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1ST SET – 9 CASES

CONSTI 1 [G.R. No. 18463. October 4, 1922.] THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. GREGORIO PERFECTO, defendant-appellant. SYLLABUS 1.

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DEFAMATION, ABUSE, OR INSULT OF A MINISTER OF THE CROWN OR OTHER PERSON IN AUTHORITY; ARTICLE 256 OF THE PENAL CODE, WHETHER IN FORCE; EFFECT OF THE LIBEL LAW ON ARTICLE 256. — Article 256 of the Penal Code punishes "Any person who, by . . . writing, shall defame, abuse, or insult any Minister of the Crown or other person in authority." The Philippine Libel Law, Act no. 227, has had the effect of repealing so much of article 256 of the Penal Code as relates to written defamation, abuse, or insult. ID.; ID.; ID.; LIBEL OF LEGISLATURE. — While it may be proper to prosecute criminally the author of a libel charging a legislature, are within the range of the liberty of the press, unless the intention and effect be seditious. ID.; ID.; ID.; STATUTORY CONSTRUCTION. — Where the later statute clearly covers the old subject-matter of antecedent acts, and it plainly appears to have been the purpose of the Legislature to give expression in it to the whole law on the subject, previous laws are held to be repealed by necessary implication. ID.; ID.; EFFECT OF CHANGE FROM SPANISH TO AMERICAN SOVEREIGNTY OVER THE PHILIPPINES ON ARTICLE 256 OF THE PENAL CODE. (OPINION OF JUSTICE MALCOLM, OSTRAND, AND JOHNS.) — Article 256 of the Spanish Penal Code is not now in force because abrogated by the change from Spanish to American sovereignty over the Philippines and because inconsistent with democratic principles of government. ID.; ID.; ID. — All those provisions of the Spanish Penal Code having to do with such subjects as treason, lese majeste, religion and worship, rebellion, sedition, and contempts of minister of the crown, are no longer in force. Article 255 of the Penal Code is of a similar nature. ID.; ID.; ID. — It is a general principle of the public law that on acquisition of territory the previous political relations of the ceded region are totally abrogated. "It cannot be admitted that King of Spain could, by treaty or otherwise, impart to the United States any of his royal prerogatives; and much less can it be admitted that they have capacity to receive or power to exercise them. Every nation acquiring territory, by treaty or otherwise, must hold it subject to the constitution and laws of its own government, and not according to those of the government, and not according to those of the government ceding it." (Pollard vs. Hagan [1845], 3 How., 210.) ID.; ID.; ID.; NATURE OF PHILIPPINE GOVERNMENT. — The nature of the government which has been set up in the Philippines under American sovereignty was outlined by President McKinley in that Magna Charta of Philippine liberty, his instructions to the Commission, of April 7, 1900. The President and Congress framed the government on the model with which Americans are familiar and which has proven best adapted for the advancement of the public interests and the protection of individual rights and privileges. ID.; ID.; ID. — Article 256 of the Spanish Penal Code was enacted by the Government of Spain to protect Spanish officials who were the representatives of the King. With the change of sovereignty, a new government, and a new theory of government, was set up in the Philippines.

No longer is there a Minister of the Crown or a person in authority of such exalted position that the citizens must speak of him only with bated breath. "In the eye of our Constitutions and laws, every man is a sovereign, a ruler and a freeman, and has equal rights with every other man." (State vs. Shepherd [1903], 177 mo., 205; 99 A. S. R., 624.) 9. ID.; ID.; ID.; ID. — In the United States, the offense of scandalum magnatum is not known. In this country no distinction as to persons is recognized. 10. ID.; ID.; ID.; ID. — Article 256 of the Penal Code is contrary to the genius and fundamental principles of the American character and system of government. The gulf which separates this article from the spirit which inspires all penal legislation of American origin is as wide as that which separates a monarchy from a democratic republic like that of the United states. 11. ID.; ID.; ID.; ID. — The American system of government is calculated to enforce respect and obedience where such respect and obedience is due, but never does it place around the individual who happens to occupy an official position by mandate of the people any official halo, which calls for drastic punishment for contemptuous remarks. 12. ID.; ID.; ID.; ID. — The crime of lese majeste disappeared in the Philippines with the ratification of the Treaty of Paris. Ministers of the Crown have no place under the American flag. DECISION MALCOLM, J p: The important question is here squarely presented of whether article 256 of the Spanish Penal Code, punishing "Any person who by . . . writing, shall defame, abuse, or insult any Minister of the Crown or other person in authority . . ., " is still in force. About August 20, 1920, the Secretary of the Philippine Senate, Fernando M. Guerrero, discovered that certain documents which constituted the records of testimony given by witnesses in the investigation of oil companies, had disappeared from his office. Shortly thereafter, the Philippine Senate, having been called into special session by the Governor-General, the Secretary of the Senate informed that body of the lost of the documents and of the steps taken by him to discover the guilty party. The day following the covening of the Senate, September 7, 1920, the newspaper La Nacion, edited by Mer. Gregorio Perfecto, published an article reading as follows: "Half a month has elapsed since the discovery, for the first time, of the scandalous robbery of records which were kept and preserved in the iron safe of the Senate, yet up to this time there is not the slightest indication that the author or authors of the crime will ever be discovered. "To find them, it would not, perhaps, be necessary to go out of the Senate itself, and the persons in charge of the investigation of the case would not have to display great skill in order to succeed in their undertaking, unless they should encounter the insuperable obstacle of official concealment. "In that case, every investigation to be made would be but a mere comedy and nothing more. 1

CONSTI 1 "After all, the perpetration of the robbery, especially under the circumstances that have surrounded it, does not surprise us at all. "The execution of the crime was but the natural effect of the environment of the place in which it was committed. "How many of the present Senators can say without remorse in their conscience and with serenity of mind, that they do not owe their victory to electoral robbery? How many? "The author or authors of the robbery of the records from the said iron safe of the Senate have, perhaps, but followed the example of certain Senators who secured their election through fraud and robbery." The Philippine Senate, in its session of September 9, 1920, adopted a resolution authorizing its committee on elections and privileges to report as to the action which should be taken with reference to the article published in La Nacion. On September 15, 1920, the Senate adopted a resolution authorizing the President of the Senate to indorse to the Attorney-General, for his study and corresponding action, all the papers referring to the case of the newspaper La Nacion and its editor, Mr. Gregorio Perfecto. As a result, an information was filed in the municipal court of the city of Manila by an assistant city fiscal, in which the editorial in question was set out and in which it was alleged that the same constituted a violation of article 256 of the Penal Code. The defendant Gregorio Perfecto was found guilty in the municipal court and again in the Court of First Instance of Manila. During the course of the trial in the Court of First Instance, after the prosecution had rested, the defense moved for the dismissal of the case. On the subject of whether or not article 256 of the Penal Code, under which the information was presented, is in force, the trial judge, the Honorable George R. Harvey, said: "This antiquated provision was doubtless incorporated into the Penal Code of Spain for the protection of the Ministers of the Crown and other representatives of the King against free speech and action by Spanish subjects. A severe punishment was prescribed because it was doubtless considered a much more serious offense to insult the King's representative than to insult an ordinary individual. This provision, with almost all the other articles of that Code, was extended to the Philippine Islands when under the dominion of Spain because the King's subject in the Philippines might defame, abuse or insult the Ministers of the Crown or other representatives of His Majesty. We now have no Ministers of the Crown or other persons in authority in the Philippines representing the King of Spain, and said provision, with other articles of the Penal Code, had apparently passed into "innocuous desuetude,' but the Supreme Court of the Philippine Islands has, by a majority decision, held that said article 256 is the law of the land today . . . "The Helbig case is a precedent which, by the rule of stare decisis, is binding upon this court until otherwise determined by proper authority."

1ST SET – 9 CASES In the decision rendered by the same judge, he concluded with the following language: "In the United States such publications are usually not punishable as criminal offenses, and little importance is attached to them, because they are generally the result of political controversy and are usually regarded as more or less colored or exaggerated. Articles of this character upon a legislative body are not punishable under the Libel Law. Although such publications are reprehensible, yet this court feels some aversion to the application of the provision of law under which this case was filed. Our Penal Code has come to us from the Spanish regime. Article 256 of that Code prescribes punishment for persons who use insulting language about Ministers of the Crown or other 'authority.' The King of Spain doubtless felt need of such protection to his ministers and others in authority in the Philippines as well as in Spain. Hence, the article referred to was made applicable here. Notwithstanding the change of sovereignty, our Supreme Court, in a majority decision, has held that this provision is still in force, and that one who made an insulting remark about the President of the United States was punishable under it. (U. S. vs. Helbig, supra.) If it be applicable in that case, it would appear to be applicable in this case. Hence, said article 256 must be enforced without fear or favor, until it shall be repealed or superseded by other legislation, or until the Supreme Court shall otherwise determine. "In view of the foregoing considerations, the court finds the defendant guilty as charged in the information and under article 256 of the Penal Code sentences him to suffer two months and one day of arresto mayor and the accessory penalties prescribed by law, and to pay the costs of both instances." The fifteen errors assigned by the defendant and appellant, reenforced by an extensive brief, and eloquent oral argument made in his own behalf and by his learned counsel, all reduce themselves to the pertinent and decisive question which was announced in the beginning of this decision. It will be noted in the first place that the trial judge considered himself bound to follow the rule announced in the case of United States vs. Helbig (R. G. No. 14705, 1 not published). In that case, the accused was charged with having said, "To hell with the President and his proclamations, or words to that effect," in violation of article 256 of the Penal Code. He was found guilty in a judgment rendered by the Court of First Instance of Manila and again on appeal to the Supreme Court, with the writer of the instant decision dissenting on two principal grounds: (1) That the accused was deprived of the constitutional right of cross-examination, and (2) that article 256 of the Spanish Penal Code is no longer in force. Subsequently, on a motion of reconsideration, the court, being of the opinion that the Court of first Instance had committed a prejudicial error in depriving the accused of his right to cross-examine a principal witness, set aside the judgment affirming the judgment appealed from and ordered the return of the record to the court of origin for the celebration of a new trial. 2

CONSTI 1 Whether such a trial was actually had, is not known, but at least, the record in the Helbig case has never again been elevated to this court. There may perchance exist some doubt as to the authority of the decision in the Helbig case, in view of the circumstances above described. This much, however, is certain: The facts of the Helbig case and the case and that case before us, which we may term the Perfecto case, are different, for in the first case there was an oral defamation, while in the second there is a written defamation. Not only this, but a new point which, under the facts, could not have been considered in the Helbig case, is in the Perfecto case, urged upon the court. And, finally, as is apparent to all, the appellate court is not restrained, as was the trial court, by strict adherence to a former decision. We much prefer to resolve the question before us unhindered by references to the Helbig decision. This is one of those cases on which a variety of opinions all leading to the same result can be had. A majority of the court are of the opinion that the Philippine Libel Law, Act No. 227, has the effect of repealing so much of article 256 of the Penal Code as relates to written defamation, abuse, or insult, and that under the information and the facts, the defendant is neither guilty of a violation of article 256 of the Penal Code, nor of the Libel Law. The view of the Chief Justice is that the accused should be acquitted for those reason that the facts alleged in the information do not constitute a violation of article 256 of the Penal Code. Three members of the court believe that article 256 was abrogated completely by the change from Spanish to America sovereignty over the Philippines and is inconsistent with democratic principles of government. Without prejudice to the right of any member of the court to explain his position, we will discuss the two main points just mentioned. 1. Effect of the Philippine Libel Law, Act No. 277, on article 256 of the Spanish Penal Code. — The Libel Law, Act No. 277, was enacted by the Philippine Commission shortly after the organization of this legislative body. Section 1 defines libel as a "malicious defamation, expressed either in writing, printing, or by signs or pictures, or the like, or public theatrical exhibitions, tending to blacken the memory of one who is dead or to impeach the honesty, virtue, or reputation, or natural defects of one who is alive, and thereby expose him to public hatred, contempt or ridicule." Section 13 provides that "All laws and parts of laws now in force, so far as the same way be in conflict herewith, are hereby repealed. . . ." That parts of laws in force in 1901 when the Libel Law took effect, were in conflict therewith, and that the Libel Law abrogated certain portions of the Spanish Penal Code cannot be gainsaid. Title X of Book II of the Penal Code, covering the subjects of columny and insults, must have been particularly affected by the Libel Law. Indeed, in the early case of Pardo de Tavera vs. Garcia Valdez ([1902], 1. Phil., 468), the Supreme Court spoke of the Libel Law as "reforming the preexisting Spanish law on the subject of calumnia and injuria." Recently, specific attention was given to the effect of the Libel Law on the provisions of the Penal Code, dealing with calumny and insults, and it was found that those provisions of the Penal Code on the subject of calumny and insults in which the elements of writing and publicity entered, were abrogated by the Libel Law. (People vs. Castro [1922]. p. 842, ante.) The Libel Law must have had the same result on other provisions of the Penal Code, as for instance, article 256.

1ST SET – 9 CASES The facts here are that the editor of a newspaper published an article, naturally in writing, which may have had the tendency to impeach the honesty, virtue, or reputation of members of the Philippine Senate, thereby possibly exposing them to public hatred, contempt, or ridicule, which is exacty libel, as defined by the Libel Law. Sir J. F. Stephen is authority for the statement that a libel is indictable when defaming a "body of persons definite and small enough for individual members to be recognized as such, in or by mean of anything capable of being a libel." (Digest Of Criminal Law, art. 267.) But in the United States, while it may be proper to prosecute criminally the author of a libel charging a legislator with corruption, criticisms, no matter how severe, on a legislature, are within the range of the liberty of the press, unless the intention and effect be seditions. (3 Wharton's Criminal Law, p. 2131.) With these facts and legal principles in mind, recall that article 256 begins: "Any person who, by . . . writing, shall defame, abuse, or insult any Minister of the Crown or other person in authority," etc. The Libel Law is a complete and comprehensive law on the subject of libel. The well-known rule of statutory construction is, that where the later statute clearly covers the old subject-matter of antecedent acts, and it plainly appears to have been the purpose of the legislature to give expression in it to the whole law on the subject, previous laws are held to be repealed by necessary implication. (1 Lewis' Sutherland Statutory Construction, p.465.) For identical reasons, it is evident that Act No. 277 had the effect of repealing article 256 of the Penal Code, or at least so much of this article as punishes defamation, abuse, or insults by writing. Act No. 292 of the Philippine Commission, the Treason and Sedition Law, may also have affected article 256, but as to this point, it is not necessary to make a pronouncement. 2. Effect of the change from Spanish to American sovereignty over the Philippines on article 256 of the Spanish Penal Code. — Appellant's main proposition in the lower court and again energetically pressed in the appellate court was that article 256 of the Spanish Penal Code is not now in force because abrogated by the change from Spanish to American sovereignty over the Philippines and because inconsistent with democratic principles of government. This view was indirectly favored by the trial judge, and as before stated, is the opinion of three members of this court. Article 256 is found in Chapter V of Title I of Book II punishes the crimes of treason, crimes that endanger the peace or independence of the state, crimes against international law, and the crime of piracy. Title II of the same book punishes the crimes of lese majeste, crimes against the Cortes and its members and against the council of ministers, crimes against the form of government, and crimes committed on the occasion of the exercise of rights guaranteed by the fundamental laws of the state, including crimes against religion and worship. Title III of the same Book, in which article 256 is found, punishes the crimes of rebellion, sedition, assaults upon persons in authority, and their agents, and contempts, insults, injurias, and threats against persons in authority, and insults,injurias, and threats against their agents and other public officers, the last being the title to Chapter V. The first two articles in Chapter V define and punish the offense of contempt committed by any one who shall by word or deed defame, abuse, insult, or threaten a minister of the crown, or any person in authority. Then with an article condemning challenges to fight duels intervening, comes article 256, now being weighed in the balance. It reads as follows: "Any person who, by word, deed, or writing, shall defame, abuse, or insult any Minister of the Crown or other person in 3

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1ST SET – 9 CASES

authority, while engaged in the performance of official duties, or by reason of such performance, provided that the offensive conduct does not take place in the presence of such minister or person or the offensive writing be not addressed to him, shall suffer the penalty of arresto mayor," — that is, the defamation, abuse, or insult of any Minister of the Crown of the Monarchy of Spain (for there could not be a Minister of the Crown in the United States of America), or other person in authority in the Monarchy of Spain.

were repugnant to the "'great principles of liberty and law' which had been 'made the basis of our governmental system.'" But when the question has been squarely raised, the appellate court has been forced on occasion to hold certain portions of the Spanish codes repugnant to democratic institutions and American constitutional principles. (U. S vs. Sweet [1901], 1 Phil., 18; U. S. vs. Balcorta [1913], 25 Phil., 273; U. S. vs. Smith [1919], 39 Phil., 533; Weems vs. U. S., supra.)

It cannot admit of doubt that all those provisions of the Spanish Penal Code having to do with such subjects as treason, lesse majeste religion and worship, rebellion, sedition, and contempts of ministers of the crown, are no longer in force. Our present task therefore, is a determination of whether article 256 has met the same fate, or, more specifically stated, whether it is in the nature of a municipal law or a political law, and is consistent with the Constitution and laws of the United States and the characteristics and institutions of the American Government.

The nature of the government which has been set up in the Philippines under American sovereignty was outlined by President McKinley in that Magna Charta of Philippine liberty, his instructions to the Commission, of April 7, 1900. In part, the President said:

It is a general principle of the public law that on acquisition of territory the previous political relations of the ceded region are totally abrogated. "Political" is here used to denominate the laws regulating the relations sustained by the inhabitants to the sovereign. (American Insurance Co. vs. Canter [1828], 1 Pet., 511 Chicago, Rock Island and Pacific Railway Co. vs. McGlinn [1885], 144 U. S., 542; Roa vs. Collector of Customs [1912], 23 Phil., 315.) Mr. Justice Field of the United States Supreme Court stated the obvious when in the course of his opinion in the case of Chicago, Rock Island and Pacific Railway Co. vs. McGlinn, supra, he said: "As a matter of course, all laws, ordinances and regulations in conflict with the political character, institutions and Constitution of the new government are once displaced. Thus, upon a cession of political jurisdiction and legislative power — and the latter is involved in the former — to the United States, the laws of the country in support of an established religion or abridging the freedom of the press, or authorizing cruel and unusual punishments, and the like, would at once cease to be of obligatory force without any declaration to that effect." To quote again from the United States Supreme Court: "It cannot be admitted that the King of Spain could by treaty or otherwise, impart to the United States any of his royal prerogatives; and much less can it be admitted that they have capacity to receive or power to exercise them. Every nation acquiring territory by treaty or otherwise, must hold it subject to the Constitution and laws of its own government, and not according to those of the government, and not according to those of the government ceding it." (Pollard vs. Hagan [1845], 3 How., 210.) On American occupation of the Philippines, by instructions of the President to the Ministry Commander dated May 28, 1898, and by proclamation of the latter, the municipal laws of the conquered territory affecting private rights of person and property and providing for the punishment of crime were nominally continued in force in so far as they were compatible with the new order of things. But President Mckinley, in his instructions to General Meritt, was careful to say: "The first effect of the military occupation of the enemy's territory is the severance of the former political relation of the inhabitants and the establishment of a new political power." From that day to this, the Spanish codes, as codes, have been constantly applied, and ordinarily it has been taken for granted that the provisions under consideration were still effective. To paraphrase the language of the United States Supreme Court in Weems vs. United States ([1910], 217 U. S., 349), there was not and could not be, except as precise questions were presented, a careful consideration of the codal provisions and a determination of the extent to which they accorded with or

"In all the forms of government and administrative provisions which they are authorized to prescribed, the Commissions which they are authorized to prescribe, the Commissions should bear in mind that the government which they are establishing is designed not for our satisfaction or for the expression of our theoretical views, but for the happiness, peace, and prosperity of the people of the Philippine Islands, and the measures adopted should be made to conform to their customs, their habits, and even their prejudices, to the fullest extent consistent with the accomplishment of the indispensable requisites of just and effective government. At the same time Commission should bear in mind, and the people of the Islands should be made plainly to understand, that there are certain great principles of government which have been made the basis of our governmental system which we deem essential to the rule of law and the maintenance of individual freedom, and of which they have, unfortunately, been denied the experience possessed by us; that there are also certain practical rules of government which we have found to be essential to the preservation of these great principles of liberty and law, and that these principles and these rules of government must be established and maintained in their islands for the sake of their liberty and happiness, however much they may conflict with the customs or laws of procedure with which they are familiar. It is evident that the most enlightened thought of the Philippine Islands fully appreciates the importance of these principles and rules, and they will inevitably within a short time command universal assent." The courts have naturally taken the same view. Mr. Justice Elliot, speaking for our Supreme Court, in the case of United States vs. Bull ([1910], 15 Phil., 7), said: "The President and Congress framed the government on the model with which Americans are familiar, and which has proven best adapted for the advancement of the public interest and the protection of individual rights and privileges." Therefore, it has come with somewhat of a shock to hear the statement made that the happiness, peace, and prosperity of the people of the Philippine Islands and their customs , habits, and prejudices, to follow the language of President McKinley, demand obeisance to authority, and royal protection for that authority. According to our view, article 256 of the Spanish Penal Code was enacted by the Government of Spain to protect Spanish officials who were the 4

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CONSTI 1 representatives of the king. With the chance of sovereignty, a new government, and a new theory of government, was set up in the Philippines. It was in no sense a continuation of the old, though merely for convenience certain of the existing institutions and laws were continued. The demands which the new government made, and makes, on the individual citizen are likewise different. No longer is there a Minister of the Crown or a person in authority of such exalted position that the citizen must speak of him only with bated breath. "In the eye of our Constitution and laws, every man is a sovereign, a ruler and a freedom, and has equal rights with every other man. We have no rank or station, except that of respectability and intelligence as opposed to indecency and ignorance, and the door to this rank stands open to every man to freely enter and abide therein, if he is qualified, and whether he is qualified or not depends upon the life and character and attainments and conduct of each person for himself. Every man may lawfully do what he will, so long as it is not malum in se or malum prohibitum or does not infringe upon the equally sacred rights of others." (State vs. shepherd [1903], 177 mo., 99 A. S R., 624.) It is true that in England, from which so many of the laws and institutions of the United States are derived, there were once statues of scandalum, under which words which would not be actionable if spoken of an ordinary subject were made actionable if spoken of a peer of the realm or of any of the great officers of the Crown, without proof of any special damage. The Crow of England, unfortunately, took a view less tolerant than that of other sovereigns, as for instance, the Emperors Augustus, Ceasar, and Tiberius. These English statues have, however, long since, become obsolete, while in the United States, the offense ofscandalum magnatum is not known. In the early days of the American Republic, a sedition law was enacted, making it an offense to libel the Government, the Congress, or the President of the United States, but the law met with so much popular disapproval, that it was soon repealed. "In this country no distinction as to person is recognized, and in practice a person holding a high office is regarded as a target at whom any person may left fly his poisonous words. High official position, instead of affording immunity from slanderous and libelous charges, seems rather to be regarded as making his character free plunder for any one who desires to create a sensation by attacking it." (Newell, Slander and Libel, 3d ed., p.245; Sillars vs. Collier [1890], 151 Mass., 50; 6L. R. A., 680.) Article 256 of the Penal code is contrary to the genius and fundamental principles of the American character and systems of government. The gulf which separates this article from the spirit which inspires all penal legislation of American origin, is as wide as that which separates a monarchy from a democratic republic like that of the United States. This article was crowded out by implication as soon as the United States established its authority in the Philippine Islands. Penalties out of all proportion to the gravity of the offense, grounded in a distorted monarchical conception of the nature of political authority, as opposed to the American conception of the protection of the interest of the public, have been obliterated by the present system of government in the Islands. From an entirely different point of view, it must be noted that this article punishes contempts against executive officials, although its terms are broad enough to cover the entire official class. Punishment for contempt of non judicial officers has no place in a government based upon American principles. Our official class is not, as in monarchies, an agent of some authority greater than the people but it is an agent and servant of the people themselves. These officials are only entitled to respect and obedience when they are acting within

the scope of their authority and jurisdiction. The American systems of government is calculated to enforce respect and obedience where such respect and obedience is due, but never does it place around the individual who happens to occupy an official position by mandate of the people any official halo, which calls for drastic punishment for contemptuous remarks. The crime of lese majeste disappeared in the Philippines with ratification of the Treaty of Paris . Ministers of the Crown have no place under the American flag. To summarize, the result is, that all the members of the court are of the opinion, although for different reasons, that the judgment should be reversed and the defendant and appellant acquitted, with costs de officio. So ordered. ||| (People v. Perfecto, G.R. No. 18463, [October 4, 1922], 43 PHIL 887-903)

[Adm. Case No. 133-J. May 31, 1982.] BERNARDITA R. MACARIOLA, complainant, vs. HONORABLE ELIAS ASUNCION, Judge of the Court of First Instance of Leyte, respondent.

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SYNOPSIS Respondent judge was charged for having violated (1) Article 1491 of the New Civil Code when he acquired by purchase portion of a lot which was involved in a civil case decided by him; (2) Article 14 of the Code of Commerce, the Anti-Graft and Corrupt Practices Act, the Civil Service Rules, and the Canons of Judicial Ethics, when he associated himself with the Traders Manufacturing and Fishing Industries, Inc., as a stockholder and a ranking officer while he was a judge of the Court of First Instance. The Supreme Court held that there was no violation of Paragraph 5, Article 1491 of the New Civil Code because the sale took place after finality of the decision; that respondent may not be held liable under paragraphs 1 and 5, Article 14 of the Code of Commerce (which is of Spanish vintage), because the provision partakes of the nature of a political law as it regulates the relationship between the government and certain public officers and employees and as such is deemed to have been automatically abrogated with the change of sovereignty from Spain to the United States; that respondent cannot be held liable under Paragraph H, Section 3 of the Anti-Graft and Corrupt Practices Act because there is no showing (a) that he participated or intervened in his official capacity in the business or transaction of the Traders Manufacturing and Fishing Industries, Inc., or (b) that said corporation gained any undue advantage by reason of respondent's financial involvement in it, and because neither the 1935 nor the 1973 Constitution of the Philippines or any existing law expressly prohibits members of the Judiciary from engaging or having any interest in any lawful business. 5

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CONSTI 1 Respondent is reminded to be more discreet in his private and business activities. SYLLABUS 1.

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CIVIL LAW; CONTRACTS; SALES; PROHIBITION TO BUY IN ARTICLE 1491 REFERS TO PROPERTIES UNDER LITIGATION; NO VIOLATION IN CASE AT BAR. — The prohibition in Article 1491 of the Civil Code applies only to the sale or assignment of the property which is the subject of litigation to the persons disqualified therein. WE have already ruled that " . . . for the prohibition to operate, the sale or assignment of the property must take place during the pendency of the litigation involving the property" (The Director of Lands vs. Ababa, et al., 88 SCRA 513). Consequently, the sale of a portion of Lot 1184E to respondent Judge having taken place over one year after the finality of the decision in Civil Case No. 3010 as well as the two orders approving the project of partition, and not during the pendency of the litigation, there was no violation of paragraph 5, Article 1491 of the New Civil Code. JUDICIAL ETHICS; CANONS OF JUDICIAL ETHICS; JUDGE'S CONDUCT SHOULD BE FREE FROM APPEARANCE OF IMPROPRIETY; JUDGE'S TRANSACTIONS REGARDING PROPERTIES LITIGATED IN HIS COURT, NOT PROPER. — Finally, while it is true that respondent Judge did not violate paragraph 5, Article 1491 of the New Civil Code in acquiring by purchase a portion of Lot 1184-E which was in litigation in his court, it was, however, improper for him to have acquired the same. He should be reminded of Canon 3 of the Canons of Judicial Ethics which requires that: "A judge's official conduct should be free from the appearance of impropriety, and his personal behavior, not only upon the bench and in the performance of judicial duties, but also in his everyday life, should be beyond reproach." Even if respondent honestly believed that Lot 1184-E was no longer in litigation in his court and that he was purchasing it from a third person and not from the parties to the litigation, he should nonetheless have refrained from buying it for himself and transferring it to a corporation in which he and his wife were financially involved, to avoid possible suspicion that his acquisition was related in one way or another to his official actuations in civil case 3010. The conduct of respondent gave cause for the litigants in civil case 3010, the lawyers practising in his court, and the public in general to doubt the honesty and fairness of his actuations and the integrity of our courts of justice. MERCANTILE LAW; CODE OF COMMERCE; ARTICLE 14 THEREOF PARTAKES OF THE NATURE OF A POLITICAL LAW. — Although Article 14 of the Code of Commerce is part of the commercial laws of the Philippines, it, however, partakes of the nature of a political law as it regulates the relationship between the government and certain public officers and employees, like justices and judges. CONSTITUTIONAL LAW; POLITICAL LAW, DEFINED. — Political law has been defined as that branch of public law which deals with the organization and operation of the governmental organs of the State and defines the relations of the state with the inhabitants of its territory (People vs. Perfecto, 43 Phil. 887). It must be recalled that a political law embraces constitutional law, law of public corporations, administrative law including the law on public officers and election. MERCANTILE LAW; CODE OF COMMERCE, ARTICLE 14 THEREOF ABROGATED BY CHANGE OF SOVEREIGNTY. — Upon the transfer of sovereignty from Spain to the United States to the Republic of the Philippines, Article 14 of this Code of Commerce must be deemed to have abrogated because where there is change of sovereignty, the political laws of the former sovereign, whether compatible or not with those of the new sovereign, are automatically

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7.

8.

abrogated, unless they are expressly re-enacted by affirmative act of the new sovereign. CRIMINAL LAW; ANTI-GRAFT AND CORRUPT PRACTICES ACT; PROHIBITED PECUNIARY INTEREST UNDER PARAGRAPH H OF SECTION 3 THEREOF REFERS TO ONE HERE THE PUBLIC OFFICER INTERVENES OR TAKES PART IN HIS OFFICIAL CAPACITY. — Respondent Judge can not be held liable under paragraph 4 Section 3 of the Anti-Graft and Corrupt Practices Act because there is- no showing that respondent participated or intervened in his official capacity in the business or transactions of the Traders Manufacturing And Fishing Industries, Inc. In the case at bar, the business of the corporation in which respondent participated has obviously no relation or connection with his official office. The business of said corporation is not that kind where respondent intervenes or takes part in his capacity as Judge of the Court of First Instance. As was held in one case involving the application of Article 216 of the Revised Penal Code which has a similar prohibition on public officers against directly or indirectly becoming interested in any contract or business in which it is his official duty to intervene, "It is not enough to be a public official to be subject to this crime; it is necessary that by reason of his office, he has to intervene in said contracts or transactions; and hence, the official who intervenes in contracts or transactions which have no relation to his office can not commit this crime" (People vs. Meneses, C.A. 40 C.G. 11th Supp. 134; Revised Penal Code, p. 1174, Vol 11(1976). JUDICIAL ETHICS; JUDGES NOT PROHIBITED FROM ENGAGING IN LAWFUL BUSINESS. — There is no provision in both the 1935 and 1973 Constitutions of the Philippines, nor is there an existing law expressly prohibiting members of the Judiciary from engaging or having interest in any lawful business. It may be pointed out that Republic Act No. 296, as amended, also known as the Judiciary Act of 1948, does not contain any prohibition to that effect. As a matter of fact, under Section 77 of said law, municipal judges may engage in teaching or other vocation not involving the practice of the law after office hours but with the permission of the district judge concerned. Likewise, Article 14 of the Code of Commerce which prohibits judges from engaging in commerce is, as heretofore stated, deemed abrogated automatically upon the transfer of sovereignty from Spain to America, because it is political in nature. ID.; ID.; CIVIL SERVICE ACT AND RULES PROMULGATED THEREUNDER NOT APPLICABLE TO MEMBERS OF THE JUDICIARY. — On the contention of complainant that respondent Judge violated Section 12, Rule XVIII of the Civil Service Rules, We hold that the Civil Service Act of 1959 (R.A. No. 2260) and the Civil Service Rules promulgated thereunder, particularly Section 12 of Rule XVIII, do not apply to the members of the Judiciary. It must be emphasized at the outset that respondent, being a member of the Judiciary, 45 covered by Republic Act No. 296, as amended, otherwise known as the Judiciary Act of 1948 and by Section 7, Article X, 1973 Constitution. Judges cannot be considered as subordinate civil service officers or employees subject to the disciplinary authority of the Commissioner of Civil Service; for, certainly. the Commissioner is not the head of the Judicial Department to which they belong. The Revised Administrative Code (Section 89) and the Civil Service Law itself state thru the Chief Justice is the department head of the Supreme Court (Sec. 20, R.A. No. 2260 [1959]); and under the1973 Constitution, the Judiciary is the only other or second branch of the government (Sec. 1, Art. X, 1973 Constitution). Besides, a violation of Section 12, Rule XVIII cannot be considered as a ground for disciplinary action against judges because to recognize the same as applicable to them, would be adding another ground for the discipline of judges and, as 6

CONSTI 1 9.

aforestated, Section 67 of the Judiciary Act recognizes only two grounds for their removal, namely, serious misconduct and inefficiency. ID.; ID.; JUDGES; ENGAGING IN PRIVATE BUSINESS, IMPROPER UNDER THE CANONS. — Although the actuation of respondent Judge in engaging in private business by joining the Traders Manufacturing and Fishing Industries, Inc. as a stockholder and a ranking officer, is not violative of the provisions of Article 14 of the Code of Commerce and Section 3 (h) of the Anti-Graft and Corrupt Practices Act as well as Section 12, Rule XVIII of the Civil Service Rules promulgated pursuant to the Civil Service Act of 1959, the impropriety of the same is clearly unquestionable because Canon 25 of the Canons of Judicial Ethics expressly declares that: "A judge should abstain from making personal investments in enterprises which are apt to be involved in litigation in his court; and, after his accession to the bench, he should not retain such investments previously made, longer than a period sufficient to enable him to dispose of them without serious loss The disposal or sale by respondent and his wife of their shares in the corporation only 22 days after the incorporation of the corporation, indicates that ' respondent realized that early that their interest in the corporation contravenes the aforesaid Canon 25. Respondent Judge and his wife therefore deserve commendation for their immediate withdrawal from the firm after its incorporation and before it became involved in any court litigation. DECISION MAKASIAR, J p: In a verified complaint dated August 6, 1968 Bernardita R. Macariola charged respondent Judge Elias B. Asuncion of the Court of First Instance of Leyte, now Associate Justice of the Court of Appeals, with "acts unbecoming a judge." The factual setting of the case is stated in the report dated May 27, 1971 of then Associate Justice Cecilia Muñoz Palma of the Court of Appeals now retired Associate Justice of the Supreme Court, to whom this case was referred on October 28, 1968 for investigation, thus: llcd "Civil Case No. 3010 of the Court of First Instance of Leyte was a complaint for partition filed by Sinforosa R. Bales, Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes, and Priscilla Reyes, plaintiffs, against Bernardita R. Macariola, defendant, concerning the properties left by the deceased Francisco Reyes, the common father of the plaintiff and defendant. "In her defenses to the complaint for partition, Mrs. Macariola alleged among other things that: a) plaintiff Sinforosa R. Bales was not a daughter of the deceased Francisco Reyes; b) the only legal heirs of the deceased were defendant Macariola, she being the only offspring of the first marriage of Francisco Reyes with Felisa Espiras, and the remaining plaintiffs who were the children of the deceased by his second marriage with Irene Ondes; c) the properties left by the deceased were all the conjugal properties of the latter and his first wife, Felisa Espiras, and no properties were acquired by the deceased during his second marriage; d) if there was any partition to be made,

1ST SET – 9 CASES those conjugal properties should first be partitioned into two parts, and one part is to be adjudicated solely to defendant it being the share of the latter's deceased mother, Felisa Espiras, and the other half which is the share of the deceased Francisco Reyes was to be divided equally among his children by his two marriages. "On June 8, 1963, a decision was rendered by respondent Judge Asuncion in Civil Case 3010, the dispositive portion of which reads: "'IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court, upon a preponderance of evidence, finds and so holds, and hereby renders judgment (1) Declaring the plaintiffs Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes and Priscilla Reyes as the only children legitimated by the subsequent marriage of Francisco Reyes Diaz to Irene Ondez; (2) Declaring the plaintiff Sinforosa R. Bales to have been an illegitimate child of Francisco Reyes Diaz; (3) Declaring Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506 and 1/4 of Lot 1145 as belonging to the conjugal partnership of the spouses Francisco Reyes Diaz and Felisa Espiras; (4) Declaring Lot No. 2304 and 1/4 of Lot No. 3416 as belonging to the spouses Francisco Reyes Diaz and Irene Ondez in common partnership; (5) Declaring that 1/2 of Lot No. 1184 as belonging exclusively to the deceased Francisco Reyes Diaz; (6) Declaring the defendant Bernardita R. Macariola, being the only legal and forced heir of her mother Felisa Espiras, as the exclusive owner of one-half of each of Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506; and the remaining one-half (1/2) of each of said Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506 and one-half (1/2) of one-fourth (1/4) of Lot No. 1154 as belonging to the estate of Francisco Reyes Diaz; (7) Declaring Irene Ondez to be the exclusive owner of one-half (1/2) of Lot No. 2304 and onehalf (1/2) of one-fourth (1/4) of Lot No. 3416; the remaining one-half (1/2) of Lot 2304 and the remaining one-half (1/2) of one fourth (1/4) of Lot No. 3416 as belonging to the estate of Francisco Reyes Diaz; (8) Directing the division or partition of the estate of Francisco Reyes Diaz in such a manner as to give or grant to Irene Ondez, as surviving widow of Francisco Reyes Diaz, a hereditary share of onetwelfth (1/12) of the whole estate of Francisco Reyes Diaz (Art. 996 in relation to Art. 892, par 2, New Civil Code), and the remaining portion of the estate to be divided among the plaintiffs Sinforosa R. Bales, Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes, Priscilla Reyes and defendant Bernardita R. Macariola, in such a way that the extent of the total share of plaintiff Sinforosa R. Bales in the hereditary estate shall not exceed the equivalent of two-fifth (2/5) of the total share of any or each of the other plaintiffs and the defendant (Art. 983, New Civil Code), each of the latter to receive equal shares from the hereditary estate, (Ramirez vs. Bautista, 14 Phil. 528; Diancin vs. Bishop of Jaro, O.G. [3rd Ed.] p. 33); (9) 7

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CONSTI 1 Directing the parties, within thirty days after this judgment shall have become final to submit to this court, for approval, a project of partition of the hereditary estate in the proportion above indicated, and in such manner as the parties may, by agreement, deemed convenient and equitable to them taking into consideration the location, kind, quality, nature and value of the properties involved; (10) Directing the plaintiff Sinforosa R. Bales and defendant Bernardita R. Macariola to pay the costs of this suit, in the proportion of one-third (1/3) by the first named and two-thirds (2/3) by the second named; and (11) Dismissing all other claims of the parties [pp. 27-29 of Exh. C]. "The decision in civil case 3010 became final for lack of an appeal, and on October 16, 1963, a project of partition was submitted to Judge Asuncion which is marked Exh. A. Notwithstanding the fact that the project of partition was not signed by the parties themselves but only by the respective counsel of plaintiffs and defendant, Judge Asuncion approved it in his Order dated October 23, 1963, which for convenience is quoted hereunder in full: 'The parties, through their respective counsels, presented to this Court for approval the following project of partition: 'COMES NOW, the plaintiffs and the defendant in the above-entitled case, to this Honorable Court respectfully submit the following Project of Partition: 1. 2. 3. 4. 5.

6.

The whole of Lots Nos. 1154, 2304 and 4506 shall belong exclusively to Bernardita Reyes Macariola; A portion of Lot No. 3416 consisting of 2,373.49 square meters along the eastern part of the lot shall be awarded likewise to Bernardita R. Macariola; Lots Nos. 4803, 4892 and 5265 shall be awarded to Sinforosa Reyes Bales; A portion of Lot No. 3416 consisting of 1,834.55 square meters along the western part of the lot shall likewise be awarded to Sinforosa Reyes-Bales; Lots Nos. 4474 and 4475 shall be divided equally among Luz Reyes Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes and Priscilla Reyes in equal shares; Lot No. 1184 and the remaining portion of Lot No. 3416 after taking the portions awarded under item (2) and (4) above shall be awarded to Luz Reyes Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes and Priscilla Reyes in equal shares, provided, however that the remaining portion of Lot No. 3416 shall belong exclusively to Priscilla Reyes.

'WHEREFORE, it is respectfully prayed that the Project of Partition indicated above which is made in accordance with the decision of the Honorable Court be approved.

'Tacloban City, October 16, 1963. (SGD) BONIFACIO RAMO Atty. for the Defendant Tacloban City '(SGD) ZOTICO A. TOLETE Atty. for the Plaintiff Tacloban City 'While the Court thought it more desirable for all the parties to have signed this Project of Partition, nevertheless, upon assurance of both counsels of the respective parties to this Court that the Project of Partition, as above-quoted, had been made after a conference and agreement of the plaintiffs and the defendant approving the above Project of Partition, and that both lawyers had represented to the Court that they are given full authority to sign by themselves the Project of Partition, the Court, therefore, finding the above-quoted project of Partition to be in accordance with law, hereby approves the same. The parties, therefore, are directed to execute such papers, documents or instrument sufficient in form and substance for the vesting of the rights, interests and participations which were adjudicated to the respective parties, as outlined in the Project of Partition and the delivery of the respective properties adjudicated to each one in view of said Project of Partition, and to perform such other acts as are legal and necessary to effectuate the said Project of Partition. 'SO ORDERED. 1963.

'Given in Tacloban City, this 23rd day of October,

'(SGD) ELIAS B. ASUNCION Judge' "EXH. B. "The above Order of October 23, 1963, was amended on November 11, 1963, only for the purpose of giving authority to the Register of Deeds of the Province of Leyte to issue the corresponding transfer certificates of title to the respective adjudicatees in conformity with the project of partition (see Exh. U). "One of the properties mentioned in the project of partition was Lot 1184 or rather one-half thereof with an area of 15,162.5 sq. meters. This lot, which according to the decision was the exclusive property of the deceased Francisco Reyes, was adjudicated in said project of partition to the plaintiffs Luz, Anacorita, Ruperto, Adela, and Priscilla all surnamed Reyes in equal shares, and when the project of partition was approved by the trial court the adjudicatees caused Lot 1184 to be subdivided into five 8

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CONSTI 1 lots denominated as Lot 1184-A to 1184-E inclusive (Exh. V). "Lot 1184-D was conveyed to Enriqueta D. Anota, a stenographer in Judge Asuncion's court (Exhs. F, F-1 and V-1), while Lot 1184-E which had an area of 2,172.5556 sq. meters was sold on July 31, 1964 to Dr. Arcadio Galapon (Exh. 2) who was issued transfer certificate of title No. 2338 of the Register of Deeds of the city of Tacloban (Exh. 12). "On March 6, 1965, Dr. Arcadio Galapon and his wife sold a portion of Lot 1184-E with an area of around 1,306 sq. meters to Judge Asuncion and his wife, Victoria S. Asuncion (Exh. 11), which particular portion was declared by the latter for taxation purposes (Exh. F). "On August 31, 1966, spouses Asuncion and spouses Galapon conveyed their respective shares and interest in Lot 1184-E to 'The Traders Manufacturing and Fishing Industries Inc.' (Exh. 15 & 16). At the time of said sale the stockholders of the corporation were Dominador Arigpa Tan, Humilia Jalandoni Tan, Jaime Arigpa Tan, Judge Asuncion, and the latter's wife, Victoria S. Asuncion, with Judge Asuncion as the President and Mrs. Asuncion as the secretary (Exhs. E-4 to E-7). The Articles of Incorporation of 'The Traders Manufacturing and Fishing Industries, Inc.' which we shall henceforth refer to as 'TRADERS' were registered with the Securities and Exchange Commission only on January 9, 1967 (Exh. E)" [pp. 378-385, rec.]. Complainant Bernardita R. Macariola filed on August 9, 1968 the instant complaint dated August 6, 1968 alleging four causes of action, to wit: [1] that respondent Judge Asuncion violated Article 1491, paragraph 5, of the New Civil Code in acquiring by purchase a portion of Lot No. 1184-E which was one of those properties involved in Civil Case No. 3010 decided by him; [2] that he likewise violated Article 14, paragraphs 1 and 5 of the Code of Commerce, Section 3, paragraph H, of R.A. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, Section 12, Rule XVIII of the Civil Service Rules, and Canon 25 of the Canons of Judicial Ethics, by associating himself with the Traders Manufacturing and Fishing Industries, Inc., as a stockholder and a ranking officer while he was a judge of the Court of First Instance of Leyte; [3] that respondent was guilty of coddling an impostor and acted in disregard of judicial decorum by closely fraternizing with a certain Dominador Arigpa Tan who openly and publicly advertised himself as a practising attorney when in truth and in fact his name does not appear in the Rolls of Attorneys and is not a member of the Philippine Bar; and [4] that there was a culpable defiance of the law and utter disregard for ethics by respondent Judge (pp. 1-7, rec.). Respondent answer to which a complainant. In Our case to then Justice

Judge Asuncion filed on September 24, 1968 his reply was filed on October 16, 1968 by herein resolution of October 28, 1968, We referred this Cecilia Muñoz Palma of the Court of Appeals, for

investigation, report and recommendation. After hearing, the said Investigating Justice submitted her report dated May 27, 1971 recommending that respondent Judge should be reprimanded or warned in connection with the first cause of action alleged in the complaint, and for the second cause of action, respondent should be warned in case of a finding that he is prohibited under the law to engage in business. On the third and fourth causes of action, Justice Palma recommended that respondent Judge be exonerated. LLpr The records also reveal that on or about November 9 or 11, 1968 (pp. 481, 477, rec.), complainant herein instituted an action before the Court of First Instance of Leyte, entitled "Bernardita R. Macariola, plaintiff, versus Sinforosa R. Bales, et al., defendants," which was docketed as Civil Case No. 4235, seeking the annulment of the project of partition made pursuant to the decision in Civil Case No. 3010 and the two orders issued by respondent Judge approving the same, as well as the partition of the estate and the subsequent conveyances with damages. It appears, however, that some defendants were dropped from the civil case. For one, the case against Dr. Arcadio Galapon was dismissed because he was no longer a real party in interest when Civil Case No. 4234 was filed, having already conveyed on March 6, 1965 a portion of lot 1184-E to respondent Judge and on August 31, 1966 the remainder was sold to the Traders Manufacturing and Fishing Industries, Inc. Similarly, the case against defendant Victoria Asuncion was dismissed on the ground that she was no longer a real party in interest at the time the aforesaid Civil Case No. 4234 was filed as the portion of Lot 1184 acquired by her and respondent Judge from Dr. Arcadio Galapon was already sold on August 31, 1966 to the Traders Manufacturing and Fishing Industries, Inc. Likewise, the cases against defendants Serafin P. Ramento, Catalina Cabus, Ben Barraza Go, Jesus Perez, Traders Manufacturing and Fishing Industries, Inc., Alfredo R. Celestial and Pilar P. Celestial, Leopoldo Petilla and Remedios Petilla, Salvador Anota and Enriqueta Anota and Atty. Zotico A. Tolete were dismissed with the conformity of complainant herein, plaintiff therein, and her counsel. On November 2, 1970, Judge Jose D. Nepomuceno of the Court of First Instance of Leyte, who was directed and authorized on June 2, 1969 by the then Secretary (now Minister) of Justice and now Minister of National Defense Juan Ponce Enrile to hear and decide Civil Case No. 4234, rendered a decision, the dispositive portion of which reads as follows: A.

IN THE CASE AGAINST JUDGE ELIAS B. ASUNCION — a. declaring that only Branch IV of the Court of First Instance of Leyte has jurisdiction to take cognizance of the issue of the legality and validity of the Project of Partition [Exhibit "B"] and the two Orders [Exhibits 'C' and 'C-3'] approving the partition; b. dismissing the complaint against Judge Elias B. Asuncion; c. adjudging the plaintiff, Mrs. Bernardita R. Macariola to pay defendant Judge Elias B. Asuncion, 9

1ST SET – 9 CASES

CONSTI 1 i.

B.

C.

D.

the sum of FOUR HUNDRED THOUSAND PESOS [P400,000.00] for moral damages; ii. the sum of TWO HUNDRED THOUSAND PESOS [P200,000.00] for exemplary damages; iii. the sum of FIFTY THOUSAND PESOS [P50,000.00] for nominal damages; and iv. the sum of TEN THOUSAND PESOS [P10,000.00] for Attorney's Fees. IN THE CASE AGAINST THE DEFENDANT MARIQUITA VILLASIN, FOR HERSELF AND FOR THE HEIRS OF THE DECEASED GERARDO VILLASIN — a. Dismissing the complaint against the defendants Mariquita Villasin and the heirs of the deceased Gerardo Villasin; b. Directing the plaintiff to pay the defendants Mariquita Villasin and the heirs of Gerardo Villasin the cost of the suit. IN THE CASE AGAINST THE DEFENDANT SINFOROSA R. BALES, ET AL., WHO WERE PLAINTIFFS IN CIVIL CASE NO. 3010 — a. Dismissing the complaint against defendants Sinforosa R. Bales, Adela R. Herrer, Priscilla R. Solis, Luz R. Bakunawa, Anacorita R. Eng and Ruperto O. Reyes. IN THE CASE AGAINST DEFENDANT BONIFACIO RAMO — a. Dismissing the complaint against Bonifacio Ramo; b. Directing the plaintiff to pay the defendant Bonifacio Ramo the cost of the suit. "SO ORDERED" [pp. 531-533, rec.].

It is further disclosed by the record that the aforesaid decision was elevated to the Court of Appeals upon perfection of the appeal on February 22, 1971. I WE find that there is no merit in the contention of complainant Bernardita R. Macariola, under her first cause of action, that respondent Judge Elias B. Asuncion violated Article 1491, paragraph 5, of the New Civil Code in acquiring by purchase a portion of Lot No. 1184-E which was one of those properties involved in Civil Case No. 3010. That Article provides: "Article 1491. The following persons cannot acquire by purchase, even at a public or judicial action, either in person or through the mediation of another: xxx xxx xxx "(5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and other officers and employees connected with the administration of justice, the property and rights in litigation or levied upon an execution before the court within whose jurisdiction or

territory they exercise their respective functions; this prohibition includes the act of acquiring by assignment and shall apply to lawyers, with respect to the property and rights which may be the object of any litigation in which they may take part by virtue of their profession" [italics supplied]. The prohibition in the aforesaid Article applies only to the sale or assignment of the property which is the subject of litigation to the persons disqualified therein. WE have already ruled that ". . . for the prohibition to operate, the sale or assignment of the property must take place during the pendency of the litigation involving the property" (The Director of Lands vs. Ababa, et al., 88 SCRA 513, 519 [1979]; Rosario vda. de Laig vs. Court of Appeals, 86 SCRA 641, 646 [1978]). In the case at bar, when the respondent Judge purchased on March 6, 1965 a portion of Lot 1184-E, the decision in Civil Case No. 3010 which he rendered on June 8, 1963 was already final because none of the parties therein filed an appeal within the reglementary period; hence, the lot in question was no longer subject of the litigation. Moreover, at the time of the sale on March 6, 1965, respondent's order dated October 23, 1963 and the amended order dated November 11, 1963 approving the October 16, 1963 project of partition made pursuant to the June 8, 1963 decision, had long become final for there was no appeal from said orders. Furthermore, respondent Judge did not buy the lot in question on March 6, 1965 directly from the plaintiffs in Civil Case No. 3010 but from Dr. Arcadio Galapon who earlier purchased on July 31, 1964 Lot 1184-E from three of the plaintiffs, namely, Priscilla Reyes, Adela Reyes, and Luz R. Bakunawa after the finality of the decision in Civil Case No. 3010. It may be recalled that Lot 1184 or more specifically one-half thereof was adjudicated in equal shares to Priscilla Reyes, Adela Reyes, Luz Bakunawa, Ruperto Reyes and Anacorita Reyes in the project of partition, and the same was subdivided into five lots denominated as Lot 1184-A to 1184-E. As aforestated, Lot 1184-E was sold on July 31, 1964 to Dr. Galapon for which he was issued TCT No. 2338 by the Register of Deeds of Tacloban City, and on March 6, 1965 he sold a portion of said lot to respondent Judge and his wife who declared the same for taxation purposes only. The subsequent sale on August 31, 1966 by spouses Asuncion and spouses Galapon of their respective shares and interest in said Lot 1184-E to the Traders Manufacturing and Fishing Industries, Inc., in which respondent was the president and his wife was the secretary, took place long after the finality of the decision in Civil Case No. 3010 and of the subsequent two aforesaid orders therein approving the project of partition. LLphil While it appears that complainant herein filed on or about November 9 or 11, 1968 an action before the Court of First Instance of Leyte docketed as Civil Case No. 4234, seeking to annul the project of partition and the two orders approving the same, as well as the partition of the estate and the subsequent conveyances, the same, however, is of no moment.

10

CONSTI 1 The fact remains that respondent Judge purchased on March 6, 1965 a portion of Lot 1184-E from Dr. Arcadio Galapon; hence, after the finality of the decision which he rendered on June 8, 1963 in Civil Case No. 3010 and his two questioned orders dated October 23, 1963 and November 11, 1963. Therefore, the property was no longer subject of litigation. The subsequent filing on November 9, or 11, 1968 of Civil Case No. 4234 can no longer alter, change or affect the aforesaid facts — that the questioned sale to respondent Judge, now Court of Appeals Justice, was effected and consummated long after the finality of the aforesaid decision or orders. Consequently, the sale of a portion of Lot 1184-E to respondent Judge having taken place over one year after the finality of the decision in Civil Case No. 3010 as well as the two orders approving the project of partition, and not during the pendency of the litigation, there was no violation of paragraph 5, Article 1491 of the New Civil Code. It is also argued by complainant herein that the sale on July 31, 1964 of Lot 1184-E to Dr. Arcadio Galapon by Priscilla Reyes, Adela Reyes and Luz R. Bakunawa was only a mere scheme to conceal the illegal and unethical transfer of said lot to respondent Judge as a consideration for the approval of the project of partition. In this connection, We agree with the findings of the Investigating Justice thus: "And so we are now confronted with this allimportant question whether or not the acquisition by respondent of a portion of Lot 1184-E and the subsequent transfer of the whole lot to 'TRADERS' of which respondent was the President and his wife the Secretary, was intimately related to the Order of respondent approving the project of partition, Exh. A. "Respondent vehemently denies any interest or participation in the transactions between the Reyeses and the Galapons concerning Lot 1184-E, and he insists that there is no evidence whatsoever to show that Dr. Galapon had acted, in the purchase of Lot 1184-E, in mediation for him and his wife. (See p. 14 of Respondent's Memorandum). xxx xxx xxx "On this point, I agree with respondent that there is no evidence in the record showing that Dr. Arcadio Galapon acted as a mere 'dummy' of respondent in acquiring Lot 1184-E from the Reyeses. Dr. Galapon appeared to this investigator as a respectable citizen, credible and sincere, and I believe him when he testified that he bought Lot 1184-E in good faith and for valuable consideration from the Reyeses without any intervention of, or previous understanding with Judge Asuncion" (pp. 391-394, rec.). On the contention of complainant herein that respondent Judge acted illegally in approving the project of partition although it was not

1ST SET – 9 CASES signed by the parties, We quote with approval the findings of the Investigating Justice, as follows: "1. I agree with complainant that respondent should have required the signature of the parties more particularly that of Mrs. Macariola on the project of partition submitted to him for approval; however, whatever error was committed by respondent in that respect was done in good faith as according to Judge Asuncion he was assured by Atty. Bonifacio Ramo, the counsel of record of Mrs. Macariola, that he was authorized by his client to submit said project of partition, (See Exh. B and tsn. p. 24, January 20, 1969). While it is true that such written authority if there was any, was not presented by respondent in evidence, nor did Atty. Ramo appear to corroborate the statement of respondent, his affidavit being the only one that was presented as respondent's Exh. 10, certain actuations of Mrs. Macariola lead this investigator to believe that she knew the contents of the project of partition, Exh. A, and that she gave her conformity thereto. I refer to the following documents: "1) Exh. 9 — Certified true copy of OCT No. 19520 covering Lot 1154 of the Tacloban Cadastral Survey in which the deceased Francisco Reyes holds a '1/4 share' (Exh. 9-a). On this certificate of title the Order dated November 11, 1963, (Exh. U) approving the project of partition was duly entered and registered on November 26, 1963 (Exh. 9-D); "2) Exh. 7 — Certified copy of a deed of absolute sale executed by Bernardita Reyes Macariola on October 22, 1963, conveying to Dr. Hector Decena the one-fourth share of the late Francisco Reyes-Diaz in Lot 1154. In this deed of sale the vendee stated that she was the absolute owner of said one-fourth share, the same having been adjudicated to her as her share in the estate of her father Francisco Reyes Diaz as per decision of the Court of First Instance of Leyte under case No. 3010 (Exh. 7-A). The deed of sale was duly registered and annotated at the back of OCT 19520 on December 3, 1963 (see Exh. 9-e). "In connection with the abovementioned documents it is to be noted that in the project of partition dated October 16, 1963, which was approved by respondent on October 23, 1963, followed by an amending Order on November 11, 1963, Lot 1154 or rather 1/4 thereof was adjudicated to Mrs. Macariola. It is this 1/4 share in Lot 1154 which complainant sold to Dr. Decena on October 22, 1963, several days after the preparation of the project of partition. "Counsel for complainant stresses the view, however, that the latter sold her one-fourth share in Lot 1154 by virtue of the decision in Civil Case 3010 and not because of the project of partition, Exh. A. Such contention is absurd because from the decision, Exh. C, it is clear 11

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CONSTI 1 that one-half of one-fourth of Lot 1154 belonged to the estate of Francisco Reyes Diaz while the other half of said one-fourth was the share of complainant's mother, Felisa Espiras; in other words, the decision did not adjudicate the whole of the one-fourth of Lot 1154 to the herein complainant (see Exhs. C-3 & C-4). Complainant became the owner of the entire one fourth of Lot 1154 only by means of the project of partition, Exh. A. Therefore, if Mrs. Macariola sold Lot 1154 on October 22, 1963, it was for no other reason than that she was well aware of the distribution of the properties of her deceased father as per Exhs. A and B. It is also significant at this point to state that Mrs. Macariola admitted during the cross-examination that she went to Tacloban City in connection with the sale of Lot 1154 to Dr. Decena (tsn. p. 92, November 28, 1968) from which we can deduce that she could not have been kept ignorant of the proceedings in civil case 3010 relative to the project of partition. "Complainant also assails the project of partition because according to her the properties adjudicated to her were insignificant lots and the least valuable. Complainant, however, did not present any direct and positive evidence to prove the alleged gross inequalities in the choice and distribution of the real properties when she could have easily done so by presenting evidence on the area, location, kind, the assessed and market value of said properties. Without such evidence there is nothing in the record to show that there were inequalities in the distribution of the properties of complainant's father" (pp. 386-389, rec.). Finally, while it is true that respondent Judge did not violate paragraph 5, Article 1491 of the New Civil Code in acquiring by purchase a portion of Lot 1184-E which was in litigation in his court, it was, however, improper for him to have acquired the same. He should be reminded of Canon 3 of the Canons of Judicial Ethics which requires that: "A judge's official conduct should be free from the appearance of impropriety, and his personal behavior, not only upon the bench and in the performance of judicial duties, but also in his everyday life, should be beyond reproach." And as aptly observed by the Investigating Justice: ". . . it was unwise and indiscreet on the part of respondent to have purchased or acquired a portion of a piece of property that was or had been in litigation in his court and caused it to be transferred to a corporation of which he and his wife were ranking officers at the time of such transfer. One who occupies an exalted position in the judiciary has the duty and responsibility of maintaining the faith and trust of the citizenry in the courts of justice, so that not only must he be truly honest and just, but his actuations must be such as not give cause for doubt and mistrust in the uprightness of his administration of justice. In this particular case of respondent, he cannot deny that the transactions over Lot 1184-E are damaging and render his actuations open to suspicion and distrust. Even if respondent honestly believed that Lot 1184-E was no longer in litigation in his court and that he was purchasing it from a third person and not from the parties to the litigation, he should nonetheless have refrained from buying it for himself and transferring it

to a corporation in which he and his wife were financially involved, to avoid possible suspicion that his acquisition was related in one way or another to his official actuations in civil case 3010. The conduct of respondent gave cause for the litigants in civil case 3010, the lawyers practising in his court, and the public in general to doubt the honesty and fairness of his actuations and the integrity of our courts of justice" (pp. 395-396, rec.). LexLib II With respect to the second cause of action, the complainant alleged that respondent Judge violated paragraphs 1 and 5, Article 14 of the Code of Commerce when he associated himself with the Traders Manufacturing and Fishing Industries, Inc. as a stockholder and a ranking officer, said corporation having been organized to engage in business. Said Article provides that: "Article 14 — The following cannot engage in commerce, either in person or by proxy, nor can they hold any office or have any direct, administrative, or financial intervention in commercial or industrial companies within the limits of the districts, provinces, or towns in which they discharge their duties: "1. Justices of the Supreme Court, judges and officials of the department of public prosecution in active service. This provision shall not be applicable to mayors, municipal judges, and municipal prosecuting attorneys nor to those who by chance are temporarily discharging the functions of judge or prosecuting attorney. xxx xxx xxx "5. Those who by virtue of laws or special provisions may not engage in commerce in a determinate territory." It is Our considered view that although the aforestated provision is incorporated in the Code of Commerce which is part of the commercial laws of the Philippines, it, however, partakes of the nature of a political law as it regulates the relationship between the government and certain public officers and employees, like justices and judges. Political Law has been defined as that branch of public law which deals with the organization and operation of the governmental organs of the State and define the relations of the state with the inhabitants of its territory (People vs. Perfecto, 43 Phil. 887, 897 [1922]). It may be recalled that political law embraces constitutional law, law of public corporations, administrative law including the law on public officers and elections. Specifically, Article 14 of the Code of Commerce partakes more of the nature of an administrative law because it regulates the conduct of certain public officers and employees with respect to engaging in business; hence, political in essence. It is significant to note that the present Code of Commerce is the Spanish Code of Commerce of 1885, with some modifications made by the "Comision de Codificacion de las Provincias de Ultramar," which was 12

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CONSTI 1 extended to the Philippines by the Royal Decree of August 6, 1888, and took effect as law in this jurisdiction on December 1, 1888.

respondent, then Judge of the Court of First Instance, now Associate Justice of the Court of Appeals.

Upon the transfer of sovereignty from Spain to the United States and later on from the United States to the Republic of the Philippines, Article 14 of this Code of Commerce must be deemed to have been abrogated because where there is change of sovereignty, the political laws of the former sovereign, whether compatible or not with those of the new sovereign, are automatically abrogated, unless they are expressly reenacted by affirmative act of the new sovereign.

It is also argued by complainant herein that respondent Judge violated paragraph H, Section 3 of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, which provides that:

Thus, We held in Roa vs. Collector of Customs (23 Phil. 315, 330, 311 [1912]) that: "'By well-settled public law, upon the cession of territory by one nation to another, either following a conquest or otherwise, . . . those laws which are political in their nature and pertain to the prerogatives of the former government immediately cease upon the transfer of sovereignty.' (Opinion, Atty. Gen., July 10, 1899). "While municipal laws of the newly acquired territory not in conflict with the laws of the new sovereign continue in force without the express assent or affirmative act of the conqueror, the political laws do not. (Halleck's Int. Law, chap. 34, par. 14). However, such political laws of the prior sovereignty as are not in conflict with the constitution or institutions of the new sovereign, may be continued in force if the conqueror shall so declare by affirmative act of the commander-in-chief during the war, or by Congress in time of peace. (Ely's Administrator vs. United States, 171 U.S. 220, 43 L. Ed. 142). In the case of American and Ocean Ins. Cos. vs. 356 Bales of Cotton (1 Pet. [26 U.S.] 511, 542, 7 L. Ed. 242), Chief Justice Marshall said: 'On such transfer (by cession) of territory, it has never been held that the relations of the inhabitants with each other undergo any change. Their relations with their former sovereign are dissolved, and new relations are created between them and the government which has acquired their territory. The same act which transfers their country, transfers the allegiance of those who remain in it; and the law which may be denominated political, is necessarily changed, although that which regulates the intercourse and general conduct of individuals, remains in force, until altered by the newly-created power of the State.'" Likewise, in People vs. Perfecto (43 Phil. 887, 897 [1922]), this Court stated that: "It is a general principle of the public law that on acquisition of territory the previous political relations of the ceded region are totally abrogated." There appears no enabling or affirmative act that continued the effectivity of the aforestated provision of the Code of Commerce after the change of sovereignty from Spain to the United States and then to the Republic of the Philippines. Consequently, Article 14 of the Code of Commerce has no legal and binding effect and cannot apply to the

"Sec. 3. Corrupt practices of public officers. — In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: xxx xxx xxx "(h) Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest." Respondent Judge cannot be held liable under the aforestated paragraph because there is no showing that respondent participated or intervened in his official capacity in the business or transactions of the Traders Manufacturing and Fishing Industries, Inc. In the case at bar, the business of the corporation in which respondent participated has obviously no relation or connection with his judicial office. The business of said corporation is not that kind where respondent intervenes or takes part in his capacity as Judge of the Court of First Instance. As was held in one case involving the application of Article 216 of the Revised Penal Code which has a similar prohibition on public officers against directly or indirectly becoming interested in any contract or business in which it is his official duty to intervene, "(I)t is not enough to be a public official to be subject to this crime: it is necessary that by reason of his office, he has to intervene in said contracts or transactions; and, hence, the official who intervenes in contracts or transactions which have no relation to his office cannot commit this crime" (People vs. Meneses, C.A. 40 O.G. 11th Supp. 134, cited by Justice Ramon C. Aquino; Revised Penal Code, p. 1174, Vol. II [1976]). It does not appear also from the records that the aforesaid corporation gained any undue advantage in its business operations by reason of respondent's financial involvement in it, or that the corporation benefited in one way or another in any case filed by or against it in court. It is undisputed that there was no case filed in the different branches of the Court of First Instance of Leyte in which the corporation was either party plaintiff or defendant except Civil Case No. 4234 entitled "Bernardita R. Macariola, plaintiff, versus Sinforosa O. Bales, et al.," wherein the complainant herein sought to recover Lot 1184-E from the aforesaid corporation. It must be noted, however, that Civil Case No. 4234 was filed only on November 9 or 11, 1968 and decided on November 2, 1970 by CFI Judge Jose D. Nepomuceno when respondent Judge was no longer connected with the corporation, having disposed of his interest therein on January 31, 1967. cdrep Furthermore, respondent is not liable under the same paragraph because there is no provision in both the 1935 and 1973 Constitutions of the Philippines, nor is there an existing law expressly 13

CONSTI 1 prohibiting members of the Judiciary from engaging or having interest in any lawful business. It may be pointed out that Republic Act No. 296, as amended, also known as the Judiciary Act of 1948, does not contain any prohibition to that effect. As a matter of fact, under Section 77 of said law, municipal judges may engage in teaching or other vocation not involving the practice of law after office hours but with the permission of the district judge concerned. Likewise, Article 14 of the Code of Commerce which prohibits judges from engaging in commerce is, as heretofore stated, deemed abrogated automatically upon the transfer of sovereignty from Spain to America, because it is political in nature. Moreover, the prohibition in paragraph 5, Article 1491 of the New Civil Code against the purchase by judges of a property in litigation before the court within whose jurisdiction they perform their duties, cannot apply to respondent Judge because the sale of the lot in question to him took place after the finality of his decision in Civil Case No. 3010 as well as his two orders approving the project of partition; hence, the property was no longer subject of litigation. In addition, although Section 12, Rule XVIII of the Civil Service Rules made pursuant to the Civil Service Act of 1959 prohibits an officer or employee in the civil service from engaging in any private business, vocation, or profession or be connected with any commercial, credit, agricultural or industrial undertaking without a written permission from the head of department, the same, however, may not fall within the purview of paragraph h, Section 3 of theAnti-Graft and Corrupt Practices Act because the last portion of said paragraph speaks of a prohibition by the Constitution or law on any public officer from having any interest in any business and not by a mere administrative rule or regulation. Thus, a violation of the aforesaid rule by any officer or employee in the civil service, that is, engaging in private business without a written permission from the Department Head may not constitute graft and corrupt practice as defined by law.

1ST SET – 9 CASES information of the Secretary (now Minister) of Justice to conduct the corresponding investigation. Clearly, the aforesaid section defines the grounds and prescribes the special procedure for the discipline of judges. And under Sections 5, 6 and 7, Article X of the 1973 Constitution, only the Supreme Court can discipline judges of inferior courts as well as other personnel of the Judiciary. cdphil It is true that under Section 33 of the Civil Service Act of 1959: "The Commissioner may, for . . . violation of the existing Civil Service Law and rules or of reasonable office regulations, or in the interest of the service, remove any subordinate officer or employee from the service, demote him in rank, suspend him for not more than one year without pay or fine him in an amount not exceeding six months' salary." Thus, a violation of Section 12 of Rule XVIII is a ground for disciplinary action against civil service officers and employees. However, judges cannot be considered as subordinate civil service officers or employees subject to the disciplinary authority of the Commissioner of Civil Service; for, certainly, the Commissioner is not the head of the Judicial Department to which they belong. The Revised Administrative Code (Section 89) and the Civil Service Law itself state that the Chief Justice is the department head of the Supreme Court (Sec. 20, R.A. No. 2260) [1959]); and under the 1973 Constitution, the Judiciary is the only other or second branch of the government (Sec. 1, Art. X, 1973 Constitution). Besides, a violation of Section 12, Rule XVIII cannot be considered as a ground for disciplinary action against judges because to recognize the same as applicable to them, would be adding another ground for the discipline of judges and, as aforestated, Section 67 of the Judiciary Act recognizes only two grounds for their removal, namely, serious misconduct and inefficiency.

It must be emphasized at the outset that respondent, being a member of the Judiciary, is covered by Republic Act No. 296, as amended, otherwise known as the Judiciary Act of 1948 and by Section 7, Article X, 1973 Constitution.

Moreover, under Section 16(i) of the Civil Service Act of 1959, it is the Commissioner of Civil Service who has original and exclusive jurisdiction "(T)o decide, within one hundred twenty days, after submission to it, all administrative cases against permanent officers and employees in the competitive service, and, except as provided by law, to have final authority to pass upon their removal, separation, and suspension and upon all matters relating to the conduct, discipline, and efficiency of such officers and employees; and prescribe standards, guidelines and regulations governing the administration of discipline" (emphasis supplied). There is no question that a judge belong to the non-competitive or unclassified service of the government as a Presidential appointee and is therefore not covered by the aforesaid provision. WE have already ruled that ". . . in interpreting Section 16(i) of Republic Act No. 2260, we emphasized that only permanent officers and employees who belong to the classified service come under the exclusive jurisdiction of the Commissioner of Civil Service" (Villaluz vs. Zaldivar, 15 SCRA 710, 713 [1965], Ang-Angco vs. Castillo, 9 SCRA 619 [1963]).

Under Section 67 of said law, the power to remove or dismiss judges was then vested in the President of the Philippines, not in the Commissioner of Civil Service, and only on two grounds, namely, serious misconduct and inefficiency, and upon the recommendation of the Supreme Court, which alone is authorized, upon its own motion, or upon

Although the actuation of respondent Judge in engaging in private business by joining the Traders Manufacturing and Fishing Industries, Inc. as a stockholder and a ranking officer, is not violative of the provisions of Article 14 of the Code of Commerce and Section 3(h) of the Anti-Graft and Corrupt Practices Act as well as Section 12, Rule XVIII

On the contention of complainant that respondent Judge violated Section 12, Rule XVIII of the Civil Service Rules, We hold that the Civil Service Act of 1959 (R.A. No. 2260) and the Civil Service Rules promulgated thereunder, particularly Section 12 of Rule XVIII, do not apply to the members of the Judiciary. Under said Section 12: "No officer or employee shall engage directly in any private business, vocation, or profession or be connected with any commercial, credit, agricultural or industrial undertaking without a written permission from the Head of Department . . ."

14

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CONSTI 1 of the Civil Service Rules promulgated pursuant to the Civil Service Act of 1959, the impropriety of the same is clearly unquestionable because Canon 25 of the Canons of Judicial Ethics expressly declares that: "A judge should abstain from making personal investments in enterprises which are apt to be involved in litigation in his court; and, after his accession to the bench, he should not retain such investments previously made, longer than a period sufficient to enable him to dispose of them without serious loss. It is desirable that he should, so far as reasonably possible, refrain from all relations which would normally tend to arouse the suspicion that such relations warp or bias his judgment, or prevent his impartial attitude of mind in the administration of his judicial duties. . . ." WE are not, however, unmindful of the fact that respondent Judge and his wife had withdrawn on January 31, 1967 from the aforesaid corporation and sold their respective shares to third parties, and it appears also that the aforesaid corporation did not in anyway benefit in any case filed by or against it in court as there was no case filed in the different branches of the Court of First Instance of Leyte from the time of the drafting of the Articles of Incorporation of the corporation on March 12, 1966, up to its incorporation on January 9, 1967, and the eventual withdrawal of respondent on January 31, 1967 from said corporation. Such disposal or sale by respondent and his wife of their shares in the corporation only 22 days after the in corporation of the corporation, indicates that respondent realized that early that their interest in the corporation contravenes the aforesaid Canon 25. Respondent Judge and his wife therefore deserve the commendation for their immediate withdrawal from the firm after its incorporation and before it became involved in any court litigation. III With respect to the third and fourth causes of action, complainant alleged that respondent was guilty of coddling an impostor and acted in disregard of judicial decorum, and that there was culpable defiance of the law and utter disregard for ethics. WE agree, however, with the recommendation of the Investigating Justice that respondent Judge be exonerated because the aforesaid causes of action are groundless, and WE quote the pertinent portion of her report which reads as follows: "The basis for complainant's third cause of action is the claim that respondent associated and closely fraternized with Dominador Arigpa Tan who openly and publicly advertised himself as a practising attorney (see Exhs. I, I-1 and J) when in truth and in fact said Dominador Arigpa Tan does not appear in the Roll of Attorneys and is not a member of the Philippine Bar as certified to in Exh. K. The "respondent denies knowing that Dominador Arigpa Tan was an 'impostor' and claims that all the time he believed that the latter was a bona fidemember of the bar. I see no reason for disbelieving this assertion of respondent. It has been shown by complainant that

Dominador Arigpa Tan represented himself publicly as an attorney-at-law to the extent of putting up a signboard with his name and the words 'Attorney-at-Law' (Exh. I and I-1) to indicate his office, and it was but natural for respondent and any person for that matter to have accepted that statement on its face value. "Now with respect to the allegation of complainant that respondent is guilty of fraternizing with Dominador Arigpa Tan to the extent of permitting his wife to be a godmother of Mr. Tan's child at baptism (Exh. M & M-1), that fact even if true did not render respondent guilty of violating any canon of judicial ethics as long as his friendly relations with Dominador A. Tan and family did not influence his official actuations as a judge where said persons were concerned. There is no tangible convincing proof that herein respondent gave any undue privileges in his court to Dominador Arigpa Tan or that the latter benefitted in his practice of law from his personal relations with respondent, or that he used his influence, if he had any, on the Judges of the other branches of the Court to favor said Dominador Tan. "Of course it is highly desirable for a member of the judiciary to refrain as much as possible from maintaining close friendly relations with practising attorneys and litigants in his court so as to avoid suspicion 'that his social or business relations or friendship constitute an element in determining his judicial course" (par. 30, Canons of Judicial Ethics), but if a Judge does have social relations, that in itself would not constitute a ground for disciplinary action unless it be clearly shown that his social relations beclouded his official actuations with bias and partiality in favor of his friends" (pp. 403-405, rec.). In conclusion, while respondent Judge Asuncion, now Associate Justice of the Court of Appeals, did not violate any law in acquiring by purchase a parcel of land which was in litigation in his court and in engaging in business by joining a private corporation during his incumbency as judge of the Court of First Instance of Leyte, he should be reminded to be more discreet in his private and business activities, because his conduct as a member of the Judiciary must not only be characterized with propriety but must always be above suspicion. LibLex WHEREFORE, THE RESPONDENT ASSOCIATE JUSTICE OF THE COURT OF APPEALS IS HEREBY REMINDED TO BE MORE DISCREET IN HIS PRIVATE AND BUSINESS ACTIVITIES. SO ORDERED. ||| (Macariola v. Asuncion, Adm. Case No. 133-J, [May 31, 1982], 199 PHIL 295-324)

15

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CONSTI 1

3.

[G.R. No. L-32432. September 11, 1970.] MANUEL B. IMBONG, petitioner, vs. JAIME FERRER, as Chairman of the Comelec, LINO M. PATAJO and CESAR MIRAFLOR, as members thereof,respondents.

4.

[G.R. No. L-32443. September 11, 1970.] IN THE MATTER OF A PETITION FOR DECLARATORY JUDGMENT REGARDING THE VALIDITY OF R.A. No. 6132, OTHERWISE KNOWN AS THE CONSTITUTIONAL CONVENTION ACT OF 1970. RAUL M. GONZALES, petitioner, vs. COMELEC, respondent. SYLLABUS 1. CONSTITUTIONAL LAW; CONSTITUTIONAL CONVENTION; RA. 6132, CONSTITUTIONAL. — The constitutionality of the enactment of R.A. 6132 by Congress must be upheld for the following reasons: 1) Congress, acting as Constituent Assembly pursuant to Article XV of the Constitution, has authority to propose constitutional amendments or call a convention for the purpose by 3/4 votes of each house in joint session assembled but voting separately; 2) Such grant includes all other powers essential to the effective exercise of the principal power by necessary implication; 3) Implementing details are within the authority of Congress not only as a Constituent Assembly but also in the exercise of its comprehensive legislative power so long as it does not contravene any provision of the Constitution; and 4) Congress as a legislative body may thus enact necessary implementing legislation to fill in the gaps which Congress as a Constituent Assembly omitted. 2. ID.; ID.; ID.; APPORTIONMENT OF DELEGATES. — Unlike in the apportionment of representative districts, the Constitution does not expressly or impliedly require such apportionment of delegates to the convention on the basis of population in each congressional district. Congress, sitting as a Constituent Assembly, may constitutionally allocate one delegate for each congressional district or for each province, for reasons of economy and to avoid having an unwieldy convention. If the framers of the present Constitution wanted the apportionment of delegates to be based on the number of inhabitants in each representative district, they would have done so in so many words as they did in relation to the apportionment of the representative districts. The apportionment provided

5.

6.

7.

for in Sec. 2 of R.A. No. 6132 cannot possibly conflict with its own intent expressed therein; for it merely obeyed and implemented the intent of Congress acting as a Constituent Assembly expressed in Sec. 1 of Res. No. 4, which provides that the 320 delegates should be apportioned among the existing representative districts according to the number of their respective inhabitants, but fixing a minimum of at least two delegates for a representative district. ID.; ID.; ID.; ID.; ABSOLUTE PROPORTIONAL REPRESENTATION NOT REQUIRED. — That the lone and small congressional district of Batanes, may be overrepresented, because it is allotted two delegates by R.A. 6132 despite the fact that it has a population very much less than several other congressional districts, each of which is also allotted only two delegates, and therefore underrepresented vis-a-vis Batanes alone, does not vitiate the apportionment as not affecting proportional representation. Absolute proportional apportionment is not required and is not possible when based on the number of inhabitants, for the population census cannot be accurate nor complete, dependent as it is on the diligence of the census takers aggravated by the constant movement of population, as well as daily death and birth. It is enough that the basis employed is reasonable and the resulting apportionment is substantially proportional. ID.; ID.; ID.; ID.; NOT UNREASONABLE. — While there may be other formulas for a reasonable apportionment, considering the evidence submitted to Congress by the Bureau of Census and Statistics, We are not prepared to rule that the computation formula adopted by Congress for proportional representation as directed in Res. No. 4 is unreasonable and that the apportionment provided in R.A. 6132 does not constitute a substantially proportional representation. ID.; APPORTIONMENT OF CONGRESSIONAL DISTRICTS; ABSOLUTE REPRESENTATION CANNOT BE EFFECTED, SECTION 5 ARTICLE VI, CONSTITUTION. — The impossibility of absolute proportional representation is recognized by the Constitution itself when it directs that the apportionment of congressional districts among the various provinces shall be "as nearly as may be according to their respective inhabitants, but each province shall have at least one member." The employment of the phrase "as nearly as may be according to their respective inhabitants" emphasizes the fact that the human mind can only approximate a reasonable apportionment but cannot affect an absolutely proportional representation with mathematical precision or exactitude. ID.; PUBLIC OFFICE; NO INHERENT RIGHT TO PUBLIC OFFICE. — That a citizen does not have any inherent nor natural right to a public office, is axiomatic under our Constitutional system. The State, through its Constitution or legislative body, can create an office and define the qualifications and disqualifications therefor as well as impose inhibitions on a public officer. Consequently, only those with qualifications and who do not fall under any constitutional or statutory inhibition can be validly elected or appointed to a public office. ID.; CON-CON; DISQUALIFICATION OF ELECTED DELEGATES FROM PUBLIC OFFICE; SECTION 5. — Section 5 of R.A. 6132 disqualifies any elected delegate from running "for any public office in any election" or from assuming "any appointive office or position in any branch of the government until after the final adjournment of the Constitutional Convention." The obvious reason for the questioned inhibition is to immunize the delegates from the perverting influence of self-interest, party interest or vested interest and to insure that he dedicates all his time to performing solely, in the interest of the nation, his high and well nigh sacred function of formulating the supreme law of the land, which 16

CONSTI 1 8.

9. 10.

11.

12.

13.

14.

may endure for generations and which cannot easily be changed like an ordinary statute. ID.; ID.; SECTION 5 of RA. 6132; REASON. — With the disqualification embodied in Section 5, the delegate will not utilize his position as a bargaining leverage for concessions in the form of an elective or appointive office as long as the convention has not finally adjourned. The appointing authority may, by his appointing power, entice votes for his own proposals. Not love of self, but love of country must always motivate his actuations as delegate, otherwise the several provisions of the new Constitution may only satisfy individual or special interests subversive of the welfare of the general citizenry. ID.; ID.; ID.; CONSTITUTIONAL. — Thus, the challenged disqualification prescribed in Section 5 of R.A. 6132 is a valid limitation on the right to public office pursuant to state police power as it is reasonable and not arbitrary. ID.; ID.; ID.; DISCRIMINATION AGAINST DELEGATES; CONSTITUTIONAL. — The discrimination under Sec. 5 against delegates is constitutional since it is based upon substantial distinction which makes for real differences. The function of delegate is more far-reaching and its effects more enduring than that of any ordinary legislator or any other public officer. A delegate shapes the fundamental law of the land which delineates the essential nature of the government, its basic organization and powers, defines the liberties of the people, and controls all other laws. Unlike ordinary statutes, constitutional amendments cannot be changed in one or two years. No other public officer possesses such a power, not even the members of Congress unless they themselves propose constitutional amendments when acting as a Constituent Assembly pursuant to Art. XV of the Constitution. The classification, therefore, is neither whimsical nor repugnant to the sense of justice of the community. ID.; ID.; ID.; GERMANE TO PURPOSES OF THE LAW. — The inhibition under Section 5 of R.A. 6132 is relevant t the object of the law, which is to insure that the proposed amendments are meaningful to the masses of our people and not designed for the enhancement of selfishness, greed, corruption, or injustice. ID.; GUARANTEE OF DUE PROCESS AND OTHER RIGHTS NOT ABSOLUTE. — This Court ruled last year that the guarantees of due process, equal protection of the laws, peaceful assembly, free expression, and the right of association are neither absolute nor illimitable rights; they are always subject to the pervasive and dominant police power of the State and may be lawfully abridged to serve appropriate and important public interest. ID.; CONSTITUTIONAL CONVENTION; SECTION 5, PARAGRAPH I R.A.. 6132; BAN AGAINST POLITICAL PARTIES. — The ban against all political parties or organized groups of whatever nature contained in par. 1 of Sec. 8(a), is confined to party or organization support or assistance, whether material, moral, or emotional or otherwise. ID.; ID.; ID.; ACTS PERMITTED. — The very Sec. 8(a) in its provisos permits the candidate to utilize in his campaign the help of the members of his family within the fourth civil degree of consanguinity or affinity, and a campaign staff composed of not more than one for every ten precincts in his district. It allows the full exercise of his freedom of expression and his right to peaceful assembly, because he cannot be denied any permit to hold a public meeting on the pretext that the provision of said section may or will be violated. The right of a member of any political party or association to support him or oppose his opponent is preserved as long as such member acts individually. The very party or organization to which he may belong or which may be in sympathy with his cause or program or reforms, is guaranteed the right to disseminate information about, or to arouse public interest in, or to advocate for constitutional reforms, programs, policies or constitutional proposals for amendments.

1ST SET – 9 CASES 15. ID.; ID.; ID.; PARTISAN ACTIVITY, CONSTITUTIONAL. — Even if partisan activity consists of (a) forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a party or candidate; (b) holding political conventions, caucuses, conferences, meetings, rallies, parades or other similar assemblies for the purpose of soliciting votes and/or undertaking any campaign for propaganda. for or against any candidate or party; and (c) giving, soliciting or receiving contributions for election campaign either directly or indirectly, (Sec. 50-B, pars. (a), (b), and (c), R.A. 4880), the abridgment was still affirmed as constitutional by six members of this Court, which could not "ignore . . . the legislative declaration that its enactment was in response to a serious substantive evil affecting the electoral process, not merely in danger of happening, but actually in existence, and likely to continue unless curbed or remedied. To assert otherwise would be to close one's eyes to the reality of the situation." 16. ID.; ID.; ID.; ID.; PURPOSE. — The primary purpose of the prohibition in par. 1 of Sec. 8(a) of R.A. 6132 then is to avert the clear and present danger of another substantive evil, the denial of the equal protection of the laws. The candidates must depend on their individual merits and not on the support of political parties or organizations. This position is further strengthened by the principle that the guarantee of social justice under Sec. V, Art. II of the Constitution, includes the guarantee of equal opportunity, equality of political rights, and equality before the law enunciated by Mr. Justice Tuazon in the case Guido vs. Rural Progress Administration (84 Phil. 847, 852). 17. ID.; ID.; ID.; ID.; VALID LIMITATION ON FREEDOM OF ASSOCIATION AND EXPRESSION. — While it may be true that a party's support of a candidate is not wrong per se, it is equally true that Congress in the exercise of its broad lawmaking authority can declare certain acts as mala prohibita when justified by the exigencies of the times. One such act is the party or organization support proscribed in Sec. 8(a), which ban is a valid limitation on the freedom of association as well as free expression for the reasons aforestated. 18. ID.; ID.; ID.; ID.; EQUAL PROTECTION OF THE LAW NOT SUBVERTED IN INSTANT CASE. — The equal protection of the laws is not unduly subverted in par. 1 of Sec. 8(a) because it does not create any hostile discrimination against any party or group nor does it confer undue favor or privilege on an individual. The discrimination applies to all organizations, whether political parties or social, civic, religious or professional associations. The ban is germane to the objectives of the law, which are to avert the debasement of the electoral process and to attain real equality of chances among individual candidates and thereby make real the guarantee of equal protection of the laws. 19. ID.; ID.; ID.; BAN AGAINST POLITICAL PARTIES, EXPLAINED. — Political parties and the other organized groups have built-in advantages because of their machinery and other facilities, which, the individual candidate who is without any organization support does not have. The ban on political parties is germane to the objectives of the law of averting the debasement of the electoral process for it assures the candidates equal protection of the laws by according them equality of chances. Under this provision, the poor candidate has an even chance as against the rich candidate. 20. ID.; ID.; ID.; BAN AGAINST CIVIC ASSOCIATIONS, EXPLAINED. — It is no argument that the civic and religious organization machinery is not as effective as that of political parties, for it still has that much built-in advantage as against the individual candidate without similar support. Furthermore, these civic, religious and professional organizations may band together to support a 17

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CONSTI 1 candidate who advocates reforms which they believe are imperative. The civic associations other than political parties cannot with reason insist that they should be exempted from the ban; because then by such exemption they would be free to utilize the facilities of the campaign machinery's which they are denying to the political parties. Whenever an organization engages in a political activity, as in this campaign for election of delegates to the Constitutional Convention, to that extent it partakes of the nature of a political organization. 21. ID.; ID.; ID.; FREEDOM OF SPEECH AND ASSEMBLY NOT TRANSGRESSED IN INSTANT CASE. — The freedom of association also implies the liberty not to associate or join with others nor join any existing organization. A person may run independently on his own merits without need of catering to a political party or any other association for support. And he, as much as the candidate whose candidacy does not evoke sympathy from any political party or organized group, must be afforded equal chances.

5.

FERNANDO, J., concurring and dissenting: 1.

2.

3.

4.

CONSTITUTIONAL LAW; CONSTITUTIONAL CONVENTION; CANDIDATES FOR DELEGATES THERETO; QUALIFICATIONS; BAN ON POLITICAL AND OTHER ORGANIZATIONS; VIOLATION OF CONSTITUTIONAL PROVISION ON RIGHT TO FORM ASSOCIATION. — It is difficult to reconcile the decision reached insofar as the aforesaid ban on political parties and civic, professional and other organizations is concerned with the explicit provision that the freedom to form associations or societies for purposes not contrary to law shall not be abridged. The right of an individual to join others of a like persuasion to pursue common objectives and to engage in activities is embraced within if not actually encouraged by the regime of liberty ordained by the Constitution. ID.; ID.; ID.; ID.; ID.; AMENDMENT PROPER. — I find merit in the plea of petitioners to annul Sec. 8(a) R.A. 6132 regarding the ban on political parties and civic, professional and other organizations. The constitutional provisions, more specifically the right to form associations. is prohibited by said Sec. 8(a) R.A. No 6132. The infirmity of this ban is thus apparent on its face. ID.; ID.; ID.; ID.; ID.; INVALID. — The final proviso in Sec. 8(a) R.A. No. 6132 forbids any construction that would in any wise "impair or abridge the freedom of civic, political, religious, professional, trade organization or organized groups of whatever nature to disseminate information about, or arouse public interest in, the forthcoming Constitutional Convention, or to advocate constitutional reforms, programs, policies or proposals for amendment of the present Constitution, and no prohibition contained herein shall limit or curtail the right of their members, as long as they act individually, to support or oppose any candidate for delegate to the Constitutional Convention." It is regrettable that such an explicit recognition of what cannot be forbidden consistently with the constitutional guarantees of freedom of expression and freedom of association falls short of according full respect to what is thus commanded by the fundamental law, as they are precluded by the very same Act from giving aid or support precisely to the very individuals who can carry out whatever constitutional reforms, programs, policies or proposals for amendment they might advocate. As thus viewed, the conviction I entertain as to its lack of validity is further strengthened and fortified. ID.; ID.; ID.; ID.; ID.; NO CLEAR AND PRESENT DANGER OF EVIL PARTISANSHIP. — The assumption would appear to be that there is a clear and present danger of grave substantive evil of partisanship running not unless political parties are thus restrained. It would appear though that what prompted such a ban is to assure that the present majority party would not continue to play its dominant rule in the political life of the nation. This is to lose sight of the fact that in the

6.

7.

national elections of 1946, 1953, 1961 and 1965, the presidency was won by the opposition candidates. The national election for senators alone of 1951 was a complete sweep of the field by the minority party. The result of the plebiscite in the two proposed amendments in 1967 indicate unmistakably that the people can make their wishes prevail. There is thus no assurance that the mere identification with party labels would automatically insure the success of a candidacy. ID.; ID.; ID.; ID.; ID.; POLITICAL ACTIVITY. — It is not easy to yield assent to the proposition that on a matter so essentially political as the amendment or revision of an existing Constitution, political parties or political groups are to be denied the opportunity of launching the candidacy of their choice. It is to carry the essential process of making the government responsive to the will of the people and that changes, if desired, may be attained by peaceful means, one step farther to recognize and to implement the right of every political group to select the candidates who, by their election, could translate into actuality their hopes for the fundamental law that the times demand. ID.; ID.; ID.; ID.; ID.; POLITICAL ACTIVITY OF ASSOCIATIONS ESSENTIAL. — It could very well happen then, in not a few cases, assuming the strength of political parties, that a candidate thus favored is sure of emerging the victor. What is thus sought to be accomplished to guard against the evil of party spirit prevailing could very well be doomed to futility. The high hopes entertained by the articulate and vocal groups of young people, intellectuals and workers, may not be realized. The result would be that this unorthodox and novel provision could assume the character of a tease, an illusion like a magnificent bequest in the pauper's will. ID.; ID.; ID.; ID.; ID.; CASE OF GONZALES VS. COMELEC DISTINGUISHED FROM INSTANT CASE. — What survived the test of constitutional validity in the case of Gonzales vs. Comelec is the prohibition for any political party, political committee or political group to nominate candidates for any elective public office voted for at large earlier than 150 days immediately preceding elections and for any other public office earlier than 90 days immediately preceding such election. The challenged provision in the two instant petitions however, goes much farther. Political parties or any other organization or organized group are precluded from selecting and supporting candidates for delegates to the Constitutional Convention. This is to enter a forbidden domain, Congress trespassing on a field rightfully assumed to be within the sphere of liberty. Thus, I am unable to conclude that our previous decision in Gonzales vs. Comelec which already was indicative of the cautious and hesitant approach to lending its approval to what otherwise are invasions of vital constitutional safeguards to freedoms or belief, of expression, and of association lends support to the decision reached by the minority insofar as this challenged provision is concerned. BARREDO, J., concurring and dissenting:

1.

CONSTITUTIONAL LAW; CONSTITUTIONAL COVENTION; CANDIDATES FOR DELEGATES THERETO; BAN AGAINST POLITICAL PARTIES AND OTHER ORGANIZATIONS. — While the reasons adduced in the ban on political parties to nominate and support their own candidates may be reasonable the same do not obtain with respect to nonpolitical organizations which is a deceptive device to preserve the built-in advantages of political parties while crippling completely the other kinds of associations. To equalize the campaigning forces the ban should be imposed only against political parties considering that the activities and manners of operation of said party made necessary the imposition thereof. Notwithstanding R.A. 6132 regarding the methods of 18

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2.

3.

campaign nor its provisions intended to minimize participation of political parties in the process of voting, counting of votes and canvassing of the results, a candidate without or little political party connections cannot overcome the advantages of candidates more or less connected with political parties as long as the right to form other associations and the right of these associations to campaign for their candidates are denied. ID.; ID.; ID.; ID.; ADVERSE EFFECT ON RIGHT OF SUFFRAGE. — The right of suffrage which is the corner stone of any democracy like ours is meaningless when the right to campaign in any election therein is unreasonably and unnecessarily curtailed, restrained or hampered, as is being done under the statute in dispute. ID.; ID.; ID.; ID.; BAN AGAINST POLITICAL PARTIES SEPARATE FROM THAT AGAINST OTHER ASSOCIATIONS. — Contrary to that of the majority, that as Section 8(a) stands and taking into account its genesis, the ban against political parties is separable from that against other associations within the contemplation of Section 21 of the Act which expressly refers to the separability of the application thereof to any "persons, groups or circumstances."

DECISION MAKASIAR, J p:

On August 24, 1970, Congress, acting as a legislative body, enacted Republic Act No. 6132, implementing Resolutions Nos. 2 and 4, and expressly repealing R.A. No. 4914. 3 Petitioner Raul M. Gonzales assails the validity of the entire law as well as the particular provisions embodied in Sections 2, 4, 5, and par. 1 of 8(a). Petitioner Manuel B. Imbong impugns the constitutionality of only par. 1 of Sec. 8 (a) of said R.A. No. 6132 practically on the same grounds advanced by petitioner Gonzales. I The validity of Sec. 4 of R.A. No. 6132, which considers all public officers and employees, whether elective or appointive, including members of the Armed Forces of the Philippines, as well as officers and employees of corporations or enterprises of the government, as resigned from the date of the filing of their certificates of candidacy, was recently sustained by this Court, on the grounds, inter alia, that the same is merely an application of and in consonance with the prohibition in Sec. 2 of Art. XII of the Constitution and that it does not constitute a denial of due process or of the equal protection of the law. Likewise, the constitutionality of paragraph 2 of Sec. 8(a) of R.A. No. 6132 was upheld. 4 II

These two separate but related petitions for declaratory relief were filed pursuant to Sec. 19 of R.A. No. 6132 by petitioners Manuel B. Imbong and Raul M. Gonzales, both members of the Bar, taxpayers and interested in running as candidates for delegates to the Constitutional Convention. Both impugn the constitutionality of R.A. No. 6132, claiming during the oral argument that it prejudices their rights as such candidates. After the Solicitor General had filed answers in behalf the respondents, hearings were held at which the petitioners and the amici curiae, namely Senator Lorenzo Tañada, Senator Arturo Tolentino, Senator Jovito Salonga, and Senator Emmanuel Pelaez argued orally. It will be recalled that on March 16, 1967, Congress, acting as a Constituent Assembly pursuant to Art. XV of the Constitution, passed Resolution No. 2 which among others called for a Constitutional Convention to propose constitutional amendments to be composed of two delegates from each representative district who shall have the same qualifications as those of Congressmen, to be elected on the second Tuesday of November, 1970 in accordance with the Revised Election Code.

Without first considering the validity of its specific provisions, we sustain the constitutionality of the enactment of R.A. No. 6132 by Congress acting as a legislative body in the exercise of its broad lawmaking authority, and not as a Constituent Assembly, because — 1.

2.

After the adoption of said Res. No. 2 in 1967 but before the November elections of that year, Congress, acting as a legislative body, enacted Republic Act No. 4914implementing the aforesaid Resolution No. 2 and practically restating in toto the provisions of said Resolution No. 2. On June 17, 1969, Congress, also acting as a Constituent Assembly, passed Resolution No. 4 amending the aforesaid Resolution No. 2 of March 16, 1967 by providing that the convention "shall be composed of 320 delegates apportioned among the existing representative districts according to the number of their respective inhabitants: Provided, that a representative district shall be entitled to at least two delegates, who shall have the same qualifications as those required of members of the House of Representatives, " 1 "and that any other details relating to the specific apportionment of delegates, election of delegates to, and the holding of, the Constitutional Convention shall be embodied in an implementing legislation: Provided, that it shall not be inconsistent with the provisions of this Resolution. " 2

3.

Congress, when acting as a Constituent Assembly pursuant to Art. XV of the Constitution, has full and plenary authority to propose Constitutional amendments or to call a convention for the purpose, by a three-fourths vote of each House in joint session assembled but voting separately. Resolutions Nos. 2 and 4 calling for a constitutional convention were passed by the required three-fourths vote. The grant to Congress as a Constituent Assembly of such plenary authority to call a constitutional convention includes, by virtue of the doctrine of necessary implication, all other powers essential to the effective exercise of the principal power granted, such as the power to fix the qualifications, number, apportionment, and compensation of the delegates as well as appropriation of funds to meet the expenses for the election of delegates and for the operation of the Constitutional Convention itself, as well as all other implementing details indispensable to a fruitful convention. Resolutions Nos. 2 and 4 already embody the above-mentioned details, except the appropriation of funds. While the authority to call a constitutional convention is vested by the present Constitution solely and exclusively in Congress acting as a Constituent Assembly, the power to enact the implementing details, which are now contained in Resolutions Nos. 2 and 4 as well as in R.A. No. 6132, does not exclusively pertain to Congress acting as a 19

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4.

5.

Constituent Assembly. Such implementing details are matters within the competence of Congress in the exercise of its comprehensive legislative power, which power encompasses all matters not expressly or by necessary implication withdrawn or removed by the Constitution from the ambit of legislative action. And as long as such statutory details do not clash with any specific provision of the Constitution, they are valid. Consequently, when Congress, acting as a Constituent Assembly, omits to provide for such implementing details after calling a constitutional convention, Congress, acting as a legislative body, can enact the necessary implementing legislation to fill in the gaps, which authority is expressly recognized in Sec. 8 of Res. No. 2 as amended by Res. No. 4. The fact that a bill providing for such implementing details may be vetoed by the President is no argument against conceding such power in Congress as a legislative body nor present any difficulty; for it is not irremediable as Congress can override the Presidential veto or Congress can reconvene as a Constituent Assembly and adopt a resolution prescribing the required implementing details. III

Petitioner Raul M. Gonzales asserts that Sec. 2 on the apportionment of delegates is not in accordance with proportional representation and therefore violates the Constitution and the intent of the law itself, without pinpointing any specific provision of the Constitution with which it collides. Unlike in the apportionment of representative districts, the Constitution does not expressly or impliedly require such apportionment of delegates to the convention on the basis of population in each congressional district. Congress, sitting as a Constituent Assembly, may constitutionally allocate one delegate for each congressional district or for each province, for reasons of economy and to avoid having an unwieldy convention. If the framers of the present Constitution wanted the apportionment of delegates to the convention to be based on the number of inhabitants in each representative district, they would have done so in so many words as they did in relation to the apportionment of the representative districts. 5

apportionment of delegates. The Director of the Bureau of Census and Statistics himself, in a letter to Senator Pelaez dated July 30, 1970, stated that "on the basis of the preliminary count of the population, we have computed the distribution of delegates to the Constitutional Convention based on Senate Bill 77 (p. 2 lines 5 to 32 and p. 3 line 12), which is a fair and an equitable method of distributing the delegates pursuant to the provisions of the joint Resolution of both Houses No. 2, as amended. Upon your request at the session of the Senate-House Conference Committee meeting last night, we are submitting herewith the results of the computation on the basis of the above-stated method." Even if such latest census were a preliminary census, the same could still be a valid basis for such apportionment. 6 The fact that the lone and small congressional district of Batanes, may be over-represented, because it is allotted two delegates by R.A. No. 6132 despite the fact that it has a population very much less than several other congressional districts, each of which is also allotted only two delegates, and therefore under-represented vis-a-vis Batanes alone, does not vitiate the apportionment as not effecting proportional representation. Absolute proportional apportionment is not required and is not possible when based on the number of inhabitants, for the population census cannot be accurate nor complete, dependent as it is on the diligence of the census takers, aggravated by the constant movement of population, as well as daily death and birth. It is enough that the basis employed is reasonable and the resulting apportionment is substantially proportional. Resolution No. 4 fixed a minimum of two delegates for a congressional district. While there may be other formulas for a reasonable apportionment, considering the evidence submitted to Congress by the Bureau of Census and Statistics, we are not prepared to rule that the computation formula adopted by Congress for proportional representation as directed in Res. No. 4 is unreasonable and that the apportionment provided in R.A. No. 6132 does not constitute a substantially proportional representation. In the Macias case, relied on by petitioner Gonzales, the apportionment law, which was nullified as unconstitutional, granted more representatives to a province with less population than the provinces with more inhabitants. Such is not the case here, where under Sec. 2 of R.A. No. 6132 Batanes is allotted only two delegates, which number is equal to the number of delegates accorded other provinces with more population. The present petitions therefore do not present facts which fit the mould of the doctrine in the case of Macias, et al. vs. Comelec, supra.

The apportionment provided for in Sec. 2 of R.A. No. 6132 cannot possibly conflict with its own intent expressed therein; for it merely obeyed and implemented the intent of Congress acting as a Constituent Assembly expressed in Sec. 1 of Res. No. 4, which provides that the 320 delegates should be apportioned among the existing representative districts according to the number of their respective inhabitants, but fixing a minimum of at least two delegates for a representative district. The presumption is that the factual predicate, the latest available official population census, for such apportionment was presented to Congress, which, accordingly employed a formula for the necessary computation to effect the desired proportional representation.

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

The records of the proceedings on Senate Bill No. 77 sponsored by Senator Pelaez which is now R.A. No. 6132, submitted to this Tribunal by the amici curiae, show that it based its apportionment of the delegates on the 1970 official preliminary population census taken by the Bureau of Census and Statistics from May 6 to June 30, 1970; and that Congress adopted the formula to effect a reasonable

Sec. 5 of R.A. 6132 is attacked on the ground that it is an undue deprivation of liberty without due process of law and denies the equal protection of the laws. Said Sec. 5 disqualifies any elected delegate from running "for any public office in any

IV

20

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CONSTI 1 election" or from assuming "any appointive office or position in any branch of the government until after the final adjournment of the Constitutional Convention." That the citizen does not have any inherent nor natural right to a public office, is axiomatic under our constitutional system. The State through its Constitution or legislative body, can create an office and define the qualifications and disqualifications therefor as well as impose inhibitions on a public officer. Consequently, only those with qualifications and who do not fall under any constitutional or statutory inhibition can be validly elected or appointed to a public office. The obvious reason for the questioned inhibition, is to immunize the delegates from the perverting influence of self-interest, party interest or vested interest and to insure that he dedicates all his time to performing solely in the interest of the nation his high and well-nigh sacred function of formulating the supreme law of the land, which may endure for generations and which cannot easily be changed like an ordinary statute. With the disqualification embodied in Sec. 5, the delegate will not utilize his position as a bargaining leverage for concessions in the form of an elective or appointive office as long as the convention has not finally adjourned. The appointing authority may, by his appointing power, entice votes for his own proposals. Not love for self, but love for country must always motivate his actuations as delegate; otherwise the several provisions of the new Constitution may only satisfy individual or special interests, subversive of the welfare of the general citizenry. It should be stressed that the disqualification is not permanent but only temporary — only to continue until the final adjournment of the convention which may not extend beyond one year. The convention that framed the present Constitution finished its task in approximately seven months — from July 30, 1934 to February 8, 1935. As admitted by petitioner Gonzales, this inhibition finds analogy in the constitutional provision prohibiting a member of Congress, during the time for which he was elected, from being appointed to any civil office which may have been created or the emolument whereof shall have been increased while he was a member of the Congress. (Sec. 16, Art VI, Phil. Constitution.) As observed by the Solicitor General in his Answer, the overriding objective of the challenged disqualification, temporary in nature, is to compel the elected delegates to serve in full their term as such and to devote all their time to the convention, pursuant to their representation and commitment to the people; otherwise, his seat in the convention will be vacant and his constituents will be deprived of a voice in the convention. The inhibition is likewise "designed to prevent popular political figures from controlling elections or positions. Also it is a brake on the appointing power, to curtail the latter's desire to 'raid' the convention of 'talents' or attempt to control the convention." (p. 10, Answer in L-32443.) Thus the challenged disqualification prescribed in Sec. 5 of R.A. No. 6132 is a valid limitation on the right to public office pursuant to state police power as it is reasonable and not arbitrary. The discrimination under Sec. 5 against delegates to the Constitutional Convention is likewise constitutional; for it is based on a substantial distinction which makes for real differences, is germane to the purposes of the law, and applies to all members of the same class. 7 The function of a delegate is more far-reaching and its effect more enduring than that of any ordinary legislator or any other public officer. A delegate shapes the fundamental law of the land which delineates the essential nature of the government, its basic organization and powers, defines the liberties of the people, and controls all other laws. Unlike ordinary statutes, constitutional amendments cannot be changed in one or two years. No other public officer

possesses such a power, not even the members of Congress unless they themselves propose constitutional amendments when acting as a Constituent Assembly pursuant to Art. XV of the Constitution. The classification, therefore, is neither whimsical nor repugnant to the sense of justice of the community. As heretofore intimated, the inhibition is relevant to the object of the law, which is to insure that the proposed amendments are meaningful to the masses of our people and not designed for the enhancement of selfishness, greed, corruption, or injustice. Lastly, the disqualification applies to all the delegates to the convention who will be elected on the second Tuesday of November, 1970. V Paragraph 1, Sec. 8(a) of R.A. No. 6132 is impugned by both petitioners as violative of the constitutional guarantees of due process, equal protection of the laws, freedom of expression, freedom of assembly and freedom of association. This Court ruled last year that the guarantees of due process, equal protection of the laws, peaceful assembly, free expression, and the right of association are neither absolute nor illimitable rights; they are always subject to the pervasive and dominant police power of the State and may be lawfully abridged to serve appropriate and important public interests. 8 In said Gonzales vs. Comelec case, the Court applied the clear and present danger test to determine whether a statute which trenches upon the aforesaid constitutional guarantees, is a legitimate exercise of police power. 9 Paragraph 1 of Sec. 8(a), R.A. No. 6132 prohibits: 1.

2.

any candidate for delegate to the convention. (a) from representing, or (b) allowing himself to be represented as being a candidate of any political party or any other organization; and any political party, political group, political committee, civic, religious, professional or other organizations or organized group of whatever nature from. (a) intervening in the nomination of any such candidate or in the filing of his certificate, or (b) from giving aid or support directly or indirectly, material or otherwise, favorable to or against his campaign for election.

The ban against all political parties or organized groups of whatever nature contained in par. 1 of Sec. 8(a), is confined to party or organization support or assistance, whether material, moral, emotional or otherwise. The very Sec. 8(a) in its provisos permits the candidate to utilize in his campaign the help of the members of his family within the fourth civil degree of consanguinity or affinity, and a campaign staff composed of not more than one for every ten precincts in his district. It allows the full exercise of his freedom of expression and his right to peaceful assembly, because he cannot be denied any permit to hold a public meeting on the pretext that the provision of said section may or will be violated. The right of a member of any political party or association to support him or oppose his opponent is preserved as long as such member acts individually. The very party or organization to which he may belong or which may be in sympathy with his 21

CONSTI 1 cause or program of reforms, is guaranteed the right to disseminate information about, or to arouse public interest in, or to advocate for constitutional reforms, programs, policies or constitutional proposals for amendments. It is therefore patent that the restriction contained in Sec. 8 (a) is so narrow that the basic constitutional rights themselves remain substantially intact and inviolate. And it is therefore a valid infringement of the aforesaid constitutional guarantees invoked by petitioners. In the aforesaid case of Gonzales vs. Comelec, supra, this Court unanimously sustained the validity of the limitation on the period for nomination of candidates in Sec. 50-A of R.A. No. 4880, thus: "The prohibition of too early nomination of candidates presents a question that is not too formidable in character. According to the act: 'It shall be unlawful for any political party, political committee, or political group to nominate candidates for any elective public office voted for at large earlier than one hundred and fifty days immediately preceding an election, and for any other elective public office earlier than ninety days immediately preceding an election. "The right of association is affected. Political parties have less freedom as to the time during which they may nominate candidates; the curtailment is not such, however, as to render meaningless such a basic right. Their scope of legitimate activities, save this one, is not unduly narrowed. Neither is there infringement of their freedom to assemble. They can do so, but not for such a purpose. We sustain its validity. We do so unanimously." 10 In said Gonzales vs. Comelec case, this Court likewise held that the period for the conduct of an election campaign or partisan political activity may be limited without offending the aforementioned constitutional guarantees as the same is designed also to prevent a "clear and present danger of a substantive evil, the debasement of the electoral process." 11 Even if the partisan activity consists of (a) forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a party or candidate; (b) holding political conventions, caucuses, conferences, meetings, rallies, parades or other similar assemblies for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against any candidate or party; and (c) giving, soliciting, or receiving contributions for election campaign either directly or indirectly, (Sec. 50-B, pars. (a), (b), and (c), R.A. 4880), the abridgment was still affirmed as constitutional by six members of this Court, which could not "ignore . . . the legislative declaration that its enactment was in response to a serious substantive evil affecting the electoral process, not merely in danger of happening, but actually in existence, and likely to continue unless curbed or remedied. To assert otherwise would be to close one's eyes to the reality of the situation." 12 ; Likewise, because four members dissented, this Court in said case of Gonzales vs. Comelec, supra, failed to muster the required eight votes to declare as unconstitutional the limitation on the period for (a) making speeches,

1ST SET – 9 CASES announcements or commentaries or holding interviews for or against the election of any party or candidate for public office; (b) publishing or distributing campaign literature or materials; and (c) directly or indirectly soliciting votes and/or undertaking any campaign or propaganda for or against any candidate or party specified in Sec. 50-B, pars. (c), (d) & (e) of R.A. 4880. 13 The debasement of the electoral process as a substantive evil exists today and is one of the major compelling interests that moved Congress into prescribing the total ban contained in par. 1 of Sec. 8(a) of R.A. No. 6132, to justify such ban. In the said Gonzales vs. Comelec case, this Court gave "due recognition to the legislative concern to cleanse, and if possible, render spotless, the electoral process," 14 impressed as it was by the explanation made by the author of R.A. No. 4880, Sen. Lorenzo Tañada, who appeared as amicus curiae, "that such provisions were deemed by the legislative body to be part and parcel of the necessary and appropriate response not merely to a clear and present danger but to the actual existence of a grave and substantive evil of excessive partisanship, dishonesty and corruption as well as violence that of late has marred election campaigns and partisan political activities in this country. He did invite our attention likewise to the well-settled doctrine that in the choice of remedies for an admitted malady requiring governmental action, on the legislature primarily rests the responsibility. Nor should the cure prescribed by it, unless clearly repugnant to fundamental rights, be ignored or disregarded." 15 But aside from the clear and imminent danger of the debasement of the electoral process, as conceded by Senator Pelaez, the basic motivation, according to Senate Majority Floor Leader Senator Arturo Tolentino, the sponsor of the Puyat-Tolentino amendment embodied in par. 1 of Sec. 8(a) of R.A. No. 6132, is to assure the candidates equal protection of the laws by according them equality of chances. 16 The primary purpose of the prohibition then is also to avert the clear and present danger of another substantive evil, the denial of the equal protection of the laws. The candidates must depend on their individual merits and not on the support of political parties or organizations. Senator Tolentino and Senator Salonga emphasized that under this provision, the poor candidate has an even chance as against the rich candidate. We are not prepared to disagree with them, because such a conclusion, predicated as it is on empirical logic, finds support in our recent political history and experience. Both Senators stressed that the independent candidate who wins in the election against a candidate of the major political parties, is a rare phenomenon in this country and the victory of an independent candidate mainly rests on his ability to match the resources, financial and otherwise, of the political parties or organizations supporting his opponent. This position is further strengthened by the principle that the guarantee of social justice under Sec. V, Art. II of the Constitution, includes the guarantee of equal opportunity, equality of political rights, and equality before the law enunciated by Mr. Justice Tuazon in the case Guido vs. Rural Progress Administration. 17 While it may be true that a party's support of a candidate is not wrong per se, it is equally true that Congress in the exercise of its broad law-making authority can declare certain acts as mala prohibita when justified by the exigencies of the times. One such act is the party or organization support proscribed in Sec. 8(a), which ban is a valid limitation on the freedom of association as well as expression, for the reasons aforestated. Senator Tolentino emphasized that "equality of chances may be better attained by banning all organization support." 18 22

CONSTI 1 The questioned par. 1 of Sec. 8(a) likewise can easily pass the balancing-of-interest test. 19 In the apt words of the Solicitor General: "It is to be noted that right now the nation is on the threshold of rewriting its Constitution in a hopeful endeavor to find a solution to the grave economic, social and political problems besetting the country. Instead of directly proposing the amendments, Congress has chosen to call a Constitutional Convention which shall have the task of fashioning a document that shall embody the aspirations and ideals of the people. Because what is to be amended is the fundamental law of the land, it is indispensable that the Constitutional Convention be composed of delegates truly representative of the people's will. Public welfare demands that the delegates should speak for the entire nation, and their voices be not those of a particular segment of the citizenry, or of a particular class or group of people, be they religious, political, civic or professional in character. Senator Pelaez, Chairman of the Senate Committee on Codes and Constitutional Amendments, eloquently stated that 'the function of a constitution is not to represent any one interest or set of interests, not to favor one group at the expense or disadvantage of the candidates — but to encompass all the interests that exist within our society and to blend them into one harmonious and balanced whole. For the constitutional system means, not the predominance of interests, but the harmonious balancing thereof.' "So that the purpose for calling the Constitutional Convention will not be defeated or frustrated, it is necessary that the delegates thereto be independent, beholden to no one but to God, country and conscience." xxx xxx xxx "The evil, therefore, which the law seeks to prevent lies in the election of delegates who, because they have been chosen with the aid and resources of organizations, cannot be expected to be sufficiently representative of the people. Such delegates could very well be the spokesmen of narrow political, religious or economic interest and not of the great majority of the people." 20 We likewise concur with the Solicitor General that the equal protection of the laws is not unduly subverted in par. 1 of Sec. 8(a); because it does not create any hostile discrimination against any party or group nor does it confer undue favor or privilege on an individual as heretofore stated. The discrimination applies to all organizations, whether political parties or social, civic, religious, or professional associations. The ban is germane to the objectives of the law, which are to avert the debasement of the electoral process and to attain real equality of chances among individual candidates and thereby make real the guarantee of equal protection of the laws.

1ST SET – 9 CASES The political parties and the other organized groups have built-in advantages because of their machinery and other facilities, which, the individual candidate who is without any organization support, does not have. The fact that the other civic or religious organizations cannot have a campaign machinery as efficient as that of a political party, does not vary the situation; because it still has that much built-in advantage as against the individual candidate without similar support. Moreover, these civic, religious and professional organization may band together to support common candidates, who advocate the reforms that these organizations champion and believe are imperative. This is admitted by petitioner Gonzales thru the letter of Senator Ganzon dated August 17, 1970 attached to his petition as Annex "D," wherein the Senator stated that his own "Timawa" group had agreed with the Liberal Party in Iloilo to support petitioner Gonzales and two others as their candidates for the convention, which organized support is nullified by the questioned ban. Senator Ganzon stressed that "without the group moving and working in joint collective effort" they cannot "exercise effective control and supervision over our leaders — the Women's League, the area commanders, etc."; but with their joining with the LP's they "could have presented a solid front with very bright chances of capturing all seats." The civic associations other than political parties cannot with reason insist that they should be exempted from the ban; because then by such exemption they would be free to utilize the facilities of the campaign machineries which they are denying to the political parties. Whenever an organization engages is a political activity, as in this campaign for election of delegates to the Constitutional Convention, to that extent it partakes of the nature of a political organization. This, despite the fact that the Constitution and by-laws of such civic, religious or professional associations usually prohibit the association from engaging in partisan political activity or supporting any candidate for an elective office. Hence, they must likewise respect the ban. The freedom of association also implies the liberty not to associate or join with others or join any existing organization. A person may run independently on his own merits without need of catering to a political party or any other association for support. And he, as much as the candidate whose candidacy does not evoke sympathy from any political party or organized group, must be afforded equal chances. As emphasized by Senators Tolentino and Salonga, this ban is to assure equal chances to a candidate with talent and imbued with patriotism as well as nobility of purpose, so that the country can utilize their services if elected. Impressed as We are by the eloquent and masterly exposition of Senator Tañada for the invalidation of par. 1 of Sec. 8(a) of R.A. No. 6132, demonstrating once again his deep concern for the preservation of our civil liberties enshrined in the Bill of Rights, We are not persuaded to entertain the belief that the challenged ban transcends the limits of constitutional invasion of such cherished immunities. WHEREFORE, the prayers in both petitions are hereby denied and R.A. No. 6132 including Secs. 2, 4, 5, and 8(a), paragraph 1, thereof, cannot be declared unconstitutional. Without costs. ||| (Imbong v. Ferrer, G.R. No. L-32432, L-32443, [September 11, 1970])

23

1ST SET – 9 CASES

CONSTI 1

3.

4.

5.

[G.R. No. L-28196. November 9, 1967.] RAMON A. GONZALES, petitioner, vs. COMMISSION ON DIRECTOR OF PRINTING, and AUDITOR GENERAL, respondents.

ELECTIONS,

[G.R. No. L-28224. November 9, 1967.] PHILIPPINE CONSTITUTION ASSOCIATION COMMISSION ON ELECTIONS, respondent.

(PHILCONSA), petitioner, vs. 6.

SYLLABUS 1.

2.

CONSTITUTIONAL LAW; POWER OF JUDICIAL DEPARTMENT TO DETERMINE PROPER ALLOCATION OF POWERS BETWEEN SEVERAL DEPARTMENTS. — 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" (Angara vs. Electoral Commission, 63 Phil., 139). ID.; POWER TO PASS UPON VALIDITY OF CONSTITUTIONAL AMENDMENT. — In Mabanag vs. Lopez Vito, (78 Phil., 1), the Court declined to pass upon the

7.

8.

question whether or not a given number of votes cast in Congress in favor of a proposed amendment to the Constitution satisfied the three-fourths vote requirement of the fundamental law, characterizing the issue as a political one. The force of this precedent has been weakened by Suanes vs. Chief Accountant of the Senate (81 Phil. 818), Avelino vs. Cuenco (1-12851, March 4, and 14, 1949), Tañada vs. Cuenco (L-10520, Feb. 18, 1957), and Macias vs. Commission on Elections, 58 Off. Gaz; (51) 8388. The Court rejected the theory, advanced in these four cases, that the issues therein raised were political questions, the determination of which, is beyond judicial review. ID.; NATURE OF POWER TO AMEND THE CONSTITUTION. — The power to amend the Constitution or to propose, amendments thereto is not included in the general grant of legislative powers to Congress (Sec. 1, Art, VI, Const.) It is part of the inherent powers of the people - as the repository of sovereignty in a republican state, such as ours (Sec. 1, Art. II, Const.) — to make and hence, to amend their own Fundamental Law. Congress may propose amendments to the Constitution merely because the same explicit]y grants such power (Sec. 1, Art. XV, Const.). 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, for their authority does not emanate from the Constitution - they are the very source of all powers of government, including the Constitution itself. ID.; POWER OF APPORTIONMENT OF CONGRESSIONAL DISTRICTS. — It is not true 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 3040 (Approved, June 17, 1961) purporting to make said apportionment. This Act was, however, declared unconstitutional, on the ground that the apportionment therein undertaken had not been made according to the number of inhabitants of the different provinces of the Philippines (Macias vs. Commission on Elections, supra). ID.; ID.; FAILURE OF CONGRESS TO MAKE APPORTIONMENT DID NOT MAKE CONGRESS ILLEGAL OR UNCONSTITUTIONAL. — The fact that Congress is under legal obligation to make apportionment as required under the Constitution, does not justify the conclusion that failure to comply with such obligation rendered Congress illegal or unconstitutional, or that its Members have become de facto officers. The effect of the omission has been envisioned ia the Constitution (Sec. 5, Art. VI, Const.). The provision does not support the view that, upon the expiration of the period to make their apportionment, a Congress which falls to make it is dissolved or becomes illegal. On the contrary it implies necessarily that Congress shall continue to function with representative districts existing at the time of the expiration of said period. ID.; ID.; NO VALID APPORTIONMENT SINCE ADOPTION OF CONSTITUTION IN 1935; EFFECT THEREOF. — Since the adoption of the Constitution in 1935, Congress has not made a valid apportionment as required in the fundamental law. ID.; ID.; SENATE AND HOUSE CONSTITUTED ON DECEMBER 30, 1961 WERE DE JURE BODIES. — The Senate and House of Representatives organized or constituted on December 30, 1961 were de jure bodies and the Members thereof were de jure officers. ID.; ID.; FAILURE OF CONGRESS TO DISCHARGE MANDATORY DUTY. — Neither our political law, in general, 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. 24

1ST SET – 9 CASES

CONSTI 1 9.

10.

11.

12.

13. 14.

15.

16.

ID.; ID.; PROVISIONS OF ELECTION LAW RELATIVE TO ELECTION OF MEMBERS OF CONGRESS IN 1965, NOT REPEALED. — The provisions 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 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 cannot 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. ID.; DE FACTO DOCTRINE REASON THEREOF. — The main reason 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 (Lino Luna vs. Rodriquez, et al., 37 Phil., 192 and other cases). 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 (Torres vs. Ribo, 81 Phil., 50). One can imagine the great inconvenience, hardships and evils that would result in the absence of the de facto doctrine. ID.; ID.; TITLE OF DE FACTO OFFICER CANNOT BE ASSAILED COLLATERALLY. — The title of a de facto officer cannot be assailed collaterally (Nacionalista Party vs. De Vera, 85, Phil., 126). It may not be contested except directly, by quo warranto proceedings. ID.; ID.; VALIDITY OF ACTS OF DE FACTO OFFICER CANNOT BE ASSAILED COLLATERALLY. — Neither may the validity of his acts be questioned upon the ground that he is merely a de facto officer (People vs. Gabitanan, 43 Off. Gaz. 3211). And the reasons are obvious: (1) it would be an indirect inquiry into the title to toe 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. ID.; MEANING OF THE TERM "OR". — The term "or" has, oftentimes, been held to mean "and," or vice-versa, when the spirit or context of the law warrants it (50 Am. Jur. 267-268). ID.; POWER OF CONGRESS TO APPROVE RESOLUTIONS AMENDING THE CONSTITUTION. — There is nothing in the Constitution or in the history thereof 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. Neither has any plausible reason been advanced to justify the denial of authority to adopt said resolutions on the same day. ID.; MEANING OF TERM "ELECTION" IN ART. XV, CONSTITUTION. — 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. ID.; LEGISLATION CANNOT BE NULLIFIED FOR FAILURE OF CERTAIN SECTORS TO DISCUSS IT SUFFICIENTLY. — A legislation cannot 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. 17. ID.; PUBLIC KNOWLEDGE OF PROPOSED AMENDMENTS. — A considerable portion of the people may not know how over 160 of the proposed maximum of representative districts are actually apportioned by RBH No. 1 among the provinces in the Philippines. It is not impossible however, that they are not interested in the detail 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 the contested resolutions as printed in full on the back of the ballots they will use. 18. ID.; JUDICIAL POWER TO NULLIFY EXECUTIVE OR LEGISLATIVE ACTS, NOT VIOLATIVE OF PRINCIPLE OF SEPARATION OF POWERS. — 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 law is not in derogation of the principle of separation of powers, pursuant to which each department is supreme within its own sphere. 19. ID.; DETERMINATION OF CONDITIONS FOR SUBMISSION OF AMENDMENTS TO PEOPLE, PURELY LEGISLATIVE. — 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. MAKALINTAL, J., concurring: 1.

2.

CONSTITUTIONAL LAW; AMENDMENTS TO THE CONSTITUTION; RATIFICATION BY THE PEOPLE; SECTIONS 2 AND 4 OF REPUBLIC ACT 4913 IS SUFFICIENT COMPLIANCE WITH THE REQUIREMENTS OF THE LAW. — Considered in itself and without reference to extraneous factors and circumstances, the manner prescribed in Sections 2 and 4 of R.A. 4913 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 governmental 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. ID., ID.; ID.; SUBMISSION OF AMENDMENTS TO THE PEOPLE AT A GENERAL ELECTION. — 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 have on this provision, namely, that it means only a special election.

BENGZON, J.P., J., concurring: 1.

CONSTITUTIONAL LAW; AMENDMENTS TO THE CONSTITUTION; REPUBLIC ACT 49138. — 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 25

1ST SET – 9 CASES

CONSTI 1

2.

3.

4.

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. ID.; ID.; ID.; RATIFICATION BY THE PEOPLE IN A SPECIAL ELECTION FOR THE PURPOSE NOT SPECIFICALLY REQUIRED. — Nowhere in Sec. 1, Art. XV is it required 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. No prohibition being found in the plain terms of the Constitution, none should be inferred. Had the framers of the 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. ID.; ID.; ID.; STATUTE WHICH PROVIDES FOR HOW AND WHEN THE AMENDMENTS ALREADY PROPOSED ARE GOING TO BE VOTED UPON AND APPROPRIATES FUNDS TO CARRY OUT ITS PROVISIONS DOES NOT NEED THE 3/4 VOTE OF CONGRESS IN JOINT SESSION. — 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 enactedRepublic 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. ID.; ID.; ID.; STATUTE WHICH PROVIDES SUFFICIENT OPPORTUNITY TO THE VOTERS TO CAST AN INTELLIGENT VOTE ON THE PROPOSALS, NOT OFFENSIVE AGAINST THE DUE PROCESS CLAUSE. — Republic Act 4913 does not offend 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 Oct. 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

5.

6.

7.

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. ID.; ID.; RATIFICATION OF; VOTERS TO BE SUFFICIENTLY INFORMED OF THE PROPOSED AMENDMENTS TO INTELLIGENTLY VOTE THEREON; METHOD ADOPTED IN THE CASE AT BAR NOT CONSTITUTIONALLY DEFECTIVE. — Nonprinting 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 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. ID.; LEGISLATIVE DEPARTMENT; POWER OF CONGRESS TO PROPOSE AMENDMENTS OR CALL A CONVENTION FOR THAT PURPOSE. — Sec. 1, 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. and 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 caused 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. ID.; ID.; MEMBERS OF CONGRESS; REPRESENTATION ACCORDING TO DISTRICTS; STATUS QUO RETAINED IN THE ABSENCE OF APPORTIONMENT REQUIRED BY LAW. — 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 cases, rendering legal and de jure the status quo.

SANCHEZ J., concurring: 1.

CONSTITUTIONAL LAW; AMENDMENTS TO THE CONSTITUTION; AN EXPRESSION OF THE PEOPLE'S SOVEREIGN WILL. — 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. 26

1ST SET – 9 CASES

CONSTI 1 2.

3.

4.

ID.; ID.; RATIFICATION BY THE PEOPLE; SUBMISSION OF PROPOSED AMENDMENTS; GOVERNMENT TO EXERT EFFORTS TO INFORM EVERY CITIZEN OF THE PROVISIONS TO BE AMENDED. — The words "submitted to the people for 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 — mean that it can only be amended by the people expressing themselves according to the procedures ordained by the Constitution. Therefore, amendments must be fairly laid before the people for their blessing or spurning. The people are not to be mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunity to mull over the original provisions, compare them with the proposed amendments and try to reach a conclusion as the dictates of their conscience suggest, free from the incubus of extraneous or possibly insidious influences. We believe the word "submitted" can only mean that the government, within its maximum capabilities, should strain every effort to inform every citizen of the provisions to be amended, and the proposed amendments and the meaning, nature and effects thereof. 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.] ID.; ID.; ID.; ID.; NO PROPER SUBMISSION WHERE PEOPLE NOT SUFFICIENTLY INFORMED OF THE AMENDMENT TO BE VOTED UPON. — 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, it cannot be said that in accordance with the constitutional mandate, "the amendments are submitted to the people for their ratification." ID.; ID.; ID.; ID.; RA 4913 VIOLATIVE OF THE CONSTITUTION FOR PRESCRIBING A PROCEDURE WHICH DOES NOT EFFECTIVELY BRING THE MATTER TO THE PEOPLE. — When the voters do not have the benefit of proper notice of the proposed amendments thru dissemination by publication in extenso and people do not have at hand the necessary data on which to base their stand on the merits and demerits of said amendments, there is no proper submission of the proposed constitutional amendments within the meaning and intendment of Section 1, Article XV of the Constitution.

REYES, J.B.L., J., concurring: 1.

CONSTITUTIONAL LAW; AMENDMENTS TO THE CONSTITUTION; RATIFICATION BY 1. THE PEOPLE; SUBMISSION OF THE PROPOSED AMENDMENTS AT A SPECIAL ELECTION CALLED FOR THE PURPOSE. — 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 2. 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.

FERNANDO, J., concurring: 1.

CONSTITUTIONAL LAW; AMENDMENTS TO THE CONSTITUTION; JUDICIAL INQUIRY AS TO THE AMENDING PROCESS APPROPRIATE TO ASSURE UTMOST COMPLIANCE WITH THE CONSTITUTIONAL REQUIREMENTS. — In Mabanag v. Lopez Vito, 78 Phil. 1 (1947) this Court through Justice Tuazon followed Coleman v. Miller, 307 US 433 (1939) 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 am 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 soul-searching 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.

DECISION CONCEPCION, C.J p: G.R. No. L-28196 is an original action for prohibition, with preliminary injunction. Petitioner therein prays for judgment: 1)

2)

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 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: R.B.H. (Resolution of Both Houses) No. 1, proposing 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; 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 27

CONSTI 1 3.

1ST SET – 9 CASES

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.

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 power between the several departments and among the integral or constitutional constituent units thereof."

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 Nos. 1 and 3 be submitted, for approval by the people, at the general elections which shall be held on November 14, 1967.

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. 9 In the first, we held that the officers and employees of the Senate Electoral Tribunal are under its supervision and control, not of that of the Senate President, as claimed by the latter; in the second, this Court proceeded to determine the number of Senators necessary for 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 nearly 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.

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 Elections 2 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 L-28224. 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 suit, 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 issues 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 nonpartisan 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 inoperational 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." 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

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 ours 11 — 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 the treaty-making power. In short, the issue whether or not a Resolution of Congress — acting as a constituent assembly — violates the Constitution, is essentially justiciable, not political, and, hence, subject to judicial review, and, to the extent that this view may be inconsistent with the stand taken in Mabanag vs. Lopez Vito, 16 the latter 28

CONSTI 1 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. 2.

3.

4.

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; Congress may adopt either one of two alternatives — propose amendments or call a convention therefor — but may not avail of both — that is to say, propose amendment and call a convention — at the same time; The election, in which proposals for amendments — 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 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

1ST SET – 9 CASES 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 a Republic Act No, 3040, 17 purporting to in 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 Constitutional 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 necessarilybefore 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 29

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CONSTI 1 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.

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.

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.

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 reason 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 position they hold, before dealing with them, 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 the great inconvenience, hardships and evils that would result in the absence of thede factodoctrine.

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 holders 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 we 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, in general, 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 provisions 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 Vice-President, 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

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 not of the parties in the aforementioned suit. Moreover, Judge Capistrano had not as yet, finished hearing the case, much less rendered a decision therein. No rights had vested in favor of any 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 the Republic Act No. 4913, are complete. Congress has nothing to do in connection therewith. The Court is, also, unanimous in holding that the objection under consideration is untenable. Alternatives Available 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 itcannot 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 been brought to our attention — supporting the conclusion drawn by theamicus curiae. In fact, the term "or" has, oftentimes, been held to mean "and," or viceversa, when the spirit or context of the law warrants it. 26

30

CONSTI 1 It is, also, noteworthy that R.B.H. Nos. 1 and 3 propose amendments to the constitutional provisions on Congress, to be submitted to the people for ratification onNovember 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 contested 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 is 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 nothing 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 threefourths 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." 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

1ST SET – 9 CASES appraisal of the merits and demerits of 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 officers. They do not deny the authority of Congress to choose either alternative, as implied in the term "election" used, without qualification, in the above-quoted 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; 31

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CONSTI 1 (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 distribution;" 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 amendments 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 twenty-second 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 in 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 the municipal and provincial office building and in each polling place not later than the twentysecond day of April, nineteen hundred and thirty-seven, and shall remain posted therein continually until after the termination of the plebiscite. At least ten copies of the 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 amendments, is of the following tenor:

Act

No.

517,

referring

to

the

1940

"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 omission 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 32

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CONSTI 1 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 the 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 ofRepublic 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 law 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 acting 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, dismissed, and the writs therein prayed for denied, without special pronouncement as to costs. It is so ordered. ||| (Gonzales v. COMELEC, G.R. No. L-28196, L-28224, [November 9, 1967])

[G.R. No. L-34150. October 16, 1971.] ARTURO M. TOLENTINO, petitioner, vs. COMMISSION ON ELECTIONS, and THE CHIEF ACCOUNTANT, THE AUDITOR, and THE DISBURSING OFFICER OF THE 1971 CONSTITUTIONAL CONVENTION, respondents, RAUL S. MANGLAPUS, JESUS G. BARRERA, PABLO S. TRILLANA III, VICTOR DE LA SERNA, MARCELO B. FERNAN, JOSE Y. FERIA, LEONARDO SIGUION REYNA, VICTOR F. ORTEGA, and JUAN V. BORRA, intervenors. SYLLABUS 1. POLITICAL LAW; JUDICIAL DEPARTMENT; DETERMINATION OF PROPER ALLOCATION OF POWERS IN GOVERNMENT. — As early as Angara vs. Electoral Commission (63 Phil. 139, 157), this Court — speaking through one of the leading members of the Constitutional Convention and a respected professor of Constitutional Law, Dr. Jose P. Laurel — declared that "the judicial department is the only constitutional organ which can called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof." 2. CONSTITUTIONAL LAW; AMENDMENTS TO CONSTITUTION; POWER TO AMEND OR PROPOSE AMENDMENTS VESTED IN THE PEOPLE. — The power to amend the Constitution or to propose amendments thereto is not included in the general grant of legislative powers to Congress (Section 1, Art. VI, Constitution of the Philippines). It is part of the inherent powers of the people — is the repository of sovereignty in a republican state, such as ours (Section 1, Art. II, Constitution of the Philippines) — to make, and, hence, to amend their own Fundamental Law. 3. ID.; ID.; ID.; CONGRESS, AS CONSTITUENT ASSEMBLY ALSO EMPOWERED TO PROPOSE AMENDMENTS. — Congress may propose amendments to the Constitution merely because the same explicitly grants such power (Sec. 1, Art. XV. Constitution of the Philippines). Hence, when exercising the same, it is said that Senators and members of the House of Representatives act, not as members of Congress, but as component elements of 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, (Of amending the Constitution) for their authority does not emanate from the Constitution — they are the very source of all powers of government, including the Constitution itself . 4. ID.; ID.; ID.; ID.; CONSTITUTIONALITY OF ACTS, JUSTICIABLE, NOT POLITICAL QUESTION. — The issue whether or not a Resolution of Congress — acting as a constituent assembly — violates the Constitution is essentially justiciable, not political, and, hence, subject to judicial review, and, to the extent that this view may be inconsistent with the stand taken in Mabanag vs. Lopez Vito, (supra) the 33

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CONSTI 1 5.

6.

7.

8.

9.

latter should be deemed modified accordingly. The Members of the Court are unanimous on this point. ID.; ID.; ID.; ID.; EFFECTIVITY OF PROPOSED AMENDMENTS DEPENDENT ON PEOPLE'S RATIFICATION. — True it is that once convened, the Constitutional Convention became endowed with extraordinary powers generally beyond the control of any department of the existing government, but the compass of such powers can be co-extensive only with the purpose for which the convention was called and as it is self-evident that the amendments it may propose cannot have any effect as part of the Constitution until the same are duly ratified by the people, it necessarily follows that the acts of the convention, its officers and members are not immune from attack on constitutional grounds. The present Constitution is in full force and effect in its entirely and in everyone of its parts, the existence of the Convention notwithstanding, and operates even within the walls of that assembly. ID.; ID.; ID.; ID.; EXTENT THEREOF. — While it is indubitable that in its internal operation and the performance of its task to propose amendments to the Constitution it is not subject to any degree of restraint or control by any other authority than itself, it is equally beyond cavil that neither the Convention nor any of its officers or members can rightfully deprive any person of life, liberty or property without due process of law, deny to anyone in this country the equal protection of the laws or the freedom of speech and of the press in disregard of the Bill of Rights of the existing Constitution. Nor, for that matter, can such Convention validly pass any resolution providing for the taking of private property without just compensation or for the imposition or exacting of any tax, impost, or assessment, or declare war or call the Congress to a special session, suspend the privilege of the writ of habeas corpus, pardon a convict or render judgment in a controversy between private individuals or between such individuals and the state, in violation of the distribution of powers in the Constitution. POLITICAL LAW; JUDICIARY; "JUDICIAL SUPREMACY" OR POWER OF JUDICIAL REVIEW. — 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. ID.; ID.; ID.; LIMITATIONS. — This power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to strike conclusions unrelated to actualities. Narrowed as its functions is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government. POLITICAL LAW; ELECTORAL COMMISSION; POWER AND LIMITATIONS THEREOF. — The Electoral Commission, is a constitutional organ, created for a specific purpose, namely, to determine all contests resulting to the elections, returns and qualifications of the members of the National Assembly. Although the Electoral Commission may not be interfered with, when and while acting within

the limits of its authority, it does not follow that it is beyond the reach of the constitutional mechanism adopted by die people and that it is not subject to constitutional restriction. The Electoral Commission is not a separate department of the government, and even if it were, conflicting claims of authority under the fundamental law between departmental powers and agencies of the government are necessarily determined by the judiciary in justiciable and appropriate cases. 10. CONSTITUTIONAL LAW; SECTION 1, ARTICLE XV OF CONSTITUTION; CONGRESS AS CONSTITUENT ASSEMBLY; PROPOSED AMENDMENTS, SUBJECT TO RATIFICATION BY PEOPLE; ONLY ONE ELECTION TO BE HELD THEREFOR. — The language of Section 1 of Article XV of the Constitution is sufficiently clear. It says distinctly that either Congress sitting as a constituent assembly or a convention called for the purpose "may propose amendments to this Constitution," thus placing no limit as to the number of amendments that Congress or the Convention may propose. The same provision also as definitely provides that "such amendments shall be valid as part of the this Constitution when approved by a majority of the votes cast as an election at which the amendments are submitted to the people for their ratification," thus leaving no room for doubt as to how many "elections" or plebiscites may be held to ratify any amendment or amendments proposed by the same constituent assembly of Congress or convention, and the provision unequivocally says "an election" which means only one. REYES, J.B.L., ZALDIVAR, RUIZ CASTRO and MAKASIAR, JJ., concurring: 1.

CONSTITUTIONAL LAW; AMENDMENTS TO CONSTITUTION; REQUIREMENTS FOR PROPER SUBMISSION THEREOF TO PEOPLE. — 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 to reach a conclusion as the dictates of their conscience suggest, free from the incubus of extraneous or possibly insidious influences. We believe the word "submitted" can only mean that the government, within its maximum capabilities, should strain every efforts to inform every citizen of the provisions to be amended, and the proposed amendments and the meaning, nature and effects thereof. By this, we are not to be understood as saying that, if one citizen or 100 citizens 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. FERNANDO, J., concurring and dissenting:

1.

POLITICAL LAW; LEGISLATIVE DEPARTMENT; CONSTITUTIONAL CONVENTION, NOT SOVEREIGN IN CHARACTER. — It does not thereby follow that while free from legislative control, a constitutional convention may lay claim to an attribute sovereign in character. The Constitution is quite explicit that it is to the people, and to the people alone, in whom sovereignty resides. Such a prerogative is therefore withheld from a convention. It is an agency entrusted with the responsibility of high import and significance, it is true; it is denied unlimited legal competence though. That is what sovereignty connotes. It has to 34

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CONSTI 1 2.

3.

yield to the superior force of the Constitution. There can then be no basis for the exaggerated pretension that it is an alter ego of the people. ID.; ID.; ID.; AUTONOMY IN PROPOSING CONSTITUTIONAL AMENDMENTS. — The view that commends itself for acceptance is that legislature and constitutional convention, aliked recognized by the Constitution, are coordinate, there being no superiority of one over the other. Insofar as the constituent power of proposing amendments to the Constitution is concerned, a constitutional convention enjoys a wide sphere of autonomy consistently with the Constitution which can be the only source of valid restriction on its competence. It is true it is to the legislative body that the call to a convention must proceed, but once convened, it cannot in any wise be interfered with, much less controlled by Congress. A contrary conclusion would impair its usefulness for the delicate and paramount task assigned to it. A convention then is to be looked upon as if it were one of the three coordinate departments which under the principle of separation of powers is supreme within its field and has exclusive cognizance of matters properly subject to its jurisdiction. STATUTORY CONSTRUCTION, RULES OF GRAMMAR NOT DULY RELIABLE IN CONSTITUTIONAL INTERPRETATION. — No undue reliance should be accorded rules of grammar; they do not exert a compelling force in constitutional interpretation. Meaning is to be sought not from specific language in the singular but from the mosaic of significance derived from the total context. It could be, if it were not thus, self-defeating. Such a mode of construction does not commend itself. The words used in the Constitution are not inert; they derive vitality from the obvious purposes at which they are aimed.

DECISION BARREDO, J p: Petition for prohibition principally to restrain the respondent Commission on Elections "from undertaking to hold a plebiscite on November 8, 1971," at which the proposed constitutional amendment "reducing the voting age" in Section 1 of Article V of the Constitution of the Philippines to eighteen years "shall be submitted" for ratification by the people pursuant to Organic Resolution No. 1 of the Constitutional Convention of 1971, and the subsequent implementing resolutions, by declaring said resolutions to be without the force and effect of law in so far as they direct the holding of such plebiscite and by also declaring the acts of the respondent Commission (COMELEC) performed and to be done by it in obedience to the aforesaid Convention resolutions to be null and void, for being violative of the Constitution of the Philippines. As a preliminary step, since the petition named as respondent only the COMELEC, the Court required that copies thereof be served on the Solicitor General and the Constitutional Convention, through its President, for such action as they may deem proper to take. In due time, respondent COMELEC filed its answer joining issues with petitioner. To further put things in proper order, and considering that the fiscal officers of the Convention are indispensable parties in a proceeding of this nature, since the acts sought to be enjoined involve the expenditure of funds appropriated by law for the Convention, the Court also ordered that the Disbursing Officer, Chief Accountant and Auditor of the Convention be made respondents. After the petition was so amended, the first appeared thru Senator Emmanuel Pelaez and the last two thru Delegate Ramon Gonzales. All said respondents, thru counsel, resist petitioner's action. For reasons of orderliness and to avoid unnecessary duplication of arguments and even possible confusion, and considering that with the principal parties being duly

represented by able counsel, their interests would be adequately protected already, the Court had to limit the number of intervenors from the ranks of the delegates to the Convention who, more or less, have legal interest in the success of the respondents, and so, only Delegates Raul S. Manglapus, Jesus G. Barrera, Pablo S. Trillana III, Victor de la Serna, Marcelo B. Fernan, Jose Y. Feria, Leonardo Siguion Reyna, Victor Ortega and Juan B. Borra, all distinguished lawyers in their own right, have been allowed to intervene jointly. The Court feels that with such an array of brilliant and dedicated counsel, all interests involved should be duly and amply represented and protected. At any rate, notwithstanding that their corresponding motions for leave to intervene or to appear as amicus curiae 1 have been denied, the pleadings filed by the other delegates and some private parties, the latter in representation of their minor children allegedly to be affected by the result of this case are with the records and the Court acknowledges that they have not been without value as materials in the extensive study that has been undertaken in this case. The background facts are beyond dispute. The Constitutional Convention of 1971 came into being by virtue of two resolutions of the Congress of the Philippines approved in its capacity as a constituent assembly convened for the purpose of calling a convention to propose amendments to the Constitution, namely, Resolutions 2 and 4 of the joint sessions of Congress held on March 16, 1967 and June 17, 1969, respectively. The delegates to the said Constitution were all elected under and by virtue of said resolutions and the implementing legislation thereof, Republic Act 6132. The pertinent portions of Resolution No. 2 read as follows: "SECTION 1. There is hereby called a convention to propose amendments to the Constitution of the Philippines, to be composed of two elective Delegates from each representative district who shall have the same qualifications as those required of Members of the House of Representatives. xxx xxx xxx "SECTION 7. The amendments proposed by the Convention shall be valid and considered part of the Constitution when approved by a majority of the votes cast in an election at which they are submitted to the people for their ratification pursuant to Article XV of the Constitution." Resolution No. 4 merely modified the number of delegates to represent the different cities and provinces fixed originally in Resolution No. 2. After the election of the delegates held on November 10, 1970, the Convention held its inaugural session on June 1, 1971. Its preliminary labors of election of officers, organization of committees and other preparatory works over, as its first formal proposal to amend the Constitution, its session which began on September 27, 1971, or more accurately, at about 3:30 in the morning of September 28, 1971, the Convention approved Organic Resolution No. 1 reading thus: "CC ORGANIC RESOLUTION NO. 1 "A RESOLUTION AMENDING SECTION ONE OF ARTICLE V OF THE CONSTITUTION OF THE PHILIPPINES SO AS TO LOWER THE VOTING AGE TO 18. 35

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CONSTI 1 "BE IT RESOLVED as it is hereby resolved by the 1971 Constitutional Convention:

(Sgd.) DIOSDADO MACAPAGAL

"Section 1. Section One of Article V of the Constitution of the Philippines is amended to as follows:

DIOSDADO P. MACAPAGAL

"Section 1. Suffrage may be exercised by (male) citizens of the Philippines not otherwise disqualified by law, who are (twenty-one) EIGHTEEN years or over and are able to read and write, and who shall have resided in the Philippines for one year and in the municipality wherein they propose to vote for at least six months preceding the election.'

P.

President" On September 30, 1971, COMELEC "RESOLVED to inform the Constitutional Convention that it will hold the plebiscite on condition that: "(a) The Constitutional Convention will undertake the printing of separate official ballots, election returns and tally sheets for the use of said plebiscite at its expense;

"Section 2. This amendment shall be valid as part of the Constitution of the Philippines when approved by a majority of the votes cast in a plebiscite to coincide with the local elections in November 1971.

"(b) The Constitutional Convention will adopt its own security measures for the printing and shipment of said ballots and election forms; and

"Section 3. This partial amendment, which refers only to the age qualification for the exercise of suffrage shall be without prejudice to other amendments that will be proposed in the future by the 1971 Constitutional Convention on other portions of the amended Section or on other portions of the entire Constitution.

"(c) Said official ballots and election forms will be delivered to the Commission in time so that they could be distributed at the same time that the Commission will distribute its official and sample ballots to be used in the elections on November 8, 1971."

"Section 4. The Convention hereby authorizes the use of the sum of P75,000.00 from its savings or from its unexpended funds for the expense of the advanced plebiscite; provided, however that should there be no savings or unexpended sums, the Delegates waive P250.00 each or the equivalent of 2-1/2 days per diem.'" By a letter dated September 28, 1971, President Diosdado Macapagal, called upon respondent Comelec "to help the Convention implement (the above) resolution." The said letter reads:

What happened afterwards may best be stated by quoting from intervenors' statement of the genesis of the above proposal: "The President of the Convention also issued an order forming an Ad Hoc Committee to implement the Resolution. "This Committee issued implementing guidelines which were approved by the President who then transmitted them to the Commission on Elections.

Manila

"The Committee on Plebiscite and Ratification filed a report on the progress of the implementation of the plebiscite in the afternoon of October 7, 1971, enclosing copies of the order, resolution and letters of transmittal above referred to (Copy of the report is hereto attached as Annex 8-Memorandum)

Thru the Chairman

"RECESS RESOLUTION

Gentlemen:

"In its plenary session in the evening of October 7, 1971, the Convention approved a resolution authored by Delegate Antonio Olmedo of Davao Oriental, calling for a recess of the Convention from November 1, 1971 to November 9, 1971 to permit the delegates to campaign for the ratification of Organic Resolution No. 1. (Copies of the resolution and the transcript of debate thereon are hereto attached as Annexes 9 and 9-A Memorandum, respectively).

"September 28, 1971 "The Commission on Elections

Last night the Constitutional Convention passed Resolution No. 1 quoted as follows: xxx xxx xxx (see above) Pursuant to the provision of Section 14, Republic Act No. 6132 otherwise known as the Constitutional Convention Act of 1971, may we call upon you to help the Convention implement this resolution: Sincerely,

"RESOLUTION CONFIRMING IMPLEMENTATION "On October 12, 1971, the Convention passed Resolution No. 24 submitted by Delegate Jose Ozamiz confirming the authority of the President of the Convention to implement Organic Resolution 36

CONSTI 1

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No. 1, including the creation of the Ad Hoc Committee ratifying all acts performed in connection with said implementation."

powers between the several departments and among the integral or constituent units thereof.'

Upon these facts, the main thrust of the petition is that Organic Resolution No. 1 and the other implementing resolutions thereof subsequently approved by the Convention have no force and effect as laws in so far as they provide for the holding of a plebiscite co incident with the elections of eight senators and all city, provincial and municipal Officials to be held on November 8, 1971, hence all of Comelec's acts in obedience thereof and tending to carry out the holding of the plebiscite directed by said resolutions are null and void, on the ground that the calling and holding of such a plebiscite is, by the Constitution, a power lodged exclusively in Congress, as a legislative body, and may not be exercised by the Convention, and that, under Section 1, Article XV of the Constitution, the proposed amendment in question cannot be presented to the people for ratification separately from each and all of the other amendments to be drafted and proposed by the Convention. On the other hand, respondents and intervenors posit that the power to provide for, fix the date and lay down the details of the plebiscite for the ratification of any amendment the Convention may deem proper to propose is within the authority of the Convention as a necessary consequence and part of its power to propose amendments and that this power includes that of submitting such amendments either individually or jointly at such time and manner as the Convention may direct in its discretion. The Court's delicate task now is to decide which of these two poses is really in accord with the letter and spirit of the Constitution.

"It is true that in Mabanag v. Lopez Vito (supra), this Court characterizing the issue submitted thereto as a political one, declined to pass upon the question whether or not a given number of votes cast in Congress in favor of a proposed amendment to the Constitution — which was being submitted to the people for ratification — satisfied the three-fourths vote requirement of the fundamental law. The force of this precedent has been weakened, however, by Suanes v. Chief Accountant of the Senate (81 Phil: 818), Avelino v. Cuenco, (L-2851, March 4 & 14, 1943), Tañada v. Cuenco, (L-10520, Feb. 28, 1957) and Macias v. Commission on Elections, (L-18684, Sept. 14, 1961). In the first we held that the officers and employees of the Senate Electoral Tribunal are under its supervision and control, not of that of the Senate President, as claimed by the latter; in the second, this Court proceeded to determine the number of Senators necessary for quorum in the Senate; in the third, we nullified the election, by Senators belonging to the party having the largest number of votes in said chamber, purporting to act, on behalf of the party having the second largest number of votes therein of two (2) Senators belonging to the first party, as members, for the second party, of the Senate Electoral Tribunal; and in the fourth, we declared unconstitutional an act of Congress purporting to apportion the representatives districts for the House of Representatives, upon the ground that the apportionment had not been made as may be possible according to the number of inhabitants of each province. Thus we rejected the theory, advanced in these four (4) cases that the issues therein raised were political questions the determination of which is beyond judicial review.

As a preliminary and prejudicial matter, the intervenors raise the question of jurisdiction. They contend that the issue before Us is a political question and that the Convention being a legislative body of the highest order is sovereign, and as such, its acts impugned by petitioner are beyond the control of the Congress and the courts. In this connection, it is to be noted that none of the respondent has joined intervenors in this posture. In fact, respondents Chief Accountant and Auditor of the Convention, expressly concede the jurisdiction of this Court in their answer acknowledging that the issue herein is a justiciable one. Strangely, intervenors cite in support of this contention portions of the decision of this Court in the case of Gonzales v. Comelec, 21 SCRA 774, wherein the members of the Court, despite their being divided in their opinions as to the other matters therein involved, were precisely unanimous in upholding its jurisdiction. Obviously, distinguished counsel have either failed to grasp the full impact of the portions of Our decision they have quoted or would misapply them by taking them out of context. There should be no more doubt as to the position of this Court regarding its jurisdiction vis-a-vis the constitutionality of the acts of the Congress, acting as a constituent assembly, and, for that matter, those of a constitutional convention called for the purpose of proposing amendments to the Constitution, which concededly is at par with the former. A simple reading of Our ruling in that very case of Gonzales relied upon by intervenors should dispel any lingering misgivings as regards that point. Succinctly but comprehensively, Chief Justice Concepcion held for the Court thus: "As early as Angara vs. Electoral Commission (63 Phil. 139, 157), this Court — speaking through one of the leading members of the Constitutional Convention and a respected professor of Constitutional Law, Dr. Jose P. Laurel — declared that 'the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of

"Indeed, the power to amend the Constitution or to propose amendments thereto is not included in the general grant of legislative powers to Congress (Section 1. Art. VI, Constitution of the Philippines). It is part of the inherent powers of the people — as the repository sovereignty in a republican state, such as ours (Section 1, Art, II, Constitution of the Philippines) — to make, and, hence, to amend their own Fundamental Law. Congress may propose amendments to the Constitution merely because the same explicitly grants such power. (Section 1, Art. XV, Constitution of the Philippines) Hence, when exercising the same it is said that Senators and members of the House of Representatives act, not as members of Congress, but as component elements of 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, (Of amending the Constitution) for their authority does not emanate from the Constitution — they are the very source of all powers of government including the Constitution itself . "Since, when proposing, as a constituent assembly, amendments to the Constitution, the members of Congress derive their authority from the Fundamental Law, it follows, necessarily, that they do not have the final say on whether or not their acts are within or beyond constitutional limits. Otherwise. they could brush aside and set the same at naught, contrary to the basic tenet that ours is a government of laws, not of men, and to the rigid nature of our Constitution. Such rigidity is stressed by the fact that, the Constitution expressly confers upon the Supreme Court, (And, inferentially, to lower courts.) the power to declare a treaty 37

CONSTI 1 unconstitutional. (Sec. 2 (1), Art. VIII of the Constitution), despite the eminently political character of treaty-making power. "In short, the issue whether or not a Resolution of Congress — acting as a constituent assembly — violates the Constitution is essentially justiciable not political, and, hence, subject to judicial review, and, to the extent that this view may be inconsistent with the stand taken in Mabanag v. Lopez Vito, (supra) the latter should be deemed modified accordingly. The Members of the Court are unanimous on this point." No one can rightly claim that within the domain of its legitimate authority, the Convention is not supreme. Nowhere in his petition and in his oral argument and memoranda does petitioner point otherwise. Actually, what respondents and intervenors are seemingly reluctant to admit is that the Constitutional Convention of 1971, as any other convention of the same nature, owes its existence and derives all its authority and power from the existing Constitution of the Philippines. This Convention has not been called by the people directly as in the case of a revolutionary convention which drafts the first Constitution of an entirely new government born of either a war of liberation from a mother country or of a revolution against an existing government or of a bloodless seizure of power a la coup d'etat. As to such kind of conventions, it is absolutely true that the convention is completely without restrain and omnipotent all wise, and it is as to such conventions that the remarks of Delegate Manuel Roxas of the Constitutional Convention of 1934 quoted by Senator Pelaez refer. No amount of rationalization can belie the fact that the current convention came into being only because it was called by a resolution of a joint session of Congress acting as a constituent assembly by authority of Section 1, Article XV of the present Constitution which provides: "ARTICLE XV — AMENDMENTS "SECTION 1. The Congress in joint session assembled, by a vote of threefourths of all the Members of the Senate and of the House of Representatives voting separately. may propose amendments to this Constitution or call a convention for the purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification." True it is that once convened, this Convention became endowed with extraordinary powers generally beyond the control of any department of the existing government, but the compass of such powers can be co-extensive only with the purpose for which the convention was called and as it may propose cannot have any effect as part of the Constitution until the same are duly ratified by the people, it necessarily follows that the acts of convention, its officers and members are not immune from attack on constitutional grounds. The present Constitution is in full force and effect in its entirety and in everyone of its parts, the existence of the Convention notwithstanding, and operates even within the walls of that assembly. While it is indubitable that in its internal operation and the performance of its task to propose amendments to the Constitution it is not subject to any degree of restraint or control by any other authority than itself, it is equally beyond cavil that neither the Convention nor any of its officers or members can rightfully deprive any person of life, liberty or property without due process of law, deny to anyone in this country the equal protection of the laws or the freedom of speech and of the press in disregard of the Bill of Rights of the existing Constitution. Nor, for that matter, can such Convention validly pass any resolution providing for the taking of private

1ST SET – 9 CASES property without just compensation or for the imposition or exacting of any tax, import or assessment, or declare war or call the Congress to a special session, suspend the privilege of the writ of habeas corpus, pardon a convict or render judgment in a controversy between private individuals or between such individuals and the state, in violation of the distribution of powers in the Constitution. It being manifest that there are powers which the Convention may not and cannot validly assert, much less exercise, in the light of the existing Constitution, the simple question arises, should an act of the Convention be assailed by a citizen as being among those not granted to or inherent in it, according to the existing Constitution, who can decide whether such a contention is correct or not? It is of the very essence of the rule of law that somehow somewhere the power and duty to resolve such a grave constitutional question must be lodged on some authority, or we would have to confess that the integrated system of government established by our founding fathers contains a wide vacuum no intelligent man could ignore, which is naturally unworthy of their learning, experience and craftmanship in constitutionmaking. We need not go far in search for the answer to the query We have posed. The very decision of Chief Justice Concepcion in Gonzales, so much invoked by intervenors, reiterates and reenforces the irrefutable logic and wealth of principle in the opinion written for a unanimous Court by Justice Laurel in Angara vs. Electoral Commission, 63 Phil., 134, reading: ". . . (I)n the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government. The overlapping and interlacing of functions and duties between the several departments, however, sometimes makes it hard to say where the one leaves off and the other begins. In times of social disquietude or political excitement, the great landmark of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof. "As any human production our Constitution is of course lacking perfection and perfectibility, but as much as it was within the power of our people, acting through their delegates to so provide, that instrument which is the expression of their sovereignty however limited, has established a republican government intended to operate and function as a harmonious whole, under a system of check and balances and subject to specific limitations and restrictions provided in the said instrument. The Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels, for then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment and the principles of good government mere political apothegms. Certainly the limitations and restrictions embodied in our Constitution are real as they should be in any living Constitution. In the United States where no express constitutional grant is found in their constitution, the possession of this moderating power of the courts, not to speak of its 38

CONSTI 1 historical origin and development there. has been set at rest by popular acquiescence for a period of more than one and half centuries. In our case, this moderating power is granted, if not expressly, by clear implication from section 2 of Article VIII of our Constitution. "The Constitution is a definition of the powers or government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed 'judicial supremacy' which properly is the power of judicial review under the Constitution. Even then, this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to strike conclusions unrelated to actualities. Narrowed as its functions is in this manner the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government. "But much as we might postulate on the internal checks of power provided in our Constitution, it ought not the less to be remembered that. in the language of James Madison, the system itself is not 'the chief palladium of constitutional liberty.. the people who are authors of this blessing must also be its guardians.. their eyes must be ever ready to mark, their voices to pronounce. . . aggression on the authority of their Constitution.' In the last and ultimate analysis then, must the success of our government in the unfolding years to come be tested in the crucible of Filipino minds and hearts than in consultation rooms and court chambers. "In the case at bar, the National Assembly has by resolution (No. 8) of December 3, 1935, confirmed the election of the herein petitioner to the said body. On the other hand. the Electoral Commission has by resolution adopted on December 9, 1935, fixed said date as the last day for the filing of protests against the election, returns and qualifications of members of the National Assembly; notwithstanding the Previous confirmations made by the National Assembly as aforesaid. If, as contended by the petitioner, the resolution of the National Assembly has the effect of cutting off the power of the Electoral Commission to entertain protests against the election, returns and qualifications of members of the National Assembly, submitted after December 3, 1935 then the resolution of the Electoral

1ST SET – 9 CASES Commission of December 9, 1935, is mere surplusage and had no effect. But, if, as contended by the respondents, the Electoral Commission has the sole power of regulating its proceedings to the exclusion of the National Assembly, then the resolution of December 9, 1935, by which the Electoral Commission fixed said date as the last day for filing protests against the election, returns and qualifications of members of the National Assembly, should be upheld. "Here is then presented an actual controversy involving as it does a conflict of a grave constitutional nature between the National Assembly on the one hand and the Electoral Commission on the other. From the very nature of the republican government established in our country in the light of American experience and of our own, upon the judicial department is thrown the solemn and inescapable obligation of interpreting the Constitution and defining constitutional boundaries. The Electoral Commission as we shall have occasion to refer hereafter, is a constitutional organ, created for a specific purpose, namely, to determine all contests relating to the election, returns and qualifications of the members of the National Assembly. Although the Electoral Commission may not be interfered with, when and while acting within the limits of its authority, it does not follow that it is beyond the reach of the constitutional mechanism adopted by the People and that it is not subject to constitutional restriction. The Electoral Commission is not a separate department of the government, and even if it were, conflicting claims of authority under the fundamental law between departmental powers and agencies of the government are necessarily determined by the judiciary in justiciable and appropriate cases. Discarding the English type and other European types of constitutional government, the framers of our Constitution adopted the American type where the written constitution is interpreted and given effect by the judicial department. In some countries which have declined to follow the American example, provisions have been inserted in their constitutions prohibiting the courts from exercising the power to interpret the fundamental law. This is taken as a recognition of what otherwise would be the rule that in the absence of direct prohibition, courts are bound to assume what is logically their function. For instance, the Constitution of Poland of 1921 expressly provides that courts shall have no power to examine the validity of statutes (art. 81, Chap. IV). The former Austrian Constitution contained a similar declaration. In countries whose constitution are silent in this respect, courts have assumed this power. This is true in Norway, Greece, Australia and South Africa. Whereas, in Czechoslovakia (arts. 2 and 3, Preliminary Law to Constitutional Charter of the Czechoslovak, Republic, February 29, 1920) and Spain (arts. 121123, Title IX, Constitution of the Republic of 1931) especial constitutional courts are established to pass upon the validity of ordinary laws. In our case, the nature of the present controversy shows the necessity of a final constitutional arbiter to determine the conflict of authority between two agencies created by the Constitution. Were we to decline to take cognizance of the controversy, who will determine the conflict? And if the conflict were left undecided and undetermined, would not a void be thus created in our constitutional system which may in the long run prove destructive of the entire framework? To ask these questions is to answer them. Natura vacuum abhorret, so must we avoid exhaustion in our constitutional system. Upon principle, 39

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CONSTI 1 reason, and authority, we are clearly of the opinion that upon the admitted facts of the present case, this court has jurisdiction over the Electoral Commission and the subject matter of the present controversy for the purpose of determining the character, scope and extent of the constitutional grant to the Electoral Commission as 'the sole judge of all contests relating to the election, returns and qualifications of the members of the National Assembly." As the Chief Justice has made it clear in Gonzales, like Justice Laurel did in Angara, these postulates just quoted do not apply only to conflicts of authority between the three existing regular departments of the government but to all such conflicts between and among these departments, or, between any of them, on the one hand, and any other constitutionally created independent body, like the electoral tribunals in Congress, the Comelec and the constituent assemblies constituted by the House of Congress, on the other. We see no reason of logic or principle whatsoever, and none has been convincingly shown to Us by any of the respondents and intervenors, why the same ruling should not apply to the present Convention, even if it is an assembly of delegates elected directly by the people, since at best, as already demonstrated, it has been convened by authority of and under the terms of the present Constitution. Accordingly, We are left with no alternative but to uphold the jurisdiction of the Court over the present case. It goes without saying that We do this not because the Court is superior to the Convention or that the Convention is subject to the control of the Court, but simply because both the Convention and the Court are subject to the Constitution and the rule of law, and "upon principle, reason and authority," per Justice Laurel, supra, it is within the power, as it is the solemn duty of the Court, under the existing Constitution to resolve the issues in which petitioner, respondents and intervenors have joined in this case. II The issue of jurisdiction thus resolved, We come to the crux of the petition. Is it within the powers of the Constitutional Convention of 1971 to order, on its own fiat. the holding of a plebiscite for the ratification of the proposed amendment reducing to eighteen years the age for the exercise of suffrage under Section 1 of Article V of the Constitution proposed in the Convention's Organic Resolution No. 1 in the manner and form provided for in said resolution and the subsequent implementing acts and resolution of the Convention? At the threnold, the environmental circumstances of this case demand the most accurate and unequivocal statement of the real issue which the Court is called upon to resolve. Petitioner has very clearly stated that he is not against the constitutional extension of the right of suffrage to the eighteen-year-olds, as a matter of fact, he has advocated or sponsored in Congress such a proposal, and that, in truth, the herein petition is not intended by him to prevent that the proposed amendment here involved be submitted to the people for ratification, his only purpose in filing the petition being to comply with his sworn duty to prevent, whenever he can, any violation of the Constitution of the Philippines even if it is committed in the course of or in connection with the most laudable undertaking. Indeed, as the Court sees it, the specific question raised in this case is limited solely and only to the point of whether or not it is within the power of the Convention to call for a plebiscite for the ratification by the people of the constitutional amendment proposed in the abovequoted Organic Resolution No. 1, in the manner and form provided in said resolution as well as in the subsequent implementing actions and resolution of the Convention and its officers, at this juncture of its proceedings, when, as it is a

matter of common knowledge and judicial notice, it is not set to adjourn sine die, and is, in fact, still in the preliminary stages of considering other reforms or amendments affecting other parts of the existing Constitution; and, indeed, Organic Resolution No. 1 itself expressly provides that the amendment therein proposed "shall be without prejudice to other amendments that will be proposed in the future by the 1971 Constitutional Convention on other portions of the amended section or on other portions of the entire Constitution." In other words, nothing that the Court may say or do in this case should be understood as reflecting, in any degree or means, the individual or collective stand of the members of the Court on the fundamental issue of whether or not the eighteen-year-olds should be allowed to vote, simply because that issue is not before Us now. There should be no doubt in the mind of anyone that, once the Court finds it constitutionally permissible, it will not hesitate to do its part so that the said proposed amendment may be presented to the people for their approval or rejection. Withal, the Court rests securely in the conviction that the fire and enthusiasm of the youth have not blinded them to the absolute necessity, under the fundamental principles of democracy to which the Filipino people is committed, of adhering always to the rule of law. Surely, their idealism, sincerity and purity of purpose cannot permit any other line of conduct or approach in respect of the problem before Us. The Constitutional Convention of 1971 itself was born, in a great measure, because of the pressure brought to bear upon the Congress of the Philippines by various elements of the people, the youth in particular, in their incessant search for a peaceful and orderly means of bringing about meaningful changes in the structure and bases of the existing social and governmental institutions, including the provisions of the fundamental law related to the wellbeing and economic security of the underprivileged classes of our people as well as those concerning the preservation and protection of our natural resources and the national patrimony, as an alternative to violent and chaotic ways of achieving such lofty ideals. In brief, leaving aside the excesses of enthusiasm which at times have justifiably or unjustifiably marred the demonstrations in the streets, plazas and campuses, the youth of the Philippines, in general, like the rest of the people, do not want confusion and disorder, anarchy and violence; what they really want are law and order, peace and orderliness, even in the pursuit of what they strongly and urgently feel must be done to change the present order of things in this Republic of ours. It would be tragic and contrary to the plain compulsion of these perspectives, if the Court were to allow itself in deciding this case to be carried astray by considerations other than the imperatives of the rule of law and of the applicable provisions of the Constitution. Needless to say, in a larger measure than when it binds other departments of the government or any other official or entity, the Constitution imposes upon the Court the sacred duty to give meaning and vigor to the Constitution, by interpreting and construing its provisions in appropriate cases with the proper parties and by striking down any act violative thereof. Here, as in all other cases, We are resolved to discharge that duty. During these times when most anyone feels very strongly the urgent need for constitutional reforms, to the point of being convinced that meaningful change is the only alternative to a violent revolution, this Court would be the last to put any obstruction or impediment to the work of the Constitutional Convention. If there are respectable sectors opining that it has not been called to supplant the existing Constitution in its entirety, since its enabling provision, Article XV, from which the Convention itself draws life expressly speaks only of amendments which shall form part of it, which opinion is not without persuasive force both in principle and in logic, the seemingly prevailing view is that only the collective judgment of its members as to what is warranted by the present condition of things, as they see it, 40

CONSTI 1 can limit the extent of the constitutional innovations the Convention may propose, hence the complete substitution of the existing constitution is not beyond the ambit of the Convention's authority. Desirable as it may be to resolve this grave divergence of views, the Court does not consider this case to be properly the one in which it should discharge its constitutional duty in such premises. The issues raised by petitioner, even those among them in which respondents and intervenors have joined in an apparent wish to have them squarely passed upon by the Court do not necessarily impose upon Us the imperative obligation to express Our views thereon. The Court considers it to be of the utmost importance that the Convention should be untrammelled and unrestrained in the performance of its constitutionally assigned mission in the manner and form it may conceive best, and so the Court may step in to clear up doubts as to the boundaries set down by the Constitution only when and to the specific extent only that it would be necessary to do so to avoid a constitutional crisis or a clearly demonstrable violation of the existing Charter. Withal, it is a very familiar principle of constitutional law that constitutional questions are to be resolved by the Supreme Court only when there is no alternative but to do it, and this rule is founded precisely on the principle of respect that the Court must accord to the acts of the other coordinate departments of the government, and certainly, the Constitutional Convention stands almost in a unique footing in that regard. In our discussion of the issue of jurisdiction, We have already made it clear that the Convention came into being by a call of a joint session of Congress pursuant to Section 1 of Article XV of the Constitution, already quoted earlier in this opinion. We reiterate also that as to matters not related to its internal operation and the performance of its assigned mission to propose amendments to the Constitution, the Convention and its officers and members are all subject to all the provisions of the existing Constitution. Now We hold that even as to its latter task of proposing amendments to the Constitution, it is subject to the provisions of Section 1 of Article XV. This must be so, because it is plain to Us that the framers of the Constitution took care that the process of amending the same should not be undertaken with the same ease and facility in changing an ordinary legislation. Constitution making is the most valued power, second to none, of the people in a constitutional democracy such as the one our founding fathers have chosen for this nation, and which we of the succeeding generations generally cherish. And because the Constitution affects the lives, fortunes, future and every other conceivable aspect of the lives of all the people within the country and those subject to its sovereignty, every degree of care is taken in preparing and drafting it. A constitution worthy of the people for which it is intended must not be prepared in haste without adequate deliberation and study. It is obvious that correspondingly, any amendment of the Constitution is of no less importance than the whole Constitution itself, and perforce must be conceived and prepared with as much care and deliberation. From the very nature of things, the drafters of an original constitution, as already observed earlier, operate without any limitations, restraints or inhibitions save those that they may impose upon themselves. This is not necessarily true of subsequent conventions called to amend the original constitution. Generally, the framers of the latter see to it that their handiwork is not lightly treated and as easily mutilated or changed, not only for reasons purely personal but more importantly, because written constitutions are supposed to be designed so as to last for some time, if not for ages, or for, at least, as long as they can be adopted to the needs and exigencies of the people, hence, they must be insulated against precipitate and hasty actions motivated by more or less passing political moods or fancies. Thus, as a rule, the original constitutions carry with them limitations and conditions, more or less stringent, made so by the people themselves, in regard to the process of their amendment. And when such

1ST SET – 9 CASES limitations or conditions are so incorporated in the original constitution, it does not lie in the delegates of any subsequent convention to claim that they may ignore and disregard such conditions because they are as powerful and omnipotent as their original counterparts. Nothing of what is here said is to be understood as curtailing in any degree the number and nature and the scope and extent of the amendments the Convention may deem proper to propose. Nor does the Court propose to pass on the issue extensively and brilliantly discussed by the parties as to whether or not the power or duty to call a plebiscite for the ratification of the amendments to be proposed by the Convention is exclusively legislative and as such may be exercised only by the Congress or whether the said power can be exercised concurrently by the Convention with the Congress. In the view the Court takes of ;the present case, it does not perceive absolute necessity to resolve that question, grave and important as it may be Truth to tell, the lack of unanimity or even of a consensus among the members of the Court in respect to this issue creates the need for more study and deliberation, and as time is of the essence in this case, for obvious reasons, November 8, 1971, the date set by the Convention for the plebiscite it is calling, being nigh, We will refrain from making any pronouncement or expressing Our views on this question until a more appropriate case comes to Us. After all, the basis of this decision is as important and decisive as any can be. The ultimate question, therefore, boils down to this: Is there any limitation or condition in Section 1 of Article XV of the Constitution which is violated by the act of the Convention of calling for a plebiscite on the sole amendment contained in Organic Resolution No. 1? The Court holds that there is, and it is the condition and limitation that all the amendments to be proposed by the same Convention must be submitted to the people in a single "election" or plebiscite. It being indisputable that the amendment now proposed to be submitted to a plebiscite is only the first amendment the Convention will propose We hold that the plebiscite being called for the purpose of submitting the same for ratification of the people on November 8, 1971 is not authorized by Section 1 of Article XV of the Constitution, hence all acts of the Convention and the respondent Comelec in that direction are null and void. We have arrived at this conclusion for the following reasons: 1. The language of the constitutional provision aforequoted is sufficiently clear. It says distinctly that either Congress sitting as a constituent assembly or a convention called for the purpose "may propose amendments to this Constitution, "thus placing no limit as to the number of amendments that Congress or the Convention may propose. The same provision also as definitely provides that "such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification," thus leaving no room for doubt as to how many "elections" or plebiscites may be held to ratify any amendment or amendments proposed by the same constituent assembly of Congress or convention, and the provision unequivocably says "an election" which means only one. (2) Very little reflection is needed for anyone to realize the wisdom and appropriateness of this provision. As already stated, amending the Constitution is as serious and important an undertaking as constitution making itself. Indeed, any amendment of the Constitution is as important as the whole of it, if only because the Constitution has to be an integrated and harmonious instrument, if it is to be viable as the framework of the government it establishes, on the one hand, and adequately formidable and reliable as the succinct but comprehensive articulation of the rights, liberties, ideology, social ideals, and national and nationalistic policies 41

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CONSTI 1 and aspirations of the people, on the other. It is inconceivable how a constitution worthy of any country or people can have any part which is out of tune with its other parts. A constitution is the work of the people thru its drafters assembled by them for the purpose. Once the original constitution is approved, the part that the people play in its amendment becomes harder, for when a whole constitution is submitted to them, more or less they can assume its harmony as an integrated whole, and they can either accept or reject it in its entirety. At the very least, they can examine it before casting their vote and determine for themselves from a study of the whole document the merits and demerits of all or any of its parts and of the document as a whole. And so also, when an amendment is submitted to them that is to form part of the existing constitution, in like fashion they can study with deliberation the proposed amendment in relation to the whole existing constitution and or any of its parts and thereby arrive at an intelligent judgment as to its acceptability. This cannot happen in the case of the amendment in question. Prescinding already from the fact that under Section 3 of the questioned resolution, it is evident that no fixed frame of reference is provided the voter, as to what finally will be concomitant qualifications that will be required by the final draft of the constitution to be formulated by the Convention of a voter to be able to enjoy the right of suffrage, there are other considerations which make it impossible to vote intelligently on the proposed amendment, although it may already be observed that under Section 3, if a voter would favor the reduction of the voting age to eighteen under conditions he feels are needed under the circumstances, and he does not see those conditions in the ballot nor is there any possible indication whether they will ever be or not, because Congress has reserved those for future action, what kind of judgment can he render on the proposal? But the situation actually before Us is even worse. No one knows what changes in the fundamental principles of the constitution the Convention will be minded to approve. To be more specific, we do not have any means of foreseeing whether the right to vote would be of any significant value at all. Who can say whether or not later on the Convention may decide to provide for varying types of voters for each level of the political units it may divide the country into. The root of the difficulty in other words, lies in that the Convention is precisely on the verge of introducing substantial changes, if not radical ones, in almost every part and aspect of the existing social and political order enshrined in the present Constitution. How can a voter in the proposed plebiscite intelligently determine the effect of the reduction of the voting age upon the different institutions which the Convention may establish and of which presently he is not given any idea? We are certain no one can deny that in order that a plebiscite for the ratification of an amendment to the Constitution may be validly held, it must provide the voter not only sufficient time but ample basis for an intelligent appraisal of the nature of the amendment per seas well as its relation to the other parts of the Constitution with which it has to form a harmonious whole. In the context of the present state of things, where the Convention has hardly started considering the merits of hundreds, if not thousands, of proposals to amend the existing Constitution, to present to the people any single proposal or a few of them cannot comply with this requirement. We are of the opinion that the present Constitution does not contemplate in Section 1 of Article XV a plebiscite or "election" wherein the people are in the dark as to frame of reference they can base their judgment on. We reject the rationalization that the present Constitution is a possible frame of reference, for the simple reason that intervenors themselves are stating that the sole purpose of

the proposed amendment is to enable the eighteen year olds to take part in the election for the ratification of the Constitution to be drafted by the Convention. In brief, under the proposed plebiscite, there can be, in the language of Justice Sanchez, speaking for the six members of the Court in Gonzales, supra, "no proper submission" III The Court has no desire at all to hamper and hamstring the noble work of the Constitutional Convention. Much less does the Court want to pass judgment on the merits of the proposal to allow these eighteen years old to vote. But like the Convention, the Court has its own duties to the people under the Constitution which is to decide in appropriate oases with appropriate parties whether or not the mandates of the fundamental law are being complied with. In the best light God has given Us, we are of the conviction that in providing for the questioned plebiscite before it has finished, and separately from, the whole draft of the constitution it has been called to formulate, the Convention's Organic Resolution No. 1 and all subsequent acts of the Convention implementing the same violate the condition in Section 1, Article XV that there should only be one "election" or plebiscite for the ratification of all the amendments the Convention may propose. We are not denying any right of the people to vote on the proposed amendment; We are only holding that under Section 1, Article XV of the Constitution, the same should be submitted to them not separately from but together with all the other amendments to be proposed by this present Convention. IN VIEW OF ALL THE FOREGOING, the petition herein is granted. Organic Resolution No. 1 of the Constitutional Convention of 1971 and the implementing acts and resolutions of the Convention, insofar as they provide for the holding of a plebiscite on November 8, 1971, as well as the resolution of the respondent Comelec complying therewith (RR Resolution No. 695) are hereby declared null and void. The respondents Comelec, Disbursing Officer, Chief Accountant and Auditor of the Constitutional Convention are hereby enjoined from taking any action in compliance with the said organic resolution. In view of the peculiar circumstances of this case, the Court declares this decision immediately executory. No costs. ||| (Tolentino v. COMELEC, G.R. No. L-34150, [October 16, 1971], 149 PHIL 1-40)

[G.R. No. 56350. April 2, 1981.] SAMUEL C. OCCENA, petitioner, vs. THE COMMISSION ON ELECTIONS, THE COMMISSION ON AUDIT, THE NATIONAL TREASURER, THE DIRECTOR OF PRINTING, respondents. [G.R. No. 56404. April 2, 1981.] RAMON A. GONZALES, MANUEL B. IMBONG, JO AUREA MARCOS-IMBONG, RAY ALLAN T. DRILON, NELSON B. MALANA and GIL M. TABIOS,petitioners, v. THE NATIONAL TREASURER and the COMMISSION ON ELECTIONS, respondents. SYNOPSIS 42

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CONSTI 1 Two suits for Prohibition were filed assailing the validity of the Batasang Pambansa Resolution Nos. 28, 104 and 106 proposing constitutional amendments. After hearing and oral argument. the Supreme Court dismissed both petitions, reiterating the effectivity of the present Constitution and upholding the validity of the questioned resolutions, the Interim Batasang Pambansa, by a majority vote, having the power to propose amendments for ratification by the sovereign people.

proposed amendments have "been intensively and extensively discussed at the Interim Batasang Pambansa, as well as through mass media, so that it cannot be said that our people are unaware of the advantages and disadvantages of the proposed amendments.

Petition dismissed.

1. CONSTITUTIONAL LAW; AMENDMENTS TO THE CONSTITUTION; STRICT ADHERENCE TO THE MANDATORY REQUIREMENTS OF THE AMENDING PROCESS MUST BE COMPLIED WITH. — Justice Teehankee reiterates his dissent in Sanidad vs. Comelec (73 SCRA 333 (1976)),that the transcendental constituent power to propose and approve amendments to the Constitution as well as to set up the machinery and prescribe the procedure for the ratification of the amendments proposals has been withheld by the Constitution from the President (Prime Minister) as sole repository of executive power and that so long as the regular National Assembly provided for in Article VIII-of the Constitution had not come to existence and the proposals for constitutional amendments were now deemed necessary to be discussed and adopted for submittal to the people, strict adherence with the mandatory requirements of the amending process as provided in theConstitution must be complied with.

SYLLABUS 1. CONSTITUTIONAL LAW; 1973 CONSTITUTION; FORCE AND APPLICABILITY THEREOF SETTLED IN THE CASE OF JAVELLANA v. EXECUTIVE SECRETARY. — The case of Javellana v. The Executive Secretary, L-36142, March 31,1973, made manifest that as of January 17, 1973, the present Constitution came into force and effect. With such a pronouncement by the Supreme Court and with the recognition of the cardinal postulate that what the Supreme Court says is not only entitled to respect but must also be obeyed, a factor for instability was removed. Thereafter, as a matter of law, all doubts were resolved. The 1973 Constitution is the fundamental law. 2. ID.; INTERIM BATASANG PAMBANSA; POWER TO PROPOSE AMENDMENTS TO THE CONSTITUTION BY MAJORITY VOTE. — One of the powers of the Interim Batasang Pambansa is precisely that of proposing amendments. The 1973 Constitution in its Transitory Provisions vested the Interim National Assembly with the power to propose amendments upon special call by the Prime Minister by a vote of the majority of its members to be ratified in accordance with the Article on Amendments. 3. ID.; ID.; ID.; AMENDMENTS MAY INCLUDE REVISION. — In Del Rosarios v. Commission on Elections, L-32476, Oct. 20,1970, it was held: ". . . The fact that the present Constitution may be revised and replaced with a new one . . . is no argument against the validity of the law because 'amendment' includes the 'revision' or total overhaul of the entire Constitution. At any rate, whether the Constitution is merely amended in part or revised or totally changed would become immaterial the moment the same is ratified by the sovereign people. There is here the adoption of the principle so well-known in American decisions as well as legal texts that a constituent body can propose anything but conclude nothing. 4. ID.; ID.; ID.; ONLY MAJORITY VOTE NEEDED TO PROPOSE AMENDMENTS. — The Interim Batasang Pambansa, sitting as a constituent body, can propose amendments. In that capacity, only a majority vote is needed. It would be an indefensible proposition to assert that the three-fourth votes required when it sits as a legislative body applies as well when it has been convened as the agency through which amendments could be proposed. That is not a requirement as far as constitutional convention is concerned. It is not a requirement either when, as in this case, the Interim Batasang Pambansa exercises its constituent power to propose amendments. 5. ID.; ID.; ID.; PEOPLE ADEQUATELY INFORMED OF THE PROPOSED AMENDMENTS EMBODIED IN THE QUESTIONED RESOLUTIONS. — The three questioned resolutions, Nos. 28, 104 and 106, were approved by the Interim Batasang Pambansa sitting as a constituent assembly on Feb. 5 and 27, 1981. In the Batasang Pambansa Blg. 22, the date of the plebiscite is set for April 7, 1981. It is thus within the 90-day period provided by the Constitution. As for the people being adequately informed, it cannot be denied that this time, as in the 1980 Occena opinion where the amendment restored to seventy the retirement age of members of the judiciary, the

TEEHANKEE, J., dissenting:

2. ID.; ID.; ID.; INTERIM NATIONAL ASSEMBLY, THE AGENCY VESTED WITH THE POWER TO PROPOSE AMENDMENTS. — Under the prevailing doctrine of Tolentinovs. Comelec (L-34150, Oct. 16, 1971, 41 SCRA 702 and Resolution denying motion for reconsideration dated Nov. 4, 1971) the proposed amendments to be valid must come from the constitutional agency vested with the constituent power to do so, i.e. in the Interim National Assembly provided in the Transitory Article XVII which would then have to be convened and not from the executive power as vested in the (Prime Minister) from whom such constituent power has been withheld. 3. ID.; ID.; AMENDMENT CREATING THE INTERIM BATASANG PAMBANSA INVALID. — In Hidalgo vs. Marcos (80 SCRA 530[1977]) Justice Teehankee restated, that under the controlling doctrine of Tolentino (41 SCRA 702), the October 1976 constitutional amendments which created the Interim Batasang Pambansa in lieu of the Interim National Assembly were invalid since as ruled by the Court therein, constitutional provisions on amendments "dealing with the procedure or manner of amending the fundamental law are binding upon the Convention and the other departments of the government (and) are no less binding upon the people" and "the very idea of departing from the fundamental law is anachronistic in the realm of constitutionalism and repugnant to the essence of the rule of law". The proposed amendments at bar having been adopted by the Interim Batasang Pambansa as the fruit of the invalid October, 1976 amendments must necessarily suffer from the same congenital infirmity. 4. ID.; ID.; PLEBISCITE FOR THE RATIFICATION THEREOF; DATE SET FOR THE PLEBISCITE SHORT OF REQUIRED PERIOD. — Justice Teehankee reiterates his stand in Sanidad(73 SCRA 333 [1976]) that the doctrine of fair and proper submission first enunciated by a simple majority of six Justices (of an eleven-member Court prior to the 1973 Constitution which increased the official composition of the Court to fifteen) in Gonzales vs. Comelec (21 SCRA 774) and subsequently officially adopted by the required constitutional two-thirds majority vote of the Court (of eight votes, then) in Tolentino is fully applicable in the case at bar. The three resolutions proposing complex, complicated and radical amendments of our very structure of government were considered and approved by the Interim Batasang Pambansa sitting as a constituent assembly on February 27, 1981. It set the date of the plebiscite for thirty-nine days later on April 7, 1981 which is totally inadequate and 43

CONSTI 1 far short of the ninety-day period fixed by the Constitution for submittal to the people to "sufficiently inform them of the amendments to be voted upon, to conscientiously deliberate thereon and to express their will in a genuine manner." 5. ID.; ID.; ID.; AMENDMENTS MUST BE PROPERLY LAID TO THE PEOPLE. — "The Constitution can only be amended by the people expressing themselves according to the procedure ordained by the Constitution. Therefore, amendments must be fairly laid before the people for their blessing or spurning. The people are not to be mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunity to mull over the original provisions, compare them with the proposed amendments, and try to reach a conclusion as the dictates of their conscience suggest, free from the incubus of extraneous or possibly insidious influences. We believe the word 'submitted' can only mean that the government, within its maximum capabilities, should strain every effort to inform every citizen of the provisions to be amended, and the proposed amendments and the meaning, nature and effects thereof. . . . What the Constitution in effect directs is that the government, in submitting an amendment for ratification, should put every instrumentality or agency within its structural framework to enlighten the people, educate them with respect to their act of ratification or rejection. For, as we have earlier stated, one thing is submission and another is ratification. There must be fair submission, intelligent consent or rejection. If with all these safeguards the people still approve the amendments no matter how prejudicial it is to them, then so be it. For the people decree their own fate." (Gonzales vs. Comelec, Sanchez, J., separate opinion, 21 SCRA 774). DECISION FERNANDO, C.J p: The challenge in these two prohibition proceedings against the validity of three Batasang Pambansa Resolutions 1 proposing constitutional amendments, goes further than merely assailing their alleged constitutional infirmity. Petitioners Samuel Occena and Ramon A. Gonzales, both members of the Philippine Bar and former delegates to the 1971 Constitutional Convention that framed the present Constitution, are suing as taxpayers. The rather unorthodox aspect of these petitions is the assertion that the 1973 Constitution is not the fundamental law, the Javellana 2 ruling to the contrary notwithstanding. To put it at its mildest, such an approach has the arresting charm of novelty — but nothing else. It is in fact self defeating, for if such were indeed the case, petitioners have come to the wrong forum. We sit as a Court duty-bound to uphold and apply that Constitution. To contend otherwise as was done here would be, quite clearly, an exercise in futility. Nor are the arguments of petitioners cast in the traditional form of constitutional litigation any more persuasive. For reasons to be set forth, we dismiss the petitions. The suits for prohibition were filed respectively on March 6 3 and March 12, 1981. 4 On March 10 and 13 respectively, respondents were required to answer each within ten days from notice. 5 There was a comment on the part of the respondents. Thereafter, both cases were set for hearing and were duly argued on March 26 by petitioners and Solicitor General Estelito P. Mendoza for respondents. With the submission of pertinent data in amplification of the oral argument, the cases were deemed submitted for decision. LLpr It is the ruling of the Court, as set forth at the outset, that the petitions must be dismissed.

1ST SET – 9 CASES 1. It is much too late in the day to deny the force and applicability of the 1973 Constitution. In the dispositive portion of Javellana v. The Executive Secretary, 6dismissing petitions for prohibition and mandamus to declare invalid its ratification, this Court stated that it did so by a vote of six 7 to four. 8 It then concluded: "This being the vote of the majority, there is no further judicial obstacle to the new Constitution being considered in force and effect." 9 Such a statement served a useful purpose. It could even be said that there was a need for it. It served to clear the atmosphere. It made manifest that as of January 17, 1973, the presentConstitution came into force and effect. With such a pronouncement by the Supreme Court and with the recognition of the cardinal postulate that what the Supreme Court says is not only entitled to respect but must also be obeyed, a factor for instability was removed. Thereafter, as a matter of law, all doubts were resolved. The 1973 Constitution is the fundamental law. It is as simple as that. What cannot be too strongly stressed is that the function of judicial review has both a positive and a negative aspect. As was so convincingly demonstrated by Professors Black 10 and Murphy, 11 the Supreme Court can check as well as legitimate. In declaring what the law is, it may not only nullify the acts of coordinate branches but may also sustain their validity. In the latter case, there is an affirmation that what was done cannot be stigmatized as constitutionally deficient. The mere dismissal of a suit of this character suffices. That is the meaning of the concluding statement in Javellana. Since then, this Court has invariably applied the present Constitution. The latest case in point is People v. Sola, 12 promulgated barely two weeks ago. During the first year alone of the effectivity of the present Constitution, at least ten cases may be cited. 13 2. We come to the crucial issue, the power of the Interim Batasang Pambansa to propose amendments and how it may be exercised. More specially as to the latter, the extent of the changes that may be introduced, the number of votes necessary for the validity of a proposal, and the standard required for a proper submission. As was stated earlier, petitioners were unable to demonstrate that the challenged resolutions are tainted by unconstitutionality. (1) The existence of the power of the Interim Batasang Pambansa is indubitable. The applicable provision in the 1976 Amendments is quite explicit. Insofar as pertinent it reads thus: "The Interim Batasang Pambansa shall have the same powers and its Members shall have the same functions, responsibilities, rights, privileges, and disqualifications as the interim National Assembly and the regular National Assembly and the Members thereof." 14 One of such powers is precisely that of proposing amendments. The 1973 Constitution in its Transitory Provisions vested the Interim National Assembly with the power to propose amendments upon special call by the Prime Minister by a vote of the majority of its members to be ratified in accordance with the Article on Amendments. 15 When, therefore, the Interim Batasang Pambansa, upon the call of the President and Prime Minister Ferdinand E. Marcos, met as a constituent body, it acted by virtue of such competence. Its authority to do so is clearly beyond doubt. It could and did propose the amendments embodied in the resolutions now being assailed. It may be observed parenthetically that as far as petitioner Occena is concerned, the question of the authority of the Interim Batasang Pambansa to propose amendments is not new. In Occena v. Commission on Elections, 16 filed by the same petitioner, decided on January 28, 1980, such a question was involved although not directly passed upon. To quote from the opinion of the Court penned by Justice Antonio in that case: "Considering that the proposed amendment to Section 7 of Article X of the Constitution extending the retirement of members of the Supreme Court and judges of inferior courts from sixty-five (65) to seventy (70) years is but a restoration of the age of retirement provided in the 1935 Constitution and has been 44

CONSTI 1 intensively and extensively discussed at the Interim Batasang Pambansa, as well as through the mass media, it cannot, therefore, be said that our people are unaware of the advantages and disadvantages of the proposed amendment." 17 (2) Petitioners would urge upon us the proposition that the amendments proposed are so extensive in character that they go far beyond the limits of the authority conferred on the Interim Batasang Pambansa as successor of the Interim National Assembly. For them, what was done was to revise and not to amend. It suffices to quote from the opinion of Justice Makasiar, speaking for the Court, in Del Rosario v. Commission on Elections 18 to dispose of this contention. Thus: "3. And whether the Constitutional Convention will only propose amendments to the Constitution or entirely overhaul the present Constitution and propose an entirely new Constitution based on an ideology foreign to the democratic system, is of no moment; because the same will be submitted to the people for ratification. Once ratified by the sovereign people, there can be no debate about the validity of the new Constitution. 4. The fact that the present Constitution may be revised and replaced with a new one . . . is no argument against the validity of the law because 'amendment' includes the 'revision' or total overhaul of the entire Constitution. At any rate, whether the Constitution is merely amended in part or revised or totally changed would become immaterial the moment the same is ratified by the sovereign people." 19 There is here the adoption of the principle so well-known in American decisions as well as legal texts that a constituent body can propose anything but conclude nothing. 20 We are not disposed to deviate from such a principle not only sound in theory but also advantageous in practice. LibLex

1ST SET – 9 CASES and 27, 1981. In the Batasang Pambansa Blg. 22, the date of the plebiscite is set for April 7, 1981. It is thus within the 90-day period provided by the Constitution. Thus any argument to the contrary is unavailing. As for the people being adequately informed, it cannot be denied that this time, as in the cited 1980 Occena opinion of Justice Antonio, where the amendment restored to seventy the retirement age of members of the judiciary, the proposed amendments have "been intensively and extensively discussed at the Interim Batasang Pambansa, as well as through the mass media, [so that] it cannot, therefore, be said that our people are unaware of the advantages and disadvantages of the proposed amendment[s]." 22

WHEREFORE, the petitions are dismissed for lack of merit. No costs. ||| (Occena v. COMELEC, G.R. No. 56350, 56404, [April 2, 1981])

(3) That leaves only the questions of the vote necessary to propose amendments as well as the standard for proper submission. Again, petitioners have not made out a case that calls for a judgment in their favor. The language of the Constitution supplies the answer to the above questions. The Interim Batasang Pambansa, sitting as a constituent body, can propose amendments. In that capacity, only a majority vote is needed. It would be an indefensible proposition to assert that the three-fourth votes required when it sits as a legislative body applies as well when it has been convened as the agency through which amendments could be proposed. That is not a requirement as far as a constitutional convention is concerned. It is not a requirement either when, as in this case, the InterimBatasang Pambansa exercises its constituent power to propose amendments. Moreover, even on the assumption that the requirement of three-fourth votes applies, such extraordinary majority was obtained. It is not disputed that Resolution No. 1 proposing an amendment allowing a natural-born citizen of the Philippines naturalized in a foreign country to own a limited area of land for residential purposes was approved by the vote of 122 to 5; Resolution No. 2 dealing with the Presidency, the Prime Minister and the Cabinet, and the National Assembly by a vote of 147 to 5 with 1 abstention; and Resolution No. 3 on the amendment to the Article on the Commission on Elections by a vote of 148 to 2 with 1 abstention. Where then is the alleged infirmity? As to the requisite standard for a proper submission, the question may be viewed not only from the standpoint of the period that must elapse before the holding of the plebiscite but also from the standpoint of such amendments having been called to the attention of the people so that it could not plausibly be maintained that they were properly informed as to the proposed changes. As to the period, the Constitution indicates the way the matter should be resolved. There is no ambiguity to the applicable provision: "Any amendment to, or revision of, this Constitution shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not later than three months after the approval of such amendment or revision." 21 The three resolutions were approved by the Interim Batasang Pambansa sitting as a constituent assembly on February 5 45

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CONSTI 1

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 re-examination 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 need for such a re-examination. Justices Davide, Bellosillo, Vitug, Kapunan, Francisco and Panganiban wrote separate opinions which are hereto attached. WHEREFORE, the petition is DISMISSED. ||| (PIRMA v. COMELEC, G.R. No. 129754, [September 23, 1997])

[G.R. No. 129754. September 23, 1997.] PEOPLE'S INITIATIVE FOR REFORM, MODERNIZATION AND ACTION (PIRMA), ET AL., ETC., petitioner, vs. THE COMMISSION ON ELECTIONS, ET AL., respondent.

RESOLUTION

Gentlemen: Quoted hereunder, for your information, is a resolution of the Court En Banc dated SEPTEMBER 23, 1997. G.R. No. 129754 (People's Initiative for Reform, Modernization and Action (PIRMA), et al., etc. vs. The Commission on Elections, et al.) The Court NOTED the reply to petitioners' comment filed by Intervenor Joker P. Arroyo, dated September 22, 1997. The Court then deliberated on the petition in relation to the comments and other pleadings on record, and thereafter voted on the issues thereunder arising.

46

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CONSTI 1

in his capacity as President of the Senate; and Senator JOSE ROY, in his capacity as President Pro Tempore of the Senate, respondents. [G.R. No. L-36236. March 31, 1973.] EDDIE B. MONTECLARO, [personally and in his capacity President of the National Press Club of the Philippines], petitioner, vs, THE EXECUTIVE SECRETARY, THE SECRETARY OF PUBLIC INFORMATION, THE AUDITOR GENERAL, THE BUDGET COMMISSIONER & THE NATIONAL TREASURER, respondent. [G.R. No. L-36283. March 31, 1973.] NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., LEONARDO ASODISEN, JR., and RAUL M. GONZALEZ, petitioners, vs. THE HONORABLE SECRETARY OF NATIONAL DEFENSE, THE HONORABLE BUDGET COMMISSIONER, THE HONORABLE AUDITOR GENERAL, respondents. RESOLUTION CONCEPCION, J p: The above entitled five (5) cases are a sequel of cases G.R. Nos. L-35925, L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965 and L-35979, decided on January 22, 1973, to which We will hereafter refer collectively plebiscite cases. Background of the Plebiscite Cases [G.R. No. L-36142. March 31, 1973.] JOSUE JAVELLANA, petitioner, vs. THE EXECUTIVE SECRETARY, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF JUSTICE and THE SECRETARY OF FINANCE, respondents. [G.R. No. L-36164. March 31, 1973.] VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES, MANUEL CRUDO, ANTONIO U. MIRANDA, EMILIO DE PERALTA and LORENZO M. TAÑADA, petitioners, vs. THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE, THE SECRETARY OF JUSTICE, THE SECRETARY OF LAND REFORM, THE SECRETARY OF NATIONAL DEFENSE, THE AUDITOR GENERAL, THE BUDGET COMMISSIONER, THE CHAIRMAN OF PRESIDENTIAL COMMISSION ON REORGANIZATION, THE TREASURER OF THE PHILIPPINES, THE COMMISSION ON ELECTIONS and THE COMMISSIONER OF CIVIL SERVICE, respondents. [G.R. No. L-36165. March 31, 1973.] GERARDO ROXAS, AMBROSIO PADILLA, JOVITO R. SALONGA, SALVADOR H. LAUREL, RAMON V. MITRA, JR. and EVA ESTRADA-KALAW, petitioners, vs. ALEJANDRO MELCHOR, in his capacity as Executive Secretary; JUAN PONCE ENRILE, in his capacity as Secretary of National Defense; General ROMEO ESPINO, in his capacity as Chief of Staff of the Armed Forces of the philippines; CONSTANCIO E. CASTAÑEDA, in his capacity as Secretary of General Services; Senator GIL J. PUYAT,

The factual setting thereof is set forth in the decision rendered, from which We quote: "On March 16, 1967, Congress of the Philippines passed Resolution No. 2, which was amended by Resolution No. 4 of said body, adopted on June 17, 1969, calling a convention to propose amendments to the Constitution of the Philippines. Said Resolution No. 2, as amended, was implemented by Republic Act No. 6132, approved on August 24, 1970, pursuant to the provisions of which the election of delegates to said Convention was held on November 10, 1970, and the, 1971 Constitutional Convention began to perform its functions on June 1, 1971. While the Convention was in session on September 21, 1972, the President issued Proclamation No. 1081 placing the entire Philippines under Martial Law. On November 29, 1972, the Convention approved its Proposed Constitution of the Republic of the Philippines. The next day, November 30, 1972, the President of the Philippines issued Presidential Decree No. 73, 'submitting to the Filipino people for ratification or rejection the Constitution of the Republic of the Philippines proposed by the 1971 Constitutional Convention, and appropriating funds therefor,' as well as setting the plebiscite for said ratification or rejection of the Proposed Constitution on January 15, 1973. "Soon after, or on December 7, 1972, Charito Planas filed, with this Court, Case G.R. No. L-35925, against the Commission on Elections, the Treasurer of the Philippines and the Auditor General, to enjoin said 'respondents or their agents from implementing Presidential Decree No. 73, in any manner, until further orders of the Court,' upon the grounds, inter alia that said Presidential Decree 'has no force and effect as law because the calling . . . of such plebiscite, the setting of guidelines for 47

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CONSTI 1 the conduct of the same, the prescription of the ballots to be used and the question to be answered by the voters, and the appropriation of public funds for the purpose, are, by the Constitution, lodged exclusively in Congress . . .,' and 'there is no proper submission to the people of said Proposed Constitution set for January 15, 1973, there being no freedom of speech, press and assembly, and there being sufficient time to inform the people of the contents thereof.' "Substantially identical actions were filed, on December 8, 1972, by Pablo C. Sanidad against the Commission on Elections (Case G.R. No. L-35929); on December 11, 1972, by Gerardo Roxas, et al., against the Commission on Elections, Director of Printing, the National Treasurer and the Auditor General (Case G.R. L35940), by Eddie B. Monteclaro against the Commission on Elections and the Treasurer of the Philippines (Case G.R. No L-35941), and by Sedfrey A. Ordoñez, et al. against the National Treasurer and the Commission on Elections (Case G.R. No. L35942); on December 12, 1972, by Vidal Tan, et al., against the Commission on Elections, the Treasurer of the Philippines, the Auditor General and the Director of Printing (Case G.R. No. L-35948), and by Jose W. Diokno and Benigno S. Aquino against the Commission on Elections (Case G R No. L-35953); on December 14, 1972, by Jacinto Jimenez against the Commission on Elections, the Auditor General, the Treasurer of the Philippines and the Director of the Bureau of Printing (Case G.R. No. L-35961), and by Raul M. Gonzales against the Commission on Elections, the Budget Commissioner, the National Treasurer and the Auditor General (Case G.R. No. L-35965), and on December 16, 1972, by Ernesto C. Hidalgo against the Commission on Elections, the Secretary of Education, the National Treasurer and the Auditor General (Case G.R. No. L-35979). "In all these cases, except the last (G.R. No. L-35979), the respondents were required to file their answers 'not later than 12:00 (o'clock) noon of Saturday, December 16, 1972.' Said cases were, also, set for hearing and partly heard on Monday, December 18, 1972, at 9:30 a.m. The hearing was continued on December 19, 1972. By agreement of the parties, the aforementioned last case — G.R. No. L35979 — was, also, heard, jointly with the others, on December 19, 1972. At the conclusion of the hearing, on that date, the parties in all of the aforementioned cases were given a short period of time within which 'to submit their notes on the points they desire to stress.' Said notes were filed on different dates, between December 21, 1972, and January 4, 1973. "Meanwhile, or on December 17, 1972, the President had issued an order temporarily suspending the effects of Proclamation No. 1081, for the purpose of free and open debate on the Proposed Constitution. On December 23, the President announced the postponement of the plebiscite for ratification or rejection of the Proposed Constitution. No formal action to this effect was taken until January 7, 1973, when General Order No. 20 was issued, directing 'that the plebiscite scheduled to be held on January 15, 1973 be postponed until further notice.' Said General Order No. 20, moreover, 'suspended in the meantime' the 'order of December 17, 1972, temporarily suspending the effects of Proclamation No. 1081 for purposes of free and open debate on the proposed Constitution.' "In view of these events relative to the postponement of the aforementioned plebiscite, the Court deemed it fit to refrain, for the time being, from deciding the aforementioned cases, for neither the date nor the conditions under which said plebiscite would be held were known or announced officially. Then, again, Congress was, pursuant to the 1935 Constitution, scheduled to meet in regular session on January 22, 1973, and since the main objection to Presidential Decree No. 73 was that the President does not have the legislative authority to call a plebiscite and

appropriate funds therefor, which Congress unquestionably could do, particularly in view of the formal postponement of the plebiscite by the President — reportedly after consultation with, among others, the leaders of Congress and the Commission on Elections — the Court deemed it more imperative to defer its final action on these cases. "In the afternoon of January 12, 1973, the petitioners in Case G.R. No. L-35948 filed an 'urgent motion,' praying that said case be decided 'as soon as possible, preferably not later than January 15, 1973.' It was alleged in said motion, inter alia. '6.That the President subsequently announced the issuance of Presidential Decree No. 86 organizing the so-called Citizens Assemblies, to be consulted on certain public questions [Bulletin Today, January 1, 1973]; '7.That thereafter it was later announced that "the Assemblies will be asked if they favor or oppose — "[1]The New Society; "[2]Reforms instituted under Martial Law; "[3]The holding of a plebiscite on proposed new Constitution and when (the tentative new dates given following postponement of the plebiscite from the original date of January 15 are February 19 and March 5); "[4]The opening of the regular session on January 22 in accordance with the existing Constitution despite Martial Law." [Bulletin Today, January 3, 1973.] '8.That it was later reported that the following are to be the forms of the questions to be asked to the Citizens Assemblies: — "[1]Do you approve of the New Society? "[2]Do you approve of the reform measures under martial law? "[3]Do you think that Congress should meet again in regular session? "[4]How soon would you like the plebiscite on the new Constitution to be held?" [Bulletin Today, January 5, 1973]. '9.That the voting by the so-called Citizens Assemblies was announced to take place during the period from January 10 to January 15, 1973; '10.That on January 10, 1973, it was reported that one more question would be added to the four (4) questions previously announced, and that the forms of the questions would be as follows: — "[1]Do you like the New Society? "[2]Do you like the reforms under martial law? "[3]Do you like Congress again to hold sessions? "[4]Do you like the plebiscite to be held later? 48

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CONSTI 1 "[5]Do you like the way President Marcos is running the affairs of the government?" [Bulletin Today, January 10, 1973; additional question italics.] '11.That on January 11, 1973, it was reported that six (6) more questions would be submitted to the so called Assemblies: — "[1]Do you approve of the citizens assemblies as the base of popular government to decide issues of national interests?

Probably a period of at least seven (7) years moratorium on elections will be enough for stability to be established in the country, for reforms to take root and normalcy to return. QUESTION No. 6

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

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

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

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

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

"QUESTION No. 3

"[2]Do you approve of the New Constitution?

"[6]Do you want martial law to continue?" [Bulletin Today, January 11, 1973; italics supplied.] '12.That according to reports, the returns with respect to the six (6) additional questions quoted above will be on a form similar or identical to Annex "A" hereof; '13. That attached to page 1 of Annex "A" is another page which we marked as Annex "A-1", and which reads: — "COMMENTS ON QUESTION No. 1 In order to broaden the base of citizen participation in government. QUESTION No. 2 But we do not want the Ad Interim Assembly to be convoked. Or if it is to be convened at all, it should not be done so until after at least seven (7) years from the approval of the New Constitution by the Citizens Assemblies. QUESTION No. 3 The vote of the Citizens Assemblies should already be considered the plebiscite on the Constitution. If the Citizens Assemblies approve of the Constitution, then the new Constitution should be deemed ratified.

The vote of the Citizens Assemblies should be considered the plebiscite on the New Constitution. If the Citizens Assemblies approve of the New Constitution, then the new Constitution should be deemed ratified." This, we are afraid, and therefore allege, is pregnant with ominous possibilities. '14.That, in the meantime, speaking on television and over the radio, on January 7, 1973, the President announced that the limited freedom of debate on the proposed Constitution was being withdrawn and that the proclamation of martial law and the orders and decrees issued thereunder would thenceforth strictly be enforced [Daily Express, January 8, 1973]; '15.That petitioners have reason to fear, and therefore state, that the question added in the last list of questions to be asked to the Citizens Assemblies, namely: — "Do you approve of the New Constitution?" — in relation to the question following it: — "Do you still want a plebiscite to becalled to ratify the new Constitution?" — would be an attempt to by-pass and short-circuit this Honorable Court before which the question of the validity of the plebiscite on the proposed Constitution is now pending;

QUESTION No. 4

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

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

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

QUESTION No. 5

'18.That, if such event would happen, then the case before this Honorable Court could, to all intents and purposes, become moot because, petitioners fear, and they 49

CONSTI 1

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therefore allege, that on the basis of such supposed expression of the will of the people through the Citizens Assemblies, it would be announced that the proposed Constitution, with all its defects, both congenital and otherwise, has been ratified;

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

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

[a]The elections contemplated in the Constitution, Article XV, at which the proposed constitutional amendments are to be submitted for ratification, are elections at which only qualified and duly registered voters are permitted to vote, whereas, the so called Citizens' Assemblies were participated in by persons 15 years of age and older, regardless of qualifications or lack thereof, as prescribed in the Election Code; [b]Elections or plebiscites for the ratification of constitutional amendments contemplated in Article XV of the Constitution have provisions for the secrecy of choice and of vote, which is one of the safeguards of freedom of action, but votes in the Citizens' Assemblies were open and were cast by raising hands; [c]The Election Code makes ample provisions for free, orderly and honest elections, and such provisions are a minimum requirement for elections or plebiscites for the ratification of constitutional amendments, but there were no similar provisions to guide and regulate proceedings of the so called Citizens' Assemblies; [d]It is seriously to be doubted that, for lack of material time, more than a handful of the so called Citizens' Assemblies have been actually formed, because the mechanics of their organization were still being discussed a day or so before the day they were supposed to begin functioning —

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

'Provincial governors and city and municipal mayors had been meeting with barrio captains and community leaders since last Monday [January 8, 1973] to thresh out the mechanics in the formation of the Citizens' Assemblies and the topics for discussion.' [Bulletin Today, January 10, 1973]. 'It should be recalled that the Citizens' Assemblies were ordered formed only at the beginning of the year [Daily Express, January 1, 1973], and considering the lack of experience of the local organizers of said assemblies, as well as the absence of sufficient guidelines for organization, it is too much to believe that such assemblies could be organized at such a short notice. '5.That for lack of material time, the appropriate amended petition to include the additional officials and government agencies mentioned in paragraph 3 of this Supplemental Urgent Motion could not be completed because, as noted in the Urgent Motion of January 12, 1973, the submission of the proposed Constitution to the Citizens' Assemblies was not made known to the public until January 11, 1973. But be that as it may, the said additional officials and agencies may be properly included in the petition at bar because: — [a]The herein petitioners have prayed in their petition for the annulment not only of Presidential Decree No. 73, but also of "any similar decree, proclamation, order or instruction." so that Presidential Decree No. 86, insofar at least as it attempts to submit the proposed Constitution to a plebiscite by the so-called Citizens' Assemblies, is properly in issue in this case, and those who enforce, implement, or carry out the said Presidential Decree No. 86, and the instructions incidental thereto clearly fall within the scope of this petition; [b]In their petition, petitioners sought the issuance of a writ of preliminary injunction restraining not only the respondents named in the petition but also their "agents" from implementing not only Presidential Decree No. 73, but also "any other similar decree, order, instruction, or proclamation in relation to the holding of a plebiscite on January 15, 1973 for the purpose of submitting to the Filipino people 50

1ST SET – 9 CASES

CONSTI 1 for their ratification or rejection the 1972 Draft or proposed Constitution approved by the Constitutional Convention on November 30, 1972"; and finally, [c]Petitioners prayed for such other relief which may be just and equitable. [p. 39, Petition]. 'Therefore, viewing the case from all angles, the officials and government agencies mentioned in paragraph 3 of this Supplemental Urgent Motion, can lawfully he reached by the processes of this Honorable Court by reason of this petition, considering, furthermore, that the Commission on Elections has under our laws the power, among others, of: — "(a)Direct and immediate supervision and control over national, provincial, city, municipal and municipal district officials required by law to perform duties relative to the conduct of elections on matters pertaining to the enforcement of the provisions of this Code . . ." [Election Code of 1971, Sec. 3]. '6.That unless the petition at bar is decided immediately and the Commission on Elections, together with the officials and government agencies mentioned in paragraph 3 of this Supplemental Urgent Motion are restrained or enjoined from collecting, certifying, reporting or announcing to the President the results of the alleged voting of the so-called Citizens' Assemblies, irreparable damage will be caused to the Republic of the Philippines, the Filipino people, the cause of freedom and democracy, and the petitioners herein because: [a]After the result of the supposed voting on the questions mentioned in paragraph 1 hereof shall have been announced, a conflict will arise between those who maintain that the 1935 Constitution is still in force, on the one hand, and those who will maintain that it has been superseded by the proposed Constitution, on the other, thereby creating confusion, if not chaos; [b]Even the jurisdiction of this Court will be subject to serious attack because the advocates of the theory that the proposed Constitution has been ratified by reason of the announcement of the results of the proceedings of the so-called Citizens' Assemblies will argue that, General Order No. 3, which shall also be deemed ratified pursuant to the Transitory Provisions of the proposed Constitution, has placed Presidential Decree Nos. 73 and 86 beyond the reach and jurisdiction of this Honorable Court.' "On the same date — January 15, 1973 — the Court passed a resolution requiring the respondents in said case G.R. No. L-35948 to file 'file an answer to the said motion not later than 4 P.M., Tuesday, January 16, 1973,' and setting the motion for hearing 'on January 17, 1973, at 9:30 a.m.' While the case was being heard, on the date last mentioned, at noontime, the Secretary of Justice called on the writer of this opinion and said that, upon instructions of the President, he (the Secretary of Justice) was delivering to him (the writer) a copy of Proclamation No. 1102, which had just been signed by the President. Thereupon, the writer returned to the Session Hall and announced to the Court, the parties in G.R. No. L-35948 — inasmuch as the hearing in connection therewith was still going on — and the public there present that the President had, according to information conveyed by the Secretary of Justice, signed said Proclamation No. 1102, earlier that morning. Thereupon, the writer read Proclamation No. 1102 which is of the following tenor:

'WHEREAS, Citizens Assemblies were created in barrios, in municipalities and in districts/wards in chartered cities pursuant to Presidential Decree No. 86, dated December 31, 1972, composed of all persons who are residents of the barrio, district or ward for at least six months, fifteen years of age or over, citizens of the Philippines and who are registered in the list of Citizen Assembly members kept by the barrio, district or ward secretary; 'WHEREAS, the said Citizens Assemblies were established precisely to broaden the base of citizen participation in the democratic process and to afford ample opportunity for the citizenry to express their views on important national issues; 'WHEREAS, responding to the clamor of the people and pursuant to Presidential Decree No. 86-A, dated January 5, 1973, the following questions were posed before the Citizens Assemblies or Barangays: Do you approve of the New Constitution? Do you still want a plebiscite to be called to ratify the new Constitution? 'WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixtyone (14,976,561) members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed Constitution, as against seven hundred forty-three thousand eight hundred sixty-nine (743,869) who voted for its rejection; while on the question as to whether or not the people would still like a plebiscite to be called to ratify the new Constitution, fourteen million two hundred ninety-eight thousand eight hundred fourteen (14,298,814) answered that there was no need for a plebiscite and that the vote of the Barangays (Citizens Assemblies) should be considered as a vote in a plebiscite; 'WHEREAS, since the referendum results show that more than ninety-five (95) per cent of the members of the Barangays (Citizens Assemblies) are in favor of the new Constitution, the Katipunan ng Mga Barangay has strongly recommended that the new Constitution should already be deemed ratified by the Filipino people; 'NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the Constitution, do hereby certify and proclaim that the Constitution proposed by the nineteen hundred and seventy-one (1971) Constitutional Convention has been ratified by an overwhelming majority of all of the votes cast by the members of all the Barangays (Citizens Assemblies) throughout the Philippines, and has thereby come into effect. 'IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the Philippines to be affixed. 'Done in the City of Manila, this 17 th day of January, in the year of Our Lord, nineteen hundred and seventy-three. (Sgd.) FERDINAND E. MARCOS 'President of the Philippines

'BY THE PRESIDENT OF THE PHILIPPINES 'PROCLAMATION NO. 1102 'ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.

'By the President:

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

"Such is the background of the cases submitted for Our determination. After admitting some of the allegations made in the petition in L-35948 and denying the 51

'ALEJANDRO MELCHOR 'Executive Secretary'

1ST SET – 9 CASES

CONSTI 1 other allegations thereof, respondents therein alleged in their answer thereto, by way of affirmative defenses: 1) that the 'questions raised' in said petition 'are political in character'; 2) that 'the Constitutional Convention acted freely and had plenary authority to propose not only amendments but a Constitution which would supersede the present Constitution' as that 'the President's call for a plebiscite and the appropriation of funds for this purpose are valid'; 4) that 'there is not an improper submission' and there can be a plebiscite under Martial Law'; and 5) that the 'argument that the Proposed Constitution is vague and incomplete, makes an unconstitutional delegation of power, includes a referendum on the proclamation of Martial Law and purports to exercise judicial power' is 'not relevant and . . . without merit.' Identical defenses were set up in the other cases under consideration. "Immediately after the hearing held on January 17, 1973, or since the afternoon of that date, the Members of the Court have been deliberating on the aforementioned cases and, after extensive discussions on the merits thereof, have deemed it best that each Member write his own views thereon and that thereafter the Chief Justice should state the result or the votes thus cast on the points in issue. Hence, the individual views of my brethren in the Court are set forth in the opinions attached hereto, except that, instead of writing their separate opinions, some Members have preferred to merely concur in the opinion of one of our colleagues." Then the writer of said decision expressed his own opinion on the issues involved therein, after which he recapitulated the views of the Members of the Court, as follows: "1.There is unanimity on the justiciable nature of the issue on the legality of Presidential Decree No. 73. "2.On the validity of the decree itself, Justices Makalintal, Castro, Fernando, Teehankee, Esguerra and myself, or six (6) Members of the Court, are of the opinion that the issue has become moot and academic, whereas Justices Barredo, Makasiar and Antonio voted to uphold the validity of said Decree. "3.On the authority of the 1971 Constitutional Convention to pass the proposed Constitution or to incorporate therein the provisions contested by the petitioners in L-35948, Justices Makalintal, Castro, Teehankee and Esguerra opine that the issue has become moot and academic. Justices Fernando, Barredo, Makasiar, Antonio and myself have voted to uphold the authority of the Convention. "4.Justice Fernando, likewise, expressed the view that the 1971 Constitutional Convention had authority to continue in the performance of its functions despite the proclamation of Martial Law. In effect, Justices Barredo, Makasiar and Antonio hold the same view. "5.On the question whether the proclamation of Martial Law affected the proper submission of the proposed Constitution to a plebiscite, insofar as the freedom essential therefor is concerned Justice Fernando is of the opinion that there is a repugnance between the election contemplated under Art. XV of the 1935 Constitution and the existence of Martial Law, and would, therefore, grant the petitions were they not moot and academic. Justices Barredo, Antonio and Esguerra are of the opinion that issue involves questions of fact which cannot be predetermined, and that Martial Law per se does not necessarily preclude the factual possibility of adequate freedom for the purposes contemplated. "6.On Presidential Proclamation No. 1102, the following views were expressed:

"a.Justices Makalintal, Castro, Fernando, Teehankee, Makasiar, Esguerra and myself are of the opinion that the question of validity of said Proclamation has not been properly raised before the Court, which, accordingly, should not pass upon such question. "b.Justice Barredo holds that the issue on the constitutionality of Proclamation No. 1102 has been submitted to and should be determined by the Court, and that the purported ratification of the Proposed Constitution . . . based on the referendum among Citizens' Assemblies falls short of being in strict conformity with the requirements of Article XV of the 1935 Constitution,' but that such unfortunate drawback notwithstanding, 'considering all other related relevant circumstances, . . . the new Constitution is legally recognizable and should be recognized as legitimately in force.' "c.Justice Zaldivar maintains unqualifiedly that the Proposed Constitution has not been ratified in accordance with Article XV of the 1935 Constitution, and that, accordingly, it has no force and effect whatsoever. "d.Justice Antonio feels 'that the Court is not competent to act' on the issue whether the Proposed Constitution has been ratified by the people or not, 'in the absence of any judicially discoverable and manageable standards,' since the issue 'poses a question of fact.' "7.On the question whether or not these cases should be dismissed, Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra voted in the affirmative, for the reasons set forth in their respective opinions. Justices Fernando, Teehankee, and the writer similarly voted, except as regards Case No. L-35948 as to which they voted to grant to the petitioners therein a reasonable period of time within which to file appropriate pleadings should they wish to contest the legality of Presidential Proclamation No. 1102. Justice Zaldivar favors the granting of said period to the petitioners in said Case No. L-35948 for the aforementioned purpose, but he believes, in effect, that the Court should go farther and decide on the merits everyone of the cases under consideration." Accordingly, the Court — acting in conformity with the position taken by six (6) of its members, 1 with three (3) members dissenting, 2 with respect to G.R. No. L35948, only, and another member 3 dissenting, as regards all of the cases — dismissed the same, without special pronouncement as to costs. The Present Cases Prior thereto, or on January 20, 1973, Josue Javellana filed Case G.R. No. L-36142 against the Executive Secretary and the Secretaries of National Defense, Justice and Finance, to restrain said respondents "and their subordinates or agents, from implementing any of the provisions of the proposed Constitution not found in the present Constitution' — referring to that of 1935. The petition therein, filed by Josue Javellana, as a "Filipino citizen, and a qualified and registered voter" and as "a class suit, for himself, and in behalf of all citizens and voters similarly situated," was amended on or about January 24, 1973. After reciting in substance the facts set forth in the decision in the plebiscite cases, Javellana alleged that the President had announced "the immediate implementation of the New Constitution, thru his Cabinet, respondents including," and that the latter "are acting without, or in excess of jurisdiction in implementing the said proposed Constitution" upon the ground: "that the President, as Commander-in-Chief of the Armed Forces of the Philippines, 52

CONSTI 1 is without authority to create the Citizens Assemblies"; that the same "are without power to approve the proposed Constitution . . ."; "that the President is without power to proclaim the ratification by the Filipino people of the proposed Constitution"; and "that the election held to ratify the proposed Constitution was not a free election, hence null and void." Similar actions were filed, on January 23, 1973, by Vidal Tan, J. Antonio Araneta, Alejandro Roces, Manuel Crudo, Antonio U. Miranda, Emilio de Peralta and Lorenzo M. Tañada against the Executive Secretary, the Secretaries of Finance Justice, Land Reform, and National Defense, the Auditor General, Budget Commissioner, the Chairman of the Presidential Commission on Reorganization, the Treasurer of the Philippines, the Commission on Elections and the Commissioner of Civil Service 4 ; on February 3, 1973, by Eddie Monteclaro, personally and as President of the National Press Club of the Philippines, against the Executive Secretary, the Secretary of Public Information, the Auditor General, Budget Commissioner and the National Treasurer 5 ; and on February 12, 1973, by Napoleon V. Dilag, Alfredo Salapantan, Jr., Leonardo Asodisen, Jr. and Raul M. Gonzales, 6 against the Executive Secretary, the Secretary of National Defense, the Budget Commissioner and the Auditor General. Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio Padilla, Jovito R. Salonga, Salvador H. Laurel, 7 Ramon V. Mitra, Jr. and Eva Estrada-Kalaw, the first as "duly elected Senator and Minority Floor Leader of the Senate," and the others as "duly elected members" thereof, filed Case G.R. No. L-36165, against the Executive Secretary, the Secretary of National Defense, the Chief of Staff of the Armed Forces of the Philippines, the Secretary of General Services, the President and the President Pro Tempore of the Senate. In their petition — as amended on January 26, 1973 — petitioners Gerardo Roxas, et al. allege, inter alia, that the term of office of three (3) of the aforementioned petitioners 8 would expire en December 31, 1975, and that of the others 9 on December 31, 1977; that pursuant to our 1935 Constitution, "which is still in force," Congress of the Philippines "must convene for its 8th Session on Monday, January 22, 1973, at 10:00 A.M., which is the regular customary hour of its opening session"; that "on said day, from 10:00 A.M. up to the afternoon," said petitioner "along with their other colleagues, were unlawfully prevent from using the Senate Session Hall, the same having be closed by the authorities in physical possession and control of the Legislative Building'; that "(a)t about 5:00 to 6:00 P.M. of the said day, the premises of the entire Legislative Building were ordered cleared by the same authorities, and no one was allowed to enter and have access to said premises"; that "(r)espondent Senate President Gil J. Puyat and, in his absence, respondent President Pro Tempore Jose Roy were asked by petitioning Senators to perform their duties under the law and the Rules of the Senate, but unlawfully refrained and continue to refrain from doing so"; that the petitioners "are ready and willing to perform their duties as duly elected members of the Senate of the Philippines," but respondents Secretary of National Defense, Executive Secretary and Chief of Staff, "through their agents and representatives, are preventing petitioners from performing their duties as duly elected Senators of the Philippines"; that "the Senate premises in the Congress of the Philippines Building . . . are occupied by and are under the physical control of the elements of military organizations under the direction of said respondents"; that, as per "official reports, the Department of General Services . . . is now the civilian agent in custody of the premises of the Legislative Building"; that respondents "have unlawfully excluded and prevented, and continue to so exclude and prevent" the petitioners from the performance of their sworn duties, invoking the alleged approval of the 1972 (1973) Constitution of the Philippines by action of the so-called Citizens' Assemblies on January 10, 1973 to January 15, 197 ', as stated in and by virtue of

1ST SET – 9 CASES Proclamation No. 1102 signed and issued by the President of the Philippines"; that "the alleged creation of the Citizens' Assemblies as instrumentalities for the ratification of the Constitution of the Republic of the Philippines" is inherently illegal and palpably unconstitutional; that respondents Senate President and Senate President Pro Tempore "have unlawfully refrained and continue to refrain from and/or unlawfully neglected and continue to neglect the performance of their duties and functions as such officers under the law and the Rules of the Senate" quoted in the petition; that because of events supervening the institution of the plebiscite cases, to which reference has been made in the preceding pages" the Supreme Court dismissed said cases on January 22, 1973, by a majority vote, upon the ground that the petitions therein had become moot and academic; that the alleged ratification of the 1972 (1973) Constitution "is illegal, unconstitutional and void and . . . can not have superseded and revoked the 1935 Constitution," for the reasons specified in the petition as amended; that, by acting as they did, the respondents and their "agents, representatives and subordinates . . . have excluded the petitioners from an office to which" they "are lawfully entitled"; that "respondents Gil J. Puyat and Jose Roy have unlawfully refrained from convening the Senate for its 8th session, assuming general jurisdiction over the Session Hall and the premises of the Senate and . . . continue such inaction up to this time and . . . a writ of mandamus is warranted in order to compel them to comply with the duties and functions specifically enjoined by law"; and that "against the above mentioned unlawful acts of the respondents, the petitioners have no appeal nor other speedy and adequate remedy in the ordinary course of law except by invoking the equitable remedies of mandamus and prohibition with the provisional remedy of preliminary mandatory injunction."

Premised upon the foregoing allegations, said petitioners prayed that, "pending hearing on the merits, a writ of preliminary mandatory injunction be issued ordering the respondents Executive Secretary, the Secretary of National Defense, the Chief of Staff of the Armed Forces of the Philippines, and the . . . Secretary of General Services, as well as all their agents, representatives and subordinates to vacate the premises of the Senate of the Philippines and to deliver physical possession of the same to the President of the Senate or his authorized representative"; and that "after hearing, judgment be rendered declaring null and void Proclamation No. 1102 . . . and any order, decree, or proclamation having the same import and objective, issuing the writs of prohibition and mandamus, as prayed for against the abovementioned respondents, and making the writ of injunction permanent; and that a writ of mandamus be issued against the respondents Gil J. Puyat and Jose Roy directing them to comply with their duties and functions as President and President Pro Tempore, respectively, of the Senate of the Philippines, as provided by law and the Rules of the Senate." Required to comment on the above-mentioned petitions and/or amended petitions, respondents filed, with the leave of Court first had and obtained, a consolidated comment on said petitions and/or amended petitions, a consolidated comment on said petitions and/or amended petitions, alleging that the same ought to have been dismissed outright; controverting petitioners' allegations concerning the alleged lack or impairment of the freedom of the 1971 Constitutional Convention to approve the proposed Constitution, its alleged lack of authority to incorporate certain contested provisions thereof, the alleged lack of authority of the President to create and establish Citizens' Assemblies "for the purpose of submitting to them the matter of ratification of the new Constitution," the alleged "improper or inadequate 53

CONSTI 1 submission of the proposed constitution," the "procedure for ratification adopted . . . through the Citizens Assemblies"; and maintaining that: 1) "(t)he Court is without jurisdiction to act on these petitions"; 2) the questions raised therein are "political in character and therefore non-justiciable"; 3) "there was substantial compliance with Article XV of the 1935 Constitution"; 4) "(t)he Constitution was properly submitted to the people in a free, orderly and honest election"; 5) "Proclamation No. 1102, certifying the results of the election, is conclusive upon the courts"; and 6) "(t)he amending process outlined in Article XV of the 1935 Constitution is not exclusive of other modes of amendment." Respondents Puyat and Roy, in said Case G.R. No. L-36165, filed their separate comment therein, alleging that "(t)he subject matter" of said case "is a highly political question which, under the circumstances, this . . . Court would not be in a position to act upon judicially," and that, in view of the opinions expressed by three members of this Court in its decision in the plebiscite cases, in effect upholding the validity of Proclamation No. 1102, "further proceedings in this case may only be an academic exercise in futility." On February 5, 1973, the Court issued a resolution requiring respondents in L 36236 to comment on the petition therein not later than Saturday, February 10, 1973, and setting the case for hearing on February 12, 1973, at 9:30 a.m. By resolution dated February 7, 1973, this Court resolved to consider the comments of the respondents in cases G.R. Nos. L-36142, L-36161, L-36165, as motions to dismiss the petitions therein, and to set said cases for hearing on the same date and time as L-36236. On that date, the parties in G.R. No. L-36283 10 agreed that the same be, likewise, heard, as it was, in fact, heard jointly with the aforementioned cases G.R. Nos. L36142, L-36164, L-36165 and L 36236. The hearing, which began on February 12, shortly after 9:30 a.m., was continued not only that after but, also, on February 13, 14, 15 and 16, morning and afternoon, after which the parties were granted up to February 24, 1973, noon, within which to submit their notes arguments and additional arguments, as well as the documents required of them or whose presentation was reserved by them. The same resolution granted the parties until March 1, 1973, to reply to the notes filed by their respective opponents. Counsel for the petitioners in G.R. Nos. L-36164 and L-36165 filed their aforementioned notes on February 24, 1973, on which date the Solicitor General sought an extension of time up to March 3, 1973, within which to file his notes, which was granted, with the understanding that said notes shall include his reply to the notes already filed by the petitioners in G.R. Nos. L-36164 and L-36165. Counsel for the petitioners, likewise, moved and were granted an extension of time, to expire on March 10, 1973, within which to file, as they did, their notes in reply to those submitted by the Solicitor General on March 3, 1973. On March 21, 1973, petitioners in l-36165 filed a "Manifestation and Supplemental Rejoinder," whereas the Office of the Solicitor General submitted in all these cases a "Rejoinder to Petitioners' Replies." After deliberating on these cases, the members of the Court agreed that each would write his own opinion and serve a copy thereof on his colleagues, and this they did. Subsequently, the Court discussed said opinions and votes were cast thereon. Such individual opinions are appended hereto. Accordingly, the writer will first express his personal opinion on the issues before the Court. After the exposition of his aforesaid opinion, the writer will make, concurrently with his colleagues in the Court, a resume of summary of the votes cast by them in these cases. Writer's Personal Opinion

1ST SET – 9 CASES I Alleged academic futility of further proceedings in G.R. No. L-36165. This defense or theory, set up by counsel for respondents Gil J. Puyat and Jose Roy in G.R. No. L-36165, and, also, by the Solicitor General, is predicated upon the fact that, in Our decision in the plebiscite cases, Mr. Justice Barredo expressed the view that the 1935 Constitution had "pro tanto passed into history" and "been legitimately supplanted by the Constitution now in force by virtue of Proclamation No. 1102 . . . "; that Mr. Justice Antonio did not feel "that this Court is competent to act" in said cases "in the absence of any judicially discoverable and manageable standards" and because "the access to relevant information is insufficient to assure the correct determination of the issue," apart from the circumstance that "the new constitution has been promulgate and great interests have already arisen under it" and that the political organ of the Government has recognized its provisions; whereas, Mr. Justice Esguerra had postulated that "(w)ithout any competent evidence . . . about the circumstances attending the holding" of the referendum or plebiscite" thru the Citizens' Assemblies, he "cannot say that it was not lawfully held" and that, accordingly, he assumed "that what the proclamation (No. 1102) says on its face is true and until overcome by satisfactory evidence" he could not "subscribe to the claim that such plebiscite was not held accordingly"; and that he accepted "as a fait accompli that the Constitution adopted (by the 1971 Constitutional Convention) on November 30, 1972, has been duly ratified." Counsel for respondents Gil J. Puyat and Jose Roy goes on to say that, under these circumstances, "it seems remote or improbable that the necessary eight (8) votes under the 1935 Constitution, and much less the ten (10) votes required by the 1972 (1973) Constitution, can be obtained for the relief sought in the Amended Petition" in G.R. No. L-36165. I am unable to share this view. To begin with, Mr. Justice Barredo announced publicly, in open court, during the hearing of these cases, that he was and is willing to be convinced that his aforementioned opinion in the plebiscite cases should be reconsidered and changed. In effect, he thus declared that he had an open mind in connection with the cases at bar, and that in deciding the same he would not necessarily adhere to said opinion if the petitioners herein succeeded in convincing him that their view should be sustained. Secondly, counsel for the aforesaid respondents had apparently assumed that, under the 1935 Constitution, eigth (8) votes are necessary to declare invalid the contested Proclamation No. 1102. I do not believe that this assumption is borne out by any provision of said Constitution. Section 10 of Article VIII thereof reads: "All cases involving the constitutionality of a treaty or law shall be heard and decided by the Supreme Court in banc, and no treaty or law may be declared unconstitutional without the concurrence of two thirds of all the members of the Court." Pursuant to this section, the concurrence of two thirds of all the Members of the Supreme Court is required only to declare a "treaty or law" unconstitutional. Construing said provision, in a resolution dated September 16, 1949, then Chief Justice Moran, voicing the unanimous view of the Members of this Court, postulated: ". . . There is nothing either in the Constitution or in the Judiciary Act requiring the vote of eight Justices to nullify a rule or regulation or an executive order issued by 54

CONSTI 1 the President. It is very significant that in the previous drafts of section 10, Article VIII of the Constitution, 'execution order' and 'regulation' were included among those that required for their nullification the vote of two-thirds of all the members of the Court. But 'executive order' and 'regulation' were later deleted from the final draft (Aruego, The Framing of the Philippine Constitution, Vol. I, pp. 495, 496), and thus a mere majority of six members of this Court is enough to nullify them." 11 The distinction is not without reasonable foundation. The two thirds vote (eight [8] votes) requirement, indeed, was made to apply only to treaty and law, because, in these cases, the participation of the two other departments of the government — the Executive and the Legislative — is present, which circumstance is absent in the case of rules, regulations and executive orders. Indeed, a law(statute) passed by Congress is subject to the approval or veto of the President, whose disapproval cannot be overridden except by the vote of two-thirds (2/3) of all members of each House of Congress. 12 A treaty is entered into by the President with the concurrence of the Senate, 13 which is not required in the case of rules, regulations or executive orders which are exclusive acts of the President. Hence, to nullify the same, a lesser number of votes is necessary in the Supreme Court than that required to invalidate a law or treaty. Although the foregoing refers to rules, regulations and executive orders issued by the President, the dictum applies with equal force to executive proclamations, like said Proclamation No. 1102, inasmuch as the authority to issue the same is governed by section 63 of the Revised Administrative Code, which provides: "Administrative acts and commands of the (Governor-General) President of the Philippines touching the organization or mode of operation of the Government or rearranging or readjusting any of the districts, divisions, parts, or ports of the (Philippine Islands) Philippines and all acts and commands governing the general performance of duties by public employees or disposing of issues of general concern shall be made effective in executive orders. "Executive orders fixing the dates when specific laws, resolutions, or orders are to have or cease to (have) effect and any information concerning matters of public moment determined by law, resolution, or executive orders, may be promulgated in an executive proclamation, with all the force of an executive order." 14 In fact, while executive orders embody administrative acts or commands of the President, executive proclamations are mainly informative and declaratory in character, and so does counsel for respondents Gil J. Puyat and Jose Roy maintain in G.R. No. L-36165. 15 As consequence, an executive proclamation has no more than "the force of an executive order," so that, for the Supreme Court to declare such proclamation unconstitutional, under the 1935 Constitution, the same number of votes needed to invalidate an executive order, rule of regulation — namely, six (6) votes — would suffice. As regards the applicability of the provisions of the proposed new Constitution, approved by the 1971 Constitutional Convention, in the determination of the question whether or not it is now in force, it is obvious that such question depends upon whether or not the said new Constitution has been ratified in accordance with the requirements of the 1935 Constitution, upon the authority of which said Constitutional Convention was called and approved the proposed Constitution. It is well settled that the matter of ratification of an amendment to the Constitution should be settled by applying the provisions of the Constitution in force at the time of the alleged ratification, or the old Constitution. 16

1ST SET – 9 CASES II Does the issue on the validity of Proclamation No. 1102 partake of the nature of a political, and, hence, non-justiciable question? The Solicitor General maintains in his comment the affirmative view and this is his main defense. In support thereof, he alleges that "petitioners would have this Court declare as invalid the New Constitution of the Republic" from which — he claims — "this Court now derives its authority"; that "nearly 15 million of our body politic from the age of 15 years have mandated this Constitution to be the New Constitution and the prospect of unsettling acts done in reliance on it caution against interposition of the power of judicial review"; that "In the case of the New Constitution, the government has been recognized in accordance with the New Constitution"; that "the country's foreign relations are now being conducted in accordance with the new charter"; that "foreign governments have taken note of it"; that the "plebiscite cases" are "not precedents for holding questions regarding proposal and ratification justiciable"; and that "to abstain from judgment on the ultimate issue of constitutionality is not to abdicate duty." At the outset, it is obvious to me that We are not being asked to "declare" the new Constitution invalid. What petitioners dispute is the theory that it has been validly ratified by the people, especially that they have done so in accordance with Article XV of the 1935 Constitution. The petitioners maintain that the conclusion by the Chief Executive in the dispositive portion of Proclamation No. 1102 is not borne out by the whereases preceding the same, as the predicates from which said conclusion was drawn; that the plebiscite or "election" required in said Article XV has not been held; that the Chief Executive has not authority, under the 1935 Constitution, to dispense with said election or plebiscite; that the proceedings before the Citizens' Assemblies did not constitution and may not be considered as such plebiscite; that the facts of record abundantly show that the aforementioned Assemblies could not have been held throughout the Philippines from January 10 to January 15, 1973; and that, in any event, the proceedings in said Assemblies are null and void as an alleged ratification of the new Constitution proposed by the 1971 Constitutional Convention, not only because of the circumstances under which said Assemblies had been created and held, but, also, because persons disqualified to vote under Article V of the Constitution were allowed to participate therein, because the provisions of our Election Code were not observed in said Assemblies, because the same were not held under the supervision of the Commission on Elections, in violations of section 2 of Article X of the 1935 Constitution, and because the existence of Martial Law and General Order No. 20, withdrawing or suspending the limited freedom to discuss the merits and demerits of said proposed Constitution, impaired the people's freedom in voting thereon, particularly, a viva voce, as it was done in many instances, as well as their ability to have a reasonable knowledge of the contents of the document on which they were allegedly called upon to express their views. Referring now more specifically to the issue on whether the new Constitution proposed by the 1971 Constitutional Convention has been ratified in accordance with the provisions of Article XV of the 1935 Constitution is a political question or not, I do not hesitate to state that the answer must be in the negative. Indeed, such is the position taken by this Court, 17 in an endless line of decisions, too long to leave any room for possible doubt that said issue is inherently and essentially justiciable. Such, also, has been the consistent position of the courts of the United States of America, whose decisions have a persuasive effect in this jurisdiction, our constitutional system in the 1935 Constitution being patterned after that of the 55

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CONSTI 1 United States. Besides, no plausible reason has, to my mind, been advanced to warrant a departure from said position, consistently with the form of government established under said Constitution. Thus, in the aforementioned plebiscite cases, 18 We rejected the theory of the respondents therein that the question whether Presidential Decree No. 73 calling a plebiscite to be held on January 15, 1973, for the ratification or rejection of the proposed new Constitution, was valid or not, was not a proper subject of judicial inquiry because, they claimed, it partook of a political nature; and We unanimously declared that the issue was a justiciable one. With identical unanimity, We overruled the respondents' contention in the 1971 habeas corpus cases, 19 questioning Our authority to determine the constitutional sufficiency of the factual bases of the Presidential proclamation suspending the privileges of the writ of habeas corpus on August 21, 1971, despite the opposite view taken by this Court in Barcelona v. Baker 20 and Montenegro v. Castañeda, 21 insofar as it adhered to the former case, which view We, accordingly abandoned and refused to apply. For the same reason, We did not apply and expressly modified, in Gonzales v. Commission on Elections, 22 the political-question theory adopted in Mabanag v. Lopez Vito. 23 Hence, respondents herein urge Us to reconsider the action thus taken by the Court and to revert to and follow the views expressed in Barcelon v. Baker and Mabanag v. Lopez Vito. 24 The reasons adduced in support thereof are, however, substantially the same as those given in support of the political-question theory advanced in said habeas corpus and plebiscite cases, which were carefully considered by this Court and found by it to be legally unsound and constitutionally untenable. As a consequence, Our decision in the aforementioned habeas corpus cases partakes of the nature and effect of a stare decisis, which gained added weight by its virtual reiteration in the plebiscite cases. The reason why the issue under consideration and other issues of similar character are justiciable, not political, is plain and simple. One of the principal bases of the non-justiciability of so-called political questions is the principle of separation of powers — characteristic of the Presidential system of government — the functions of which are classified or divided, by reason of their nature, into three (8) categories, namely: 1) those involving the making of laws, which are allocated to the legislative department; 2) those concerned mainly with the enforcement of such laws and of judicial decisions applying and/or interpreting the same, which belong to the executive department; and 3) those dealing with the settlement of disputes, controversies or conflicts involving rights, duties or prerogatives that are legally demandable and enforceable, which are apportioned to courts of justice. Within its own sphere — but only within such sphere — each department is supreme and independent of the others, and each is devoid of authority, not only to encroach upon the powers or field of action assigned to any of the other departments, but, also, to inquire into or pass upon the advisability or wisdom of the acts performed, measures taken or decisions made by the other departments — provided that such acts, measures or decisions are within the area allocated thereto by the Constitution. 25 This principle of separation of powers under the Presidential system goes hand in hand with the system of checks and balances, under which each department is vested by the Fundamental Law with some powers to forestall, restrain or arrest a possible or actual misuse or abuse of powers by the other departments. Hence, the appointing power of the Executive, his pardoning power, his veto power, his authority to call the Legislature or Congress to special sessions and even to

prescribe or limit the object or objects of legislation that may be taken up in such sessions, etc. Conversely, Congress or an agency or arm thereof — such as the Commission on Appointments; — may approve or disapprove some appointments made by the President, It, also, has the power of appropriation, to "define, prescribe, and apportion the jurisdiction of the various courts," as well as that of impeachment. Upon the other hand, under the judicial power vested by the Constitution, the "Supreme Court and . . . such inferior courts as may be established by law," may settle or decide with finality, not only justiciable controversies between private individuals or entities, but, also, disputes or conflicts between a private individual or entity, on the one hand, and an officer or branch of the government, on the other, or between two (2) officers or branches of service, when the latter officer or branch is charged with acting without jurisdiction or in excess thereof or in violation of law. And so, when a power vested in said officer or branch of the government is absolute or unqualified, the acts in the exercise of such power are said to be political in nature, and, consequently, non-justiciable beyond judicial review. Otherwise, courts of justice would be arrogating upon themselves a power conferred by the Constitution upon another branch of the service to the exclusion of the others. Hence, in Tañada v. Cuenco, 26 this Court quoted with approval from In re McConaughy, 27 the following: "'At the threshold of the case we are met with the assertion that the questions involved are political, and not judicial. If this is correct, the court has no jurisdiction as the certificate of the state canvassing board would then be final, regardless of the actual vote upon the amendment. The question thus raised is a fundamental one; but it has been so often decided contrary to the view contended for by the Attorney General that it would seem to be finally settled. xxx xxx xxx "'. . . What is generally meant, when it is said that a question is political, and not judicial, is that it is a matter which is to be exercised by the people in their primary political capacity, or that it has been specifically delegated to some other department or particular officer of the government, with discretionary power to act. See State vs. Cunningham, 81 Wis. 497, N.W. 724, 15 L.R.A. 561; In re Gunn, 50 Kan. 155; 32 Pac. 470, 948, 19 L.R.A. 519; Green vs. Mills, 69 Fed. 852, 16 C.C.A. 516, 30 L.R.A. 90; Fletcher vs. Tuttle, 151 Ill. 41 37 N.E. 683, 25 L.R.A. 143, 42 Am. St. Rep. 220. Thus the Legislature may in its discretion determine whether it will pass a law or submit a proposed constitutional amendment to the people. The courts have no judicial control over such matters, not merely because they involve political questions, but because they are matters which the people have by the Constitution delegated to the Legislature. The Governor may exercise the powers delegated to him, free from judicial control, so long as he observes the laws and acts within the limits of the power conferred. His discretionary acts cannot be controllable, not primarily because they are of a political nature, but because the Constitution and laws have placed the particular matter under his control. But every officer under a constitutional government must act according to law and subject to its restrictions, and every departure therefrom or disregard thereof must subject him to that restraining and controlling power of the people, acting through the agency of the judiciary; for it must be remembered that the people act through courts, as well as through the executive or the Legislature. One department is just as representative as the other, and the judiciary is the department which is charged with the special duty of determining the limitations which the law places upon all official action. The recognition of this principle, unknown except in Great Britain and America, is necessary, to "the end that the government may be one of laws and not 56

CONSTI 1 of men" — words which Webster said were the greatest contained in any written constitutional document.' (Italics supplied.)" and, in an attempt to describe the nature of a political question in terms, it was hoped, understandable to the laymen, We added that ". . . the term 'political question' connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy" in matters concerning the government of a State, as a body politic. "In other words, in the language of Corpus Juris Secundum (supra), it refers to 'those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the government.' It is concerned with issues dependent upon the wisdom, not legality, of a particular measure." Accordingly, when the grant of power is qualified, conditional or subject to limitations, the issue on whether or not the prescribed qualifications or conditions have been met, or the limitations respected, it justiciable or non-political, the crux of the problem being one of legality or validity of the contested act, not its wisdom. Otherwise, said qualifications, conditions or limitations — particularly those prescribed or imposed by the Constitution — would be set at naught. What is more, the judicial inquiry into such issue and the settlement thereof are the main functions of courts of justice under the Presidential form of government adopted in our 1935 Constitution, and the system of checks and balances, one of its basic predicates. As a consequence, We have neither the authority nor the discretion to decline passing upon said issue, but are under the ineluctable obligation — made particularly more exacting and peremptory by our oath, as members of the highest Court of the land, to support and defend the Constitution — to settle it. This explains why, in Miller v. Johnson, 28 it was held that courts have a "duty, rather than a power", to determine whether another branch of the government has "kept within constitutional limits." Not satisfied with this postulate, the court went farther and stressed that, if the Constitution provides how it may be amended — as it is in our 1935 Constitution — "then, unless the manner is followed, the judiciary as the interpreter of that constitution, will declare the amendment invalid." 29 In fact, this very Court — speaking through Justice Laurel, an outstanding authority on Philippine Constitutional Law, as well as one of the highly respected and foremost leaders of the Convention that drafted the 1935 Constitution — declared, as early as July 15, 1936, that "(i)n times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments" of the government. 30 The Solicitor General has invoked Luther v. Borden 31 in support of his stand that the issue under consideration is non-justiciable in nature. Neither the factual background of that case nor the action taken therein by the Federal Supreme Court has any similarity with or bearing on the cases under consideration. Luther v. Borden was an action for trespass filed by Luther with the Circuit Court of the United States against Borden and others for having forcibly entered into Luther's house, in Rhode Island, sometime in 1842. The defendants who were in the military service of said former colony of England, alleged in their defense that they had acted in obedience to the commands of a superior officer, because Luther and others were engaged in a conspiracy to overthrow the government by force and the state had been placed by competent authority under Martial Law. Such authority was the charter government of Rhode Island at the time of the Declaration of Independence, for — unlike other states which adopted a new Constitution upon

1ST SET – 9 CASES secession from England — Rhode Island retained its form of government under a British Charter, making only such alterations, by acts of the Legislature, as were necessary to adapt it to its subsequent condition as an independent state. It was under this form of government when Rhode Island joined other American states in the Declaration of Independence and, by subsequently ratifying the Constitution of the United States, became a member of the Union. In 1843, it adopted a new Constitution. Prior thereto, however, many citizens had become dissatisfied with the charter government. Memorials addressed by them to the Legislature having failed to bring about the desired effect, meetings were held and associations formed — by those who belonged to this segment of the population — which eventually resulted in a convention called for the drafting of a new Constitution to be submitted to the people for their adoption or rejection. The convention was not authorized by any law of the existing government. The delegates to such convention framed a new Constitution which was submitted to the people. Upon the return of the votes cast by them, the convention declared that said Constitution had been adopted and ratified by a majority of the people and became the paramount law and Constitution of Rhode Island. The charter government, which was supported by a large number of citizens of the state, contested, however, the validity of said proceedings. This notwithstanding, one Thomas W. Dorr, who had been elected governor under the new Constitution of the rebels, prepared to assert authority by force of arms, and many citizens assembled to support him. Thereupon, the charter government passed an Act declaring the state under Martial Law and adopted measures to repel the threatened attack and subdue the rebels. This was the state of affairs when the defendants, who were in the military service of the charter government and were to arrest Luther, for engaging in the support of the rebel government — which was never able to exercise any authority in the state — broke into his house. Meanwhile, the charter government had taken measures to call its own convention to revise the existing form of government. Eventually, a new constitution was drafted by a convention held under the authority of the charter government, and thereafter was adopted and ratified by the people. "(T)he times and places at which the votes were to be persons who were to be given, the receive and return them qualifications of the voters having all been previously authorized and provided for by law passed by the charter government," the latter formally surrendered all of its power to the new government, established under its authority, in May 1843, which had been in operation uninterruptedly since then. About a year before, or in May 1842, Dorr, at the head of a military force, had made an unsuccessful attempt to take possession of the state arsenal in Providence, but he was repulsed, and, after an "assemblage of some hundreds of armed men under his command at Chepatchet in the June following which dispersed upon approach of the troops of the old government, no further effort was made to establish" his government. ". . . until the Constitution of 1843" — adopted under the auspices of the charter government — "went into operation, the charter government continued to asset its authority and exercise its powers and to enforce obedience throughout the state . . ." Having offered to introduce evidence to prove that the constitution of the rebels had been ratified by the majority of the people, which the Circuit Court rejected, apart from rendering judgment for the defendants, the plaintiff took the case for 57

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review to the Federal Supreme Court which affirmed the action of the Circuit Court, stating:

revised Constitution proposed by the 1971 Constitutional Convention and now alleges that it has been ratified by the people.

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

In short, the views expressed by the Federal Supreme Court in Luther v. Borden, decided in 1849, on matters other than those referring to its power to review decisions of a state court concerning the constitution and government of that state, not the Federal Constitution or Government, are manifestly neither controlling, nor even persuasive in the present cases, having — as the Federal Supreme Court admitted — no authority whatsoever to pass upon such matters or to review decisions of said state court thereon. In fact, referring to that case, the Supreme Court of Minnesota had the following to say:

"The point, then, raised here has been already decided by the courts of Rhode Island. The question relates, altogether, to the constitution and laws of that State; and the well settled rule in this court is, that the courts of the United States adopt and follow the decisions of the State courts in questions which concern merely the constitution and laws of the State. "Upon what ground could the Circuit Court of United States which tried this case have departed from this rule, and disregarded and overruled the decisions of the courts of Rhode Island? Undoubtedly the courts of the United States have certain powers under the Constitution and laws of the United States which do not government has been lawfully established, which the courts of State disown and repudiate, is not one of them. Upon such a question the courts of the United States are bound to follow the decisions of the State tribunals, and must therefore regard the charter government as the lawful and established government during the time of this contest." 32 It is thus apparent that the context within which the case of Luther v. Borden was decided is basically and fundamentally different from that of the cases at bar. To begin with, the case did not involve a federal question, but one purely municipal in nature. Hence, the Federal Supreme Court was "bound to follow the decisions of the State tribunals" of Rhode Island upholding the constitution adopted under the authority of the charter government. Whatever else was said in that case constitutes, therefore, an obiter dictum. Besides, no decision analogous to that rendered by the State Court of Rhode Island exists in the cases at bar. Secondly, the states of the Union have a measure of internal sovereignty upon which the Federal Government may not encroach, whereas ours is a unitary form of government, under which our local governments derive their authority from the national government. Again, unlike our 1935 Constitution, the charter or organic law of Rhode Island contained no provision on the manner, procedure or conditions for its amendment. Then, too, the case of Luther v. Borden hinged more on the question of recognition of government, than on recognition of constitution, and there is a fundamental difference between these two (2) types of recognition, the first being generally conceded to be a political question, whereas the nature of the latter depends upon a number of factors, one of them being whether the new Constitution in force at the time of the purported ratification of the former, which is essentially a justiciable question. There was, in Luther v. Borden, a conflict between two (2) rival governments, antagonistic to each other, which is absent in the present cases. Here, the Government established under the 1935 Constitution is the very same government whose Executive Department has urged the adoption of the new or

"Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always cited by those who assert that the courts have no power to determine questions of a political character. It is interesting historically, but it has not the slightest application to the case at bar. When carefully analyzed, it appears that it merely determines that the federal courts will accept as final and controlling a decision of the highest court of a state upon a question of the construction of the Constitution of the state . . ." 33 Baker v. Carr, 34 cited by respondents, involved an action to annul a Tennessee statute apportioning the seats in the General Assembly among the counties of the State, upon the theory that the legislation violated the equal protection clause. A district court dismissed the case upon the ground, among others, that the issue was a political one, but, after a painstaking review of the jurisprudence on the matter, the Federal Supreme Court reversed the appealed decision and held that said issue was justiciable and non-political, inasmuch as: ". . . (d)eciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution . . ." Similarly, in Powell v. McCormack, 35 the same Court, speaking through then Chief Justice Warren, reversed a decision of the Court of Appeals of New York affirming that of a Federal District Court, dismissing Powell's action for a declaratory judgment declaring thereunder that he — whose qualifications were uncontested — had been unlawfully excluded from the 90th Congress of the U.S. Said dismissal was predicated upon the ground, inter alia, that the issue was political, but the Federal Supreme Court held that it was clearly a justiciable one. The Supreme Court of Minnessota undertook a careful review of American jurisprudence on the matter. Owing to the lucidity of its appraisal thereof, We append the same to this opinion as Annex A thereof. After an exhaustive analysis of the cases on this subject, the Court concluded: "The authorities are thus practically uniform in holding that whether a constitutional amendment has been properly adopted according to the requirements of an existing Constitution is a judicial question. There can be little doubt that the consensus of judicial opinion is to the effect that it is the absolute duty of the judiciary to determine whether the Constitution has been amended in the manner required by the Constitution, unless a special tribunal has been created to determine the question; and even then many of the courts hold that the tribunal cannot be permitted to illegally amend the organic law . . . " 36

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CONSTI 1 In the light of the foregoing, and considering that Art. XV of our 1935 Constitution prescribes the method or procedure for its amendment, it is clear to my mind that the question whether or not the revised Constitution drafted by the 1971 Constitutional Convention has been ratified in accordance with said Art. XV is a justiciable one and non-political in nature, and that it is not only subject to judicial inquiry, but, also, that it is the Court's bounden duty to decide such question.

reproduce them here. So it is, with respect to the positions taken in L-36165 by counsel for therein respondents Gil J. Puyat and Jose Roy — although more will be said later about them — and by the Solicitor General, on behalf of the other respondents in that case and the respondents in the other cases.

The Supreme Court of the United States has meaningfully postulated that "the courts cannot reject as 'no law suit'" — because it allegedly involves a political question — "a bona fide controversy as to whether some action denominated 'political' exceeds constitutional authority.'" 37

Under section 1 of Art. XV of said Constitution, three (3) steps are essential, namely:

III Has the proposed new or revised Constitution been ratified conformably to said Art. XV of the 1935 Constitution? Petitioners in L-36142 maintain the negative view, upon the ground: 1) that the President "is without authority to create the Citizens' Assemblies" through which, respondents maintain, the proposed new Constitution has been ratified; 2) that said Assemblies "are without power to approve the proposed Constitution"; 3) that the President "is without power to proclaim the ratification by the Filipino people of the proposed Constitution"; and 4),that "the election held (in the Citizens' Assemblies) to ratify the proposed Constitution was not a free election, hence null and void." Apart from substantially reiterating these grounds support of said negative view, the petitioners in L-36164 contend: 1) that the President "has no power to call a plebiscite for the ratification or rejection" of the proposed Constitution or "to appropriate funds for the holding of said plebiscite"; 2) that the proposed new or revised Constitution "is vague and incomplete," as well as "contains provisions which are beyond the powers of the 1971 Convention to enact," thereby rendering it "unfit for . . . submission to the people;" 3) that "(t)he period of time between November 30, 1972 when the 1972 draft was approved and January 11-15, 1973," when the Citizens' Assemblies supposedly ratified said draft, "was too short, worse still, there was practically no time for the Citizens' Assemblies to discuss the merits of the Constitution which the majority of them have not read and which they never knew would be submitted to them for ratification until they were asked the question — 'do you approve of the New Constitution?' during the said days of the voting"; and that "(t)here was altogether no freedom of discussion and no opportunity to concentrate on the matter submitted to them when the 1972 draft was supposedly submitted to the Citizens' Assemblies for ratification." Petitioner in L-36236 added, as arguments in support of the negative view, that: 1) "(w)ith a government-controlled press, there can never be a fair and proper submission of the proposed Constitution to the people"; and 2) Proclamation No. 1102 is null and void "(i)nasmuch as the ratification process" prescribed "in the 1935 Constitution was not followed." Besides adopting substantially some of the grounds relied upon by the petitioners in the above mentioned cases, the petitioners in L-36283 argue that "(t)he creation of the Citizens' Assemblies as the vehicle for the ratification of the Constitution was a deception upon the people since the President announced the postponement of the January 15, 1973 plebiscite to either February 19 or March 5, 1973." 38 The reasons adduced by the petitioners in L-36165 in favor of the negative view have already been set forth earlier in this opinion. Hence, it is unnecessary to

1.What is the procedure prescribed by the 1935 Constitution for its amendment?

1.

1.That the amendments to the Constitution be proposed either by Congress or by a convention called for that purpose, "by a vote of threefourths of all the Members of the Senate and the House of Representatives voting separately," but "in joint session assembled";

2.

2.That such amendments be "submitted to the people for their ratification" at an "election"; and

3.

3.That such amendments be "approved by a majority of the votes cast" in said election.

Compliance with the first requirement is virtually conceded, although the petitioners in L-36164 question the authority of the 1971 Constitutional Convention to incorporate certain provisions into the draft of the new or revised Constitution The main issue in these five (5) cases hinges, therefore, on whether or not the last two (2) requirements have been complied with. 2.Has the contested draft of the new or revised Constitution been "submitted to the people for their ratification" conformably to Art. XV of the Constitution? In this connection, other provisions of the 1935 Constitution concerning "elections" must, also, be taken into account, namely, section 1 of Art. V and Art. X of said Constitution. The former reads: "Section 1.Suffrage may be exercised by male citizens of the Philippines not otherwise disqualified by law, who are twenty-one years of age or over and are able to read and write, and who shall have resided in the Philippines for one year and in the municipality wherein they propose to vote for at least six months preceding the election. The National Assembly shall extend the right of suffrage to women, if in a plebiscite which shall be held for that purpose within two years after the adoption of this Constitution, not less than three hundred thousand women possessing the necessary qualifications shall vote affirmatively on the question." Sections 1 and 2 of Art. X of the Constitution ordain in part: "Section 1.There shall be an independent Commission on Elections composed of a Chairman and two other Members to be appointed by the President with the consent of the Commission on Appointments, who shall hold office for a term of nine years and may not be reappointed . . . "xxx xxx xxx "Sec. 2.The Commission on Elections shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections and shall exercise all other functions which may be conferred upon it by law. It shall decide, save those involving the right to vote, all administrative questions, affecting 59

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elections, including the determination of the number and location of polling places, and the appointment of election inspectors and of other election officials. All law enforcement agencies and instrumentalities of the Government, when so required by the Commission, shall act as its deputies for the purpose of insuring free, orderly, and honest elections. The decisions, orders, and rulings the Commission shall be subject to review by the Supreme Court.

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

"xxx xxx xxx" 39 a.Who may vote in a plebiscite under Art. V of the Constitution?

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

Petitioners maintain that section 1 of Art. V of the Constitution is a limitation upon the exercise of the right of suffrage. They claim that no other persons than "citizen of the Philippines not otherwise disqualified by law, who are twenty-one years of age or over and are able to read and write, and who shall have resided in the Philippines for one year and in the municipality wherein they propose to vote for at least six months preceding the election," may exercise the right of suffrage in the Philippines. Upon the other hand, the Solicitor General contends that said provision merely guarantees the right of suffrage to persons possessing the aforementioned qualifications and none of the disqualifications, prescribed by law, and that said right may be vested by competent authorities in persons lacking some or all of the aforementioned qualifications, and possessing some of the aforesaid disqualifications. In support of this view, he invokes the permissive nature of the language — "(s)uffrage may be exercised" — used in section 1 of Art. V of the Constitution, and the provisions of the Revised Barrio Charter, Republic Act No. 3590, particularly sections 4 and 6 thereof, providing that citizens of the Philippines "eighteen years of age or over," who are registered in the list of barrio assembly members, shall be members thereof and may participate as such in the plebiscites prescribed in said Act. I cannot accept the Solicitor General's theory. Art. V of the Constitution declares who may exercise the right of suffrage, so that those lacking the qualifications therein prescribed may not exercise such right. This view is borne out by the records of the Constitutional Convention that drafted the 1935 Constitution. Indeed, section 1 of Art. V of the 1935 Constitution was largely based on the report of the committee on suffrage of the Convention that drafted said Constitution, which report was, in turn, "strongly influenced by the election laws then in force in the Philippines . . ." 40 Said committee had recommended: 1) "That the right of suffrage should be exercised only by male citizens of the Philippines." 2) "That it should be limited to those who could read and write." 3) "That the duty to vote should be made obligatory." It appears that the first recommendation was discussed extensively in the Convention, and that, by way of compromise, it was eventually agreed to include, in section 1 of Art. V of the Constitution, the second sentence thereof imposing upon the National Assembly, established by the original Constitution — instead of the bicameral Congress subsequently created by amendment of said Constitution — the duty to "extend the right of suffrage to women, if in a plebiscite to be held for that purpose within two years after the adoption of this Constitution, not less than three hundred thousand women possessing the necessary qualifications shall vote affirmatively on the question." 41 The third recommendation on "compulsory" voting was, also, debated upon rather extensively, after which it was rejected by the Convention. 42 This accounts, in my opinion, for the permissive language used in the first sentence of said Art. V. Despite some debates on the age qualification — amendments having been proposed to reduce the same to 18 or 20, which were rejected, and the residence qualification, as well as the disqualifications to the exercise of the right of suffrage

At this juncture, it is noteworthy that the committee on suffrage responsible for the adoption of section 1 of Art. V of the Constitution was "strongly influenced by the election laws then in force in the Philippines." Our first Election Law was Act 1582, passed on January 9, 1907, which was partly amended by Acts 1669, 1709, 1726 and 1768, and incorporated into the Administrative Code of 1916 — Act 2657 — as chapter 20 thereof, and then in the Administrative Code of 1971 — Act 2711 — as chapter 18 thereof, which, in turn, was amended by Act 3387, approved on December 3, 1927. Sections 431 and 432 of said Code of 1917, prescribing, respectively, the qualifications for and disqualifications from voting, are quoted below. 44 In all of these legislative acts, the provisions concerning the qualifications of voters partook of the nature of a grant or recognition of the right of suffrage, and. hence, of a denial thereof to those who lacked the requisite qualifications and possessed any of the statutory disqualifications. In short, the history of section 1, Art. V of the Constitution, shows beyond doubt that the same conferred — not guaranteed — the authority to exercise the right of suffrage to persons having the qualifications prescribed therein and none of the disqualifications to be specified in ordinary laws and, by necessary implication, denied such right to those lacking any of said qualifications or having any of the aforementioned disqualifications. This view is further bolstered by the fact that the 1971 Constitutional Convention sought the submission to a plebiscite of a "partial amendment" to said section 1 of Art. V of the 1935 Constitution, by reducing the voting age from twenty-one (21) years to eighteen (18) years, which, however, did not materialize on account of the decision of this Court in Tolentino v. Commission on Elections, 45 granting the writs of prohibition and injunction therein applied for, upon the ground that, under the Constitution, all of the amendments adopted by the Convention should be submitted in "an election" or a single election, not separately or in several or distinct elections, and that the proposed amendment sought to be submitted to a plebiscite was not even a complete but a "partial amendment" of said section 1, which could be amended further, after its ratification had the same taken place, so that the aforementioned partial amendment was, for legal purposes, no more than a provisional or temporary amendment. Said partial amendment was predicated upon the generally accepted contemporary construction that, under the 1935 Constitution, persons below twenty-one (21) years of age could not exercise the right of suffrage, without a previous amendment of the Constitution. 60

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CONSTI 1 Upon the other hand, the question, whether 18-year-old members of barrio assemblies may vote in barrio as plebiscites is, to say the least, a debatable one. Indeed, there seems to be a conflict between the last paragraph of said section 6 of Rep. Act No. 3590, 46 pursuant to which the "majority vote of all the barrio assembly members" (which include all barrio residents 18 years of age or over, duly registered in the list of barrio assembly members) is necessary for the approval, in an assembly plebiscite, of "any budgetary, supplemental appropriations or special tax ordinances," whereas, according to the paragraph preceding the penultimate one of said section, 47 "(a)ll duly registered barrio assembly members qualified to vote" — who, pursuant to section 10 of the same Act, must be citizens "of the Philippines, twenty-one years of age or over, able to read and write," and residents of the barrio "during the six months immediately preceding the election, duly registered in the list of voters" and "not otherwise disqualified . . ." — just like the provisions of the present and past election codes of the Philippines and Art. V of the 1935 Constitution — "may vote in the plebiscite." I believe, however, that the apparent conflict should be resolved in favor of the 21year-old members of the assembly, not only because this interpretation is in accord with Art. V of the Constitution, but, also, because provisions of a Constitution — particularly of a written and rigid one, like ours — are generally accorded a mandatory status — unless the intention to the contrary is manifest, which is not so as regards said Art. V — for otherwise they would not have been considered sufficiently important to be included in the Fundamental Law of the land. 48 Besides, it would be illogical, if not absurd, to believe that Republic Act No. 3590 requires, for the most important measures for which it demands — in addition to the favorable action of the barrio council — the approval of the barrio assembly through a plebiscite, lesser qualifications than those prescribed in dealing with ordinary measures for which such plebiscite need not be held. It is similarly inconceivable that those who drafted the 1935 Constitution intended section 1 of Art. V thereof to apply only to elections of public officers, not to plebiscites for the ratification of amendments to the Fundamental Law or a revision thereof, or of an entirely new Constitution, and to permit the legislature to require lesser qualifications for such ratification, notwithstanding the fact that the subject thereof is much more important — if not fundamental, such as the basic changes introduced in the draft of the revised Constitution adopted by the 1971 Constitutional Convention, which are intended to be in force permanently, or, at least, for many decades, and to affect the way of life of the nation — and, accordingly demands greater experience and maturity on the part of the electorate than that required for the election of public officers, 49 whose average term ranges from 2 to 6 years. It is admitted that persons 15 years of age or over, but below 21 years, regardless of whether or not they possessed the other qualifications laid down in both the Constitution and the present Election Code, 50 and of whether or not they are disqualified under the provisions of said Constitution and Code, 51 or those of Republic Act No. 3590, 52 have participated and voted in the Citizens' Assemblies that have allegedly ratified the new or revised Constitution drafted by the 1971 Constitutional Convention. In fact, according to the latest official data, the total number of registered voters 21 years of age or over in the entire Philippines, available in January 1973, was less than 12 million. Yet, Proclamation No. 1102 states that 14,976,561 "members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed

Constitution, as against . . . 743,869 who voted for its rejection," whereas, on the question whether or not the people still wanted a plebiscite to be called to ratify the new Constitution, ". . . 14,298,814 answered that there was no need for a plebiscite and that the vote of the Barangays (Citizens Assemblies) should be considered as a vote in a plebiscite." In other words, it is conceded that the number of people who allegedly voted at the Citizens' Assemblies for exceeded the number of registered voters under the Election Code in force in January 1973. It is thus clear that the proceedings held in such Citizens' Assemblies — and We have more to say on this point in subsequent pages — were fundamentally irregular, in that persons lacking the qualifications prescribed in section 1 of Art. V of the Constitution were allowed to vote in said Assemblies. And, since there is no means by which the invalid votes of those less than 21 years of age can be separated or segregated from those of the qualified voters, the proceedings in the Citizens' Assemblies must be considered null and void. 53 It has been held that "(t)he power to reject an entire poll . . . should be exercised . . . in a case where it is impossible to ascertain with reasonable certainty the true vote," as where "it is impossible to separate the legal votes from the illegal or spurious . . ." 54 In Usman v. Commission on Elections, et al., 55 We held: "Several circumstances, defying exact description and dependent mainly on the factual milieu of the particular controversy, have the effect of destroying the integrity and authenticity of disputed election returns and of avoiding their prima facie value and character. If satisfactorily proven, although in a summary proceeding, such circumstances as alleged by the affected or interested parties, stamp the election returns with the indelible mark of falsity and irregularity, and, consequently, of unreliability, and justify their exclusion from the canvass." Then, too, the 1935 Constitution requires "a majority of the votes cast" for a proposed amendment to the Fundamental Law to be "valid" as part thereof, and the term "votes cast" has a well-settled meaning. "The term 'votes cast' . . . was held in Smith v. Renville County Commissioners, 65 N.W. 956, 64 Minn. 16, to have been used as an equivalent of 'ballots cast.'" 56 "The word 'cast' is defined as 'to deposit formally or officially.'" 57 "It seems to us that a vote is cast when a ballot is deposited indicating a 'choice.' . . . The word 'cast' means 'deposit (a ballot) formally or officially . . .' ". . . In simple words, we would define a 'vote cast' as the exercise on a ballot of the choice of the voter on the measure proposed." 58 In short, said Art. XV envisages — with the term "votes cast" — choices made on ballots — not orally or by raising hands — by the persons taking part in plebiscites. This is but natural and logical, for, since the early years of the American regime, we had adopted the Australian Ballot System, with its major characteristics, namely, uniform official ballots prepared and furnished by the Government and secrecy in the voting, with the advantage of keeping records that permit judicial inquiry, when necessary, into the accuracy of the election returns. And the 1935 Constitution has been so consistently interpreted in all plebiscites for the ratification or rejection of 61

CONSTI 1 proposed amendments thereto, from 1935 to 1967. Hence, the viva voce voting in the Citizens' Assemblies was and is null and void ab initio. b.How should the plebiscite be held? (COMELEC supervision indispensable; essential requisites) Just as essential as compliance with said Art. V of the 1935 Constitution is that of Art. X thereof, particularly its sections 1 and 2. Indeed, section 1 provides that "(t)here shall be an independent Commission on Elections . . ." The point to be stressed here is the term "independent." Indeed, why was the term used? In the absence of said constitutional provision as to the independence of the Commission, would it have been dependent upon either Congress or the Judiciary? The answer must be in the negative, because the functions of the Commission — "enforcement and administration" of election laws — are neither legislative nor judicial in nature, and, hence, beyond the field allocated to either Congress or courts of justice. Said functions are by their nature essentially executive, for which reason, the Commission would be under the "control" of the President, pursuant to section 10, paragraph (1) of Art. VII of the Constitution, if Art. X thereof did not explicitly declare that it (the Commission) is an "independent" body. In other words, in amending the original 1935 Constitution, by inserting therein said Art. X, on the Commission on Elections, the purpose was to make said Commission independent principally of the Chief Executive. And the reason therefor is, also, obvious. Prior to the creation of the Commission on Elections as a constitutional organ, election laws in the Philippines were enforced by the then Department of the Interior, through its Executive Bureau, one of the offices under the supervision and control of said Department. The same — like other departments of the Executive Branch of the Government — was, in turn, under the control of the Chief Executive, before the adoption of the 1935 Constitution, and had been — until the abolition of said Department, sometime ago — under the control of the President of the Philippines, since the effectivity of said Fundamental Law. Under the provisions thereof, the Executive could so use his power of control over the Department of the Interior and its Executive Bureau as to place the minority party at such a great, if not decisive, disadvantage, as to deprive it, in effect, of the opportunity to defeat the political party in power, and, hence, to enable the same to perpetuate itself therein. To forestall this possibility, the original 1935 Constitution was amended by the establishment of the Commission on Elections as a constitutional body independent primarily of the President of the Philippines. The independence of the Commission was sought to be strengthened by the long term of office of its members — nine (9) years, except those first appointed 59 — the longest under the Constitution, second only to that of the Auditor General 60 ; by providing that they may not be removed from office except by impeachment, placing them, in this respect, on the same plane as the President, the VicePresident, the Justices of the Supreme Court and the Auditor General; that they may not be reappointed; that their salaries "shall be neither increased nor diminished during their term of office"; that the decisions of the Commission "shall be subject to review by the Supreme Court" only 61 ; that "(n)o pardon, parole, or suspension of sentence for the violation of any election law may be granted without the favorable recommendation of the Commission" 62 ; and that its chairman and members "shall not, during their continuance in office, engage in the practice of any profession, or intervene, directly or indirectly, in the management or control of any private enterprise which in anyway may be affected by the functions of their

1ST SET – 9 CASES office; nor shall they, directly or indirectly, be financially interested in any contract with the Government or any subdivision or instrumentality thereof." 63 Thus, the framers of the amendment to the original Constitution of 1935 endeavored to do everything possible to protect and insure the independence of each member of the Commission. With respect to the functions thereof as a body, section 2 of said Art. X ordains that "(t)he Commission on Elections shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections," apart from such other "functions which may be conferred upon it by law." It further provides that the Commission "shall decide, save those involving the right to vote, all administrative questions, affecting elections, including the determination of the number and location of polling places, and the appointment of election inspectors and of other election officials." And, to forestall possible conflicts or frictions between the Commission, on the one hand, and the other offices or agencies of the executive department, on the other, said section 2 postulates that "(a)ll law enforcement agencies and instrumentalities of the Government, when so required by the Commission, shall act as its deputies for the purpose of insuring free, orderly, and honest elections." Not satisfied with this, it declares, in effect, that "(t)he decisions, orders, and rulings of the Commission" shall not be subject to review, except by the Supreme Court. In accordance with the letter and spirit of said Art. X of the Constitution, Rep. Act No. 6388, otherwise known as Election Code of 1971, implements the constitutional powers of the Commission on Elections and grants additional powers thereto, some of which are enumerated in sections 5 and 6 of said Act, quoted below. 64 Moreover, said Act contains, inter alia, detailed provisions regulating contributions and other (corrupt) practices; the establishment of election precincts; the designation and arrangement of polling places, including voting booths, to protect the secrecy of the ballot; the formation of lists of voters, the identification and registration of voters, the proceedings therefor, as well as for the inclusion in, or exclusion or cancellation from said list and the publication thereof; the establishment of municipal, provincial and national files of registered voters; the composition and appointment of boards of election inspectors; the particulars of the official ballots to be used and the precautions to be taken to insure the authenticity thereof; the procedure for the casting of votes; the counting of votes by boards of inspectors; the rules for the appreciation of ballots and the preparation and disposition of election returns; the constitution and operation of municipal, provincial and national boards of canvassers; the representation of political parties and/or their candidates in each election precinct; the proclamation of the results, including, in the case of election of public officers, election contests; and the jurisdiction of courts of justice in cases of violations of the provisions of said Election Code and penalties for such violations. Few laws may be found with such a meticulous and elaborate set of provisions aimed at "insuring free, orderly, and honest elections," as envisaged in section 2 of Art. X of the Constitution. Yet, none of the foregoing constitutional and statutory provisions was followed by the so-called Barangays or Citizens' Assemblies. And no reasons have been given, or even sought to be given therefor. In many, if not most, instances, the elections were held a viva voce, thus depriving the electorate of the right to vote secretly — one of the most fundamental and critical features of our election laws from time immemorial — particularly at a time when the same was of utmost importance, owing to the existence of Martial Law.

62

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

1ST SET – 9 CASES and must be subordinate to the constitutional power of the Commission on Elections to exercise its "exclusive" authority over the "enforcement and administration of all laws relative to the conduct of elections," if the proceedings in the Assemblies would partake of the nature of an "election" or plebiscite for the ratification or rejection of the proposed Constitution. We are told that Presidential Decree No. 86 was further amended by Presidential Decree No. 86-B, dated January 7, 1973, ordering "that important national issues shall from time to time be referred to the Barangays (Citizens Assemblies) for resolution in accordance with Presidential Decree No. 86-A dated January 5, 1973 and that the initial referendum shall include the matter of ratification of the Constitution proposed by the 1971 Constitutional Convention" and that "(t)he Secretary of the Department of Local Governments and Community Development shall insure the implementation of this order." As in the case of Presidential Decrees Nos. 86 and 86-A, the foregoing directives do not necessarily exclude the exercise of the powers vested by the 1935 Constitution in the Commission on Elections, even if the Executive had the authority to repeal Art. X of our Fundamental Law — which he does not possess. Copy of Presidential Decree No. 86-B is appended hereto as Annex B hereof. The point is that, such of the Barrio Assemblies as were held took place without the intervention of the Commission on Elections, and without complying with the provisions of the Election Code of 1971 or even of those of Presidential Decree No. 73. What is more, they were held under the supervision of the very officers and agencies of the Executive Department sought to be excluded therefrom by Art. X of the 1935 Constitution. Worse still, said officers and agencies of the Executive Department, who had been publicly urged and ostensibly promised to work for the ratification of the proposed revised Constitution would be favored thereby, owing to the practically indefinite extension of their respective terms of office in consequence of section 9 of the Transitory Provisions, found in Art. XVII of the proposed Constitution, without any elections therefor. And the procedure therein mostly followed is such that there is no reasonable means of checking the accuracy of the returns filed by the officers who conducted said plebiscites. This is another patent violation of Art. X of the Constitution which can hardly be sanctioned. And, since the provisions of this article form part of the fundamental scheme set forth in the 1935 Constitution, as amended, to insure the "free, orderly, and honest" expression of the people's will, the aforementioned violation thereof renders null and void the contested proceedings or alleged plebiscite in the Citizens' Assemblies, insofar as the same are claimed to have ratified the revised Constitution proposed by the 1971 Constitutional Convention. ". . . (a)ll the authorities agree that the legal definition of an election, as well as that which is usually and ordinarily understood by the term, is a choosing or a selection by those having a right to participate (in the selection) of those who shall fill the offices, or of the adoption or rejection of any public measures affecting the territory involved. 15 Cyc. 279; Lewis v. Boynton, 25 Colo. 486, 55 Pac. 732; Saunders v. Haynes, 13 Cal. 145; Seaman v. Baughman, 82 Iowa 216, 47 N.W. 1091, 11 L.R.A. 354; State v. Hirsh, 125 Ind. 207, 24 N.E. 1062, 9 L.R.A. 170; Bouvier's Law Dictionary." 68 IV Has the proposed Constitution aforementioned been approved by a majority of the people in the Citizen's Assemblies allegedly held throughout the Philippines? Respondents maintain the affirmative, relying upon Proclamation No. 1102, the validity of which is precisely being contested by petitioners herein. Respondents claim that said proclamation is "conclusive" upon this Court, or is, at least, entitled 63

CONSTI 1 to full faith and credence, as an enrolled bill; that the proposed Constitution has been, in fact, ratified, approved or adopted by the "overwhelming" majority of the people; that Art. XV of the 1935 Constitution has thus been "substantially" complied with; and that the Court should refrain from passing upon the validity of Proclamation No. 1102, not only because such question is political in nature, but, also, because should the Court invalidate the proclamation, the former would, in effect, veto the action of the people in whom sovereignty resides and from whom its powers are derived. The major flaw in this process of rationalization is that it assumes, as a fact, the very premise on which it is predicated, and which, moreover, is contested by the petitioners. As the Supreme Court of Minnessota has aptly put it — ". . . every officer under a constitutional government must act according to law and subject to its restrictions, and every departure therefrom or disregard thereof must subject him to the restraining and controlling power of the people, acting through the agency of the judiciary; for it must be remembered that the people act through courts, as well as through the executive or the Legislature. One department is just as representative as the other, and the judiciary is the department which is charged with the special duty of determining the limitations which the law places upon all official action. . . ." Accordingly, the issue boils down to whether or not the Executive acted within the limits of his authority when he certified in Proclamation No. 1102 "that the Constitution proposed by the nineteen hundred and seventy-one (1971) Constitutional Convention has been ratified by an overwhelming majority of all of the votes cast by the members of all the Barangays (Citizens Assemblies) throughout the Philippines, and has thereby come into effect." In this connection, it is not claimed that the Chief Executive had personal knowledge of the data he certified in said proclamation. Moreover, Art. X of the 1935 Constitution was precisely inserted to place beyond the Executive the power to supervise or even exercise any authority whatsoever over "all laws relative to the conduct of elections," and, hence, whether the elections are for the choice or selection of public officers or for the ratification or rejection of any proposed amendment, or revision of the Fundamental Law, since the proceedings for the latter are, also, referred to in said Art. XV as "elections." The Solicitor General stated, in his argument before this Court, that he had been informed that there was in each municipality a municipal association of presidents of the citizens' assemblies for each barrio of the municipality; that the president of each such municipal association formed part of a provincial or city association of presidents of such municipal associations; that the president of each one of these provincial or city associations in turn formed part of a National Association or Federation of Presidents of such Provincial or City Associations; and that one Francisco Cruz from Pasig, Rizal, as President of said National Association or Federation, reported to the President of the Philippines, in the morning of January 17, 1973, the total result of the voting in the citizens' assemblies all over the country from January 10 to January 15, 1973. The Solicitor General further intimated that the said municipal associations had reported the results of the citizens' assemblies in their respective municipalities to the corresponding Provincial Association, which, in turn, transmitted the results of the voting in the province to the Department of Local Governments and Community Development, which tabulated the results of the voting in the citizens' assemblies throughout the Philippines and then turned them over to Mr. Francisco Cruz, as President or acting

1ST SET – 9 CASES President of the National Association or Federation, whereupon Mr. Cruz, acting in a ceremonial capacity, reported said results (tabulated by the Department of Local Governments and Community Development) to the Chief Executive, who, accordingly, issued Proclamation No. 1102. The record shows, however, that Mr. Cruz was not even a member of any barrio council since 1972, 80 that he could not possibly have been a member on January 17, 1973, of a municipal association of presidents of barrio or ward citizens' assemblies, much less of a Provincial, City or National Association or Federation of Presidents of any such provincial or city associations. Secondly, at the conclusion of the hearing of these cases on February 16, 1973, and in the resolution of this Court of the same date, the Solicitor General was asked to submit, together with his notes on his oral argument, a true copy of the aforementioned report of Mr. Cruz to the President and of the "(p)roclamation, decree, instruction, order, regulation or circular, if any, creating or directing or authorizing the creation, establishment or organization" of said municipal, provincial and national associations, but neither a copy of said alleged report to the President, nor a copy of any said "(p)roclamation, decree, instruction, order, regulation or circular," has been submitted to this Court. In the absence of said report, "(p)roclamation, decree, instruction," etc., Proclamation No. 1102 is devoid of any factual and legal foundation. Hence, the conclusion is set forth in the dispositive portion of said Proclamation No. 1102, to the effect that the proposed new or revised Constitution had been ratified by the majority of the votes cast by the people, cannot possibly have any legal effect or value. The theory that said proclamation is "conclusive" upon the Court is clearly untenable. If it were, acts of the Executive and those of Congress could not possibly be annulled or invalidated by courts of justice. Yet, such is not the case. In fact, even a resolution of Congress declaring that a given person has been elected President or Vice-President of the Philippines as provided in the Constitution 69 is not conclusive upon the courts. It is no more than prima facie evidence of what is attested to by said resolution. 70 If assailed directly in appropriate proceedings, such as an election protest, if and when authorized by law, as it is in the Philippines, the Court may receive evidence and declare, in accordance therewith, who was duly elected to the office involved. 71 If prior to the creation of the Presidential Electoral Tribunal, no such protest could be filed, it was not because the resolution of Congress declaring those had been elected President or Vice-President was conclusive upon courts of justice, but because there was no law permitting the filing of such protest and declaring what court or body would hear and decide the same. So, too, a declaration to the effect that a given amendment to the Constitution or revised or new Constitution has been ratified by a majority of the votes cast therefor, may be duly assailed in court and be the object of judicial inquiry, in direct proceedings therefor — such as the cases at bar — and the issue raised therein may and should be decided in accordance with the evidence presented. The case of In re McConaughy 72 is squarely in point. "As the Constitution stood from the organization of the state" — of Minnesota — "all taxes were required to be raised under the system known as the 'general property tax.' Dissatisfaction with the results of this method and the development of more scientific and satisfactory methods of raising venue induced the Legislature to submit to the people an amendment to the Constitution which provided merely that taxes shall be uniform upon the same class of subjects. This proposed amendment was submitted at the general election held in November, 1906, and in due time it was certified by the state canvassing board and proclaimed by the Governor as having been legally 64

CONSTI 1 adopted. Acting upon the assumption that the amendment had become a part of the Constitution, the Legislature enacted statutes providing for a State Tax Commission and a mortgage registry tax, and the latter statute, upon the same theory, was held constitutional" by said Court. "The district court found that the amendment had not in fact been adopted, and on this appeal" the Supreme Court was "required to determine the correctness of that conclusion." Referring to the effect of the certification of the State Board of Canvassers created by the Legislature and of the proclamation made by the Governor based thereon, the Court held: "It will be noted that this board does no more than tabulate the reports received from the various county boards and add up and certify the results. State v. Mason, 45 Wash. 234, 88 Pac. 126, 9 L.R.A. (U.S.) 1221. It is settled law that the decisions of election officers, and canvassing boards are not conclusive and that the final decision must rest with the courts, unless the law declares that the decisions of the board shall be final" — and there is no such law in the cases at bar. ". . . The correctness of the conclusion of the state board rests upon the correctness of the returns made by the county boards and it is inconceivable that it was intended that this statement of result should be final and conclusive regardless of the actual facts. The proclamation of the Governor adds nothing in the way of conclusiveness to the legal effect of the action of the canvassing board. Its purpose is to formally notify the people of the state of the result of the voting as found by the canvassing board. James on Const. Conv. (4th Ed.) sec. 523." In Bott v. Wartz, 73 the Court reviewed the statement of results of the election made by the canvassing board, in order that the true results could be judicially determined. And so did the court in Rice v. Palmer. 74 Inasmuch as Art. X of the 1935 Constitution places under the "exclusive" charge of the Commission on Elections, "the enforcement and administration of all laws relative to the conduct of elections," independently of the Executive, and there is not even a certification by the Commission in support of the alleged results of the citizens' assemblies relied upon in Proclamation No. 1102 — apart from the fact that on January 17, 1973 neither the alleged president of the Federation of Provincial or City Barangays nor the Department of Local Governments had certified to the President of the alleged result of the citizen's assemblies all over the Philippines — it follows necessarily that, from a constitutional and legal viewpoint, Proclamation No. 1102 is not even prima facie evidence of the alleged ratification of the proposed Constitution. Referring particularly to the cases before Us, it will be noted that, as pointed out in the discussion of the preceding topic, the new or revised Constitution proposed by the 1971 Constitutional Convention was not ratified in accordance with the provisions of the 1935 Constitution. In fact, it has not even been ratified in accordance with said proposed Constitution, the minimum age requirement therein for the exercise of the right of suffrage being eighteen (18) years, apart from the fact that Art. VI of the proposed Constitution requires "secret" voting, which was not observed in many, if not most, Citizens' Assemblies. Besides, both the 1935 Constitution and the proposed Constitution require a "majority of the votes cast" in an election or plebiscite called for the ratification of an amendment or revision of the first Constitution or the effectivity of the proposed Constitution, and the phrase "votes cast" has been construed to mean "votes made in writing," not orally, as it was in many Citizens' Assemblies. 75 Even counsel for Gil J. Puyat and Jose Roy, as respondents in L-36165, asserts openly that Art. XV of the Constitution has not been complied with, and since the

1ST SET – 9 CASES alleged substantial compliance with the requirements thereof partakes of the nature of a defense set up by the other respondents in these cases, the burden of proving such defense — which, if true, should be within their peculiar knowledge — is clearly on such respondents. Accordingly, if despite the extensive notes and documents submitted by the parties herein, the members of the Court do not know or are not prepared to say whether or not the majority of the people or of those who took part in the Citizens' Assemblies have assented to the proposed Constitution, the logical step would be to give due course to these cases, require the respondents to file their answers, and the plaintiffs their reply, and, thereafter, to receive the pertinent evidence and then proceed to the determination of the issues raised thereby. Otherwise, we would be placing upon the petitioners the burden of disproving a defense set up by the respondents, who have not so far established the truth of such defense. Even more important, and decisive, than the foregoing is the circumstance that there is ample reason to believe that many, if not most, of the people did not know that the Citizens' Assemblies were, at the time they were held, plebiscites for the ratification or rejection of the proposed Constitution. Hence, in Our decision in the plebiscite cases, We said, inter alia: "Meanwhile, or on December 17, 1972, the President had issued an order temporarily suspending the effects of Proclamation No. 1081, for the purpose of free and open debate on the Proposed Constitution. On December 23, the President announced the postponement of the plebiscite for the ratification or rejection of the Proposed Constitution. No formal action to this effect was taken until January 7, 1973, when General Order No. 20 was issued, directing 'that the plebiscite scheduled to be held on January 15, 1973, he postponed until further notice.' Said General Order No. 20, moreover, 'suspended in the meantime' the 'order of December 17, 1972, temporarily suspending the effects of Proclamation No. 1081 for purposes of free and open debate on the proposed Constitution.' "In view of these events relative to the postponement of the aforementioned plebiscite, the Court deemed it fit to refrain, for the time being, from deciding the aforementioned cases, for neither the date nor the conditions under which said plebiscite would be held were known or announced officially. Then again, Congress was, pursuant to the 1935 Constitution, scheduled to meet in regular session on January 22, 1973,and since the main objection to Presidential Decree No. 73 was that the President does not have the legislative authority to call a plebiscite and appropriate funds therefor, which Congress unquestionably could do, particularly in view of the formal postponement of the plebiscite by the President — reportedly after consultation with, among others, the leaders of Congress and the Commission on Elections — the Court deemed it more imperative to defer its final action on these cases." And, apparently, the parties in said cases entertained the same belief, for, on December 23, 1972 — four (4) days after the last hearing of said cases 76 — the President announced the postponement of the plebiscite scheduled by Presidential Decree No. 73 to be held on January 15, 1973, after consultation with the Commission on Elections and the leaders of Congress, owing to doubts on the sufficiency of the time available to translate the proposed Constitution into some local dialects and to comply with some pre-electoral requirements, as well as to afford the people a reasonable opportunity to be posted on the contents and implications of said transcendental document. On January 7, 1973, General Order No. 20 was issued formally, postponing said plebiscite "until further notice." How can said postponement be reconciled with the theory that the proceedings in the 65

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

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

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

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

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

"xxx xxx xxx

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

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

"[5]Do you like the way President Marcos is running the affairs of the government? [Bulletin Today, January 10, 1973; additional question italics.] "[6]Do you approve of the citizens assemblies as the base of popular government to decide issues of national interests? "[7]Do you approve of the new Constitution? "[8]Do you want a plebiscite to be called to ratify the new Constitution? "[9]Do you want the elections to be held in November, 1973 in accordance with the provisions of the 1935 Constitution? "[10]If the elections would not be held, when do you want the next elections to be called? "[11]Do you want martial law to continue?" [Bulletin Today, January 11, 1973] To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11 are not proper in a plebiscite for the ratification of a proposed Constitution or of a proposed amendment thereto. Secondly, neither is the language of question No. 7 — "Do you approve of the new Constitution?" One approves "of" the act of another, which does not need such approval for the effectivity of said act, which the first person, however, finds to be good, wise or satisfactory. The approval of the majority of the votes cast in a plebiscite is, however, essential for an amendment to the Constitution to be valid as part thereof. Thirdly, if the proceedings in the Citizens' Assemblies constituted a plebiscite, question No. 8 would have been unnecessary and improper, regardless of whether question No. 7 were answered affirmatively or negatively. If the majority of the answers to question No. 7 were in the affirmative, the Constitution would have become effective and no other plebiscite could be held thereafter in connection therewith, even if the majority of the answers to question No. 8 were, also, in the affirmative. If the majority of the answers to question No. 7 were in the negative, neither may another plebiscite be held, even if the majority of the answers to question No. 8 were in the affirmative. In either case, not more than one plebiscite could be held for the ratification or rejection of the proposed

"On January 11, . . . another instruction from the top was received to include the original five questions among those to be discussed and asked in the Citizens' Assembly meetings. With this latest order, we again had to make modifications in our instructions to all those managing and supervising the holding of the Citizens' Assembly meetings throughout the province . . . Aside from the coordinators we had from the Office of the Governor, the splendid cooperation and support extended by almost all government officials and employees in the province, particularly of the Department of Education, PC and PACD personnel, provided us with enough hands to trouble shoot and implement sudden changes in the instructions anytime and anywhere needed . . . ". . . As to our people, in general, their enthusiastic participation showed their preference and readiness to accept this new method of government to people consultation in shaping up government policies." Thus, as late as January 10, 1973, the Bataan officials had to suspend "all scheduled Citizens' Assembly meetings . . ." and call all available officials ". . . to discuss with them the new set of guidelines and materials to be used . . ." Then, "on January 11 . . . another instruction from the top was received to include the original five questions among those to be discussed and asked in the Citizens' Assembly meetings. With this latest order, we again had to make modifications in our instructions to all those managing and supervising the holding of the Citizens' Assembly meetings throughout the province . . . As to our people, in general, their enthusiastic participation showed their preference and readiness to accept the new method of government to people consultation in shaping up government policies." This communication manifestly shows: 1) that, as late as January 11, 1973, the Bataan officials had still to discuss — not put into operation — means and ways to carry out the changing instructions from the top on how to organize the citizens' assemblies, what to do therein and even what questions or topics to propound or 66

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CONSTI 1 touch in said assemblies; 2) that the assemblies would involve no more than consultations or dialogues between people and government — not decisions to be made by the people; and 3) that said consultations were aimed only at "shaping up government policies" and, hence, could not, and did not, partake of the nature of a plebiscite for the ratification or rejection of a proposed amendment of a new or revised Constitution for the latter does not entail the formulation of a policy of the Government, but the making of a decision by the people on the new way of life, as a nation, they wish to have, once the proposed Constitution shall have been ratified. If this was the situation in Bataan — one of the provinces nearest to Manila — as late as January 11, 1973, one can easily imagine the predicament of the local officials and people in the remote barrios in northern and southern Luzon, in the Bicol region, in the Visayan Islands and Mindanao. In fact, several members of the Court, including those of their immediate families and their household, although duly registered voters in the area of Greater Manila, were not even notified that citizens' assemblies would be held in the places where their respective residences were located. In the Prohibition and Amendment case, 77 attention was called to the "duty cast upon the court of taking judicial cognizance of anything affecting the existence and validity of any law or portion of the Constitution . . ." In line with its own pronouncement in another case, the Federal Supreme Court of the United States stressed, in Baker v. Carr, 78 that "a court is not at liberty to shut its eyes to an obvious mistake, when the validity of the law depends upon the truth of what is declared." In the light of the foregoing, I cannot see how the question under consideration can be answered or resolved otherwise than in the negative. V Have the people acquiesced in the proposed Constitution? It is urged that the present Government of the Philippines is now and has been run, since January 17, 1973, under the Constitution drafted by the 1971 Constitutional Convention; that the political department of the Government has recognized said revised Constitution; that our foreign relations are being conducted under such new or revised Constitution; that the Legislative Department has recognized the same, and that the people, in general, have, by their acts or omissions, indicated their conformity thereto. As regards the so called political organs of the Government, I gather that respondents refer mainly to the offices under the Executive Department. In a sense, the latter performs some functions which, from a constitutional viewpoint, are political in nature, such as in recognizing a new state or government, in accepting diplomatic representatives accredited to our Government, and even in devising administrative means and ways to better carry into effect Acts of Congress which define the goals or objectives thereof, but are either imprecise or silent on the particular measures to be resorted to in order to achieve the said goals or delegate the power to do so, expressly or impliedly, to the Executive. This, notwithstanding, the political organ of a government that purports to be republican is essentially the Congress or Legislative Department. Whatever may be the functions allocated to the Executive Department — specially under a written, rigid Constitution, with a republican system of Government like ours — the role of that Department is inherently, basically and fundamentally executive in nature — to "take care that the laws be faithfully executed," in the language of our 1935 Constitution. 79

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

1.The "Governor of the State in swearing fidelity to it and proclaiming it, as directed thereby";

2.

2.The "Legislature in its formal official act adopting a joint resolution, July 15, 1902, recognizing the Constitution ordained by the Convention . . .";

3.

3.The "individual oaths of its members to support it, and by its having been engaged for nearly a year, in legislating under it and putting its provisions into operation . . .";

4.

4.The "judiciary in taking the oath prescribed thereby to support it and by enforcing its provisions . . . "; and

5.

5.The "people in their primary capacity by peacefully accepting it and acquiescing in it, by registering as voters under it to the extent of thousands throughout the State, and by voting, under its provisions, at a 67

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general election for their representatives in the Congress of the United States."

law to desist from provoking a constitutional crisis . . . which may result in the exercise by me of authority I have not exercised."

Note that the New Constitution of Virginia, drafted by a convention whose members were elected directly by the people, was not submitted to the people for ratification or rejection thereof. But, it was recognized, not by the convention itself, but by other sectors of the Government, namely, the Governor; the Legislature — not merely by individual acts of its members, but by formal joint resolution of its two (2) chambers; by the judiciary; and by the people, in the various ways specified above. What is more, there was no martial law. In the present cases, none of the foregoing acts of acquiescence was present. Worse still, there is martial law, the strict enforcement of which was announced shortly before the alleged citizens' assemblies. To top it all, in the Taylor case, the effectivity of the contested amendment was not contested judicially until about one (1) year after the amendment had been put into operation in all branches of the Government, and complied with by the people who participated in the elections held pursuant to the provisions of the new Constitution. In the cases under consideration, the legality of Presidential Decree No. 73 calling a plebiscite to be held on January 15, 1973, was impugned as early as December 7, 1972, or five (5) weeks before the scheduled plebiscite, whereas the validity of Proclamation No. 1102 declaring on January 17, 1973, that the proposed Constitution had been ratified — despite General Order No. 20, issued on January 7, 1972, formally and officially suspending the plebiscite until further notice — was impugned as early as January 20, 1973, when L-36142 was filed, or three (3) daysafter the issuance of Proclamation No. 1102.

No matter how good the intention behind these statements may have been, the idea implied therein was too clear and ominous for any member of Congress who thought of organizing, holding or taking part in a session of Congress, not to get the impression that he could hardly do so without inviting or risking the application of Martial Law to him. Under these conditions, I do not feel justified in holding that the failure of the members of Congress to meet since January 22, 1973, was due to their recognition, acquiescence in or conformity with the provisions of the aforementioned Constitution, or its alleged ratification.

It is further alleged that a majority of the members of our House of Representatives and Senate have acquiesced in the new or revised Constitution, by filing written statements opting to serve in the Ad Interim Assembly established in the Transitory Provisions of said Constitution. Individual acts of recognition by members of our legislature, as well as of other collegiate bodies under the government, are invalid as acts of said legislature or bodies, unless its members have performed said acts in session duly assembled, or unless the law provides otherwise, and there is no such law in the Philippines. This is a well-established principle of Administrative Law and of the Law of Public Officers, and no plausible reason has been adduced to warrant departure therefrom. 81 Indeed, if the members of Congress were generally agreeable to the proposed Constitution, why did it become necessary to padlock its premises to prevent its meeting in session on January 22, 1973, and thereafter as provided in the 1935 Constitution? It is true that, theoretically, the members of Congress, if bent on discharging their functions under said Constitution, could have met in any other place, the building in which they perform their duties being immaterial to the legality of their official acts. The force of this argument is, however, offset or dissipated by the fact that, on or about December 27, 1972, immediately after a conference between the Executive, on the one hand, and members of Congress, on the other, some of whom expressed the wish to meet in session on January 22, 1973, as provided in the 1935 Constitution, a Daily Express columnist (Primitivo Mijares) attributed to Presidential Assistant Guillermo de Vega a statement to the effect that "'certain members of the Senate appear to be missing the point in issue' when they reportedly insisted on taking up first the question of convening Congress." The Daily Express of that date, 82 likewise, headlined, on its front page, a "Senatorial Plot Against 'Martial Law Government' Disclosed." Then, in its issue of December 29, 1972, the same paper imputed to the Executive an appeal "to diverse groups involved in a conspiracy to undermine" his powers "under martial

For the same reasons, especially because of Proclamation No. 1081, placing the entire Philippines under Martial Law, neither am I prepared to declare that the people's inaction as regards Proclamation No. 1102, and their compliance with a number of Presidential orders, decrees and/or instructions — some or many of which have admittedly had salutary effects — issued subsequently thereto amounts, constitutes or attests to a ratification, adoption or approval of said Proclamation No. 1102. In the words of the Chief Executive, "martial law connotes power of the gun, meant coercion by the military, and compulsion and intimidation." 83 The failure to use the gun against those who comply with the orders of the party wielding the weapon does not detract from the intimidation that Martial Law necessarily connotes. It may reflect the good, reasonable and wholesome attitude of the person who has the gun, either pointed at others, without pulling the trigger, or merely kept in its holster, but not without warning that he may or would use it if he deemed it necessary. Still, the intimidation is there, and inaction or obedience of the people, under these conditions, is not necessarily an act of conformity or acquiescence. This is specially so when we consider that the masses are, by and large, unfamiliar with the parliamentary system, the new form of government introduced in the proposed Constitution, with the particularity that it is not even identical to that existing in England and other parts of the world, and that even experienced lawyers and social scientists find it difficult to grasp the full implications of some provisions incorporated therein. As regards the applicability to these cases of the "enrolled bill" rule, it is well to remember that the same refers to a document certified to the President — for his action under the Constitution — by the Senate President and the Speaker of the House of Representatives, and attested to by the Secretary of the Senate and the Secretary of the House of Representatives, concerning legislative measures approved by the two Houses of Congress. The argument of the Solicitor General is, roughly, this: If the enrolled bill is entitled to full faith and credence and, to this extent, it is conclusive upon the President and the judicial branch of the Government, why should Proclamation No. 1102 merit less consideration than in enrolled bill? Before answering this question, I would like to ask the following: If, instead of being certified by the aforementioned officers of Congress, the so-called enrolled bill were certified by, say, the President of the Association of Sugar Planters and/or Millers of the Philippines, and the measure in question were a proposed legislation concerning Sugar Plantations and Mills sponsored by said Association, which even prepared the draft of said legislation, as well as lobbied actually for its approval, for which reason the officers of the Association, particularly, its aforementioned president — whose honesty and integrity are unquestionable — were present at the deliberations in Congress when the same approved the proposed legislation, would the enrolled bill rule apply thereto? Surely, the answer would have to be in the negative. Why? 68

CONSTI 1 Simply, because said Association President has absolutely no official authority to perform in connection therewith, and, hence, his certification is, legally, as good as non-existent. Similarly, a certification, if any, of the Secretary of the Department of Local Governments and Community Development about the tabulated results of the voting in the Citizens' Assemblies allegedly held all over the Philippines — and the records do not show that any such certification, either to the President of the Philippines or to the President of the Federation or National Association of presidents of Provincial Associations of presidents of municipal associations of presidents of barrio or ward assemblies of citizens — would not, legally and constitutionally, be worth the paper on which it is written. Why? Because said Department Secretary is not the officer designated by law to superintend plebiscites or elections held for the ratification or rejection of a proposed amendment or revision of the Constitution and, hence, to tabulate the results thereof. Worse still, it is the officer or department which, according to Article X of the 1935 Constitution, should not and must not be allowed to participate in said plebiscite — if plebiscite there was. After citing approvingly its ruling in United States v. Sandoval, 84 the Highest Court of the United States declared that courts "will not stand impotent before an obvious instance of a manifestly unauthorized exercise of power." 85 I cannot honestly say, therefore, that the people have impliedly or expressly indicated their conformity to the proposed Constitution. VI Are the Parties entitled to any relief? Before attempting to answer this question, a few words must be said about the procedure followed in these five (5) cases. In this connection, it should be noted that the Court has not as yet decided whether or not to give due course to the petitions herein or to require the respondents to answer thereto. Instead, it has required the respondents to comment on the respective petitions — with three (3) members of the Court voting to dismiss them outright — and then considered the comments thus submitted by the respondents as motions to dismiss, as well as set the same for hearing. This was due to the transcendental nature of the main issue raised, the necessity of deciding the same with utmost dispatch, and the main defense set up by respondents herein, namely, the alleged political nature of said issue, placing the same, according to respondents, beyond the ambit of judicial inquiry and determination. If this defense was sustained, the cases could readily be dismissed; but, owing to the importance of the questions involved, a reasoned resolution was demanded by public interest. At the same time, respondents had cautioned against a judicial inquiry into the merits of the issues posed on account of the magnitude of the evil consequences, it was claimed, which would result from a decision thereon, if adverse to the Government. As a matter of fact, some of those issues had been raised in the plebiscite cases, which were dismissed as moot and academic, owing to the issuance of Proclamation No. 1102 subsequently to the filing of said cases, although before the rendition of judgment therein. Still one of the members of the Court (Justice Zaldivar) was of the opinion that the aforementioned issues should be settled in said cases, and he, accordingly, filed an opinion passing upon the merits thereof. On the other hand, three (3) members of the Court — Justices Barredo, Antonio and Esguerra — filed separate opinions favorable to the respondents in the plebiscite cases, Justice Barredo holding "that the 1935 Constitution has pro tanto passed into history and

1ST SET – 9 CASES has been legitimately supplanted by the Constitution in force by virtue of Proclamation 1102." 86 When the petitions at bar were filed, the same three (3) members of the Court, consequently, voted for the dismissal of said petitions. The majority of the members of the Court did not share, however, either view, believing that the main question that arose before the rendition of said judgment had not been sufficiently discussed and argued as the nature and importance thereof demanded. The parties in the cases at bar were accordingly given every possible opportunity to do so and to elucidate on and discuss said question. Thus, apart from hearing the parties in oral argument for five (5) consecutive days — morning and afternoon, or a total of exactly 26 hours and 31 minutes — their respective counsel filed extensive notes on their oral arguments, as well as on such additional arguments as they wished to submit, and reply notes or memoranda, in addition to rejoinders thereto, aside from a sizeable number of documents in support of their respective contentions, or as required by the Court. The arguments, oral and written, submitted have been so extensive and exhaustive, and the documents filed in support thereof so numerous and bulky, that, for all intents and purposes, the situation is as if — disregarding forms — the petitions had been given due course and the cases had been submitted for decision. Accordingly, the majority of the members of the Court believe that they should express their views on the aforementioned issues as if the same were being decided on the merits, and they have done so in their individual opinions attached hereto. Hence, the resume of the votes east and the tenor of the resolution, in the last pages hereof, despite the fact that technically the Court has not, as yet, formally given due course to the petitions herein. And, now, here are my views on the reliefs sought by the parties. In L-36165, it is clear that we should not issue the writ of mandamus prayed for against Gil J. Puyat and Jose Roy, as President and President Pro Tempore respectively of the Senate, it being settled in our jurisdiction, based upon the theory of separation of powers, that the judiciary will not issue such writ to the head of a co-equal department, like the aforementioned officers of the Senate. In all other respects and with regard to the other respondents in said case, as well as in eases L-36142, L-36164, L-36236 and L-36283, my vote is that the petitions therein should be given due course, there being more than prima facie showing that the proposed Constitution has not been ratified in accordance with Article XV of the 1935 Constitution, either strictly, or substantially, or has been acquiesced in by the people or a majority thereof; that said proposed Constitution is not in force and effect; and that the 1935 Constitution is still the Fundamental Law of the Land, without prejudice to the submission of said proposed Constitution to the people at a plebiscite for its ratification or rejection in accordance with Articles V, X and XV of the 1935 Constitution and the provisions of the Revised Election Code in force at the time of such plebiscite. Perhaps others would feel that my position in these cases overlooks what they might consider to be the demands of "judicial statesmanship," whatever may be the meaning of such phrase. I am aware of this possibility, if not probability; but "judicial statesmanship," though consistent with Rule of Law, cannot prevail over the latter. Among consistent ends or consistent values, there always is a hierarchy, a rule of priority. 69

CONSTI 1 We must realize that the New Society has many achievements which would have been very difficult, if not impossible, to accomplish under the old dispensation. But, in and for the judiciary, statesmanship should not prevail over the Rule of Law. Indeed, the primacy of the law or of the Rule of Law and faithful adherence thereto are basic, fundamental and essential parts of statesmanship itself. Resume of the Votes Cast and the Court's Resolution As earlier stated, after the submittal by the members of the Court of their individual opinions and/or concurrences as appended hereto, the writer will now make, with the concurrence of his colleagues, a resume or summary of the votes cast by each of them. It should be stated that by virtue of the various approaches and views expressed during the deliberations, it was agreed to synthesize the basic issues at bar in broad general terms in five questions for purposes of taking the votes. It was further agreed of course that each member of the Court would expound in his individual opinion and/or concurrence his own approach to the stated issues and deal with them and state (or not) his opinion thereon singly or jointly and with such priority, qualifications and modifications as he may deem proper, as well as discuss thereon other related issues which he may consider vital and relevant to the cases at bar. The five questions thus agreed upon as reflecting the basic issues herein involved are the following: 1.

1.Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and therefore non-justiciable, question?

2.

2.Has the Constitution proposed by the 1971 Constitutional Convention been ratified validly (with substantial, if not strict, compliance) conformably to the applicable constitutional and statutory provisions?

3.

3.Has the aforementioned proposed Constitution been acquiesced in (with or without valid ratification) by the people?

4.

4.Are petitioners entitled to relief? and

5.

5.Is the aforementioned proposed Constitution in force?

The results of the voting, premised on the individual views expressed by the members of the Court in their respective opinions and/or concurrences, are as follows: 1.On the first issue involving the political-question doctrine, Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee and myself, or six (6) members of the Court, hold that the issue of the validity of Proclamation No. 1102 presents a justiciable and non-political question. Justices Makalintal and Castro did not vote squarely on this question, but, only inferentially, in their discussion of the second question. Justice Barredo qualified his vote, stating that "inasmuch as it is claimed that there has been approval by the people, the Court may inquire into the question of whether or not there has actually been such an approval, and, in the affirmative, the Court should keep its hands-off out of respect to the people's will, but, in the negative, the Court may determine from both factual and legal angles whether or not Article XV of the 1935 Constitution has been complied with." Justices Makasiar,

1ST SET – 9 CASES Antonio and Esguerra, or three (3) members of the Court hold that the issue is political and "beyond the ambit of judicial inquiry." 2.On the second question of validity of the ratification, Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee and myself, or six (6) members of the Court also hold that the Constitution proposed by the 1971 Constitutional Convention was not validly ratified in accordance with Article XV, section 1 of the 1935 Constitution, which provides only one way for ratification, i.e., "in an election or plebiscite held in accordance with law and participated in only by qualified and duly registered voters." 87 Justice Barredo qualified his vote, stating that "(A)s to whether or not the 1973 Constitution has been validly ratified pursuant to Article XV, I still maintain that in the light of traditional concepts regarding the meaning and intent of said Article, the referendum in the Citizens' Assemblies, specially in the manner the votes therein were cast, reported and canvassed, falls short of the requirements thereof. In view, however, of the fact that I have no means of refusing to recognize as a judge that factually there was voting and that the majority of the votes were for considering as approved the 1973 Constitution without the necessity of the usual form of plebiscite followed in past ratifications, I am constrained to hold that, in the political sense, if not in the orthodox legal sense, the people may be deemed to have cast their favorable votes in the belief that in doing so they did the part required of them by Article XV, hence, it may be said that in its political aspect, which is what counts most, after all, said Article has been substantially complied with, and, in effect, the 1973 Constitution has been constitutionally ratified." Justices Makasiar, Antonio and Esguerra, or three (3) members of the Court hold that under their view there has been in effect substantial compliance with the constitutional requirements for valid ratification. 3.On the third question of acquiescence by the Filipino people in the aforementioned proposed Constitution, no majority vote has been reached by the Court. Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold that "the people have already accepted the 1973 Constitution." 88 Two (2) members of the Court, namely, Justice Zaldivar and myself hold that there can be no free expression, and there has even been no expression, by the people qualified to vote all over the Philippines, of their acceptance or repudiation of the proposed Constitution under Martial Law. Justice Fernando states that "(I)f it is conceded that the doctrine stated in some American decisions to the effect that independently of the validity of the ratification, a new Constitution once accepted or acquiesced in by the people must be accorded recognition by the Court, I am not at this stage prepared to state that such doctrine calls for application in view of the shortness of time that has elapsed and the difficulty of ascertaining what is the mind of the people in the absence of the freedom of debate that is a concomitant feature of martial law." Three (3) members of the Court express their lack of knowledge and/or competence to rule on the question. Justices Makalintal and Castro are joined by Justice Teehankee in their statement that "Under a regime of martial law, with the free expression of opinions through the usual media vehicles restricted, (they) have no means of knowing, to the point of judicial certainty, whether the people have accepted the Constitution." 89 70

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CONSTI 1 4.On the fourth question of relief, six (6) members of the Court, namely, Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra voted to DISMISS the petition. Justices Makalintal and Castro so voted on the strength of their view that "(T)he effectivity of the said Constitution, in the final analysis, is the basic and ultimate question posed by these cases to resolve which considerations other than judicial, and therefore beyond the competence of this Court, 90 are relevant and unavoidable." 91 Four (4) members of the Court, namely, Justices Zaldivar, Fernando, Teehankee and myself voted to deny respondents' motion to dismiss and to give due course to the petitions. 5.On the fifth question of whether the new Constitution of 1973 is in force: Four (4) members of the Court, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold that it is in force by virtue of the people's acceptance thereof; Four (4) members of the Court, namely, Justices Makalintal, Castro, Fernando and Teehankee cast no vote thereon on the premise stated in their votes on the third

question that they could not state with judicial certainty whether the people have accepted or not accepted the Constitution; and Two (2) members of the Court, namely, Justice Zaldivar and myself voted that the Constitution proposed by the 1971 Constitutional Convention is not in force; with the result that there are not enough votes to declare that the new Constitution is not in force. ACCORDINGLY, by virtue of the majority of six (6) votes of Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra with the four (4) dissenting votes of the Chief Justice and Justices Zaldivar, Fernando and Teehankee, all the aforementioned cases are hereby dismissed. This being the vote of the majority, there is no further judicial obstacle to the new Constitution being considered in force and effect. It is so ordered. ||| (Javellana v. Executive Secretary, G.R. No. L-36142, L-36164, L-36165, L-36236, L-36283 (Resolution), [March 31, 1973])

71