybe overhauled. Supposing three-fourths of the Constitution is to be amended. Or, the proposal is to eliminate the all important; Bill of Rights in its entirety. We believe it to be beyond debate that in some such situations the amendments ought to call for a constitutional convention rather than a legislative proposal. And yet, nothing there is in the books or in the Constitution itself. which would require such amendments to be adopted by a constitutional convention. And then, too, the spirit of the supreme enactment, we are sure, forbids that proposals therefor be initiated by Congress and thereafter presented to the people for their ratification. In the context just adverted to, 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 in insidious influences. We believe, the word "submitted" can only mean that the government, within its maximum capabilities, should strain every effort to inform very 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. Aptly had it been said: . . . 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 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 the 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." Am. Law Rev. 1889, p. 3113 3. Tersely put, the issue before us funnels down to this proposition: 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 can it be said that in accordance with the constitutional mandate, "the amendments are submitted to the people for their ratification?" Our answer is "No". We examine Republic Act 4913, approved on June 17, 1967 — the statute that submits to the people the constitutional amendments proposed by Congress in Resolutions 1 and 3. Section 2 of the Act provides the manner of propagation of the nature of the amendments throughout the country. There are five parts in said Section 2, viz: (1) The amendment shall be published in three consecutive issues of the Official Gazette at least twenty days prior to the election. (2) A printed copy thereof shall be posted in a conspicuous place in every municipality, city and provincial office building and in every polling place not later than October fourteen, nineteen hundred and sixty-seven, and shall remain posted therein until after the election. (3) At least five copies of the said amendments shall be kept in each polling place to be made available for examination by the qualified electors during election day. (4) When practicable, copies in the principal native languages, as may be determined by the Commission on Elections, shall be kept in each polling place. (5) The Commission on Elections shall make available copies of said amendments in English, Spanish and, whenever practicable, in the principal native languages, for free distribution. A question that comes to mind is whether the procedure for dissemination of information regarding the amendments effectively brings the matter to the people. A dissection of the

mechanics yields disturbing thoughts. First, the Official Gazette is not widely read. It does not reach the barrios. And even if it reaches the barrios, is it available to all? And if it is, would all under stand English? Second, it should be conceded that many citizens, especially those in the outlying barrios, do not go to municipal, city and/or provincial office buildings, except on special occasions like paying taxes or responding to court summonses. And if they do, will they notice the printed amendments posted on the bulletin board? And if they do notice, such copy again is in English (sample submitted to this Court by the Solicitor General) for, anyway, the statute does not require that it be in any other language or dialect. Third, it would not help any if at least five copies are kept in the polling place for examination by qualified electors during election day. As petitioner puts it, voting time is not study time. And then, who can enter the polling place, except those who are about to vote? Fourth, copies in the principal native languages shall be kept in each polling place. But this is not, as Section 2 itself implies, in the nature of a command because such copies shall be kept therein only "when practicable" and "as may be determined by the Commission on Elections." Even if it be said that these are available before election, a citizen may not intrude into the school building where the polling places are usually located without disturbing the school classes being held there. Fifth, it is true that the Comelec is directed to make available copies of such amendments in English, Spanish or whenever practicable, in the principal native languages, for free distribution. However, Comelec is not required to actively distribute them to the people. This is significant as to people in the provinces, especially those in the far-flung barrios who are completely unmindful of the discussions that go on now and then in the cities and centers of population on the merits and demerits of the amendments. Rather, Comelec, in this case, is but a passive agency which may hold copies available, but which copies may notbe distributed at all. Finally, it is of common knowledge that Comelec has more than its hands full in these pre-election days. They cannot possibly make extensive distribution. Voters will soon go to the polls to say "yes" or "no". But even the official sample ballot submitted to this Court would show that only the amendments are printed at the back. And this, in pursuance to Republic Act 4913 itself. Surely enough, the voters do not have the benefit of proper notice of the proposed amendments thru dissemination by publication in extenso. People do not have at hand the necessary data on which to base their stand on the merits and demerits of said amendments. We, therefore, hold that there is no proper submission of the proposed constitutional amendments within the meaning and intendment of Section 1, Article XV of the Constitution. 4. Contemporary history is witness to the fact that during the present election campaign the focus is on the election of candidates. The constitutional amendments are crowded out. Candidates on the homestretch, and their leaders as well as the voters, gear their undivided efforts to the election of officials; the constitutional amendments cut no ice with them. The truth is that even in the ballot itself, the space accorded to the casting of "yes" or "no" vote would give one the impression that the constitutional amendments are but a bootstrap to the electoral ballot. Worse still, the fortunes of many elective officials, on the national and local levels, are inextricably intertwined with the results of the votes on the plebiscite. In a clash between votes for a candidate and conscience on the merits and demerits of the constitutional amendments, we are quite certain that it is the latter that will be dented. 5. That proper submission of amendments to the people to enable them to equally ratify them properly is the meat of the constitutional requirement, is reflected in the sequence of uniform past practices. The Constitution had been amended thrice — in 1939, 1940 and 1947. In each case, the amendments were embodied in resolutions adopted by the Legislature, which thereafter fixed the dates at which the proposed amendments were to be ratified or rejected. These plebiscites have been referred to either as an "election" or "general election". At no time, however, was the vote for the amendments of the Constitution held simultaneously with the election officials, national or local. Even with regard to the 1947 parity amendment; the record shows that the sole issue was the 1947 parity amendment; and the special elections simultaneously held in only three provinces, Iloilo, Pangasinan and Bukidnon, were merely incidental thereto.

In the end we say that the people are the last ramparts that guard against indiscriminate changes in the Constitution that is theirs. Is it too much to ask that reasonable guarantee be made that in the matter of the alterations of the law of the land, their true voice be heard? The answer perhaps is best expressed in the following thoughts: "It must be remembered that the Constitution is the people's enactment. No proposed change can become effective unless they will it so through the compelling force of need of it and desire for it."4 For the reasons given, our vote is that Republic Act 4913 must be stricken down as in violation of the Constitution. Zaldivar and Castro, Reyes, J.B.L., Dizon and Angeles, JJ., concur in the result.

JJ., concur.

REYES, J.B.L., J., concurring: I concur in the result with the opinion penned by Mr. Justice Sanchez. To approve a mere proposal to amend the Constitution requires (Art. XV) a three-fourths (3/4) vote of all the members of each legislative chamber, the highest majority ever demanded by the fundamental charter, one higher even than that required in order to declare war (Sec. 24, Article VI), with all its dire consequences. If such an overwhelming majority, that was evidently exacted in order to impress upon all and sundry the seriousness of every constitutional amendment, is asked for a proposal to amend the Constitution, I find it impossible to believe that it was ever intended by its framers that such amendment should be submitted and ratified by just "a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification", if the concentration of the people's attention thereon to be diverted by other extraneous issues, such as the choice of local and national officials. The framers of the Constitution, aware of the fundamental character thereof, and of the need of giving it as much stability as is practicable, could have only meant that any amendments thereto should be debated, considered and voted upon at an election wherein the people could devote undivided attention to the subject. That this was the intention and the spirit of the provision is corroborated in the case of all other constitutional amendments in the past, that were submitted to and approved in special elections exclusively devoted to the issue whether the legislature's amendatory proposals should be ratified or not. Dizon, Angeles, Zaldivar and Castro, JJ., concur. G.R. No. 90878

January 29, 1990

PABLITO V. vs. THE COMMISSION ON ELECTIONS, respondent.

SANIDAD, petitioner,

MEDIALDEA, J.: This is a petition for certiorari assailing the constitutionality of Section 19 of Comelec Resolution No. 2167 on the ground that it violates the constitutional guarantees of the freedom of expression and of the press. On October 23, 1989, Republic Act No. 6766, entitled "AN ACT PROVIDING FOR AN ORGANIC ACT FOR THE CORDILLERA AUTONOMOUS REGION" was enacted into law. Pursuant to said law, the City of Baguio and the Cordilleras which consist of the provinces of Benguet, Mountain Province, Ifugao, Abra and Kalinga-Apayao, all comprising the Cordillera Autonomous Region, shall take part in a plebiscite for the ratification of said Organic Act originally scheduled last December 27, 1989 which was, however, reset to January 30, 1990 by virtue of Comelec Resolution No. 2226 dated December 27, 1989.

The Commission on Elections, by virtue of the power vested by the 1987 Constitution, the Omnibus Election Code (BP 881), said R.A. 6766 and other pertinent election laws, promulgated Resolution No. 2167, to govern the conduct of the plebiscite on the said Organic Act for the Cordillera Autonomous Region. In a petition dated November 20, 1989, herein petitioner Pablito V. Sanidad, who claims to be a newspaper columnist of the "OVERVIEW" for the BAGUIO MIDLAND COURIER, a weekly newspaper circulated in the City of Baguio and the Cordilleras, assailed the constitutionality of Section 19 of Comelec Resolution No. 2167, which provides: Section 19. Prohibition on columnists, commentators or announcers. — During the plebiscite campaign period, on the day before and on the plebiscite day, no mass media columnist, commentator, announcer or personality shall use his column or radio or television time to campaign for or against the plebiscite issues. It is alleged by petitioner that said provision is void and unconstitutional because it violates the constitutional guarantees of the freedom of expression and of the press enshrined in the Constitution. Unlike a regular news reporter or news correspondent who merely reports the news, petitioner maintains that as a columnist, his column obviously and necessarily contains and reflects his opinions, views and beliefs on any issue or subject about which he writes. Petitioner believes that said provision of COMELEC Resolution No. 2167 constitutes a prior restraint on his constitutionally-guaranteed freedom of the press and further imposes subsequent punishment for those who may violate it because it contains a penal provision, as follows: Article XIII, Section 122, Election Offenses and Banned Acts or Activities. — Except to the extent that the same may not be applicable plebiscite. the banned acts/activities and offenses defined in and penalized by the Omnibus Election Code ('Sections 261, 262, 263 and Article' XXII, B.P. Blg. 881) and the pertinent provisions of R.A. No. 6646 shall be aplicable to the plebiscite governed by this Resolution. Petitioner likewise maintains that if media practitioners were to express their views, beliefs and opinions on the issue submitted to a plebiscite, it would in fact help in the government drive and desire to disseminate information, and hear, as well as ventilate, all sides of the issue. On November 28, 1989, We issued a temporary restraining order enjoining respondent Commission on Elections from enforcing and implementing Section 19 of Resolution No. 2167. We also required the respondent to comment on the petition. On January 9, 1990, respondent Commission on Elections, through the Office of the Solicitor General filed its Comment. Respondent Comelec maintains that the questioned provision of Comelec Resolution No. 2167 is not violative of the constitutional guarantees of the freedom of expression and of the press. Rather it is a valid implementation of the power of the Comelec to supervise and regulate media during election or plebiscite periods as enunciated in Article IX-C, Section 4 of the 1987 Constitution of the Republic of the Philippines. It is stated further by respondent that Resolution 2167 does not absolutely bar petitioner from expressing his views and/or from campaigning for or against the Organic Act. He may still express his views or campaign for or against the act through the Comelec space and airtime. This is provided under Sections 90 and 92 of BP 881: Section 90. Comelec Space. — Commission shall procure space in at least one newspaper of general circulation in every province or city: Provided, however, That in the absence of said newspaper, publication shall be done in any other magazine or periodical in said province or city, which shall be known as "Comelec Space" wherein candidates can announce their candidacy. Said space shall be allocated, free of charge equally and impartially within the area in which the newspaper is circulated.

Section 92. Comelec Time. — The Commission shall procure radio and television time to be known as "Comelec Time" which shall be allocated equally and impartially among the candidates within the area of coverage of all radio and television stations. For this purpose, the franchise of all radio broadcasting and television stations are hereby amended so as to provide radio or television time, free of charge, during the period of the campaign. Respondent Comelec has relied much on Article IX-C of the 1987 Constitution and Section 11 of R.A. 6646 as the basis for the promulgation of the questioned Section 19 of Comelec Resolution 2167. Article IX-C of the 1987 Constitution provides: The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful and credible elections. Similarly, Section 11 of Republic Act No. 6646 (The Electoral Reform Law of 1987) likewise provides: Prohibited forms of election Propaganda. — In addition to the forms of election propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful: ... (b) for any newspaper, radio, broadcasting or television station, or other mass media, or any person making use of the mass media to sell or to give free of charge print space or air time for campaign or other political purposes except to the Commission as provided under Sections 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist, commentator, announcer, or personality who is a candidate for any elective office shall take a leave of absence from his work as such during the campaign period. (Emphasis ours) However, it is clear from Art. IX-C of the 1987 Constitution that what was granted to the Comelec was the power to supervise and regulate the use and enjoyment of franchises, permits or other grants issued for the operation of transportation or other public utilities, media of communication or information to the end that equal opportunity, time and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates are ensured. The evil sought to be prevented by this provision is the possibility that a franchise holder may favor or give any undue advantage to a candidate in terms of advertising space or radio or television time. This is also the reason why a "columnist, commentator, announcer or personality, who is a candidate for any elective office is required to take a leave of absence from his work during the campaign period (2nd par. Section 11(b) R.A. 6646). It cannot be gainsaid that a columnist or commentator who is also a candidate would be more exposed to the voters to the prejudice of other candidates unless required to take a leave of absence. However, neither Article IX-C of the Constitution nor Section 11 (b), 2nd par. of R.A. 6646 can be construed to mean that the Comelec has also been granted the right to supervise and regulate the exercise by media practitioners themselves of their right to expression during plebiscite periods. Media practitioners exercising their freedom of expression during plebiscite periods are neither the franchise holders nor the candidates. In fact, there are no candidates involved in a plebiscite. Therefore, Section 19 of Comelec Resolution No. 2167 has no statutory basis.

In the case of Badoy, Jr. v. Comelec, L-32546, Oct. 16, 1970, where the constitutionality of the prohibition of certain forms of election propaganda was assailed, We ruled therein that the prohibition is a valid exercise of the police power of the state "to prevent the perversion and prostitution of the electoral apparatus and of the denial of equal protection of the laws." The evil sought to be prevented in an election which led to Our ruling in that case does not obtain in a plebiscite. In a plebiscite, votes are taken in an area on some special political matter unlike in an election where votes are cast in favor of specific persons for some office. In other words, the electorate is asked to vote for or against issues, not candidates in a plebiscite. Anent respondent Comelec's argument that Section 19 of Comelec Resolution 2167 does not absolutely bar petitioner-columnist from expressing his views and/or from campaigning for or against the organic act because he may do so through the Comelec space and/or Comelec radio/television time, the same is not meritorious. While the limitation does not absolutely bar petitioner's freedom of expression, it is still a restriction on his choice of the forum where he may express his view. No reason was advanced by respondent to justify such abridgement. We hold that this form of regulation is tantamount to a restriction of petitioner's freedom of expression for no justifiable reason. Plebiscite issues are matters of public concern and importance. The people's right to be informed and to be able to freely and intelligently make a decision would be better served by access to an unabridged discussion of the issues, including the forum. The people affected by the issues presented in a plebiscite should not be unduly burdened by restrictions on the forum where the right to expression may be exercised. Comelec spaces and Comelec radio time may provide a forum for expression but they do not guarantee full dissemination of information to the public concerned because they are limited to either specific portions in newspapers or to specific radio or television times. ACCORDINGLY, the instant petition is GRANTED. Section 19 of Comelec Resolution No. 2167 is declared null and void and unconstitutional. The restraining order herein issued is hereby made permanent. SO ORDERED. G.R. No. 97710 September 26, 1991 DR. EMIGDIO A. BONDOC, petitioner, vs. REPRESENTATIVES MARCIANO M. PINEDA, MAGDALENO M. PALACOL, COL. JUANITO G. CAMASURA, JR., or any other representative who may be appointed vice representative Juanita G. Camasura, Jr., and THE HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL, respondents. Estelito P. Mendoza, Romulo C. Felixmera and Horacio S.J. Apostol for petitioner. Nicanor S. Bautista for respondent Marciano M. Pineda. Benedicto R. Palacol for respondent M.M. Palacol.

GRIO-AQUIÑO, J.:p This case involves a question of power. May the House of Representatives, at the request of the dominant political party therein, change that party's representation in the House Electoral Tribunal to thwart the promulgation of a decision freely reached by the tribunal in an election contest pending therein? May the Supreme Court review and annul that action of the House? Even the Supreme Court of the United States over a century ago, in Marbury vs. Madison, 2 L. ed. 60 (1803), had hesitated to embark upon a legal investigation of the acts of the other two branches of the Government, finding it "peculiarly irksome as well as delicate" because it could

be considered by some as "an attempt to intrude" into the affairs of the other two and to intermeddle with their prerogatives. In the past, the Supreme Court, as head of the third and weakest branch of our Government, was all too willing to avoid a political confrontation with the other two branches by burying its head ostrich-like in the sands of the "political question" doctrine, the accepted meaning of which is that 'where the matter involved is left to a decision by the people acting in their sovereign capacity or to the sole determination by either or both the legislative or executive branch of the government, it is beyond judicial cognizance. Thus it was that in suits where the party proceeded against was either the President or Congress, or any of its branches for that matter, the courts refused to act." (Aquino vs. Ponce Enrile, 59 SCRA 183, 196.) In time, however, the duty of the courts to look into the constitutionality and validity of legislative or executive action, especially when private rights are affected came to be recognized. As we pointed out in the celebrated Aquino case, a showing that plenary power is granted either department of government may not be an obstacle to judicial inquiry, for the improvident exercise or the abuse thereof may give rise to a justiciable controversy. Since "a constitutional grant of authority is not usually unrestricted, limitations being provided for as to what may be done and how it is to be accomplished, necessarily then, it becomes the responsibility of the courts to ascertain whether the two coordinate branches have adhered to the mandate of the fundamental law. The question thus posed is judicial rather than political. The duty remains to assure that the supremacy of the Constitution is upheld" (Aquino vs. Ponce Enrile, 59 SCRA 183, 196). That duty is a part of the judicial power vested in the courts by an express grant under Section 1, Article VIII of the 1987 Constitution of the Philippines which defines judicial power as both authority and duty of the courts '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." The power and duty of the courts to nullify in appropriate cases, the actions of the executive and legislative branches of the Government, does not mean that the courts are superior to the President and the Legislature. It does mean though that the judiciary may not shirk "the irksome task" of inquiring into the constitutionality and legality of legislative or executive action when a justiciable controversy is brought before the courts by someone who has been aggrieved or prejudiced by such action, as in this case. It is — a plain exercise of the judicial power, that power vested in courts to enable them to administer justice according to law. ... It is simply a necessary concomitant of the power to hear and dispose of a case or controversy properly before the court, to the determination of which must be brought the test and measure of the law. (Vera vs. Avelino, 77 Phil. 192, 203.) In the local and congressional elections held on May 11, 1987, Marciano M. Pineda of the Laban ng Demokratikong Pilipino (LDP) and Dr. Emigdio A. Bondoc of the Nacionalista Party (NP) were rival candidates for the position of Representative for the Fourth District of the province of Pampanga. Each received the following votes in the canvass made by the Provincial Board of Canvassers of Pampanga: Marciano M. Pineda.................... 31,700 votes Emigdio A. Bondoc..................... 28,400 votes Difference...................................... 3,300 votes On May 19, 1987, Pineda was proclaimed winner in the election. In due time, Bondoc filed a protest (HRET Case No. 25) in the House of Representatives Electoral Tribunal ( for short) which is composed of nine (9) members, three of whom are Justices of the Supreme Court and the remaining six are members of the House of Representatives chosen on the basis of

proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein (Sec. 17, Art. VI, 1987 Constitution) as follows: AMEURFINA M. HERRERA

Chairman

Associate Justice Supreme Court ISAGANI A. CRUZ

Member

Associate Justice Supreme Court FLORENTINO P. FELICIANO

Member

Associate Justice Supreme Court HONORATO Y. AQUINO

Member

Congressman 1st District Benguet LDP DAVID A. PONCE DE LEON

Member

Congressman 1st District Palawan LDP SIMEON E. GARCIA, JR.

Member

Congressman 2nd District Nueva Ecija LDP JUANITO G. CAMASURA, JR.

Member

Congressman 1st District Davao del Sur LDP JOSE E. CALINGASAN

Member

Congressman 4th District Batangas LDP ANTONIO H. CERILLES Congressman 2nd District Zamboanga del Sur

Member

(formerly GAD, now NP) After the revision of the ballots, the presentation of evidence, and submission of memoranda, Bondoc's protest was submitted for decision in July, 1989. By October 1990, a decision had been reached in which Bondoc won over Pineda by a margin of twenty-three (23) votes. At that point, the LDP members in the Tribunal insisted on a reappreciation and recount of the ballots cast in some precincts, thereby delaying by at least four (4) months the finalization of the decision in the case. The reexamination and re-appreciation of the ballots resulted in increasing Bondoc's lead over Pineda to 107 votes. Congressman Camasura voted with the Supreme Court Justices and Congressman Cerilles to proclaim Bondoc the winner of the contest. Moved by candor and honesty, Congressman Camasura revealed on March 4, 1991, to his 'Chief," Congressman Jose S. Cojuangco, Jr., LDP Secretary General, not only the final tally in the Bondoc case but also that he voted for Bondoc "consistent with truth and justice and selfrespect," and to honor a "gentlemen's agreement" among the members of the HRET that they would "abide by the result of the appreciation of the contested ballot1 Congressman Camasura's revelation stirred a hornets' nest in the LDP which went into a flurry of plotting appropriate moves to neutralize the pro-Bondoc majority in the Tribunal. On March 5, 1991, the HRET issued a Notice of Promulgation of Decision on March 14, 1991 at 2:30 P.M. in HRET Case No. 25. A copy of the notice was received by Bondoc's counsel on March 6, 1991. On March 13, 1991, the eve of the promulgation of the Bondoc decision, Congressman Cojuangco informed Congressman Camasura by letter2 that on February 28, 1991 yet, the LDP Davao del Sur Chapter at Digos, Davao del Sur, by Resolution No. 03-91 had already expelled him and Congressman Benjamin Bautista from the LDP for having allegedly helped to organize the Partido Pilipino of Eduardo "Danding" Cojuangco, and for allegedly having invited LDP members in Davao del Sur to join said political party; and that as those acts are "not only inimical uncalled for, unethical and immoral, but also a complete betrayal to (sic) the cause and objectives, and loyalty to LDP," in a meeting on March 12, 1991, the LDP Executive Committee unanimously confirmed the expulsions.3 At the same time, Congressman Cojuangco notified Speaker Ramon V. Mitra about the ouster of the two congressmen from the LDP, and asked the House of Representatives, through the Speaker, to take note of it 'especially in matters where party membership is a prerequisite.4 At 9:45 in the morning of March 4, 1991, the Chairman of the Tribunal, Mme. Justice Armeurfina M. Herrera, received the following letter dated March 13, 1991, from the Office of the Secretary General of the House of Representatives, informing the Tribunal that on the basis of the letter from the LDP, the House of Representatives, during its plenary session on March 13, 1991, decided to withdraw the nomination and rescind the election of Congressman Camasura, Jr. to the House of Electoral Tribunal. The letter reads as follows: 13 March 1991 Honorable Justice Ameurfina Melencio-Herrera Chairman House of Representatives Electoral Tribunal Constitution Hills Quezon City Dear Honorable Justice Melencio-Herrera: I have the honor to notify the House of Electoral Tribunal of the decision of the House of Representatives during its plenary session on 13 March 1991, to withdraw the nomination and to rescind the election of the Honorable Juanito G. Camasura, Jr. to the House Electoral Tribunal on the basis of an LDP communication which is selfexplanatory and copies of which are hereto attached.

Thank you. For the Secretary-General (SGD.) Josefina D. Azarcon Officer-in-charge Operations Department (p. 10, Rollo.) Justices Herrera, Cruz, and Feliciano promptly apprised the Chief Justice and Associate Justices of the Supreme Court in writing, of this "distressing development' and asked to be relieved from their assignments in the HRET because — By the above action (of the House) the promulgation of the decision of the Tribunal in the electoral protest entitled "Bondoc v. Pineda" (HRET Case No. 25), previously scheduled for 14 March 1991, is sought to be aborted (See the Consolidated Bank and Trust Corporation v. Hon. Intermediate Appellate Court, G.R. No. 73777-78 promulgated 12 September 1990). Even if there were no legal impediment to its promulgation, the decision which was reached on a 5 to 4 vote may now be confidently expected to be overturned on a motion for reconsideration by the party-litigant which would have been defeated. The decision in Bondoc v. Pineda was ready as early as October 1990 with a margin of 23 votes in favor of protestant Bondoc. Because some members of the Tribunal requested re-appreciation of some ballots, the finalization of the decision had to be deferred by at least 4 months. With the re-appreciation completed, the decision, now with a margin of 107 votes in favor of protestant Bondoc, and concurred in by Justices Ameurfina A. MelencioHerrera, Isagani A. Cruz and Florentino P. Feliciano, and Congressmen Juanita G. Camasura and Antonio H. Cerilles, is set for promulgation on 14 March 1991, with Congressmen Honorato Y. Aquino, David A. Ponce de Leon Simeon E. Garcia, Jr. and Jose E. Calingasan, dissenting. Congressman Casamura's vote in the Bondoc v. Pineda case was, in our view, a conscience vote, for which he earned the respect of the Tribunal but also the loss of the confidence of the leader of his party. Under the above circumstances an untenable situation has come about. It is extremely difficult to continue with membership in the Tribunal and for the Tribunal to preserve it. 8 integrity and credibility as a constitutional body charged with a judicial task. It is clear to us that the unseating of an incumbent member of Congress is being prevented at all costs. We believe that the Tribunal should not be hampered in the performance of its constitutional function by factors which have nothing to do with the merits of the cases before it. In this connection, our own experience teaches that the provision for proportional representation in the Tribunal found in Article VI, Section 17 of the 1987 Constitution, should be amended to provide instead for a return to the composition mandated in the 1935 Constitution, that is: three (3) members chosen by the House or Senate upon nomination of the party having the largest number of votes and three (3) of the party having the second largest number of votes: and a judicial component consisting of three (3) justices from the Supreme Court. Thereby, no party or coalition of parties can dominate the legislative component in the Tribunal. In the alternative, the Senate Electoral Tribunal could perhaps sit as the sole judge of all contests relating to the election, returns and qualifications of members of the House of Representatives. Similarly, the House of Representatives Electoral Tribunal could sit as the sole judge of all such contests involving members of the Senate. In this way, there should be lesser chances of non-judicial elements playing a decisive role in the resolution of election contests. We suggest that there should also be a provision in the Constitution that upon designation to membership in the Electoral Tribunal, those so designated should divest

themselves of affiliation with their respective political parties, to insure their independence and objectivity as they sit in Tribunal deliberations. There are only three (3) remaining cases for decision by the Tribunal. Bondoc should have been promulgated today, 14 March 1991. Cabrera v. Apacible (HRET Case No. 21) is scheduled for promulgation on 31 March 1991 and Lucman v. Dimaporo (HRET Case No. 45), after the Holy Week recess. But political factors are blocking the accomplishment of the constitutionally mandated task of the Tribunal well ahead of the completion of the present congressional term. Under these circumstances, we are compelled to ask to be relieved from the chairmanship and membership in the Tribunal. xxx

xxx

xxx

At the open session of the HRET in the afternoon of the same day, the Tribunal issued Resolution No. 91-0018 cancelling the promulgation of the decision in HRET Case No. 25. The resolution reads: In view of the formal notice the Tribunal has received at 9:45 tills morning from the House of Representatives that at its plenary session held on March 13, 1991, it had voted to withdraw the nomination and rescind the election of Congressman Camasura to the House of Representatives Electoral Tribunal,' the Tribunal Resolved to cancel the promulgation of its Decision in Bondoc vs. Pineda (HRET Case No. 25) scheduled for this afternoon. This is because, without Congressman Camasura's vote, the decision lacks the concurrence of five members as required by Section 24 of the Rules of the Tribunal and, therefore, cannot be validly promulgated. The Tribunal noted that the three (3) Justices-members of the Supreme Court, being of the opinion that this development undermines the independence of the Tribunal and derails the orderly adjudication of electoral cases, they have asked the Chief Justice, in a letter of even date, for their relief from membership in the Tribunal. The Tribunal further Noted that Congressman Cerilles also manifested his intention to resign as a member of the Tribunal. The Tribunal further Noted that Congressmen Aquino, Ponce de Leon, Garcia, Jr., and Calingasan also manifested a similar intention. (p. 37, Rollo.) On March 19, 1991, this Court, after deliberating on the request for relief of Justices Herrera, Cruz and Feliciano, resolved to direct them to return to their duties in the Tribunal. The Court observed that: ... in view of the sensitive constitutional functions of the Electoral Tribunals as the 'sole judge' of all contests relationship to the election, returns and qualifications of the members of Congress, all members of these bodies are appropriately guided only by purely legal considerations in the decision of the cases before them and that in the contemplation of the Constitution the members-legislators, thereof, upon assumption of their duties therein, sit in the Tribunal no longer as representatives of their respective political parties but as impartial judges. The view was also submitted that, to further bolster the independence of the Tribunals, the term of office of every member thereof should be considered co-extensive with the corresponding legislative term and may not be legally terminated except only by death, resignation, permanent disability, or removal for valid cause, not including political disloyalty. ACCORDINGLY, the Court Resolved: a) to DECLINE the request of justices Herrera, Cruz, and Feliciano to be relieved from their membership in the House of Representatives Electoral Tribunal and instead to DIRECT them to resume their duties therein: b) to EXPRESS its concern over the intrusion of non-judicial factors in the proceedings of the House of Representatives Electoral Tribunal, which performs

functions purely judicial in character despite the inclusion of legislators in its membership; and c) to NOTE the view that the term of all the members of the Electoral Tribunals, including those from the legislature, is co-extensive with the corresponding legislative term and cannot be terminated at will but only for valid legal cause, and to REQUIRE the Justices-members of the Tribunal to submit the issue to the said Tribunal in the first instance. Paras J. filed this separate concurring opinion: 'I concur, but I wish to add that Rep. Camasura should be allowed to cast his original vote in favor of protestant Bondoc, otherwise a political and judicial travesty will take place.' Melencio-Herrera, Cruz and Feliciano, JJ., took no part. Gancayco, J., is on leave. On March 21, 1991, a petition for certiorari, prohibition and mandamus was filed by Dr. Emigdio A. Bondoc against Representatives Marciano M. Pineda, Magdaleno M. Palacol, Juanita G. Camasura, Jr., or any other representative who may be appointed Vice Representative Juanita G. Camasura, Jr., and the House of Representatives Electoral Tribunal, praying this Court to: 1. Annul the decision of the House of Representatives of March 13, 1991, 'to withdraw the nomination and to rescind the nomination of Representative Juanita G. Camasura, Jr. to the House of Representatives Electoral Tribunal;" 2. Issue a wilt of prohibition restraining respondent Palacol or whomsoever may be designated in place of respondent Camasura from assuming, occupying and discharging functions as a member of the House of Representatives Electoral Tribunal; 3. Issue a writ of mandamus ordering respondent Camasura to immediately reassume and discharge his functions as a member of the House of Representatives Electoral Tribunal; and 4. Grant such other relief as may be just and equitable. Upon receipt of the petition, the Court, without giving it due course, required the respondents to comment5 on the petition within ten days from notice and to enjoin the HRET 'from reorganizing and allowing participation in its proceedings of Honorable Magdaleno M. Palacol or whoever is designated to replace Honorable Juanita G. Camasura in said House of Representatives Electoral Tribunal, until the issue of the withdrawal of the nomination and rescission of the election of said Congressman Camasura as member of the HRET by the House of Representatives is resolved by this Court, or until otherwise ordered by the Court." (p. 39, Rollo.) Congressman Juanito G. Camasura, Jr. did not oppose the petition. Congressman Marciano M. Pineda's plea for the dismissal of the petition is centered on Congress' being the sole authority that nominates and elects from its members. Upon recommendation by the political parties therein, those who are to sit in the House of Representatives Electoral Tribunal (and in the Commission on Appointments as well), hence, it allegedly has the sole power to remove any of them whenever the ratio in the representation of the political parties in the House or Senate is materially changed on account of death, incapacity, removal or expulsion from the political party;6 that a Tribunal member's term of office is not co-extensive with his legislative term,7 for if a member of the Tribunal who changes his party affiliation is not removed from the Tribunal, the constitutional provision mandating representation based on political affiliation would be completely nullified;8 and that the expulsion of Congressman Camasura from the LDP, is "purely a party affair" of the LDP 9 and the decision to rescind his membership in the House Electoral Tribunal is the sole prerogative of the Houseof-Representative Representatives, hence, it is a purely political question beyond the reach of judicial review.10 In his comment, respondent Congressman Magdaleno M. Palacol alleged that the petitioner has no cause of action against him because he has not yet been nominated by the LDP for membership in the HRET.11 Moreover, the petition failed to implead the House of

Representatives as an indispensable party for it was the House, not the HRET that withdrew and rescinded Congressman Camasura's membership in the HRET.12 The Solicitor General, as counsel for the Tribunal, argued in a similar vein; that the inclusion of the HETH as a party respondent is erroneous because the petition states no cause of action against the Tribunal. The petitioner does not question any act or order of the HRET in violation of his rights. What he assails is the act of the House of Representatives of withdrawing the nomination, and rescinding the election, of Congressman Juanita nito Camasura as a member of the HRET.13 Replying to the Solicitor General's Manifestation, the petitioner argued that while the Tribunal indeed had nothing to do with the assailed decision of the House of Representatives, it acknowledged that decision by cancelling the promulgation of its decision in HRET Case No. 25 to his (Bondoc's) prejudice.14 Hence, although the Tribunal may not be an indispensable party, it is a necessary party to the suit, to assure that complete relief is accorded to the petitioner for "in the ultimate, the Tribunal would have to acknowledge, give recognition, and implement the Supreme Court's decision as to whether the relief of respondent Congressman Camasura from the Office of the Electoral Tribunal is valid."15 In his reply to Congressman Palacol's Comment, the petitioner explained that Congressman Palacol was impleaded as one of the respondents in this case because after the House of Representatives had announced the termination of Congressman Camasura's membership in the HETH several newspapers of general circulation reported that the House of Representatives would nominate and elect Congressman Palacol to take Congressman Camasura's seat in the Tribunal.16 Now, is the House of Representatives empowered by the Constitution to do that, i.e., to interfere with the disposition of an election contest in the House Electoral Tribunal through the ruse of "reorganizing" the representation in the tribunal of the majority party? Section 17, Article VI of the 1987 Constitution supplies the answer to that question. It provides: Section 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns and qualifications of their respective members, Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman. Section 17 reechoes Section 11, Article VI of the 1935 Constitution, except the provision on the representation of the main political parties in the tribunal which is now based on proportional representation from all the political parties, instead of equal representation of three members from each of the first and second largest political aggrupations in the Legislature. The 1935 constitutional provision reads as follows: Sec. 11. The Senate and the House of Representatives shall have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or of the House of Representatives, as the case may be, who shall be chosen by each House, three upon nomination of the party having the largest number of votes and three of the party having the second largest member of votes therein. The senior Justice in each Electoral Tribunal shall be its Chairman. (1 935 Constitution of the Philippines.) Under the above provision, the Justices held the deciding votes, aid it was impossible for any political party to control the voting in the tribunal.

The 1973 Constitution did not provide for an electoral tribunal in the Batasang Pambansa. The use of the word "sole" in both Section 17 of the 1987 Constitution and Section 11 of the 1935 Constitution underscores the exclusive jurisdiction of the House Electoral Tribunal as judge of contests relating to the election, returns and qualifications of the members of the House of Representatives (Robles vs. House of Representatives Electoral Tribunal, G.R. No. 86647, February 5, 1990). The tribunal was created to function as a nonpartisan court although twothirds of its members are politicians. It is a non-political body in a sea of politicians. What this Court had earlier said about the Electoral Commission applies as well to the electoral tribunals of the Senate and House of Representatives: The purpose of the constitutional convention creating the Electoral Commission was to provide an independent and impartial tribunal for the determination of contests to legislative office, devoid of partisan consideration, and to transfer to that tribunal all the powers previously exercised by the legislature in matters pertaining to contested elections of its members. The power granted to the electoral Commission to judge contests relating to the election and qualification of members of the National Assembly is intended to be as complete and unimpaired as if it had remained in the legislature. The Electoral Tribunals of the Senate and the House were created by the Constitution as special tribunals to be the sole judge of all contests relating to election returns and qualifications of members of the legislative houses, and, as such, are independent bodies which must be permitted to select their own employees, and to supervise and control them, without any legislative interference. (Suanes vs. Chief Accountant of the Senate, 81 Phil. 818.) To be able to exercise exclusive jurisdiction, the House Electoral Tribunal must be independent. Its jurisdiction to hear and decide congressional election contests is not to be shared by it with the Legislature nor with the Courts. The Electoral Commission is a body separate from and independent of the legislature and though not a power in the tripartite scheme of government, it is to all intents and purposes, when acting within the limits of its authority, an independent organ; while composed of a majority of members of the legislature it is a body separate from and independent of the legislature. xxx

xxx

xxx

The Electoral Commission, a constitutional organ created for the specific purpose of determining contests relating to election returns and qualifications of members of the National Assembly may not be interfered with by the judiciary when and while acting within the limits of its authority, but the Supreme Court has jurisdiction over the Electoral Commission for the purpose of determining the character, scope and extent of the constitutional grant to the commission as sole judge of all contests relating to the election and qualifications of the members of the National Assembly. (Angara vs. Electoral Commission, 63 Phil. 139.) The independence of the electoral tribunal was preserved undiminished in the 1987 Constitution as the following exchanges on the subject between Commissioners Maambong and Azcuna in the 1986 Constitutional Commission, attest: MR. MAAMBONG. Thank you. My questions will be very basic so we can go as fast as we can. In the case of the electoral tribunal, either of the House or of the Senate, is it correct to say that these tribunals are constitutional creations? I will distinguish these with the case of the Tanodbayan and the Sandiganbayan which are created by mandate of the Constitution but they are not constitutional creations. Is that a good distinction?

MR. AZCUNA. That is an excellent statement. MR. MAAMBONG. Could we, therefore, say that either the Senate Electoral Tribunal or the House Electoral Tribunal is a constitutional body.? MR. AZCUNA. It is, Madam President. MR. MAAMBONG. If it is a constitutional body, is it then subject to constitutional restrictions? MR. AZCUNA It would be subject to constitutional restrictions intended for that body. MR. MAAMBONG. I see. But I want to find out if the ruling in the case of Vera vs. Avelino, 77 Phil. 192, will still be applicable to the present bodies we are creating since it ruled that the electoral tribunals are not separate departments of the government. Would that ruling still be valid? MR. AZCUNA. Yes, they are not separate departments because the separate departments are the legislative, the executive and the judiciary; but they are constitutional bodies. MR. MAAMBONG. Although they are not separate departments of government, I would like to know again if the ruling in Angara vs. Electoral Commission, 53 Phil. 139, would still be applicable to the present bodies we are deciding on, when the Supreme court said that these electoral tribunals are independent from Congress, devoid of partisan influence or consideration and, therefore, Congress has no power to regulate proceedings of these electoral tribunals. MR. AZCUNA. I think that is correct. They are independent although they are not a separate branch of government. MR. MAAMBONG. There is a statement that in all parliaments of the world, the invariable rule is to leave unto themselves the determination of controversies with respect to the election and qualifications of their members, and precisely they have this Committee on Privileges which takes care of this particular controversy. Would the Gentleman say that the creation of electoral tribunals is an exception to this rule because apparently we have an independent electoral tribunal? MR. AZCUNA. To the extent that the electoral tribunals are independent, but the Gentleman will notice that the wordings say: 'The Senate and the House of Representatives shall each have an Electoral Tribunal. 'It is still the Senate Electoral Tribunal and the House Electoral Tribunal. So, technically, it is the tribunal of the House and tribunal of the Senate although they are independent. MR. MAAMBONG. But both of them, as we have agreed on, are independent from both bodies? MR. AZCUNA. That is correct. MR. MAAMBONG. This is the bottom line of my question. How can we say that these bodies are independent when we still have six politicians sitting in both tribunals? MR. AZCUNA. Politicians can be independent, Madam President. MR. MAAMBONG. Madam President, when we discussed a portion of this in the Committee on the Executive, there was a comment by Chief Justice ConcepcionCommissioner Concepcion-that there seems to be some incongruity in these electoral tribunals, considering that politicians still sit in the tribunals in spite of the fact that in the ruling in the case of Sanidad vs. Vera, Senate Electoral tribunal Case No. 1, they are

supposed to act in accordance with law and justice with complete detachment from an political considerations. That is why I am asking now for the record how we could achieve such detachment when there are six politicians sitting there. MR. AZCUNA. The same reason that the Gentleman, while chosen on behalf of the opposition, has, with sterling competence, shown independence in the proceedings of this Commission. I think we can also trust that the members of the tribunals will be independent. (pp. 111-112, Journal, Tuesday, July 22, 1986, Emphasis supplied.) Resolution of the House of Representatives violates the independence of the HRET. — The independence of the House Electoral Tribunal so zealously guarded by the framers of our Constitution, would, however, by a myth and its proceedings a farce if the House of Representatives, or the majority party therein, may shuffle and manipulate the political (as distinguished from the judicial) component of the electoral tribunal, to serve the interests of the party in power. The resolution of the House of Representatives removing Congressman Camasura from the House Electoral Tribunal for disloyalty to the LDP, because he cast his vote in favor of the Nacionalista Party's candidate, Bondoc, is a clear impairment of the constitutional prerogative of the House Electoral Tribunal to be the sole judge of the election contest between Pineda and Bondoc. To sanction such interference by the House of Representatives in the work of the House Electoral Tribunal would reduce the tribunal to a mere tool for the aggrandizement of the party in power (LDP) which the three justices of the Supreme Court and the lone NP member would be powerless to stop. A minority party candidate may as well abandon all hope at the threshold of the tribunal. Disloyalty to party is not a valid cause for termination of membership in the HRET. — As judges, the members of the tribunal must be non-partisan. They must discharge their functions with complete detachment, impartiality, and independence even independence from the political party to which they belong. Hence, "disloyalty to party" and "breach of party discipline," are not valid grounds for the expulsion of a member of the tribunal. In expelling Congressman Camasura from the HRET for having cast a conscience vote" in favor of Bondoc, based strictly on the result of the examination and appreciation of the ballots and the recount of the votes by the tribunal, the House of Representatives committed a grave abuse of discretion, an injustice, and a violation of the Constitution. Its resolution of expulsion against Congressman Camasura is, therefore, null and void. Expulsion of Congressman Camasura violates his right to security of tenure. — Another reason for the nullity of the expulsion resolution of the House of Representatives is that it violates Congressman Camasura's right to security of tenure. Members of the HRET as "sole judge" of congressional election contests, are entitled to security of tenure just as members of the judiciary enjoy security of tenure under our Constitution (Sec. 2, Art. VIII, 1987 Constitution). Therefore, membership in the House Electoral Tribunal may not be terminated except for a just cause, such as, the expiration of the member's congressional term of office, his death, permanent disability, resignation from the political party he represents in the tribunal, formal affiliation with another political party, or removal for other valid cause. A member may not be expelled by the House of Representatives for "party disloyalty" short of proof that he has formally affiliated with another political group. As the records of this case fail to show that Congressman Camasura has become a registered member of another political party, his expulsion from the LDP and from the HRET was not for a valid cause, hence, it violated his right to security of tenure. There is nothing to the argument of respondent Pineda that members of the House Electoral Tribunal are not entitled to security of tenure because, as a matter of fact, two Supreme Court Justices in the Tribunal were changed before the end of the congressional term, namely: Chief Justice Marcelo B. Fernan who, upon his elevation to the office of Chief Justice, was replaced

by Justice Florentino P. Feliciano, and the latter, who was temporarily replaced by Justice Emilio A. Gancayco, when he (J. Feliciano) took a leave of absence to deliver a lecture in Yale University. It should be stressed, however, that those changes in the judicial composition to the HRET had no political implications at all unlike the present attempt to remove Congressman Camasura. No coercion was applied on Chief Justice Fernan to resign from the tribunal, nor on Justice Feliciano to go on a leave of absence. They acted on their own free will, for valid reasons, and with no covert design to derail the disposition of a pending case in the HRET. The case of Congressman Camasura is different. He was expelled from, and by, the LDP to punish him for "party disloyalty" after he had revealed to the Secretary-General of the party how he voted in the Bondoc case. The purpose of the expulsion of Congressman Camasura was to nullify his vote in the Bondoc case so that the HRET's decision may not be promulgated, and so that the way could be cleared for the LDP to nominate a replacement for Congressman Camasura in the Tribunal. That stratagem of the LDP and the House of Representatives is clearly aimed to substitute Congressman Camasura's vote and, in effect, to change the judgment of the HRET in the Bondoc case. The judicial power of this Court has been invoked by Bondoc for the protection of his rights against the strong arm of the majority party in the House of Representatives. The Court cannot be deaf to his plea for relief, nor indifferent to his charge that the House of Representatives had acted with grave abuse of discretion in removing Congressman Camasura from the House Electoral Tribunal. He calls upon the Court, as guardian of the Constitution, to exercise its judicial power and discharge its duty to protect his rights as the party aggrieved by the action of the House. The Court must perform its duty under the Constitution "even when the violator be the highest official of the land or the Government itself" (Concurring opinion of J. Antonio Barredo in Aquino vs. Ponce-Enrile, 59 SCRA 183, 207). Since the expulsion of Congressman Camasura from the House Electoral Tribunal by the House of Representatives was not for a lawful and valid cause, but to unjustly interfere with the tribunal's disposition of the Bondoc case and to deprive Bondoc of the fruits of the Tribunal's decision in his favor, the action of the House of Representatives is clearly violative of the constitutional mandate (Sec. 17, Art. VI, 1987 Constitution) which created the House Electoral Tribunal to be the "sole judge" of the election contest between Pineda and Bondoc. We, therefore, declare null and void the resolution dated March 13, 1991 of the House of Representatives withdrawing the nomination, and rescinding the election, of Congressman Camasura as a member of the House Electoral Tribunal. The petitioner, Dr. Emigdio Bondoc, is entitled to the reliefs he prays for in this case. WHEREFORE, the petition for certiorari, prohibition and mandamus is granted. The decision of the House of Representatives withdrawing the nomination and rescinding the election of Congressman Juanita G. Camasura, Jr. as a member of the House Electoral Tribunal is hereby declared null and void ab initio for being violative of the Constitution, and Congressman Juanita G. Camasura, Jr. is ordered reinstated to his position as a member of the House of Representatives Electoral Tribunal. The HRET Resolution No. 91-0018 dated March 14, 1991, cancelling the promulgation of the decision in HRET Case No. 25 ("Dr. Emigdio Bondoc vs. Marciano A. Pineda") is also set aside. Considering the unconscionable delay incurred in the promulgation of that decision to the prejudice of the speedy resolution of electoral cases, the Court, in the exercise of its equity jurisdiction, and in the interest of justice, hereby declares the said decision DULY PROMULGATED, effective upon service of copies thereof on the parties, to be done immediately by the Tribunal. Costs against respondent Marciano A. Pineda. SO ORDERED. Narvasa, Paras, Bidin, Medialdea, Regalado and Gutierrez, Jr., J., concurs as certified to by the Chief Justice.

Davide,

Fernan, C.J., Melencio-Herrera, Cruz and Feliciano, JJ., took no part.

Jr.,

JJ.,

concur.

Separate Opinions

PADILLA, J., dissenting: Can the Supreme Court review and annul an act of the House of Representatives, assuming that said act were politically motivated, but well within the constitutional parameters of its authority? The majority would postulate that the Court is empowered to do so on the strength of the second paragraph, Section 1 of Art. VIII of the 1987 Constitution which reads: 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. The majority would even go as far as annul the action of the House of Representatives in withdrawing and rescinding its nomination to the House Electoral Tribunal of Congressman Juanito J. Camasura, Jr. and order Camasura's reinstatement to said Tribunal. I regret I cannot join the majority's posture which, I believe, is violative of the almost sacramental doctrine of separation of powers enshrined in the Constitution. It is for this reason that I register my dissent. A fundamental principle in our constitutional system is that the powers of government are distributed among three (3) great departments: legislative, executive and judicial. Each of these departments is separate from, yet coordinate and co-equal with the others each one deriving its authority directly from the fundamental law.1 As Mr. Justice Moreland summarized, "the three departments are not only coordinate, they are co-equal and co-important. While interdependent, in the sense that each is unable to perform its functions fully and adequately without the other, they are nevertheless in many senses independent of each other. That is to say, one department may not control or even interfere with another in the exercise of its particular functions.2 (Emphasis supplied) The completeness of their separation and mutual independence does not, however, extend to the point that those in authority in one department can ignore and treat the acts of those in authority in the others, done pursuant to the authority vested in them, as nugatory and not binding in every other department.3 In other words, one department must not encroach upon nor interfere with acts done within the constitutional competence of the other where full discretionary authority has been delegated by the Constitution to said department. That department alone, to the exclusion of the others, has both right and duty to exercise it free from any encroachment or interference of whomsoever.4 This principle or doctrine of separation of powers is enforced by the judiciary through the exercise of its power of judicial review and prudent refusal to assume jurisdiction over cases involving political questions.5 In the case at bar, one notes that the dispute emerged when the House of Representatives withdrew and rended the nomination of Congressman Juanito J. Camasura, Jr. to the House Electoral Tribunal. This act was, it seems, precipitated by a letter of Congressman Jose S. Cojuangco, Jr. informing the Speaker of the House of Representatives of the expulsion of Congressman Juanito J. Camasura, Jr. from the LDP for having allegedly helped to organize the Partido Pilipino of Mr. Eduardo Cojuangco, Jr. and for allegedly having invited other LDP members to join the said political party. As a result of this letter, the nomination of Camasura to the House Electoral Tribunal was withdrawn at a plenary session of the House of Representatives and the House Electoral Tribunal was informed of such action of the House. Petitioner assails the propriety of said action of the House of Representatives as it is, he alleges, but a employ to thwart the promulgation of a decision in the electoral protest lodged by him (petitioner Bondoc) against Marciano M. Pineda, a member of the Laban ng Demokratikong Pilipino (LDP), and which decision would be favorable to him (Bontoc). Petitioner contends that

not only does the action of the House of Representatives violate the independence of the House Electoral Tribunal but that it also violates the security of tenure of Congressman Camasura, Jr. in said electoral tribunal. Congressman (respondent) Pineda, on the other hand, submits that the House of Representatives has the sole authority to nominate and select from among its members who are to sit in the House Electoral Tribunal, upon recommendation of the political parties therein, hence, it also has the sole power to remove any of them from the electoral tribunal whenever the ratio in the representation of the political parties in the House is materially changed on account of death, incapacity, removal or expulsion of a House member from a political party. A Tribunal member's term of office in said electoral tribunal is not, Congressman Pineda argues, co-extensive with his legislative term. Were that the fact, the constitutional provision mandating representation in the electoral tribunal based on political affiliation may be completely nullified in the event that a member of the Tribunal changes party affiliation. As provided for in the Constitution, there are nine (9) members of the House Electoral Tribunal. Three (3) of the members of the tribunal are Justices of the Supreme Court as designated by the Chief Justice of the Supreme Court. The remaining six (6) members come from the members of the House chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the partylist system. 6 The House of Representatives has the power to nominate the members of the House Electoral Tribunal (representing the House) provided, of course, that the proportional representation of parties is maintained. Can the House of Representatives withdraw the nomination extended to a member of the electoral tribunal (representing the House of Representatives) after the majority party in the House has expelled him from its ranks? I believe it can. The power to appoint or designate a member of the House of Representatives to be a member of the House Electoral Tribunal must, to my mind, necessarily include the power to remove said member. A withdrawal of the nomination of a member of the Tribunal where such withdrawal will maintain the proportional representation of the political parties, mandated by the Constitution, must be recognized and respected, no matter how politically motivated it might be. Constitutional law, it is said, is concerned with power not with policy, wisdom or expediency.7The question that must be asked in testing the validity of such legislative act is, does the House of Representatives have the power to do what it has done and not whether the House of Representatives should have done what it has done. Corollary to the above is, can the Judiciary question a legislative act done within the constitutional authority to the legislature? I believe not, in the same way that, for instance, the House cannot question the act of the Chief Justice, should he deem it proper to change the Justices who sit as members of the House Electoral Tribunal. Matters such as who will be designated or nominated as members of the electoral tribunal, how they should vote — surely are matters that not merely concern political action as far as members of the House are concerned, but are the very essence of political action, if political life has any connotation at all. To open courts of justice to such political controversies would have courts sit in judgment over the manifold disputes engendered by political manuevers and skirmishes. This would drag the courts into the political arena which in the long run could undermine and destroy their independence. The judicial department, in my opinion, has no power to review even the most arbitrary and unfair action of the legislative department, taken in the exercise of power committed exclusively to it by the Constitution.8 It is not within the province of this Court to supervise legislation or oversee legislative acts as to keep them within the bounds of propriety, fairness and common sense. Such acts, like the one at bar, are exclusively of legislative concern. 9 To hold otherwise would be to invalidate the principle of separation of powers. As Judge Learned Hand so aptly observed, "one cannot find among the powers granted to courts any authority to pass upon the validity of the decisions of another 'Department' as to the scope of that 'Department's' powers. Indeed, it is to be understood that the three (3), Departments' were separate and co-equal, each being, as it were, a Leibnizian monad, looking up to the Heaven of the Electorate, but without any mutual dependence. What could be better evidence of complete dependence than to subject the validity of the decision of one 'Department' as to its authority on a given occasion to

review and reversal by another? Such a doctrine makes supreme the Department that has the last word. "10 (Emphasis supplied) The Court should not lose sight of the fact that "sometimes the division of power tacitly accepted by society runs counter to its own Ideology and to the constitutional commandments. This may be because the society is still unsure of what the best division of power would be and so temporarily accepts the existing one, or because the society has vacated its decisionmaking function and special interest groups have stepped in to fill the vacuum. In either case, the Court can neither validate a clearly unconstitutional distribution, and thereby subject its role as guardian to claims of fraud, nor invalidate a functioning system with an order which would be ignored. To do either would be to sacrifice the popular prestige which is the Court's primarily source of power."11 Even assuming that the act of the House of Representatives in withdrawing and rescinding the nomination of Congressman Camasura, Jr. as a member of the House Electoral Tribunal is politically motivated, precipitated as it is by the knowledge of how Camasura, Jr. is to vote in one of the electoral protests before said Tribunal, this, to me, is not sufficient reason to invalidate said act of the House of Representatives, since it is done within the limits of its constitutional power. Besides, what other act of the House (or Senate) is there that is not politically motivated? After all, that branch of government is a political branch and necessarily or pragmatically all of its acts are and will always be politically motivated. The environmental facts of this case do not, in my considered opinion, bring it within the Court's power to strike down the legislative act in question, it is the people of this nation — not this court — who should ultimately judge the act when they cast their ballots. The Court cannot arrogate unto itself the power to institute what it perceives to be political reforms, for in the last analysis on which all else depend, the vitality of a political system would be greatly weakened by reliance on the judiciary for any and all political reforms and, in time, a complacent body politic will result. It is the responsibility of the people and none other, to remain ever vigilant about their government to the end that they can continue to live under a regime of justice, liberty and democracy. To leave this task to the Court, would in the long run be inimical to and destructive of democratic government itself ACCORDINGLY, I vote to DISMISS the petition.

SARMIENTO, J., disssenting: Like my distinguished colleague Justice Teodoro Padilla, I too am unable to agree with the majority. I believe that the questions as Justice Padilla raised it — can the Court annul an act of Congress, revamping its House Electoral Tribunal? — is a political question and a question in which the Court can not intervene. It is true that under the Charter, the jurisdiction of this Court includes the power to strike down excesses of any agency of Government, but the Charter did not alter or discard the principle principle of separation of powers. Evidently, Congressman Camasura's ouster from the Tribunal was a result of political maneuvers within the lower house. This Court, however, is above politics and Justices should be the last persons to get involved in the "dirty" world of politics. If they do, they risk their independence.

Separate Opinions PADILLA, J., dissenting:

Can the Supreme Court review and annul an act of the House of Representatives, assuming that said act were politically motivated, but well within the constitutional parameters of its authority? The majority would postulate that the Court is empowered to do so on the strength of the second paragraph, Section 1 of Art. VIII of the 1987 Constitution which reads: 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. The majority would even go as far as annul the action of the House of Representatives in withdrawing and rescinding its nomination to the House Electoral Tribunal of Congressman Juanito J. Camasura, Jr. and order Camasura's reinstatement to said Tribunal. I regret I cannot join the majority's posture which, I believe, is violative of the almost sacramental doctrine of separation of powers enshrined in the Constitution. It is for this reason that I register my dissent. A fundamental principle in our constitutional system is that the powers of government are distributed among three (3) great departments: legislative, executive and judicial. Each of these departments is separate from, yet coordinate and co-equal with the others each one deriving its authority directly from the fundamental law.1 As Mr. Justice Moreland summarized, "the three departments are not only coordinate, they are co-equal and co-important. While interdependent, in the sense that each is unable to perform its functions fully and adequately without the other, they are nevertheless in many senses independent of each other. That is to say, one department may not control or even interfere with another in the exercise of its particular functions.2 (Emphasis supplied) The completeness of their separation and mutual independence does not, however, extend to the point that those in authority in one department can ignore and treat the acts of those in authority in the others, done pursuant to the authority vested in them, as nugatory and not binding in every other department.3 In other words, one department must not encroach upon nor interfere with acts done within the constitutional competence of the other where full discretionary authority has been delegated by the Constitution to said department. That department alone, to the exclusion of the others, has both right and duty to exercise it free from any encroachment or interference of whomsoever.4 This principle or doctrine of separation of powers is enforced by the judiciary through the exercise of its power of judicial review and prudent refusal to assume jurisdiction over cases involving political questions.5 In the case at bar, one notes that the dispute emerged when the House of Representatives withdrew and rended the nomination of Congressman Juanito J. Camasura, Jr. to the House Electoral Tribunal. This act was, it seems, precipitated by a letter of Congressman Jose S. Cojuangco, Jr. informing the Speaker of the House of Representatives of the expulsion of Congressman Juanito J. Camasura, Jr. from the LDP for having allegedly helped to organize the Partido Pilipino of Mr. Eduardo Cojuangco, Jr. and for allegedly having invited other LDP members to join the said political party. As a result of this letter, the nomination of Camasura to the House Electoral Tribunal was withdrawn at a plenary session of the House of Representatives and the House Electoral Tribunal was informed of such action of the House. Petitioner assails the propriety of said action of the House of Representatives as it is, he alleges, but a employ to thwart the promulgation of a decision in the electoral protest lodged by him (petitioner Bondoc) against Marciano M. Pineda, a member of the Laban ng Demokratikong Pilipino (LDP), and which decision would be favorable to him (Bontoc). Petitioner contends that not only does the action of the House of Representatives violate the independence of the House Electoral Tribunal but that it also violates the security of tenure of Congressman Camasura, Jr. in said electoral tribunal. Congressman (respondent) Pineda, on the other hand, submits that the House of Representatives has the sole authority to nominate and select from among its members who are

to sit in the House Electoral Tribunal, upon recommendation of the political parties therein, hence, it also has the sole power to remove any of them from the electoral tribunal whenever the ratio in the representation of the political parties in the House is materially changed on account of death, incapacity, removal or expulsion of a House member from a political party. A Tribunal member's term of office in said electoral tribunal is not, Congressman Pineda argues, co-extensive with his legislative term. Were that the fact, the constitutional provision mandating representation in the electoral tribunal based on political affiliation may be completely nullified in the event that a member of the Tribunal changes party affiliation. As provided for in the Constitution, there are nine (9) members of the House Electoral Tribunal. Three (3) of the members of the tribunal are Justices of the Supreme Court as designated by the Chief Justice of the Supreme Court. The remaining six (6) members come from the members of the House chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the partylist system. 6 The House of Representatives has the power to nominate the members of the House Electoral Tribunal (representing the House) provided, of course, that the proportional representation of parties is maintained. Can the House of Representatives withdraw the nomination extended to a member of the electoral tribunal (representing the House of Representatives) after the majority party in the House has expelled him from its ranks? I believe it can. The power to appoint or designate a member of the House of Representatives to be a member of the House Electoral Tribunal must, to my mind, necessarily include the power to remove said member. A withdrawal of the nomination of a member of the Tribunal where such withdrawal will maintain the proportional representation of the political parties, mandated by the Constitution, must be recognized and respected, no matter how politically motivated it might be. Constitutional law, it is said, is concerned with power not with policy, wisdom or expediency.7The question that must be asked in testing the validity of such legislative act is, does the House of Representatives have the power to do what it has done and not whether the House of Representatives should have done what it has done. Corollary to the above is, can the Judiciary question a legislative act done within the constitutional authority to the legislature? I believe not, in the same way that, for instance, the House cannot question the act of the Chief Justice, should he deem it proper to change the Justices who sit as members of the House Electoral Tribunal. Matters such as who will be designated or nominated as members of the electoral tribunal, how they should vote — surely are matters that not merely concern political action as far as members of the House are concerned, but are the very essence of political action, if political life has any connotation at all. To open courts of justice to such political controversies would have courts sit in judgment over the manifold disputes engendered by political manuevers and skirmishes. This would drag the courts into the political arena which in the long run could undermine and destroy their independence. The judicial department, in my opinion, has no power to review even the most arbitrary and unfair action of the legislative department, taken in the exercise of power committed exclusively to it by the Constitution.8 It is not within the province of this Court to supervise legislation or oversee legislative acts as to keep them within the bounds of propriety, fairness and common sense. Such acts, like the one at bar, are exclusively of legislative concern. 9 To hold otherwise would be to invalidate the principle of separation of powers. As Judge Learned Hand so aptly observed, "one cannot find among the powers granted to courts any authority to pass upon the validity of the decisions of another 'Department' as to the scope of that 'Department's' powers. Indeed, it is to be understood that the three (3), Departments' were separate and co-equal, each being, as it were, a Leibnizian monad, looking up to the Heaven of the Electorate, but without any mutual dependence. What could be better evidence of complete dependence than to subject the validity of the decision of one 'Department' as to its authority on a given occasion to review and reversal by another? Such a doctrine makes supreme the Department that has the last word. "10 (Emphasis supplied) The Court should not lose sight of the fact that "sometimes the division of power tacitly accepted by society runs counter to its own Ideology and to the constitutional commandments. This may be because the society is still unsure of what the best division of power would be and so temporarily accepts the existing one, or because the society has vacated its decisionmaking

function and special interest groups have stepped in to fill the vacuum. In either case, the Court can neither validate a clearly unconstitutional distribution, and thereby subject its role as guardian to claims of fraud, nor invalidate a functioning system with an order which would be ignored. To do either would be to sacrifice the popular prestige which is the Court's primarily source of power."11 Even assuming that the act of the House of Representatives in withdrawing and rescinding the nomination of Congressman Camasura, Jr. as a member of the House Electoral Tribunal is politically motivated, precipitated as it is by the knowledge of how Camasura, Jr. is to vote in one of the electoral protests before said Tribunal, this, to me, is not sufficient reason to invalidate said act of the House of Representatives, since it is done within the limits of its constitutional power. Besides, what other act of the House (or Senate) is there that is not politically motivated? After all, that branch of government is a political branch and necessarily or pragmatically all of its acts are and will always be politically motivated. The environmental facts of this case do not, in my considered opinion, bring it within the Court's power to strike down the legislative act in question, it is the people of this nation — not this court — who should ultimately judge the act when they cast their ballots. The Court cannot arrogate unto itself the power to institute what it perceives to be political reforms, for in the last analysis on which all else depend, the vitality of a political system would be greatly weakened by reliance on the judiciary for any and all political reforms and, in time, a complacent body politic will result. It is the responsibility of the people and none other, to remain ever vigilant about their government to the end that they can continue to live under a regime of justice, liberty and democracy. To leave this task to the Court, would in the long run be inimical to and destructive of democratic government itself ACCORDINGLY, I vote to DISMISS the petition.

SARMIENTO, J., disssenting: Like my distinguished colleague Justice Teodoro Padilla, I too am unable to agree with the majority. I believe that the questions as Justice Padilla raised it — can the Court annul an act of Congress, revamping its House Electoral Tribunal? — is a political question and a question in which the Court can not intervene. It is true that under the Charter, the jurisdiction of this Court includes the power to strike down excesses of any agency of Government, but the Charter did not alter or discard the principle principle of separation of powers. Evidently, Congressman Camasura's ouster from the Tribunal was a result of political maneuvers within the lower house. This Court, however, is above politics and Justices should be the last persons to get involved in the "dirty" world of politics. If they do, they risk their independence. G.R. No. 160261

November 10, 2003

ERNESTO B. FRANCISCO, JR., petitioner, NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA MANGGAGAWANG PILIPINO, INC., ITS OFFICERS AND MEMBERS, petitioner-in-intervention, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-inintervention, vs. THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER JOSE G. DE VENECIA, THE SENATE, REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON, REPRESENTATIVE GILBERTO C. TEODORO, JR. AND REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, respondents. JAIME N. SORIANO, respondent-in-Intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

x---------------------------------------------------------x G.R. No. 160262 November 10, 2003 SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND HENEDINA RAZONABAD, petitioners, ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO QUADRA, petitioners-inintervention, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-inintervention, vs. THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTA-TIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. x---------------------------------------------------------x G.R. No. 160263 November 10, 2003 ARTURO M. DE CASTRO AND SOLEDAD M. CAGAMPANG, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioners-inintervention, vs. FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE PRESIDENT, AND JOSE G. DE VENECIA, JR., IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF REPRESENTATIVES, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. x---------------------------------------------------------x G.R. No. 160277 November 10, 2003 FRANCISCO I. CHAVEZ, petitioner, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-inintervention, vs. JOSE G. DE VENECIA, IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF REPRESENTATIVES, FRANKLIN M. DRILON, IN HIS CAPACITY AS PRESIDENT OF THE SENATE OF THE REPUBLIC OF THE PHILIPPINES, GILBERT TEODORO, JR., FELIX WILLIAM FUENTEBELLA, JULIO LEDESMA IV, HENRY LANOT, KIM BERNARDO-LOKIN, MARCELINO LIBANAN, EMMYLOU TALIÑO-SANTOS, DOUGLAS CAGAS, SHERWIN GATCHALIAN, LUIS BERSAMIN, JR., NERISSA SOON-RUIZ, ERNESTO NIEVA, EDGAR ERICE, ISMAEL MATHAY, SAMUEL DANGWA, ALFREDO MARAÑON, JR., CECILIA CARREON-JALOSJOS, AGAPITO AQUINO, FAUSTO SEACHON, JR., GEORGILU YUMULHERMIDA, JOSE CARLOS LACSON, MANUEL ORTEGA, ULIRAN JUAQUIN, SORAYA JAAFAR, WILHELMINO SY-ALVARADO, CLAUDE BAUTISTA, DEL DE GUZMAN, ZENAIDA CRUZ-DUCUT, AUGUSTO BACULIO, FAUSTINO DY III, AUGUSTO SYJUCO, ROZZANO RUFINO BIAZON, LEOVIGILDO BANAAG, ERIC SINGSON, JACINTO PARAS, JOSE SOLIS, RENATO MATUBO, HERMINO TEVES, AMADO ESPINO, JR., EMILIO MACIAS, ARTHUR PINGOY, JR., FRANCIS NEPOMUCENO, CONRADO ESTRELLA III, ELIAS BULUT, JR., JURDIN ROMUALDO, JUAN PABLO BONDOC, GENEROSO TULAGAN, PERPETUO YLAGAN, MICHAEL DUAVIT, JOSEPH DURANO, JESLI LAPUS, CARLOS COJUANGCO, GIORGIDI AGGABAO, FRANCIS ESCUDERRO, RENE VELARDE, CELSO LOBREGAT, ALIPIO BADELLES, DIDAGEN DILANGALEN, ABRAHAM MITRA, JOSEPH SANTIAGO, DARLENE ANTONIO-CUSTODIO, ALETA SUAREZ, RODOLF PLAZA, JV BAUTISTA, GREGORIO IPONG, GILBERT REMULLA, ROLEX SUPLICO, CELIA LAYUS,

JUAN MIGUEL ZUBIRI, BENASING MACARAMBON, JR., JOSEFINA JOSON, MARK COJUANGCO, MAURICIO DOMOGAN, RONALDO ZAMORA, ANGELO MONTILLA, ROSELLER BARINAGA, JESNAR FALCON, REYLINA NICOLAS, RODOLFO ALBANO, JOAQUIN CHIPECO, JR., AND RUY ELIAS LOPEZ, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. x---------------------------------------------------------x G.R. No. 160292 November 10, 2003 HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA. CECILIA PAPA, NAPOLEON C. REYES, ANTONIO H. ABAD, JR., ALFREDO C. LIGON, JOAN P. SERRANO AND GARY S. MALLARI, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-inintervention, vs. HON. SPEAKER JOSE G. DE VENECIA, JR. AND ROBERTO P. NAZARENO, IN HIS CAPACITY AS SECRETARY GENERAL OF THE HOUSE OF REPRESENTATIVES, AND THE HOUSE OF REPRESENTATIVES,respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. x---------------------------------------------------------x G.R. No. 160295 November 10, 2003 SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M. GONZALES, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-inintervention, vs. THE HOUSE OF REPRESEN-TATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. x---------------------------------------------------------x G.R. No. 160310 November 10, 2003 LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR, MELVIN MATIBAG, RAMON MIQUIBAS, RODOLFO MAGSINO, EDUARDO MALASAGA, EDUARDO SARMIENTO, EDGARDO NAOE, LEONARDO GARCIA, EDGARD SMITH, EMETERIO MENDIOLA, MARIO TOREJA, GUILLERMO CASTASUS, NELSON A. LOYOLA, WILFREDO BELLO, JR., RONNIE TOQUILLO, KATE ANN VITAL, ANGELITA Q. GUZMAN, MONICO PABLES, JR., JAIME BOAQUINA, LITA A. AQUINO, MILA P. GABITO, JANETTE ARROYO, RIZALDY EMPIG, ERNA LAHUZ, HOMER CALIBAG, DR. BING ARCE, SIMEON ARCE, JR., EL DELLE ARCE, WILLIE RIVERO, DANTE DIAZ, ALBERTO BUENAVISTA, FAUSTO BUENAVISTA, EMILY SENERIS, ANNA CLARISSA LOYOLA, SALVACION LOYOLA, RAINIER QUIROLGICO, JOSEPH LEANDRO LOYOLA, ANTONIO LIBREA, FILEMON SIBULO, MANUEL D. COMIA, JULITO U. SOON, VIRGILIO LUSTRE, AND NOEL ISORENA, MAU RESTRIVERA, MAX VILLAESTER, AND EDILBERTO GALLOR, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-inintervention, vs. THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HON. SPEAKER JOSE C. DE

VENECIA, JR., THE SENATE, REPRESENTED BY HON. SENATE PRESIDENT FRANKLIN DRILON, HON. FELIX FUENTEBELLA, ET AL., respondents. x---------------------------------------------------------x G.R. No. 160318 November 10, 2003 PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners, vs. HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF REPRESENTATIVES, HON. SENATE PRESIDENT FRANKLIN M. DRILON, AND ALL MEMBERS, PHILIPPINE SENATE, respondents. x---------------------------------------------------------x G.R. No. 160342 November 10, 2003 ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER OF THE INTEGRATED BAR OF THE PHILIPPINES, MANILA III, AND ENGR. MAXIMO N. MENEZ JR., IN HIS CAPACITY AS A TAXPAYER AND MEMBER OF THE ENGINEERING PROFESSION, petitioners, vs. THE HOUSE OF REPRESENTA-TIVES REPRESENTED BY THE 83 HONORABLE MEMBERS OF THE HOUSE LED BY HON. REPRESENTATIVE WILLIAM FUENTEBELLA, respondents. x---------------------------------------------------------x G.R. No. 160343 November 10, 2003 INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. THE HOUSE OF REPRESENTA-TIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents. x---------------------------------------------------------x G.R. No. 160360 November 10, 2003 CLARO B. FLORES, petitioner, vs. THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER, AND THE SENATE OF THE PHILIPPINES, THROUGH THE SENATE PRESIDENT, respondents. x---------------------------------------------------------x G.R. No. 160365 November 10, 2003 U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C. PADERANGA, DANILO V. ORTIZ, GLORIA C. ESTENZO-RAMOS, LIZA D. CORRO, LUIS V. DIORES, SR., BENJAMIN S. RALLON, ROLANDO P. NONATO, DANTE T. RAMOS, ELSA R. DIVINAGRACIA, KAREN B. CAPARROS-ARQUILLANO, SYLVA G. AGUIRRE-PADERANGA, FOR THEMSELVES AND IN BEHALF OF OTHER CITIZENS OF THE REPUBLIC OF THE PHILIPPINES, petitioners, vs. THE HOUSE OF REPRESENTA-TIVES, SPEAKER JOSE G. DE VENECIA, THE SENATE OF THE PHILIPPINES, SENATE PRESIDENT FRANKLIN DRILON, HOUSE REPRESENTATIVES FELIX FUENTEBELLA AND GILBERTO TEODORO, BY

THEMSELVES AND AS REPRESENTATIVES OF THE GROUP OF MORE THAN 80 HOUSE REPRESENTATIVES WHO SIGNED AND FILED THE IMPEACHMENT COMPLAINT AGAINST SUPREME COURT CHIEF JUSTICE HILARIO G. DAVIDE, JR. respondents. x---------------------------------------------------------x G.R. No. 160370 November 10, 2003 FR. RANHILIO CALLANGAN AQUINO, petitioner, vs. THE HONORABLE PRESIDENT OF THE SENATE, THE HONORABLE SPEAKER OF THE HOUSE OF REPRESENTATIVES, respondents. x---------------------------------------------------------x G.R. No. 160376 November 10, 2003 NILO A. MALANYAON, petitioner, vs. HON. FELIX WILLIAM FUENTEBELLA AND GILBERT TEODORO, IN REPRESENTATION OF THE 86 SIGNATORIES OF THE ARTICLES OF IMPEACHMENT AGAINST CHIEF JUSTICE HILARIO G. DAVIDE, JR. AND THE HOUSE OF REPRESENTATIVES, CONGRESS OF THE PHILIPPINES, REPRESENTED BY ITS SPEAKER, HON. JOSE G. DE VENECIA, respondents. x---------------------------------------------------------x G.R. No. 160392 November 10, 2003 VENICIO S. FLORES AND HECTOR L. HOFILEÑA, petitioners, vs. THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER JOSE G. DE VENECIA, AND THE SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT FRANKLIN DRILON, respondents. x---------------------------------------------------------x G.R. No. 160397 November 10, 2003 IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST CHIEF JUSTICE HILARIO G. DAVIDE, JR., ATTY. DIOSCORO U. VALLEJOS, JR., petitioner. x---------------------------------------------------------x G.R. No. 160403 November 10, 2003 PHILIPPINE BAR ASSOCIATION, petitioner, vs. THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR PRESIDING OFFICER, HON. JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELA, THE SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT, HON. FRANKLIN DRILON, respondents. x---------------------------------------------------------x G.R. No. 160405 November 10, 2003 DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY CHAPTER, MANUEL M. MONZON, PRESIDING OF IBP, CEBU PROVINCE, VICTOR A. MAAMBONG, PROVINCIAL BOARD MEMBER, ADELINO B. SITOY, DEAN OF THE COLLEG EOF LAW, UNIVERSITY

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

SECTION 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives. SECTION 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. SECTION 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment. (2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. (3) A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded. (4) In case the verified complaint or resolution of impeachment is filed by at least onethird of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year. (6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of twothirds of all the Members of the Senate. (7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment according to law. (8) The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section. (Emphasis and underscoring supplied) Following the above-quoted Section 8 of Article XI of the Constitution, the 12th Congress of the House of Representatives adopted and approved the Rules of Procedure in Impeachment Proceedings (House Impeachment Rules) on November 28, 2001, superseding the previous House Impeachment Rules1 approved by the 11th Congress. The relevant distinctions between these two Congresses' House Impeachment Rules are shown in the following tabulation: 11TH CONGRESS RULES

12TH CONGRESS NEW RULES

RULE II

RULE V

INITIATING IMPEACHMENT

BAR AGAINST INITIATION OF IMPEACHMENT

Section 2. Mode of Initiating Impeachment. – Impeachment shall be initiated only by a verified complaint for impeachment filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof or by a verified complaint or resolution of impeachment filed by at least onethird (1/3) of all the Members of the House.

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

RULE V BAR AGAINST IMPEACHMENT Section 14. Scope of Bar. – No impeachment proceedings shall be initiated against the same official more than once within the period of one (1) year.

Section 17. Bar Against Initiation Of Impeachment Proceedings. – Within a period of one (1) year from the date impeachment proceedings are deemed initiated as provided in Section 16 hereof, no impeachment proceedings, as such, can be initiated against the same official. (Italics in the original; emphasis and underscoring supplied)

On July 22, 2002, the House of Representatives adopted a Resolution,2 sponsored by Representative Felix William D. Fuentebella, which directed the Committee on Justice "to conduct an investigation, in aid of legislation, on the manner of disbursements and expenditures by the Chief Justice of the Supreme Court of the Judiciary Development Fund (JDF)." 3

On June 2, 2003, former President Joseph E. Estrada filed an impeachment complaint 4 (first impeachment complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate Justices5 of this Court for "culpable violation of the Constitution, betrayal of the public trust and other high crimes."6 The complaint was endorsed by Representatives Rolex T. Suplico, Ronaldo B. Zamora and Didagen Piang Dilangalen,7 and was referred to the House Committee on Justice on August 5, 20038 in accordance with Section 3(2) of Article XI of the Constitution which reads: Section 3(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. The House Committee on Justice ruled on October 13, 2003 that the first impeachment complaint was "sufficient in form,"9 but voted to dismiss the same on October 22, 2003 for being insufficient in substance.10 To date, the Committee Report to this effect has not yet been sent to the House in plenary in accordance with the said Section 3(2) of Article XI of the Constitution. Four months and three weeks since the filing on June 2, 2003 of the first complaint or on October 23, 2003, a day after the House Committee on Justice voted to dismiss it, the second impeachment complaint11 was filed with the Secretary General of the House12 by Representatives Gilberto C. Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella (Third District, Camarines Sur) against Chief Justice Hilario G. Davide, Jr., founded on the alleged results of the legislative inquiry initiated by above-mentioned House Resolution. This second impeachment complaint was accompanied by a "Resolution of Endorsement/Impeachment" signed by at least one-third (1/3) of all the Members of the House of Representatives.13 Thus arose the instant petitions against the House of Representatives, et. al., most of which petitions contend that the filing of the second impeachment complaint is unconstitutional as it violates the provision of Section 5 of Article XI of the Constitution that "[n]o impeachment proceedings shall be initiated against the same official more than once within a period of one year." In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he has a duty as a member of the Integrated Bar of the Philippines to use all available legal remedies to stop an unconstitutional impeachment, that the issues raised in his petition for Certiorari, Prohibition and Mandamus are of transcendental importance, and that he "himself was a victim of the capricious and arbitrary changes in the Rules of Procedure in Impeachment Proceedings introduced by the 12th Congress,"14 posits that his right to bring an impeachment complaint against then Ombudsman Aniano Desierto had been violated due to the capricious and arbitrary changes in the House Impeachment Rules adopted and approved on November 28, 2001 by the House of Representatives and prays that (1) Rule V, Sections 16 and 17 and Rule III, Sections 5, 6, 7, 8, and 9 thereof be declared unconstitutional; (2) this Court issue a writ of mandamus directing respondents House of Representatives et. al. to comply with Article IX, Section 3 (2), (3) and (5) of the Constitution, to return the second impeachment complaint and/or strike it off the records of the House of Representatives, and to promulgate rules which are consistent with the Constitution; and (3) this Court permanently enjoin respondent House of Representatives from proceeding with the second impeachment complaint. In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as citizens and taxpayers, alleging that the issues of the case are of transcendental importance, pray, in their petition for Certiorari/Prohibition, the issuance of a writ "perpetually" prohibiting respondent House of Representatives from filing any Articles of Impeachment against the Chief Justice with the Senate; and for the issuance of a writ "perpetually" prohibiting respondents Senate and Senate President Franklin Drilon from accepting any Articles of Impeachment against the Chief Justice

or, in the event that the Senate has accepted the same, from proceeding with the impeachment trial. In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad Cagampang, as citizens, taxpayers, lawyers and members of the Integrated Bar of the Philippines, alleging that their petition for Prohibition involves public interest as it involves the use of public funds necessary to conduct the impeachment trial on the second impeachment complaint, pray for the issuance of a writ of prohibition enjoining Congress from conducting further proceedings on said second impeachment complaint. In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court has recognized that he has locus standi to bring petitions of this nature in the cases of Chavez v. PCGG15 and Chavez v. PEA-Amari Coastal Bay Development Corporation,16 prays in his petition for Injunction that the second impeachment complaint be declared unconstitutional. In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers and members of the legal profession, pray in their petition for Prohibition for an order prohibiting respondent House of Representatives from drafting, adopting, approving and transmitting to the Senate the second impeachment complaint, and respondents De Venecia and Nazareno from transmitting the Articles of Impeachment to the Senate. In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina and Deputy Speaker Raul M. Gonzalez, alleging that, as members of the House of Representatives, they have a legal interest in ensuring that only constitutional impeachment proceedings are initiated, pray in their petition for Certiorari/Prohibition that the second impeachment complaint and any act proceeding therefrom be declared null and void. In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming that they have a right to be protected against all forms of senseless spending of taxpayers' money and that they have an obligation to protect the Supreme Court, the Chief Justice, and the integrity of the Judiciary, allege in their petition for Certiorari and Prohibition that it is instituted as "a class suit" and pray that (1) the House Resolution endorsing the second impeachment complaint as well as all issuances emanating therefrom be declared null and void; and (2) this Court enjoin the Senate and the Senate President from taking cognizance of, hearing, trying and deciding the second impeachment complaint, and issue a writ of prohibition commanding the Senate, its prosecutors and agents to desist from conducting any proceedings or to act on the impeachment complaint. In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members are citizens and taxpayers, and its co-petitioner Crispin T. Reyes, a citizen, taxpayer and a member of the Philippine Bar, both allege in their petition, which does not state what its nature is, that the filing of the second impeachment complaint involves paramount public interest and pray that Sections 16 and 17 of the House Impeachment Rules and the second impeachment complaint/Articles of Impeachment be declared null and void. In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen and a member of the Philippine Bar Association and of the Integrated Bar of the Philippines, and petitioner Engr. Maximo N. Menez, Jr., as a taxpayer, pray in their petition for the issuance of a Temporary Restraining Order and Permanent Injunction to enjoin the House of Representatives from proceeding with the second impeachment complaint. In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that it is mandated by the Code of Professional Responsibility to uphold the Constitution, prays in its petition for Certiorari and Prohibition that Sections 16 and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III of the House Impeachment Rules be declared unconstitutional and that the House of Representatives be permanently enjoined from proceeding with the second impeachment complaint. In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his petition for Certiorari and Prohibition that the House Impeachment Rules be declared unconstitutional.

In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et. al., in their petition for Prohibition and Injunction which they claim is a class suit filed in behalf of all citizens, citing Oposa v. Factoran17 which was filed in behalf of succeeding generations of Filipinos, pray for the issuance of a writ prohibiting respondents House of Representatives and the Senate from conducting further proceedings on the second impeachment complaint and that this Court declare as unconstitutional the second impeachment complaint and the acts of respondent House of Representatives in interfering with the fiscal matters of the Judiciary. In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino, alleging that the issues in his petition for Prohibition are of national and transcendental significance and that as an official of the Philippine Judicial Academy, he has a direct and substantial interest in the unhampered operation of the Supreme Court and its officials in discharging their duties in accordance with the Constitution, prays for the issuance of a writ prohibiting the House of Representatives from transmitting the Articles of Impeachment to the Senate and the Senate from receiving the same or giving the impeachment complaint due course. In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in his petition for Prohibition that respondents Fuentebella and Teodoro at the time they filed the second impeachment complaint, were "absolutely without any legal power to do so, as they acted without jurisdiction as far as the Articles of Impeachment assail the alleged abuse of powers of the Chief Justice to disburse the (JDF)." In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L. Hofileña, alleging that as professors of law they have an abiding interest in the subject matter of their petition for Certiorari and Prohibition as it pertains to a constitutional issue "which they are trying to inculcate in the minds of their students," pray that the House of Representatives be enjoined from endorsing and the Senate from trying the Articles of Impeachment and that the second impeachment complaint be declared null and void. In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging his locus standi, but alleging that the second impeachment complaint is founded on the issue of whether or not the Judicial Development Fund (JDF) was spent in accordance with law and that the House of Representatives does not have exclusive jurisdiction in the examination and audit thereof, prays in his petition "To Declare Complaint Null and Void for Lack of Cause of Action and Jurisdiction" that the second impeachment complaint be declared null and void. In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the issues raised in the filing of the second impeachment complaint involve matters of transcendental importance, prays in its petition for Certiorari/Prohibition that (1) the second impeachment complaint and all proceedings arising therefrom be declared null and void; (2) respondent House of Representatives be prohibited from transmitting the Articles of Impeachment to the Senate; and (3) respondent Senate be prohibited from accepting the Articles of Impeachment and from conducting any proceedings thereon. In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens and taxpayers, pray in their petition for Certiorari/Prohibition that (1) the second impeachment complaint as well as the resolution of endorsement and impeachment by the respondent House of Representatives be declared null and void and (2) respondents Senate and Senate President Franklin Drilon be prohibited from accepting any Articles of Impeachment against the Chief Justice or, in the event that they have accepted the same, that they be prohibited from proceeding with the impeachment trial. Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263, the first three of the eighteen which were filed before this Court,18 prayed for the issuance of a Temporary Restraining Order and/or preliminary injunction to prevent the House of Representatives from transmitting the Articles of Impeachment arising from the second impeachment complaint to the Senate. Petition bearing docket number G.R. No. 160261 likewise prayed for the declaration of the November 28, 2001 House Impeachment Rules as null and void for being unconstitutional. Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295, which were filed on October 28, 2003, sought similar relief. In addition, petition bearing docket number G.R. No.

160292 alleged that House Resolution No. 260 (calling for a legislative inquiry into the administration by the Chief Justice of the JDF) infringes on the constitutional doctrine of separation of powers and is a direct violation of the constitutional principle of fiscal autonomy of the judiciary. On October 28, 2003, during the plenary session of the House of Representatives, a motion was put forth that the second impeachment complaint be formally transmitted to the Senate, but it was not carried because the House of Representatives adjourned for lack of quorum, 19 and as reflected above, to date, the Articles of Impeachment have yet to be forwarded to the Senate. Before acting on the petitions with prayers for temporary restraining order and/or writ of preliminary injunction which were filed on or before October 28, 2003, Justices Puno and Vitug offered to recuse themselves, but the Court rejected their offer. Justice Panganiban inhibited himself, but the Court directed him to participate. Without necessarily giving the petitions due course, this Court in its Resolution of October 28, 2003, resolved to (a) consolidate the petitions; (b) require respondent House of Representatives and the Senate, as well as the Solicitor General, to comment on the petitions not later than 4:30 p.m. of November 3, 2003; (c) set the petitions for oral arguments on November 5, 2003, at 10:00 a.m.; and (d) appointed distinguished legal experts as amici curiae.20 In addition, this Court called on petitioners and respondents to maintain the status quo, enjoining all the parties and others acting for and in their behalf to refrain from committing acts that would render the petitions moot. Also on October 28, 2003, when respondent House of Representatives through Speaker Jose C. De Venecia, Jr. and/or its co-respondents, by way of special appearance, submitted a Manifestation asserting that this Court has no jurisdiction to hear, much less prohibit or enjoin the House of Representatives, which is an independent and co-equal branch of government under the Constitution, from the performance of its constitutionally mandated duty to initiate impeachment cases. On even date, Senator Aquilino Q. Pimentel, Jr., in his own behalf, filed a Motion to Intervene (Ex Abudante Cautela)21 and Comment, praying that "the consolidated petitions be dismissed for lack of jurisdiction of the Court over the issues affecting the impeachment proceedings and that the sole power, authority and jurisdiction of the Senate as the impeachment court to try and decide impeachment cases, including the one where the Chief Justice is the respondent, be recognized and upheld pursuant to the provisions of Article XI of the Constitution."22 Acting on the other petitions which were subsequently filed, this Court resolved to (a) consolidate them with the earlier consolidated petitions; (b) require respondents to file their comment not later than 4:30 p.m. of November 3, 2003; and (c) include them for oral arguments on November 5, 2003. On October 29, 2003, the Senate of the Philippines, through Senate President Franklin M. Drilon, filed a Manifestation stating that insofar as it is concerned, the petitions are plainly premature and have no basis in law or in fact, adding that as of the time of the filing of the petitions, no justiciable issue was presented before it since (1) its constitutional duty to constitute itself as an impeachment court commences only upon its receipt of the Articles of Impeachment, which it had not, and (2) the principal issues raised by the petitions pertain exclusively to the proceedings in the House of Representatives. On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave to Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, and 160295, questioning the status quo Resolution issued by this Court on October 28, 2003 on the ground that it would unnecessarily put Congress and this Court in a "constitutional deadlock" and praying for the dismissal of all the petitions as the matter in question is not yet ripe for judicial determination. On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino Quadra filed in G.R. No. 160262 a "Motion for Leave of Court to Intervene and to Admit the Herein Incorporated Petition in Intervention."

On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc. filed a Motion for Intervention in G.R. No. 160261. On November 5, 2003, World War II Veterans Legionnaires of the Philippines, Inc. also filed a "Petition-in-Intervention with Leave to Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and 160310. The motions for intervention were granted and both Senator Pimentel's Comment and Attorneys Macalintal and Quadra's Petition in Intervention were admitted. On November 5-6, 2003, this Court heard the views of the amici curiae and the arguments of petitioners, intervenors Senator Pimentel and Attorney Makalintal, and Solicitor General Alfredo Benipayo on the principal issues outlined in an Advisory issued by this Court on November 3, 2003, to wit: Whether the certiorari jurisdiction of the Supreme Court may be invoked; who can invoke it; on what issues and at what time; and whether it should be exercised by this Court at this time. In discussing these issues, the following may be taken up: a) locus standi of petitioners; b) ripeness(prematurity; mootness); c) political question/justiciability; d) House's "exclusive" power to initiate all cases of impeachment; e) Senate's "sole" power to try and decide all cases of impeachment; f) constitutionality of the House Rules on Impeachment vis-a-vis Section 3(5) of Article XI of the Constitution; and g) judicial restraint (Italics in the original) In resolving the intricate conflux of preliminary and substantive issues arising from the instant petitions as well as the myriad arguments and opinions presented for and against the grant of the reliefs prayed for, this Court has sifted and determined them to be as follows: (1) the threshold and novel issue of whether or not the power of judicial review extends to those arising from impeachment proceedings; (2) whether or not the essential pre-requisites for the exercise of the power of judicial review have been fulfilled; and (3) the substantive issues yet remaining. These matters shall now be discussed in seriatim. Judicial Review As reflected above, petitioners plead for this Court to exercise the power of judicial review to determine the validity of the second impeachment complaint. This Court's power of judicial review is conferred on the judicial branch of the government in Section 1, Article VIII of our present 1987 Constitution: SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. (Emphasis supplied)

Such power of judicial review was early on exhaustively expounded upon by Justice Jose P. Laurel in the definitive 1936 case of Angara v. Electoral Commission23 after the effectivity of the 1935 Constitution whose provisions, unlike the present Constitution, did not contain the present provision in Article VIII, Section 1, par. 2 on what judicial power includes. Thus, Justice Laurel discoursed: x x x In times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof. As any human production, our Constitution is of course lacking perfection and perfectibility, but as much as it was within the power of our people, acting through their delegates to so provide, that instrument which is the expression of their sovereignty however limited, has established a republican government intended to operate and function as a harmonious whole, under a system of checks and balances, and subject to specific limitations and restrictions provided in the said instrument. The Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels,for then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere political apothegms. Certainly, the limitations and restrictions embodied in our Constitution are real as they should be in any living constitution. In the United States where no express constitutional grant is found in their constitution, the possession of this moderating power of the courts, not to speak of its historical origin and development there, has been set at rest by popular acquiescence for a period of more than one and a half centuries. In our case, this moderating power is granted, if not expressly, by clear implication from section 2 of article VIII of our Constitution. The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution. Even then, this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government.24 (Italics in the original; emphasis and underscoring supplied) As pointed out by Justice Laurel, this "moderating power" to "determine the proper allocation of powers" of the different branches of government and "to direct the course of government along constitutional channels" is inherent in all courts25 as a necessary consequence of the judicial power itself, which is "the power of the court to settle actual controversies involving rights which are legally demandable and enforceable."26

Thus, even in the United States where the power of judicial review is not explicitly conferred upon the courts by its Constitution, such power has "been set at rest by popular acquiescence for a period of more than one and a half centuries." To be sure, it was in the 1803 leading case of Marbury v. Madison27 that the power of judicial review was first articulated by Chief Justice Marshall, to wit: It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.28(Italics in the original; emphasis supplied) In our own jurisdiction, as early as 1902, decades before its express grant in the 1935 Constitution, the power of judicial review was exercised by our courts to invalidate constitutionally infirm acts.29 And as pointed out by noted political law professor and former Supreme Court Justice Vicente V. Mendoza,30 the executive and legislative branches of our government in fact effectively acknowledged this power of judicial review in Article 7 of the Civil Code, to wit: Article 7. Laws are repealed only by subsequent ones, and their violation or nonobservance shall not be excused by disuse, or custom or practice to the contrary. When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution. (Emphasis supplied) As indicated in Angara v. Electoral Commission,31 judicial review is indeed an integral component of the delicate system of checks and balances which, together with the corollary principle of separation of powers, forms the bedrock of our republican form of government and insures that its vast powers are utilized only for the benefit of the people for which it serves. The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. x x x And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution.32 (Emphasis and underscoring supplied) In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "x x x judicial review is essential for the maintenance and enforcement of the separation of powers and the balancing of powers among the three great departments of government through the definition and maintenance of the boundaries of authority and control between them."33 To him, "[j]udicial review is the chief, indeed the only, medium of participation – or instrument of intervention – of the judiciary in that balancing operation."34 To ensure the potency of the power of judicial review to curb grave abuse of discretion by "any branch or instrumentalities of government," the afore-quoted Section 1, Article VIII of the Constitution engraves, for the first time into its history, into block letter law the so-called

"expanded certiorari jurisdiction" of this Court, the nature of and rationale for which are mirrored in the following excerpt from the sponsorship speech of its proponent, former Chief Justice Constitutional Commissioner Roberto Concepcion: xxx The first section starts with a sentence copied from former Constitutions. It says: The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. I suppose nobody can question it. The next provision is new in our constitutional law. I will read it first and explain. Judicial power includes the duty of courts of justice to settle actual controversies involving rights which are legally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part or instrumentality of the government. Fellow Members of this Commission, this is actually a product of our experience during martial law. As a matter of fact, it has some antecedents in the past, but the role of the judiciary during the deposed regime was marred considerably by the circumstance that in a number of cases against the government, which then had no legal defense at all, the solicitor general set up the defense of political questions and got away with it. As a consequence, certain principles concerning particularly the writ of habeas corpus, that is, the authority of courts to order the release of political detainees, and other matters related to the operation and effect of martial law failed because the government set up the defense of political question. And the Supreme Court said: "Well, since it is political, we have no authority to pass upon it." The Committee on the Judiciary feels that this was not a proper solution of the questions involved. It did not merely request an encroachment upon the rights of the people, but it, in effect, encouraged further violations thereof during the martial law regime. x x x xxx Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature. This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute a political question.35 (Italics in the original; emphasis and underscoring supplied) To determine the merits of the issues raised in the instant petitions, this Court must necessarily turn to the Constitution itself which employs the well-settled principles of constitutional construction. First, verba legis, that is, wherever possible, the words used in the Constitution must be given their ordinary meaning except where technical terms are employed. Thus, in J.M. Tuason & Co., Inc. v. Land Tenure Administration,36 this Court, speaking through Chief Justice Enrique Fernando, declared: We look to the language of the document itself in our search for its meaning. We do not of course stop there, but that is where we begin. It is to be assumed that

the words in which constitutional provisions are couched express the objective sought to be attained. They are to be given their ordinary meaning except where technical terms are employed in which case the significance thus attached to them prevails. As the Constitution is not primarily a lawyer's document, it being essential for the rule of law to obtain that it should ever be present in the people's consciousness, its language as much as possible should be understood in the sense they have in common use. What it says according to the text of the provision to be construed compels acceptance and negates the power of the courts to alter it, based on the postulate that the framers and the people mean what they say. Thus these are the cases where the need for construction is reduced to a minimum.37 (Emphasis and underscoring supplied) Second, where there is ambiguity, ratio legis est anima. The words of the Constitution should be interpreted in accordance with the intent of its framers. And so did this Court apply this principle in Civil Liberties Union v. Executive Secretary38 in this wise: A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in the light of the history of the times, and the condition and circumstances under which the Constitution was framed. The object is to ascertain the reason which induced the framers of the Constitution to enact the particular provision and the purpose sought to be accomplished thereby, in order to construe the whole as to make the words consonant to that reason and calculated to effect that purpose.39 (Emphasis and underscoring supplied) As it did in Nitafan v. Commissioner on Internal Revenue40 where, speaking through Madame Justice Amuerfina A. Melencio-Herrera, it declared: x x x The ascertainment of that intent is but in keeping with the fundamental principle of constitutional construction that the intent of the framers of the organic law and of the people adopting it should be given effect. The primary task in constitutional construction is to ascertain and thereafter assure the realization of the purpose of the framers and of the people in the adoption of the Constitution. It may also be safely assumed that the people in ratifying the Constitution were guided mainly by the explanation offered by the framers.41 (Emphasis and underscoring supplied) Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a whole. Thus, in Chiongbian v. De Leon,42 this Court, through Chief Justice Manuel Moran declared: x x x [T]he members of the Constitutional Convention could not have dedicated a provision of our Constitution merely for the benefit of one person without considering that it could also affect others.When they adopted subsection 2, they permitted, if not willed, that said provision should function to the full extent of its substance and its terms, not by itself alone, but in conjunction with all other provisions of that great document.43 (Emphasis and underscoring supplied) Likewise, still in Civil Liberties Union v. Executive Secretary,44 this Court affirmed that: It is a well-established rule in constitutional construction that no one provision of the Constitution is to be separated from all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purposes of the instrument. Sections bearing on a particular subject should be considered and interpreted together as to effectuate the whole purpose of the Constitution and one section is not to be allowed to defeat another, if by any reasonable construction, the two can be made to stand together.

In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make the words idle and nugatory.45 (Emphasis supplied) If, however, the plain meaning of the word is not found to be clear, resort to other aids is available. In still the same case of Civil Liberties Union v. Executive Secretary, this Court expounded: While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other guides fail as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debates in the constitutional convention "are of value as showing the views of the individual members, and as indicating the reasons for their votes, but they give us no light as to the views of the large majority who did not talk, much less of the mass of our fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer to construe the constitution from what appears upon its face." The proper interpretation therefore depends more on how it was understood by the people adopting it than in the framers's understanding thereof.46 (Emphasis and underscoring supplied) It is in the context of the foregoing backdrop of constitutional refinement and jurisprudential application of the power of judicial review that respondents Speaker De Venecia, et. al. and intervenor Senator Pimentel raise the novel argument that the Constitution has excluded impeachment proceedings from the coverage of judicial review. Briefly stated, it is the position of respondents Speaker De Venecia et. al. that impeachment is a political action which cannot assume a judicial character. Hence, any question, issue or incident arising at any stage of the impeachment proceeding is beyond the reach of judicial review. 47 For his part, intervenor Senator Pimentel contends that the Senate's "sole power to try" impeachment cases48 (1) entirely excludes the application of judicial review over it; and (2) necessarily includes the Senate's power to determine constitutional questions relative to impeachment proceedings.49 In furthering their arguments on the proposition that impeachment proceedings are outside the scope of judicial review, respondents Speaker De Venecia, et. al. and intervenor Senator Pimentel rely heavily on American authorities, principally the majority opinion in the case of Nixon v. United States.50 Thus, they contend that the exercise of judicial review over impeachment proceedings is inappropriate since it runs counter to the framers' decision to allocate to different fora the powers to try impeachments and to try crimes; it disturbs the system of checks and balances, under which impeachment is the only legislative check on the judiciary; and it would create a lack of finality and difficulty in fashioning relief. 51 Respondents likewise point to deliberations on the US Constitution to show the intent to isolate judicial power of review in cases of impeachment. Respondents' and intervenors' reliance upon American jurisprudence, the American Constitution and American authorities cannot be credited to support the proposition that the Senate's "sole power to try and decide impeachment cases," as provided for under Art. XI, Sec. 3(6) of the Constitution, is a textually demonstrable constitutional commitment of all issues pertaining to impeachment to the legislature, to the total exclusion of the power of judicial review to check and restrain any grave abuse of the impeachment process. Nor can it reasonably support the interpretation that it necessarily confers upon the Senate the inherently judicial power to determine constitutional questions incident to impeachment proceedings. Said American jurisprudence and authorities, much less the American Constitution, are of dubious application for these are no longer controlling within our jurisdiction and have only limited persuasive merit insofar as Philippine constitutional law is concerned. As held in the case of Garcia vs. COMELEC,52 "[i]n resolving constitutional disputes, [this Court] should not be beguiled by foreign jurisprudence some of which are hardly applicable because they have been dictated by different constitutional settings and needs."53 Indeed, although the Philippine

Constitution can trace its origins to that of the United States, their paths of development have long since diverged. In the colorful words of Father Bernas, "[w]e have cut the umbilical cord." The major difference between the judicial power of the Philippine Supreme Court and that of the U.S. Supreme Court is that while the power of judicial review is only impliedly granted to the U.S. Supreme Court and is discretionary in nature, that granted to the Philippine Supreme Court and lower courts, as expressly provided for in the Constitution, is not just a power but also a duty, and it was given an expanded definition to include the power to correct any grave abuse of discretion on the part of any government branch or instrumentality. There are also glaring distinctions between the U.S. Constitution and the Philippine Constitution with respect to the power of the House of Representatives over impeachment proceedings. While the U.S. Constitution bestows sole power of impeachment to the House of Representatives without limitation,54 our Constitution, though vesting in the House of Representatives the exclusive power to initiate impeachment cases,55 provides for several limitations to the exercise of such power as embodied in Section 3(2), (3), (4) and (5), Article XI thereof. These limitations include the manner of filing, required vote to impeach, and the one year bar on the impeachment of one and the same official. Respondents are also of the view that judicial review of impeachments undermines their finality and may also lead to conflicts between Congress and the judiciary. Thus, they call upon this Court to exercise judicial statesmanship on the principle that "whenever possible, the Court should defer to the judgment of the people expressed legislatively, recognizing full well the perils of judicial willfulness and pride."56 But did not the people also express their will when they instituted the above-mentioned safeguards in the Constitution? This shows that the Constitution did not intend to leave the matter of impeachment to the sole discretion of Congress. Instead, it provided for certain welldefined limits, or in the language of Baker v. Carr,57"judicially discoverable standards" for determining the validity of the exercise of such discretion, through the power of judicial review. The cases of Romulo v. Yniguez58 and Alejandrino v. Quezon,59 cited by respondents in support of the argument that the impeachment power is beyond the scope of judicial review, are not in point. These cases concern the denial of petitions for writs of mandamus to compel the legislature to perform non-ministerial acts, and do not concern the exercise of the power of judicial review. There is indeed a plethora of cases in which this Court exercised the power of judicial review over congressional action. Thus, in Santiago v. Guingona, Jr.,60 this Court ruled that it is well within the power and jurisdiction of the Court to inquire whether the Senate or its officials committed a violation of the Constitution or grave abuse of discretion in the exercise of their functions and prerogatives. In Tanada v. Angara,61 in seeking to nullify an act of the Philippine Senate on the ground that it contravened the Constitution, it held that the petition raises a justiciable controversy and that when an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. In Bondoc v. Pineda,62 this Court declared null and void a resolution of the House of Representatives withdrawing the nomination, and rescinding the election, of a congressman as a member of the House Electoral Tribunal for being violative of Section 17, Article VI of the Constitution. In Coseteng v. Mitra,63 it held that the resolution of whether the House representation in the Commission on Appointments was based on proportional representation of the political parties as provided in Section 18, Article VI of the Constitution is subject to judicial review. In Daza v. Singson,64 it held that the act of the House of Representatives in removing the petitioner from the Commission on Appointments is subject to judicial review. In Tanada v. Cuenco,65 it held that although under the Constitution, the legislative power is vested exclusively in Congress, this does not detract from the power of the courts to pass upon the constitutionality of acts of Congress. In Angara v. Electoral Commission,66 it ruled that confirmation by the National Assembly of the election of any member, irrespective of whether his election is contested, is not essential before such memberelect may discharge the duties and enjoy the privileges of a member of the National Assembly.

Finally, there exists no constitutional basis for the contention that the exercise of judicial review over impeachment proceedings would upset the system of checks and balances. Verily, the Constitution is to be interpreted as a whole and "one section is not to be allowed to defeat another."67 Both are integral components of the calibrated system of independence and interdependence that insures that no branch of government act beyond the powers assigned to it by the Constitution. Essential Requisites for Judicial Review As clearly stated in Angara v. Electoral Commission, the courts' power of judicial review, like almost all powers conferred by the Constitution, is subject to several limitations, namely: (1) an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have "standing" to challenge; he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest possible opportunity; and (4) the issue of constitutionality must be the very lis mota of the case. x x x Even then, this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government.68 (Italics in the original) Standing Locus standi or legal standing or has been defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the question of standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions.69 Intervenor Soriano, in praying for the dismissal of the petitions, contends that petitioners do not have standing since only the Chief Justice has sustained and will sustain direct personal injury. Amicus curiae former Justice Minister and Solicitor General Estelito Mendoza similarly contends. Upon the other hand, the Solicitor General asserts that petitioners have standing since this Court had, in the past, accorded standing to taxpayers, voters, concerned citizens, legislators in cases involving paramount public interest70 and transcendental importance,71 and that procedural matters are subordinate to the need to determine whether or not the other branches of the government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them.72 Amicus curiae Dean Raul Pangalangan of the U.P. College of Law is of the same opinion, citing transcendental importance and the well-entrenched rule exception that, when the real party in interest is unable to vindicate his rights by seeking the same remedies, as in the case of the Chief Justice who, for ethical reasons, cannot himself invoke the jurisdiction of this Court, the courts will grant petitioners standing. There is, however, a difference between the rule on real-party-in-interest and the rule on standing, for the former is a concept of civil procedure73 while the latter has constitutional underpinnings.74 In view of the arguments set forth regarding standing, it behooves the Court to reiterate the ruling in Kilosbayan, Inc. v. Morato75 to clarify what is meant by locus standi and to distinguish it from real party-in-interest.

The difference between the rule on standing and real party in interest has been noted by authorities thus: "It is important to note . . . that standing because of its constitutional and public policy underpinnings, is very different from questions relating to whether a particular plaintiff is the real party in interest or has capacity to sue. Although all three requirements are directed towards ensuring that only certain parties can maintain an action, standing restrictions require a partial consideration of the merits, as well as broader policy concerns relating to the proper role of the judiciary in certain areas. Standing is a special concern in constitutional law because in some cases suits are brought not by parties who have been personally injured by the operation of a law or by official action taken, but by concerned citizens, taxpayers or voters who actually sue in the public interest. Hence the question in standing is whether such parties have "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." xxx On the other hand, the question as to "real party in interest" is whether he is "the party who would be benefited or injured by the judgment, or the 'party entitled to the avails of the suit.'"76 (Citations omitted) While rights personal to the Chief Justice may have been injured by the alleged unconstitutional acts of the House of Representatives, none of the petitioners before us asserts a violation of the personal rights of the Chief Justice. On the contrary, they invariably invoke the vindication of their own rights – as taxpayers; members of Congress; citizens, individually or in a class suit; and members of the bar and of the legal profession – which were supposedly violated by the alleged unconstitutional acts of the House of Representatives. In a long line of cases, however, concerned citizens, taxpayers and legislators when specific requirements have been met have been given standing by this Court. When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of. 77 In fine, when the proceeding involves the assertion of a public right,78 the mere fact that he is a citizen satisfies the requirement of personal interest. In the case of a taxpayer, he is allowed to sue where there is a claim that public funds are illegally disbursed, or that public money is being deflected to any improper purpose, or that there is a wastage of public funds through the enforcement of an invalid or unconstitutional law.79 Before he can invoke the power of judicial review, however, he must specifically prove that he has sufficient interest in preventing the illegal expenditure of money raised by taxation and that he would sustain a direct injury as a result of the enforcement of the questioned statute or contract. It is not sufficient that he has merely a general interest common to all members of the public.80 At all events, courts are vested with discretion as to whether or not a taxpayer's suit should be entertained.81 This Court opts to grant standing to most of the petitioners, given their allegation that any impending transmittal to the Senate of the Articles of Impeachment and the ensuing trial of the Chief Justice will necessarily involve the expenditure of public funds. As for a legislator, he is allowed to sue to question the validity of any official action which he claims infringes his prerogatives as a legislator.82 Indeed, a member of the House of Representatives has standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in his office.83

While an association has legal personality to represent its members, 84 especially when it is composed of substantial taxpayers and the outcome will affect their vital interests,85 the mere invocation by the Integrated Bar of the Philippines or any member of the legal profession of the duty to preserve the rule of law and nothing more, although undoubtedly true, does not suffice to clothe it with standing. Its interest is too general. It is shared by other groups and the whole citizenry. However, a reading of the petitions shows that it has advanced constitutional issues which deserve the attention of this Court in view of their seriousness, novelty and weight as precedents.86 It, therefore, behooves this Court to relax the rules on standing and to resolve the issues presented by it. In the same vein, when dealing with class suits filed in behalf of all citizens, persons intervening must be sufficiently numerous to fully protect the interests of all concerned87 to enable the court to deal properly with all interests involved in the suit,88 for a judgment in a class suit, whether favorable or unfavorable to the class, is, under the res judicata principle, binding on all members of the class whether or not they were before the court.89 Where it clearly appears that not all interests can be sufficiently represented as shown by the divergent issues raised in the numerous petitions before this Court, G.R. No. 160365 as a class suit ought to fail. Since petitioners additionallyallege standing as citizens and taxpayers, however, their petition will stand. The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground of transcendental importance, while Atty. Dioscoro U. Vallejos, in G.R. No. 160397, is mum on his standing. There being no doctrinal definition of transcendental importance, the following instructive determinants formulated by former Supreme Court Justice Florentino P. Feliciano are instructive: (1) the character of the funds or other assets involved in the case; (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government; and (3) the lack of any other party with a more direct and specific interest in raising the questions being raised.90 Applying these determinants, this Court is satisfied that the issues raised herein are indeed of transcendental importance. In not a few cases, this Court has in fact adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able to craft an issue of transcendental significance to the people, as when the issues raised are of paramount importance to the public.91 Such liberality does not, however, mean that the requirement that a party should have an interest in the matter is totally eliminated. A party must, at the very least, still plead the existence of such interest, it not being one of which courts can take judicial notice. In petitioner Vallejos' case, he failed to allege any interest in the case. He does not thus have standing. With respect to the motions for intervention, Rule 19, Section 2 of the Rules of Court requires an intervenor to possess a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof. While intervention is not a matter of right, it may be permitted by the courts when the applicant shows facts which satisfy the requirements of the law authorizing intervention.92 In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadra's case, they seek to join petitioners Candelaria, et. al. in G.R. No. 160262. Since, save for one additional issue, they raise the same issues and the same standing, and no objection on the part of petitioners Candelaria, et. al. has been interposed, this Court as earlier stated, granted the Motion for Leave of Court to Intervene and Petition-in-Intervention. Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et. al. sought to join petitioner Francisco in G.R. No. 160261. Invoking their right as citizens to intervene, alleging that "they will suffer if this insidious scheme of the minority members of the House of Representatives is successful," this Court found the requisites for intervention had been complied with. Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and 160310 were of transcendental importance, World War II Veterans Legionnaires of the Philippines, Inc. filed a "Petition-in-Intervention with Leave to Intervene" to

raise the additional issue of whether or not the second impeachment complaint against the Chief Justice is valid and based on any of the grounds prescribed by the Constitution. Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et al. and World War II Veterans Legionnaires of the Philippines, Inc. possess a legal interest in the matter in litigation the respective motions to intervene were hereby granted. Senator Aquilino Pimentel, on the other hand, sought to intervene for the limited purpose of making of record and arguing a point of view that differs with Senate President Drilon's. He alleges that submitting to this Court's jurisdiction as the Senate President does will undermine the independence of the Senate which will sit as an impeachment court once the Articles of Impeachment are transmitted to it from the House of Representatives. Clearly, Senator Pimentel possesses a legal interest in the matter in litigation, he being a member of Congress against which the herein petitions are directed. For this reason, and to fully ventilate all substantial issues relating to the matter at hand, his Motion to Intervene was granted and he was, as earlier stated, allowed to argue. Lastly, as to Jaime N. Soriano's motion to intervene, the same must be denied for, while he asserts an interest as a taxpayer, he failed to meet the standing requirement for bringing taxpayer's suits as set forth in Dumlao v. Comelec,93 to wit: x x x While, concededly, the elections to be held involve the expenditure of public moneys, nowhere in their Petition do said petitioners allege that their tax money is "being extracted and spent in violation of specific constitutional protection against abuses of legislative power," or that there is a misapplication of such funds by respondent COMELEC, or that public money is being deflected to any improper purpose. Neither do petitioners seek to restrain respondent from wasting public funds through the enforcement of an invalid or unconstitutional law.94 (Citations omitted) In praying for the dismissal of the petitions, Soriano failed even to allege that the act of petitioners will result in illegal disbursement of public funds or in public money being deflected to any improper purpose. Additionally, his mere interest as a member of the Bar does not suffice to clothe him with standing. Ripeness and Prematurity In Tan v. Macapagal,95 this Court, through Chief Justice Fernando, held that for a case to be considered ripe for adjudication, "it is a prerequisite that something had by then been accomplished or performed by either branch before a court may come into the picture." 96 Only then may the courts pass on the validity of what was done, if and when the latter is challenged in an appropriate legal proceeding. The instant petitions raise in the main the issue of the validity of the filing of the second impeachment complaint against the Chief Justice in accordance with the House Impeachment Rules adopted by the 12th Congress, the constitutionality of which is questioned. The questioned acts having been carried out, i.e., the second impeachment complaint had been filed with the House of Representatives and the 2001 Rules have already been already promulgated and enforced, the prerequisite that the alleged unconstitutional act should be accomplished and performed before suit, as Tan v. Macapagal holds, has been complied with. Related to the issue of ripeness is the question of whether the instant petitions are premature. Amicus curiae former Senate President Jovito R. Salonga opines that there may be no urgent need for this Court to render a decision at this time, it being the final arbiter on questions of constitutionality anyway. He thus recommends that all remedies in the House and Senate should first be exhausted. Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law who suggests to this Court to take judicial notice of on-going attempts to encourage signatories to the second impeachment complaint to withdraw their signatures and opines that the House Impeachment Rules provide for an opportunity for members to raise constitutional questions themselves when the Articles of Impeachment are presented on a motion to transmit to the same to the Senate.

The dean maintains that even assuming that the Articles are transmitted to the Senate, the Chief Justice can raise the issue of their constitutional infirmity by way of a motion to dismiss. The dean's position does not persuade. First, the withdrawal by the Representatives of their signatures would not, by itself, cure the House Impeachment Rules of their constitutional infirmity. Neither would such a withdrawal, by itself, obliterate the questioned second impeachment complaint since it would only place it under the ambit of Sections 3(2) and (3) of Article XI of the Constitution97 and, therefore, petitioners would continue to suffer their injuries. Second and most importantly, the futility of seeking remedies from either or both Houses of Congress before coming to this Court is shown by the fact that, as previously discussed, neither the House of Representatives nor the Senate is clothed with the power to rule with definitiveness on the issue of constitutionality, whether concerning impeachment proceedings or otherwise, as said power is exclusively vested in the judiciary by the earlier quoted Section I, Article VIII of the Constitution. Remedy cannot be sought from a body which is bereft of power to grant it. Justiciability In the leading case of Tanada v. Cuenco,98 Chief Justice Roberto Concepcion defined the term "political question," viz: [T]he term "political question" connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy. In other words, in the language of Corpus Juris Secundum, it refers to "those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the Government." It is concerned with issues dependent upon the wisdom, not legality, of a particular measure.99(Italics in the original) Prior to the 1973 Constitution, without consistency and seemingly without any rhyme or reason, this Court vacillated on its stance of taking cognizance of cases which involved political questions. In some cases, this Court hid behind the cover of the political question doctrine and refused to exercise its power of judicial review.100 In other cases, however, despite the seeming political nature of the therein issues involved, this Court assumed jurisdiction whenever it found constitutionally imposed limits on powers or functions conferred upon political bodies. 101 Even in the landmark 1988 case of Javellana v. Executive Secretary102 which raised the issue of whether the 1973 Constitution was ratified, hence, in force, this Court shunted the political question doctrine and took cognizance thereof. Ratification by the people of a Constitution is a political question, it being a question decided by the people in their sovereign capacity. The frequency with which this Court invoked the political question doctrine to refuse to take jurisdiction over certain cases during the Marcos regime motivated Chief Justice Concepcion, when he became a Constitutional Commissioner, to clarify this Court's power of judicial review and its application on issues involving political questions, viz: MR. CONCEPCION. Thank you, Mr. Presiding Officer. I will speak on the judiciary. Practically, everybody has made, I suppose, the usual comment that the judiciary is the weakest among the three major branches of the service. Since the legislature holds the purse and the executive the sword, the judiciary has nothing with which to enforce its decisions or commands except the power of reason and appeal to conscience which, after all, reflects the will of God, and is the most powerful of all other powers without exception. x x x And so, with the body's indulgence, I will proceed to read the provisions drafted by the Committee on the Judiciary. The first section starts with a sentence copied from former Constitutions. It says: The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

I suppose nobody can question it. The next provision is new in our constitutional law. I will read it first and explain. Judicial power includes the duty of courts of justice to settle actual controversies involving rights which are legally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part or instrumentality of the government. Fellow Members of this Commission, this is actually a product of our experience during martial law. As a matter of fact, it has some antecedents in the past, but the role of the judiciary during the deposed regime was marred considerably by the circumstance that in a number of cases against the government, which then had no legal defense at all, the solicitor general set up the defense of political questions and got away with it. As a consequence, certain principles concerning particularly the writ of habeas corpus, that is, the authority of courts to order the release of political detainees, and other matters related to the operation and effect of martial law failed because the government set up the defense of political question. And the Supreme Court said: "Well, since it is political, we have no authority to pass upon it." The Committee on the Judiciary feels that this was not a proper solution of the questions involved. It did not merely request an encroachment upon the rights of the people, but it, in effect, encouraged further violations thereof during the martial law regime. I am sure the members of the Bar are familiar with this situation. But for the benefit of the Members of the Commission who are not lawyers, allow me to explain. I will start with a decision of the Supreme Court in 1973 on the case of Javellana vs. the Secretary of Justice, if I am not mistaken. Martial law was announced on September 22, although the proclamation was dated September 21. The obvious reason for the delay in its publication was that the administration had apprehended and detained prominent newsmen on September 21. So that when martial law was announced on September 22, the media hardly published anything about it. In fact, the media could not publish any story not only because our main writers were already incarcerated, but also because those who succeeded them in their jobs were under mortal threat of being the object of wrath of the ruling party. The 1971 Constitutional Convention had begun on June 1, 1971 and by September 21 or 22 had not finished the Constitution; it had barely agreed in the fundamentals of the Constitution. I forgot to say that upon the proclamation of martial law, some delegates to that 1971 Constitutional Convention, dozens of them, were picked up. One of them was our very own colleague, Commissioner Calderon. So, the unfinished draft of the Constitution was taken over by representatives of Malacañang. In 17 days, they finished what the delegates to the 1971 Constitutional Convention had been unable to accomplish for about 14 months. The draft of the 1973 Constitution was presented to the President around December 1, 1972, whereupon the President issued a decree calling a plebiscite which suspended the operation of some provisions in the martial law decree which prohibited discussions, much less public discussions of certain matters of public concern. The purpose was presumably to allow a free discussion on the draft of the Constitution on which a plebiscite was to be held sometime in January 1973. If I may use a word famous by our colleague, Commissioner Ople, during the interregnum, however, the draft of the Constitution was analyzed and criticized with such a telling effect that Malacañang felt the danger of its approval. So, the President suspended indefinitely the holding of the plebiscite and announced that he would consult the people in a referendum to be held from January 10 to January 15. But the questions to be submitted in the referendum were not announced until the eve of its scheduled beginning, under the supposed supervision not of the Commission on Elections, but of what was then designated as "citizens assemblies or barangays." Thus the barangays came into existence. The questions to be propounded were released with proposed answers thereto, suggesting that it was unnecessary to hold a plebiscite because the answers given in the referendum should be regarded as the votes cast in the plebiscite. Thereupon, a motion was filed with the Supreme Court praying that the holding of the referendum be suspended. When the motion was being heard before the Supreme Court, the Minister of Justice delivered to the Court a proclamation of the President declaring that the new Constitution was already in force because the overwhelming majority of the votes cast in the referendum favored the Constitution. Immediately after

the departure of the Minister of Justice, I proceeded to the session room where the case was being heard. I then informed the Court and the parties the presidential proclamation declaring that the 1973 Constitution had been ratified by the people and is now in force. A number of other cases were filed to declare the presidential proclamation null and void. The main defense put up by the government was that the issue was a political question and that the court had no jurisdiction to entertain the case. xxx The government said that in a referendum held from January 10 to January 15, the vast majority ratified the draft of the Constitution. Note that all members of the Supreme Court were residents of Manila, but none of them had been notified of any referendum in their respective places of residence, much less did they participate in the alleged referendum. None of them saw any referendum proceeding. In the Philippines, even local gossips spread like wild fire. So, a majority of the members of the Court felt that there had been no referendum. Second, a referendum cannot substitute for a plebiscite. There is a big difference between a referendum and a plebiscite. But another group of justices upheld the defense that the issue was a political question. Whereupon, they dismissed the case. This is not the only major case in which the plea of "political question" was set up. There have been a number of other cases in the past. x x x The defense of the political question was rejected because the issue was clearly justiciable. xxx x x x When your Committee on the Judiciary began to perform its functions, it faced the following questions: What is judicial power? What is a political question? The Supreme Court, like all other courts, has one main function: to settle actual controversies involving conflicts of rights which are demandable and enforceable. There are rights which are guaranteed by law but cannot be enforced by a judiciary party. In a decided case, a husband complained that his wife was unwilling to perform her duties as a wife. The Court said: "We can tell your wife what her duties as such are and that she is bound to comply with them, but we cannot force her physically to discharge her main marital duty to her husband. There are some rights guaranteed by law, but they are so personal that to enforce them by actual compulsion would be highly derogatory to human dignity." This is why the first part of the second paragraph of Section I provides that: Judicial power includes the duty of courts to settle actual controversies involving rights which are legally demandable or enforceable . . . The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a presidential system of government, the Supreme Court has, also another important function. The powers of government are generally considered divided into three branches: the Legislative, the Executive and the Judiciary. Each one is supreme within its own sphere and independent of the others. Because of that supremacy power to determine whether a given law is valid or not is vested in courts of justice. Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting

to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature. This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute a political question. I have made these extended remarks to the end that the Commissioners may have an initial food for thought on the subject of the judiciary.103 (Italics in the original; emphasis supplied) During the deliberations of the Constitutional Commission, Chief Justice Concepcion further clarified the concept of judicial power, thus: MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial power is not vested in the Supreme Court alone but also in other lower courts as may be created by law. MR. CONCEPCION. Yes. MR. NOLLEDO. And so, is this only an example? MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify political questions with jurisdictional questions. But there is a difference. MR. NOLLEDO. Because of the expression "judicial power"? MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but where there is a question as to whether the government had authority or had abused its authority to the extent of lacking jurisdiction or excess of jurisdiction, that is not a political question. Therefore, the court has the duty to decide. xxx FR. BERNAS. Ultimately, therefore, it will always have to be decided by the Supreme Court according to the new numerical need for votes. On another point, is it the intention of Section 1 to do away with the political question doctrine? MR. CONCEPCION. No. FR. BERNAS. It is not. MR. CONCEPCION. No, because whenever there is an abuse of discretion, amounting to a lack of jurisdiction. . . FR. BERNAS. So, I am satisfied with the answer that it is not intended to do away with the political question doctrine. MR. CONCEPCION. No, certainly not. When this provision was originally drafted, it sought to define what is judicial power. But the Gentleman will notice it says, "judicial power includes" and the reason being that the definition that we might make may not cover all possible areas. FR. BERNAS. So, this is not an attempt to solve the problems arising from the political question doctrine.

MR. CONCEPCION. It definitely does not eliminate the fact that truly political questions are beyond the pale of judicial power.104 (Emphasis supplied) From the foregoing record of the proceedings of the 1986 Constitutional Commission, it is clear that judicial power is not only a power; it is also a duty, a duty which cannot be abdicated by the mere specter of this creature called the political question doctrine. Chief Justice Concepcion hastened to clarify, however, that Section 1, Article VIII was not intended to do away with "truly political questions." From this clarification it is gathered that there are two species of political questions: (1) "truly political questions" and (2) those which "are not truly political questions." Truly political questions are thus beyond judicial review, the reason for respect of the doctrine of separation of powers to be maintained. On the other hand, by virtue of Section 1, Article VIII of the Constitution, courts can review questions which are not truly political in nature. As pointed out by amicus curiae former dean Pacifico Agabin of the UP College of Law, this Court has in fact in a number of cases taken jurisdiction over questions which are not truly political following the effectivity of the present Constitution. In Marcos v. Manglapus,105 this Court, speaking through Madame Justice Irene Cortes, held: The present Constitution limits resort to the political question doctrine and broadens the scope of judicial inquiry into areas which the Court, under previous constitutions, would have normally left to the political departments to decide.106 x x x In Bengzon v. Senate Blue Ribbon Committee,107 through Justice Teodoro Padilla, this Court declared: The "allocation of constitutional boundaries" is a task that this Court must perform under the Constitution. Moreover, as held in a recent case, "(t)he political question doctrine neither interposes an obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional boundaries has been given to this Court. It cannot abdicate that obligation mandated by the 1987 Constitution, although said provision by no means does away with the applicability of the principle in appropriate cases."108 (Emphasis and underscoring supplied) And in Daza v. Singson,109 speaking through Justice Isagani Cruz, this Court ruled: In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that, even if we were to assume that the issue presented before us was political in nature, we would still not be precluded from resolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the political question.110 x x x (Emphasis and underscoring supplied.) Section 1, Article VIII, of the Court does not define what are justiciable political questions and non-justiciable political questions, however. Identification of these two species of political questions may be problematic. There has been no clear standard. The American case of Baker v. Carr111 attempts to provide some: x x x Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for questioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.112(Underscoring supplied) Of these standards, the more reliable have been the first three: (1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; (2) the lack of judicially discoverable and manageable standards for resolving it; and (3) the impossibility of

deciding without an initial policy determination of a kind clearly for non-judicial discretion. These standards are not separate and distinct concepts but are interrelated to each in that the presence of one strengthens the conclusion that the others are also present. The problem in applying the foregoing standards is that the American concept of judicial review is radically different from our current concept, for Section 1, Article VIII of the Constitution provides our courts with far less discretion in determining whether they should pass upon a constitutional issue. In our jurisdiction, the determination of a truly political question from a non-justiciable political question lies in the answer to the question of whether there are constitutionally imposed limits on powers or functions conferred upon political bodies. If there are, then our courts are dutybound to examine whether the branch or instrumentality of the government properly acted within such limits. This Court shall thus now apply this standard to the present controversy. These petitions raise five substantial issues: I. Whether the offenses alleged in the Second impeachment complaint constitute valid impeachable offenses under the Constitution. II. Whether the second impeachment complaint was filed in accordance with Section 3(4), Article XI of the Constitution. III. Whether the legislative inquiry by the House Committee on Justice into the Judicial Development Fund is an unconstitutional infringement of the constitutionally mandated fiscal autonomy of the judiciary. IV. Whether Sections 15 and 16 of Rule V of the Rules on Impeachment adopted by the 12th Congress are unconstitutional for violating the provisions of Section 3, Article XI of the Constitution. V. Whether the second impeachment complaint is barred under Section 3(5) of Article XI of the Constitution. The first issue goes into the merits of the second impeachment complaint over which this Court has no jurisdiction. More importantly, any discussion of this issue would require this Court to make a determination of what constitutes an impeachable offense. Such a determination is a purely political question which the Constitution has left to the sound discretion of the legislation. Such an intent is clear from the deliberations of the Constitutional Commission.113 Although Section 2 of Article XI of the Constitution enumerates six grounds for impeachment, two of these, namely, other high crimes and betrayal of public trust, elude a precise definition. In fact, an examination of the records of the 1986 Constitutional Commission shows that the framers could find no better way to approximate the boundaries of betrayal of public trust and other high crimes than by alluding to both positive and negative examples of both, without arriving at their clear cut definition or even a standard therefor.114 Clearly, the issue calls upon this court to decide a non-justiciable political question which is beyond the scope of its judicial power under Section 1, Article VIII. Lis Mota It is a well-settled maxim of adjudication that an issue assailing the constitutionality of a governmental act should be avoided whenever possible. Thus, in the case of Sotto v. Commission on Elections,115 this Court held: x x x It is a well-established rule that a court should not pass upon a constitutional question and decide a law to be unconstitutional or invalid, unless such question is raised by the parties and that when it is raised, if the record also presents some other ground upon which the court may rest its judgment, that course will be adopted and the constitutional question will be left for consideration until a case arises in

which a decision upon such question will be unavoidable.116 [Emphasis and underscoring supplied] The same principle was applied in Luz Farms v. Secretary of Agrarian Reform,117 where this Court invalidated Sections 13 and 32 of Republic Act No. 6657 for being confiscatory and violative of due process, to wit: It has been established that this Court will assume jurisdiction over a constitutional question only if it is shown that the essential requisites of a judicial inquiry into such a question are first satisfied. Thus, there must be an actual case or controversy involving a conflict of legal rights susceptible of judicial determination, the constitutional question must have been opportunely raised by the proper party, and the resolution of the question is unavoidably necessary to the decision of the case itself.118 [Emphasis supplied] Succinctly put, courts will not touch the issue of constitutionality unless it is truly unavoidable and is the very lis mota or crux of the controversy. As noted earlier, the instant consolidated petitions, while all seeking the invalidity of the second impeachment complaint, collectively raise several constitutional issues upon which the outcome of this controversy could possibly be made to rest. In determining whether one, some or all of the remaining substantial issues should be passed upon, this Court is guided by the related cannon of adjudication that "the court should not form a rule of constitutional law broader than is required by the precise facts to which it is applied."119 In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among other reasons, the second impeachment complaint is invalid since it directly resulted from a Resolution 120 calling for a legislative inquiry into the JDF, which Resolution and legislative inquiry petitioners claim to likewise be unconstitutional for being: (a) a violation of the rules and jurisprudence on investigations in aid of legislation; (b) an open breach of the doctrine of separation of powers; (c) a violation of the constitutionally mandated fiscal autonomy of the judiciary; and (d) an assault on the independence of the judiciary.121 Without going into the merits of petitioners Alfonso, et. al.'s claims, it is the studied opinion of this Court that the issue of the constitutionality of the said Resolution and resulting legislative inquiry is too far removed from the issue of the validity of the second impeachment complaint. Moreover, the resolution of said issue would, in the Court's opinion, require it to form a rule of constitutional law touching on the separate and distinct matter of legislative inquiries in general, which would thus be broader than is required by the facts of these consolidated cases. This opinion is further strengthened by the fact that said petitioners have raised other grounds in support of their petition which would not be adversely affected by the Court's ruling. En passant, this Court notes that a standard for the conduct of legislative inquiries has already been enunciated by this Court in Bengzon, Jr. v. Senate Blue Ribbon Commttee,122 viz: The 1987 Constitution expressly recognizes the power of both houses of Congress to conduct inquiries in aid of legislation. Thus, Section 21, Article VI thereof provides: The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. The power of both houses of Congress to conduct inquiries in aid of legislation is not, therefore absolute or unlimited. Its exercise is circumscribed by the afore-quoted provision of the Constitution. Thus, as provided therein, the investigation must be "in aid of legislation in accordance with its duly published rules of procedure" and that "the rights of persons appearing in or affected by such inquiries shall be respected." It follows then that the right rights of persons under the Bill of Rights must be respected, including the right to due process and the right not be compelled to testify against one's self. 123

In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino Quadra, while joining the original petition of petitioners Candelaria, et. al., introduce the new argument that since the second impeachment complaint was verified and filed only by Representatives Gilberto Teodoro, Jr. and Felix William Fuentebella, the same does not fall under the provisions of Section 3 (4), Article XI of the Constitution which reads: Section 3(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. They assert that while at least 81 members of the House of Representatives signed a Resolution of Endorsement/Impeachment, the same did not satisfy the requisites for the application of the afore-mentioned section in that the "verified complaint or resolution of impeachment" was not filed "by at least one-third of all the Members of the House." With the exception of Representatives Teodoro and Fuentebella, the signatories to said Resolution are alleged to have verified the same merely as a "Resolution of Endorsement." Intervenors point to the "Verification" of the Resolution of Endorsement which states that: "We are the proponents/sponsors of the Resolution of Endorsement of the abovementioned Complaint of Representatives Gilberto Teodoro and Felix William B. Fuentebella x x x"124 Intervenors Macalintal and Quadra further claim that what the Constitution requires in order for said second impeachment complaint to automatically become the Articles of Impeachment and for trial in the Senate to begin "forthwith," is that the verified complaint be "filed," not merely endorsed, by at least one-third of the Members of the House of Representatives. Not having complied with this requirement, they concede that the second impeachment complaint should have been calendared and referred to the House Committee on Justice under Section 3(2), Article XI of the Constitution, viz: Section 3(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. Intervenors' foregoing position is echoed by Justice Maambong who opined that for Section 3 (4), Article XI of the Constitution to apply, there should be 76 or more representatives who signed and verified the second impeachment complaint as complainants, signed and verified the signatories to a resolution of impeachment. Justice Maambong likewise asserted that the Resolution of Endorsement/Impeachment signed by at least one-third of the members of the House of Representatives as endorsers is not the resolution of impeachment contemplated by the Constitution, such resolution of endorsement being necessary only from at least one Member whenever a citizen files a verified impeachment complaint. While the foregoing issue, as argued by intervenors Macalintal and Quadra, does indeed limit the scope of the constitutional issues to the provisions on impeachment, more compelling considerations militate against its adoption as the lis mota or crux of the present controversy. Chief among this is the fact that only Attorneys Macalintal and Quadra, intervenors in G.R. No. 160262, have raised this issue as a ground for invalidating the second impeachment complaint. Thus, to adopt this additional ground as the basis for deciding the instant consolidated petitions would not only render for naught the efforts of the original petitioners in G.R. No. 160262, but the efforts presented by the other petitioners as well. Again, the decision to discard the resolution of this issue as unnecessary for the determination of the instant cases is made easier by the fact that said intervenors Macalintal and Quadra have joined in the petition of Candelaria, et. al., adopting the latter's arguments and issues as their own. Consequently, they are not unduly prejudiced by this Court's decision.

In sum, this Court holds that the two remaining issues, inextricably linked as they are, constitute the very lis mota of the instant controversy: (1) whether Sections 15 and 16 of Rule V of the House Impeachment Rules adopted by the 12th Congress are unconstitutional for violating the provisions of Section 3, Article XI of the Constitution; and (2) whether, as a result thereof, the second impeachment complaint is barred under Section 3(5) of Article XI of the Constitution. Judicial Restraint Senator Pimentel urges this Court to exercise judicial restraint on the ground that the Senate, sitting as an impeachment court, has the sole power to try and decide all cases of impeachment. Again, this Court reiterates that the power of judicial review includes the power of review over justiciable issues in impeachment proceedings. On the other hand, respondents Speaker De Venecia et. al. argue that "[t]here is a moral compulsion for the Court to not assume jurisdiction over the impeachment because all the Members thereof are subject to impeachment."125But this argument is very much like saying the Legislature has a moral compulsion not to pass laws with penalty clauses because Members of the House of Representatives are subject to them. The exercise of judicial restraint over justiciable issues is not an option before this Court. Adjudication may not be declined, because this Court is not legally disqualified. Nor can jurisdiction be renounced as there is no other tribunal to which the controversy may be referred."126 Otherwise, this Court would be shirking from its duty vested under Art. VIII, Sec. 1(2) of the Constitution. More than being clothed with authority thus, this Court is duty-bound to take cognizance of the instant petitions.127 In the august words of amicus curiae Father Bernas, "jurisdiction is not just a power; it is a solemn duty which may not be renounced. To renounce it, even if it is vexatious, would be a dereliction of duty." Even in cases where it is an interested party, the Court under our system of government cannot inhibit itself and must rule upon the challenge because no other office has the authority to do so.128 On the occasion that this Court had been an interested party to the controversy before it, it has acted upon the matter "not with officiousness but in the discharge of an unavoidable duty and, as always, with detachment and fairness."129 After all, "by [his] appointment to the office, the public has laid on [a member of the judiciary] their confidence that [he] is mentally and morally fit to pass upon the merits of their varied contentions. For this reason, they expect [him] to be fearless in [his] pursuit to render justice, to be unafraid to displease any person, interest or power and to be equipped with a moral fiber strong enough to resist the temptations lurking in [his] office."130 The duty to exercise the power of adjudication regardless of interest had already been settled in the case of Abbas v. Senate Electoral Tribunal.131 In that case, the petitioners filed with the respondent Senate Electoral Tribunal a Motion for Disqualification or Inhibition of the SenatorsMembers thereof from the hearing and resolution of SET Case No. 002-87 on the ground that all of them were interested parties to said case as respondents therein. This would have reduced the Tribunal's membership to only its three Justices-Members whose disqualification was not sought, leaving them to decide the matter. This Court held: Where, as here, a situation is created which precludes the substitution of any Senator sitting in the Tribunal by any of his other colleagues in the Senate without inviting the same objections to the substitute's competence, the proposed mass disqualification, if sanctioned and ordered, would leave the Tribunal no alternative but to abandon a duty that no other court or body can perform, but which it cannot lawfully discharge if shorn of the participation of its entire membership of Senators. To our mind, this is the overriding consideration — that the Tribunal be not prevented from discharging a duty which it alone has the power to perform, the performance of which is in the highest public interest as evidenced by its being expressly imposed by no less than the fundamental law. It is aptly noted in the first of the questioned Resolutions that the framers of the Constitution could not have been unaware of the possibility of an election contest that

would involve all Senators—elect, six of whom would inevitably have to sit in judgment thereon. Indeed, such possibility might surface again in the wake of the 1992 elections when once more, but for the last time, all 24 seats in the Senate will be at stake. Yet the Constitution provides no scheme or mode for settling such unusual situations or for the substitution of Senators designated to the Tribunal whose disqualification may be sought. Litigants in such situations must simply place their trust and hopes of vindication in the fairness and sense of justice of the Members of the Tribunal. Justices and Senators, singly and collectively. Let us not be misunderstood as saying that no Senator-Member of the Senate Electoral Tribunal may inhibit or disqualify himself from sitting in judgment on any case before said Tribunal. Every Member of the Tribunal may, as his conscience dictates, refrain from participating in the resolution of a case where he sincerely feels that his personal interests or biases would stand in the way of an objective and impartial judgment. What we are merely saying is that in the light of the Constitution, the Senate Electoral Tribunal cannot legally function as such, absent its entire membership of Senators and that no amendment of its Rules can confer on the three Justices-Members alone the power of valid adjudication of a senatorial election contest. More recently in the case of Estrada v. Desierto,132 it was held that: Moreover, to disqualify any of the members of the Court, particularly a majority of them, is nothing short of pro tanto depriving the Court itself of its jurisdiction as established by the fundamental law. Disqualification of a judge is a deprivation of his judicial power. And if that judge is the one designated by the Constitution to exercise the jurisdiction of his court, as is the case with the Justices of this Court, the deprivation of his or their judicial power is equivalent to the deprivation of the judicial power of the court itself. It affects the very heart of judicial independence. The proposed mass disqualification, if sanctioned and ordered, would leave the Court no alternative but to abandon a duty which it cannot lawfully discharge if shorn of the participation of its entire membership of Justices.133 (Italics in the original) Besides, there are specific safeguards already laid down by the Court when it exercises its power of judicial review. In Demetria v. Alba,134 this Court, through Justice Marcelo Fernan cited the "seven pillars" of limitations of the power of judicial review, enunciated by US Supreme Court Justice Brandeis in Ashwander v. TVA135 as follows: 1. The Court will not pass upon the constitutionality of legislation in a friendly, nonadversary proceeding, declining because to decide such questions 'is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.' 2. The Court will not 'anticipate a question of constitutional law in advance of the necessity of deciding it.' . . . 'It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.' 3. The Court will not 'formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.' 4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. Appeals from the highest court of a state challenging its decision of a question under the Federal Constitution are frequently dismissed because the judgment can be sustained on an independent state ground.

5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right. Thus, the challenge by a public official interested only in the performance of his official duty will not be entertained . . . In Fairchild v. Hughes, the Court affirmed the dismissal of a suit brought by a citizen who sought to have the Nineteenth Amendment declared unconstitutional. In Massachusetts v. Mellon, the challenge of the federal Maternity Act was not entertained although made by the Commonwealth on behalf of all its citizens. 6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits. 7. When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided (citations omitted). The foregoing "pillars" of limitation of judicial review, summarized in Ashwander v. TVA from different decisions of the United States Supreme Court, can be encapsulated into the following categories: 1. that there be absolute necessity of deciding a case 2. that rules of constitutional law shall be formulated only as required by the facts of the case 3. that judgment may not be sustained on some other ground 4. that there be actual injury sustained by the party by reason of the operation of the statute 5. that the parties are not in estoppel 6. that the Court upholds the presumption of constitutionality. As stated previously, parallel guidelines have been adopted by this Court in the exercise of judicial review: 1. actual case or controversy calling for the exercise of judicial power 2. the person challenging the act must have "standing" to challenge; he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement 3. the question of constitutionality must be raised at the earliest possible opportunity 4. the issue of constitutionality must be the very lis mota of the case.136 Respondents Speaker de Venecia, et. al. raise another argument for judicial restraint the possibility that "judicial review of impeachments might also lead to embarrassing conflicts between the Congress and the [J]udiciary." They stress the need to avoid the appearance of impropriety or conflicts of interest in judicial hearings, and the scenario that it would be confusing and humiliating and risk serious political instability at home and abroad if the judiciary countermanded the vote of Congress to remove an impeachable official.137 Intervenor Soriano echoes this argument by alleging that failure of this Court to enforce its Resolution against Congress would result in the diminution of its judicial authority and erode public confidence and faith in the judiciary.

Such an argument, however, is specious, to say the least. As correctly stated by the Solicitor General, the possibility of the occurrence of a constitutional crisis is not a reason for this Court to refrain from upholding the Constitution in all impeachment cases. Justices cannot abandon their constitutional duties just because their action may start, if not precipitate, a crisis. Justice Feliciano warned against the dangers when this Court refuses to act. x x x Frequently, the fight over a controversial legislative or executive act is not regarded as settled until the Supreme Court has passed upon the constitutionality of the act involved, the judgment has not only juridical effects but also political consequences. Those political consequences may follow even where the Court fails to grant the petitioner's prayer to nullify an act for lack of the necessary number of votes. Frequently, failure to act explicitly, one way or the other, itself constitutes a decision for the respondent and validation, or at least quasi-validation, follows." 138 Thus, in Javellana v. Executive Secretary139 where this Court was split and "in the end there were not enough votes either to grant the petitions, or to sustain respondent's claims," 140 the pre-existing constitutional order was disrupted which paved the way for the establishment of the martial law regime. Such an argument by respondents and intervenor also presumes that the coordinate branches of the government would behave in a lawless manner and not do their duty under the law to uphold the Constitution and obey the laws of the land. Yet there is no reason to believe that any of the branches of government will behave in a precipitate manner and risk social upheaval, violence, chaos and anarchy by encouraging disrespect for the fundamental law of the land. Substituting the word public officers for judges, this Court is well guided by the doctrine in People v. Veneracion, to wit:141 Obedience to the rule of law forms the bedrock of our system of justice. If [public officers], under the guise of religious or political beliefs were allowed to roam unrestricted beyond boundaries within which they are required by law to exercise the duties of their office, then law becomes meaningless. A government of laws, not of men excludes the exercise of broad discretionary powers by those acting under its authority. Under this system, [public officers] are guided by the Rule of Law, and ought "to protect and enforce it without fear or favor," resist encroachments by governments, political parties, or even the interference of their own personal beliefs.142 Constitutionality of for adopted by the 12th Congress

the Impeachment

Rules

of

Procedure Proceedings

Respondent House of Representatives, through Speaker De Venecia, argues that Sections 16 and 17 of Rule V of the House Impeachment Rules do not violate Section 3 (5) of Article XI of our present Constitution, contending that the term "initiate" does not mean "to file;" that Section 3 (1) is clear in that it is the House of Representatives, as a collective body, which has the exclusive power to initiate all cases of impeachment; that initiate could not possibly mean "to file" because filing can, as Section 3 (2), Article XI of the Constitution provides, only be accomplished in 3 ways, to wit: (1) by a verified complaint for impeachment by any member of the House of Representatives; or (2) by any citizen upon a resolution of endorsement by any member; or (3) by at least 1/3 of all the members of the House. Respondent House of Representatives concludes that the one year bar prohibiting the initiation of impeachment proceedings against the same officials could not have been violated as the impeachment complaint against Chief Justice Davide and seven Associate Justices had not been initiated as the House of Representatives, acting as the collective body, has yet to act on it. The resolution of this issue thus hinges on the interpretation of the term "initiate." Resort to statutory construction is, therefore, in order. That the sponsor of the provision of Section 3(5) of the Constitution, Commissioner Florenz Regalado, who eventually became an Associate Justice of this Court, agreed on the meaning of

"initiate" as "to file," as proffered and explained by Constitutional Commissioner Maambong during the Constitutional Commission proceedings, which he (Commissioner Regalado) as amicus curiae affirmed during the oral arguments on the instant petitions held on November 5, 2003 at which he added that the act of "initiating" included the act of taking initial action on the complaint, dissipates any doubt that indeed the word "initiate" as it twice appears in Article XI (3) and (5) of the Constitution means to file the complaint and take initial action on it. "Initiate" of course is understood by ordinary men to mean, as dictionaries do, to begin, to commence, or set going. As Webster's Third New International Dictionary of the English Language concisely puts it, it means "to perform or facilitate the first action," which jibes with Justice Regalado's position, and that of Father Bernas, who elucidated during the oral arguments of the instant petitions on November 5, 2003 in this wise: Briefly then, an impeachment proceeding is not a single act. It is a comlexus of acts consisting of a beginning, a middle and an end. The end is the transmittal of the articles of impeachment to the Senate. The middle consists of those deliberative moments leading to the formulation of the articles of impeachment. The beginning or the initiation is the filing of the complaint and its referral to the Committee on Justice. Finally, it should be noted that the House Rule relied upon by Representatives Cojuangco and Fuentebella says that impeachment is "deemed initiated" when the Justice Committee votes in favor of impeachment or when the House reverses a contrary vote of the Committee. Note that the Rule does not say "impeachment proceedings" are initiated but rather are "deemed initiated." The language is recognition that initiation happened earlier, but by legal fiction there is an attempt to postpone it to a time after actual initiation. (Emphasis and underscoring supplied) As stated earlier, one of the means of interpreting the Constitution is looking into the intent of the law. Fortunately, the intent of the framers of the 1987 Constitution can be pried from its records: MR. MAAMBONG. With reference to Section 3, regarding the procedure and the substantive provisions on impeachment, I understand there have been many proposals and, I think, these would need some time for Committee action. However, I would just like to indicate that I submitted to the Committee a resolution on impeachment proceedings, copies of which have been furnished the Members of this body. This is borne out of my experience as a member of the Committee on Justice, Human Rights and Good Government which took charge of the last impeachment resolution filed before the First Batasang Pambansa. For the information of the Committee, the resolution covers several steps in the impeachment proceedings starting with initiation, action of the Speaker committee action, calendaring of report, voting on the report, transmittal referral to the Senate, trial and judgment by the Senate. xxx MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration of the approval of the amendment submitted by Commissioner Regalado, but I will just make of record my thinking that we do not really initiate the filing of the Articles of Impeachment on the floor. The procedure, as I have pointed out earlier, was that the initiation starts with the filing of the complaint. And what is actually done on the floor is that the committee resolution containing the Articles of Impeachment is the one approved by the body. As the phraseology now runs, which may be corrected by the Committee on Style, it appears that the initiation starts on the floor. If we only have time, I could cite examples in the case of the impeachment proceedings of President Richard Nixon wherein the Committee on the Judiciary submitted the recommendation, the resolution, and the Articles of Impeachment to the body, and it was the body who approved the resolution. It is not the body which initiates it. It only approves or disapproves the

resolution. So, on that score, probably the Committee on Style could help in rearranging these words because we have to be very technical about this. I have been bringing with me The Rules of the House of Representatives of the U.S. Congress. The Senate Rules are with me. The proceedings on the case of Richard Nixon are with me. I have submitted my proposal, but the Committee has already decided. Nevertheless, I just want to indicate this on record. xxx MR. MAAMBONG. I would just like to move for a reconsideration of the approval of Section 3 (3). My reconsideration will not at all affect the substance, but it is only in keeping with the exact formulation of the Rules of the House of Representatives of the United States regarding impeachment. I am proposing, Madam President, without doing damage to any of this provision, that on page 2, Section 3 (3), from lines 17 to 18, we delete the words which read: "to initiate impeachment proceedings" and the comma (,) and insert on line 19 after the word "resolution" the phrase WITH THE ARTICLES, and then capitalize the letter "i" in "impeachment" and replace the word "by" with OF, so that the whole section will now read: "A vote of at least one-third of all the Members of the House shall be necessary either to affirm a resolution WITH THE ARTICLES of Impeachment OF the Committee or to override its contrary resolution. The vote of each Member shall be recorded." I already mentioned earlier yesterday that the initiation, as far as the House of Representatives of the United States is concerned, really starts from the filing of the verified complaint and every resolution to impeach always carries with it the Articles of Impeachment. As a matter of fact, the words "Articles of Impeachment" are mentioned on line 25 in the case of the direct filing of a verified compliant of one-third of all the Members of the House. I will mention again, Madam President, that my amendment will not vary the substance in any way. It is only in keeping with the uniform procedure of the House of Representatives of the United States Congress. Thank you, Madam President.143 (Italics in the original; emphasis and udnerscoring supplied) This amendment proposed by Commissioner Maambong was clarified and accepted by the Committee on the Accountability of Public Officers.144 It is thus clear that the framers intended "initiation" to start with the filing of the complaint. In his amicus curiae brief, Commissioner Maambong explained that "the obvious reason in deleting the phrase "to initiate impeachment proceedings" as contained in the text of the provision of Section 3 (3) was to settle and make it understood once and for all that the initiation of impeachment proceedings starts with the filing of the complaint, and the vote of one-third of the House in a resolution of impeachment does not initiate the impeachment proceedings which was already initiated by the filing of a verified complaint under Section 3, paragraph (2), Article XI of the Constitution."145 Amicus curiae Constitutional Commissioner Regalado is of the same view as is Father Bernas, who was also a member of the 1986 Constitutional Commission, that the word "initiate" as used in Article XI, Section 3(5) means to file, both adding, however, that the filing must be accompanied by an action to set the complaint moving. During the oral arguments before this Court, Father Bernas clarified that the word "initiate," appearing in the constitutional provision on impeachment, viz: Section 3 (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment. xxx (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year, (Emphasis supplied)

refers to two objects, "impeachment case" and "impeachment proceeding." Father Bernas explains that in these two provisions, the common verb is "to initiate." The object in the first sentence is "impeachment case." The object in the second sentence is "impeachment proceeding." Following the principle of reddendo singuala sinuilis, the term "cases" must be distinguished from the term "proceedings." An impeachment case is the legal controversy that must be decided by the Senate. Above-quoted first provision provides that the House, by a vote of one-third of all its members, can bring a case to the Senate. It is in that sense that the House has "exclusive power" to initiate all cases of impeachment. No other body can do it. However, before a decision is made to initiate a case in the Senate, a "proceeding" must be followed to arrive at a conclusion. A proceeding must be "initiated." To initiate, which comes from the Latin word initium, means to begin. On the other hand, proceeding is a progressive noun. It has a beginning, a middle, and an end. It takes place not in the Senate but in the House and consists of several steps: (1) there is the filing of a verified complaint either by a Member of the House of Representatives or by a private citizen endorsed by a Member of the House of the Representatives; (2) there is the processing of this complaint by the proper Committee which may either reject the complaint or uphold it; (3) whether the resolution of the Committee rejects or upholds the complaint, the resolution must be forwarded to the House for further processing; and (4) there is the processing of the same complaint by the House of Representatives which either affirms a favorable resolution of the Committee or overrides a contrary resolution by a vote of one-third of all the members. If at least one third of all the Members upholds the complaint, Articles of Impeachment are prepared and transmitted to the Senate. It is at this point that the House "initiates an impeachment case." It is at this point that an impeachable public official is successfully impeached. That is, he or she is successfully charged with an impeachment "case" before the Senate as impeachment court. Father Bernas further explains: The "impeachment proceeding" is not initiated when the complaint is transmitted to the Senate for trial because that is the end of the House proceeding and the beginning of another proceeding, namely the trial. Neither is the "impeachment proceeding" initiated when the House deliberates on the resolution passed on to it by the Committee, because something prior to that has already been done. The action of the House is already a further step in the proceeding, not its initiation or beginning. Rather, the proceeding is initiated or begins, when a verified complaint is filed and referred to the Committee on Justice for action. This is the initiating step which triggers the series of steps that follow. The framers of the Constitution also understood initiation in its ordinary meaning. Thus when a proposal reached the floor proposing that "A vote of at least one-third of all the Members of the House shall be necessary… to initiate impeachment proceedings," this was met by a proposal to delete the line on the ground that the vote of the House does not initiate impeachment proceeding but rather the filing of a complaint does.146 Thus the line was deleted and is not found in the present Constitution. Father Bernas concludes that when Section 3 (5) says, "No impeachment proceeding shall be initiated against the same official more than once within a period of one year," it means that no second verified complaint may be accepted and referred to the Committee on Justice for action. By his explanation, this interpretation is founded on the common understanding of the meaning of "to initiate" which means to begin. He reminds that the Constitution is ratified by the people, both ordinary and sophisticated, as they understand it; and that ordinary people read ordinary meaning into ordinary words and not abstruse meaning, they ratify words as they understand it and not as sophisticated lawyers confuse it. To the argument that only the House of Representatives as a body can initiate impeachment proceedings because Section 3 (1) says "The House of Representatives shall have the exclusive power to initiate all cases of impeachment," This is a misreading of said provision and is contrary to the principle of reddendo singula singulis by equating "impeachment cases" with "impeachment proceeding." From the records of the Constitutional Commission, to the amicus curiae briefs of two former Constitutional Commissioners, it is without a doubt that the term "to initiate" refers to the filing of the impeachment complaint coupled with Congress' taking initial action of said complaint.

Having concluded that the initiation takes place by the act of filing and referral or endorsement of the impeachment complaint to the House Committee on Justice or, by the filing by at least one-third of the members of the House of Representatives with the Secretary General of the House, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated, another impeachment complaint may not be filed against the same official within a one year period. Under Sections 16 and 17 of Rule V of the House Impeachment Rules, impeachment proceedings are deemed initiated (1) if there is a finding by the House Committee on Justice that the verified complaint and/or resolution is sufficient in substance, or (2) once the House itself affirms or overturns the finding of the Committee on Justice that the verified complaint and/or resolution is not sufficient in substance or (3) by the filing or endorsement before the Secretary-General of the House of Representatives of a verified complaint or a resolution of impeachment by at least 1/3 of the members of the House. These rules clearly contravene Section 3 (5) of Article XI since the rules give the term "initiate" a meaning different meaning from filing and referral. In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court could not use contemporaneous construction as an aid in the interpretation of Sec.3 (5) of Article XI, citing Vera v. Avelino147 wherein this Court stated that "their personal opinions (referring to Justices who were delegates to the Constitution Convention) on the matter at issue expressed during this Court's our deliberations stand on a different footing from the properly recorded utterances of debates and proceedings." Further citing said case, he states that this Court likened the former members of the Constitutional Convention to actors who are so absorbed in their emotional roles that intelligent spectators may know more about the real meaning because of the latter's balanced perspectives and disinterestedness.148 Justice Gutierrez's statements have no application in the present petitions. There are at present only two members of this Court who participated in the 1986 Constitutional Commission – Chief Justice Davide and Justice Adolf Azcuna. Chief Justice Davide has not taken part in these proceedings for obvious reasons. Moreover, this Court has not simply relied on the personal opinions now given by members of the Constitutional Commission, but has examined the records of the deliberations and proceedings thereof. Respondent House of Representatives counters that under Section 3 (8) of Article XI, it is clear and unequivocal that it and only it has the power to make and interpret its rules governing impeachment. Its argument is premised on the assumption that Congress has absolute power to promulgate its rules. This assumption, however, is misplaced. Section 3 (8) of Article XI provides that "The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section." Clearly, its power to promulgate its rules on impeachment is limited by the phrase "to effectively carry out the purpose of this section." Hence, these rules cannot contravene the very purpose of the Constitution which said rules were intended to effectively carry out. Moreover, Section 3 of Article XI clearly provides for other specific limitations on its power to make rules, viz: Section 3. (1) x x x (2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. (3) A vote of at least one-third of all the Members of the House shall be necessary to either affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded.

(4) In case the verified complaint or resolution of impeachment is filed by at least onethird of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year. It is basic that all rules must not contravene the Constitution which is the fundamental law. If as alleged Congress had absolute rule making power, then it would by necessary implication have the power to alter or amend the meaning of the Constitution without need of referendum. In Osmeña v. Pendatun,149 this Court held that it is within the province of either House of Congress to interpret its rules and that it was the best judge of what constituted "disorderly behavior" of its members. However, in Paceta v. Secretary of the Commission on Appointments,150 Justice (later Chief Justice) Enrique Fernando, speaking for this Court and quoting Justice Brandeis in United States v. Smith,151 declared that where the construction to be given to a rule affects persons other than members of the Legislature, the question becomes judicial in nature. In Arroyo v. De Venecia,152 quoting United States v. Ballin, Joseph & Co.,153 Justice Vicente Mendoza, speaking for this Court, held that while the Constitution empowers each house to determine its rules of proceedings, it may not by its rules ignore constitutional restraints or violate fundamental rights, and further that there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. It is only within these limitations that all matters of method are open to the determination of the Legislature. In the same case of Arroyo v. De Venecia, Justice Reynato S. Puno, in his Concurring and Dissenting Opinion, was even more emphatic as he stressed that in the Philippine setting there is even more reason for courts to inquire into the validity of the Rules of Congress, viz: With due respect, I do not agree that the issues posed by the petitioner are nonjusticiable. Nor do I agree that we will trivialize the principle of separation of power if we assume jurisdiction over he case at bar. Even in the United States, the principle of separation of power is no longer an impregnable impediment against the interposition of judicial power on cases involving breach of rules of procedure by legislators. Rightly, the ponencia uses the 1891 case of US v Ballin (144 US 1) as a window to view the issues before the Court. It is in Ballin where the US Supreme Court first defined the boundaries of the power of the judiciary to review congressional rules. It held: "x x x "The Constitution, in the same section, provides, that each house may determine the rules of its proceedings." It appears that in pursuance of this authority the House had, prior to that day, passed this as one of its rules: Rule XV 3. On the demand of any member, or at the suggestion of the Speaker, the names of members sufficient to make a quorum in the hall of the House who do not vote shall be noted by the clerk and recorded in the journal, and reported to the Speaker with the names of the members voting, and be counted and announced in determining the presence of a quorum to do business. (House Journal, 230, Feb. 14, 1890) The action taken was in direct compliance with this rule. The question, therefore, is as to the validity of this rule, and not what methods the Speaker may of his own motion resort to for determining the presence of a quorum, nor what matters the Speaker or clerk may of their own volition place upon the journal. Neither do the advantages or disadvantages, the wisdom or folly, of such a rule present any matters for judicial consideration. With the courts the question is only one of power. The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there

should be a reasonable relation between the mode or method of proceedings established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the House, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the House, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal." Ballin, clearly confirmed the jurisdiction of courts to pass upon the validity of congressional rules, i.e, whether they are constitutional. Rule XV was examined by the Court and it was found to satisfy the test: (1) that it did not ignore any constitutional restraint; (2) it did not violate any fundamental right; and (3) its method had a reasonable relationship with the result sought to be attained. By examining Rule XV, the Court did not allow its jurisdiction to be defeated by the mere invocation of the principle of separation of powers.154 xxx In the Philippine setting, there is a more compelling reason for courts to categorically reject the political question defense when its interposition will cover up abuse of power. For section 1, Article VIII of our Constitution was intentionally cobbled to empower courts "x x x to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." This power is new and was not granted to our courts in the 1935 and 1972 Constitutions. It was not also xeroxed from the US Constitution or any foreign state constitution. The CONCOM granted this enormous power to our courts in view of our experience under martial law where abusive exercises of state power were shielded from judicial scrutiny by the misuse of the political question doctrine. Led by the eminent former Chief Justice Roberto Concepcion, the CONCOM expanded and sharpened the checking powers of the judiciary vis-à-vis the Executive and the Legislative departments of government.155 xxx The Constitution cannot be any clearer. What it granted to this Court is not a mere power which it can decline to exercise. Precisely to deter this disinclination, the Constitution imposed it as a duty of this Court to strike down any act of a branch or instrumentality of government or any of its officials done with grave abuse of discretion amounting to lack or excess of jurisdiction. Rightly or wrongly, the Constitution has elongated the checking powers of this Court against the other branches of government despite their more democratic character, the President and the legislators being elected by the people.156 xxx The provision defining judicial power as including the 'duty of the courts of justice. . . to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government' constitutes the capstone of the efforts of the Constitutional Commission to upgrade the powers of this court vis-à-vis the other branches of government. This provision was dictated by our experience under martial law which taught us that a stronger and more independent judiciary is needed to abort abuses in government. x x x xxx In sum, I submit that in imposing to this Court the duty to annul acts of government committed with grave abuse of discretion, the new Constitution transformed this Court from passivity to activism. This transformation, dictated by our distinct experience as

nation, is not merely evolutionary but revolutionary.Under the 1935 and the 1973 Constitutions, this Court approached constitutional violations by initially determining what it cannot do; under the 1987 Constitution, there is a shift in stress – this Court is mandated to approach constitutional violations not by finding out what it should not do but what it must do. The Court must discharge this solemn duty by not resuscitating a past that petrifies the present. I urge my brethren in the Court to give due and serious consideration to this new constitutional provision as the case at bar once more calls us to define the parameters of our power to review violations of the rules of the House. We will not be true to our trust as the last bulwark against government abuses if we refuse to exercise this new power or if we wield it with timidity. To be sure, it is this exceeding timidity to unsheathe the judicial sword that has increasingly emboldened other branches of government to denigrate, if not defy, orders of our courts. In Tolentino, I endorsed the view of former Senator Salonga that this novel provision stretching the latitude of judicial power is distinctly Filipino and its interpretation should not be depreciated by undue reliance on inapplicable foreign jurisprudence. In resolving the case at bar, the lessons of our own history should provide us the light and not the experience of foreigners.157 (Italics in the original emphasis and underscoring supplied) Thus, the ruling in Osmena v. Pendatun is not applicable to the instant petitions. Here, the third parties alleging the violation of private rights and the Constitution are involved. Neither may respondent House of Representatives' rely on Nixon v. US158 as basis for arguing that this Court may not decide on the constitutionality of Sections 16 and 17 of the House Impeachment Rules. As already observed, the U.S. Federal Constitution simply provides that "the House of Representatives shall have the sole power of impeachment." It adds nothing more. It gives no clue whatsoever as to how this "sole power" is to be exercised. No limitation whatsoever is given. Thus, the US Supreme Court concluded that there was a textually demonstrable constitutional commitment of a constitutional power to the House of Representatives. This reasoning does not hold with regard to impeachment power of the Philippine House of Representatives since our Constitution, as earlier enumerated, furnishes several provisions articulating how that "exclusive power" is to be exercised. The provisions of Sections 16 and 17 of Rule V of the House Impeachment Rules which state that impeachment proceedings are deemed initiated (1) if there is a finding by the House Committee on Justice that the verified complaint and/or resolution is sufficient in substance, or (2) once the House itself affirms or overturns the finding of the Committee on Justice that the verified complaint and/or resolution is not sufficient in substance or (3) by the filing or endorsement before the Secretary-General of the House of Representatives of a verified complaint or a resolution of impeachment by at least 1/3 of the members of the House thus clearly contravene Section 3 (5) of Article XI as they give the term "initiate" a meaning different from "filing." Validity of the Second Impeachment Complaint Having concluded that the initiation takes place by the act of filing of the impeachment complaint and referral to the House Committee on Justice, the initial action taken thereon, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated in the foregoing manner, another may not be filed against the same official within a one year period following Article XI, Section 3(5) of the Constitution. In fine, considering that the first impeachment complaint, was filed by former President Estrada against Chief Justice Hilario G. Davide, Jr., along with seven associate justices of this Court, on June 2, 2003 and referred to the House Committee on Justice on August 5, 2003, the second impeachment complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix William Fuentebella against the Chief Justice on October 23, 2003 violates the constitutional prohibition against the initiation of impeachment proceedings against the same impeachable officer within a one-year period. Conclusion

If there is anything constant about this country, it is that there is always a phenomenon that takes the center stage of our individual and collective consciousness as a people with our characteristic flair for human drama, conflict or tragedy. Of course this is not to demean the seriousness of the controversy over the Davide impeachment. For many of us, the past two weeks have proven to be an exasperating, mentally and emotionally exhausting experience. Both sides have fought bitterly a dialectical struggle to articulate what they respectively believe to be the correct position or view on the issues involved. Passions had ran high as demonstrators, whether for or against the impeachment of the Chief Justice, took to the streets armed with their familiar slogans and chants to air their voice on the matter. Various sectors of society - from the business, retired military, to the academe and denominations of faith – offered suggestions for a return to a state of normalcy in the official relations of the governmental branches affected to obviate any perceived resulting instability upon areas of national life. Through all these and as early as the time when the Articles of Impeachment had been constituted, this Court was specifically asked, told, urged and argued to take no action of any kind and form with respect to the prosecution by the House of Representatives of the impeachment complaint against the subject respondent public official. When the present petitions were knocking so to speak at the doorsteps of this Court, the same clamor for noninterference was made through what are now the arguments of "lack of jurisdiction," "nonjusticiability," and "judicial self-restraint" aimed at halting the Court from any move that may have a bearing on the impeachment proceedings. This Court did not heed the call to adopt a hands-off stance as far as the question of the constitutionality of initiating the impeachment complaint against Chief Justice Davide is concerned. To reiterate what has been already explained, the Court found the existence in full of all the requisite conditions for its exercise of its constitutionally vested power and duty of judicial review over an issue whose resolution precisely called for the construction or interpretation of a provision of the fundamental law of the land. What lies in here is an issue of a genuine constitutional material which only this Court can properly and competently address and adjudicate in accordance with the clear-cut allocation of powers under our system of government. Face-to-face thus with a matter or problem that squarely falls under the Court's jurisdiction, no other course of action can be had but for it to pass upon that problem head on. The claim, therefore, that this Court by judicially entangling itself with the process of impeachment has effectively set up a regime of judicial supremacy, is patently without basis in fact and in law. This Court in the present petitions subjected to judicial scrutiny and resolved on the merits only the main issue of whether the impeachment proceedings initiated against the Chief Justice transgressed the constitutionally imposed one-year time bar rule. Beyond this, it did not go about assuming jurisdiction where it had none, nor indiscriminately turn justiciable issues out of decidedly political questions. Because it is not at all the business of this Court to assert judicial dominance over the other two great branches of the government. Rather, the raison d'etre of the judiciary is to complement the discharge by the executive and legislative of their own powers to bring about ultimately the beneficent effects of having founded and ordered our society upon the rule of law. It is suggested that by our taking cognizance of the issue of constitutionality of the impeachment proceedings against the Chief Justice, the members of this Court have actually closed ranks to protect a brethren. That the members' interests in ruling on said issue is as much at stake as is that of the Chief Justice. Nothing could be farther from the truth. The institution that is the Supreme Court together with all other courts has long held and been entrusted with the judicial power to resolve conflicting legal rights regardless of the personalities involved in the suits or actions. This Court has dispensed justice over the course of time, unaffected by whomsoever stood to benefit or suffer therefrom, unfraid by whatever imputations or speculations could be made to it, so long as it rendered judgment according to the law and the facts. Why can it not now be trusted to wield judicial power in these petitions just because it is the highest ranking magistrate who is involved when it is an incontrovertible fact that the fundamental issue is not him but the validity of a government branch's official act as tested by the limits set by the Constitution? Of course, there are rules on the inhibition of any member of

the judiciary from taking part in a case in specified instances. But to disqualify this entire institution now from the suit at bar is to regard the Supreme Court as likely incapable of impartiality when one of its members is a party to a case, which is simply a non sequitur. No one is above the law or the Constitution. This is a basic precept in any legal system which recognizes equality of all men before the law as essential to the law's moral authority and that of its agents to secure respect for and obedience to its commands. Perhaps, there is no other government branch or instrumentality that is most zealous in protecting that principle of legal equality other than the Supreme Court which has discerned its real meaning and ramifications through its application to numerous cases especially of the high-profile kind in the annals of jurisprudence. The Chief Justice is not above the law and neither is any other member of this Court. But just because he is the Chief Justice does not imply that he gets to have less in law than anybody else. The law is solicitous of every individual's rights irrespective of his station in life. The Filipino nation and its democratic institutions have no doubt been put to test once again by this impeachment case against Chief Justice Hilario Davide. Accordingly, this Court has resorted to no other than the Constitution in search for a solution to what many feared would ripen to a crisis in government. But though it is indeed immensely a blessing for this Court to have found answers in our bedrock of legal principles, it is equally important that it went through this crucible of a democratic process, if only to discover that it can resolve differences without the use of force and aggression upon each other. WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in Impeachment Proceedings which were approved by the House of Representatives on November 28, 2001 are unconstitutional. Consequently, the second impeachment complaint against Chief Justice Hilario G. Davide, Jr. which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix William B. Fuentebella with the Office of the Secretary General of the House of Representatives on October 23, 2003 is barred under paragraph 5, section 3 of Article XI of the Constitution. G.R. No. 122156 February 3, 1997 MANILA PRINCE HOTEL petitioner, vs. GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE COUNSEL, respondents.

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

Pertinent provisions of the bidding rules prepared by respondent GSIS state — I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC — 1. The Highest Bidder must comply with the conditions set forth below by October 23, 1995 (reset to November 3, 1995) or the Highest Bidder will lose the right to purchase the Block of Shares and GSIS will instead offer the Block of Shares to the other Qualified Bidders: a. The Highest Bidder must negotiate and execute with the GSIS/MHC the Management Contract, International Marketing/Reservation System Contract or other type of contract specified by the Highest Bidder in its strategic plan for the Manila Hotel. . . . b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS . . . . K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER — The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the following conditions are met: a. Execution of the necessary contracts with GSIS/MHC not later than October 23, 1995 (reset to November 3, 1995); and b. Requisite approvals from the GSIS/MHC and COP (Committee on Privatization)/OGCC (Office of the Government Corporate Counsel) are obtained.3 Pending the declaration of Renong Berhad as the winning bidder/strategic partner and the execution of the necessary contracts, petitioner in a letter to respondent GSIS dated 28 September 1995 matched the bid price of P44.00 per share tendered by Renong Berhad. 4 In a subsequent letter dated 10 October 1995 petitioner sent a manager's check issued by Philtrust Bank for Thirty-three Million Pesos (P33.000.000.00) as Bid Security to match the bid of the Malaysian Group, Messrs. Renong Berhad . . .5 which respondent GSIS refused to accept. On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded the tender of the matching bid and that the sale of 51% of the MHC may be hastened by respondent GSIS and consummated with Renong Berhad, petitioner came to this Court on prohibition and mandamus. On 18 October 1995 the Court issued a temporary restraining order enjoining respondents from perfecting and consummating the sale to the Malaysian firm. On 10 September 1996 the instant case was accepted by the Court En Banc after it was referred to it by the First Division. The case was then set for oral arguments with former Chief Justice Enrique M. Fernando and Fr. Joaquin G. Bernas, S.J., as amici curiae. In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution and submits that the Manila Hotel has been identified with the Filipino nation and has practically become a historical monument which reflects the vibrancy of Philippine heritage and culture. It is a proud legacy of an earlier generation of Filipinos who believed in the nobility and sacredness of independence and its power and capacity to release the full potential of the Filipino people. To all intents and purposes, it has become a part of the national patrimony.6 Petitioner also argues that since 51% of the shares of the MHC carries with it the ownership of the business of the hotel which is owned by respondent GSIS, a governmentowned and controlled corporation, the hotel business of respondent GSIS being a part of the tourism industry is unquestionably a part of the national economy. Thus, any transaction involving 51% of the shares of stock of the MHC is clearly covered by the term national economy, to which Sec. 10, second par., Art. XII, 1987 Constitution, applies.7

It is also the thesis of petitioner that since Manila Hotel is part of the national patrimony and its business also unquestionably part of the national economy petitioner should be preferred after it has matched the bid offer of the Malaysian firm. For the bidding rules mandate that if for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of price per share.8 Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the 1987 Constitution is merely a statement of principle and policy since it is not a self-executing provision and requires implementing legislation(s) . . . Thus, for the said provision to Operate, there must be existing laws "to lay down conditions under which business may be done."9 Second, granting that this provision is self-executing, Manila Hotel does not fall under the term national patrimony which only refers to lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna and all marine wealth in its territorial sea, and exclusive marine zone as cited in the first and second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to respondents, while petitioner speaks of the guests who have slept in the hotel and the events that have transpired therein which make the hotel historic, these alone do not make the hotel fall under the patrimony of the nation. What is more, the mandate of the Constitution is addressed to the State, not to respondent GSIS which possesses a personality of its own separate and distinct from the Philippines as a State. Third, granting that the Manila Hotel forms part of the national patrimony, the constitutional provision invoked is still inapplicable since what is being sold is only 51% of the outstanding shares of the corporation, not the hotel building nor the land upon which the building stands. Certainly, 51% of the equity of the MHC cannot be considered part of the national patrimony. Moreover, if the disposition of the shares of the MHC is really contrary to the Constitution, petitioner should have questioned it right from the beginning and not after it had lost in the bidding. Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules which provides that if for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of price per share, is misplaced. Respondents postulate that the privilege of submitting a matching bid has not yet arisen since it only takes place if for any reason, the Highest Bidder cannot be awarded the Block of Shares. Thus the submission by petitioner of a matching bid is premature since Renong Berhad could still very well be awarded the block of shares and the condition giving rise to the exercise of the privilege to submit a matching bid had not yet taken place. Finally, the prayer for prohibition grounded on grave abuse of discretion should fail since respondent GSIS did not exercise its discretion in a capricious, whimsical manner, and if ever it did abuse its discretion it was not so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law. Similarly, the petition for mandamus should fail as petitioner has no clear legal right to what it demands and respondents do not have an imperative duty to perform the act required of them by petitioner. We now resolve. A constitution is a system of fundamental laws for the governance and administration of a nation. It is supreme, imperious, absolute and unalterable except by the authority from which it emanates. It has been defined as the fundamental and paramount law of the nation. 10 It prescribes the permanent framework of a system of government, assigns to the different departments their respective powers and duties, and establishes certain fixed principles on which government is founded. The fundamental conception in other words is that it is a supreme law to which all other laws must conform and in accordance with which all private rights must be determined and all public authority administered. 11 Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the constitution that law or contract whether promulgated by the legislative or by the executive branch or entered into by private persons for private purposes is null and void and without any force and effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed written in every statute and contract.

Admittedly, some constitutions are merely declarations of policies and principles. Their provisions command the legislature to enact laws and carry out the purposes of the framers who merely establish an outline of government providing for the different departments of the governmental machinery and securing certain fundamental and inalienable rights of citizens. 12 A provision which lays down a general principle, such as those found in Art. II of the 1987 Constitution, is usually not self-executing. But a provision which is complete in itself and becomes operative without the aid of supplementary or enabling legislation, or that which supplies sufficient rule by means of which the right it grants may be enjoyed or protected, is selfexecuting. Thus a constitutional provision is self-executing if the nature and extent of the right conferred and the liability imposed are fixed by the constitution itself, so that they can be determined by an examination and construction of its terms, and there is no language indicating that the subject is referred to the legislature for action. 13 As against constitutions of the past, modern constitutions have been generally drafted upon a different principle and have often become in effect extensive codes of laws intended to operate directly upon the people in a manner similar to that of statutory enactments, and the function of constitutional conventions has evolved into one more like that of a legislative body. Hence, unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the presumption now is that all provisions of the constitution are self-executing If the constitutional provisions are treated as requiring legislation instead of self-executing, the legislature would have the power to ignore and practically nullify the mandate of the fundamental law.14 This can be cataclysmic. That is why the prevailing view is, as it has always been, that — . . . in case of doubt, the Constitution should be considered self-executing rather than non-self-executing . . . . Unless the contrary is clearly intended, the provisions of the Constitution should be considered self-executing, as a contrary rule would give the legislature discretion to determine when, or whether, they shall be effective. These provisions would be subordinated to the will of the lawmaking body, which could make them entirely meaningless by simply refusing to pass the needed implementing statute. 15 Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is clearly not self-executing, as they quote from discussions on the floor of the 1986 Constitutional Commission — MR. RODRIGO. Madam President, I am asking this question as the Chairman of the Committee on Style. If the wording of "PREFERENCE" is given to QUALIFIED FILIPINOS," can it be understood as a preference to qualified Filipinos vis-a-vis Filipinos who are not qualified. So, why do we not make it clear? To qualified Filipinos as against aliens? THE PRESIDENT. What is the question of Commissioner Rodrigo? Is it to remove the word "QUALIFIED?". MR. RODRIGO. No, no, but say definitely "TO QUALIFIED FILIPINOS" as against whom? As against aliens or over aliens? MR. NOLLEDO. Madam President, I think that is understood. We use the word "QUALIFIED" because the existing laws or prospective laws will always lay down conditions under which business may be done. For example, qualifications on the setting up of other financial structures, et cetera (emphasis supplied by respondents) MR. RODRIGO. It is just a matter of style. MR. NOLLEDO Yes, 16

Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as not to make it appear that it is non-self-executing but simply for purposes of style. But, certainly, the legislature is not precluded from enacting other further laws to enforce the constitutional provision so long as the contemplated statute squares with the Constitution. Minor details may be left to the legislature without impairing the self-executing nature of constitutional provisions. In self-executing constitutional provisions, the legislature may still enact legislation to facilitate the exercise of powers directly granted by the constitution, further the operation of such a provision, prescribe a practice to be used for its enforcement, provide a convenient remedy for the protection of the rights secured or the determination thereof, or place reasonable safeguards around the exercise of the right. The mere fact that legislation may supplement and add to or prescribe a penalty for the violation of a self-executing constitutional provision does not render such a provision ineffective in the absence of such legislation. The omission from a constitution of any express provision for a remedy for enforcing a right or liability is not necessarily an indication that it was not intended to be self-executing. The rule is that a self-executing provision of the constitution does not necessarily exhaust legislative power on the subject, but any legislation must be in harmony with the constitution, further the exercise of constitutional right and make it more available. 17 Subsequent legislation however does not necessarily mean that the subject constitutional provision is not, by itself, fully enforceable. Respondents also argue that the non-self-executing nature of Sec. 10, second par., of Art. XII is implied from the tenor of the first and third paragraphs of the same section which undoubtedly are not self-executing. 18 The argument is flawed. If the first and third paragraphs are not selfexecuting because Congress is still to enact measures to encourage the formation and operation of enterprises fully owned by Filipinos, as in the first paragraph, and the State still needs legislation to regulate and exercise authority over foreign investments within its national jurisdiction, as in the third paragraph, then a fortiori, by the same logic, the second paragraph can only be self-executing as it does not by its language require any legislation in order to give preference to qualified Filipinos in the grant of rights, privileges and concessions covering the national economy and patrimony. A constitutional provision may be self-executing in one part and non-self-executing in another. 19 Even the cases cited by respondents holding that certain constitutional provisions are merely statements of principles and policies, which are basically not self-executing and only placed in the Constitution as moral incentives to legislation, not as judicially enforceable rights — are simply not in point. Basco v. Philippine Amusements and Gaming Corporation 20 speaks of constitutional provisions on personal dignity, 21 the sanctity of family life, 22 the vital role of the youth in nation-building 23 the promotion of social justice, 24 and the values of education. 25 Tolentino v. Secretary of Finance 26 refers to the constitutional provisions on social justice and human rights 27 and on education. 28 Lastly, Kilosbayan, Inc. v. Morato 29 cites provisions on the promotion of general welfare, 30 the sanctity of family life, 31 the vital role of the youth in nation-building 32 and the promotion of total human liberation and development. 33A reading of these provisions indeed clearly shows that they are not judicially enforceable constitutional rights but merely guidelines for legislation. The very terms of the provisions manifest that they are only principles upon which the legislations must be based. Res ipsa loquitur. On the other hand, Sec. 10, second par., Art. XII of the of the 1987 Constitution is a mandatory, positive command which is complete in itself and which needs no further guidelines or implementing laws or rules for its enforcement. From its very words the provision does not require any legislation to put it in operation. It is per se judicially enforceable When our Constitution mandates that [i]n the grant of rights, privileges, and concessions covering national economy and patrimony, the State shall give preference to qualified Filipinos, it means just that — qualified Filipinos shall be preferred. And when our Constitution declares that a right exists in certain specified circumstances an action may be maintained to enforce such right notwithstanding the absence of any legislation on the subject; consequently, if there is no statute especially enacted to enforce such constitutional right, such right enforces itself by its own inherent potency and puissance, and from which all legislations must take their bearings. Where there is a right there is a remedy. Ubi jus ibi remedium. As regards our national patrimony, a member of the 1986 Constitutional Commission 34 explains —

The patrimony of the Nation that should be conserved and developed refers not only to out rich natural resources but also to the cultural heritage of out race. It also refers to our intelligence in arts, sciences and letters. Therefore, we should develop not only our lands, forests, mines and other natural resources but also the mental ability or faculty of our people. We agree. In its plain and ordinary meaning, the term patrimony pertains to heritage. 35 When the Constitution speaks of national patrimony, it refers not only to the natural resources of the Philippines, as the Constitution could have very well used the term natural resources, but also to the cultural heritage of the Filipinos. Manila Hotel has become a landmark — a living testimonial of Philippine heritage. While it was restrictively an American hotel when it first opened in 1912, it immediately evolved to be truly Filipino, Formerly a concourse for the elite, it has since then become the venue of various significant events which have shaped Philippine history. It was called the Cultural Center of the 1930's. It was the site of the festivities during the inauguration of the Philippine Commonwealth. Dubbed as the Official Guest House of the Philippine Government. it plays host to dignitaries and official visitors who are accorded the traditional Philippine hospitality. 36 The history of the hotel has been chronicled in the book The Manila Hotel: The Heart and Memory of a City. 37During World War II the hotel was converted by the Japanese Military Administration into a military headquarters. When the American forces returned to recapture Manila the hotel was selected by the Japanese together with Intramuros as the two (2) places fro their final stand. Thereafter, in the 1950's and 1960's, the hotel became the center of political activities, playing host to almost every political convention. In 1970 the hotel reopened after a renovation and reaped numerous international recognitions, an acknowledgment of the Filipino talent and ingenuity. In 1986 the hotel was the site of a failed coup d' etat where an aspirant for vice-president was "proclaimed" President of the Philippine Republic. For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs and failures, loves and frustrations of the Filipinos; its existence is impressed with public interest; its own historicity associated with our struggle for sovereignty, independence and nationhood. Verily, Manila Hotel has become part of our national economy and patrimony. For sure, 51% of the equity of the MHC comes within the purview of the constitutional shelter for it comprises the majority and controlling stock, so that anyone who acquires or owns the 51% will have actual control and management of the hotel. In this instance, 51% of the MHC cannot be disassociated from the hotel and the land on which the hotel edifice stands. Consequently, we cannot sustain respondents' claim that the Filipino First Policy provision is not applicable since what is being sold is only 51% of the outstanding shares of the corporation, not the Hotel building nor the land upon which the building stands. 38 The argument is pure sophistry. The term qualified Filipinos as used in Our Constitution also includes corporations at least 60% of which is owned by Filipinos. This is very clear from the proceedings of the 1986 Constitutional Commission THE PRESIDENT. Commissioner Davide is recognized. MR. DAVIDE. I would like to introduce an amendment to the Nolledo amendment. And the amendment would consist in substituting the words "QUALIFIED FILIPINOS" with the following: "CITIZENS OF THE PHILIPPINES OR CORPORATIONS OR ASSOCIATIONS WHOSE CAPITAL OR CONTROLLING STOCK IS WHOLLY OWNED BY SUCH CITIZENS. xxx

xxx

xxx

MR. MONSOD. Madam President, apparently the proponent is agreeable, but we have to raise a question. Suppose it is a corporation that is 80-percent Filipino, do we not give it preference?

MR. DAVIDE. The Nolledo amendment would refer to an individual Filipino. What about a corporation wholly owned by Filipino citizens? MR. MONSOD. At least 60 percent, Madam President. MR. DAVIDE. Is that the intention? MR. MONSOD. Yes, because, in fact, we would be limiting it if we say that the preference should only be 100-percent Filipino. MR: DAVIDE. I want to get that meaning clear because "QUALIFIED FILIPINOS" may refer only to individuals and not to juridical personalities or entities. MR. MONSOD. We agree, Madam President. 39 xxx

xxx

xxx

MR. RODRIGO. Before we vote, may I request that the amendment be read again. MR. NOLLEDO. The amendment will read: "IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS." And the word "Filipinos" here, as intended by the proponents, will include not only individual Filipinos but also Filipino-controlled entities or entities fully-controlled by Filipinos. 40 The phrase preference to qualified Filipinos was explained thus — MR. FOZ. Madam President, I would like to request Commissioner Nolledo to please restate his amendment so that I can ask a question. MR. NOLLEDO. "IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS." MR FOZ. In connection with that amendment, if a foreign enterprise is qualified and a Filipino enterprise is also qualified, will the Filipino enterprise still be given a preference? MR. NOLLEDO. Obviously. MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino enterprise, will the Filipino still be preferred? MR. NOLLEDO. The answer is "yes." MR. FOZ. Thank you, 41 Expounding further on the Filipino First Policy provision Commissioner Nolledo continues — MR. NOLLEDO. Yes, Madam President. Instead of "MUST," it will be "SHALL — THE STATE SHALL GlVE PREFERENCE TO QUALIFIED FILIPINOS. This embodies the so-called "Filipino First" policy. That means that Filipinos should be

given preference in the grant of concessions, privileges and rights covering the national patrimony. 42 The exchange of views in the sessions of the Constitutional Commission regarding the subject provision was still further clarified by Commissioner Nolledo 43 — Paragraph 2 of Section 10 explicitly mandates the "Pro-Filipino" bias in all economic concerns. It is better known as the FILIPINO FIRST Policy . . . This provision was never found in previous Constitutions . . . . The term "qualified Filipinos" simply means that preference shall be given to those citizens who can make a viable contribution to the common good, because of credible competence and efficiency. It certainly does NOT mandate the pampering and preferential treatment to Filipino citizens or organizations that are incompetent or inefficient, since such an indiscriminate preference would be counter productive and inimical to the common good. In the granting of economic rights, privileges, and concessions, when a choice has to be made between a "qualified foreigner" end a "qualified Filipino," the latter shall be chosen over the former." Lastly, the word qualified is also determinable. Petitioner was so considered by respondent GSIS and selected as one of the qualified bidders. It was pre-qualified by respondent GSIS in accordance with its own guidelines so that the sole inference here is that petitioner has been found to be possessed of proven management expertise in the hotel industry, or it has significant equity ownership in another hotel company, or it has an overall management and marketing proficiency to successfully operate the Manila Hotel. 44 The penchant to try to whittle away the mandate of the Constitution by arguing that the subject provision is not self-executory and requires implementing legislation is quite disturbing. The attempt to violate a clear constitutional provision — by the government itself — is only too distressing. To adopt such a line of reasoning is to renounce the duty to ensure faithfulness to the Constitution. For, even some of the provisions of the Constitution which evidently need implementing legislation have juridical life of their own and can be the source of a judicial remedy. We cannot simply afford the government a defense that arises out of the failure to enact further enabling, implementing or guiding legislation. In fine, the discourse of Fr. Joaquin G. Bernas, S.J., on constitutional government is apt — The executive department has a constitutional duty to implement laws, including the Constitution, even before Congress acts — provided that there are discoverable legal standards for executive action. When the executive acts, it must be guided by its own understanding of the constitutional command and of applicable laws. The responsibility for reading and understanding the Constitution and the laws is not the sole prerogative of Congress. If it were, the executive would have to ask Congress, or perhaps the Court, for an interpretation every time the executive is confronted by a constitutional command. That is not how constitutional government operates. 45 Respondents further argue that the constitutional provision is addressed to the State, not to respondent GSIS which by itself possesses a separate and distinct personality. This argument again is at best specious. It is undisputed that the sale of 51% of the MHC could only be carried out with the prior approval of the State acting through respondent Committee on Privatization. As correctly pointed out by Fr. Joaquin G. Bernas, S.J., this fact alone makes the sale of the assets of respondents GSIS and MHC a "state action." In constitutional jurisprudence, the acts of persons distinct from the government are considered "state action" covered by the Constitution (1) when the activity it engages in is a "public function;" (2) when the government is so significantly involved with the private actor as to make the government responsible for his action; and, (3) when the government has approved or authorized the action. It is evident that the act of respondent GSIS in selling 51% of its share in respondent MHC comes under the second and third categories of "state action." Without doubt therefore the transaction. although

entered into by respondent GSIS, is in fact a transaction of the State and therefore subject to the constitutional command. 46 When the Constitution addresses the State it refers not only to the people but also to the government as elements of the State. After all, government is composed of three (3) divisions of power — legislative, executive and judicial. Accordingly, a constitutional mandate directed to the State is correspondingly directed to the three(3) branches of government. It is undeniable that in this case the subject constitutional injunction is addressed among others to the Executive Department and respondent GSIS, a government instrumentality deriving its authority from the State. It should be stressed that while the Malaysian firm offered the higher bid it is not yet the winning bidder. The bidding rules expressly provide that the highest bidder shall only be declared the winning bidder after it has negotiated and executed the necessary contracts, and secured the requisite approvals. Since the "Filipino First Policy provision of the Constitution bestows preference on qualified Filipinos the mere tending of the highest bid is not an assurance that the highest bidder will be declared the winning bidder. Resultantly, respondents are not bound to make the award yet, nor are they under obligation to enter into one with the highest bidder. For in choosing the awardee respondents are mandated to abide by the dictates of the 1987 Constitution the provisions of which are presumed to be known to all the bidders and other interested parties. Adhering to the doctrine of constitutional supremacy, the subject constitutional provision is, as it should be, impliedly written in the bidding rules issued by respondent GSIS, lest the bidding rules be nullified for being violative of the Constitution. It is a basic principle in constitutional law that all laws and contracts must conform with the fundamental law of the land. Those which violate the Constitution lose their reason for being. Paragraph V. J. 1 of the bidding rules provides that [if] for any reason the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of price per 47 share. Certainly, the constitutional mandate itself is reason enough not to award the block of shares immediately to the foreign bidder notwithstanding its submission of a higher, or even the highest, bid. In fact, we cannot conceive of a stronger reason than the constitutional injunction itself. In the instant case, where a foreign firm submits the highest bid in a public bidding concerning the grant of rights, privileges and concessions covering the national economy and patrimony, thereby exceeding the bid of a Filipino, there is no question that the Filipino will have to be allowed to match the bid of the foreign entity. And if the Filipino matches the bid of a foreign firm the award should go to the Filipino. It must be so if we are to give life and meaning to the Filipino First Policy provision of the 1987 Constitution. For, while this may neither be expressly stated nor contemplated in the bidding rules, the constitutional fiat is, omnipresent to be simply disregarded. To ignore it would be to sanction a perilous skirting of the basic law. This Court does not discount the apprehension that this policy may discourage foreign investors. But the Constitution and laws of the Philippines are understood to be always open to public scrutiny. These are given factors which investors must consider when venturing into business in a foreign jurisdiction. Any person therefore desiring to do business in the Philippines or with any of its agencies or instrumentalities is presumed to know his rights and obligations under the Constitution and the laws of the forum. The argument of respondents that petitioner is now estopped from questioning the sale to Renong Berhad since petitioner was well aware from the beginning that a foreigner could participate in the bidding is meritless. Undoubtedly, Filipinos and foreigners alike were invited to the bidding. But foreigners may be awarded the sale only if no Filipino qualifies, or if the qualified Filipino fails to match the highest bid tendered by the foreign entity. In the case before us, while petitioner was already preferred at the inception of the bidding because of the constitutional mandate, petitioner had not yet matched the bid offered by Renong Berhad. Thus it did not have the right or personality then to compel respondent GSIS to accept its earlier bid.

Rightly, only after it had matched the bid of the foreign firm and the apparent disregard by respondent GSIS of petitioner's matching bid did the latter have a cause of action. Besides, there is no time frame for invoking the constitutional safeguard unless perhaps the award has been finally made. To insist on selling the Manila Hotel to foreigners when there is a Filipino group willing to match the bid of the foreign group is to insist that government be treated as any other ordinary market player, and bound by its mistakes or gross errors of judgment, regardless of the consequences to the Filipino people. The miscomprehension of the Constitution is regrettable. Thus we would rather remedy the indiscretion while there is still an opportunity to do so than let the government develop the habit of forgetting that the Constitution lays down the basic conditions and parameters for its actions. Since petitioner has already matched the bid price tendered by Renong Berhad pursuant to the bidding rules, respondent GSIS is left with no alternative but to award to petitioner the block of shares of MHC and to execute the necessary agreements and documents to effect the sale in accordance not only with the bidding guidelines and procedures but with the Constitution as well. The refusal of respondent GSIS to execute the corresponding documents with petitioner as provided in the bidding rules after the latter has matched the bid of the Malaysian firm clearly constitutes grave abuse of discretion. The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987 Constitution not merely to be used as a guideline for future legislation but primarily to be enforced; so must it be enforced. This Court as the ultimate guardian of the Constitution will never shun, under any reasonable circumstance, the duty of upholding the majesty of the Constitution which it is tasked to defend. It is worth emphasizing that it is not the intention of this Court to impede and diminish, much less undermine, the influx of foreign investments. Far from it, the Court encourages and welcomes more business opportunities but avowedly sanctions the preference for Filipinos whenever such preference is ordained by the Constitution. The position of the Court on this matter could have not been more appropriately articulated by Chief Justice Narvasa — As scrupulously as it has tried to observe that it is not its function to substitute its judgment for that of the legislature or the executive about the wisdom and feasibility of legislation economic in nature, the Supreme Court has not been spared criticism for decisions perceived as obstacles to economic progress and development . . . in connection with a temporary injunction issued by the Court's First Division against the sale of the Manila Hotel to a Malaysian Firm and its partner, certain statements were published in a major daily to the effect that injunction "again demonstrates that the Philippine legal system can be a major obstacle to doing business here. Let it be stated for the record once again that while it is no business of the Court to intervene in contracts of the kind referred to or set itself up as the judge of whether they are viable or attainable, it is its bounden duty to make sure that they do not violate the Constitution or the laws, or are not adopted or implemented with grave abuse of discretion amounting to lack or excess of jurisdiction. It will never shirk that duty, no matter how buffeted by winds of unfair and ill-informed criticism. 48 Privatization of a business asset for purposes of enhancing its business viability and preventing further losses, regardless of the character of the asset, should not take precedence over nonmaterial values. A commercial, nay even a budgetary, objective should not be pursued at the expense of national pride and dignity. For the Constitution enshrines higher and nobler nonmaterial values. Indeed, the Court will always defer to the Constitution in the proper governance of a free society; after all, there is nothing so sacrosanct in any economic policy as to draw itself beyond judicial review when the Constitution is involved. 49 Nationalism is inherent, in the very concept of the Philippines being a democratic and republican state, with sovereignty residing in the Filipino people and from whom all government authority emanates. In nationalism, the happiness and welfare of the people must be the goal. The nation-state can have no higher purpose. Any interpretation of any constitutional provision must

adhere to such basic concept. Protection of foreign investments, while laudible, is merely a policy. It cannot override the demands of nationalism. 50 The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to be sold to the highest bidder solely for the sake of privatization. We are not talking about an ordinary piece of property in a commercial district. We are talking about a historic relic that has hosted many of the most important events in the short history of the Philippines as a nation. We are talking about a hotel where heads of states would prefer to be housed as a strong manifestation of their desire to cloak the dignity of the highest state function to their official visits to the Philippines. Thus the Manila Hotel has played and continues to play a significant role as an authentic repository of twentieth century Philippine history and culture. In this sense, it has become truly a reflection of the Filipino soul — a place with a history of grandeur; a most historical setting that has played a part in the shaping of a country. 51 This Court cannot extract rhyme nor reason from the determined efforts of respondents to sell the historical landmark — this Grand Old Dame of hotels in Asia — to a total stranger. For, indeed, the conveyance of this epic exponent of the Filipino psyche to alien hands cannot be less than mephistophelian for it is, in whatever manner viewed, a veritable alienation of a nation's soul for some pieces of foreign silver. And so we ask: What advantage, which cannot be equally drawn from a qualified Filipino, can be gained by the Filipinos Manila Hotel — and all that it stands for — is sold to a non-Filipino? How much of national pride will vanish if the nation's cultural heritage is entrusted to a foreign entity? On the other hand, how much dignity will be preserved and realized if the national patrimony is safekept in the hands of a qualified, zealous and well-meaning Filipino? This is the plain and simple meaning of the Filipino First Policy provision of the Philippine Constitution. And this Court, heeding the clarion call of the Constitution and accepting the duty of being the elderly watchman of the nation, will continue to respect and protect the sanctity of the Constitution. WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE COUNSEL are directed to CEASE and DESIST from selling 51% of the shares of the Manila Hotel Corporation to RENONG BERHAD, and to ACCEPT the matching bid of petitioner MANILA PRINCE HOTEL CORPORATION to purchase the subject 51% of the shares of the Manila Hotel Corporation at P44.00 per share and thereafter to execute the necessary clearances and to do such other acts and deeds as may be necessary for purpose. SO ORDERED. Regalado, Davide, Jr., Romero, Kapunan, Francisco and Hermosisima, Jr., JJ., concur.

Separate Opinions

PADILLA, J., concurring: I concur with the ponencia of Mr. Justice Bellosillo. At the same time, I would like to expound a bit more on the concept of national patrimony as including within its scope and meaning institutions such as the Manila Hotel. It is argued by petitioner that the Manila Hotel comes under "national patrimony" over which qualified Filipinos have the preference, in ownership and operation. The Constitutional provision on point states: xxx xxx xxx

In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall Give preference to qualified Filipinos.1 Petitioner's argument, I believe, is well taken. Under the 1987 Constitution, "national patrimony" consists of the natural resources provided by Almighty God (Preamble) in our territory (Article I) consisting of land, sea, and air.2study of the 1935 Constitution, where the concept of "national patrimony" originated, would show that its framers decided to adopt the even more comprehensive expression "Patrimony of the Nation" in the belief that the phrase encircles a concept embracing not only their natural resources of the country but practically everything that belongs to the Filipino people, the tangible and the material as well as the intangible and the spiritual assets and possessions of the people. It is to be noted that the framers did not stop with conservation. They knew that conservation alone does not spell progress; and that this may be achieved only through development as a correlative factor to assure to the people not only the exclusive ownership, but also the exclusive benefits of their national patrimony).3 Moreover, the concept of national patrimony has been viewed as referring not only to our rich natural resources but also to the cultural heritage of our race.4 There is no doubt in my mind that the Manila Hotel is very much a part of our national patrimony and, as such, deserves constitutional protection as to who shall own it and benefit from its operation. This institution has played an important role in our nation's history, having been the venue of many a historical event, and serving as it did, and as it does, as the Philippine Guest House for visiting foreign heads of state, dignitaries, celebrities, and others.5 It is therefore our duty to protect and preserve it for future generations of Filipinos. As President Manuel L. Quezon once said, we must exploit the natural resources of our country, but we should do so with. an eye to the welfare of the future generations. In other words, the leaders of today are the trustees of the patrimony of our race. To preserve our national patrimony and reserve it for Filipinos was the intent of the distinguished gentlemen who first framed our Constitution. Thus, in debating the need for nationalization of our lands and natural resources, one expounded that we should "put more teeth into our laws, and; not make the nationalization of our lands and natural resources a subject of ordinary legislation but of constitutional enactment"6 To quote further: "Let not our children be mere tenants and trespassers in their own country. Let us preserve and bequeath to them what is rightfully theirs, free from all foreign liens and encumbrances".7 Now, a word on preference. In my view "preference to qualified Filipinos", to be meaningful, must refer not only to things that are peripheral, collateral, or tangential. It must touch and affect the very "heart of the existing order." In the field of public bidding in the acquisition of things that pertain to the national patrimony, preference to qualified Filipinos must allow a qualified Filipino to match or equal the higher bid of a non-Filipino; the preference shall not operate only when the bids of the qualified Filipino and the non-Filipino are equal in which case, the award should undisputedly be made to the qualified Filipino. The Constitutional preference should give the qualified Filipino an opportunity to match or equal the higher bid of the non-Filipino bidder if the preference of the qualified Filipino bidder is to be significant at all. It is true that in this present age of globalization of attitude towards foreign investments in our country, stress is on the elimination of barriers to foreign trade and investment in the country. While government agencies, including the courts should re-condition their thinking to such a trend, and make it easy and even attractive for foreign investors to come to our shores, yet we should not preclude ourselves from reserving to us Filipinos certain areas where our national identity, culture and heritage are involved. In the hotel industry, for instance, foreign investors have established themselves creditably, such as in the Shangri-La, the Nikko, the Peninsula, and Mandarin Hotels. This should not stop us from retaining 51% of the capital stock of the Manila Hotel Corporation in the hands of Filipinos. This would be in keeping with the intent of the Filipino people to preserve our national patrimony, including our historical and cultural heritage in the hands of Filipinos. VITUG, J., concurring:

I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements, shared by Mr. Justice Reynato S. Puno in a well written separate (dissenting) opinion, that: First, the provision in our fundamental law which provides that "(I)n the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos"1 is self-executory. The provision verily does not need, although it can obviously be amplified or regulated by, an enabling law or a set of rules. Second, the term "patrimony" does not merely refer to the country's natural resources but also to its cultural heritage. A "historical landmark," to use the words of Mr. Justice Justo P. Torres, Jr., Manila Hotel has now indeed become part of Philippine heritage. Third, the act of the Government Service Insurance System ("GSIS"), a government entity which derives its authority from the State, in selling 51% of its share in MHC should be considered an act of the State subject to the Constitutional mandate. On the pivotal issue of the degree of "preference to qualified Filipinos," I find it somewhat difficult to take the same path traversed by the forceful reasoning of Justice Puno. In the particular case before us, the only meaningful preference, it seems, would really be to allow the qualified Filipino to match the foreign bid for, as a particular matter, I cannot see any bid that literally calls for millions of dollars to be at par (to the last cent) with another. The magnitude of the magnitude of the bids is such that it becomes hardly possible for the competing bids to stand exactly "equal" which alone, under the dissenting view, could trigger the right of preference. It is most unfortunate that Renong Berhad has not been spared this great disappointment, a letdown that it did not deserve, by a simple and timely advise of the proper rules of bidding along with the peculiar constitutional implications of the proposed transaction. It is also regrettable that the Court at time is seen, to instead, be the refuge for bureaucratic inadequate which create the perception that it even takes on non-justiciable controversies. All told, I am constrained to vote for granting the petition. MENDOZA, J., concurring in the judgment: I take the view that in the context of the present controversy the only way to enforce the constitutional mandate that "[i]n the grant of rights, privileges and concessions covering the national patrimony the State shall give preference to qualified Filipinos"1 is to allow petitioner Philippine corporation to equal the bid of the Malaysian firm Renong Berhad for the purchase of the controlling shares of stocks in the Manila Hotel Corporation. Indeed, it is the only way a qualified Filipino of Philippine corporation can be given preference in the enjoyment of a right, privilege or concession given by the State, by favoring it over a foreign national corporation. Under the rules on public bidding of the Government Service and Insurance System, if petitioner and the Malaysian firm had offered the same price per share, "priority [would be given] to the bidder seeking the larger ownership interest in MHC,"2 so that petitioner bid for more shares, it would be preferred to the Malaysian corporation for that reason and not because it is a Philippine corporation. Consequently, it is only in cases like the present one, where an alien corporation is the highest bidder, that preferential treatment of the Philippine corporation is mandated not by declaring it winner but by allowing it "to match the highest bid in terms of price per share" before it is awarded the shares of stocks.3 That, to me, is what "preference to qualified Filipinos" means in the context of this case — by favoring Filipinos whenever they are at a disadvantage vis-a-vis foreigners. This was the meaning given in Co Chiong v. Cuaderno4 to a 1947 statute giving "preference to Filipino citizens in the lease of public market stalls."5 This Court upheld the cancellation of existing leases covering market stalls occupied by persons who were not Filipinos and the award thereafter of the stalls to qualified Filipino vendors as ordered by the Department of Finance. Similarly, in Vda. de Salgado v. De la Fuente,6 this Court sustained the validity of a municipal ordinance passed pursuant to the statute (R.A. No. 37), terminating existing leases of public market stalls and granting preference to Filipino citizens in the issuance of new licenses

for the occupancy of the stalls. In Chua Lao v. Raymundo,7 the preference granted under the statute was held to apply to cases in which Filipino vendors sought the same stalls occupied by alien vendors in the public markets even if there were available other stalls as good as those occupied by aliens. "The law, apparently, is applicable whenever there is a conflict of interest between Filipino applicants and aliens for lease of stalls in public markets, in which situation the right to preference immediately arises."8 Our legislation on the matter thus antedated by a quarter of a century efforts began only in the 1970s in America to realize the promise of equality, through affirmative action and reverse discrimination programs designed to remedy past discrimination against colored people in such areas as employment, contracting and licensing.9 Indeed, in vital areas of our national economy, there are situations in which the only way to place Filipinos in control of the national economy as contemplated in the Constitution 10 is to give them preferential treatment where they can at least stand on equal footing with aliens. There need be no fear that thus preferring Filipinos would either invite foreign retaliation or deprive the country of the benefit of foreign capital or know-how. We are dealing here not with common trades of common means of livelihood which are open to aliens in our midst, 11 but with the sale of government property, which is like the grant of government largess of benefits and concessions covering the national economy" and therefore no one should begrudge us if we give preferential treatment to our citizens. That at any rate is the command of the Constitution. For the Manila Hotel is a business owned by the Government. It is being privatized. Privatization should result in the relinquishment of the business in favor of private individuals and groups who are Filipino citizens, not in favor of aliens. Nor should there be any doubt that by awarding the shares of stocks to petitioner we would be trading competence and capability for nationalism. Both petitioner and the Malaysian firm are qualified, having hurdled the prequalification process. 12 It is only the result of the public bidding that is sought to be modified by enabling petitioner to up its bid to equal the highest bid. Nor, finally, is there any basis for the suggestion that to allow a Filipino bidder to match the highest bid of an alien could encourage speculation, since all that a Filipino entity would then do would be not to make a bid or make only a token one and, after it is known that a foreign bidder has submitted the highest bid, make an offer matching that of the foreign firm. This is not possible under the rules on public bidding of the GSIS. Under these rules there is a minimum bid required (P36.87 per share for a range of 9 to 15 million shares). 13 Bids below the minimum will not be considered. On the other hand, if the Filipino entity, after passing the prequalification process, does not submit a bid, he will not be allowed to match the highest bid of the foreign firm because this is a privilege allowed only to those who have "validly submitted bids." 14 The suggestion is, to say the least, fanciful and has no basis in fact. For the foregoing reasons, I vote to grant the petition. TORRES, JR., J., separate opinion: Constancy in law is not an attribute of a judicious mind. I say this as we are not confronted in the case at bar with legal and constitutional issues — and yet I am driven so to speak on the side of history. The reason perhaps is due to the belief that in the words of Justice Oliver Wendell Holmes, Jr., a "page of history is worth a volume of logic." I will, however, attempt to share my thoughts on whether the Manila Hotel has a historical and cultural aspect within the meaning of the constitution and thus, forming part of the "patrimony of the nation". Section 10, Article XII of the 1987 Constitution provides: xxx xxx xxx In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos.

The State shall regulate and exercise authority over foreign investments within its national goals and priorities. The foregoing provisions should be read in conjunction with Article II of the same Constitution pertaining to "Declaration of Principles and State Policies" which ordain — The State shall develop a self-reliant and independent national economy effectively by Filipinos. (Sec. 19). Interestingly, the matter of giving preference to "qualified Filipinos" was one of the highlights in the 1987 Constitution Commission proceedings thus: xxx

xxx

xxx MR. NOLLEDO. The Amendment will read: "IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS". And the word "Filipinos" here, as intended by the proponents, will include not only individual Filipinos but also Filipino-Controlled entities fully controlled by Filipinos (Vol. III, Records of the Constitutional Commission, p. 608). MR. MONSOD. We also wanted to add, as Commissioner Villegas said, this committee and this body already approved what is known as the Filipino First policy which was suggested by Commissioner de Castro. So that it is now in our Constitution (Vol. IV, Records of the Constitutional Commission, p. 225).

Commissioner Jose Nolledo explaining the provision adverted to above, said: MR. NOLLEDO. In the grant of rights, privileges and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. MR. FOZ. In connection with that amendment, if a foreign enterprise is qualified and the Filipinos enterprise is also qualified, will the Filipino enterprise still be given a preference? MR. NOLLEDO. Obviously. MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino enterprise, will the Filipino still be preferred:? MR. NOLLEDO. The answer is "yes". (Vol. III, p. 616, Records of the Constitutional Commission). The nationalistic provisions of the 1987 Constitution reflect the history and spirit of the Malolos Constitution of 1898, the 1935 Constitution and the 1973 Constitutions. That we have no reneged on this nationalist policy is articulated in one of the earliest case, this Court said — The nationalistic tendency is manifested in various provisions of the Constitution. . . . It cannot therefore be said that a law imbued with the same purpose and

spirit underlying many of the provisions of the Constitution is unreasonable, invalid or unconstitutional (Ichong, et al. vs. Hernandez, et al., 101 Phil. 1155). I subscribe to the view that history, culture, heritage, and traditions are not legislated and is the product of events, customs, usages and practices. It is actually a product of growth and acceptance by the collective mores of a race. It is the spirit and soul of a people. The Manila Hotel is part of our history, culture and heritage. Every inch of the Manila Hotel is witness to historic events (too numerous to mention) which shaped our history for almost 84 years. As I intimated earlier, it is not my position in this opinion, to examine the single instances of the legal largese which have given rise to this controversy. As I believe that has been exhaustively discussed in the ponencia. Suffice it to say at this point that the history of the Manila Hotel should not be placed in the auction block of a purely business transaction, where profits subverts the cherished historical values of our people. As a historical landmark in this "Pearl of the Orient Seas", it has its enviable tradition which, in the words of the philosopher Salvador de Madarriaga tradition is "more of a river than a stone, it keeps flowing, and one must view the flowing , and one must view the flow of both directions. If you look towards the hill from which the river flows, you see tradition in the form of forceful currents that push the river or people towards the future, and if you look the other way, you progress." Indeed, tradition and progress are the same, for progress depends on the kind of tradition. Let us not jettison the tradition of the Manila Hotel and thereby repeat our colonial history. I grant, of course the men of the law can see the same subject in different lights. I remember, however, a Spanish proverb which says — "He is always right who suspects that he makes mistakes". On this note, I say that if I have to make a mistake, I would rather err upholding the belief that the Filipino be first under his Constitution and in his own land. I vote GRANT the petition.

PUNO, J., dissenting: This is a. petition for prohibition and mandamus filed by the Manila Prince Hotel Corporation, a domestic corporation, to stop the Government Service Insurance System (GSIS) from selling the controlling shares of the Manila Hotel Corporation to a foreign corporation. Allegedly, the sale violates the second paragraph of section 10, Article XII of the Constitution. Respondent GSIS is a government-owned and controlled corporation. It is the sole owner of the Manila Hotel which it operates through its subsidiary, the Manila Hotel Corporation. Manila Hotel was included in the privatization program of the government. In 1995, GSIS proposed to sell to interested buyers 30% to 51% of its shares, ranging from 9,000,000 to 15,300,000 shares, in the Manila Hotel Corporation. After the absence of bids at the first public bidding, the block of shares offered for sale was increased from a maximum of 30% to 51%. Also, the winning bidder, or the eventual "strategic partner" of the GSIS was required to "provide management expertise and/or an international marketing/reservation system, and financial support to strengthen the profitability and performance of the Manila Hotel" 1 The proposal was approved by respondent Committee on Privatization. In July 1995, a conference was held where prequalification documents and the bidding rules were furnished interested parties. Petitioner Manila Prince Hotel, a domestic corporation, and Renong Berhad, Malaysian firm with ITT Sheraton as operator, prequalified.2 The bidding rules and procedures entitled "Guidelines and Procedures: Second Prequalification and Public Bidding of the MHC Privatization" provide:

I INTRODUCTION AND HIGHLIGHTS DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER The party that accomplishes the steps set forth below will be declared the Winning Bidder/Strategic Partner and will be awarded the Block of Shares: First — Pass the prequalification process; Second — Submit the highest bid on a price per share basis for the Block of Shares; Third — Negotiate and execute the necessary contracts with GSIS/MHC not later than October 23, 1995; xxx xxx xxx IV GUIDELINES FOR PREQUALIFICATION A. PARTIES WHO MAP APPLY FOR PREQUALIFICATION The Winning Bidder/Strategic Partner will be expected to provide management expertise and/or an international marketing reservation system, and financial support to strengthen the profitability and performance of The Manila Hotel. In this context, the GSIS is inviting to the prequalification process any local and/or foreign corporation, consortium/joint venture or juridical entity with at least one of the following qualifications: a. Proven management .expertise in the hotel industry; or b. Significant equity ownership (i.e. board representation) in another hotel company; or c. Overall management and marketing expertise to successfully operate the Manila Hotel. Parties interested in bidding for MHC should be able to provide access to the requisite management expertise and/or international marketing/reservation system for The Manila Hotel. xxx xxx xxx D. PREQUALIFICATION DOCUMENTS xxx xxx xxx E. APPLICATION PROCEDURE 1. DOCUMENTS AVAILABLE AT THE REGISTRATION OFFICE The prequalification documents can be secured at the Registration Office between 9:00 AM to 4:00 PM during working days within the period specified in Section III. Each set of documents consists of the following: a. Guidelines and Procedures: Second Prequalification and Public Bidding of the MHC Privatization

b. Confidential Information Memorandum: The Manila Hotel Corporation c. Letter of Invitation. to the Prequalification and Bidding Conference xxx xxx xxx 4. PREQUALIFICATION AND BIDDING CONFERENCE A prequalification and bidding conference will be held at The Manila Hotel on the date specified in Section III to allow the Applicant to seek clarifications and further information regarding the guidelines and procedures. Only those who purchased the prequalification documents will be allowed in this conference. Attendance to this conference is strongly advised, although the Applicant will not be penalized if it does not attend. 5. SUBMISSION OF PREQUALIFICATION DOCUMENTS The applicant should submit 5 sets of the prequalification documents (1 original set plus 4 copies) at the Registration Office between 9:00 AM to 4:00 PM during working days within the period specified in Section III. F. PREQUALIFICATION PROCESS 1. The Applicant will be evaluated by the PBAC with the assistance of the TEC based on the Information Package and other information available to the PBAC. 2. If the Applicant is a Consortium/Joint Venture, the evaluation will consider the overall qualifications of the group, taking into account the contribution of each member to the venture. 3. The decision of the PBAC with respect to the results of the PBAC evaluation will be final. 4. The Applicant shall be evaluated according to the criteria set forth below: a. Business management expertise, track record, and experience b. Financial capability. c. Feasibility and acceptability of the proposed strategic plan for the Manila Hotel 5. The PBAC will shortlist such number of Applicants as it may deem appropriate. 6. The parties that prequalified in the first MHC public bidding — ITT Sheraton, Marriot International Inc., Renaissance Hotels International Inc., consortium of RCBC Capital/Ritz Carlton — may participate in the Public Bidding without having to undergo the prequalification process again.

G. SHORTLIST OF QUALIFIED BIDDERS 1. A notice of prequalification results containing the shortlist of Qualified Bidders will be posted at the Registration Office at the date specified in Section III. 2. In the case of a Consortium/Joint Venture, the withdrawal by member whose qualification was a material consideration for being included in the shortlist is ground for disqualification of the Applicant. V. GUIDELINES FOR THE PUBLIC BIDDING A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC BIDDING All parties in the shortlist of Qualified Bidders will be eligible to participate in the Public Bidding. B. BLOCK OF SHARES A range of Nine Million (9,000,000) to Fifteen Million Three Hundred Thousand (15,300,000) shares of stock representing Thirty Percent to Fifty-One Percent (30%-51%) of the issued and outstanding shares of MHC, will be offered in the Public Bidding by the GSIS. The Qualified Bidders will have the Option of determining the number of shares within the range to bid for. The range is intended to attract bidders with different preferences and objectives for the operation and management of The Manila Hotel. C. MINIMUM BID REQUIRED ON A PRICE PER SHARE BASIS 1. Bids will be evaluated on a price per share basis. The minimum bid required on a price per share basis for the Block of Shares is Thirty-Six Pesos and Sixty-Seven Centavos (P36.67). 2. Bids should be in the Philippine currency payable to the GSIS. 3. Bids submitted with an equivalent price per share below the minimum required will not considered. D. TRANSFER COSTS xxx

xxx

xxx

E. OFFICIAL BID FORM 1. Bids must be contained in the prescribed Official Bid Form, a copy of which is attached as Annex IV. The Official Bid Form must be properly accomplished in all details; improper accomplishment may be a sufficient basis for disqualification. 2. During the Public Bidding, the Qualified Bidder will submit the Official Bid Form, which will indicate the offered purchase price, in a sealed envelope marked "OFFICIAL BID." F. SUPPORTING DOCUMENTS During the Public Bidding, the following documents should be submitted along with the bid in a separate envelop marked "SUPPORTING DOCUMENTS":

1. WRITTEN AUTHORITY TO BID (UNDER OATH). If the Qualified Bidder is a corporation, the representative of the Qualified Bidder should submit a Board resolution which adequately authorizes such representative to bid for and in behalf of the corporation with full authority to perform such acts necessary or requisite to bind the Qualified Bidder. If the Qualified Bidder is a Consortium/Joint Venture, each member of the Consortium/Joint venture should submit a Board resolution authorizing one of its members and such member's representative to make the bid on behalf of the group with full authority to perform such acts necessary or requisite to bind the Qualified Bidder. 2. BID SECURITY a. The Qualified Bidder should deposit Thirty-Three Million Pesos (P33,000,00), in Philippine currency as Bid Security in the form of: i. Manager's check or unconditional demand draft payable to the "Government Service Insurance System" and issued by a reputable banking institution duly licensed to do business in the Philippines and acceptable to GSIS; or ii. Standby-by letter of credit issued by a reputable banking institution acceptable to the GSIS. b. The GSIS will reject a bid if: i. The bid does not have Bid Security; or ii. The Bid Security accompanying the bid is for less than the required amount. c. If the Bid Security is in the form of a manager's check or unconditional demand draft, the interest earned on the Bid Security will be for the account of GSIS. d. If the Qualified Bidder becomes the winning Bidder/Strategic Partner, the Bid Security will be applied as the downpayment on the Qualified Bidder's offered purchase price. e. The Bid Security of the Qualified Bidder will be returned immediately after the Public Bidding if the Qualified Bidder is not declared the Highest Bidder. f. The Bid Security will be returned by October 23, 1995 if the Highest Bidder is unable to negotiate and execute with GSIS/MHC the Management Contract, International Marketing/Reservation System Contract or other types of contract specified by the Highest Bidder in its strategic plan for The Manila Hotel. g. The Bid Security of the Highest Bidder will be forfeited in favor of GSIS if the Highest Bidder, after negotiating and executing the Management Contract, International Marketing/Reservation System Contract specified by the Highest Bidder or other types of contract in its strategic plan for The Manila Hotel, fails or refuses to:

i. Execute the Stock Purchase and Sale Agreement with GSIS not later than October 23, 1995; or ii. Pay the full amount of the offered purchase price not later than October 23, 1995; or iii. Consummate the sale of the Block of Shares for any other reason. G. SUBMISSION OF BIDS 1. The Public Bidding will be held on September 7, 1995 at the following location: New GSIS Headquarters Financial Center, Reclamation Roxas Boulevard, Pasay City, Metro Manila.

Building Area

2. The Secretariat of the PBAC will be stationed at the Public Bidding to accept any and all bids and supporting requirements. Representatives from the Commission on Audit and COP will be invited to witness the proceedings. 3. The Qualified Bidder should submit its bid using the Official Bid Form. The accomplished Official Bid Form should be submitted in a sealed envelope marked "OFFICIAL BID." 4. The Qualified Bidder should submit the following documents in another sealed envelope marked "SUPPORTING BID DOCUMENTS" a. Written Authority Bid b. Bid Security 5. The two sealed envelopes marked "OFFICIAL BID" and "SUPPORTING BID DOCUMENTS" must be submitted simultaneously to the Secretariat between 9:00 AM and 2:00 PM, Philippine Standard Time, on the date of the Public Bidding. No bid shall be accepted after the closing time. Opened or tampered bids shall not be accepted. 6. The Secretariat will log and record the actual time of submission of the two sealed envelopes. The actual time of submission will also be indicated by the Secretariat on the face of the two envelopes. 7. After Step No. 6, the two sealed envelopes will be dropped in the corresponding bid boxes provided for the purpose. These boxes will be in full view of the invited public. H. OPENING AND READING OF BIDS 1. After the closing time of 2:00 PM on the date of the Public Bidding, the PBAC will open all sealed envelopes marked "SUPPORTING BID DOCUMENTS" for screening, evaluation and acceptance. Those who submitted incomplete/insufficient documents or document/s which is/are not substantially in the form required by PBAC will be disqualified. The envelope containing their Official Bid Form will be immediately returned to the disqualified bidders.

2. The sealed envelopes marked "OFFICIAL BID" will be opened at 3:00 PM. The name of the bidder and the amount of its bid price will be read publicly as the envelopes are opened. 3. Immediately following the reading of the bids, the PBAC will formally announce the highest bid and the Highest Bidder. 4. The highest bid will be, determined on a price per share basis. In the event of a tie wherein two or more bids have the same equivalent price per share, priority will be given to the bidder seeking the larger ownership interest in MHC. 5. The Public Bidding will be declared a failed bidding in case: a. No single bid is submitted within the prescribed period; or b. There is only one (1) bid that is submitted and acceptable to the PBAC. I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC 1. The Highest Bidder must comply with the conditions set forth below by October 23, 1995 or the Highest Bidder will lose the right to purchase the Block of Shares and GSIS will instead offer the Block of Shares to the other Qualified Bidders: a. The Highest Bidder must negotiate and execute with GSIS/MHC the Management Contract, International Marketing Reservation System Contract or other type of contract specified by the Highest Bidder in its strategic plan for The Manila Hotel. If the Highest Bidder is intending to provide only financial support to The Manila Hotel, a separate institution may enter into the aforementioned contract/s with GSIS/MHC. b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS, a copy of which will be distributed to each of the Qualified Bidder after the prequalification process is completed. 2. In the event that the Highest Bidder chooses a Management Contract for The Manila Hotel, the maximum levels for the management fee structure that GSIS/MHC are prepared to accept in the Management Contract are as follows: a. Basic management fee: Maximum of 2.5% of gross revenues.(1) b. Incentive fee: Maximum of 8.0% of gross operating profit(1) after deducting undistributed overhead expenses and the basic management fee. c. Fixed component of the international marketing/reservation system fee: Maximum of 2.0% of gross room revenues.(1) The Applicant

should indicate in its Information Package if it is wishes to charge this fee. Note (1): As defined in the uniform system of account for hotels. The GSIS/MHC have indicated above the acceptable parameters for the hotel management fees to facilitate the negotiations with the Highest Bidder for the Management Contract after the Public Bidding. A Qualified Bidder envisioning a Management Contract for The Manila Hotel should determine whether or not the management fee structure above is acceptable before submitting their prequalification documents to GSIS. J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS 1. If for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified Bidders that have validly submitted bids provided that these Qualified are willing to match the highest bid in terms of price per share. 2. The order of priority among the interested Qualified Bidders will be in accordance wit the equivalent price per share of their respective bids in their public Bidding, i.e., first and second priority will be given to the Qualified Bidders that submitted the second and third highest bids on the price per share basis, respectively, and so on. K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the following conditions are met: a. Execution of the necessary contract with GSIS/MHC not later than October 23, 1995; and b. Requisite approvals from the GSIS/MHC and COP/OGCC are obtained. I. FULL PAYMENT FOR THE BLOCK OF SHARES 1. Upon execution of the necessary contracts with GSIS/MHC, the Winning Bidder/Strategic Partner must fully pay, not later than October 23, 1995, the offered purchase price for the Block of Shares after deducting the Bid Security applied as downpayment. 2. All payments should be made in the form of a Manager's Check or unconditional Demand Draft, payable to the "Government Service Insurance System," issued by a reputable banking institution licensed to do business in the Philippines and acceptable to GSIS. M. GENERAL CONDITIONS 1. The GSIS unconditionally reserves the right to reject any or all applications, waive any formality therein, or accept such application as maybe considered most advantageous to the GSIS. The GSIS similarly reserves the right to require the submission of

any additional information from the Applicant as the PBAC may deem necessary. 2. The GSIS further reserves the right to call off the Public Bidding prior to acceptance of the bids and call for a new public bidding under amended rules, and without any liability whatsoever to any or all the Qualified Bidders, except the obligation to return the Bid Security. 3. The GSIS reserves the right to reset the date of prequalification/bidding conference, the deadline for submission of the prequalification documents, the date of Public Bidding or other pertinent activities at least three calendar days prior to the respective deadlines/target dates.

the the the (3)

4. The GSIS sells only whatever rights, interest and participation it has on the Block of Shares. 5. All documents and materials submitted by the Qualified Bidders, except the Bid Security, may be returned upon request. 6. The decision of the PBAC/GSIS on the results of the Public Bidding is final. The Qualified Bidders, by participating in the Public Bidding, are deemed to have agreed to accept and abide by these results. 7. The GSIS will be held free and harmless form any liability, suit or allegation arising out of the Public Bidding by the Qualified Bidders who have participated in the Public Bidding.3 The second public bidding was held on September 18, 1995. Petitioner bidded P41.00 per share for 15,300,000 shares and Renong Berhad bidded P44.00 per share also for 15,300,000 shares. The GSIS declared Renong Berhad the highest bidder and immediately returned petitioner's bid security. On September 28, 1995, ten days after the bidding, petitioner wrote to GSIS offering to match the bid price of Renong Berhad. It requested that the award be made to itself citing the second paragraph of Section 10, Article XII of the Constitution. It sent a manager's check for thirty-three million pesos (P33,000,000.00) as bid security. Respondent GSIS, then in the process of negotiating with Renong Berhad the terms and conditions of the contract and technical agreements in the operation of the hotel, refused to entertain petitioner's request. Hence, petitioner filed the present petition. We issued a temporary restraining order on October 18, 1995. Petitioner anchors its plea on the second paragraph of Article XII, Section 10 of the Constitution4 on the "National Economy and Patrimony" which provides: xxx xxx xxx In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. xxx xxx xxx The vital issues can be summed up as follows:

(1) Whether section 10, paragraph 2 of Article XII of the Constitution is a selfexecuting provision and does not need implementing legislation to carry it into effect; (2) Assuming section 10 paragraph 2 of Article XII is self-executing whether the controlling shares of the Manila Hotel Corporation form part of our patrimony as a nation; (3) Whether GSIS is included in the term "State," hence, mandated to implement section 10, paragraph 2 of Article XII of the Constitution; (4) Assuming GSIS is part of the State, whether it failed to give preference to petitioner, a qualified Filipino corporation, over and above Renong Berhad, a foreign corporation, in the sale of the controlling shares of the Manila Hotel Corporation; (5) Whether petitioner is estopped from questioning the sale of the shares to Renong Berhad, a foreign corporation. Anent the first issue, it is now familiar learning that a Constitution provides the guiding policies and principles upon which is built the substantial foundation and general framework of the law and government.5 As a rule, its provisions are deemed self-executing and can be enforced without further legislative action.6 Some of its provisions, however, can be implemented only through appropriate laws enacted by the Legislature, hence not self-executing. To determine whether a particular provision of a Constitution is self-executing is a hard row to hoe. The key lies on the intent of the framers of the fundamental law oftentimes submerged in its language. A searching inquiry should be made to find out if the provision is intended as a present enactment, complete in itself as a definitive law, or if it needs future legislation for completion and enforcement.7 The inquiry demands a micro-analysis of the text and the context of the provision in question.8 Courts as a rule consider the provisions of the Constitution as self-executing,9 rather than as requiring future legislation for their enforcement. 10 The reason is not difficult to discern. For if they are not treated as self-executing, the mandate of the fundamental law ratified by the sovereign people can be easily ignored and nullified by Congress. 11 Suffused with wisdom of the ages is the unyielding rule that legislative actions may give breath to constitutional rights but congressional in action should not suffocate them. 12 Thus, we have treated as self-executing the provisions in the Bill of Rights on arrests, searches and seizures, 13 the rights of a person under custodial investigation, 14 the rights of an accused, 15 and the privilege against self-incrimination, 16 It is recognize a that legislation is unnecessary to enable courts to effectuate constitutional provisions guaranteeing the fundamental rights of life, liberty and the protection of property. 17 The same treatment is accorded to constitutional provisions forbidding the taking or damaging of property for public use without just compensation.18 Contrariwise, case law lays down the rule that a constitutional provision is not self-executing where it merely announces a policy and its language empowers the Legislature to prescribe the means by which the policy shall be carried into effect. 19 Accordingly, we have held that the provisions in Article II of our Constitution entitled "Declaration of Principles and State Policies" should generally be construed as mere statements of principles of the State. 20 We have also ruled that some provisions of Article XIII on "Social Justice and Human Rights," 21 and Article XIV on "Education Science and Technology, Arts, Culture end Sports" 22 cannot be the basis of judicially enforceable rights. Their enforcement is addressed to the discretion of Congress though they provide the framework for legislation 23 to effectuate their policy content. 24 Guided by this map of settled jurisprudence, we now consider whether Section 10, Article XII of the 1987 Constitution is self-executing or not. It reads:

Sec. 10. The Congress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve to citizens of the Philippines or to corporations or associations at least sixty per centum of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of investments. The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos. In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities. The first paragraph directs Congress to reserve certain areas of investments in the country 25 to Filipino citizens or to corporations sixty per cent 26 of whose capital stock is owned by Filipinos. It further commands Congress to enact laws that will encourage the formation and operation of one hundred percent Filipino-owned enterprises. In checkered contrast, the second paragraph orders the entire State to give preference to qualified Filipinos in the grant of rights and privileges covering the national economy and patrimony. The third paragraph also directs the State to regulate foreign investments in line with our national goals and well-set priorities. The first paragraph of Section 10 is not self-executing. By its express text, there is a categorical command for Congress to enact laws restricting foreign ownership in certain areas of investments in the country and to encourage the formation and operation of wholly-owned Filipino enterprises. The right granted by the provision is clearly still in esse. Congress has to breathe life to the right by means of legislation. Parenthetically, this paragraph was plucked from section 3, Article XIV of the 1973 Constitution. 27 The provision in the 1973 Constitution affirmed our ruling in the landmark case of Lao Ichong v. Hernandez, 28where we upheld the discretionary authority of Congress to Filipinize certain areas of investments. 29 By reenacting the 1973 provision, the first paragraph of section 10 affirmed the power of Congress to nationalize certain areas of investments in favor of Filipinos. The second and third paragraphs of Section 10 are different. They are directed to the State and not to Congress alone which is but one of the three great branches of our government. Their coverage is also broader for they cover "the national economy and patrimony" and "foreign investments within [the] national jurisdiction" and not merely "certain areas of investments." Beyond debate, they cannot be read as granting Congress the exclusive power to implement by law the policy of giving preference to qualified Filipinos in the conferral of rights and privileges covering our national economy and patrimony. Their language does not suggest that any of the State agency or instrumentality has the privilege to hedge or to refuse its implementation for any reason whatsoever. Their duty to implement is unconditional and it is now. The second and the third paragraphs of Section 10, Article XII are thus self-executing. This submission is strengthened by Article II of the Constitution entitled "Declaration of Principles and State Policies." Its Section 19 provides that "[T]he State shall develop a selfreliant and independent national economy effectively controlled by Filipinos." It engrafts the allimportant Filipino First policy in our fundamental law and by the use of the mandatory word "shall," directs its enforcement by the whole State without any pause or a half- pause in time. The second issue is whether the sale of a majority of the stocks of the Manila Hotel Corporation involves the disposition of part of our national patrimony. The records of the Constitutional Commission show that the Commissioners entertained the same view as to its meaning. According to Commissioner Nolledo, "patrimony" refers not only to our rich natural resources but also to the cultural heritage of our race. 30 By this yardstick, the sale of Manila Hotel falls within the coverage of the constitutional provision giving preferential treatment to qualified Filipinos in the grant of rights involving our national patrimony. The unique value of the Manila Hotel to our history and culture cannot be viewed with a myopic eye. The value of the hotel goes beyond pesos and centavos. As chronicled by Beth Day Romulo, 31 the hotel first opened on

July 4, 1912 as a first-class hotel built by the American Insular Government for Americans living in, or passing through, Manila while traveling to the Orient. Indigenous materials and Filipino craftsmanship were utilized in its construction, For sometime, it was exclusively used by American and Caucasian travelers and served as the "official guesthouse" of the American Insular Government for visiting foreign dignitaries. Filipinos began coming to the Hotel as guests during the Commonwealth period. When the Japanese occupied Manila, it served as military headquarters and lodging for the highest-ranking officers from Tokyo. It was at the Hotel and the Intramuros that the Japanese made their last stand during the Liberation of Manila. After the war, the Hotel again served foreign guests and Filipinos alike. Presidents and kings, premiers and potentates, as well as glamorous international film and sports celebrities were housed in the Hotel. It was also the situs of international conventions and conferences. In the local scene, it was the venue of historic meetings, parties and conventions of political parties. The Hotel has reaped and continues reaping numerous recognitions and awards from international hotel and travel award-giving bodies, a fitting acknowledgment of Filipino talent and ingenuity. These are judicially cognizable facts which cannot be bent by a biased mind. The Hotel may not, as yet, have been declared a national cultural treasure pursuant to Republic Act No. 4846 but that does not exclude it from our national patrimony. Republic Act No. 4846, "The Cultural Properties Preservation and Protection Act," merely provides a procedure whereby a particular cultural property may be classified a "national cultural treasure" or an "important cultural property. 32 Approved on June 18, 1966 and amended by P.D. 374 in 1974, the law is limited in its reach and cannot be read as the exclusive law implementing section 10, Article XII of the 1987 Constitution. To be sure, the law does not equate cultural treasure and cultural property as synonymous to the phrase "patrimony of the nation." The third issue is whether the constitutional command to the State includes the respondent GSIS. A look at its charter will reveal that GSIS is a government-owned and controlled corporation that administers funds that come from the monthly contributions of government employees and the government. 33 The funds are held in trust for a distinct purpose which cannot be disposed of indifferently. 34 They are to be used to finance the retirement, disability and life insurance benefits of the employees and the administrative and operational expenses of the GSIS, 35Excess funds, however, are allowed to be invested in business and other ventures for the benefit of the employees.36 It is thus contended that the GSIS investment in the Manila Hotel Corporation is a simple business venture, hence, an act beyond the contemplation of section 10, paragraph 2 of Article XII of the Constitution. The submission is unimpressive. The GSIS is not a pure private corporation. It is essentially a public corporation created by Congress and granted an original charter to serve a public purpose. It is subject to the jurisdictions of the Civil Service Commission 37 and the Commission on Audit. 38 As state-owned and controlled corporation, it is skin-bound to adhere to the policies spelled out in the general welfare of the people. One of these policies is the Filipino First policy which the people elevated as a constitutional command. The fourth issue demands that we look at the content of phrase "qualified Filipinos" and their "preferential right." The Constitution desisted from defining their contents. This is as it ought to be for a Constitution only lays down flexible policies and principles which can bent to meet today's manifest needs and tomorrow's unmanifested demands. Only a constitution strung with elasticity can grow as a living constitution. Thus, during the deliberations in the Constitutional Commission, Commissioner Nolledo to define the phrase brushed aside a suggestion to define the phrase "qualified Filipinos." He explained that present and prospective "laws" will take care of the problem of its interpretation, viz: xxx

xxx

xxx THE PRESIDENT. What is the suggestion of Commissioner Rodrigo? Is it to remove the word "QUALIFIED?"

MR. RODRIGO. No, no, but say definitely "TO QUALIFIED FILIPINOS" as against whom? As against aliens over aliens? MR. NOLLEDO. Madam President, I think that is understood. We use the word "QUALIFIED" because the existing laws or the prospective laws will always lay down conditions under which business map be done, for example, qualifications on capital, qualifications on the setting up of other financial structures, et cetera. MR. RODRIGO. It is just a matter of style. MR. NOLLEDO Yes. MR. RODRIGO. If we say, "PREFERENCE TO QUALIFIED FILIPINOS," it can be understood as giving preference to qualified Filipinos as against Filipinos who are not qualified. MR. NOLLEDO. Madam President, that was the intention of the proponents. The committee has accepted the amendment. xxx

xxx

xxx

As previously discussed, the constitutional command to enforce the Filipino First policy is addressed to the State and not to Congress alone. Hence, the word "laws" should not be understood as limited to legislations but all state actions which include applicable rules and regulations adopted by agencies and instrumentalities of the State in the exercise of their rule-making power. In the case at bar, the bidding rules and regulations set forth the standards to measure the qualifications of bidders Filipinos and foreigners alike. It is not seriously disputed that petitioner qualified to bid as did Renong Berhad. 39 Thus, we come to the critical issue of the degree of preference which GSIS should have accorded petitioner, a qualified Filipino, over Renong Berhad, a foreigner, in the purchase of the controlling shares of the Manila Hotel. Petitioner claims that after losing the bid, this right of preference gives it a second chance to match the highest bid of Renong Berhad. With due respect, I cannot sustain petitioner's submission. I prescind from the premise that the second paragraph of section 10, Article XII of the Constitution is pro-Pilipino but not anti-alien. It is pro-Filipino for it gives preference to Filipinos. It is not, however, anti-alien per se for it does not absolutely bar aliens in the grant of rights, privileges and concessions covering the national economy and patrimony. Indeed, in the absence of qualified Filipinos, the State is not prohibited from granting these rights, privileges and concessions to foreigners if the act will promote the weal of the nation. In implementing the policy articulated in section 10, Article XII of the Constitution, the stellar task of our State policy-makers is to maintain a creative tension between two desiderata — first, the need to develop our economy and patrimony with the help of foreigners if necessary, and, second, the need to keep our economy controlled by Filipinos. Rightfully, the framers of the Constitution did not define the degree of the right of preference to be given to qualified Filipinos. They knew that for the right to serve the general welfare, it must have a malleable content that can be adjusted by our policy-makers to meet the changing needs of our people. In fine, the right of preference of qualified Filipinos is to be determined by degree as time dictates and circumstances warrant. The lesser the need for alien assistance, the greater the degree of the right of preference can be given to Filipinos and vice verse. Again, it should be stressed that the right and the duty to determine the degree of this privilege at any given time is addressed to the entire State. While under our constitutional scheme, the

right primarily belongs to Congress as the lawmaking department of our government, other branches of government, and all their agencies and instrumentalities, share the power to enforce this state policy. Within the limits of their authority, they can act or promulgate rules and regulations defining the degree of this right of preference in cases where they have to make grants involving the national economy and judicial duty. On the other hand, our duty is to strike down acts of the state that violate the policy. To date, Congress has not enacted a law defining the degree of the preferential right. Consequently, we must turn to the rules and regulations of on respondents Committee Privatization and GSIS to determine the degree of preference that petitioner is entitled to as a qualified Filipino in the subject sale. A tearless look at the rules and regulations will show that they are silent on the degree of preferential right to be accorded qualified Filipino bidder. Despite their silence, however, they cannot be read to mean that they do not grant any degree of preference to petitioner for paragraph 2, section 10, Article XII of the Constitution is deemed part of said rules and regulations. Pursuant to legal hermeneutics which demand that we interpret rules to save them from unconstitutionality, I submit that the right of preference of petitioner arises only if it tied the bid of Benong Berhad. In that instance, all things stand equal, and bidder, as a qualified Pilipino bidder, should be preferred. It is with deep regret that I cannot subscribe to the view that petitioner has a right to match the bid of Renong Berhad. Petitioner's submission must be supported by the rules but even if we examine the rules inside-out .thousand times, they can not justify the claimed right. Under the rules, the right to match the highest bid arises only "if for any reason, the highest bidder cannot be awarded block of shares . . ." No reason has arisen that will prevent the award to Renong Berhad. It qualified as bidder. It complied with the procedure of bidding. It tendered the highest bid. It was declared as the highest bidder by the GSIS and the rules say this decision is final. It deserves the award as a matter of right for the rules clearly did not give to the petitioner as a qualified Filipino privilege to match the higher bid of a foreigner. What the rules did not grant, petitioner cannot demand. Our symphaties may be with petitioner but the court has no power to extend the latitude and longtitude of the right of preference as defined by the rules. The parameters of the right of preference depend on galaxy of facts and factors whose determination belongs to the province of the policy-making branches and agencies of the State. We are duty-bound to respect that determination even if we differ with the wisdom of their judgment. The right they grant may be little but we must uphold the grant for as long as the right of preference is not denied. It is only when a State action amounts to a denial of the right that the Court can come in and strike down the denial as unconstitutional. Finally, I submit that petitioner is estopped from assailing the winning bid of Renong Berhad. Petitioner was aware of the rules and regulations of the bidding. It knew that the rules and regulations do not provide that a qualified Filipino bidder can match the winning bid submitting an inferior bid. It knew that the bid was open to foreigners and that foreigners qualified even during the first bidding. Petitioner cannot be allowed to repudiate the rules which it agreed to respect. It cannot be allowed to obey the rules when it wins and disregard them when it loses. If sustained, petitioners' stance will wreak havoc on he essence of bidding. Our laws, rules and regulations require highest bidding to raise as much funds as possible for the government to maximize its capacity to deliver essential services to our people. This is a duty that must be discharged by Filipinos and foreigners participating in a bidding contest and the rules are carefully written to attain this objective. Among others, bidders are prequalified to insure their financial capability. The bidding is secret and the bids are sealed to prevent collusion among the parties. This objective will be undermined if we grant petitioner that privilege to know the winning bid and a chance to match it. For plainly, a second chance to bid will encourage a bidder not to strive to give the highest bid in the first bidding. We support the Filipino First policy without any reservation. The visionary nationalist Don Claro M. Recto has warned us that the greatest tragedy that can befall a Filipino is to be an alien in his own land. The Constitution has embodied Recto's counsel as a state policy. But while the Filipino First policy requires that we incline to a Filipino, it does not demand that we wrong an alien. Our policy makers can write laws and rules giving favored treatment to the Filipino but we are not free to be unfair to a foreigner after writing the laws and the rules. After the laws are written, they must be obeyed as written, by Filipinos and foreigners alike. The equal protection clause of the Constitution protects all against unfairness. We can be pro-Filipino without unfairness to foreigner.

I vote to dismiss the petition. Narvasa, C.J., and Melo, J., concur.

PANGANIBAN, J., dissenting: I regret I cannot join the majority. To the incisive Dissenting Opinion of Mr. Justice Reynato S. Puno, may I just add 1. The majority contends the Constitution should be interpreted to mean that, after a bidding process is concluded, the losing Filipino bidder should be given the right to equal the highest foreign bid, and thus to win. However, the Constitution [Sec. 10 (2), Art. XII] simply states that "in the grant of rights . . . covering the national economy and patrimony, the State shall give preference to qualified Filipinos." The majority concedes that there is no law defining the extent or degree of such preference. Specifically, no statute empowers a losing Filipino bidder to increase his bid and equal that of the winning foreigner. In the absence of such empowering law, the majority's strained interpretation, I respectfully submit constitutes unadulterated judicial legislation, which makes bidding a ridiculous sham where no Filipino can lose and where no foreigner can win. Only in the Philippines!. 2. Aside from being prohibited by the Constitution, such judicial is short-sighted and, viewed properly, gravely prejudicial to long-term Filipino interest. It encourages other countries — in the guise of reverse comity or worse, unabashed retaliation — to discriminate against us in their own jurisdictions by authorizing their own nationals to similarly equal and defeat the higher bids of Filipino enterprises solely, while on the other hand, allowing similar bids of other foreigners to remain unchallenged by their nationals. The majority's thesis will thus marginalize Filipinos as pariahs in the global marketplace with absolute no chance of winning any bidding outside our country. Even authoritarian regimes and hermit kingdoms have long ago found out unfairness, greed and isolation are self-defeating and in the long-term, self-destructing. The moral lesson here is simple: Do not do unto other what you dont want other to do unto you. 3. In the absence of a law specifying the degree or extent of the "Filipino First" policy of the Constitution, the constitutional preference for the "qualified Filipinos" may be allowed only where all the bids are equal. In this manner, we put the Filipino ahead without self-destructing him and without being unfair to the foreigner. In short, the Constitution mandates a victory for the qualified Filipino only when the scores are tied. But not when the ballgame is over and the foreigner clearly posted the highest score.

Separate Opinions PADILLA, J., concurring: I concur with the ponencia of Mr. Justice Bellosillo. At the same time, I would like to expound a bit more on the concept of national patrimony as including within its scope and meaning institutions such as the Manila Hotel. It is argued by petitioner that the Manila Hotel comes under "national patrimony" over which qualified Filipinos have the preference, in ownership and operation. The Constitutional provision on point states: xxx xxx xxx In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall Give preference to qualified Filipinos.1

Petitioner's argument, I believe, is well taken. Under the 1987 Constitution, "national patrimony" consists of the natural resources provided by Almighty God (Preamble) in our territory (Article I) consisting of land, sea, and air.2study of the 1935 Constitution, where the concept of "national patrimony" originated, would show that its framers decided to adopt the even more comprehensive expression "Patrimony of the Nation" in the belief that the phrase encircles a concept embracing not only their natural resources of the country but practically everything that belongs to the Filipino people, the tangible and the material as well as the intangible and the spiritual assets and possessions of the people. It is to be noted that the framers did not stop with conservation. They knew that conservation alone does not spell progress; and that this may be achieved only through development as a correlative factor to assure to the people not only the exclusive ownership, but also the exclusive benefits of their national patrimony).3 Moreover, the concept of national patrimony has been viewed as referring not only to our rich natural resources but also to the cultural heritage of our race.4 There is no doubt in my mind that the Manila Hotel is very much a part of our national patrimony and, as such, deserves constitutional protection as to who shall own it and benefit from its operation. This institution has played an important role in our nation's history, having been the venue of many a historical event, and serving as it did, and as it does, as the Philippine Guest House for visiting foreign heads of state, dignitaries, celebrities, and others.5 It is therefore our duty to protect and preserve it for future generations of Filipinos. As President Manuel L. Quezon once said, we must exploit the natural resources of our country, but we should do so with. an eye to the welfare of the future generations. In other words, the leaders of today are the trustees of the patrimony of our race. To preserve our national patrimony and reserve it for Filipinos was the intent of the distinguished gentlemen who first framed our Constitution. Thus, in debating the need for nationalization of our lands and natural resources, one expounded that we should "put more teeth into our laws, and; not make the nationalization of our lands and natural resources a subject of ordinary legislation but of constitutional enactment"6 To quote further: "Let not our children be mere tenants and trespassers in their own country. Let us preserve and bequeath to them what is rightfully theirs, free from all foreign liens and encumbrances".7 Now, a word on preference. In my view "preference to qualified Filipinos", to be meaningful, must refer not only to things that are peripheral, collateral, or tangential. It must touch and affect the very "heart of the existing order." In the field of public bidding in the acquisition of things that pertain to the national patrimony, preference to qualified Filipinos must allow a qualified Filipino to match or equal the higher bid of a non-Filipino; the preference shall not operate only when the bids of the qualified Filipino and the non-Filipino are equal in which case, the award should undisputedly be made to the qualified Filipino. The Constitutional preference should give the qualified Filipino an opportunity to match or equal the higher bid of the non-Filipino bidder if the preference of the qualified Filipino bidder is to be significant at all. It is true that in this present age of globalization of attitude towards foreign investments in our country, stress is on the elimination of barriers to foreign trade and investment in the country. While government agencies, including the courts should re-condition their thinking to such a trend, and make it easy and even attractive for foreign investors to come to our shores, yet we should not preclude ourselves from reserving to us Filipinos certain areas where our national identity, culture and heritage are involved. In the hotel industry, for instance, foreign investors have established themselves creditably, such as in the Shangri-La, the Nikko, the Peninsula, and Mandarin Hotels. This should not stop us from retaining 51% of the capital stock of the Manila Hotel Corporation in the hands of Filipinos. This would be in keeping with the intent of the Filipino people to preserve our national patrimony, including our historical and cultural heritage in the hands of Filipinos. VITUG, J., concurring: I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements, shared by Mr. Justice Reynato S. Puno in a well written separate (dissenting) opinion, that:

First, the provision in our fundamental law which provides that "(I)n the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos"1 is self-executory. The provision verily does not need, although it can obviously be amplified or regulated by, an enabling law or a set of rules. Second, the term "patrimony" does not merely refer to the country's natural resources but also to its cultural heritage. A "historical landmark," to use the words of Mr. Justice Justo P. Torres, Jr., Manila Hotel has now indeed become part of Philippine heritage. Third, the act of the Government Service Insurance System ("GSIS"), a government entity which derives its authority from the State, in selling 51% of its share in MHC should be considered an act of the State subject to the Constitutional mandate. On the pivotal issue of the degree of "preference to qualified Filipinos," I find it somewhat difficult to take the same path traversed by the forceful reasoning of Justice Puno. In the particular case before us, the only meaningful preference, it seems, would really be to allow the qualified Filipino to match the foreign bid for, as a particular matter, I cannot see any bid that literally calls for millions of dollars to be at par (to the last cent) with another. The magnitude of the magnitude of the bids is such that it becomes hardly possible for the competing bids to stand exactly "equal" which alone, under the dissenting view, could trigger the right of preference. It is most unfortunate that Renong Berhad has not been spared this great disappointment, a letdown that it did not deserve, by a simple and timely advise of the proper rules of bidding along with the peculiar constitutional implications of the proposed transaction. It is also regrettable that the Court at time is seen, to instead, be the refuge for bureaucratic inadequate which create the perception that it even takes on non-justiciable controversies. All told, I am constrained to vote for granting the petition. MENDOZA, J., concurring in the judgment: I take the view that in the context of the present controversy the only way to enforce the constitutional mandate that "[i]n the grant of rights, privileges and concessions covering the national patrimony the State shall give preference to qualified Filipinos" 1 is to allow petitioner Philippine corporation to equal the bid of the Malaysian firm Renong Berhad for the purchase of the controlling shares of stocks in the Manila Hotel Corporation. Indeed, it is the only way a qualified Filipino of Philippine corporation can be given preference in the enjoyment of a right, privilege or concession given by the State, by favoring it over a foreign national corporation. Under the rules on public bidding of the Government Service and Insurance System, if petitioner and the Malaysian firm had offered the same price per share, "priority [would be given] to the bidder seeking the larger ownership interest in MHC,"2 so that petitioner bid for more shares, it would be preferred to the Malaysian corporation for that reason and not because it is a Philippine corporation. Consequently, it is only in cases like the present one, where an alien corporation is the highest bidder, that preferential treatment of the Philippine corporation is mandated not by declaring it winner but by allowing it "to match the highest bid in terms of price per share" before it is awarded the shares of stocks.3 That, to me, is what "preference to qualified Filipinos" means in the context of this case — by favoring Filipinos whenever they are at a disadvantage vis-a-vis foreigners. This was the meaning given in Co Chiong v. Cuaderno4 to a 1947 statute giving "preference to Filipino citizens in the lease of public market stalls."5 This Court upheld the cancellation of existing leases covering market stalls occupied by persons who were not Filipinos and the award thereafter of the stalls to qualified Filipino vendors as ordered by the Department of Finance. Similarly, in Vda. de Salgado v. De la Fuente,6 this Court sustained the validity of a municipal ordinance passed pursuant to the statute (R.A. No. 37), terminating existing leases of public market stalls and granting preference to Filipino citizens in the issuance of new licenses for the occupancy of the stalls. In Chua Lao v. Raymundo,7 the preference granted under the statute was held to apply to cases in which Filipino vendors sought the same stalls occupied by alien vendors in the public markets even if there were available other stalls as good as those

occupied by aliens. "The law, apparently, is applicable whenever there is a conflict of interest between Filipino applicants and aliens for lease of stalls in public markets, in which situation the right to preference immediately arises."8 Our legislation on the matter thus antedated by a quarter of a century efforts began only in the 1970s in America to realize the promise of equality, through affirmative action and reverse discrimination programs designed to remedy past discrimination against colored people in such areas as employment, contracting and licensing.9 Indeed, in vital areas of our national economy, there are situations in which the only way to place Filipinos in control of the national economy as contemplated in the Constitution 10 is to give them preferential treatment where they can at least stand on equal footing with aliens. There need be no fear that thus preferring Filipinos would either invite foreign retaliation or deprive the country of the benefit of foreign capital or know-how. We are dealing here not with common trades of common means of livelihood which are open to aliens in our midst, 11 but with the sale of government property, which is like the grant of government largess of benefits and concessions covering the national economy" and therefore no one should begrudge us if we give preferential treatment to our citizens. That at any rate is the command of the Constitution. For the Manila Hotel is a business owned by the Government. It is being privatized. Privatization should result in the relinquishment of the business in favor of private individuals and groups who are Filipino citizens, not in favor of aliens. Nor should there be any doubt that by awarding the shares of stocks to petitioner we would be trading competence and capability for nationalism. Both petitioner and the Malaysian firm are qualified, having hurdled the prequalification process. 12 It is only the result of the public bidding that is sought to be modified by enabling petitioner to up its bid to equal the highest bid. Nor, finally, is there any basis for the suggestion that to allow a Filipino bidder to match the highest bid of an alien could encourage speculation, since all that a Filipino entity would then do would be not to make a bid or make only a token one and, after it is known that a foreign bidder has submitted the highest bid, make an offer matching that of the foreign firm. This is not possible under the rules on public bidding of the GSIS. Under these rules there is a minimum bid required (P36.87 per share for a range of 9 to 15 million shares). 13 Bids below the minimum will not be considered. On the other hand, if the Filipino entity, after passing the prequalification process, does not submit a bid, he will not be allowed to match the highest bid of the foreign firm because this is a privilege allowed only to those who have "validly submitted bids." 14 The suggestion is, to say the least, fanciful and has no basis in fact. For the foregoing reasons, I vote to grant the petition. TORRES, JR., J., separate opinion: Constancy in law is not an attribute of a judicious mind. I say this as we are not confronted in the case at bar with legal and constitutional issues — and yet I am driven so to speak on the side of history. The reason perhaps is due to the belief that in the words of Justice Oliver Wendell Holmes, Jr., a "page of history is worth a volume of logic." I will, however, attempt to share my thoughts on whether the Manila Hotel has a historical and cultural aspect within the meaning of the constitution and thus, forming part of the "patrimony of the nation". Section 10, Article XII of the 1987 Constitution provides: xxx xxx xxx In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. The State shall regulate and exercise authority over foreign investments within its national goals and priorities.

The foregoing provisions should be read in conjunction with Article II of the same Constitution pertaining to "Declaration of Principles and State Policies" which ordain — The State shall develop a self-reliant and independent national economy effectively by Filipinos. (Sec. 19). Interestingly, the matter of giving preference to "qualified Filipinos" was one of the highlights in the 1987 Constitution Commission proceedings thus: xxx

xxx

xxx MR. NOLLEDO. The Amendment will read: "IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS". And the word "Filipinos" here, as intended by the proponents, will include not only individual Filipinos but also Filipino-Controlled entities fully controlled by Filipinos (Vol. III, Records of the Constitutional Commission, p. 608). MR. MONSOD. We also wanted to add, as Commissioner Villegas said, this committee and this body already approved what is known as the Filipino First policy which was suggested by Commissioner de Castro. So that it is now in our Constitution (Vol. IV, Records of the Constitutional Commission, p. 225).

Commissioner Jose Nolledo explaining the provision adverted to above, said: MR. NOLLEDO. In the grant of rights, privileges and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. MR. FOZ. In connection with that amendment, if a foreign enterprise is qualified and the Filipinos enterprise is also qualified, will the Filipino enterprise still be given a preference? MR. NOLLEDO. Obviously. MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino enterprise, will the Filipino still be preferred:? MR. NOLLEDO. The answer is "yes". (Vol. III, p. 616, Records of the Constitutional Commission). The nationalistic provisions of the 1987 Constitution reflect the history and spirit of the Malolos Constitution of 1898, the 1935 Constitution and the 1973 Constitutions. That we have no reneged on this nationalist policy is articulated in one of the earliest case, this Court said — The nationalistic tendency is manifested in various provisions of the Constitution. . . . It cannot therefore be said that a law imbued with the same purpose and spirit underlying many of the provisions of the Constitution is unreasonable, invalid or unconstitutional (Ichong, et al. vs. Hernandez, et al., 101 Phil. 1155).

I subscribe to the view that history, culture, heritage, and traditions are not legislated and is the product of events, customs, usages and practices. It is actually a product of growth and acceptance by the collective mores of a race. It is the spirit and soul of a people. The Manila Hotel is part of our history, culture and heritage. Every inch of the Manila Hotel is witness to historic events (too numerous to mention) which shaped our history for almost 84 years. As I intimated earlier, it is not my position in this opinion, to examine the single instances of the legal largese which have given rise to this controversy. As I believe that has been exhaustively discussed in the ponencia. Suffice it to say at this point that the history of the Manila Hotel should not be placed in the auction block of a purely business transaction, where profits subverts the cherished historical values of our people. As a historical landmark in this "Pearl of the Orient Seas", it has its enviable tradition which, in the words of the philosopher Salvador de Madarriaga tradition is "more of a river than a stone, it keeps flowing, and one must view the flowing , and one must view the flow of both directions. If you look towards the hill from which the river flows, you see tradition in the form of forceful currents that push the river or people towards the future, and if you look the other way, you progress." Indeed, tradition and progress are the same, for progress depends on the kind of tradition. Let us not jettison the tradition of the Manila Hotel and thereby repeat our colonial history. I grant, of course the men of the law can see the same subject in different lights. I remember, however, a Spanish proverb which says — "He is always right who suspects that he makes mistakes". On this note, I say that if I have to make a mistake, I would rather err upholding the belief that the Filipino be first under his Constitution and in his own land. I vote GRANT the petition.

PUNO, J., dissenting: This is a. petition for prohibition and mandamus filed by the Manila Prince Hotel Corporation, a domestic corporation, to stop the Government Service Insurance System (GSIS) from selling the controlling shares of the Manila Hotel Corporation to a foreign corporation. Allegedly, the sale violates the second paragraph of section 10, Article XII of the Constitution. Respondent GSIS is a government-owned and controlled corporation. It is the sole owner of the Manila Hotel which it operates through its subsidiary, the Manila Hotel Corporation. Manila Hotel was included in the privatization program of the government. In 1995, GSIS proposed to sell to interested buyers 30% to 51% of its shares, ranging from 9,000,000 to 15,300,000 shares, in the Manila Hotel Corporation. After the absence of bids at the first public bidding, the block of shares offered for sale was increased from a maximum of 30% to 51%. Also, the winning bidder, or the eventual "strategic partner" of the GSIS was required to "provide management expertise and/or an international marketing/reservation system, and financial support to strengthen the profitability and performance of the Manila Hotel" 1 The proposal was approved by respondent Committee on Privatization. In July 1995, a conference was held where prequalification documents and the bidding rules were furnished interested parties. Petitioner Manila Prince Hotel, a domestic corporation, and Renong Berhad, Malaysian firm with ITT Sheraton as operator, prequalified.2 The bidding rules and procedures entitled "Guidelines and Procedures: Second Prequalification and Public Bidding of the MHC Privatization" provide: I INTRODUCTION AND HIGHLIGHTS

DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER The party that accomplishes the steps set forth below will be declared the Winning Bidder/Strategic Partner and will be awarded the Block of Shares: First — Pass the prequalification process; Second — Submit the highest bid on a price per share basis for the Block of Shares; Third — Negotiate and execute the necessary contracts with GSIS/MHC not later than October 23, 1995; xxx xxx xxx IV GUIDELINES FOR PREQUALIFICATION A. PARTIES WHO MAP APPLY FOR PREQUALIFICATION The Winning Bidder/Strategic Partner will be expected to provide management expertise and/or an international marketing reservation system, and financial support to strengthen the profitability and performance of The Manila Hotel. In this context, the GSIS is inviting to the prequalification process any local and/or foreign corporation, consortium/joint venture or juridical entity with at least one of the following qualifications: a. Proven management .expertise in the hotel industry; or b. Significant equity ownership (i.e. board representation) in another hotel company; or c. Overall management and marketing expertise to successfully operate the Manila Hotel. Parties interested in bidding for MHC should be able to provide access to the requisite management expertise and/or international marketing/reservation system for The Manila Hotel. xxx xxx xxx D. PREQUALIFICATION DOCUMENTS xxx xxx xxx E. APPLICATION PROCEDURE 1. DOCUMENTS AVAILABLE AT THE REGISTRATION OFFICE The prequalification documents can be secured at the Registration Office between 9:00 AM to 4:00 PM during working days within the period specified in Section III. Each set of documents consists of the following: a. Guidelines and Procedures: Second Prequalification and Public Bidding of the MHC Privatization

b. Confidential Information Memorandum: The Manila Hotel Corporation c. Letter of Invitation. to the Prequalification and Bidding Conference xxx xxx xxx 4. PREQUALIFICATION AND BIDDING CONFERENCE A prequalification and bidding conference will be held at The Manila Hotel on the date specified in Section III to allow the Applicant to seek clarifications and further information regarding the guidelines and procedures. Only those who purchased the prequalification documents will be allowed in this conference. Attendance to this conference is strongly advised, although the Applicant will not be penalized if it does not attend. 5. SUBMISSION OF PREQUALIFICATION DOCUMENTS The applicant should submit 5 sets of the prequalification documents (1 original set plus 4 copies) at the Registration Office between 9:00 AM to 4:00 PM during working days within the period specified in Section III. F. PREQUALIFICATION PROCESS 1. The Applicant will be evaluated by the PBAC with the assistance of the TEC based on the Information Package and other information available to the PBAC. 2. If the Applicant is a Consortium/Joint Venture, the evaluation will consider the overall qualifications of the group, taking into account the contribution of each member to the venture. 3. The decision of the PBAC with respect to the results of the PBAC evaluation will be final. 4. The Applicant shall be evaluated according to the criteria set forth below: a. Business management expertise, track record, and experience b. Financial capability. c. Feasibility and acceptability of the proposed strategic plan for the Manila Hotel 5. The PBAC will shortlist such number of Applicants as it may deem appropriate. 6. The parties that prequalified in the first MHC public bidding — ITT Sheraton, Marriot International Inc., Renaissance Hotels International Inc., consortium of RCBC Capital/Ritz Carlton — may participate in the Public Bidding without having to undergo the prequalification process again.

G. SHORTLIST OF QUALIFIED BIDDERS 1. A notice of prequalification results containing the shortlist of Qualified Bidders will be posted at the Registration Office at the date specified in Section III. 2. In the case of a Consortium/Joint Venture, the withdrawal by member whose qualification was a material consideration for being included in the shortlist is ground for disqualification of the Applicant. V. GUIDELINES FOR THE PUBLIC BIDDING A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC BIDDING All parties in the shortlist of Qualified Bidders will be eligible to participate in the Public Bidding. B. BLOCK OF SHARES A range of Nine Million (9,000,000) to Fifteen Million Three Hundred Thousand (15,300,000) shares of stock representing Thirty Percent to Fifty-One Percent (30%-51%) of the issued and outstanding shares of MHC, will be offered in the Public Bidding by the GSIS. The Qualified Bidders will have the Option of determining the number of shares within the range to bid for. The range is intended to attract bidders with different preferences and objectives for the operation and management of The Manila Hotel. C. MINIMUM BID REQUIRED ON A PRICE PER SHARE BASIS 1. Bids will be evaluated on a price per share basis. The minimum bid required on a price per share basis for the Block of Shares is Thirty-Six Pesos and Sixty-Seven Centavos (P36.67). 2. Bids should be in the Philippine currency payable to the GSIS. 3. Bids submitted with an equivalent price per share below the minimum required will not considered. D. TRANSFER COSTS xxx

xxx

xxx

E. OFFICIAL BID FORM 1. Bids must be contained in the prescribed Official Bid Form, a copy of which is attached as Annex IV. The Official Bid Form must be properly accomplished in all details; improper accomplishment may be a sufficient basis for disqualification. 2. During the Public Bidding, the Qualified Bidder will submit the Official Bid Form, which will indicate the offered purchase price, in a sealed envelope marked "OFFICIAL BID." F. SUPPORTING DOCUMENTS During the Public Bidding, the following documents should be submitted along with the bid in a separate envelop marked "SUPPORTING DOCUMENTS":

1. WRITTEN AUTHORITY TO BID (UNDER OATH). If the Qualified Bidder is a corporation, the representative of the Qualified Bidder should submit a Board resolution which adequately authorizes such representative to bid for and in behalf of the corporation with full authority to perform such acts necessary or requisite to bind the Qualified Bidder. If the Qualified Bidder is a Consortium/Joint Venture, each member of the Consortium/Joint venture should submit a Board resolution authorizing one of its members and such member's representative to make the bid on behalf of the group with full authority to perform such acts necessary or requisite to bind the Qualified Bidder. 2. BID SECURITY a. The Qualified Bidder should deposit Thirty-Three Million Pesos (P33,000,00), in Philippine currency as Bid Security in the form of: i. Manager's check or unconditional demand draft payable to the "Government Service Insurance System" and issued by a reputable banking institution duly licensed to do business in the Philippines and acceptable to GSIS; or ii. Standby-by letter of credit issued by a reputable banking institution acceptable to the GSIS. b. The GSIS will reject a bid if: i. The bid does not have Bid Security; or ii. The Bid Security accompanying the bid is for less than the required amount. c. If the Bid Security is in the form of a manager's check or unconditional demand draft, the interest earned on the Bid Security will be for the account of GSIS. d. If the Qualified Bidder becomes the winning Bidder/Strategic Partner, the Bid Security will be applied as the downpayment on the Qualified Bidder's offered purchase price. e. The Bid Security of the Qualified Bidder will be returned immediately after the Public Bidding if the Qualified Bidder is not declared the Highest Bidder. f. The Bid Security will be returned by October 23, 1995 if the Highest Bidder is unable to negotiate and execute with GSIS/MHC the Management Contract, International Marketing/Reservation System Contract or other types of contract specified by the Highest Bidder in its strategic plan for The Manila Hotel. g. The Bid Security of the Highest Bidder will be forfeited in favor of GSIS if the Highest Bidder, after negotiating and executing the Management Contract, International Marketing/Reservation System Contract specified by the Highest Bidder or other types of contract in its strategic plan for The Manila Hotel, fails or refuses to:

i. Execute the Stock Purchase and Sale Agreement with GSIS not later than October 23, 1995; or ii. Pay the full amount of the offered purchase price not later than October 23, 1995; or iii. Consummate the sale of the Block of Shares for any other reason. G. SUBMISSION OF BIDS 1. The Public Bidding will be held on September 7, 1995 at the following location: New GSIS Headquarters Financial Center, Reclamation Roxas Boulevard, Pasay City, Metro Manila.

Building Area

2. The Secretariat of the PBAC will be stationed at the Public Bidding to accept any and all bids and supporting requirements. Representatives from the Commission on Audit and COP will be invited to witness the proceedings. 3. The Qualified Bidder should submit its bid using the Official Bid Form. The accomplished Official Bid Form should be submitted in a sealed envelope marked "OFFICIAL BID." 4. The Qualified Bidder should submit the following documents in another sealed envelope marked "SUPPORTING BID DOCUMENTS" a. Written Authority Bid b. Bid Security 5. The two sealed envelopes marked "OFFICIAL BID" and "SUPPORTING BID DOCUMENTS" must be submitted simultaneously to the Secretariat between 9:00 AM and 2:00 PM, Philippine Standard Time, on the date of the Public Bidding. No bid shall be accepted after the closing time. Opened or tampered bids shall not be accepted. 6. The Secretariat will log and record the actual time of submission of the two sealed envelopes. The actual time of submission will also be indicated by the Secretariat on the face of the two envelopes. 7. After Step No. 6, the two sealed envelopes will be dropped in the corresponding bid boxes provided for the purpose. These boxes will be in full view of the invited public. H. OPENING AND READING OF BIDS 1. After the closing time of 2:00 PM on the date of the Public Bidding, the PBAC will open all sealed envelopes marked "SUPPORTING BID DOCUMENTS" for screening, evaluation and acceptance. Those who submitted incomplete/insufficient documents or document/s which is/are not substantially in the form required by PBAC will be disqualified. The envelope containing their Official Bid Form will be immediately returned to the disqualified bidders.

2. The sealed envelopes marked "OFFICIAL BID" will be opened at 3:00 PM. The name of the bidder and the amount of its bid price will be read publicly as the envelopes are opened. 3. Immediately following the reading of the bids, the PBAC will formally announce the highest bid and the Highest Bidder. 4. The highest bid will be, determined on a price per share basis. In the event of a tie wherein two or more bids have the same equivalent price per share, priority will be given to the bidder seeking the larger ownership interest in MHC. 5. The Public Bidding will be declared a failed bidding in case: a. No single bid is submitted within the prescribed period; or b. There is only one (1) bid that is submitted and acceptable to the PBAC. I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC 1. The Highest Bidder must comply with the conditions set forth below by October 23, 1995 or the Highest Bidder will lose the right to purchase the Block of Shares and GSIS will instead offer the Block of Shares to the other Qualified Bidders: a. The Highest Bidder must negotiate and execute with GSIS/MHC the Management Contract, International Marketing Reservation System Contract or other type of contract specified by the Highest Bidder in its strategic plan for The Manila Hotel. If the Highest Bidder is intending to provide only financial support to The Manila Hotel, a separate institution may enter into the aforementioned contract/s with GSIS/MHC. b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS, a copy of which will be distributed to each of the Qualified Bidder after the prequalification process is completed. 2. In the event that the Highest Bidder chooses a Management Contract for The Manila Hotel, the maximum levels for the management fee structure that GSIS/MHC are prepared to accept in the Management Contract are as follows: a. Basic management fee: Maximum of 2.5% of gross revenues.(1) b. Incentive fee: Maximum of 8.0% of gross operating profit(1) after deducting undistributed overhead expenses and the basic management fee. c. Fixed component of the international marketing/reservation system fee: Maximum of 2.0% of gross room revenues.(1) The Applicant

should indicate in its Information Package if it is wishes to charge this fee. Note (1): As defined in the uniform system of account for hotels. The GSIS/MHC have indicated above the acceptable parameters for the hotel management fees to facilitate the negotiations with the Highest Bidder for the Management Contract after the Public Bidding. A Qualified Bidder envisioning a Management Contract for The Manila Hotel should determine whether or not the management fee structure above is acceptable before submitting their prequalification documents to GSIS. J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS 1. If for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified Bidders that have validly submitted bids provided that these Qualified are willing to match the highest bid in terms of price per share. 2. The order of priority among the interested Qualified Bidders will be in accordance wit the equivalent price per share of their respective bids in their public Bidding, i.e., first and second priority will be given to the Qualified Bidders that submitted the second and third highest bids on the price per share basis, respectively, and so on. K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the following conditions are met: a. Execution of the necessary contract with GSIS/MHC not later than October 23, 1995; and b. Requisite approvals from the GSIS/MHC and COP/OGCC are obtained. I. FULL PAYMENT FOR THE BLOCK OF SHARES 1. Upon execution of the necessary contracts with GSIS/MHC, the Winning Bidder/Strategic Partner must fully pay, not later than October 23, 1995, the offered purchase price for the Block of Shares after deducting the Bid Security applied as downpayment. 2. All payments should be made in the form of a Manager's Check or unconditional Demand Draft, payable to the "Government Service Insurance System," issued by a reputable banking institution licensed to do business in the Philippines and acceptable to GSIS. M. GENERAL CONDITIONS 1. The GSIS unconditionally reserves the right to reject any or all applications, waive any formality therein, or accept such application as maybe considered most advantageous to the GSIS. The GSIS similarly reserves the right to require the submission of

any additional information from the Applicant as the PBAC may deem necessary. 2. The GSIS further reserves the right to call off the Public Bidding prior to acceptance of the bids and call for a new public bidding under amended rules, and without any liability whatsoever to any or all the Qualified Bidders, except the obligation to return the Bid Security. 3. The GSIS reserves the right to reset the date of prequalification/bidding conference, the deadline for submission of the prequalification documents, the date of Public Bidding or other pertinent activities at least three calendar days prior to the respective deadlines/target dates.

the the the (3)

4. The GSIS sells only whatever rights, interest and participation it has on the Block of Shares. 5. All documents and materials submitted by the Qualified Bidders, except the Bid Security, may be returned upon request. 6. The decision of the PBAC/GSIS on the results of the Public Bidding is final. The Qualified Bidders, by participating in the Public Bidding, are deemed to have agreed to accept and abide by these results. 7. The GSIS will be held free and harmless form any liability, suit or allegation arising out of the Public Bidding by the Qualified Bidders who have participated in the Public Bidding.3 The second public bidding was held on September 18, 1995. Petitioner bidded P41.00 per share for 15,300,000 shares and Renong Berhad bidded P44.00 per share also for 15,300,000 shares. The GSIS declared Renong Berhad the highest bidder and immediately returned petitioner's bid security. On September 28, 1995, ten days after the bidding, petitioner wrote to GSIS offering to match the bid price of Renong Berhad. It requested that the award be made to itself citing the second paragraph of Section 10, Article XII of the Constitution. It sent a manager's check for thirty-three million pesos (P33,000,000.00) as bid security. Respondent GSIS, then in the process of negotiating with Renong Berhad the terms and conditions of the contract and technical agreements in the operation of the hotel, refused to entertain petitioner's request. Hence, petitioner filed the present petition. We issued a temporary restraining order on October 18, 1995. Petitioner anchors its plea on the second paragraph of Article XII, Section 10 of the Constitution4 on the "National Economy and Patrimony" which provides: xxx xxx xxx In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. xxx xxx xxx The vital issues can be summed up as follows:

(1) Whether section 10, paragraph 2 of Article XII of the Constitution is a selfexecuting provision and does not need implementing legislation to carry it into effect; (2) Assuming section 10 paragraph 2 of Article XII is self-executing whether the controlling shares of the Manila Hotel Corporation form part of our patrimony as a nation; (3) Whether GSIS is included in the term "State," hence, mandated to implement section 10, paragraph 2 of Article XII of the Constitution; (4) Assuming GSIS is part of the State, whether it failed to give preference to petitioner, a qualified Filipino corporation, over and above Renong Berhad, a foreign corporation, in the sale of the controlling shares of the Manila Hotel Corporation; (5) Whether petitioner is estopped from questioning the sale of the shares to Renong Berhad, a foreign corporation. Anent the first issue, it is now familiar learning that a Constitution provides the guiding policies and principles upon which is built the substantial foundation and general framework of the law and government.5 As a rule, its provisions are deemed self-executing and can be enforced without further legislative action.6 Some of its provisions, however, can be implemented only through appropriate laws enacted by the Legislature, hence not self-executing. To determine whether a particular provision of a Constitution is self-executing is a hard row to hoe. The key lies on the intent of the framers of the fundamental law oftentimes submerged in its language. A searching inquiry should be made to find out if the provision is intended as a present enactment, complete in itself as a definitive law, or if it needs future legislation for completion and enforcement.7 The inquiry demands a micro-analysis of the text and the context of the provision in question.8 Courts as a rule consider the provisions of the Constitution as self-executing,9 rather than as requiring future legislation for their enforcement. 10 The reason is not difficult to discern. For if they are not treated as self-executing, the mandate of the fundamental law ratified by the sovereign people can be easily ignored and nullified by Congress. 11 Suffused with wisdom of the ages is the unyielding rule that legislative actions may give breath to constitutional rights but congressional in action should not suffocate them. 12 Thus, we have treated as self-executing the provisions in the Bill of Rights on arrests, searches and seizures, 13 the rights of a person under custodial investigation, 14 the rights of an accused, 15 and the privilege against self-incrimination, 16 It is recognize a that legislation is unnecessary to enable courts to effectuate constitutional provisions guaranteeing the fundamental rights of life, liberty and the protection of property. 17 The same treatment is accorded to constitutional provisions forbidding the taking or damaging of property for public use without just compensation.18 Contrariwise, case law lays down the rule that a constitutional provision is not self-executing where it merely announces a policy and its language empowers the Legislature to prescribe the means by which the policy shall be carried into effect. 19 Accordingly, we have held that the provisions in Article II of our Constitution entitled "Declaration of Principles and State Policies" should generally be construed as mere statements of principles of the State. 20 We have also ruled that some provisions of Article XIII on "Social Justice and Human Rights," 21 and Article XIV on "Education Science and Technology, Arts, Culture end Sports" 22 cannot be the basis of judicially enforceable rights. Their enforcement is addressed to the discretion of Congress though they provide the framework for legislation 23 to effectuate their policy content. 24 Guided by this map of settled jurisprudence, we now consider whether Section 10, Article XII of the 1987 Constitution is self-executing or not. It reads:

Sec. 10. The Congress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve to citizens of the Philippines or to corporations or associations at least sixty per centum of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of investments. The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos. In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities. The first paragraph directs Congress to reserve certain areas of investments in the country 25 to Filipino citizens or to corporations sixty per cent 26 of whose capital stock is owned by Filipinos. It further commands Congress to enact laws that will encourage the formation and operation of one hundred percent Filipino-owned enterprises. In checkered contrast, the second paragraph orders the entire State to give preference to qualified Filipinos in the grant of rights and privileges covering the national economy and patrimony. The third paragraph also directs the State to regulate foreign investments in line with our national goals and well-set priorities. The first paragraph of Section 10 is not self-executing. By its express text, there is a categorical command for Congress to enact laws restricting foreign ownership in certain areas of investments in the country and to encourage the formation and operation of wholly-owned Filipino enterprises. The right granted by the provision is clearly still in esse. Congress has to breathe life to the right by means of legislation. Parenthetically, this paragraph was plucked from section 3, Article XIV of the 1973 Constitution. 27 The provision in the 1973 Constitution affirmed our ruling in the landmark case of Lao Ichong v. Hernandez, 28where we upheld the discretionary authority of Congress to Filipinize certain areas of investments. 29 By reenacting the 1973 provision, the first paragraph of section 10 affirmed the power of Congress to nationalize certain areas of investments in favor of Filipinos. The second and third paragraphs of Section 10 are different. They are directed to the State and not to Congress alone which is but one of the three great branches of our government. Their coverage is also broader for they cover "the national economy and patrimony" and "foreign investments within [the] national jurisdiction" and not merely "certain areas of investments." Beyond debate, they cannot be read as granting Congress the exclusive power to implement by law the policy of giving preference to qualified Filipinos in the conferral of rights and privileges covering our national economy and patrimony. Their language does not suggest that any of the State agency or instrumentality has the privilege to hedge or to refuse its implementation for any reason whatsoever. Their duty to implement is unconditional and it is now. The second and the third paragraphs of Section 10, Article XII are thus self-executing. This submission is strengthened by Article II of the Constitution entitled "Declaration of Principles and State Policies." Its Section 19 provides that "[T]he State shall develop a selfreliant and independent national economy effectively controlled by Filipinos." It engrafts the allimportant Filipino First policy in our fundamental law and by the use of the mandatory word "shall," directs its enforcement by the whole State without any pause or a half- pause in time. The second issue is whether the sale of a majority of the stocks of the Manila Hotel Corporation involves the disposition of part of our national patrimony. The records of the Constitutional Commission show that the Commissioners entertained the same view as to its meaning. According to Commissioner Nolledo, "patrimony" refers not only to our rich natural resources but also to the cultural heritage of our race. 30 By this yardstick, the sale of Manila Hotel falls within the coverage of the constitutional provision giving preferential treatment to qualified Filipinos in the grant of rights involving our national patrimony. The unique value of the Manila Hotel to our history and culture cannot be viewed with a myopic eye. The value of the hotel goes beyond pesos and centavos. As chronicled by Beth Day Romulo, 31 the hotel first opened on

July 4, 1912 as a first-class hotel built by the American Insular Government for Americans living in, or passing through, Manila while traveling to the Orient. Indigenous materials and Filipino craftsmanship were utilized in its construction, For sometime, it was exclusively used by American and Caucasian travelers and served as the "official guesthouse" of the American Insular Government for visiting foreign dignitaries. Filipinos began coming to the Hotel as guests during the Commonwealth period. When the Japanese occupied Manila, it served as military headquarters and lodging for the highest-ranking officers from Tokyo. It was at the Hotel and the Intramuros that the Japanese made their last stand during the Liberation of Manila. After the war, the Hotel again served foreign guests and Filipinos alike. Presidents and kings, premiers and potentates, as well as glamorous international film and sports celebrities were housed in the Hotel. It was also the situs of international conventions and conferences. In the local scene, it was the venue of historic meetings, parties and conventions of political parties. The Hotel has reaped and continues reaping numerous recognitions and awards from international hotel and travel award-giving bodies, a fitting acknowledgment of Filipino talent and ingenuity. These are judicially cognizable facts which cannot be bent by a biased mind. The Hotel may not, as yet, have been declared a national cultural treasure pursuant to Republic Act No. 4846 but that does not exclude it from our national patrimony. Republic Act No. 4846, "The Cultural Properties Preservation and Protection Act," merely provides a procedure whereby a particular cultural property may be classified a "national cultural treasure" or an "important cultural property. 32 Approved on June 18, 1966 and amended by P.D. 374 in 1974, the law is limited in its reach and cannot be read as the exclusive law implementing section 10, Article XII of the 1987 Constitution. To be sure, the law does not equate cultural treasure and cultural property as synonymous to the phrase "patrimony of the nation." The third issue is whether the constitutional command to the State includes the respondent GSIS. A look at its charter will reveal that GSIS is a government-owned and controlled corporation that administers funds that come from the monthly contributions of government employees and the government. 33 The funds are held in trust for a distinct purpose which cannot be disposed of indifferently. 34 They are to be used to finance the retirement, disability and life insurance benefits of the employees and the administrative and operational expenses of the GSIS, 35Excess funds, however, are allowed to be invested in business and other ventures for the benefit of the employees.36 It is thus contended that the GSIS investment in the Manila Hotel Corporation is a simple business venture, hence, an act beyond the contemplation of section 10, paragraph 2 of Article XII of the Constitution. The submission is unimpressive. The GSIS is not a pure private corporation. It is essentially a public corporation created by Congress and granted an original charter to serve a public purpose. It is subject to the jurisdictions of the Civil Service Commission 37 and the Commission on Audit. 38 As state-owned and controlled corporation, it is skin-bound to adhere to the policies spelled out in the general welfare of the people. One of these policies is the Filipino First policy which the people elevated as a constitutional command. The fourth issue demands that we look at the content of phrase "qualified Filipinos" and their "preferential right." The Constitution desisted from defining their contents. This is as it ought to be for a Constitution only lays down flexible policies and principles which can bent to meet today's manifest needs and tomorrow's unmanifested demands. Only a constitution strung with elasticity can grow as a living constitution. Thus, during the deliberations in the Constitutional Commission, Commissioner Nolledo to define the phrase brushed aside a suggestion to define the phrase "qualified Filipinos." He explained that present and prospective "laws" will take care of the problem of its interpretation, viz: xxx

xxx

xxx THE PRESIDENT. What is the suggestion of Commissioner Rodrigo? Is it to remove the word "QUALIFIED?"

MR. RODRIGO. No, no, but say definitely "TO QUALIFIED FILIPINOS" as against whom? As against aliens over aliens? MR. NOLLEDO. Madam President, I think that is understood. We use the word "QUALIFIED" because the existing laws or the prospective laws will always lay down conditions under which business map be done, for example, qualifications on capital, qualifications on the setting up of other financial structures, et cetera. MR. RODRIGO. It is just a matter of style. MR. NOLLEDO Yes. MR. RODRIGO. If we say, "PREFERENCE TO QUALIFIED FILIPINOS," it can be understood as giving preference to qualified Filipinos as against Filipinos who are not qualified. MR. NOLLEDO. Madam President, that was the intention of the proponents. The committee has accepted the amendment. xxx

xxx

xxx

As previously discussed, the constitutional command to enforce the Filipino First policy is addressed to the State and not to Congress alone. Hence, the word "laws" should not be understood as limited to legislations but all state actions which include applicable rules and regulations adopted by agencies and instrumentalities of the State in the exercise of their rule-making power. In the case at bar, the bidding rules and regulations set forth the standards to measure the qualifications of bidders Filipinos and foreigners alike. It is not seriously disputed that petitioner qualified to bid as did Renong Berhad. 39 Thus, we come to the critical issue of the degree of preference which GSIS should have accorded petitioner, a qualified Filipino, over Renong Berhad, a foreigner, in the purchase of the controlling shares of the Manila Hotel. Petitioner claims that after losing the bid, this right of preference gives it a second chance to match the highest bid of Renong Berhad. With due respect, I cannot sustain petitioner's submission. I prescind from the premise that the second paragraph of section 10, Article XII of the Constitution is pro-Pilipino but not anti-alien. It is pro-Filipino for it gives preference to Filipinos. It is not, however, anti-alien per se for it does not absolutely bar aliens in the grant of rights, privileges and concessions covering the national economy and patrimony. Indeed, in the absence of qualified Filipinos, the State is not prohibited from granting these rights, privileges and concessions to foreigners if the act will promote the weal of the nation. In implementing the policy articulated in section 10, Article XII of the Constitution, the stellar task of our State policy-makers is to maintain a creative tension between two desiderata — first, the need to develop our economy and patrimony with the help of foreigners if necessary, and, second, the need to keep our economy controlled by Filipinos. Rightfully, the framers of the Constitution did not define the degree of the right of preference to be given to qualified Filipinos. They knew that for the right to serve the general welfare, it must have a malleable content that can be adjusted by our policy-makers to meet the changing needs of our people. In fine, the right of preference of qualified Filipinos is to be determined by degree as time dictates and circumstances warrant. The lesser the need for alien assistance, the greater the degree of the right of preference can be given to Filipinos and vice verse. Again, it should be stressed that the right and the duty to determine the degree of this privilege at any given time is addressed to the entire State. While under our constitutional scheme, the

right primarily belongs to Congress as the lawmaking department of our government, other branches of government, and all their agencies and instrumentalities, share the power to enforce this state policy. Within the limits of their authority, they can act or promulgate rules and regulations defining the degree of this right of preference in cases where they have to make grants involving the national economy and judicial duty. On the other hand, our duty is to strike down acts of the state that violate the policy. To date, Congress has not enacted a law defining the degree of the preferential right. Consequently, we must turn to the rules and regulations of on respondents Committee Privatization and GSIS to determine the degree of preference that petitioner is entitled to as a qualified Filipino in the subject sale. A tearless look at the rules and regulations will show that they are silent on the degree of preferential right to be accorded qualified Filipino bidder. Despite their silence, however, they cannot be read to mean that they do not grant any degree of preference to petitioner for paragraph 2, section 10, Article XII of the Constitution is deemed part of said rules and regulations. Pursuant to legal hermeneutics which demand that we interpret rules to save them from unconstitutionality, I submit that the right of preference of petitioner arises only if it tied the bid of Benong Berhad. In that instance, all things stand equal, and bidder, as a qualified Pilipino bidder, should be preferred. It is with deep regret that I cannot subscribe to the view that petitioner has a right to match the bid of Renong Berhad. Petitioner's submission must be supported by the rules but even if we examine the rules inside-out .thousand times, they can not justify the claimed right. Under the rules, the right to match the highest bid arises only "if for any reason, the highest bidder cannot be awarded block of shares . . ." No reason has arisen that will prevent the award to Renong Berhad. It qualified as bidder. It complied with the procedure of bidding. It tendered the highest bid. It was declared as the highest bidder by the GSIS and the rules say this decision is final. It deserves the award as a matter of right for the rules clearly did not give to the petitioner as a qualified Filipino privilege to match the higher bid of a foreigner. What the rules did not grant, petitioner cannot demand. Our symphaties may be with petitioner but the court has no power to extend the latitude and longtitude of the right of preference as defined by the rules. The parameters of the right of preference depend on galaxy of facts and factors whose determination belongs to the province of the policy-making branches and agencies of the State. We are duty-bound to respect that determination even if we differ with the wisdom of their judgment. The right they grant may be little but we must uphold the grant for as long as the right of preference is not denied. It is only when a State action amounts to a denial of the right that the Court can come in and strike down the denial as unconstitutional. Finally, I submit that petitioner is estopped from assailing the winning bid of Renong Berhad. Petitioner was aware of the rules and regulations of the bidding. It knew that the rules and regulations do not provide that a qualified Filipino bidder can match the winning bid submitting an inferior bid. It knew that the bid was open to foreigners and that foreigners qualified even during the first bidding. Petitioner cannot be allowed to repudiate the rules which it agreed to respect. It cannot be allowed to obey the rules when it wins and disregard them when it loses. If sustained, petitioners' stance will wreak havoc on he essence of bidding. Our laws, rules and regulations require highest bidding to raise as much funds as possible for the government to maximize its capacity to deliver essential services to our people. This is a duty that must be discharged by Filipinos and foreigners participating in a bidding contest and the rules are carefully written to attain this objective. Among others, bidders are prequalified to insure their financial capability. The bidding is secret and the bids are sealed to prevent collusion among the parties. This objective will be undermined if we grant petitioner that privilege to know the winning bid and a chance to match it. For plainly, a second chance to bid will encourage a bidder not to strive to give the highest bid in the first bidding. We support the Filipino First policy without any reservation. The visionary nationalist Don Claro M. Recto has warned us that the greatest tragedy that can befall a Filipino is to be an alien in his own land. The Constitution has embodied Recto's counsel as a state policy. But while the Filipino First policy requires that we incline to a Filipino, it does not demand that we wrong an alien. Our policy makers can write laws and rules giving favored treatment to the Filipino but we are not free to be unfair to a foreigner after writing the laws and the rules. After the laws are written, they must be obeyed as written, by Filipinos and foreigners alike. The equal protection clause of the Constitution protects all against unfairness. We can be pro-Filipino without unfairness to foreigner.

I vote to dismiss the petition. Narvasa, C.J., and Melo, J., concur.

PANGANIBAN, J., dissenting: I regret I cannot join the majority. To the incisive Dissenting Opinion of Mr. Justice Reynato S. Puno, may I just add 1. The majority contends the Constitution should be interpreted to mean that, after a bidding process is concluded, the losing Filipino bidder should be given the right to equal the highest foreign bid, and thus to win. However, the Constitution [Sec. 10 (2), Art. XII] simply states that "in the grant of rights . . . covering the national economy and patrimony, the State shall give preference to qualified Filipinos." The majority concedes that there is no law defining the extent or degree of such preference. Specifically, no statute empowers a losing Filipino bidder to increase his bid and equal that of the winning foreigner. In the absence of such empowering law, the majority's strained interpretation, I respectfully submit constitutes unadulterated judicial legislation, which makes bidding a ridiculous sham where no Filipino can lose and where no foreigner can win. Only in the Philippines!. 2. Aside from being prohibited by the Constitution, such judicial is short-sighted and, viewed properly, gravely prejudicial to long-term Filipino interest. It encourages other countries — in the guise of reverse comity or worse, unabashed retaliation — to discriminate against us in their own jurisdictions by authorizing their own nationals to similarly equal and defeat the higher bids of Filipino enterprises solely, while on the other hand, allowing similar bids of other foreigners to remain unchallenged by their nationals. The majority's thesis will thus marginalize Filipinos as pariahs in the global marketplace with absolute no chance of winning any bidding outside our country. Even authoritarian regimes and hermit kingdoms have long ago found out unfairness, greed and isolation are self-defeating and in the long-term, self-destructing. The moral lesson here is simple: Do not do unto other what you dont want other to do unto you. 3. In the absence of a law specifying the degree or extent of the "Filipino First" policy of the Constitution, the constitutional preference for the "qualified Filipinos" may be allowed only where all the bids are equal. In this manner, we put the Filipino ahead without self-destructing him and without being unfair to the foreigner. In short, the Constitution mandates a victory for the qualified Filipino only when the scores are tied. But not when the ballgame is over and the foreigner clearly posted the highest score.