CONSTITUIONAL LAW I

A. TOPICS:
I. The Constitution
• Basic Principles
• Effectivity of the Constitution
• Rules on Interpreting Doubtful Provision of the Constitution

II. Amendments & Revision

• Source of Power to Propose Changes to the Constitution
• Proposal
i. Amendment v. Revision
ii. Modes of Proposing Amendments or Revision
iii. Requirements for Proposals
• Ratification
i. Doctrine of Proper Submission
ii. Requirements for Ratification

B. RESOURCES
I. Article XVII, 1987 Constitution

II. Republic Act No. 6735

III. Textbooks
• Philippine Political Law, Isagani A. Cruz and Carlo L. Cruz
• Outline/Reviewer in Political Law, Justice Antonio Eduarde B.
Nachura
• Political Law Reviewer, Dean Ed Vincent S. Albano

IV. Supreme Court Decisions

• De Leon v. Esguerra, G.R. No. 78059, August 31 1987

G.R. No. 78059 August 31, 1987

ALFREDO M. DE LEON, ANGEL S. SALAMAT, MARIO C. STA. ANA, JOSE C.

TOLENTINO, ROGELIO J. DE LA ROSA and JOSE M. RESURRECCION, petitioners,
vs.
HON. BENJAMIN B. ESGUERRA, in his capacity as OIC Governor of the Province of
Rizal, HON. ROMEO C. DE LEON, in his capacity as OIC Mayor of the Municipality of
Taytay, Rizal, FLORENTINO G. MAGNO, REMIGIO M. TIGAS, RICARDO Z. LACANIENTA,
TEODORO V. MEDINA, ROSENDO S. PAZ, and TERESITA L. TOLENTINO, respondents.

MELENCIO-HERRERA, J.:

An original action for Prohibition instituted by petitioners seeking to enjoin respondents from
replacing them from their respective positions as Barangay Captain and Barangay
Councilmen of Barangay Dolores, Municipality of Taytay, Province of Rizal.
As required by the Court, respondents submitted their Comment on the Petition, and
petitioner's their Reply to respondents' Comment.

In the Barangay elections held on May 17, 1982, petitioner Alfredo M. De Leon was elected
Barangay Captain and the other petitioners Angel S. Salamat, Mario C. Sta. Ana, Jose C.
Tolentino, Rogelio J. de la Rosa and Jose M. Resurreccion, as Barangay Councilmen of
Barangay Dolores, Taytay, Rizal under Batas Pambansa Blg. 222, otherwise known as the
Barangay Election Act of 1982.

On February 9, 1987, petitioner Alfredo M, de Leon received a Memorandum antedated

December 1, 1986 but signed by respondent OIC Governor Benjamin Esguerra on February
8, 1987 designating respondent Florentino G. Magno as Barangay Captain of Barangay
Dolores, Taytay, Rizal. The designation made by the OIC Governor was "by authority of the
Minister of Local Government."

Also on February 8, 1987, respondent OIC Governor signed a Memorandum, antedated

December 1, 1986 designating respondents Remigio M. Tigas, Ricardo Z. Lacanienta
Teodoro V. Medina, Roberto S. Paz and Teresita L. Tolentino as members of the Barangay
Council of the same Barangay and Municipality.

That the Memoranda had been antedated is evidenced by the Affidavit of respondent OIC
Governor, the pertinent portions of which read:

xxx xxx xxx

That I am the OIC Governor of Rizal having been appointed as such on March
20, 1986;

That as being OIC Governor of the Province of Rizal and in the performance of
my duties thereof, I among others, have signed as I did sign the unnumbered
memorandum ordering the replacement of all the barangay officials of all the
barangay(s) in the Municipality of Taytay, Rizal;

That the above cited memorandum dated December 1, 1986 was signed by
me personally on February 8,1987;

That said memorandum was further deciminated (sic) to all concerned the
following day, February 9. 1987.

FURTHER AFFIANT SAYETH NONE.

Pasig, Metro Manila, March 23, 1987.

Before us now, petitioners pray that the subject Memoranda of February 8, 1987 be declared
null and void and that respondents be prohibited from taking over their positions of Barangay
Captain and Barangay Councilmen, respectively. Petitioners maintain that pursuant to Section
3 of the Barangay Election Act of 1982 (BP Blg. 222), their terms of office "shall be six (6)
years which shall commence on June 7, 1982 and shall continue until their successors shall
have elected and shall have qualified," or up to June 7, 1988. It is also their position that with
the ratification of the 1987 Constitution, respondent OIC Governor no longer has the authority
to replace them and to designate their successors.
On the other hand, respondents rely on Section 2, Article III of the Provisional Constitution,
promulgated on March 25, 1986, which provided:

SECTION 2. All elective and appointive officials and employees under the 1973
Constitution shall continue in office until otherwise provided by proclamation or
executive order or upon the designation or appointment and qualification of
their successors, if such appointment is made within a period of one year from
February 25,1986.

By reason of the foregoing provision, respondents contend that the terms of office of elective
and appointive officials were abolished and that petitioners continued in office by virtue of the
aforequoted provision and not because their term of six years had not yet expired; and that
the provision in the Barangay Election Act fixing the term of office of Barangay officials to six
(6) years must be deemed to have been repealed for being inconsistent with the aforequoted
provision of the Provisional Constitution.

Examining the said provision, there should be no question that petitioners, as elective officials
under the 1973 Constitution, may continue in office but should vacate their positions upon the
occurrence of any of the events mentioned. 1

Since the promulgation of the Provisional Constitution, there has been no proclamation or
executive order terminating the term of elective Barangay officials. Thus, the issue for
resolution is whether or not the designation of respondents to replace petitioners was validly
made during the one-year period which ended on February 25, 1987.

Considering the candid Affidavit of respondent OIC Governor, we hold that February 8, 1977,
should be considered as the effective date of replacement and not December 1,1986 to which
it was ante dated, in keeping with the dictates of justice.

But while February 8, 1987 is ostensibly still within the one-year deadline, the aforequoted
provision in the Provisional Constitution must be deemed to have been overtaken by Section
27, Article XVIII of the 1987 Constitution reading.

SECTION 27. This Constitution shall take effect immediately upon its
ratification by a majority of the votes cast in a plebiscite held for the purpose
and shall supersede all previous Constitutions.

The 1987 Constitution was ratified in a plebiscite on February 2, 1987. By that date, therefore,
the Provisional Constitution must be deemed to have been superseded. Having become
inoperative, respondent OIC Governor could no longer rely on Section 2, Article III, thereof to
designate respondents to the elective positions occupied by petitioners.

Petitioners must now be held to have acquired security of tenure specially considering that the
Barangay Election Act of 1982 declares it "a policy of the State to guarantee and promote the
autonomy of the barangays to ensure their fullest development as self-reliant
communities.2 Similarly, the 1987 Constitution ensures the autonomy of local governments
and of political subdivisions of which the barangays form a part, 3 and limits the President's
power to "general supervision" over local governments. 4 Relevantly, Section 8, Article X of
the same 1987 Constitution further provides in part:

Sec. 8. The term of office of elective local officials, except barangay officials,
which shall be determined by law, shall be three years ...
Until the term of office of barangay officials has been determined by law, therefore, the term
of office of six (6) years provided for in the Barangay Election Act of 1982 5 should still govern.

Contrary to the stand of respondents, we find nothing inconsistent between the term of six (6)
years for elective Barangay officials and the 1987 Constitution, and the same should,
therefore, be considered as still operative, pursuant to Section 3, Article XVIII of the 1987
Constitution, reading:

Sec. 3. All existing laws, decrees, executive orders, proclamations letters of

instructions, and other executive issuances not inconsistent, with this
Constitution shall remain operative until amended, repealed or revoked.

WHEREFORE, (1) The Memoranda issued by respondent OIC Governor on February 8, 1987
designating respondents as the Barangay Captain and Barangay Councilmen, respectively,
of Barangay Dolores, Taytay, Rizal, are both declared to be of no legal force and effect; and
(2) the Writ of Prohibition is granted enjoining respondents perpetually from proceeding with
the ouster/take-over of petitioners' positions subject of this Petition. Without costs.

SO ORDERED.

Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin and Cortes,
JJ., concur.
 • Manila Prince Hotel v. GSIS, G.R. No. 122156, February 13, 1997

G.R. No. 122156 February 3, 1997

MANILA PRINCE HOTEL petitioner,

vs.
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION,
COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE
COUNSEL, respondents.

BELLOSILLO, J.:

The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of rights,
privileges, and concessions covering the national economy and patrimony, the State shall give
preference to qualified Filipinos,1 is in oked by petitioner in its bid to acquire 51% of the shares
of the Manila Hotel Corporation (MHC) which owns the historic Manila Hotel. Opposing,
respondents maintain that the provision is not self-executing but requires an implementing
legislation for its enforcement. Corollarily, they ask whether the 51% shares form part of the
national economy and patrimony covered by the protective mantle of the Constitution.

The controversy arose when respondent Government Service Insurance System (GSIS),
pursuant to the privatization program of the Philippine Government under Proclamation No.
50 dated 8 December 1986, decided to sell through public bidding 30% to 51% of the issued
and outstanding shares of respondent MHC. The winning bidder, or the eventual "strategic
partner," is to provide management expertise and/or an international marketing/reservation
system, and financial support to strengthen the profitability and performance of the Manila
Hotel.2 In a close bidding held on 18 September 1995 only two (2) bidders participated:
petitioner Manila Prince Hotel Corporation, a Filipino corporation, which offered to buy 51% of
the MHC or 15,300,000 shares at P41.58 per share, and Renong Berhad, a Malaysian firm,
with ITT-Sheraton as its hotel operator, which bid for the same number of shares at P44.00
per share, or P2.42 more than the bid of petitioner.

Pertinent provisions of the bidding rules prepared by respondent GSIS state —

I. EXECUTION OF THE NECESSARY CONTRACTS WITH

GSIS/MHC —

1. The Highest Bidder must comply with the conditions set forth below by
October 23, 1995 (reset to November 3, 1995) or the Highest Bidder will lose
the right to purchase the Block of Shares and GSIS will instead offer the Block
of Shares to the other Qualified Bidders:

a. The Highest Bidder must negotiate and execute with the

GSIS/MHC the Management Contract, International
Marketing/Reservation System Contract or other type of
contract specified by the Highest Bidder in its strategic plan for
the Manila Hotel. . . .
 b. The Highest Bidder must execute the Stock Purchase and
Sale Agreement with GSIS . . . .

K. DECLARATION OF THE WINNING BIDDER/STRATEGIC

PARTNER —

The Highest Bidder will be declared the Winning Bidder/Strategic Partner after
the following conditions are met:

a. Execution of the necessary contracts with GSIS/MHC not

later than October 23, 1995 (reset to November 3, 1995); and

b. Requisite approvals from the GSIS/MHC and COP

(Committee on Privatization)/OGCC (Office of the Government
Corporate Counsel) are obtained.3

Pending the declaration of Renong Berhad as the winning bidder/strategic partner and the
execution of the necessary contracts, petitioner in a letter to respondent GSIS dated 28
September 1995 matched the bid price of P44.00 per share tendered by Renong Berhad. 4 In
a subsequent letter dated 10 October 1995 petitioner sent a manager's check issued by
Philtrust Bank for Thirty-three Million Pesos (P33.000.000.00) as Bid Security to match the bid
of the Malaysian Group, Messrs. Renong Berhad . . .5 which respondent GSIS refused to
accept.

On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded the tender
of the matching bid and that the sale of 51% of the MHC may be hastened by respondent
GSIS and consummated with Renong Berhad, petitioner came to this Court on prohibition
and mandamus. On 18 October 1995 the Court issued a temporary restraining order enjoining
respondents from perfecting and consummating the sale to the Malaysian firm.

On 10 September 1996 the instant case was accepted by the Court En Banc after it was
referred to it by the First Division. The case was then set for oral arguments with former Chief
Justice Enrique M. Fernando and Fr. Joaquin G. Bernas, S.J., as amici curiae.

In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution and
submits that the Manila Hotel has been identified with the Filipino nation and has practically
become a historical monument which reflects the vibrancy of Philippine heritage and culture. It
is a proud legacy of an earlier generation of Filipinos who believed in the nobility and
sacredness of independence and its power and capacity to release the full potential of the
Filipino people. To all intents and purposes, it has become a part of the national
patrimony.6 Petitioner also argues that since 51% of the shares of the MHC carries with it the
ownership of the business of the hotel which is owned by respondent GSIS, a government-
owned and controlled corporation, the hotel business of respondent GSIS being a part of the
tourism industry is unquestionably a part of the national economy. Thus, any transaction
involving 51% of the shares of stock of the MHC is clearly covered by the term national
economy, to which Sec. 10, second par., Art. XII, 1987 Constitution, applies.7

It is also the thesis of petitioner that since Manila Hotel is part of the national patrimony and
its business also unquestionably part of the national economy petitioner should be preferred
after it has matched the bid offer of the Malaysian firm. For the bidding rules mandate that if
for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer
this to the other Qualified Bidders that have validly submitted bids provided that these Qualified
Bidders are willing to match the highest bid in terms of price per share.8
Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the 1987
Constitution is merely a statement of principle and policy since it is not a self-executing
provision and requires implementing legislation(s) . . . Thus, for the said provision to Operate,
there must be existing laws "to lay down conditions under which business may be done."9

Second, granting that this provision is self-executing, Manila Hotel does not fall under the term
national patrimony which only refers to lands of the public domain, waters, minerals, coal,
petroleum and other mineral oils, all forces of potential energy, fisheries, forests or timber,
wildlife, flora and fauna and all marine wealth in its territorial sea, and exclusive marine zone
as cited in the first and second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to
respondents, while petitioner speaks of the guests who have slept in the hotel and the events
that have transpired therein which make the hotel historic, these alone do not make the hotel
fall under the patrimony of the nation. What is more, the mandate of the Constitution is
addressed to the State, not to respondent GSIS which possesses a personality of its own
separate and distinct from the Philippines as a State.

Third, granting that the Manila Hotel forms part of the national patrimony, the constitutional
provision invoked is still inapplicable since what is being sold is only 51% of the outstanding
shares of the corporation, not the hotel building nor the land upon which the building stands.
Certainly, 51% of the equity of the MHC cannot be considered part of the national patrimony.
Moreover, if the disposition of the shares of the MHC is really contrary to the Constitution,
petitioner should have questioned it right from the beginning and not after it had lost in the
bidding.

Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules which provides
that if for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may
offer this to the other Qualified Bidders that have validly submitted bids provided that these
Qualified Bidders are willing to match the highest bid in terms of price per share, is misplaced.
Respondents postulate that the privilege of submitting a matching bid has not yet arisen since
it only takes place if for any reason, the Highest Bidder cannot be awarded the Block of
Shares. Thus the submission by petitioner of a matching bid is premature since Renong
Berhad could still very well be awarded the block of shares and the condition giving rise to the
exercise of the privilege to submit a matching bid had not yet taken place.

Finally, the prayer for prohibition grounded on grave abuse of discretion should fail since
respondent GSIS did not exercise its discretion in a capricious, whimsical manner, and if ever
it did abuse its discretion it was not so patent and gross as to amount to an evasion of a
positive duty or a virtual refusal to perform a duty enjoined by law. Similarly, the petition
for mandamus should fail as petitioner has no clear legal right to what it demands and
respondents do not have an imperative duty to perform the act required of them by petitioner.

We now resolve. A constitution is a system of fundamental laws for the governance and
administration of a nation. It is supreme, imperious, absolute and unalterable except by the
authority from which it emanates. It has been defined as the fundamental and paramount law
of the nation. 10 It prescribes the permanent framework of a system of government, assigns to
the different departments their respective powers and duties, and establishes certain fixed
principles on which government is founded. The fundamental conception in other words is that
it is a supreme law to which all other laws must conform and in accordance with which all
private rights must be determined and all public authority administered. 11 Under the doctrine
of constitutional supremacy, if a law or contract violates any norm of the constitution that law
or contract whether promulgated by the legislative or by the executive branch or entered into
by private persons for private purposes is null and void and without any force and effect.
Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it
is deemed written in every statute and contract.
Admittedly, some constitutions are merely declarations of policies and principles. Their
provisions command the legislature to enact laws and carry out the purposes of the framers
who merely establish an outline of government providing for the different departments of the
governmental machinery and securing certain fundamental and inalienable rights of
citizens. 12 A provision which lays down a general principle, such as those found in Art. II of
the 1987 Constitution, is usually not self-executing. But a provision which is complete in itself
and becomes operative without the aid of supplementary or enabling legislation, or that which
supplies sufficient rule by means of which the right it grants may be enjoyed or protected, is
self-executing. Thus a constitutional provision is self-executing if the nature and extent of the
right conferred and the liability imposed are fixed by the constitution itself, so that they can be
determined by an examination and construction of its terms, and there is no language
indicating that the subject is referred to the legislature for action. 13

As against constitutions of the past, modern constitutions have been generally drafted upon a
different principle and have often become in effect extensive codes of laws intended to operate
directly upon the people in a manner similar to that of statutory enactments, and the function
of constitutional conventions has evolved into one more like that of a legislative body. Hence,
unless it is expressly provided that a legislative act is necessary to enforce a constitutional
mandate, the presumption now is that all provisions of the constitution are self-executing If the
constitutional provisions are treated as requiring legislation instead of self-executing, the
legislature would have the power to ignore and practically nullify the mandate of the
fundamental law.14 This can be cataclysmic. That is why the prevailing view is, as it has always
been, that —

. . . in case of doubt, the Constitution should be considered self-executing rather

than non-self-executing . . . . Unless the contrary is clearly intended, the
provisions of the Constitution should be considered self-executing, as a
contrary rule would give the legislature discretion to determine when, or
whether, they shall be effective. These provisions would be subordinated to the
will of the lawmaking body, which could make them entirely meaningless by
simply refusing to pass the needed implementing statute. 15

Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is clearly not
self-executing, as they quote from discussions on the floor of the 1986 Constitutional
Commission —

MR. RODRIGO. Madam President, I am asking this question as

the Chairman of the Committee on Style. If the wording of
"PREFERENCE" is given to QUALIFIED FILIPINOS," can it be
understood as a preference to qualified Filipinos vis-a-
vis Filipinos who are not qualified. So, why do we not make it
clear? To qualified Filipinos as against aliens?

THE PRESIDENT. What is the question of Commissioner

Rodrigo? Is it to remove the word "QUALIFIED?".

MR. RODRIGO. No, no, but say definitely "TO QUALIFIED

FILIPINOS" as against whom? As against aliens or over aliens?

MR. NOLLEDO. Madam President, I think that is understood.

We use the word "QUALIFIED" because the existing laws or
prospective laws will always lay down conditions under which
business may be done. For example, qualifications on the
 setting up of other financial structures, et cetera (emphasis
supplied by respondents)

MR. RODRIGO. It is just a matter of style.

MR. NOLLEDO Yes, 16

Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as not to make it
appear that it is non-self-executing but simply for purposes of style. But, certainly, the
legislature is not precluded from enacting other further laws to enforce the constitutional
provision so long as the contemplated statute squares with the Constitution. Minor details may
be left to the legislature without impairing the self-executing nature of constitutional provisions.

In self-executing constitutional provisions, the legislature may still enact legislation to facilitate
the exercise of powers directly granted by the constitution, further the operation of such a
provision, prescribe a practice to be used for its enforcement, provide a convenient remedy
for the protection of the rights secured or the determination thereof, or place reasonable
safeguards around the exercise of the right. The mere fact that legislation may supplement
and add to or prescribe a penalty for the violation of a self-executing constitutional provision
does not render such a provision ineffective in the absence of such legislation. The omission
from a constitution of any express provision for a remedy for enforcing a right or liability is not
necessarily an indication that it was not intended to be self-executing. The rule is that a self-
executing provision of the constitution does not necessarily exhaust legislative power on the
subject, but any legislation must be in harmony with the constitution, further the exercise of
constitutional right and make it more available. 17 Subsequent legislation however does not
necessarily mean that the subject constitutional provision is not, by itself, fully enforceable.

Respondents also argue that the non-self-executing nature of Sec. 10, second par., of Art. XII
is implied from the tenor of the first and third paragraphs of the same section which
undoubtedly are not self-executing. 18 The argument is flawed. If the first and third paragraphs
are not self-executing because Congress is still to enact measures to encourage the formation
and operation of enterprises fully owned by Filipinos, as in the first paragraph, and the State
still needs legislation to regulate and exercise authority over foreign investments within its
national jurisdiction, as in the third paragraph, then a fortiori, by the same logic, the second
paragraph can only be self-executing as it does not by its language require any legislation in
order to give preference to qualified Filipinos in the grant of rights, privileges and concessions
covering the national economy and patrimony. A constitutional provision may be self-
executing in one part and non-self-executing in another. 19

Even the cases cited by respondents holding that certain constitutional provisions are merely
statements of principles and policies, which are basically not self-executing and only placed
in the Constitution as moral incentives to legislation, not as judicially enforceable rights — are
simply not in point. Basco v. Philippine Amusements and Gaming Corporation 20 speaks of
constitutional provisions on personal dignity, 21 the sanctity of family life, 22 the vital role of the
youth in nation-building 23 the promotion of social justice, 24 and the values of
education. 25 Tolentino v. Secretary of Finance 26 refers to the constitutional provisions on
social justice and human rights 27 and on education. 28 Lastly, Kilosbayan,
Inc. v. Morato cites provisions on the promotion of general welfare, 30 the sanctity of family
29

life, 31 the vital role of the youth in nation-building 32 and the promotion of total human liberation
and development. 33 A reading of these provisions indeed clearly shows that they are not
judicially enforceable constitutional rights but merely guidelines for legislation. The very terms
of the provisions manifest that they are only principles upon which the legislations must be
based. Res ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the of the 1987 Constitution is a mandatory,
positive command which is complete in itself and which needs no further guidelines or
implementing laws or rules for its enforcement. From its very words the provision does not
require any legislation to put it in operation. It is per se judicially enforceable When our
Constitution mandates that [i]n the grant of rights, privileges, and concessions covering
national economy and patrimony, the State shall give preference to qualified Filipinos, it means
just that — qualified Filipinos shall be preferred. And when our Constitution declares that a
right exists in certain specified circumstances an action may be maintained to enforce such
right notwithstanding the absence of any legislation on the subject; consequently, if there is
no statute especially enacted to enforce such constitutional right, such right enforces itself by
its own inherent potency and puissance, and from which all legislations must take their
bearings. Where there is a right there is a remedy. Ubi jus ibi remedium.

As regards our national patrimony, a member of the 1986 Constitutional

Commission 34 explains —

The patrimony of the Nation that should be conserved and developed refers
not only to out rich natural resources but also to the cultural heritage of out
race. It also refers to our intelligence in arts, sciences and letters. Therefore,
we should develop not only our lands, forests, mines and other natural
resources but also the mental ability or faculty of our people.

We agree. In its plain and ordinary meaning, the term patrimony pertains to heritage. 35 When
the Constitution speaks of national patrimony, it refers not only to the natural resources of the
Philippines, as the Constitution could have very well used the term natural resources, but also
to the cultural heritage of the Filipinos.

Manila Hotel has become a landmark — a living testimonial of Philippine heritage. While it
was restrictively an American hotel when it first opened in 1912, it immediately evolved to be
truly Filipino, Formerly a concourse for the elite, it has since then become the venue of various
significant events which have shaped Philippine history. It was called the Cultural Center of
the 1930's. It was the site of the festivities during the inauguration of the Philippine
Commonwealth. Dubbed as the Official Guest House of the Philippine Government. it plays
host to dignitaries and official visitors who are accorded the traditional Philippine hospitality. 36

The history of the hotel has been chronicled in the book The Manila Hotel: The Heart and
Memory of a City. 37 During World War II the hotel was converted by the Japanese Military
Administration into a military headquarters. When the American forces returned to recapture
Manila the hotel was selected by the Japanese together with Intramuros as the two (2) places
fro their final stand. Thereafter, in the 1950's and 1960's, the hotel became the center of
political activities, playing host to almost every political convention. In 1970 the hotel reopened
after a renovation and reaped numerous international recognitions, an acknowledgment of the
Filipino talent and ingenuity. In 1986 the hotel was the site of a failed coup d' etat where an
aspirant for vice-president was "proclaimed" President of the Philippine Republic.

For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs and
failures, loves and frustrations of the Filipinos; its existence is impressed with public interest;
its own historicity associated with our struggle for sovereignty, independence and nationhood.
Verily, Manila Hotel has become part of our national economy and patrimony. For sure, 51%
of the equity of the MHC comes within the purview of the constitutional shelter for it comprises
the majority and controlling stock, so that anyone who acquires or owns the 51% will have
actual control and management of the hotel. In this instance, 51% of the MHC cannot be
disassociated from the hotel and the land on which the hotel edifice stands. Consequently, we
cannot sustain respondents' claim that the Filipino First Policy provision is not applicable since
what is being sold is only 51% of the outstanding shares of the corporation, not the Hotel
building nor the land upon which the building stands. 38

The argument is pure sophistry. The term qualified Filipinos as used in Our Constitution also
includes corporations at least 60% of which is owned by Filipinos. This is very clear from the
proceedings of the 1986 Constitutional Commission

THE PRESIDENT. Commissioner Davide is recognized.

MR. DAVIDE. I would like to introduce an amendment to the

Nolledo amendment. And the amendment would consist in
substituting the words "QUALIFIED FILIPINOS" with the
following: "CITIZENS OF THE PHILIPPINES OR
CORPORATIONS OR ASSOCIATIONS WHOSE CAPITAL OR
CONTROLLING STOCK IS WHOLLY OWNED BY SUCH
CITIZENS.

xxx xxx xxx

MR. MONSOD. Madam President, apparently the proponent is

agreeable, but we have to raise a question. Suppose it is a
corporation that is 80-percent Filipino, do we not give it
preference?

MR. DAVIDE. The Nolledo amendment would refer to an

individual Filipino. What about a corporation wholly owned by
Filipino citizens?

MR. MONSOD. At least 60 percent, Madam President.

MR. DAVIDE. Is that the intention?

MR. MONSOD. Yes, because, in fact, we would be limiting it if

we say that the preference should only be 100-percent Filipino.

MR: DAVIDE. I want to get that meaning clear because

"QUALIFIED FILIPINOS" may refer only to individuals and not
to juridical personalities or entities.

MR. MONSOD. We agree, Madam President. 39

xxx xxx xxx

MR. RODRIGO. Before we vote, may I request that the

amendment be read again.

MR. NOLLEDO. The amendment will read: "IN THE GRANT OF

RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE
NATIONAL ECONOMY AND PATRIMONY, THE STATE
SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS." And
the word "Filipinos" here, as intended by the proponents, will
include not only individual Filipinos but also Filipino-controlled
entities or entities fully-controlled by Filipinos. 40
 The phrase preference to qualified Filipinos was explained thus —

MR. FOZ. Madam President, I would like to request

Commissioner Nolledo to please restate his amendment so that
I can ask a question.

MR. NOLLEDO. "IN THE GRANT OF RIGHTS, PRIVILEGES

AND CONCESSIONS COVERING THE NATIONAL
ECONOMY AND PATRIMONY, THE STATE SHALL GIVE
PREFERENCE TO QUALIFIED FILIPINOS."

MR FOZ. In connection with that amendment, if a foreign

enterprise is qualified and a Filipino enterprise is also qualified,
will the Filipino enterprise still be given a preference?

MR. NOLLEDO. Obviously.

MR. FOZ. If the foreigner is more qualified in some aspects than

the Filipino enterprise, will the Filipino still be preferred?

MR. NOLLEDO. The answer is "yes."

MR. FOZ. Thank you, 41

Expounding further on the Filipino First Policy provision Commissioner Nolledo continues —

MR. NOLLEDO. Yes, Madam President. Instead of "MUST," it will be "SHALL

— THE STATE SHALL GlVE PREFERENCE TO QUALIFIED FILIPINOS. This
embodies the so-called "Filipino First" policy. That means that Filipinos should
be given preference in the grant of concessions, privileges and rights covering
the national patrimony. 42

The exchange of views in the sessions of the Constitutional Commission regarding the subject
provision was still further clarified by Commissioner Nolledo 43 —

Paragraph 2 of Section 10 explicitly mandates the "Pro-Filipino" bias in all

economic concerns. It is better known as the FILIPINO FIRST Policy . . . This
provision was never found in previous Constitutions . . . .

The term "qualified Filipinos" simply means that preference shall be given to
those citizens who can make a viable contribution to the common good,
because of credible competence and efficiency. It certainly does NOT mandate
the pampering and preferential treatment to Filipino citizens or organizations
that are incompetent or inefficient, since such an indiscriminate preference
would be counter productive and inimical to the common good.

In the granting of economic rights, privileges, and concessions, when a choice

has to be made between a "qualified foreigner" end a "qualified Filipino," the
latter shall be chosen over the former."

Lastly, the word qualified is also determinable. Petitioner was so considered by respondent
GSIS and selected as one of the qualified bidders. It was pre-qualified by respondent GSIS in
accordance with its own guidelines so that the sole inference here is that petitioner has been
found to be possessed of proven management expertise in the hotel industry, or it has
significant equity ownership in another hotel company, or it has an overall management and
marketing proficiency to successfully operate the Manila Hotel. 44

The penchant to try to whittle away the mandate of the Constitution by arguing that the subject
provision is not self-executory and requires implementing legislation is quite disturbing. The
attempt to violate a clear constitutional provision — by the government itself — is only too
distressing. To adopt such a line of reasoning is to renounce the duty to ensure faithfulness
to the Constitution. For, even some of the provisions of the Constitution which evidently need
implementing legislation have juridical life of their own and can be the source of a judicial
remedy. We cannot simply afford the government a defense that arises out of the failure to
enact further enabling, implementing or guiding legislation. In fine, the discourse of Fr. Joaquin
G. Bernas, S.J., on constitutional government is apt —

The executive department has a constitutional duty to implement laws,

including the Constitution, even before Congress acts — provided that there
are discoverable legal standards for executive action. When the executive acts,
it must be guided by its own understanding of the constitutional command and
of applicable laws. The responsibility for reading and understanding the
Constitution and the laws is not the sole prerogative of Congress. If it were, the
executive would have to ask Congress, or perhaps the Court, for an
interpretation every time the executive is confronted by a constitutional
command. That is not how constitutional government operates. 45

Respondents further argue that the constitutional provision is addressed to the State, not to
respondent GSIS which by itself possesses a separate and distinct personality. This argument
again is at best specious. It is undisputed that the sale of 51% of the MHC could only be
carried out with the prior approval of the State acting through respondent Committee on
Privatization. As correctly pointed out by Fr. Joaquin G. Bernas, S.J., this fact alone makes
the sale of the assets of respondents GSIS and MHC a "state action." In constitutional
jurisprudence, the acts of persons distinct from the government are considered "state action"
covered by the Constitution (1) when the activity it engages in is a "public function;" (2) when
the government is so significantly involved with the private actor as to make the government
responsible for his action; and, (3) when the government has approved or authorized the
action. It is evident that the act of respondent GSIS in selling 51% of its share in respondent
MHC comes under the second and third categories of "state action." Without doubt therefore
the transaction. although entered into by respondent GSIS, is in fact a transaction of the State
and therefore subject to the constitutional command. 46

When the Constitution addresses the State it refers not only to the people but also to the
government as elements of the State. After all, government is composed of three (3) divisions
of power — legislative, executive and judicial. Accordingly, a constitutional mandate directed
to the State is correspondingly directed to the three(3) branches of government. It is
undeniable that in this case the subject constitutional injunction is addressed among others to
the Executive Department and respondent GSIS, a government instrumentality deriving its
authority from the State.

It should be stressed that while the Malaysian firm offered the higher bid it is not yet the winning
bidder. The bidding rules expressly provide that the highest bidder shall only be declared the
winning bidder after it has negotiated and executed the necessary contracts, and secured the
requisite approvals. Since the "Filipino First Policy provision of the Constitution bestows
preference on qualified Filipinos the mere tending of the highest bid is not an assurance that
the highest bidder will be declared the winning bidder. Resultantly, respondents are not bound
to make the award yet, nor are they under obligation to enter into one with the highest bidder.
For in choosing the awardee respondents are mandated to abide by the dictates of the 1987
Constitution the provisions of which are presumed to be known to all the bidders and other
interested parties.

Adhering to the doctrine of constitutional supremacy, the subject constitutional provision is, as
it should be, impliedly written in the bidding rules issued by respondent GSIS, lest the bidding
rules be nullified for being violative of the Constitution. It is a basic principle in constitutional
law that all laws and contracts must conform with the fundamental law of the land. Those
which violate the Constitution lose their reason for being.

Paragraph V. J. 1 of the bidding rules provides that [if] for any reason the Highest Bidder
cannot be awarded the Block of Shares, GSIS may offer this to other Qualified Bidders that
have validly submitted bids provided that these Qualified Bidders are willing to match the
highest bid in terms of price per
share. 47 Certainly, the constitutional mandate itself is reason enough not to award the block
of shares immediately to the foreign bidder notwithstanding its submission of a higher, or even
the highest, bid. In fact, we cannot conceive of a stronger reason than the constitutional
injunction itself.

In the instant case, where a foreign firm submits the highest bid in a public bidding concerning
the grant of rights, privileges and concessions covering the national economy and patrimony,
thereby exceeding the bid of a Filipino, there is no question that the Filipino will have to be
allowed to match the bid of the foreign entity. And if the Filipino matches the bid of a foreign
firm the award should go to the Filipino. It must be so if we are to give life and meaning to
the Filipino First Policy provision of the 1987 Constitution. For, while this may neither be
expressly stated nor contemplated in the bidding rules, the constitutional fiat is, omnipresent
to be simply disregarded. To ignore it would be to sanction a perilous skirting of the basic law.

This Court does not discount the apprehension that this policy may discourage foreign
investors. But the Constitution and laws of the Philippines are understood to be always open
to public scrutiny. These are given factors which investors must consider when venturing into
business in a foreign jurisdiction. Any person therefore desiring to do business in the
Philippines or with any of its agencies or instrumentalities is presumed to know his rights and
obligations under the Constitution and the laws of the forum.

The argument of respondents that petitioner is now estopped from questioning the sale to
Renong Berhad since petitioner was well aware from the beginning that a foreigner could
participate in the bidding is meritless. Undoubtedly, Filipinos and foreigners alike were invited
to the bidding. But foreigners may be awarded the sale only if no Filipino qualifies, or if the
qualified Filipino fails to match the highest bid tendered by the foreign entity. In the case before
us, while petitioner was already preferred at the inception of the bidding because of the
constitutional mandate, petitioner had not yet matched the bid offered by Renong Berhad.
Thus it did not have the right or personality then to compel respondent GSIS to accept its
earlier bid. Rightly, only after it had matched the bid of the foreign firm and the apparent
disregard by respondent GSIS of petitioner's matching bid did the latter have a cause of action.

Besides, there is no time frame for invoking the constitutional safeguard unless perhaps the
award has been finally made. To insist on selling the Manila Hotel to foreigners when there is
a Filipino group willing to match the bid of the foreign group is to insist that government be
treated as any other ordinary market player, and bound by its mistakes or gross errors of
judgment, regardless of the consequences to the Filipino people. The miscomprehension of
the Constitution is regrettable. Thus we would rather remedy the indiscretion while there is still
an opportunity to do so than let the government develop the habit of forgetting that the
Constitution lays down the basic conditions and parameters for its actions.
Since petitioner has already matched the bid price tendered by Renong Berhad pursuant to
the bidding rules, respondent GSIS is left with no alternative but to award to petitioner the
block of shares of MHC and to execute the necessary agreements and documents to effect
the sale in accordance not only with the bidding guidelines and procedures but with the
Constitution as well. The refusal of respondent GSIS to execute the corresponding documents
with petitioner as provided in the bidding rules after the latter has matched the bid of the
Malaysian firm clearly constitutes grave abuse of discretion.

The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987
Constitution not merely to be used as a guideline for future legislation but primarily to be
enforced; so must it be enforced. This Court as the ultimate guardian of the Constitution will
never shun, under any reasonable circumstance, the duty of upholding the majesty of the
Constitution which it is tasked to defend. It is worth emphasizing that it is not the intention of
this Court to impede and diminish, much less undermine, the influx of foreign investments. Far
from it, the Court encourages and welcomes more business opportunities but avowedly
sanctions the preference for Filipinos whenever such preference is ordained by the
Constitution. The position of the Court on this matter could have not been more appropriately
articulated by Chief Justice Narvasa —

As scrupulously as it has tried to observe that it is not its function to substitute

its judgment for that of the legislature or the executive about the wisdom and
feasibility of legislation economic in nature, the Supreme Court has not been
spared criticism for decisions perceived as obstacles to economic progress and
development . . . in connection with a temporary injunction issued by the Court's
First Division against the sale of the Manila Hotel to a Malaysian Firm and its
partner, certain statements were published in a major daily to the effect that
injunction "again demonstrates that the Philippine legal system can be a major
obstacle to doing business here.

Let it be stated for the record once again that while it is no business of the Court
to intervene in contracts of the kind referred to or set itself up as the judge of
whether they are viable or attainable, it is its bounden duty to make sure that
they do not violate the Constitution or the laws, or are not adopted or
implemented with grave abuse of discretion amounting to lack or excess of
jurisdiction. It will never shirk that duty, no matter how buffeted by winds of
unfair and ill-informed criticism. 48

Privatization of a business asset for purposes of enhancing its business viability and
preventing further losses, regardless of the character of the asset, should not take precedence
over non-material values. A commercial, nay even a budgetary, objective should not be
pursued at the expense of national pride and dignity. For the Constitution enshrines higher
and nobler non-material values. Indeed, the Court will always defer to the Constitution in the
proper governance of a free society; after all, there is nothing so sacrosanct in any economic
policy as to draw itself beyond judicial review when the Constitution is involved. 49

Nationalism is inherent, in the very concept of the Philippines being a democratic and
republican state, with sovereignty residing in the Filipino people and from whom all
government authority emanates. In nationalism, the happiness and welfare of the people must
be the goal. The nation-state can have no higher purpose. Any interpretation of any
constitutional provision must adhere to such basic concept. Protection of foreign investments,
while laudible, is merely a policy. It cannot override the demands of nationalism. 50

The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to be sold to
the highest bidder solely for the sake of privatization. We are not talking about an ordinary
piece of property in a commercial district. We are talking about a historic relic that has hosted
many of the most important events in the short history of the Philippines as a nation. We are
talking about a hotel where heads of states would prefer to be housed as a strong
manifestation of their desire to cloak the dignity of the highest state function to their official
visits to the Philippines. Thus the Manila Hotel has played and continues to play a significant
role as an authentic repository of twentieth century Philippine history and culture. In this sense,
it has become truly a reflection of the Filipino soul — a place with a history of grandeur; a most
historical setting that has played a part in the shaping of a country. 51

This Court cannot extract rhyme nor reason from the determined efforts of respondents to sell
the historical landmark — this Grand Old Dame of hotels in Asia — to a total stranger. For,
indeed, the conveyance of this epic exponent of the Filipino psyche to alien hands cannot be
less than mephistophelian for it is, in whatever manner viewed, a veritable alienation of a
nation's soul for some pieces of foreign silver. And so we ask: What advantage, which cannot
be equally drawn from a qualified Filipino, can be gained by the Filipinos Manila Hotel — and
all that it stands for — is sold to a non-Filipino? How much of national pride will vanish if the
nation's cultural heritage is entrusted to a foreign entity? On the other hand, how much dignity
will be preserved and realized if the national patrimony is safekept in the hands of a qualified,
zealous and well-meaning Filipino? This is the plain and simple meaning of the Filipino First
Policy provision of the Philippine Constitution. And this Court, heeding the clarion call of the
Constitution and accepting the duty of being the elderly watchman of the nation, will continue
to respect and protect the sanctity of the Constitution.

WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA

HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE
GOVERNMENT CORPORATE COUNSEL are directed to CEASE and DESIST from selling
51% of the shares of the Manila Hotel Corporation to RENONG BERHAD, and to ACCEPT
the matching bid of petitioner MANILA PRINCE HOTEL CORPORATION to purchase the
subject 51% of the shares of the Manila Hotel Corporation at P44.00 per share and thereafter
to execute the necessary clearances and to do such other acts and deeds as may be
necessary for purpose.

SO ORDERED.

Regalado, Davide, Jr., Romero, Kapunan, Francisco and Hermosisima, Jr., JJ., concur.
 • Francisco v. House of Representatives, G.R. No. 160261, November
10, 2003

G.R. No. 160261 November 10, 2003

ERNESTO B. FRANCISCO, JR., petitioner,

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

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

G.R. No. 160262 November 10, 2003

SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND HENEDINA RAZON-

ABAD, petitioners,
ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO QUADRA, petitioners-in-
intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER
OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE
GILBERTO G. TEODORO, JR., REPRESENTA-TIVE FELIX WILLIAM B. FUENTEBELLA,
THE SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT
FRANKLIN M. DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160263 November 10, 2003

ARTURO M. DE CASTRO AND SOLEDAD M. CAGAMPANG, petitioners,

WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioners-in-
intervention,
vs.
FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE PRESIDENT, AND JOSE G. DE
VENECIA, JR., IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x

G.R. No. 160277 November 10, 2003

FRANCISCO I. CHAVEZ, petitioner,

WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
JOSE G. DE VENECIA, IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES, FRANKLIN M. DRILON, IN HIS CAPACITY AS PRESIDENT OF THE
SENATE OF THE REPUBLIC OF THE PHILIPPINES, GILBERT TEODORO, JR., FELIX
WILLIAM FUENTEBELLA, JULIO LEDESMA IV, HENRY LANOT, KIM BERNARDO-
LOKIN, MARCELINO LIBANAN, EMMYLOU TALIÑO-SANTOS, DOUGLAS CAGAS,
SHERWIN GATCHALIAN, LUIS BERSAMIN, JR., NERISSA SOON-RUIZ, ERNESTO
NIEVA, EDGAR ERICE, ISMAEL MATHAY, SAMUEL DANGWA, ALFREDO MARAÑON,
JR., CECILIA CARREON-JALOSJOS, AGAPITO AQUINO, FAUSTO SEACHON, JR.,
GEORGILU YUMUL-HERMIDA, JOSE CARLOS LACSON, MANUEL ORTEGA, ULIRAN
JUAQUIN, SORAYA JAAFAR, WILHELMINO SY-ALVARADO, CLAUDE BAUTISTA, DEL
DE GUZMAN, ZENAIDA CRUZ-DUCUT, AUGUSTO BACULIO, FAUSTINO DY III,
AUGUSTO SYJUCO, ROZZANO RUFINO BIAZON, LEOVIGILDO BANAAG, ERIC
SINGSON, JACINTO PARAS, JOSE SOLIS, RENATO MATUBO, HERMINO TEVES,
AMADO ESPINO, JR., EMILIO MACIAS, ARTHUR PINGOY, JR., FRANCIS
NEPOMUCENO, CONRADO ESTRELLA III, ELIAS BULUT, JR., JURDIN ROMUALDO,
JUAN PABLO BONDOC, GENEROSO TULAGAN, PERPETUO YLAGAN, MICHAEL
DUAVIT, JOSEPH DURANO, JESLI LAPUS, CARLOS COJUANGCO, GIORGIDI
AGGABAO, FRANCIS ESCUDERRO, RENE VELARDE, CELSO LOBREGAT, ALIPIO
BADELLES, DIDAGEN DILANGALEN, ABRAHAM MITRA, JOSEPH SANTIAGO,
DARLENE ANTONIO-CUSTODIO, ALETA SUAREZ, RODOLF PLAZA, JV BAUTISTA,
GREGORIO IPONG, GILBERT REMULLA, ROLEX SUPLICO, CELIA LAYUS, JUAN
MIGUEL ZUBIRI, BENASING MACARAMBON, JR., JOSEFINA JOSON, MARK
COJUANGCO, MAURICIO DOMOGAN, RONALDO ZAMORA, ANGELO MONTILLA,
ROSELLER BARINAGA, JESNAR FALCON, REYLINA NICOLAS, RODOLFO ALBANO,
JOAQUIN CHIPECO, JR., AND RUY ELIAS LOPEZ, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160292 November 10, 2003

HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA. CECILIA PAPA,
NAPOLEON C. REYES, ANTONIO H. ABAD, JR., ALFREDO C. LIGON, JOAN P.
SERRANO AND GARY S. MALLARI, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
HON. SPEAKER JOSE G. DE VENECIA, JR. AND ROBERTO P. NAZARENO, IN HIS
CAPACITY AS SECRETARY GENERAL OF THE HOUSE OF REPRESENTATIVES, AND
THE HOUSE OF REPRESENTATIVES, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

x---------------------------------------------------------x
G.R. No. 160295 November 10, 2003

SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M. GONZALES, petitioners,

WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,

vs.
THE HOUSE OF REPRESEN-TATIVES, THROUGH THE SPEAKER OR ACTING
SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA,
REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM
B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT,
SENATE PRESIDENT FRANKLIN M. DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160310 November 10, 2003

LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR, MELVIN MATIBAG,

RAMON MIQUIBAS, RODOLFO MAGSINO, EDUARDO MALASAGA, EDUARDO
SARMIENTO, EDGARDO NAOE, LEONARDO GARCIA, EDGARD SMITH, EMETERIO
MENDIOLA, MARIO TOREJA, GUILLERMO CASTASUS, NELSON A. LOYOLA,
WILFREDO BELLO, JR., RONNIE TOQUILLO, KATE ANN VITAL, ANGELITA Q.
GUZMAN, MONICO PABLES, JR., JAIME BOAQUINA, LITA A. AQUINO, MILA P.
GABITO, JANETTE ARROYO, RIZALDY EMPIG, ERNA LAHUZ, HOMER CALIBAG, DR.
BING ARCE, SIMEON ARCE, JR., EL DELLE ARCE, WILLIE RIVERO, DANTE DIAZ,
ALBERTO BUENAVISTA, FAUSTO BUENAVISTA, EMILY SENERIS, ANNA CLARISSA
LOYOLA, SALVACION LOYOLA, RAINIER QUIROLGICO, JOSEPH LEANDRO LOYOLA,
ANTONIO LIBREA, FILEMON SIBULO, MANUEL D. COMIA, JULITO U. SOON, VIRGILIO
LUSTRE, AND NOEL ISORENA, MAU RESTRIVERA, MAX VILLAESTER, AND
EDILBERTO GALLOR, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HON. SPEAKER JOSE C. DE
VENECIA, JR., THE SENATE, REPRESENTED BY HON. SENATE PRESIDENT
FRANKLIN DRILON, HON. FELIX FUENTEBELLA, ET AL., respondents.

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

G.R. No. 160318 November 10, 2003

PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners,

vs.
HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF
REPRESENTATIVES, HON. SENATE PRESIDENT FRANKLIN M. DRILON, AND ALL
MEMBERS, PHILIPPINE SENATE, respondents.

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

G.R. No. 160342 November 10, 2003

ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER OF THE
INTEGRATED BAR OF THE PHILIPPINES, MANILA III, AND ENGR. MAXIMO N. MENEZ
JR., IN HIS CAPACITY AS A TAXPAYER AND MEMBER OF THE ENGINEERING
PROFESSION, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES REPRESENTED BY THE 83 HONORABLE
MEMBERS OF THE HOUSE LED BY HON. REPRESENTATIVE WILLIAM
FUENTEBELLA, respondents.

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

G.R. No. 160343 November 10, 2003

INTEGRATED BAR OF THE PHILIPPINES, petitioner,

vs.
THE HOUSE OF REPRESENTA-TIVES, THROUGH THE SPEAKER OR ACTING
SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA,
REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM
B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES THROUGH ITS PRESIDENT,
SENATE PRESIDENT FRANKLIN M. DRILON, respondents.

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

G.R. No. 160360 November 10, 2003

CLARO B. FLORES, petitioner,

vs.
THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER, AND THE SENATE OF
THE PHILIPPINES, THROUGH THE SENATE PRESIDENT, respondents.

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

G.R. No. 160365 November 10, 2003

U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C. PADERANGA, DANILO V.
ORTIZ, GLORIA C. ESTENZO-RAMOS, LIZA D. CORRO, LUIS V. DIORES, SR.,
BENJAMIN S. RALLON, ROLANDO P. NONATO, DANTE T. RAMOS, ELSA R.
DIVINAGRACIA, KAREN B. CAPARROS-ARQUILLANO, SYLVA G. AGUIRRE-
PADERANGA, FOR THEMSELVES AND IN BEHALF OF OTHER CITIZENS OF THE
REPUBLIC OF THE PHILIPPINES, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, SPEAKER JOSE G. DE VENECIA, THE SENATE
OF THE PHILIPPINES, SENATE PRESIDENT FRANKLIN DRILON, HOUSE
REPRESENTATIVES FELIX FUENTEBELLA AND GILBERTO TEODORO, BY
THEMSELVES AND AS REPRESENTATIVES OF THE GROUP OF MORE THAN 80
HOUSE REPRESENTATIVES WHO SIGNED AND FILED THE IMPEACHMENT
COMPLAINT AGAINST SUPREME COURT CHIEF JUSTICE HILARIO G. DAVIDE,
JR. respondents.

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

G.R. No. 160370 November 10, 2003

FR. RANHILIO CALLANGAN AQUINO, petitioner,
vs.
THE HONORABLE PRESIDENT OF THE SENATE, THE HONORABLE SPEAKER OF THE
HOUSE OF REPRESENTATIVES, respondents.

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

G.R. No. 160376 November 10, 2003

NILO A. MALANYAON, petitioner,

vs.
HON. FELIX WILLIAM FUENTEBELLA AND GILBERT TEODORO, IN REPRESENTATION
OF THE 86 SIGNATORIES OF THE ARTICLES OF IMPEACHMENT AGAINST CHIEF
JUSTICE HILARIO G. DAVIDE, JR. AND THE HOUSE OF REPRESENTATIVES,
CONGRESS OF THE PHILIPPINES, REPRESENTED BY ITS SPEAKER, HON. JOSE G.
DE VENECIA, respondents.

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

G.R. No. 160392 November 10, 2003

VENICIO S. FLORES AND HECTOR L. HOFILEÑA, petitioners,

vs.
THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER JOSE G. DE VENECIA, AND
THE SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT FRANKLIN
DRILON, respondents.

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

G.R. No. 160397 November 10, 2003

IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST CHIEF JUSTICE

HILARIO G. DAVIDE, JR., ATTY. DIOSCORO U. VALLEJOS, JR., petitioner.

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

G.R. No. 160403 November 10, 2003

PHILIPPINE BAR ASSOCIATION, petitioner,

vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR PRESIDING
OFFICER, HON. JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO,
JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELA, THE SENATE OF THE
PHILIPPINES, THROUGH SENATE PRESIDENT, HON. FRANKLIN DRILON, respondents.

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

G.R. No. 160405 November 10, 2003

DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY CHAPTER, MANUEL M.

MONZON, PRESIDING OF IBP, CEBU PROVINCE, VICTOR A. MAAMBONG,
PROVINCIAL BOARD MEMBER, ADELINO B. SITOY, DEAN OF THE COLLEG EOF LAW,
UNIVERSITY OF CEBU, YOUNG LAWYERS ASSOCAITION OF CEBU, INC. [YLAC],
REPRSEENTED BY ATTY. MANUEL LEGASPI, CONFEDERATION OF ACCREDITED
MEDIATORS OF THE PHILIPPINES, INC. [CAMP, INC], REPRESENTED BY RODERIC R.
POCA, MANDAUE LAWYERS ASSOCIATION, [MANLAW], REPRESENTED BY FELIPE
VELASQUEZ, FEDERACION INTERNACIONAL DE ABOGADAS [FIDA], REPRESENTED
BY THELMA L. JORDAN, CARLOS G. CO, PRESIENT OF CEBU CHAMBER OF
COMMERCE AND INDUSTRY AND CEBU LADY LAWYERS ASSOCIATION, INC. [CELLA,
INC.], MARIBELLE NAVARRO AND BERNARDITO FLORIDO, PAST PRESIDENT CEBU
CHAMBER OF COMMERCE AND INTEGRATED BAR OF THE PHILIPPINES, CEBU
CHAPTER, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, REPRESENTED BY REP. JOSE G. DE VENECIA,
AS HOUSE SPEAKER AND THE SENATE, REPRESENTED BY SENATOR FRANKLIN
DRILON, AS SENATE PRESIDENT, respondents.

CARPIO MORALES, J.:

There can be no constitutional crisis arising from a conflict, no matter how passionate and
seemingly irreconcilable it may appear to be, over the determination by the independent
branches of government of the nature, scope and extent of their respective constitutional
powers where the Constitution itself provides for the means and bases for its resolution.

Our nation's history is replete with vivid illustrations of the often frictional, at times turbulent,
dynamics of the relationship among these co-equal branches. This Court is confronted with
one such today involving the legislature and the judiciary which has drawn legal luminaries to
chart antipodal courses and not a few of our countrymen to vent cacophonous sentiments
thereon.

There may indeed be some legitimacy to the characterization that the present controversy
subject of the instant petitions – whether the filing of the second impeachment complaint
against Chief Justice Hilario G. Davide, Jr. with the House of Representatives falls within the
one year bar provided in the Constitution, and whether the resolution thereof is a political
question – has resulted in a political crisis. Perhaps even more truth to the view that it was
brought upon by a political crisis of conscience.

In any event, it is with the absolute certainty that our Constitution is sufficient to address all
the issues which this controversy spawns that this Court unequivocally pronounces, at the first
instance, that the feared resort to extra-constitutional methods of resolving it is neither
necessary nor legally permissible. Both its resolution and protection of the public interest lie
in adherence to, not departure from, the Constitution.

In passing over the complex issues arising from the controversy, this Court is ever mindful of
the essential truth that the inviolate doctrine of separation of powers among the legislative,
executive or judicial branches of government by no means prescribes for absolute autonomy
in the discharge by each of that part of the governmental power assigned to it by the sovereign
people.

At the same time, the corollary doctrine of checks and balances which has been carefully
calibrated by the Constitution to temper the official acts of each of these three branches must
be given effect without destroying their indispensable co-equality.

Taken together, these two fundamental doctrines of republican government, intended as they
are to insure that governmental power is wielded only for the good of the people, mandate a
relationship of interdependence and coordination among these branches where the delicate
functions of enacting, interpreting and enforcing laws are harmonized to achieve a unity of
governance, guided only by what is in the greater interest and well-being of the people.
Verily, salus populi est suprema lex.

Article XI of our present 1987 Constitution provides:

ARTICLE XI

Accountability of Public Officers

SECTION 1. Public office is a public trust. Public officers and employees must at all
times be accountable to the people, serve them with utmost responsibility, integrity,
loyalty, and efficiency, act with patriotism and justice, and lead modest lives.

SECTION 2. The President, the Vice-President, the Members of the Supreme Court,
the Members of the Constitutional Commissions, and the Ombudsman may be
removed from office, on impeachment for, and conviction of, culpable violation of the
Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of
public trust. All other public officers and employees may be removed from office as
provided by law, but not by impeachment.

SECTION 3. (1) The House of Representatives shall have the exclusive power
to initiate all cases of impeachment.

(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business within ten session days, and
referred to the proper Committee within three session days thereafter. The Committee,
after hearing, and by a majority vote of all its Members, shall submit its report to the
House within sixty session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration by the House within
ten session days from receipt thereof.

(3) A vote of at least one-third of all the Members of the House shall be necessary
either to affirm a favorable resolution with the Articles of Impeachment of the
Committee, or override its contrary resolution. The vote of each Member shall be
recorded.

(4) In case the verified complaint or resolution of impeachment is filed by at least one-
third of all the Members of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.

(5) No impeachment proceedings shall be initiated against the same official more
than once within a period of one year.

(6) The Senate shall have the sole power to try and decide all cases of impeachment.
When sitting for that purpose, the Senators shall be on oath or affirmation. When the
President of the Philippines is on trial, the Chief Justice of the Supreme Court shall
preside, but shall not vote. No person shall be convicted without the concurrence of
two-thirds of all the Members of the Senate.

(7) Judgment in cases of impeachment shall not extend further than removal from
office and disqualification to hold any office under the Republic of the Philippines, but
 the party convicted shall nevertheless be liable and subject to prosecution, trial, and
punishment according to law.

(8) The Congress shall promulgate its rules on impeachment to effectively carry out
the purpose of this section. (Emphasis and underscoring supplied)

Following the above-quoted Section 8 of Article XI of the Constitution, the 12th Congress of
the House of Representatives adopted and approved the Rules of Procedure in Impeachment
Proceedings (House Impeachment Rules) on November 28, 2001, superseding the previous
House Impeachment Rules1 approved by the 11th Congress. The relevant distinctions
between these two Congresses' House Impeachment Rules are shown in the following
tabulation:

11TH CONGRESS RULES 12TH CONGRESS NEW RULES

RULE II RULE V

INITIATING IMPEACHMENT BAR AGAINST INITIATION OF

IMPEACHMENT
Section 2. Mode of Initiating PROCEEDINGS AGAINST THE
Impeachment. – Impeachment SAME OFFICIAL
shall be initiated only by a verified
complaint for impeachment filed by Section 16. – Impeachment
any Member of the House of Proceedings Deemed
Representatives or by any citizen Initiated. – In cases where a
upon a resolution of endorsement Member of the House files a
by any Member thereof or by a verified complaint of
verified complaint or resolution of impeachment or a citizen files a
impeachment filed by at least one- verified complaint that is
third (1/3) of all the Members of the endorsed by a Member of the
House. House through a resolution of
endorsement against an
impeachable officer,
impeachment proceedings
against such official are deemed
initiated on the day the
Committee on Justice finds that
the verified complaint and/or
resolution against such official,
as the case may be, is sufficient
in substance, or on the date the
House votes to overturn or affirm
the finding of the said Committee
that the verified complaint and/or
resolution, as the case may be, is
not sufficient in substance.

In cases where a verified

complaint or a resolution of
impeachment is filed or
endorsed, as the case may be,
by at least one-third (1/3) of the
 Members of the
House, impeachment
proceedings are deemed
initiated at the time of the filing
of such verified complaint or
resolution of impeachment
with the Secretary General.

RULE V Section 17. Bar Against

Initiation Of Impeachment
BAR AGAINST IMPEACHMENT Proceedings. – Within a period
of one (1) year from the date
Section 14. Scope of Bar. – No impeachment proceedings are
impeachment proceedings shall deemed initiated as provided in
be initiated against the same Section 16 hereof, no
official more than once within the impeachment proceedings, as
period of one (1) year. such, can be initiated against the
same official. (Italics in the
original; emphasis and
underscoring supplied)

On July 22, 2002, the House of Representatives adopted a Resolution,2 sponsored by

Representative Felix William D. Fuentebella, which directed the Committee on Justice "to
conduct an investigation, in aid of legislation, on the manner of disbursements and
expenditures by the Chief Justice of the Supreme Court of the Judiciary Development Fund
(JDF)."3

On June 2, 2003, former President Joseph E. Estrada filed an impeachment complaint 4 (first
impeachment complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate
Justices5 of this Court for "culpable violation of the Constitution, betrayal of the public trust and
other high crimes."6 The complaint was endorsed by Representatives Rolex T. Suplico,
Ronaldo B. Zamora and Didagen Piang Dilangalen,7 and was referred to the House
Committee on Justice on August 5, 20038 in accordance with Section 3(2) of Article XI of the
Constitution which reads:

Section 3(2) A verified complaint for impeachment may be filed by any Member of the
House of Representatives or by any citizen upon a resolution of endorsement by any
Member thereof, which shall be included in the Order of Business within ten session
days, and referred to the proper Committee within three session days thereafter. The
Committee, after hearing, and by a majority vote of all its Members, shall submit its
report to the House within sixty session days from such referral, together with the
corresponding resolution. The resolution shall be calendared for consideration by the
House within ten session days from receipt thereof.

The House Committee on Justice ruled on October 13, 2003 that the first impeachment
complaint was "sufficient in form,"9 but voted to dismiss the same on October 22, 2003 for
being insufficient in substance.10 To date, the Committee Report to this effect has not yet been
sent to the House in plenary in accordance with the said Section 3(2) of Article XI of the
Constitution.
Four months and three weeks since the filing on June 2, 2003 of the first complaint or on
October 23, 2003, a day after the House Committee on Justice voted to dismiss it, the second
impeachment complaint11 was filed with the Secretary General of the House12 by
Representatives Gilberto C. Teodoro, Jr. (First District, Tarlac) and Felix William B.
Fuentebella (Third District, Camarines Sur) against Chief Justice Hilario G. Davide, Jr.,
founded on the alleged results of the legislative inquiry initiated by above-mentioned House
Resolution. This second impeachment complaint was accompanied by a "Resolution of
Endorsement/Impeachment" signed by at least one-third (1/3) of all the Members of the House
of Representatives.13

Thus arose the instant petitions against the House of Representatives, et. al., most of which
petitions contend that the filing of the second impeachment complaint is unconstitutional as it
violates the provision of Section 5 of Article XI of the Constitution that "[n]o impeachment
proceedings shall be initiated against the same official more than once within a period of one
year."

In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he has a duty as a
member of the Integrated Bar of the Philippines to use all available legal remedies to stop an
unconstitutional impeachment, that the issues raised in his petition for Certiorari, Prohibition
and Mandamus are of transcendental importance, and that he "himself was a victim of the
capricious and arbitrary changes in the Rules of Procedure in Impeachment Proceedings
introduced by the 12th Congress,"14 posits that his right to bring an impeachment complaint
against then Ombudsman Aniano Desierto had been violated due to the capricious and
arbitrary changes in the House Impeachment Rules adopted and approved on November 28,
2001 by the House of Representatives and prays that (1) Rule V, Sections 16 and 17 and Rule
III, Sections 5, 6, 7, 8, and 9 thereof be declared unconstitutional; (2) this Court issue a writ of
mandamus directing respondents House of Representatives et. al. to comply with Article IX,
Section 3 (2), (3) and (5) of the Constitution, to return the second impeachment complaint
and/or strike it off the records of the House of Representatives, and to promulgate rules which
are consistent with the Constitution; and (3) this Court permanently enjoin respondent House
of Representatives from proceeding with the second impeachment complaint.

In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as citizens and taxpayers,
alleging that the issues of the case are of transcendental importance, pray, in their petition for
Certiorari/Prohibition, the issuance of a writ "perpetually" prohibiting respondent House of
Representatives from filing any Articles of Impeachment against the Chief Justice with the
Senate; and for the issuance of a writ "perpetually" prohibiting respondents Senate and Senate
President Franklin Drilon from accepting any Articles of Impeachment against the Chief
Justice or, in the event that the Senate has accepted the same, from proceeding with the
impeachment trial.

In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad Cagampang, as citizens,
taxpayers, lawyers and members of the Integrated Bar of the Philippines, alleging that their
petition for Prohibition involves public interest as it involves the use of public funds necessary
to conduct the impeachment trial on the second impeachment complaint, pray for the issuance
of a writ of prohibition enjoining Congress from conducting further proceedings on said second
impeachment complaint.

In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court has recognized
that he has locus standi to bring petitions of this nature in the cases of Chavez v.
PCGG15 and Chavez v. PEA-Amari Coastal Bay Development Corporation,16 prays in his
petition for Injunction that the second impeachment complaint be declared unconstitutional.
In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers and members of the
legal profession, pray in their petition for Prohibition for an order prohibiting respondent House
of Representatives from drafting, adopting, approving and transmitting to the Senate the
second impeachment complaint, and respondents De Venecia and Nazareno from
transmitting the Articles of Impeachment to the Senate.

In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina and Deputy Speaker
Raul M. Gonzalez, alleging that, as members of the House of Representatives, they have a
legal interest in ensuring that only constitutional impeachment proceedings are initiated, pray
in their petition for Certiorari/Prohibition that the second impeachment complaint and any act
proceeding therefrom be declared null and void.

In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming that they have a right to be
protected against all forms of senseless spending of taxpayers' money and that they have an
obligation to protect the Supreme Court, the Chief Justice, and the integrity of the Judiciary,
allege in their petition for Certiorari and Prohibition that it is instituted as "a class suit" and pray
that (1) the House Resolution endorsing the second impeachment complaint as well as all
issuances emanating therefrom be declared null and void; and (2) this Court enjoin the Senate
and the Senate President from taking cognizance of, hearing, trying and deciding the second
impeachment complaint, and issue a writ of prohibition commanding the Senate, its
prosecutors and agents to desist from conducting any proceedings or to act on the
impeachment complaint.

In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members are citizens and
taxpayers, and its co-petitioner Crispin T. Reyes, a citizen, taxpayer and a member of the
Philippine Bar, both allege in their petition, which does not state what its nature is, that the
filing of the second impeachment complaint involves paramount public interest and pray that
Sections 16 and 17 of the House Impeachment Rules and the second impeachment
complaint/Articles of Impeachment be declared null and void.

In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen and a member of the
Philippine Bar Association and of the Integrated Bar of the Philippines, and petitioner Engr.
Maximo N. Menez, Jr., as a taxpayer, pray in their petition for the issuance of a Temporary
Restraining Order and Permanent Injunction to enjoin the House of Representatives from
proceeding with the second impeachment complaint.

In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that it is mandated
by the Code of Professional Responsibility to uphold the Constitution, prays in its petition for
Certiorari and Prohibition that Sections 16 and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule
III of the House Impeachment Rules be declared unconstitutional and that the House of
Representatives be permanently enjoined from proceeding with the second impeachment
complaint.

In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his petition for Certiorari
and Prohibition that the House Impeachment Rules be declared unconstitutional.

In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et. al., in their petition
for Prohibition and Injunction which they claim is a class suit filed in behalf of all citizens,
citing Oposa v. Factoran17 which was filed in behalf of succeeding generations of Filipinos,
pray for the issuance of a writ prohibiting respondents House of Representatives and the
Senate from conducting further proceedings on the second impeachment complaint and that
this Court declare as unconstitutional the second impeachment complaint and the acts of
respondent House of Representatives in interfering with the fiscal matters of the Judiciary.
In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino, alleging that the
issues in his petition for Prohibition are of national and transcendental significance and that
as an official of the Philippine Judicial Academy, he has a direct and substantial interest in the
unhampered operation of the Supreme Court and its officials in discharging their duties in
accordance with the Constitution, prays for the issuance of a writ prohibiting the House of
Representatives from transmitting the Articles of Impeachment to the Senate and the Senate
from receiving the same or giving the impeachment complaint due course.

In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in his petition for
Prohibition that respondents Fuentebella and Teodoro at the time they filed the second
impeachment complaint, were "absolutely without any legal power to do so, as they acted
without jurisdiction as far as the Articles of Impeachment assail the alleged abuse of powers
of the Chief Justice to disburse the (JDF)."

In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L. Hofileña, alleging
that as professors of law they have an abiding interest in the subject matter of their petition for
Certiorari and Prohibition as it pertains to a constitutional issue "which they are trying to
inculcate in the minds of their students," pray that the House of Representatives be enjoined
from endorsing and the Senate from trying the Articles of Impeachment and that the second
impeachment complaint be declared null and void.

In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging his locus standi,
but alleging that the second impeachment complaint is founded on the issue of whether or not
the Judicial Development Fund (JDF) was spent in accordance with law and that the House
of Representatives does not have exclusive jurisdiction in the examination and audit thereof,
prays in his petition "To Declare Complaint Null and Void for Lack of Cause of Action and
Jurisdiction" that the second impeachment complaint be declared null and void.

In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the issues raised in
the filing of the second impeachment complaint involve matters of transcendental importance,
prays in its petition for Certiorari/Prohibition that (1) the second impeachment complaint and
all proceedings arising therefrom be declared null and void; (2) respondent House of
Representatives be prohibited from transmitting the Articles of Impeachment to the Senate;
and (3) respondent Senate be prohibited from accepting the Articles of Impeachment and from
conducting any proceedings thereon.

In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens and taxpayers, pray
in their petition for Certiorari/Prohibition that (1) the second impeachment complaint as well as
the resolution of endorsement and impeachment by the respondent House of Representatives
be declared null and void and (2) respondents Senate and Senate President Franklin Drilon
be prohibited from accepting any Articles of Impeachment against the Chief Justice or, in the
event that they have accepted the same, that they be prohibited from proceeding with the
impeachment trial.

Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263, the first three of
the eighteen which were filed before this Court,18 prayed for the issuance of a Temporary
Restraining Order and/or preliminary injunction to prevent the House of Representatives from
transmitting the Articles of Impeachment arising from the second impeachment complaint to
the Senate. Petition bearing docket number G.R. No. 160261 likewise prayed for the
declaration of the November 28, 2001 House Impeachment Rules as null and void for being
unconstitutional.

Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295, which were filed
on October 28, 2003, sought similar relief. In addition, petition bearing docket number G.R.
No. 160292 alleged that House Resolution No. 260 (calling for a legislative inquiry into the
administration by the Chief Justice of the JDF) infringes on the constitutional doctrine of
separation of powers and is a direct violation of the constitutional principle of fiscal autonomy
of the judiciary.

On October 28, 2003, during the plenary session of the House of Representatives, a motion
was put forth that the second impeachment complaint be formally transmitted to the Senate,
but it was not carried because the House of Representatives adjourned for lack of
quorum,19 and as reflected above, to date, the Articles of Impeachment have yet to be
forwarded to the Senate.

Before acting on the petitions with prayers for temporary restraining order and/or writ of
preliminary injunction which were filed on or before October 28, 2003, Justices Puno and Vitug
offered to recuse themselves, but the Court rejected their offer. Justice Panganiban inhibited
himself, but the Court directed him to participate.

Without necessarily giving the petitions due course, this Court in its Resolution of October 28,
2003, resolved to (a) consolidate the petitions; (b) require respondent House of
Representatives and the Senate, as well as the Solicitor General, to comment on the petitions
not later than 4:30 p.m. of November 3, 2003; (c) set the petitions for oral arguments on
November 5, 2003, at 10:00 a.m.; and (d) appointed distinguished legal experts as amici
curiae.20 In addition, this Court called on petitioners and respondents to maintain the status
quo, enjoining all the parties and others acting for and in their behalf to refrain from committing
acts that would render the petitions moot.

Also on October 28, 2003, when respondent House of Representatives through Speaker Jose
C. De Venecia, Jr. and/or its co-respondents, by way of special appearance, submitted a
Manifestation asserting that this Court has no jurisdiction to hear, much less prohibit or enjoin
the House of Representatives, which is an independent and co-equal branch of government
under the Constitution, from the performance of its constitutionally mandated duty to initiate
impeachment cases. On even date, Senator Aquilino Q. Pimentel, Jr., in his own behalf, filed
a Motion to Intervene (Ex Abudante Cautela)21 and Comment, praying that "the consolidated
petitions be dismissed for lack of jurisdiction of the Court over the issues affecting the
impeachment proceedings and that the sole power, authority and jurisdiction of the Senate as
the impeachment court to try and decide impeachment cases, including the one where the
Chief Justice is the respondent, be recognized and upheld pursuant to the provisions of Article
XI of the Constitution."22

Acting on the other petitions which were subsequently filed, this Court resolved to (a)
consolidate them with the earlier consolidated petitions; (b) require respondents to file their
comment not later than 4:30 p.m. of November 3, 2003; and (c) include them for oral
arguments on November 5, 2003.

On October 29, 2003, the Senate of the Philippines, through Senate President Franklin M.
Drilon, filed a Manifestation stating that insofar as it is concerned, the petitions are plainly
premature and have no basis in law or in fact, adding that as of the time of the filing of the
petitions, no justiciable issue was presented before it since (1) its constitutional duty to
constitute itself as an impeachment court commences only upon its receipt of the Articles of
Impeachment, which it had not, and (2) the principal issues raised by the petitions pertain
exclusively to the proceedings in the House of Representatives.

On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave to Intervene" in G.R. Nos.
160261, 160262, 160263, 160277, 160292, and 160295, questioning the status
quo Resolution issued by this Court on October 28, 2003 on the ground that it would
unnecessarily put Congress and this Court in a "constitutional deadlock" and praying for the
dismissal of all the petitions as the matter in question is not yet ripe for judicial determination.

On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino Quadra filed in G.R.
No. 160262 a "Motion for Leave of Court to Intervene and to Admit the Herein Incorporated
Petition in Intervention."

On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga Manggagawang

Pilipino, Inc. filed a Motion for Intervention in G.R. No. 160261. On November 5, 2003, World
War II Veterans Legionnaires of the Philippines, Inc. also filed a "Petition-in-Intervention with
Leave to Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and
160310.

The motions for intervention were granted and both Senator Pimentel's Comment and
Attorneys Macalintal and Quadra's Petition in Intervention were admitted.

On November 5-6, 2003, this Court heard the views of the amici curiae and the arguments of
petitioners, intervenors Senator Pimentel and Attorney Makalintal, and Solicitor General
Alfredo Benipayo on the principal issues outlined in an Advisory issued by this Court on
November 3, 2003, to wit:

Whether the certiorari jurisdiction of the Supreme Court may be invoked; who can
invoke it; on what issues and at what time; and whether it should be exercised by this
Court at this time.

In discussing these issues, the following may be taken up:

a) locus standi of petitioners;

b) ripeness(prematurity; mootness);

c) political question/justiciability;

d) House's "exclusive" power to initiate all cases of impeachment;

e) Senate's "sole" power to try and decide all cases of impeachment;

f) constitutionality of the House Rules on Impeachment vis-a-vis Section 3(5)

of Article XI of the Constitution; and

g) judicial restraint (Italics in the original)

In resolving the intricate conflux of preliminary and substantive issues arising from the instant
petitions as well as the myriad arguments and opinions presented for and against the grant of
the reliefs prayed for, this Court has sifted and determined them to be as follows: (1) the
threshold and novel issue of whether or not the power of judicial review extends to those
arising from impeachment proceedings; (2) whether or not the essential pre-requisites for the
exercise of the power of judicial review have been fulfilled; and (3) the substantive issues yet
remaining. These matters shall now be discussed in seriatim.

Judicial Review
As reflected above, petitioners plead for this Court to exercise the power of judicial review to
determine the validity of the second impeachment complaint.

This Court's power of judicial review is conferred on the judicial branch of the government in
Section 1, Article VIII of our present 1987 Constitution:

SECTION 1. The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
government. (Emphasis supplied)

Such power of judicial review was early on exhaustively expounded upon by Justice Jose P.
Laurel in the definitive 1936 case of Angara v. Electoral Commission23 after the effectivity of
the 1935 Constitution whose provisions, unlike the present Constitution, did not contain the
present provision in Article VIII, Section 1, par. 2 on what judicial power includes. Thus, Justice
Laurel discoursed:

x x x In times of social disquietude or political excitement, the great landmarks of the

Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of
conflict, the judicial department is the only constitutional organ which can be
called upon to determine the proper allocation of powers between the several
departments and among the integral or constituent units thereof.

As any human production, our Constitution is of course lacking perfection and

perfectibility, but as much as it was within the power of our people, acting through their
delegates to so provide, that instrument which is the expression of their sovereignty
however limited, has established a republican government intended to operate and
function as a harmonious whole, under a system of checks and balances, and subject
to specific limitations and restrictions provided in the said instrument. The
Constitution sets forth in no uncertain language the restrictions and limitations
upon governmental powers and agencies. If these restrictions and limitations
are transcended it would be inconceivable if the Constitution had not provided
for a mechanism by which to direct the course of government along
constitutional channels, for then the distribution of powers would be mere verbiage,
the bill of rights mere expressions of sentiment, and the principles of good government
mere political apothegms. Certainly, the limitations and restrictions embodied in our
Constitution are real as they should be in any living constitution. In the United States
where no express constitutional grant is found in their constitution, the possession of
this moderating power of the courts, not to speak of its historical origin and
development there, has been set at rest by popular acquiescence for a period of more
than one and a half centuries. In our case, this moderating power is granted, if not
expressly, by clear implication from section 2 of article VIII of our Constitution.

The Constitution is a definition of the powers of government. Who is to determine the

nature, scope and extent of such powers? The Constitution itself has provided
for the instrumentality of the judiciary as the rational way. And when the
judiciary mediates to allocate constitutional boundaries, it does not assert any
superiority over the other departments; it does not in reality nullify or invalidate an act
of the legislature, but only asserts the solemn and sacred obligation assigned to
it by the Constitution to determine conflicting claims of authority under the
 Constitution and to establish for the parties in an actual controversy the rights
which that instrument secures and guarantees to them. This is in truth all that is
involved in what is termed "judicial supremacy" which properly is the power of
judicial review under the Constitution. Even then, this power of judicial review is
limited to actual cases and controversies to be exercised after full opportunity of
argument by the parties, and limited further to the constitutional question raised or the
very lis mota presented. Any attempt at abstraction could only lead to dialectics and
barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as
its function is in this manner, the judiciary does not pass upon questions of wisdom,
justice or expediency of legislation. More than that, courts accord the presumption of
constitutionality to legislative enactments, not only because the legislature is presumed
to abide by the Constitution but also because the judiciary in the determination of actual
cases and controversies must reflect the wisdom and justice of the people as
expressed through their representatives in the executive and legislative departments
of the government.24 (Italics in the original; emphasis and underscoring supplied)

As pointed out by Justice Laurel, this "moderating power" to "determine the proper allocation
of powers" of the different branches of government and "to direct the course of government
along constitutional channels" is inherent in all courts25 as a necessary consequence of the
judicial power itself, which is "the power of the court to settle actual controversies involving
rights which are legally demandable and enforceable."26

Thus, even in the United States where the power of judicial review is not explicitly conferred
upon the courts by its Constitution, such power has "been set at rest by popular acquiescence
for a period of more than one and a half centuries." To be sure, it was in the 1803 leading case
of Marbury v. Madison27 that the power of judicial review was first articulated by Chief Justice
Marshall, to wit:

It is also not entirely unworthy of observation, that in declaring what shall be the
supreme law of the land, the constitution itself is first mentioned; and not the laws of
the United States generally, but those only which shall be made in pursuance of the
constitution, have that rank.

Thus, the particular phraseology of the constitution of the United States confirms
and strengthens the principle, supposed to be essential to all written
constitutions, that a law repugnant to the constitution is void; and that courts,
as well as other departments, are bound by that instrument.28 (Italics in the
original; emphasis supplied)

In our own jurisdiction, as early as 1902, decades before its express grant in the 1935
Constitution, the power of judicial review was exercised by our courts to invalidate
constitutionally infirm acts.29 And as pointed out by noted political law professor and former
Supreme Court Justice Vicente V. Mendoza,30 the executive and legislative branches of our
government in fact effectively acknowledged this power of judicial review in Article 7 of the
Civil Code, to wit:

Article 7. Laws are repealed only by subsequent ones, and their violation or non-
observance shall not be excused by disuse, or custom or practice to the contrary.

When the courts declare a law to be inconsistent with the Constitution, the
former shall be void and the latter shall govern.

Administrative or executive acts, orders and regulations shall be valid only when
they are not contrary to the laws or the Constitution. (Emphasis supplied)
As indicated in Angara v. Electoral Commission,31 judicial review is indeed an integral
component of the delicate system of checks and balances which, together with the corollary
principle of separation of powers, forms the bedrock of our republican form of government and
insures that its vast powers are utilized only for the benefit of the people for which it serves.

The separation of powers is a fundamental principle in our system of

government. It obtains not through express provision but by actual division in our
Constitution. Each department of the government has exclusive cognizance of matters
within its jurisdiction, and is supreme within its own sphere. But it does not follow from
the fact that the three powers are to be kept separate and distinct that the Constitution
intended them to be absolutely unrestrained and independent of each other. The
Constitution has provided for an elaborate system of checks and balances to
secure coordination in the workings of the various departments of the
government. x x x And the judiciary in turn, with the Supreme Court as the final
arbiter, effectively checks the other departments in the exercise of its power to
determine the law, and hence to declare executive and legislative acts void if
violative of the Constitution.32 (Emphasis and underscoring supplied)

In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "x x x judicial
review is essential for the maintenance and enforcement of the separation of powers and the
balancing of powers among the three great departments of government through the definition
and maintenance of the boundaries of authority and control between them."33 To him,
"[j]udicial review is the chief, indeed the only, medium of participation – or instrument of
intervention – of the judiciary in that balancing operation."34

To ensure the potency of the power of judicial review to curb grave abuse of discretion by "any
branch or instrumentalities of government," the afore-quoted Section 1, Article VIII of the
Constitution engraves, for the first time into its history, into block letter law the so-called
"expanded certiorari jurisdiction" of this Court, the nature of and rationale for which are
mirrored in the following excerpt from the sponsorship speech of its proponent, former Chief
Justice Constitutional Commissioner Roberto Concepcion:

xxx

The first section starts with a sentence copied from former Constitutions. It says:

The judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.

I suppose nobody can question it.

The next provision is new in our constitutional law. I will read it first and explain.

Judicial power includes the duty of courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part or instrumentality of the government.

Fellow Members of this Commission, this is actually a product of our experience

during martial law. As a matter of fact, it has some antecedents in the past, but the
role of the judiciary during the deposed regime was marred considerably by the
circumstance that in a number of cases against the government, which then had
no legal defense at all, the solicitor general set up the defense of political
questions and got away with it. As a consequence, certain principles concerning
 particularly the writ of habeas corpus, that is, the authority of courts to order the release
of political detainees, and other matters related to the operation and effect of martial
law failed because the government set up the defense of political question. And the
Supreme Court said: "Well, since it is political, we have no authority to pass upon
it." The Committee on the Judiciary feels that this was not a proper solution of
the questions involved. It did not merely request an encroachment upon the
rights of the people, but it, in effect, encouraged further violations thereof during
the martial law regime. x x x

xxx

Briefly stated, courts of justice determine the limits of power of the agencies and
offices of the government as well as those of its officers. In other words, the
judiciary is the final arbiter on the question whether or not a branch of
government or any of its officials has acted without jurisdiction or in excess of
jurisdiction, or so capriciously as to constitute an abuse of discretion amounting
to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power
but a duty to pass judgment on matters of this nature.

This is the background of paragraph 2 of Section 1, which means that the courts
cannot hereafter evade the duty to settle matters of this nature, by claiming that
such matters constitute a political question.35 (Italics in the original; emphasis and
underscoring supplied)

To determine the merits of the issues raised in the instant petitions, this Court must necessarily
turn to the Constitution itself which employs the well-settled principles of constitutional
construction.

First, verba legis, that is, wherever possible, the words used in the Constitution must be given
their ordinary meaning except where technical terms are employed. Thus, in J.M. Tuason &
Co., Inc. v. Land Tenure Administration,36 this Court, speaking through Chief Justice Enrique
Fernando, declared:

We look to the language of the document itself in our search for its meaning. We
do not of course stop there, but that is where we begin. It is to be assumed that
the words in which constitutional provisions are couched express the objective
sought to be attained. They are to be given their ordinary meaning except where
technical terms are employed in which case the significance thus attached to
them prevails. As the Constitution is not primarily a lawyer's document, it being
essential for the rule of law to obtain that it should ever be present in the people's
consciousness, its language as much as possible should be understood in the sense
they have in common use. What it says according to the text of the provision to
be construed compels acceptance and negates the power of the courts to alter it,
based on the postulate that the framers and the people mean what they say. Thus
these are the cases where the need for construction is reduced to a
minimum.37 (Emphasis and underscoring supplied)

Second, where there is ambiguity, ratio legis est anima. The words of the Constitution should
be interpreted in accordance with the intent of its framers. And so did this Court apply this
principle in Civil Liberties Union v. Executive Secretary38 in this wise:

A foolproof yardstick in constitutional construction is the intention underlying the

provision under consideration. Thus, it has been held that the Court in construing a
Constitution should bear in mind the object sought to be accomplished by its adoption,
 and the evils, if any, sought to be prevented or remedied. A doubtful provision will be
examined in the light of the history of the times, and the condition and circumstances
under which the Constitution was framed. The object is to ascertain the reason
which induced the framers of the Constitution to enact the particular provision
and the purpose sought to be accomplished thereby, in order to construe the
whole as to make the words consonant to that reason and calculated to effect
that purpose.39 (Emphasis and underscoring supplied)

As it did in Nitafan v. Commissioner on Internal Revenue40 where, speaking through Madame

Justice Amuerfina A. Melencio-Herrera, it declared:

x x x The ascertainment of that intent is but in keeping with the fundamental

principle of constitutional construction that the intent of the framers of the
organic law and of the people adopting it should be given effect. The primary task
in constitutional construction is to ascertain and thereafter assure the realization of the
purpose of the framers and of the people in the adoption of the Constitution. It may
also be safely assumed that the people in ratifying the Constitution were guided
mainly by the explanation offered by the framers.41 (Emphasis and underscoring
supplied)

Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a whole. Thus,
in Chiongbian v. De Leon,42 this Court, through Chief Justice Manuel Moran declared:

x x x [T]he members of the Constitutional Convention could not have dedicated

a provision of our Constitution merely for the benefit of one person without
considering that it could also affect others. When they adopted subsection 2,
they permitted, if not willed, that said provision should function to the full extent
of its substance and its terms, not by itself alone, but in conjunction with all
other provisions of that great document.43 (Emphasis and underscoring supplied)

Likewise, still in Civil Liberties Union v. Executive Secretary,44 this Court affirmed that:

It is a well-established rule in constitutional construction that no one provision

of the Constitution is to be separated from all the others, to be considered alone,
but that all the provisions bearing upon a particular subject are to be brought
into view and to be so interpreted as to effectuate the great purposes of the
instrument. Sections bearing on a particular subject should be considered and
interpreted together as to effectuate the whole purpose of the Constitution and
one section is not to be allowed to defeat another, if by any reasonable
construction, the two can be made to stand together.

In other words, the court must harmonize them, if practicable, and must lean in favor
of a construction which will render every word operative, rather than one which may
make the words idle and nugatory.45 (Emphasis supplied)

If, however, the plain meaning of the word is not found to be clear, resort to other aids is
available. In still the same case of Civil Liberties Union v. Executive Secretary, this Court
expounded:

While it is permissible in this jurisdiction to consult the debates and proceedings of

the constitutional convention in order to arrive at the reason and purpose of the
resulting Constitution, resort thereto may be had only when other guides fail as
said proceedings are powerless to vary the terms of the Constitution when the
meaning is clear. Debates in the constitutional convention "are of value as showing
 the views of the individual members, and as indicating the reasons for their votes, but
they give us no light as to the views of the large majority who did not talk, much less
of the mass of our fellow citizens whose votes at the polls gave that instrument the
force of fundamental law. We think it safer to construe the constitution from what
appears upon its face." The proper interpretation therefore depends more on
how it was understood by the people adopting it than in the framers's
understanding thereof.46 (Emphasis and underscoring supplied)

It is in the context of the foregoing backdrop of constitutional refinement and jurisprudential

application of the power of judicial review that respondents Speaker De Venecia, et. al. and
intervenor Senator Pimentel raise the novel argument that the Constitution has excluded
impeachment proceedings from the coverage of judicial review.

Briefly stated, it is the position of respondents Speaker De Venecia et. al. that impeachment
is a political action which cannot assume a judicial character. Hence, any question, issue or
incident arising at any stage of the impeachment proceeding is beyond the reach of judicial
review.47

For his part, intervenor Senator Pimentel contends that the Senate's "sole power to
try" impeachment cases48 (1) entirely excludes the application of judicial review over it; and
(2) necessarily includes the Senate's power to determine constitutional questions relative to
impeachment proceedings.49

In furthering their arguments on the proposition that impeachment proceedings are outside
the scope of judicial review, respondents Speaker De Venecia, et. al. and intervenor Senator
Pimentel rely heavily on American authorities, principally the majority opinion in the case
of Nixon v. United States.50 Thus, they contend that the exercise of judicial review over
impeachment proceedings is inappropriate since it runs counter to the framers' decision to
allocate to different fora the powers to try impeachments and to try crimes; it disturbs the
system of checks and balances, under which impeachment is the only legislative check on the
judiciary; and it would create a lack of finality and difficulty in fashioning relief.51 Respondents
likewise point to deliberations on the US Constitution to show the intent to isolate judicial power
of review in cases of impeachment.

Respondents' and intervenors' reliance upon American jurisprudence, the American

Constitution and American authorities cannot be credited to support the proposition that the
Senate's "sole power to try and decide impeachment cases," as provided for under Art. XI,
Sec. 3(6) of the Constitution, is a textually demonstrable constitutional commitment of all
issues pertaining to impeachment to the legislature, to the total exclusion of the power of
judicial review to check and restrain any grave abuse of the impeachment process. Nor can it
reasonably support the interpretation that it necessarily confers upon the Senate the inherently
judicial power to determine constitutional questions incident to impeachment proceedings.

Said American jurisprudence and authorities, much less the American Constitution, are of
dubious application for these are no longer controlling within our jurisdiction and have only
limited persuasive merit insofar as Philippine constitutional law is concerned. As held in the
case of Garcia vs. COMELEC,52 "[i]n resolving constitutional disputes, [this Court] should not
be beguiled by foreign jurisprudence some of which are hardly applicable because they have
been dictated by different constitutional settings and needs."53 Indeed, although the Philippine
Constitution can trace its origins to that of the United States, their paths of development have
long since diverged. In the colorful words of Father Bernas, "[w]e have cut the umbilical cord."

The major difference between the judicial power of the Philippine Supreme Court and that of
the U.S. Supreme Court is that while the power of judicial review is only impliedly granted to
the U.S. Supreme Court and is discretionary in nature, that granted to the Philippine Supreme
Court and lower courts, as expressly provided for in the Constitution, is not just a power but
also a duty, and it was given an expanded definition to include the power to correct any
grave abuse of discretion on the part of any government branch or instrumentality.

There are also glaring distinctions between the U.S. Constitution and the Philippine
Constitution with respect to the power of the House of Representatives over impeachment
proceedings. While the U.S. Constitution bestows sole power of impeachment to the House
of Representatives without limitation,54 our Constitution, though vesting in the House of
Representatives the exclusive power to initiate impeachment cases,55 provides for several
limitations to the exercise of such power as embodied in Section 3(2), (3), (4) and (5), Article
XI thereof. These limitations include the manner of filing, required vote to impeach, and the
one year bar on the impeachment of one and the same official.

Respondents are also of the view that judicial review of impeachments undermines their
finality and may also lead to conflicts between Congress and the judiciary. Thus, they call
upon this Court to exercise judicial statesmanship on the principle that "whenever possible,
the Court should defer to the judgment of the people expressed legislatively, recognizing full
well the perils of judicial willfulness and pride."56

But did not the people also express their will when they instituted the above-mentioned
safeguards in the Constitution? This shows that the Constitution did not intend to leave the
matter of impeachment to the sole discretion of Congress. Instead, it provided for certain well-
defined limits, or in the language of Baker v. Carr,57 "judicially discoverable standards" for
determining the validity of the exercise of such discretion, through the power of judicial review.

The cases of Romulo v. Yniguez58 and Alejandrino v. Quezon,59 cited by respondents in

support of the argument that the impeachment power is beyond the scope of judicial review,
are not in point. These cases concern the denial of petitions for writs of mandamus to compel
the legislature to perform non-ministerial acts, and do not concern the exercise of the power
of judicial review.

There is indeed a plethora of cases in which this Court exercised the power of judicial review
over congressional action. Thus, in Santiago v. Guingona, Jr.,60 this Court ruled that it is well
within the power and jurisdiction of the Court to inquire whether the Senate or its officials
committed a violation of the Constitution or grave abuse of discretion in the exercise of their
functions and prerogatives. In Tanada v. Angara,61 in seeking to nullify an act of the Philippine
Senate on the ground that it contravened the Constitution, it held that the petition raises a
justiciable controversy and that when an action of the legislative branch is seriously alleged to
have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary
to settle the dispute. In Bondoc v. Pineda,62 this Court declared null and void a resolution of
the House of Representatives withdrawing the nomination, and rescinding the election, of a
congressman as a member of the House Electoral Tribunal for being violative of Section 17,
Article VI of the Constitution. In Coseteng v. Mitra,63 it held that the resolution of whether the
House representation in the Commission on Appointments was based on proportional
representation of the political parties as provided in Section 18, Article VI of the Constitution
is subject to judicial review. In Daza v. Singson,64 it held that the act of the House of
Representatives in removing the petitioner from the Commission on Appointments is subject
to judicial review. In Tanada v. Cuenco,65 it held that although under the Constitution, the
legislative power is vested exclusively in Congress, this does not detract from the power of
the courts to pass upon the constitutionality of acts of Congress. In Angara v. Electoral
Commission,66 it ruled that confirmation by the National Assembly of the election of any
member, irrespective of whether his election is contested, is not essential before such
member-elect may discharge the duties and enjoy the privileges of a member of the National
Assembly.

Finally, there exists no constitutional basis for the contention that the exercise of judicial review
over impeachment proceedings would upset the system of checks and balances. Verily, the
Constitution is to be interpreted as a whole and "one section is not to be allowed to defeat
another."67 Both are integral components of the calibrated system of independence and
interdependence that insures that no branch of government act beyond the powers assigned
to it by the Constitution.

Essential Requisites for Judicial Review

As clearly stated in Angara v. Electoral Commission, the courts' power of judicial review, like
almost all powers conferred by the Constitution, is subject to several limitations, namely: (1)
an actual case or controversy calling for the exercise of judicial power; (2) the person
challenging the act must have "standing" to challenge; he must have a personal and
substantial interest in the case such that he has sustained, or will sustain, direct injury as a
result of its enforcement; (3) the question of constitutionality must be raised at the earliest
possible opportunity; and (4) the issue of constitutionality must be the very lis mota of the
case.

x x x Even then, this power of judicial review is limited to actual cases and controversies
to be exercised after full opportunity of argument by the parties, and limited further to
the constitutional question raised or the very lis mota presented. Any attempt at
abstraction could only lead to dialectics and barren legal questions and to sterile
conclusions unrelated to actualities. Narrowed as its function is in this manner, the
judiciary does not pass upon questions of wisdom, justice or expediency of legislation.
More than that, courts accord the presumption of constitutionality to legislative
enactments, not only because the legislature is presumed to abide by the Constitution
but also because the judiciary in the determination of actual cases and controversies
must reflect the wisdom and justice of the people as expressed through their
representatives in the executive and legislative departments of the
government.68 (Italics in the original)

Standing

Locus standi or legal standing or has been defined as a personal and substantial interest in
the case such that the party has sustained or will sustain direct injury as a result of the
governmental act that is being challenged. The gist of the question of standing is whether a
party alleges such personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court depends for
illumination of difficult constitutional questions.69

Intervenor Soriano, in praying for the dismissal of the petitions, contends that petitioners do
not have standing since only the Chief Justice has sustained and will sustain direct personal
injury. Amicus curiae former Justice Minister and Solicitor General Estelito Mendoza similarly
contends.

Upon the other hand, the Solicitor General asserts that petitioners have standing since this
Court had, in the past, accorded standing to taxpayers, voters, concerned citizens, legislators
in cases involving paramount public interest70 and transcendental importance,71 and that
procedural matters are subordinate to the need to determine whether or not the other branches
of the government have kept themselves within the limits of the Constitution and the laws and
that they have not abused the discretion given to them.72 Amicus curiae Dean Raul
Pangalangan of the U.P. College of Law is of the same opinion, citing transcendental
importance and the well-entrenched rule exception that, when the real party in interest is
unable to vindicate his rights by seeking the same remedies, as in the case of the Chief Justice
who, for ethical reasons, cannot himself invoke the jurisdiction of this Court, the courts will
grant petitioners standing.

There is, however, a difference between the rule on real-party-in-interest and the rule on
standing, for the former is a concept of civil procedure73 while the latter has constitutional
underpinnings.74 In view of the arguments set forth regarding standing, it behooves the Court
to reiterate the ruling in Kilosbayan, Inc. v. Morato75 to clarify what is meant by locus standi
and to distinguish it from real party-in-interest.

The difference between the rule on standing and real party in interest has been noted
by authorities thus: "It is important to note . . . that standing because of its constitutional
and public policy underpinnings, is very different from questions relating to whether a
particular plaintiff is the real party in interest or has capacity to sue. Although all three
requirements are directed towards ensuring that only certain parties can maintain an
action, standing restrictions require a partial consideration of the merits, as well as
broader policy concerns relating to the proper role of the judiciary in certain areas.

Standing is a special concern in constitutional law because in some cases suits are
brought not by parties who have been personally injured by the operation of a law or
by official action taken, but by concerned citizens, taxpayers or voters who actually sue
in the public interest. Hence the question in standing is whether such parties have
"alleged such a personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon which the court
so largely depends for illumination of difficult constitutional questions."

xxx

On the other hand, the question as to "real party in interest" is whether he is "the party
who would be benefited or injured by the judgment, or the 'party entitled to the avails
of the suit.'"76 (Citations omitted)

While rights personal to the Chief Justice may have been injured by the alleged
unconstitutional acts of the House of Representatives, none of the petitioners before us
asserts a violation of the personal rights of the Chief Justice. On the contrary, they invariably
invoke the vindication of their own rights – as taxpayers; members of Congress; citizens,
individually or in a class suit; and members of the bar and of the legal profession – which were
supposedly violated by the alleged unconstitutional acts of the House of Representatives.

In a long line of cases, however, concerned citizens, taxpayers and legislators when specific
requirements have been met have been given standing by this Court.

When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute
must be direct and personal. He must be able to show, not only that the law or any government
act is invalid, but also that he sustained or is in imminent danger of sustaining some direct
injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite
way. It must appear that the person complaining has been or is about to be denied some right
or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens
or penalties by reason of the statute or act complained of.77 In fine, when the proceeding
involves the assertion of a public right,78 the mere fact that he is a citizen satisfies the
requirement of personal interest.
In the case of a taxpayer, he is allowed to sue where there is a claim that public funds are
illegally disbursed, or that public money is being deflected to any improper purpose, or that
there is a wastage of public funds through the enforcement of an invalid or unconstitutional
law.79 Before he can invoke the power of judicial review, however, he must specifically prove
that he has sufficient interest in preventing the illegal expenditure of money raised by taxation
and that he would sustain a direct injury as a result of the enforcement of the questioned
statute or contract. It is not sufficient that he has merely a general interest common to all
members of the public.80

At all events, courts are vested with discretion as to whether or not a taxpayer's suit should be
entertained.81 This Court opts to grant standing to most of the petitioners, given their allegation
that any impending transmittal to the Senate of the Articles of Impeachment and the ensuing
trial of the Chief Justice will necessarily involve the expenditure of public funds.

As for a legislator, he is allowed to sue to question the validity of any official action which he
claims infringes his prerogatives as a legislator.82 Indeed, a member of the House of
Representatives has standing to maintain inviolate the prerogatives, powers and privileges
vested by the Constitution in his office.83

While an association has legal personality to represent its members,84 especially when it is
composed of substantial taxpayers and the outcome will affect their vital interests,85 the mere
invocation by the Integrated Bar of the Philippines or any member of the legal profession of
the duty to preserve the rule of law and nothing more, although undoubtedly true, does not
suffice to clothe it with standing. Its interest is too general. It is shared by other groups and the
whole citizenry. However, a reading of the petitions shows that it has advanced constitutional
issues which deserve the attention of this Court in view of their seriousness, novelty and
weight as precedents.86 It, therefore, behooves this Court to relax the rules on standing and
to resolve the issues presented by it.

In the same vein, when dealing with class suits filed in behalf of all citizens, persons
intervening must be sufficiently numerous to fully protect the interests of all concerned87 to
enable the court to deal properly with all interests involved in the suit,88 for a judgment in a
class suit, whether favorable or unfavorable to the class, is, under the res judicata principle,
binding on all members of the class whether or not they were before the court.89 Where it
clearly appears that not all interests can be sufficiently represented as shown by the divergent
issues raised in the numerous petitions before this Court, G.R. No. 160365 as a class suit
ought to fail. Since petitioners additionally allege standing as citizens and taxpayers, however,
their petition will stand.

The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground of transcendental
importance, while Atty. Dioscoro U. Vallejos, in G.R. No. 160397, is mum on his standing.

There being no doctrinal definition of transcendental importance, the following instructive

determinants formulated by former Supreme Court Justice Florentino P. Feliciano are
instructive: (1) the character of the funds or other assets involved in the case; (2) the presence
of a clear case of disregard of a constitutional or statutory prohibition by the public respondent
agency or instrumentality of the government; and (3) the lack of any other party with a more
direct and specific interest in raising the questions being raised.90 Applying these
determinants, this Court is satisfied that the issues raised herein are indeed of transcendental
importance.

In not a few cases, this Court has in fact adopted a liberal attitude on the locus standi of a
petitioner where the petitioner is able to craft an issue of transcendental significance to the
people, as when the issues raised are of paramount importance to the public.91 Such liberality
does not, however, mean that the requirement that a party should have an interest in the
matter is totally eliminated. A party must, at the very least, still plead the existence of such
interest, it not being one of which courts can take judicial notice. In petitioner Vallejos' case,
he failed to allege any interest in the case. He does not thus have standing.

With respect to the motions for intervention, Rule 19, Section 2 of the Rules of Court requires
an intervenor to possess a legal interest in the matter in litigation, or in the success of either
of the parties, or an interest against both, or is so situated as to be adversely affected by a
distribution or other disposition of property in the custody of the court or of an officer thereof.
While intervention is not a matter of right, it may be permitted by the courts when the applicant
shows facts which satisfy the requirements of the law authorizing intervention.92

In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadra's case, they seek to join
petitioners Candelaria, et. al. in G.R. No. 160262. Since, save for one additional issue, they
raise the same issues and the same standing, and no objection on the part of petitioners
Candelaria, et. al. has been interposed, this Court as earlier stated, granted the Motion for
Leave of Court to Intervene and Petition-in-Intervention.

Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et. al. sought
to join petitioner Francisco in G.R. No. 160261. Invoking their right as citizens to intervene,
alleging that "they will suffer if this insidious scheme of the minority members of the House of
Representatives is successful," this Court found the requisites for intervention had been
complied with.

Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262, 160263, 160277,
160292, 160295, and 160310 were of transcendental importance, World War II Veterans
Legionnaires of the Philippines, Inc. filed a "Petition-in-Intervention with Leave to Intervene"
to raise the additional issue of whether or not the second impeachment complaint against the
Chief Justice is valid and based on any of the grounds prescribed by the Constitution.

Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et

al. and World War II Veterans Legionnaires of the Philippines, Inc. possess a legal interest in
the matter in litigation the respective motions to intervene were hereby granted.

Senator Aquilino Pimentel, on the other hand, sought to intervene for the limited purpose of
making of record and arguing a point of view that differs with Senate President Drilon's. He
alleges that submitting to this Court's jurisdiction as the Senate President does will undermine
the independence of the Senate which will sit as an impeachment court once the Articles of
Impeachment are transmitted to it from the House of Representatives. Clearly, Senator
Pimentel possesses a legal interest in the matter in litigation, he being a member of Congress
against which the herein petitions are directed. For this reason, and to fully ventilate all
substantial issues relating to the matter at hand, his Motion to Intervene was granted and he
was, as earlier stated, allowed to argue.

Lastly, as to Jaime N. Soriano's motion to intervene, the same must be denied for, while he
asserts an interest as a taxpayer, he failed to meet the standing requirement for bringing
taxpayer's suits as set forth in Dumlao v. Comelec,93 to wit:

x x x While, concededly, the elections to be held involve the expenditure of public

moneys, nowhere in their Petition do said petitioners allege that their tax money is
"being extracted and spent in violation of specific constitutional protection against
abuses of legislative power," or that there is a misapplication of such funds by
respondent COMELEC, or that public money is being deflected to any improper
 purpose. Neither do petitioners seek to restrain respondent from wasting public funds
through the enforcement of an invalid or unconstitutional law.94 (Citations omitted)

In praying for the dismissal of the petitions, Soriano failed even to allege that the act of
petitioners will result in illegal disbursement of public funds or in public money being deflected
to any improper purpose. Additionally, his mere interest as a member of the Bar does not
suffice to clothe him with standing.

Ripeness and Prematurity

In Tan v. Macapagal,95 this Court, through Chief Justice Fernando, held that for a case to be
considered ripe for adjudication, "it is a prerequisite that something had by then been
accomplished or performed by either branch before a court may come into the picture."96 Only
then may the courts pass on the validity of what was done, if and when the latter is challenged
in an appropriate legal proceeding.

The instant petitions raise in the main the issue of the validity of the filing of the second
impeachment complaint against the Chief Justice in accordance with the House Impeachment
Rules adopted by the 12th Congress, the constitutionality of which is questioned. The
questioned acts having been carried out, i.e., the second impeachment complaint had been
filed with the House of Representatives and the 2001 Rules have already been already
promulgated and enforced, the prerequisite that the alleged unconstitutional act should be
accomplished and performed before suit, as Tan v. Macapagal holds, has been complied with.

Related to the issue of ripeness is the question of whether the instant petitions are
premature. Amicus curiae former Senate President Jovito R. Salonga opines that there may
be no urgent need for this Court to render a decision at this time, it being the final arbiter on
questions of constitutionality anyway. He thus recommends that all remedies in the House and
Senate should first be exhausted.

Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law who suggests to
this Court to take judicial notice of on-going attempts to encourage signatories to the second
impeachment complaint to withdraw their signatures and opines that the House Impeachment
Rules provide for an opportunity for members to raise constitutional questions themselves
when the Articles of Impeachment are presented on a motion to transmit to the same to the
Senate. The dean maintains that even assuming that the Articles are transmitted to the
Senate, the Chief Justice can raise the issue of their constitutional infirmity by way of a motion
to dismiss.

The dean's position does not persuade. First, the withdrawal by the Representatives of their
signatures would not, by itself, cure the House Impeachment Rules of their constitutional
infirmity. Neither would such a withdrawal, by itself, obliterate the questioned second
impeachment complaint since it would only place it under the ambit of Sections 3(2) and (3)
of Article XI of the Constitution97 and, therefore, petitioners would continue to suffer their
injuries.

Second and most importantly, the futility of seeking remedies from either or both Houses of
Congress before coming to this Court is shown by the fact that, as previously discussed,
neither the House of Representatives nor the Senate is clothed with the power to rule with
definitiveness on the issue of constitutionality, whether concerning impeachment proceedings
or otherwise, as said power is exclusively vested in the judiciary by the earlier quoted Section
I, Article VIII of the Constitution. Remedy cannot be sought from a body which is bereft of
power to grant it.
Justiciability

In the leading case of Tanada v. Cuenco,98 Chief Justice Roberto Concepcion defined the
term "political question," viz:

[T]he term "political question" connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy. In other words, in the language of Corpus Juris
Secundum, it refers to "those questions which, under the Constitution, are to
be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or executive branch of
the Government." It is concerned with issues dependent upon the wisdom, not legality,
of a particular measure.99 (Italics in the original)

Prior to the 1973 Constitution, without consistency and seemingly without any rhyme or
reason, this Court vacillated on its stance of taking cognizance of cases which involved
political questions. In some cases, this Court hid behind the cover of the political question
doctrine and refused to exercise its power of judicial review.100 In other cases, however,
despite the seeming political nature of the therein issues involved, this Court assumed
jurisdiction whenever it found constitutionally imposed limits on powers or functions conferred
upon political bodies.101 Even in the landmark 1988 case of Javellana v. Executive
Secretary102 which raised the issue of whether the 1973 Constitution was ratified, hence, in
force, this Court shunted the political question doctrine and took cognizance thereof.
Ratification by the people of a Constitution is a political question, it being a question decided
by the people in their sovereign capacity.

The frequency with which this Court invoked the political question doctrine to refuse to take
jurisdiction over certain cases during the Marcos regime motivated Chief Justice Concepcion,
when he became a Constitutional Commissioner, to clarify this Court's power of judicial review
and its application on issues involving political questions, viz:

MR. CONCEPCION. Thank you, Mr. Presiding Officer.

I will speak on the judiciary. Practically, everybody has made, I suppose, the usual comment
that the judiciary is the weakest among the three major branches of the service. Since the
legislature holds the purse and the executive the sword, the judiciary has nothing with which
to enforce its decisions or commands except the power of reason and appeal to conscience
which, after all, reflects the will of God, and is the most powerful of all other powers without
exception. x x x And so, with the body's indulgence, I will proceed to read the provisions drafted
by the Committee on the Judiciary.

The first section starts with a sentence copied from former Constitutions. It says:

The judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.

I suppose nobody can question it.

The next provision is new in our constitutional law. I will read it first and explain.

Judicial power includes the duty of courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part or instrumentality of the government.
Fellow Members of this Commission, this is actually a product of our experience during
martial law. As a matter of fact, it has some antecedents in the past, but the role of
the judiciary during the deposed regime was marred considerably by the
circumstance that in a number of cases against the government, which then had
no legal defense at all, the solicitor general set up the defense of political
questions and got away with it. As a consequence, certain principles concerning
particularly the writ of habeas corpus, that is, the authority of courts to order the
release of political detainees, and other matters related to the operation and
effect of martial law failed because the government set up the defense of political
question. And the Supreme Court said: "Well, since it is political, we have no authority
to pass upon it." The Committee on the Judiciary feels that this was not a proper
solution of the questions involved. It did not merely request an encroachment
upon the rights of the people, but it, in effect, encouraged further violations
thereof during the martial law regime. I am sure the members of the Bar are familiar
with this situation. But for the benefit of the Members of the Commission who are not
lawyers, allow me to explain. I will start with a decision of the Supreme Court in 1973
on the case of Javellana vs. the Secretary of Justice, if I am not mistaken. Martial law
was announced on September 22, although the proclamation was dated September
21. The obvious reason for the delay in its publication was that the administration had
apprehended and detained prominent newsmen on September 21. So that when
martial law was announced on September 22, the media hardly published anything
about it. In fact, the media could not publish any story not only because our main writers
were already incarcerated, but also because those who succeeded them in their jobs
were under mortal threat of being the object of wrath of the ruling party. The 1971
Constitutional Convention had begun on June 1, 1971 and by September 21 or 22 had
not finished the Constitution; it had barely agreed in the fundamentals of the
Constitution. I forgot to say that upon the proclamation of martial law, some delegates
to that 1971 Constitutional Convention, dozens of them, were picked up. One of them
was our very own colleague, Commissioner Calderon. So, the unfinished draft of the
Constitution was taken over by representatives of Malacañang. In 17 days, they
finished what the delegates to the 1971 Constitutional Convention had been unable to
accomplish for about 14 months. The draft of the 1973 Constitution was presented to
the President around December 1, 1972, whereupon the President issued a decree
calling a plebiscite which suspended the operation of some provisions in the martial
law decree which prohibited discussions, much less public discussions of certain
matters of public concern. The purpose was presumably to allow a free discussion on
the draft of the Constitution on which a plebiscite was to be held sometime in January
1973. If I may use a word famous by our colleague, Commissioner Ople, during the
interregnum, however, the draft of the Constitution was analyzed and criticized with
such a telling effect that Malacañang felt the danger of its approval. So, the President
suspended indefinitely the holding of the plebiscite and announced that he would
consult the people in a referendum to be held from January 10 to January 15. But the
questions to be submitted in the referendum were not announced until the eve of its
scheduled beginning, under the supposed supervision not of the Commission on
Elections, but of what was then designated as "citizens assemblies or barangays."
Thus the barangays came into existence. The questions to be propounded were
released with proposed answers thereto, suggesting that it was unnecessary to hold a
plebiscite because the answers given in the referendum should be regarded as the
votes cast in the plebiscite. Thereupon, a motion was filed with the Supreme Court
praying that the holding of the referendum be suspended. When the motion was being
heard before the Supreme Court, the Minister of Justice delivered to the Court a
proclamation of the President declaring that the new Constitution was already in force
because the overwhelming majority of the votes cast in the referendum favored the
Constitution. Immediately after the departure of the Minister of Justice, I proceeded to
the session room where the case was being heard. I then informed the Court and the
 parties the presidential proclamation declaring that the 1973 Constitution had been
ratified by the people and is now in force.

A number of other cases were filed to declare the presidential proclamation null and
void. The main defense put up by the government was that the issue was a political
question and that the court had no jurisdiction to entertain the case.

xxx

The government said that in a referendum held from January 10 to January 15, the
vast majority ratified the draft of the Constitution. Note that all members of the Supreme
Court were residents of Manila, but none of them had been notified of any referendum
in their respective places of residence, much less did they participate in the alleged
referendum. None of them saw any referendum proceeding.

In the Philippines, even local gossips spread like wild fire. So, a majority of the
members of the Court felt that there had been no referendum.

Second, a referendum cannot substitute for a plebiscite. There is a big difference

between a referendum and a plebiscite. But another group of justices upheld the
defense that the issue was a political question. Whereupon, they dismissed the
case. This is not the only major case in which the plea of "political question"
was set up. There have been a number of other cases in the past.

x x x The defense of the political question was rejected because the issue was
clearly justiciable.

xxx

x x x When your Committee on the Judiciary began to perform its functions, it faced
the following questions: What is judicial power? What is a political question?

The Supreme Court, like all other courts, has one main function: to settle actual
controversies involving conflicts of rights which are demandable and enforceable.
There are rights which are guaranteed by law but cannot be enforced by a judiciary
party. In a decided case, a husband complained that his wife was unwilling to perform
her duties as a wife. The Court said: "We can tell your wife what her duties as such
are and that she is bound to comply with them, but we cannot force her physically to
discharge her main marital duty to her husband. There are some rights guaranteed by
law, but they are so personal that to enforce them by actual compulsion would be highly
derogatory to human dignity."

This is why the first part of the second paragraph of Section I provides that:

Judicial power includes the duty of courts to settle actual controversies involving rights
which are legally demandable or enforceable . . .

The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a
presidential system of government, the Supreme Court has, also another
important function. The powers of government are generally considered divided
into three branches: the Legislative, the Executive and the Judiciary. Each one
is supreme within its own sphere and independent of the others. Because of that
 supremacy power to determine whether a given law is valid or not is vested in
courts of justice.

Briefly stated, courts of justice determine the limits of power of the agencies and
offices of the government as well as those of its officers. In other words, the
judiciary is the final arbiter on the question whether or not a branch of
government or any of its officials has acted without jurisdiction or in excess of
jurisdiction, or so capriciously as to constitute an abuse of discretion amounting
to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power
but a duty to pass judgment on matters of this nature.

This is the background of paragraph 2 of Section 1, which means that the courts
cannot hereafter evade the duty to settle matters of this nature, by claiming that
such matters constitute a political question.

I have made these extended remarks to the end that the Commissioners may have an
initial food for thought on the subject of the judiciary.103 (Italics in the original; emphasis
supplied)

During the deliberations of the Constitutional Commission, Chief Justice Concepcion further
clarified the concept of judicial power, thus:

MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial power
is not vested in the Supreme Court alone but also in other lower courts as may
be created by law.

MR. CONCEPCION. Yes.

MR. NOLLEDO. And so, is this only an example?

MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify
political questions with jurisdictional questions. But there is a difference.

MR. NOLLEDO. Because of the expression "judicial power"?

MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but
where there is a question as to whether the government had authority or had
abused its authority to the extent of lacking jurisdiction or excess of jurisdiction,
that is not a political question. Therefore, the court has the duty to decide.

xxx

FR. BERNAS. Ultimately, therefore, it will always have to be decided by the Supreme
Court according to the new numerical need for votes.

On another point, is it the intention of Section 1 to do away with the political

question doctrine?

MR. CONCEPCION. No.

FR. BERNAS. It is not.

 MR. CONCEPCION. No, because whenever there is an abuse of discretion,
amounting to a lack of jurisdiction. . .

FR. BERNAS. So, I am satisfied with the answer that it is not intended to do away
with the political question doctrine.

MR. CONCEPCION. No, certainly not.

When this provision was originally drafted, it sought to define what is judicial
power. But the Gentleman will notice it says, "judicial power includes" and the
reason being that the definition that we might make may not cover all possible
areas.

FR. BERNAS. So, this is not an attempt to solve the problems arising from the
political question doctrine.

MR. CONCEPCION. It definitely does not eliminate the fact that truly political
questions are beyond the pale of judicial power.104 (Emphasis supplied)

From the foregoing record of the proceedings of the 1986 Constitutional Commission, it is
clear that judicial power is not only a power; it is also a duty, a duty which cannot be abdicated
by the mere specter of this creature called the political question doctrine. Chief Justice
Concepcion hastened to clarify, however, that Section 1, Article VIII was not intended to do
away with "truly political questions." From this clarification it is gathered that there are two
species of political questions: (1) "truly political questions" and (2) those which "are not truly
political questions."

Truly political questions are thus beyond judicial review, the reason for respect of the doctrine
of separation of powers to be maintained. On the other hand, by virtue of Section 1, Article
VIII of the Constitution, courts can review questions which are not truly political in nature.

As pointed out by amicus curiae former dean Pacifico Agabin of the UP College of Law, this
Court has in fact in a number of cases taken jurisdiction over questions which are not truly
political following the effectivity of the present Constitution.

In Marcos v. Manglapus,105 this Court, speaking through Madame Justice Irene Cortes, held:

The present Constitution limits resort to the political question doctrine and broadens
the scope of judicial inquiry into areas which the Court, under previous constitutions,
would have normally left to the political departments to decide.106 x x x

In Bengzon v. Senate Blue Ribbon Committee,107 through Justice Teodoro Padilla, this Court
declared:

The "allocation of constitutional boundaries" is a task that this Court must perform
under the Constitution. Moreover, as held in a recent case, "(t)he political question
doctrine neither interposes an obstacle to judicial determination of the rival
claims. The jurisdiction to delimit constitutional boundaries has been given to
this Court. It cannot abdicate that obligation mandated by the 1987 Constitution,
although said provision by no means does away with the applicability of the
principle in appropriate cases."108 (Emphasis and underscoring supplied)

And in Daza v. Singson,109 speaking through Justice Isagani Cruz, this Court ruled:
 In the case now before us, the jurisdictional objection becomes even less tenable and
decisive. The reason is that, even if we were to assume that the issue presented before
us was political in nature, we would still not be precluded from resolving it under
the expanded jurisdiction conferred upon us that now covers, in proper cases, even
the political question.110 x x x (Emphasis and underscoring supplied.)

Section 1, Article VIII, of the Court does not define what are justiciable political questions and
non-justiciable political questions, however. Identification of these two species of political
questions may be problematic. There has been no clear standard. The American case
of Baker v. Carr111 attempts to provide some:

x x x Prominent on the surface of any case held to involve a political question is found
a textually demonstrable constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable and manageable standards for
resolving it; or the impossibility of deciding without an initial policy determination of a
kind clearly for non-judicial discretion; or the impossibility of a court's undertaking
independent resolution without expressing lack of the respect due coordinate branches
of government; or an unusual need for questioning adherence to a political decision
already made; or the potentiality of embarrassment from multifarious pronouncements
by various departments on one question.112 (Underscoring supplied)

Of these standards, the more reliable have been the first three: (1) a textually demonstrable
constitutional commitment of the issue to a coordinate political department; (2) the lack of
judicially discoverable and manageable standards for resolving it; and (3) the impossibility of
deciding without an initial policy determination of a kind clearly for non-judicial discretion.
These standards are not separate and distinct concepts but are interrelated to each in that the
presence of one strengthens the conclusion that the others are also present.

The problem in applying the foregoing standards is that the American concept of judicial review
is radically different from our current concept, for Section 1, Article VIII of the Constitution
provides our courts with far less discretion in determining whether they should pass upon a
constitutional issue.

In our jurisdiction, the determination of a truly political question from a non-justiciable political
question lies in the answer to the question of whether there are constitutionally imposed limits
on powers or functions conferred upon political bodies. If there are, then our courts are duty-
bound to examine whether the branch or instrumentality of the government properly acted
within such limits. This Court shall thus now apply this standard to the present controversy.

These petitions raise five substantial issues:

I. Whether the offenses alleged in the Second impeachment complaint constitute valid
impeachable offenses under the Constitution.

II. Whether the second impeachment complaint was filed in accordance with Section
3(4), Article XI of the Constitution.

III. Whether the legislative inquiry by the House Committee on Justice into the Judicial
Development Fund is an unconstitutional infringement of the constitutionally mandated
fiscal autonomy of the judiciary.

IV. Whether Sections 15 and 16 of Rule V of the Rules on Impeachment adopted by

the 12th Congress are unconstitutional for violating the provisions of Section 3, Article
XI of the Constitution.
 V. Whether the second impeachment complaint is barred under Section 3(5) of Article
XI of the Constitution.

The first issue goes into the merits of the second impeachment complaint over which
this Court has no jurisdiction. More importantly, any discussion of this issue would
require this Court to make a determination of what constitutes an impeachable offense.
Such a determination is a purely political question which the Constitution has left to the
sound discretion of the legislation. Such an intent is clear from the deliberations of the
Constitutional Commission.113

Although Section 2 of Article XI of the Constitution enumerates six grounds for impeachment,
two of these, namely, other high crimes and betrayal of public trust, elude a precise definition.
In fact, an examination of the records of the 1986 Constitutional Commission shows that the
framers could find no better way to approximate the boundaries of betrayal of public trust and
other high crimes than by alluding to both positive and negative examples of both, without
arriving at their clear cut definition or even a standard therefor.114 Clearly, the issue calls upon
this court to decide a non-justiciable political question which is beyond the scope of its judicial
power under Section 1, Article VIII.

Lis Mota

It is a well-settled maxim of adjudication that an issue assailing the constitutionality of a

governmental act should be avoided whenever possible. Thus, in the case of Sotto v.
Commission on Elections,115 this Court held:

x x x It is a well-established rule that a court should not pass upon a constitutional

question and decide a law to be unconstitutional or invalid, unless such question is
raised by the parties and that when it is raised, if the record also presents some
other ground upon which the court may rest its judgment, that course will be
adopted and the constitutional question will be left for consideration until a case
arises in which a decision upon such question will be unavoidable.116 [Emphasis
and underscoring supplied]

The same principle was applied in Luz Farms v. Secretary of Agrarian Reform,117 where this
Court invalidated Sections 13 and 32 of Republic Act No. 6657 for being confiscatory and
violative of due process, to wit:

It has been established that this Court will assume jurisdiction over a
constitutional question only if it is shown that the essential requisites of a
judicial inquiry into such a question are first satisfied. Thus, there must be an
actual case or controversy involving a conflict of legal rights susceptible of judicial
determination, the constitutional question must have been opportunely raised by the
proper party, and the resolution of the question is unavoidably necessary to the
decision of the case itself.118 [Emphasis supplied]

Succinctly put, courts will not touch the issue of constitutionality unless it is truly unavoidable
and is the very lis mota or crux of the controversy.

As noted earlier, the instant consolidated petitions, while all seeking the invalidity of the second
impeachment complaint, collectively raise several constitutional issues upon which the
outcome of this controversy could possibly be made to rest. In determining whether one, some
or all of the remaining substantial issues should be passed upon, this Court is guided by the
related cannon of adjudication that "the court should not form a rule of constitutional law
broader than is required by the precise facts to which it is applied."119
In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among other reasons,
the second impeachment complaint is invalid since it directly resulted from a
Resolution120 calling for a legislative inquiry into the JDF, which Resolution and legislative
inquiry petitioners claim to likewise be unconstitutional for being: (a) a violation of the rules
and jurisprudence on investigations in aid of legislation; (b) an open breach of the doctrine of
separation of powers; (c) a violation of the constitutionally mandated fiscal autonomy of the
judiciary; and (d) an assault on the independence of the judiciary.121

Without going into the merits of petitioners Alfonso, et. al.'s claims, it is the studied opinion of
this Court that the issue of the constitutionality of the said Resolution and resulting legislative
inquiry is too far removed from the issue of the validity of the second impeachment complaint.
Moreover, the resolution of said issue would, in the Court's opinion, require it to form a rule of
constitutional law touching on the separate and distinct matter of legislative inquiries in
general, which would thus be broader than is required by the facts of these consolidated
cases. This opinion is further strengthened by the fact that said petitioners have raised other
grounds in support of their petition which would not be adversely affected by the Court's ruling.

En passant, this Court notes that a standard for the conduct of legislative inquiries has already
been enunciated by this Court in Bengzon, Jr. v. Senate Blue Ribbon Commttee,122 viz:

The 1987 Constitution expressly recognizes the power of both houses of Congress to
conduct inquiries in aid of legislation. Thus, Section 21, Article VI thereof provides:

The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by such inquiries shall be
respected.

The power of both houses of Congress to conduct inquiries in aid of legislation is not,
therefore absolute or unlimited. Its exercise is circumscribed by the afore-quoted
provision of the Constitution. Thus, as provided therein, the investigation must be "in
aid of legislation in accordance with its duly published rules of procedure" and that "the
rights of persons appearing in or affected by such inquiries shall be respected." It
follows then that the right rights of persons under the Bill of Rights must be respected,
including the right to due process and the right not be compelled to testify against one's
self.123

In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino Quadra, while joining
the original petition of petitioners Candelaria, et. al., introduce the new argument that since
the second impeachment complaint was verified and filed only by Representatives Gilberto
Teodoro, Jr. and Felix William Fuentebella, the same does not fall under the provisions of
Section 3 (4), Article XI of the Constitution which reads:

Section 3(4) In case the verified complaint or resolution of impeachment is filed by at

least one-third of all the Members of the House, the same shall constitute the Articles
of Impeachment, and trial by the Senate shall forthwith proceed.

They assert that while at least 81 members of the House of Representatives signed a
Resolution of Endorsement/Impeachment, the same did not satisfy the requisites for the
application of the afore-mentioned section in that the "verified complaint or resolution of
impeachment" was not filed "by at least one-third of all the Members of the House." With the
exception of Representatives Teodoro and Fuentebella, the signatories to said Resolution are
alleged to have verified the same merely as a "Resolution of Endorsement." Intervenors point
to the "Verification" of the Resolution of Endorsement which states that:
 "We are the proponents/sponsors of the Resolution of Endorsement of the
abovementioned Complaint of Representatives Gilberto Teodoro and Felix William B.
Fuentebella x x x"124

Intervenors Macalintal and Quadra further claim that what the Constitution requires in order
for said second impeachment complaint to automatically become the Articles of Impeachment
and for trial in the Senate to begin "forthwith," is that the verified complaint be "filed," not
merely endorsed, by at least one-third of the Members of the House of Representatives. Not
having complied with this requirement, they concede that the second impeachment complaint
should have been calendared and referred to the House Committee on Justice under Section
3(2), Article XI of the Constitution, viz:

Section 3(2) A verified complaint for impeachment may be filed by any Member of the
House of Representatives or by any citizen upon a resolution of endorsement by any
Member thereof, which shall be included in the Order of Business within ten session
days, and referred to the proper Committee within three session days thereafter. The
Committee, after hearing, and by a majority vote of all its Members, shall submit its
report to the House within sixty session days from such referral, together with the
corresponding resolution. The resolution shall be calendared for consideration by the
House within ten session days from receipt thereof.

Intervenors' foregoing position is echoed by Justice Maambong who opined that for Section 3
(4), Article XI of the Constitution to apply, there should be 76 or more representatives who
signed and verified the second impeachment complaint as complainants, signed and verified
the signatories to a resolution of impeachment. Justice Maambong likewise asserted that the
Resolution of Endorsement/Impeachment signed by at least one-third of the members of the
House of Representatives as endorsers is not the resolution of impeachment contemplated
by the Constitution, such resolution of endorsement being necessary only from at least one
Member whenever a citizen files a verified impeachment complaint.

While the foregoing issue, as argued by intervenors Macalintal and Quadra, does indeed limit
the scope of the constitutional issues to the provisions on impeachment, more compelling
considerations militate against its adoption as the lis mota or crux of the present controversy.
Chief among this is the fact that only Attorneys Macalintal and Quadra, intervenors in G.R.
No. 160262, have raised this issue as a ground for invalidating the second impeachment
complaint. Thus, to adopt this additional ground as the basis for deciding the instant
consolidated petitions would not only render for naught the efforts of the original petitioners in
G.R. No. 160262, but the efforts presented by the other petitioners as well.

Again, the decision to discard the resolution of this issue as unnecessary for the determination
of the instant cases is made easier by the fact that said intervenors Macalintal and Quadra
have joined in the petition of Candelaria, et. al., adopting the latter's arguments and issues as
their own. Consequently, they are not unduly prejudiced by this Court's decision.

In sum, this Court holds that the two remaining issues, inextricably linked as they are,
constitute the very lis mota of the instant controversy: (1) whether Sections 15 and 16 of Rule
V of the House Impeachment Rules adopted by the 12th Congress are unconstitutional for
violating the provisions of Section 3, Article XI of the Constitution; and (2) whether, as a result
thereof, the second impeachment complaint is barred under Section 3(5) of Article XI of the
Constitution.

Judicial Restraint
Senator Pimentel urges this Court to exercise judicial restraint on the ground that the Senate,
sitting as an impeachment court, has the sole power to try and decide all cases of
impeachment. Again, this Court reiterates that the power of judicial review includes the power
of review over justiciable issues in impeachment proceedings.

On the other hand, respondents Speaker De Venecia et. al. argue that "[t]here is a moral
compulsion for the Court to not assume jurisdiction over the impeachment because all the
Members thereof are subject to impeachment."125 But this argument is very much like saying
the Legislature has a moral compulsion not to pass laws with penalty clauses because
Members of the House of Representatives are subject to them.

The exercise of judicial restraint over justiciable issues is not an option before this Court.
Adjudication may not be declined, because this Court is not legally disqualified. Nor can
jurisdiction be renounced as there is no other tribunal to which the controversy may be
referred."126 Otherwise, this Court would be shirking from its duty vested under Art. VIII, Sec.
1(2) of the Constitution. More than being clothed with authority thus, this Court is duty-bound
to take cognizance of the instant petitions.127 In the august words of amicus curiae Father
Bernas, "jurisdiction is not just a power; it is a solemn duty which may not be renounced. To
renounce it, even if it is vexatious, would be a dereliction of duty."

Even in cases where it is an interested party, the Court under our system of government
cannot inhibit itself and must rule upon the challenge because no other office has the authority
to do so.128 On the occasion that this Court had been an interested party to the controversy
before it, it has acted upon the matter "not with officiousness but in the discharge of an
unavoidable duty and, as always, with detachment and fairness."129 After all, "by [his]
appointment to the office, the public has laid on [a member of the judiciary] their confidence
that [he] is mentally and morally fit to pass upon the merits of their varied contentions. For this
reason, they expect [him] to be fearless in [his] pursuit to render justice, to be unafraid to
displease any person, interest or power and to be equipped with a moral fiber strong enough
to resist the temptations lurking in [his] office."130

The duty to exercise the power of adjudication regardless of interest had already been settled
in the case of Abbas v. Senate Electoral Tribunal.131 In that case, the petitioners filed with the
respondent Senate Electoral Tribunal a Motion for Disqualification or Inhibition of the
Senators-Members thereof from the hearing and resolution of SET Case No. 002-87 on the
ground that all of them were interested parties to said case as respondents therein. This would
have reduced the Tribunal's membership to only its three Justices-Members whose
disqualification was not sought, leaving them to decide the matter. This Court held:

Where, as here, a situation is created which precludes the substitution of any Senator
sitting in the Tribunal by any of his other colleagues in the Senate without inviting the
same objections to the substitute's competence, the proposed mass disqualification, if
sanctioned and ordered, would leave the Tribunal no alternative but to abandon a duty
that no other court or body can perform, but which it cannot lawfully discharge if shorn
of the participation of its entire membership of Senators.

To our mind, this is the overriding consideration — that the Tribunal be not prevented
from discharging a duty which it alone has the power to perform, the performance of
which is in the highest public interest as evidenced by its being expressly imposed by
no less than the fundamental law.

It is aptly noted in the first of the questioned Resolutions that the framers of the
Constitution could not have been unaware of the possibility of an election contest that
would involve all Senators—elect, six of whom would inevitably have to sit in judgment
 thereon. Indeed, such possibility might surface again in the wake of the 1992 elections
when once more, but for the last time, all 24 seats in the Senate will be at stake. Yet
the Constitution provides no scheme or mode for settling such unusual situations or
for the substitution of Senators designated to the Tribunal whose disqualification may
be sought. Litigants in such situations must simply place their trust and hopes of
vindication in the fairness and sense of justice of the Members of the Tribunal. Justices
and Senators, singly and collectively.

Let us not be misunderstood as saying that no Senator-Member of the Senate Electoral

Tribunal may inhibit or disqualify himself from sitting in judgment on any case before
said Tribunal. Every Member of the Tribunal may, as his conscience dictates, refrain
from participating in the resolution of a case where he sincerely feels that his personal
interests or biases would stand in the way of an objective and impartial judgment. What
we are merely saying is that in the light of the Constitution, the Senate Electoral
Tribunal cannot legally function as such, absent its entire membership of Senators and
that no amendment of its Rules can confer on the three Justices-Members alone the
power of valid adjudication of a senatorial election contest.

More recently in the case of Estrada v. Desierto,132 it was held that:

Moreover, to disqualify any of the members of the Court, particularly a majority of them,
is nothing short of pro tanto depriving the Court itself of its jurisdiction as established
by the fundamental law. Disqualification of a judge is a deprivation of his judicial power.
And if that judge is the one designated by the Constitution to exercise the jurisdiction
of his court, as is the case with the Justices of this Court, the deprivation of his or their
judicial power is equivalent to the deprivation of the judicial power of the court itself. It
affects the very heart of judicial independence. The proposed mass disqualification, if
sanctioned and ordered, would leave the Court no alternative but to abandon a duty
which it cannot lawfully discharge if shorn of the participation of its entire membership
of Justices.133 (Italics in the original)

Besides, there are specific safeguards already laid down by the Court when it exercises its
power of judicial review.

In Demetria v. Alba,134 this Court, through Justice Marcelo Fernan cited the "seven pillars" of
limitations of the power of judicial review, enunciated by US Supreme Court Justice Brandeis
in Ashwander v. TVA135 as follows:

1. The Court will not pass upon the constitutionality of legislation in a friendly, non-
adversary proceeding, declining because to decide such questions 'is legitimate only
in the last resort, and as a necessity in the determination of real, earnest and vital
controversy between individuals. It never was the thought that, by means of a friendly
suit, a party beaten in the legislature could transfer to the courts an inquiry as to the
constitutionality of the legislative act.'

2. The Court will not 'anticipate a question of constitutional law in advance of the
necessity of deciding it.' . . . 'It is not the habit of the Court to decide questions of a
constitutional nature unless absolutely necessary to a decision of the case.'

3. The Court will not 'formulate a rule of constitutional law broader than is required by
the precise facts to which it is to be applied.'

4. The Court will not pass upon a constitutional question although properly presented
by the record, if there is also present some other ground upon which the case may be
 disposed of. This rule has found most varied application. Thus, if a case can be
decided on either of two grounds, one involving a constitutional question, the other a
question of statutory construction or general law, the Court will decide only the latter.
Appeals from the highest court of a state challenging its decision of a question under
the Federal Constitution are frequently dismissed because the judgment can be
sustained on an independent state ground.

5. The Court will not pass upon the validity of a statute upon complaint of one who fails
to show that he is injured by its operation. Among the many applications of this rule,
none is more striking than the denial of the right of challenge to one who lacks a
personal or property right. Thus, the challenge by a public official interested only in the
performance of his official duty will not be entertained . . . In Fairchild v. Hughes, the
Court affirmed the dismissal of a suit brought by a citizen who sought to have the
Nineteenth Amendment declared unconstitutional. In Massachusetts v. Mellon, the
challenge of the federal Maternity Act was not entertained although made by the
Commonwealth on behalf of all its citizens.

6. The Court will not pass upon the constitutionality of a statute at the instance of one
who has availed himself of its benefits.

7. When the validity of an act of the Congress is drawn in question, and even if a
serious doubt of constitutionality is raised, it is a cardinal principle that this Court will
first ascertain whether a construction of the statute is fairly possible by which the
question may be avoided (citations omitted).

The foregoing "pillars" of limitation of judicial review, summarized in Ashwander v. TVA from
different decisions of the United States Supreme Court, can be encapsulated into the following
categories:

1. that there be absolute necessity of deciding a case

2. that rules of constitutional law shall be formulated only as required by the facts of
the case

3. that judgment may not be sustained on some other ground

4. that there be actual injury sustained by the party by reason of the operation of the
statute

5. that the parties are not in estoppel

6. that the Court upholds the presumption of constitutionality.

As stated previously, parallel guidelines have been adopted by this Court in the exercise of
judicial review:

1. actual case or controversy calling for the exercise of judicial power

2. the person challenging the act must have "standing" to challenge; he must have a
personal and substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement

3. the question of constitutionality must be raised at the earliest possible opportunity

 4. the issue of constitutionality must be the very lis mota of the case.136

Respondents Speaker de Venecia, et. al. raise another argument for judicial restraint the
possibility that "judicial review of impeachments might also lead to embarrassing conflicts
between the Congress and the [J]udiciary." They stress the need to avoid the appearance of
impropriety or conflicts of interest in judicial hearings, and the scenario that it would be
confusing and humiliating and risk serious political instability at home and abroad if the
judiciary countermanded the vote of Congress to remove an impeachable official.137 Intervenor
Soriano echoes this argument by alleging that failure of this Court to enforce its Resolution
against Congress would result in the diminution of its judicial authority and erode public
confidence and faith in the judiciary.

Such an argument, however, is specious, to say the least. As correctly stated by the Solicitor
General, the possibility of the occurrence of a constitutional crisis is not a reason for this Court
to refrain from upholding the Constitution in all impeachment cases. Justices cannot abandon
their constitutional duties just because their action may start, if not precipitate, a crisis.

Justice Feliciano warned against the dangers when this Court refuses to act.

x x x Frequently, the fight over a controversial legislative or executive act is not

regarded as settled until the Supreme Court has passed upon the constitutionality of
the act involved, the judgment has not only juridical effects but also political
consequences. Those political consequences may follow even where the Court fails to
grant the petitioner's prayer to nullify an act for lack of the necessary number of votes.
Frequently, failure to act explicitly, one way or the other, itself constitutes a decision
for the respondent and validation, or at least quasi-validation, follows." 138

Thus, in Javellana v. Executive Secretary139 where this Court was split and "in the end there
were not enough votes either to grant the petitions, or to sustain respondent's claims," 140 the
pre-existing constitutional order was disrupted which paved the way for the establishment of
the martial law regime.

Such an argument by respondents and intervenor also presumes that the coordinate branches
of the government would behave in a lawless manner and not do their duty under the law to
uphold the Constitution and obey the laws of the land. Yet there is no reason to believe that
any of the branches of government will behave in a precipitate manner and risk social
upheaval, violence, chaos and anarchy by encouraging disrespect for the fundamental law of
the land.

Substituting the word public officers for judges, this Court is well guided by the doctrine
in People v. Veneracion, to wit:141

Obedience to the rule of law forms the bedrock of our system of justice. If [public
officers], under the guise of religious or political beliefs were allowed to roam
unrestricted beyond boundaries within which they are required by law to exercise the
duties of their office, then law becomes meaningless. A government of laws, not of
men excludes the exercise of broad discretionary powers by those acting under its
authority. Under this system, [public officers] are guided by the Rule of Law, and ought
"to protect and enforce it without fear or favor," resist encroachments by governments,
political parties, or even the interference of their own personal beliefs.142

Constitutionality of the Rules of Procedure

for Impeachment Proceedings
adopted by the 12th Congress
Respondent House of Representatives, through Speaker De Venecia, argues that Sections
16 and 17 of Rule V of the House Impeachment Rules do not violate Section 3 (5) of Article
XI of our present Constitution, contending that the term "initiate" does not mean "to file;" that
Section 3 (1) is clear in that it is the House of Representatives, as a collective body, which has
the exclusive power to initiate all cases of impeachment; that initiate could not possibly mean
"to file" because filing can, as Section 3 (2), Article XI of the Constitution provides, only be
accomplished in 3 ways, to wit: (1) by a verified complaint for impeachment by any member
of the House of Representatives; or (2) by any citizen upon a resolution of endorsement by
any member; or (3) by at least 1/3 of all the members of the House. Respondent House of
Representatives concludes that the one year bar prohibiting the initiation of impeachment
proceedings against the same officials could not have been violated as the impeachment
complaint against Chief Justice Davide and seven Associate Justices had not been initiated
as the House of Representatives, acting as the collective body, has yet to act on it.

The resolution of this issue thus hinges on the interpretation of the term "initiate." Resort to
statutory construction is, therefore, in order.

That the sponsor of the provision of Section 3(5) of the Constitution, Commissioner Florenz
Regalado, who eventually became an Associate Justice of this Court, agreed on the meaning
of "initiate" as "to file," as proffered and explained by Constitutional Commissioner Maambong
during the Constitutional Commission proceedings, which he (Commissioner Regalado)
as amicus curiae affirmed during the oral arguments on the instant petitions held on November
5, 2003 at which he added that the act of "initiating" included the act of taking initial action on
the complaint, dissipates any doubt that indeed the word "initiate" as it twice appears in Article
XI (3) and (5) of the Constitution means to file the complaint and take initial action on it.

"Initiate" of course is understood by ordinary men to mean, as dictionaries do, to begin, to

commence, or set going. As Webster's Third New International Dictionary of the English
Language concisely puts it, it means "to perform or facilitate the first action," which jibes with
Justice Regalado's position, and that of Father Bernas, who elucidated during the oral
arguments of the instant petitions on November 5, 2003 in this wise:

Briefly then, an impeachment proceeding is not a single act. It is a comlexus of acts

consisting of a beginning, a middle and an end. The end is the transmittal of the articles
of impeachment to the Senate. The middle consists of those deliberative moments
leading to the formulation of the articles of impeachment. The beginning or the initiation
is the filing of the complaint and its referral to the Committee on Justice.

Finally, it should be noted that the House Rule relied upon by Representatives
Cojuangco and Fuentebella says that impeachment is "deemed initiated" when the
Justice Committee votes in favor of impeachment or when the House reverses a
contrary vote of the Committee. Note that the Rule does not say "impeachment
proceedings" are initiated but rather are "deemed initiated." The language is
recognition that initiation happened earlier, but by legal fiction there is an attempt to
postpone it to a time after actual initiation. (Emphasis and underscoring supplied)

As stated earlier, one of the means of interpreting the Constitution is looking into the intent of
the law. Fortunately, the intent of the framers of the 1987 Constitution can be pried from its
records:

MR. MAAMBONG. With reference to Section 3, regarding the procedure and the
substantive provisions on impeachment, I understand there have been many
proposals and, I think, these would need some time for Committee action.
However, I would just like to indicate that I submitted to the Committee a resolution on
impeachment proceedings, copies of which have been furnished the Members of this
body. This is borne out of my experience as a member of the Committee on Justice,
Human Rights and Good Government which took charge of the last impeachment
resolution filed before the First Batasang Pambansa. For the information of the
Committee, the resolution covers several steps in the impeachment
proceedings starting with initiation, action of the Speaker committee action,
calendaring of report, voting on the report, transmittal referral to the Senate, trial
and judgment by the Senate.

xxx

MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration of the
approval of the amendment submitted by Commissioner Regalado, but I will just make
of record my thinking that we do not really initiate the filing of the Articles of
Impeachment on the floor. The procedure, as I have pointed out earlier, was that
the initiation starts with the filing of the complaint. And what is actually done on
the floor is that the committee resolution containing the Articles of Impeachment
is the one approved by the body.

As the phraseology now runs, which may be corrected by the Committee on Style, it
appears that the initiation starts on the floor. If we only have time, I could cite examples
in the case of the impeachment proceedings of President Richard Nixon wherein the
Committee on the Judiciary submitted the recommendation, the resolution, and the
Articles of Impeachment to the body, and it was the body who approved the
resolution. It is not the body which initiates it. It only approves or disapproves
the resolution. So, on that score, probably the Committee on Style could help in
rearranging these words because we have to be very technical about this. I have been
bringing with me The Rules of the House of Representatives of the U.S. Congress.
The Senate Rules are with me. The proceedings on the case of Richard Nixon are with
me. I have submitted my proposal, but the Committee has already decided.
Nevertheless, I just want to indicate this on record.

xxx

MR. MAAMBONG. I would just like to move for a reconsideration of the approval of
Section 3 (3). My reconsideration will not at all affect the substance, but it is only in
keeping with the exact formulation of the Rules of the House of Representatives of the
United States regarding impeachment.

I am proposing, Madam President, without doing damage to any of this provision, that
on page 2, Section 3 (3), from lines 17 to 18, we delete the words which read: "to
initiate impeachment proceedings" and the comma (,) and insert on line 19 after the
word "resolution" the phrase WITH THE ARTICLES, and then capitalize the letter "i" in
"impeachment" and replace the word "by" with OF, so that the whole section will now
read: "A vote of at least one-third of all the Members of the House shall be necessary
either to affirm a resolution WITH THE ARTICLES of Impeachment OF the Committee
or to override its contrary resolution. The vote of each Member shall be recorded."

I already mentioned earlier yesterday that the initiation, as far as the House of
Representatives of the United States is concerned, really starts from the filing of the
verified complaint and every resolution to impeach always carries with it the Articles
of Impeachment. As a matter of fact, the words "Articles of Impeachment" are
mentioned on line 25 in the case of the direct filing of a verified compliant of one-third
 of all the Members of the House. I will mention again, Madam President, that my
amendment will not vary the substance in any way. It is only in keeping with the uniform
procedure of the House of Representatives of the United States Congress. Thank you,
Madam President.143 (Italics in the original; emphasis and udnerscoring supplied)

This amendment proposed by Commissioner Maambong was clarified and accepted by the
Committee on the Accountability of Public Officers.144

It is thus clear that the framers intended "initiation" to start with the filing of the complaint. In
his amicus curiae brief, Commissioner Maambong explained that "the obvious reason in
deleting the phrase "to initiate impeachment proceedings" as contained in the text of the
provision of Section 3 (3) was to settle and make it understood once and for all that the
initiation of impeachment proceedings starts with the filing of the complaint, and the
vote of one-third of the House in a resolution of impeachment does not initiate the
impeachment proceedings which was already initiated by the filing of a verified complaint
under Section 3, paragraph (2), Article XI of the Constitution."145

Amicus curiae Constitutional Commissioner Regalado is of the same view as is Father Bernas,
who was also a member of the 1986 Constitutional Commission, that the word "initiate" as
used in Article XI, Section 3(5) means to file, both adding, however, that the filing must be
accompanied by an action to set the complaint moving.

During the oral arguments before this Court, Father Bernas clarified that the word "initiate,"
appearing in the constitutional provision on impeachment, viz:

Section 3 (1) The House of Representatives shall have the exclusive power to initiate
all cases of impeachment.

xxx

(5) No impeachment proceedings shall be initiated against the same official more than
once within a period of one year, (Emphasis supplied)

refers to two objects, "impeachment case" and "impeachment proceeding."

Father Bernas explains that in these two provisions, the common verb is "to initiate." The
object in the first sentence is "impeachment case." The object in the second sentence is
"impeachment proceeding." Following the principle of reddendo singuala sinuilis, the term
"cases" must be distinguished from the term "proceedings." An impeachment case is the legal
controversy that must be decided by the Senate. Above-quoted first provision provides that
the House, by a vote of one-third of all its members, can bring a case to the Senate. It is in
that sense that the House has "exclusive power" to initiate all cases of impeachment. No other
body can do it. However, before a decision is made to initiate a case in the Senate, a
"proceeding" must be followed to arrive at a conclusion. A proceeding must be "initiated." To
initiate, which comes from the Latin word initium, means to begin. On the other hand,
proceeding is a progressive noun. It has a beginning, a middle, and an end. It takes place not
in the Senate but in the House and consists of several steps: (1) there is the filing of a verified
complaint either by a Member of the House of Representatives or by a private citizen endorsed
by a Member of the House of the Representatives; (2) there is the processing of this complaint
by the proper Committee which may either reject the complaint or uphold it; (3) whether the
resolution of the Committee rejects or upholds the complaint, the resolution must be forwarded
to the House for further processing; and (4) there is the processing of the same complaint by
the House of Representatives which either affirms a favorable resolution of the Committee or
overrides a contrary resolution by a vote of one-third of all the members. If at least one third
of all the Members upholds the complaint, Articles of Impeachment are prepared and
transmitted to the Senate. It is at this point that the House "initiates an impeachment case." It
is at this point that an impeachable public official is successfully impeached. That is, he or she
is successfully charged with an impeachment "case" before the Senate as impeachment court.

Father Bernas further explains: The "impeachment proceeding" is not initiated when the
complaint is transmitted to the Senate for trial because that is the end of the House proceeding
and the beginning of another proceeding, namely the trial. Neither is the "impeachment
proceeding" initiated when the House deliberates on the resolution passed on to it by the
Committee, because something prior to that has already been done. The action of the House
is already a further step in the proceeding, not its initiation or beginning. Rather, the
proceeding is initiated or begins, when a verified complaint is filed and referred to the
Committee on Justice for action. This is the initiating step which triggers the series of steps
that follow.

The framers of the Constitution also understood initiation in its ordinary meaning. Thus when
a proposal reached the floor proposing that "A vote of at least one-third of all the Members of
the House shall be necessary… to initiate impeachment proceedings," this was met by a
proposal to delete the line on the ground that the vote of the House does not initiate
impeachment proceeding but rather the filing of a complaint does.146 Thus the line was deleted
and is not found in the present Constitution.

Father Bernas concludes that when Section 3 (5) says, "No impeachment proceeding shall be
initiated against the same official more than once within a period of one year," it means that
no second verified complaint may be accepted and referred to the Committee on Justice for
action. By his explanation, this interpretation is founded on the common understanding of the
meaning of "to initiate" which means to begin. He reminds that the Constitution is ratified by
the people, both ordinary and sophisticated, as they understand it; and that ordinary people
read ordinary meaning into ordinary words and not abstruse meaning, they ratify words as
they understand it and not as sophisticated lawyers confuse it.

To the argument that only the House of Representatives as a body can initiate impeachment
proceedings because Section 3 (1) says "The House of Representatives shall have the
exclusive power to initiate all cases of impeachment," This is a misreading of said provision
and is contrary to the principle of reddendo singula singulis by equating "impeachment cases"
with "impeachment proceeding."

From the records of the Constitutional Commission, to the amicus curiae briefs of two former
Constitutional Commissioners, it is without a doubt that the term "to initiate" refers to the filing
of the impeachment complaint coupled with Congress' taking initial action of said complaint.

Having concluded that the initiation takes place by the act of filing and referral or endorsement
of the impeachment complaint to the House Committee on Justice or, by the filing by at least
one-third of the members of the House of Representatives with the Secretary General of the
House, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment
complaint has been initiated, another impeachment complaint may not be filed against the
same official within a one year period.

Under Sections 16 and 17 of Rule V of the House Impeachment Rules, impeachment

proceedings are deemed initiated (1) if there is a finding by the House Committee on Justice
that the verified complaint and/or resolution is sufficient in substance, or (2) once the House
itself affirms or overturns the finding of the Committee on Justice that the verified complaint
and/or resolution is not sufficient in substance or (3) by the filing or endorsement before the
Secretary-General of the House of Representatives of a verified complaint or a resolution of
impeachment by at least 1/3 of the members of the House. These rules clearly contravene
Section 3 (5) of Article XI since the rules give the term "initiate" a meaning different meaning
from filing and referral.

In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court could not use
contemporaneous construction as an aid in the interpretation of Sec.3 (5) of Article XI,
citing Vera v. Avelino147 wherein this Court stated that "their personal opinions (referring to
Justices who were delegates to the Constitution Convention) on the matter at issue expressed
during this Court's our deliberations stand on a different footing from the properly recorded
utterances of debates and proceedings." Further citing said case, he states that this Court
likened the former members of the Constitutional Convention to actors who are so absorbed
in their emotional roles that intelligent spectators may know more about the real meaning
because of the latter's balanced perspectives and disinterestedness.148

Justice Gutierrez's statements have no application in the present petitions. There are at
present only two members of this Court who participated in the 1986 Constitutional
Commission – Chief Justice Davide and Justice Adolf Azcuna. Chief Justice Davide has not
taken part in these proceedings for obvious reasons. Moreover, this Court has not simply relied
on the personal opinions now given by members of the Constitutional Commission, but has
examined the records of the deliberations and proceedings thereof.

Respondent House of Representatives counters that under Section 3 (8) of Article XI, it is
clear and unequivocal that it and only it has the power to make and interpret its rules governing
impeachment. Its argument is premised on the assumption that Congress has absolute power
to promulgate its rules. This assumption, however, is misplaced.

Section 3 (8) of Article XI provides that "The Congress shall promulgate its rules on
impeachment to effectively carry out the purpose of this section." Clearly, its power to
promulgate its rules on impeachment is limited by the phrase "to effectively carry out the
purpose of this section." Hence, these rules cannot contravene the very purpose of the
Constitution which said rules were intended to effectively carry out. Moreover, Section 3 of
Article XI clearly provides for other specific limitations on its power to make rules, viz:

Section 3. (1) x x x

(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business within ten session days, and
referred to the proper Committee within three session days thereafter. The Committee,
after hearing, and by a majority vote of all its Members, shall submit its report to the
House within sixty session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration by the House within
ten session days from receipt thereof.

(3) A vote of at least one-third of all the Members of the House shall be necessary to
either affirm a favorable resolution with the Articles of Impeachment of the Committee,
or override its contrary resolution. The vote of each Member shall be recorded.

(4) In case the verified complaint or resolution of impeachment is filed by at least one-
third of all the Members of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.

(5) No impeachment proceedings shall be initiated against the same official more than
once within a period of one year.
It is basic that all rules must not contravene the Constitution which is the fundamental law. If
as alleged Congress had absolute rule making power, then it would by necessary implication
have the power to alter or amend the meaning of the Constitution without need of referendum.

In Osmeña v. Pendatun,149 this Court held that it is within the province of either House of
Congress to interpret its rules and that it was the best judge of what constituted "disorderly
behavior" of its members. However, in Paceta v. Secretary of the Commission on
Appointments,150 Justice (later Chief Justice) Enrique Fernando, speaking for this Court and
quoting Justice Brandeis in United States v. Smith,151 declared that where the construction to
be given to a rule affects persons other than members of the Legislature, the question
becomes judicial in nature. In Arroyo v. De Venecia,152 quoting United States v. Ballin, Joseph
& Co.,153 Justice Vicente Mendoza, speaking for this Court, held that while the Constitution
empowers each house to determine its rules of proceedings, it may not by its rules ignore
constitutional restraints or violate fundamental rights, and further that there should be a
reasonable relation between the mode or method of proceeding established by the rule and
the result which is sought to be attained. It is only within these limitations that all matters of
method are open to the determination of the Legislature. In the same case of Arroyo v. De
Venecia, Justice Reynato S. Puno, in his Concurring and Dissenting Opinion, was even more
emphatic as he stressed that in the Philippine setting there is even more reason for courts to
inquire into the validity of the Rules of Congress, viz:

With due respect, I do not agree that the issues posed by the petitioner are non-
justiciable. Nor do I agree that we will trivialize the principle of separation of
power if we assume jurisdiction over he case at bar. Even in the United States, the
principle of separation of power is no longer an impregnable impediment against the
interposition of judicial power on cases involving breach of rules of procedure by
legislators.

Rightly, the ponencia uses the 1891 case of US v Ballin (144 US 1) as a window to
view the issues before the Court. It is in Ballin where the US Supreme Court first
defined the boundaries of the power of the judiciary to review congressional rules. It
held:

"x x x

"The Constitution, in the same section, provides, that each house may determine the
rules of its proceedings." It appears that in pursuance of this authority the House had,
prior to that day, passed this as one of its rules:

Rule XV

3. On the demand of any member, or at the suggestion of the Speaker, the names of
members sufficient to make a quorum in the hall of the House who do not vote shall
be noted by the clerk and recorded in the journal, and reported to the Speaker with the
names of the members voting, and be counted and announced in determining the
presence of a quorum to do business. (House Journal, 230, Feb. 14, 1890)

The action taken was in direct compliance with this rule. The question, therefore, is
as to the validity of this rule, and not what methods the Speaker may of his own
motion resort to for determining the presence of a quorum, nor what matters the
Speaker or clerk may of their own volition place upon the journal. Neither do the
advantages or disadvantages, the wisdom or folly, of such a rule present any matters
for judicial consideration. With the courts the question is only one of power. The
Constitution empowers each house to determine its rules of proceedings. It may
not by its rules ignore constitutional restraints or violate fundamental rights, and
there should be a reasonable relation between the mode or method of
proceedings established by the rule and the result which is sought to be
attained. But within these limitations all matters of method are open to the
determination of the House, and it is no impeachment of the rule to say that some other
way would be better, more accurate, or even more just. It is no objection to the validity
of a rule that a different one has been prescribed and in force for a length of time. The
power to make rules is not one which once exercised is exhausted. It is a continuous
power, always subject to be exercised by the House, and within the limitations
suggested, absolute and beyond the challenge of any other body or tribunal."

Ballin, clearly confirmed the jurisdiction of courts to pass upon the validity of
congressional rules, i.e, whether they are constitutional. Rule XV was examined
by the Court and it was found to satisfy the test: (1) that it did not ignore any
constitutional restraint; (2) it did not violate any fundamental right; and (3) its method
had a reasonable relationship with the result sought to be attained. By examining Rule
XV, the Court did not allow its jurisdiction to be defeated by the mere invocation of the
principle of separation of powers.154

xxx

In the Philippine setting, there is a more compelling reason for courts to

categorically reject the political question defense when its interposition will
cover up abuse of power. For section 1, Article VIII of our Constitution
was intentionally cobbled to empower courts "x x x to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government." This
power is new and was not granted to our courts in the 1935 and 1972 Constitutions. It
was not also xeroxed from the US Constitution or any foreign state constitution.
The CONCOM granted this enormous power to our courts in view of our
experience under martial law where abusive exercises of state power were
shielded from judicial scrutiny by the misuse of the political question
doctrine. Led by the eminent former Chief Justice Roberto Concepcion, the CONCOM
expanded and sharpened the checking powers of the judiciary vis-à-vis the Executive
and the Legislative departments of government.155

xxx

The Constitution cannot be any clearer. What it granted to this Court is not a mere
power which it can decline to exercise. Precisely to deter this disinclination, the
Constitution imposed it as a duty of this Court to strike down any act of a branch
or instrumentality of government or any of its officials done with grave abuse of
discretion amounting to lack or excess of jurisdiction. Rightly or wrongly, the
Constitution has elongated the checking powers of this Court against the other
branches of government despite their more democratic character, the President and
the legislators being elected by the people.156

xxx

The provision defining judicial power as including the 'duty of the courts of justice. . .
to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government' constitutes the capstone of the efforts of the Constitutional Commission
to upgrade the powers of this court vis-à-vis the other branches of government. This
 provision was dictated by our experience under martial law which taught us that a
stronger and more independent judiciary is needed to abort abuses in government. x
xx

xxx

In sum, I submit that in imposing to this Court the duty to annul acts of government
committed with grave abuse of discretion, the new Constitution transformed this Court
from passivity to activism. This transformation, dictated by our distinct experience as
nation, is not merely evolutionary but revolutionary. Under the 1935 and the 1973
Constitutions, this Court approached constitutional violations by initially determining
what it cannot do; under the 1987 Constitution, there is a shift in stress – this
Court is mandated to approach constitutional violations not by finding out what
it should not do but what it must do. The Court must discharge this solemn duty by
not resuscitating a past that petrifies the present.

I urge my brethren in the Court to give due and serious consideration to this new
constitutional provision as the case at bar once more calls us to define the parameters
of our power to review violations of the rules of the House. We will not be true to our
trust as the last bulwark against government abuses if we refuse to exercise this
new power or if we wield it with timidity. To be sure, it is this exceeding timidity
to unsheathe the judicial sword that has increasingly emboldened other
branches of government to denigrate, if not defy, orders of our
courts. In Tolentino, I endorsed the view of former Senator Salonga that this novel
provision stretching the latitude of judicial power is distinctly Filipino and its
interpretation should not be depreciated by undue reliance on inapplicable foreign
jurisprudence. In resolving the case at bar, the lessons of our own history should
provide us the light and not the experience of foreigners.157 (Italics in the original
emphasis and underscoring supplied)

Thus, the ruling in Osmena v. Pendatun is not applicable to the instant petitions. Here, the
third parties alleging the violation of private rights and the Constitution are involved.

Neither may respondent House of Representatives' rely on Nixon v. US158 as basis for arguing
that this Court may not decide on the constitutionality of Sections 16 and 17 of the House
Impeachment Rules. As already observed, the U.S. Federal Constitution simply provides that
"the House of Representatives shall have the sole power of impeachment." It adds nothing
more. It gives no clue whatsoever as to how this "sole power" is to be exercised. No limitation
whatsoever is given. Thus, the US Supreme Court concluded that there was a textually
demonstrable constitutional commitment of a constitutional power to the House of
Representatives. This reasoning does not hold with regard to impeachment power of the
Philippine House of Representatives since our Constitution, as earlier enumerated, furnishes
several provisions articulating how that "exclusive power" is to be exercised.

The provisions of Sections 16 and 17 of Rule V of the House Impeachment Rules which state
that impeachment proceedings are deemed initiated (1) if there is a finding by the House
Committee on Justice that the verified complaint and/or resolution is sufficient in substance,
or (2) once the House itself affirms or overturns the finding of the Committee on Justice that
the verified complaint and/or resolution is not sufficient in substance or (3) by the filing or
endorsement before the Secretary-General of the House of Representatives of a verified
complaint or a resolution of impeachment by at least 1/3 of the members of the House thus
clearly contravene Section 3 (5) of Article XI as they give the term "initiate" a meaning different
from "filing."
Validity of the Second Impeachment Complaint

Having concluded that the initiation takes place by the act of filing of the impeachment
complaint and referral to the House Committee on Justice, the initial action taken thereon, the
meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has
been initiated in the foregoing manner, another may not be filed against the same official within
a one year period following Article XI, Section 3(5) of the Constitution.

In fine, considering that the first impeachment complaint, was filed by former President Estrada
against Chief Justice Hilario G. Davide, Jr., along with seven associate justices of this Court,
on June 2, 2003 and referred to the House Committee on Justice on August 5, 2003, the
second impeachment complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix
William Fuentebella against the Chief Justice on October 23, 2003 violates the constitutional
prohibition against the initiation of impeachment proceedings against the same impeachable
officer within a one-year period.

Conclusion

If there is anything constant about this country, it is that there is always a phenomenon that
takes the center stage of our individual and collective consciousness as a people with our
characteristic flair for human drama, conflict or tragedy. Of course this is not to demean the
seriousness of the controversy over the Davide impeachment. For many of us, the past two
weeks have proven to be an exasperating, mentally and emotionally exhausting experience.
Both sides have fought bitterly a dialectical struggle to articulate what they respectively believe
to be the correct position or view on the issues involved. Passions had ran high as
demonstrators, whether for or against the impeachment of the Chief Justice, took to the streets
armed with their familiar slogans and chants to air their voice on the matter. Various sectors
of society - from the business, retired military, to the academe and denominations of faith –
offered suggestions for a return to a state of normalcy in the official relations of the
governmental branches affected to obviate any perceived resulting instability upon areas of
national life.

Through all these and as early as the time when the Articles of Impeachment had been
constituted, this Court was specifically asked, told, urged and argued to take no action of any
kind and form with respect to the prosecution by the House of Representatives of the
impeachment complaint against the subject respondent public official. When the present
petitions were knocking so to speak at the doorsteps of this Court, the same clamor for non-
interference was made through what are now the arguments of "lack of jurisdiction," "non-
justiciability," and "judicial self-restraint" aimed at halting the Court from any move that may
have a bearing on the impeachment proceedings.

This Court did not heed the call to adopt a hands-off stance as far as the question of the
constitutionality of initiating the impeachment complaint against Chief Justice Davide is
concerned. To reiterate what has been already explained, the Court found the existence in full
of all the requisite conditions for its exercise of its constitutionally vested power and duty of
judicial review over an issue whose resolution precisely called for the construction or
interpretation of a provision of the fundamental law of the land. What lies in here is an issue
of a genuine constitutional material which only this Court can properly and competently
address and adjudicate in accordance with the clear-cut allocation of powers under our system
of government. Face-to-face thus with a matter or problem that squarely falls under the Court's
jurisdiction, no other course of action can be had but for it to pass upon that problem head on.
The claim, therefore, that this Court by judicially entangling itself with the process of
impeachment has effectively set up a regime of judicial supremacy, is patently without basis
in fact and in law.

This Court in the present petitions subjected to judicial scrutiny and resolved on the merits
only the main issue of whether the impeachment proceedings initiated against the Chief
Justice transgressed the constitutionally imposed one-year time bar rule. Beyond this, it did
not go about assuming jurisdiction where it had none, nor indiscriminately turn justiciable
issues out of decidedly political questions. Because it is not at all the business of this Court to
assert judicial dominance over the other two great branches of the government. Rather, the
raison d'etre of the judiciary is to complement the discharge by the executive and legislative
of their own powers to bring about ultimately the beneficent effects of having founded and
ordered our society upon the rule of law.

It is suggested that by our taking cognizance of the issue of constitutionality of the

impeachment proceedings against the Chief Justice, the members of this Court have actually
closed ranks to protect a brethren. That the members' interests in ruling on said issue is as
much at stake as is that of the Chief Justice. Nothing could be farther from the truth.

The institution that is the Supreme Court together with all other courts has long held and been
entrusted with the judicial power to resolve conflicting legal rights regardless of the
personalities involved in the suits or actions. This Court has dispensed justice over the course
of time, unaffected by whomsoever stood to benefit or suffer therefrom, unfraid by whatever
imputations or speculations could be made to it, so long as it rendered judgment according to
the law and the facts. Why can it not now be trusted to wield judicial power in these petitions
just because it is the highest ranking magistrate who is involved when it is an incontrovertible
fact that the fundamental issue is not him but the validity of a government branch's official act
as tested by the limits set by the Constitution? Of course, there are rules on the inhibition of
any member of the judiciary from taking part in a case in specified instances. But to disqualify
this entire institution now from the suit at bar is to regard the Supreme Court as likely incapable
of impartiality when one of its members is a party to a case, which is simply a non sequitur.

No one is above the law or the Constitution. This is a basic precept in any legal system which
recognizes equality of all men before the law as essential to the law's moral authority and that
of its agents to secure respect for and obedience to its commands. Perhaps, there is no other
government branch or instrumentality that is most zealous in protecting that principle of legal
equality other than the Supreme Court which has discerned its real meaning and ramifications
through its application to numerous cases especially of the high-profile kind in the annals of
jurisprudence. The Chief Justice is not above the law and neither is any other member of this
Court. But just because he is the Chief Justice does not imply that he gets to have less in law
than anybody else. The law is solicitous of every individual's rights irrespective of his station
in life.

The Filipino nation and its democratic institutions have no doubt been put to test once again
by this impeachment case against Chief Justice Hilario Davide. Accordingly, this Court has
resorted to no other than the Constitution in search for a solution to what many feared would
ripen to a crisis in government. But though it is indeed immensely a blessing for this Court to
have found answers in our bedrock of legal principles, it is equally important that it went
through this crucible of a democratic process, if only to discover that it can resolve differences
without the use of force and aggression upon each other.

WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in Impeachment

Proceedings which were approved by the House of Representatives on November 28, 2001
are unconstitutional. Consequently, the second impeachment complaint against Chief Justice
Hilario G. Davide, Jr. which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix
William B. Fuentebella with the Office of the Secretary General of the House of
Representatives on October 23, 2003 is barred under paragraph 5, section 3 of Article XI of
the Constitution.

SO ORDERED.
 • Gonzales v. COMELEC, G.R. No. L-28196, November 9, 1967

G.R. No. L-28196 November 9, 1967

RAMON A. GONZALES, petitioner,

vs.
COMMISSION ON ELECTIONS, DIRECTOR OF PRINTING and AUDITOR
GENERAL, respondents.

G.R. No. L-28224 November 9, 1967

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.

No. 28196:
Ramon A. Gonzales for and in his own behalf as petitioner.
Juan T. David as amicus curiae
Office of the Solicitor General for respondents.

No. 28224:
Salvador Araneta for petitioner.
Office of the Solicitor General for respondent.

CONCEPCION, C.J.:

G. R. No. L-28196 is an original action for prohibition, with preliminary injunction.

Petitioner therein prays for judgment:

1) Restraining: (a) the Commission on Elections from enforcing Republic Act No. 4913, or from
performing any act that will result in the holding of the plebiscite for the ratification of the
constitutional amendments proposed in Joint Resolutions Nos. 1 and 3 of the two Houses of
Congress of the Philippines, approved on March 16, 1967; (b) the Director of Printing from
printing ballots, pursuant to said Act and Resolutions; and (c) the Auditor General from passing
in audit any disbursement from the appropriation of funds made in said Republic Act No. 4913;
and

2) declaring said Act unconstitutional and void.

The main facts are not disputed. On March 16, 1967, the Senate and the House of
Representatives passed the following resolutions:

1. R. B. H. (Resolution of Both Houses) No. 1, proposing that Section 5, Article VI, of the
Constitution of the Philippines, be amended so as to increase the membership of the House
of Representatives from a maximum of 120, as provided in the present Constitution, to a
maximum of 180, to be apportioned among the several provinces as nearly as may be
according to the number of their respective inhabitants, although each province shall have, at
least, one (1) member;

2. R. B. H. No. 2, calling a convention to propose amendments to said Constitution, the

convention to be composed of two (2) elective delegates from each representative district, to
be "elected in the general elections to be held on the second Tuesday of November, 1971;"
and

3. R. B. H. No. 3, proposing that Section 16, Article VI, of the same Constitution, be amended
so as to authorize Senators and members of the House of Representatives to become
delegates to the aforementioned constitutional convention, without forfeiting their respective
seats in Congress.

Subsequently, Congress passed a bill, which, upon approval by the President, on June 17,
1967, became Republic Act No. 4913, providing that the amendments to the Constitution
proposed in the aforementioned Resolutions No. 1 and 3 be submitted, for approval by the
people, at the general elections which shall be held on November 14, 1967.

The petition in L-28196 was filed on October 21, 1967. At the hearing thereof, on October 28,
1967, the Solicitor General appeared on behalf of respondents. Moreover, Atty. Juan T. David
and counsel for the Philippine Constitution Association — hereinafter referred to as the
PHILCONSA — were allowed to argue as amici curiae. Said counsel for the PHILCONSA, Dr.
Salvador Araneta, likewise prayed that the decision in this case be deferred until after a
substantially identical case brought by said organization before the Commission on
Elections,1 which was expected to decide it any time, and whose decision would, in all
probability, be appealed to this Court — had been submitted thereto for final determination,
for a joint decision on the identical issues raised in both cases. In fact, on October 31, 1967,
the PHILCONSA filed with this Court the petition in G. R. No. L-28224, for review
by certiorari of the resolution of the Commission on Elections2 dismissing the petition therein.
The two (2) cases were deemed submitted for decision on November 8, 1967, upon the filing
of the answer of respondent, the memorandum of the petitioner and the reply memorandum
of respondent in 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 unit, for and in behalf of all
citizens, taxpayers, and voters similarly situated. Although respondents and the Solicitor
General have filed an answer denying the truth of this allegation, upon the ground that they
have no knowledge or information to form a belief as to the truth thereof, such denial would
appear to be a perfunctory one. In fact, at the hearing of case L-28196, the Solicitor General
expressed himself in favor of a judicial determination of the merits of the issued raised in said
case.

The PHILCONSA, petitioner in L-28224, is admittedly a corporation duly organized and

existing under the laws of the Philippines, and a civic, non-profit and non-partisan organization
the objective of which is to uphold the rule of law in the Philippines and to defend its
Constitution against erosions or onslaughts from whatever source. Despite his
aforementioned statement in L-28196, in his answer in L-28224 the Solicitor General
maintains that this Court has no jurisdiction over the subject-matter of L-28224, upon the
ground that the same is "merely political" as held in Mabanag vs. Lopez Vito.3 Senator Arturo
M. Tolentino, who appeared before the Commission on Elections and filed an opposition to
the PHILCONSA petition therein, was allowed to appear before this Court and objected to said
petition upon the ground: a) that the Court has no jurisdiction either to grant the relief sought
in the petition, or to pass upon the legality of the composition of the House of Representatives;
b) that the petition, if granted, would, in effect, render in operational the legislative department;
and c) that "the failure of Congress to enact a valid reapportionment law . . . does not have
the legal effect of rendering illegal the House of Representatives elected thereafter, nor of
rendering its acts null and void."

JURISDICTION
As early as Angara vs. Electoral Commission,4 this Court — speaking through one of the
leading members of the Constitutional Convention and a respected professor of Constitutional
Law, Dr. Jose P. Laurel — declared that "the judicial department is the only constitutional
organ which can be called upon to determine the proper allocation of powers between the
several departments and among the integral or constituent units thereof." It is true that
in Mabanag vs. Lopez Vito,5 this Court characterizing the issue submitted thereto as a political
one, declined to pass upon the question whether or not a given number of votes cast in
Congress in favor of a proposed amendment to the Constitution — which was being submitted
to the people for ratification — satisfied the three-fourths vote requirement of the fundamental
law. The force of this precedent has been weakened, however, by Suanes vs. Chief
Accountant of the Senate,6 Avelino vs. Cuenco,7 Tañada vs. Cuenco,8 and Macias vs.
Commission on Elections.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 may be possible according to the
number of inhabitants of each province. Thus we rejected the theory, advanced in these four
(4) cases, that the issues therein raised were political questions the determination of which is
beyond judicial review.

Indeed, the power to amend the Constitution or to propose amendments thereto is not included
in the general grant of legislative powers to Congress.10 It is part of the inherent powers of the
people — as the repository of sovereignty in a republican state, such as ours11 — to make,
and, hence, to amend their own Fundamental Law. Congress may propose amendments to
the Constitution merely because the same explicitly grants such power.12 Hence, when
exercising the same, it is said that Senators and Members of the House of Representatives
act, not as members of Congress, but as component elements of a constituent assembly.
When acting as such, the members of Congress derive their authority from the
Constitution, unlike the people, when performing the same function,13 for their authority
does not emanate from the Constitution — they are the very source of all powers of
government, including the Constitution itself .

Since, when proposing, as a constituent assembly, amendments to the Constitution, the

members of Congress derive their authority from the Fundamental Law, it follows, necessarily,
that they do not have the final say on whether or not their acts are within or beyond
constitutional limits. Otherwise, they could brush aside and set the same at naught, contrary
to the basic tenet that ours is a government of laws, not of men, and to the rigid nature of our
Constitution. Such rigidity is stressed by the fact that, the Constitution expressly confers upon
the Supreme Court,14 the power to declare a treaty unconstitutional,15 despite the eminently
political character of treaty-making power.

In short, the issue whether or not a Resolution of Congress — acting as a constituent assembly
— violates the Constitution essentially justiciable, not political, and, hence, subject to judicial
review, and, to the extent that this view may be inconsistent with the stand taken in Mabanag
vs. Lopez Vito,16 the latter should be deemed modified accordingly. The Members of the Court
are unanimous on this point.

THE MERITS
Section 1 of Article XV of the Constitution, as amended, reads:

The Congress in joint session assembled by a vote of three-fourths of all the Members
of the Senate and of the House of Representatives voting separately, may propose
amendments to this Constitution or call a convention for that purpose. Such
amendments shall be valid as part of this Constitution when approved by a majority of
the votes cast at an election at which the amendments are submitted to the people for
their ratification.

Pursuant to this provision, amendments to the Constitution may be proposed, either by

Congress, or by a convention called by Congress for that purpose. In either case, the vote of
"three-fourths of all the members of the Senate and of the House of Representatives voting
separately" is necessary. And, "such amendments shall be valid as part of" the "Constitution
when approved by a majority of the votes cast at an election at which the amendments are
submitted to the people for their ratification."

In the cases at bar, it is conceded that the R. B. H. Nos. 1 and 3 have been approved by a
vote of three-fourths of all the members of the Senate and of the House of Representatives
voting separately. This, notwithstanding, it is urged that said resolutions are null and void
because:

1. The Members of Congress, which approved the proposed amendments, as well as the
resolution calling a convention to propose amendments, are, at best, de facto Congressmen;

2. Congress may adopt either one of two alternatives propose — amendments or call a
convention therefore but may not avail of both — that is to say, propose amendment and call
a convention — at the same time;

3. The election, in which proposals for amendment to the Constitution shall be submitted for
ratification, must be a special election, not a general election, in which officers of the national
and local governments — such as the elections scheduled to be held on November 14, 1967
— will be chosen; and

4. The spirit of the Constitution demands that the election, in which proposals for amendment
shall be submitted to the people for ratification, must be held under such conditions — which,
allegedly, do not exist — as to give the people a reasonable opportunity to have a fair grasp
of the nature and implications of said amendments.

Legality of Congress and Legal Status of the Congressmen

The first objection is based upon Section 5, Article VI, of the Constitution, which provides:

The House of Representatives shall be composed of not more than one hundred and
twenty Members who shall be apportioned among the several provinces as nearly as
may be according to the number of their respective inhabitants, but each province shall
have at least one Member. The Congress shall by law make an apportionment within
three years after the return of every enumeration, and not otherwise. Until such
apportionment shall have been made, the House of Representatives shall have the
same number of Members as that fixed by law for the National Assembly, who shall
be elected by the qualified electors from the present Assembly districts. Each
representative district shall comprise, as far as practicable, contiguous and compact
territory.
It is urged that the last enumeration or census took place in 1960; that, no apportionment
having been made within three (3) years thereafter, the Congress of the Philippines and/or the
election of its Members became illegal; that Congress and its Members, likewise, became a de
facto Congress and/or de facto congressmen, respectively; and that, consequently, the
disputed Resolutions, proposing amendments to the Constitution, as well as Republic Act No.
4913, are null and void.

It is not true, however, that Congress has not made an apportionment within three years after
the enumeration or census made in 1960. It did actually pass a bill, which became Republic
Act No. 3040,17 purporting to make said apportionment. This Act was, however, declared
unconstitutional, upon the ground that the apportionment therein undertaken had not been
made according to the number of inhabitants of the different provinces of the Philippines.18

Moreover, we are unable to agree with the theory that, in view of the failure of Congress to
make a valid apportionment within the period stated in the Constitution, Congress became an
"unconstitutional Congress" and that, in consequence thereof, the Members of its House of
Representatives are de facto officers. The major premise of this process of reasoning is that
the constitutional provision on "apportionment within three years after the return of every
enumeration, and not otherwise," is mandatory. The fact that Congress is under legal
obligation to make said apportionment does not justify, however, the conclusion that failure to
comply with such obligation rendered Congress illegal or unconstitutional, or that its Members
have become de facto officers.

It is conceded that, since the adoption of the Constitution in 1935, Congress has not made a
valid apportionment as required in said fundamental law. The effect of this omission has been
envisioned in the Constitution, pursuant to which:

. . . Until such apportionment shall have been made, the House of Representatives
shall have the same number of Members as that fixed by law for the National
Assembly, who shall be elected by the qualified electors from the present Assembly
districts. . . . .

The provision does not support the view that, upon the expiration of the period to make the
apportionment, a Congress which fails to make it is dissolved or becomes illegal. On the
contrary, it implies necessarily that Congress shall continue to function with the representative
districts existing at the time of the expiration of said period.

It is argued that the above-quoted provision refers only to the elections held in 1935. This
theory assumes that an apportionment had to be made necessarily before the first elections
to be held after the inauguration of the Commonwealth of the Philippines, or in 1938. 19 The
assumption, is, however, unwarranted, for there had been no enumeration in 1935, and
nobody could foretell when it would be made. Those who drafted and adopted the Constitution
in 1935 could be certain, therefore, that the three-year period, after the earliest possible
enumeration, would expire after the elections in 1938.

What is more, considering that several provisions of the Constitution, particularly those on the
legislative department, were amended in 1940, by establishing a bicameral Congress, those
who drafted and adopted said amendment, incorporating therein the provision of the original
Constitution regarding the apportionment of the districts for representatives, must have known
that the three-year period therefor would expire after the elections scheduled to be held and
actually held in 1941.

Thus, the events contemporaneous with the framing and ratification of the original Constitution
in 1935 and of the amendment thereof in 1940 strongly indicate that the provision concerning
said apportionment and the effect of the failure to make it were expected to be applied to
conditions obtaining after the elections in 1935 and 1938, and even
after subsequent elections.

Then again, since the report of the Director of the Census on the last enumeration was
submitted to the President on November 30, 1960, it follows that the three-year period to make
the apportionment did not expire until 1963, or after the Presidential elections in 1961. There
can be no question, therefore, that the Senate and the House of Representatives organized
or constituted on December 30, 1961, were de jure bodies, and that the Members thereof
were de jure officers. Pursuant to the theory of petitioners herein, upon expiration of said
period of three years, or late in 1963, Congress became illegal and its Members, or at least,
those of the House of Representatives, became illegal holder of their respective offices, and
were de facto officers.

Petitioners do not allege that the expiration of said three-year period without a
reapportionment, had the effect of abrogating or repealing the legal provision creating
Congress, or, at least, the House of Representatives, and are not aware of any rule or principle
of law that would warrant such conclusion. Neither do they allege that the term of office of the
members of said House automatically expired or that they ipso facto forfeited their seats in
Congress, upon the lapse of said period for reapportionment. In fact, neither our political law,
nor our law on public officers, in particular, supports the view that failure to discharge a
mandatory duty, whatever it may be, would automatically result in the forfeiture of an office, in
the absence of a statute to this effect.

Similarly, it would seem obvious that the provision of our Election Law relative to the election
of Members of Congress in 1965 were not repealed in consequence of the failure of said body
to make an apportionment within three (3) years after the census of 1960. Inasmuch as the
general elections in 1965 were presumably held in conformity with said Election Law, and the
legal provisions creating Congress — with a House of Representatives composed of members
elected by qualified voters of representative districts as they existed at the time of said
elections — remained in force, we can not see how said Members of the House of
Representatives can be regarded as de facto officers owing to the failure of their predecessors
in office to make a reapportionment within the period aforementioned.

Upon the other hand, the Constitution authorizes the impeachment of the President, the 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 offices remains unimpaired, until dismissal or ouster pursuant
to a judgment of conviction rendered in accordance with Article IX of the Constitution. In short,
the loss of office or the extinction of title thereto is not automatic.

Even if we assumed, however, that the present Members of Congress are merely de
facto officers, it would not follow that the contested resolutions and Republic Act No. 4913 are
null and void. In fact, the main reasons for the existence of the de facto doctrine is that public
interest demands that acts of persons holding, under color of title, an office created by a valid
statute be, likewise, deemed valid insofar as the public — as distinguished from the officer in
question — is concerned.21 Indeed, otherwise, those dealing with officers and employees of
the Government would be entitled to demand from them satisfactory proof of their title to the
positions they hold, before dealing with them, or before recognizing their authority or obeying
their commands, even if they should act within the limits of the authority vested in their
respective offices, positions or employments.22 One can imagine this great inconvenience,
hardships and evils that would result in the absence of the de facto doctrine.
As a consequence, the title of a de facto officer cannot be assailed collaterally.23 It may not be
contested except directly, by quo warranto proceedings. Neither may the validity of his acts
be questioned upon the ground that he is merely a de facto officer.24 And the reasons are
obvious: (1) it would be an indirect inquiry into the title to the office; and (2) the acts of a de
facto officer, if within the competence of his office, are valid, insofar as the public is concerned.

It is argued that the foregoing rules do not apply to the cases at bar because the acts therein
involved have not been completed and petitioners herein are not third parties. This pretense
is untenable. It is inconsistent with Tayko vs. Capistrano.25 In that case, one of the parties to
a suit being heard before Judge Capistrano objected to his continuing to hear the case, for the
reason that, meanwhile, he had reached the age of retirement. This Court held that the
objection could not be entertained, because the Judge was at least, a de facto Judge, whose
title can not be assailed collaterally. It should be noted that Tayko was not a third party insofar
as the Judge was concerned. Tayko was one of the parties in the aforementioned suit.
Moreover, Judge Capistrano had not, as yet, finished hearing the case, much less rendered
decision therein. No rights had vested in favor of the parties, in consequence of the acts of
said Judge. Yet, Tayko's objection was overruled. Needless to say, insofar as Congress is
concerned, its acts, as regards the Resolutions herein contested and Republic Act No. 4913,
are complete. Congress has nothing else to do in connection therewith.

The Court is, also, unanimous in holding that the objection under consideration is untenable.

Available Alternatives to Congress

Atty. Juan T. David, as amicus curiae, maintains that Congress may either propose
amendments to the Constitution or call a convention for that purpose, but it can not do both,
at the same time. This theory is based upon the fact that the two (2) alternatives are connected
in the Constitution by the disjunctive "or." Such basis is, however, a weak one, in the absence
of other circumstances — and none has brought to our attention — supporting the conclusion
drawn by the amicus curiae. In fact, the term "or" has, oftentimes, been held to mean "and,"
or vice-versa, when the spirit or context of the law warrants it.26

It is, also, noteworthy that R. B. H. Nos. 1 and 3 propose amendments to the constitutional
provision on Congress, to be submitted to the people for ratification on November 14, 1967,
whereas R. B. H. No. 2 calls for a convention in 1971, to consider proposals for amendment
to the Constitution, in general. In other words, the subject-matter of R. B. H. No. 2 is different
from that of R B. H. Nos. 1 and 3. Moreover, the amendments proposed under R. B. H. Nos.
1 and 3, will be submitted for ratification several years before those that may be proposed by
the constitutional convention called in R. B. H. No. 2. Again, although the three (3) resolutions
were passed on the same date, they were taken up and put to a vote separately, or
one after the other. In other words, they were not passed at the same time.

In any event, we do not find, either in the Constitution, or in the history thereof anything that
would negate the authority of different Congresses to approve the contested Resolutions, or
of the same Congress to pass the same in, different sessions or different days of the same
congressional session. And, neither has any plausible reason been advanced to justify the
denial of authority to adopt said resolutions on the same day.

Counsel ask: Since Congress has decided to call a constitutional convention to propose
amendments, why not let the whole thing be submitted to said convention, instead of, likewise,
proposing some specific amendments, to be submitted for ratification before said convention
is held? The force of this argument must be conceded. but the same impugns the wisdom of
the action taken by Congress, not its authority to take it. One seeming purpose thereof to
permit Members of Congress to run for election as delegates to the constitutional convention
and participate in the proceedings therein, without forfeiting their seats in Congress. Whether
or not this should be done is a political question, not subject to review by the courts of justice.

On this question there is no disagreement among the members of the Court.

May Constitutional Amendments Be Submitted for Ratification in a General Election?

Article XV of the Constitution provides:

. . . The Congress in joint session assembled, by a vote of three-fourths of all the

Members of the Senate and of the House of Representatives voting separately, may
propose amendments to this Constitution or call a contention for that purpose. Such
amendments shall be valid as part of this Constitution when approved by a majority of
the votes cast at an election at which the amendments are submitted to the people for
their ratification.

There is in this provision nothing to indicate that the "election" therein referred to is a "special,"
not a general, election. The circumstance that three previous amendments to the Constitution
had been submitted to the people for ratification in special elections merely shows that
Congress deemed it best to do so under the circumstances then obtaining. It does not negate
its authority to submit proposed amendments for ratification in general elections.

It would be better, from the viewpoint of a thorough discussion of the proposed amendments,
that the same be submitted to the people's approval independently of the election of public
officials. And there is no denying the fact that an adequate appraisal of the merits and demerits
proposed amendments is likely to be overshadowed by the great attention usually
commanded by the choice of personalities involved in general elections, particularly when
provincial and municipal officials are to be chosen. But, then, these considerations are
addressed to the wisdom of holding a plebiscite simultaneously with the election of public
officer. They do not deny the authority of Congress to choose either alternative, as implied in
the term "election" used, without qualification, in the 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;"

(4) that "when practicable, copies in the principal native languages, as may be determined by
the Commission on Elections, shall be kept in each polling place;"

(5) that "the Commission on Elections shall make available copies of said amendments in
English, Spanish and, whenever practicable, in the principal native languages, for free
distributing:" and

(6) that the contested Resolutions "shall be printed in full" on the back of the ballots which
shall be used on November 14, 1967.

We are not prepared to say that the foregoing measures are palpably inadequate to comply
with the constitutional requirement that proposals for amendment be "submitted to the people
for their ratification," and that said measures are manifestly insufficient, from a constitutional
viewpoint, to inform the people of the amendment sought to be made.

These were substantially the same means availed of to inform the people of the subject
submitted to them for ratification, from the original Constitution down to the Parity Amendment.
Thus, referring to the original Constitution, Section 1 of Act No. 4200, provides:

Said Constitution, with the Ordinance appended thereto, shall be published in the
Official Gazette, in English and in Spanish, for three consecutive issues at least fifteen
days prior to said election, and a printed copy of said Constitution, with the Ordinance
appended thereto, shall be posted in a conspicuous place in each municipal and
provincial government office building and in each polling place not later than the
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 is Section 1 of Commonwealth Act No. 34,
reading:

Said Article V of the Constitution shall be published in the Official Gazette, in English
and in Spanish, for three consecutive issues at least fifteen days prior to said election,
and the said Article V shall be posted in a conspicuous place in each municipal and
provincial office building and in each polling place not later than the twenty-second day
of April, nineteen and thirty-seven, and shall remain posted therein continually until
after the termination of the plebiscite. At least ten copies of said Article V of the
Constitution, in English and in Spanish, shall be kept at each polling place available
for examination by the qualified electors during the plebiscite. Whenever practicable,
copies in the principal native languages, as may be determined by the Secretary of the
Interior, shall also be kept in each polling place.

Similarly, Section 2, Commonwealth Act No. 517, referring to the 1940 amendments, is of the
following tenor:

The said amendments shall be published in English and Spanish in three consecutive
issues of the Official Gazette at least twenty days prior to the election. A printed copy
thereof shall be posted in a conspicuous place in every municipal, city, and provincial
government office building and in every polling place not later than May eighteen,
nineteen hundred and forty, and shall remain posted therein until after the election. At
least ten copies of said amendments shall be kept in each polling place to be made
available for examination by the qualified electors during election day. When
practicable, copies in the principal native languages, as may be determined by the
Secretary of the Interior, shall also be kept therein.

As regards the Parity Amendment, Section 2 of Republic Act No. 73 is to the effect that:

The said amendment shall be published in English and Spanish in three consecutive
issues of the Official Gazette at least twenty days prior to the election. A printed copy
thereof shall be posted in a conspicuous place in every municipal, city, and provincial
government office building and in every polling place not later than February eleven,
nineteen hundred and forty-seven, and shall remain posted therein until after the
election. At least, ten copies of the said amendment shall be kept in each polling place
to be made available for examination by the qualified electors during election day.
When practicable, copies in the principal native languages, as may be determined by
the Commission on Elections, shall also be kept in each polling place.

The main difference between the present situation and that obtaining in connection with the
former proposals does not arise from the law enacted therefor. The difference springs from
the circumstance that the major political parties had taken sides on previous amendments to
the Constitution — except, perhaps, the woman's suffrage — and, consequently, debated
thereon at some length before the plebiscite took place. Upon the other hand, said political
parties have not seemingly made an issue on the amendments now being contested and have,
accordingly, refrained from discussing the same in the current political campaign. Such
debates or polemics as may have taken place — on a rather limited scale — on the latest
proposals for amendment, have been due principally to the initiative of a few civic
organizations and some militant members of our citizenry who have voiced their opinion
thereon. A legislation cannot, however, be nullified by reason of the failure of certain sectors
of the community to discuss it sufficiently. Its constitutionality or unconstitutionality depends
upon no other factors than those existing at the time of the enactment thereof, unaffected by
the acts or omissions of law enforcing agencies, particularly those that take place
subsequently to the passage or approval of the law.

Referring particularly to the contested proposals for amendment, the sufficiency or

insufficiency, from a constitutional angle, of the submission thereof for ratification to the people
on November 14, 1967, depends — in the view of those who concur in this opinion, and who,
insofar as this phase of the case, constitute the minority — upon whether the provisions of
Republic Act No. 4913 are such as to fairly apprise the people of the gist, the main idea or the
substance of said proposals, which is — under R. B. H. No. 1 — the increase of the maximum
number of seats in the House of Representatives, from 120 to 180, and — under R. B. H. No.
3 — the authority given to the members of Congress to run for delegates to the Constitutional
Convention and, if elected thereto, to discharge the duties of such delegates, without forfeiting
their seats in Congress. We — who constitute the minority — believe that Republic Act No.
4913 satisfies such requirement and that said Act is, accordingly, constitutional.

A considerable portion of the people may not know how over 160 of the proposed maximum
of representative districts are actually apportioned by R. B. H. No. 1 among the provinces in
the Philippines. It is not improbable, however, that they are not interested in the details of the
apportionment, or that a careful reading thereof may tend in their simple minds, to impair a
clear vision thereof. Upon the other hand, those who are more sophisticated, may enlighten
themselves sufficiently by reading the copies of the proposed amendments posted in public
places, the copies kept in the polling places and the text of contested resolutions, as printed
in full on the back of the ballots they will use.

It is, likewise, conceivable that as many people, if not more, may fail to realize or envisage the
effect of R. B. H. No. 3 upon the work of the Constitutional Convention or upon the future of
our Republic. But, then, nobody can foretell such effect with certainty. From our viewpoint, the
provisions of Article XV of the Constitution are satisfied so long as the electorate knows that
R. B. H. No. 3 permits Congressmen to retain their seats as legislators, even if they should
run for and assume the functions of delegates to the Convention.

We are impressed by the factors considered by our distinguished and esteemed brethren, who
opine otherwise, but, we feel that such factors affect the wisdom of Republic Act No. 4913 and
that of R. B. H. Nos. 1 and 3, not the authority of Congress to approve the same.

The system of checks and balances underlying the judicial power to strike down acts of the
Executive or of Congress transcending the confines set forth in the fundamental laws is not in
derogation of the principle of separation of powers, pursuant to which each department is
supreme within its own sphere. The determination of the conditions under which the proposed
amendments shall be submitted to the people is concededly a matter which falls within the
legislative sphere. We do not believe it has been satisfactorily shown that Congress has
exceeded the limits thereof in enacting Republic Act No. 4913. Presumably, it could have done
something better to enlighten the people on the subject-matter thereof. But, then, no law is
perfect. No product of human endeavor is beyond improvement. Otherwise, no legislation
would be constitutional and valid. Six (6) Members of this Court believe, however, said Act
and R. B. H. Nos. 1 and 3 violate the spirit of the Constitution.

Inasmuch as there are less than eight (8) votes in favor of declaring Republic Act 4913 and
R. B. H. Nos. 1 and 3 unconstitutional and invalid, the petitions in these two (2) cases must
be, as they are hereby, dismiss and the writs therein prayed for denied, without special
pronouncement as to costs. It is so ordered.
Makalintal and Bengzon, J.P., JJ., concur.
Fernando, J., concurs fully with the above opinion, adding a few words on the question of
jurisdiction.
 • Imbong v. COMELEC, G.R. No. L-32432, September 11, 1970

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

MANUEL B. IMBONG, petitioner,

vs.
JAIME FERRER, as Chairman of the Comelec, LINO M. PATAJO and CESAR MILAFLOR,
as members thereof, respondents.

G.R. No. L-32443 September 11, 1970

IN THE MATTER OF A PETITION FOR DECLARATORY JUDGMENT REGARDING THE

VALIDITY OF R.A. No. 6132, OTHERWISE KNOWN AS THE CONSTITUTIONAL
CONVENTION ACT OF 1970. RAUL M. GONZALES, petitioner,
vs.
COMELEC, respondent.

Manuel B. Imbong in his own behalf.

Raul M. Gonzales in his own behalf.

Office of the Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General Ricardo L.
Pronove, Jr., and Solicitors Raul I. Goco, Bernardo P. Pardo, Rosalio A. de Leon, Vicente A.
Torres and Guillermo C. Nakar for respondents.

Lorenzo Tañada, Arturo Tolentino, Jovito Salonga and Emmanuel Pelaez as amici curiae.

MAKASIAR, J.:

These two separate but related petitions for declaratory relief were filed pursuant to Sec. 19
of R.A. No. 6132 by petitioners Manuel B. Imbong and Raul M. Gonzales, both members of
the Bar, taxpayers and interested in running as candidates for delegates to the Constitutional
Convention. Both impugn the constitutionality of R.A. No. 6132, claiming during the oral
argument that it prejudices their rights as such candidates. After the Solicitor General had filed
answers in behalf the respondents, hearings were held at which the petitioners and the amici
curiae, namely Senator Lorenzo Tañada, Senator Arturo Tolentino, Senator Jovito Salonga,
and Senator Emmanuel Pelaez argued orally.

It will be recalled that on March 16, 1967, Congress, acting as a Constituent Assembly
pursuant to Art. XV of the Constitution, passed Resolution No. 2 which among others called
for a Constitutional Convention to propose constitutional amendments to be composed of two
delegates from each representative district who shall have the same qualifications as those of
Congressmen, to be elected on the second Tuesday of November, 1970 in accordance with
the Revised Election Code.

After the adoption of said Res. No. 2 in 1967 but before the November elections of that year,
Congress, acting as a legislative body, enacted Republic Act No. 4914 implementing the
aforesaid Resolution No. 2 and practically restating in toto the provisions of said Resolution
No. 2.

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

On August 24, 1970, Congress, acting as a legislative body, enacted Republic Act No. 6132,
implementing Resolutions Nos. 2 and 4, and expressly repealing R.A. No.
4914.3

Petitioner Raul M. Gonzales assails the validity of the entire law as well as the particular
provisions embodied in Sections 2, 4, 5, and par. 1 of 8(a). Petitioner Manuel B. Imbong
impugns the constitutionality of only par. I of Sec. 8(a) of said R.A. No. 6132 practically on the
same grounds advanced by petitioner Gonzales.

The validity of Sec. 4 of R.A. No. 6132, which considers, all public officers and employees,
whether elective or appointive, including members of the Armed Forces of the Philippines, as
well as officers and employees of corporations or enterprises of the government, as resigned
from the date of the filing of their certificates of candidacy, was recently sustained by this
Court, on the grounds, inter alia, that the same is merely an application of and in consonance
with the prohibition in Sec. 2 of Art. XII of the Constitution and that it does not constitute a
denial of due process or of the equal protection of the law. Likewise, the constitutionality of
paragraph 2 of Sec. 8(a) of R.A. No. 6132 was upheld.4

II

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

1. Congress, when acting as a Constituent Assembly pursuant to Art. XV of the

Constitution, has full and plenary authority to propose Constitutional
amendments or to call a convention for the purpose, by a three-fourths vote of
each House in joint session assembled but voting separately. Resolutions Nos.
2 and 4 calling for a constitutional convention were passed by the required
three-fourths vote.

2. The grant to Congress as a Constituent Assembly of such plenary authority

to call a constitutional convention includes, by virtue of the doctrine of
necessary implication, all other powers essential to the effective exercise of the
principal power granted, such as the power to fix the qualifications, number,
apportionment, and compensation of the delegates as well as appropriation of
funds to meet the expenses for the election of delegates and for the operation
of the Constitutional Convention itself, as well as all other implementing details
 indispensable to a fruitful convention. Resolutions Nos. 2 and 4 already
embody the above-mentioned details, except the appropriation of funds.

3. While the authority to call a constitutional convention is vested by the present

Constitution solely and exclusively in Congress acting as a Constituent
Assembly, the power to enact the implementing details, which are now
contained in Resolutions Nos. 2 and 4 as well as in R.A. No. 6132, does not
exclusively pertain to Congress acting as a Constituent Assembly. Such
implementing details are matters within the competence of Congress in the
exercise of its comprehensive legislative power, which power encompasses all
matters not expressly or by necessary implication withdrawn or removed by the
Constitution from the ambit of legislative action. And as lone as such statutory
details do not clash with any specific provision of the constitution, they are valid.

4. Consequently, when Congress, acting as a Constituent Assembly, omits to

provide for such implementing details after calling a constitutional convention,
Congress, acting as a legislative body, can enact the necessary implementing
legislation to fill in the gaps, which authority is expressly recognized in Sec. 8
of Res No. 2 as amended by Res. No. 4.

5. The fact that a bill providing for such implementing details may be vetoed by
the President is no argument against conceding such power in Congress as a
legislative body nor present any difficulty; for it is not irremediable as Congress
can override the Presidential veto or Congress can reconvene as a Constituent
Assembly and adopt a resolution prescribing the required implementing details.

III

Petitioner Raul M. Gonzales asserts that Sec. 2 on the apportionment of delegates is not in
accordance with proportional representation and therefore violates the Constitution and the
intent of the law itself, without pinpointing any specific provision of the Constitution with which
it collides.

Unlike in the apportionment of representative districts, the Constitution does not expressly or
impliedly require such apportionment of delegates to the convention on the basis of population
in each congressional district. Congress, sitting as a Constituent Assembly, may
constitutionally allocate one delegate for, each congressional district or for each province, for
reasons of economy and to avoid having an unwieldy convention. If the framers of the present
Constitution wanted the apportionment of delegates to the convention to be based on the
number of inhabitants in each representative district, they would have done so in so many
words as they did in relation to the apportionment of the representative districts.5

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

The records of the proceedings on Senate Bill No. 77 sponsored by Senator Pelaez which is
now R.A. No. 6132, submitted to this Tribunal by the amici curiae, show that it based its
apportionment of the delegates on the 1970 official preliminary population census taken by
the Bureau of Census and Statistics from May 6 to June 30, 1976; and that Congress adopted
the formula to effect a reasonable apportionment of delegates. The Director of the Bureau of
Census and Statistics himself, in a letter to Senator Pelaez dated July 30, 1970, stated that
"on the basis of the preliminary count of the population, we have computed the distribution of
delegates to the Constitutional Convention based on Senate Bill 77 (p. 2 lines 5 to 32 and p.
3 line 12) which is a fair and an equitable method of distributing the delegates pursuant to the
provisions of the joint Resolution of both Houses No. 2, as amended. Upon your request at
the session of the Senate-House Conference Committee meeting last night, we are submitting
herewith the results of the computation on the basis of the above-stated method."

Even if such latest census were a preliminary census, the same could still be a valid basis for
such apportionment.6 The fact that the lone and small congressional district of Batanes, may
be over-represented, because it is allotted two delegates by R.A. No. 6132 despite the fact
that it has a population very much less than several other congressional districts, each of
which is also allotted only two delegates, and therefore under-represented, vis-a-vis Batanes
alone, does not vitiate the apportionment as not effecting proportional representation.
Absolute proportional apportionment is not required and is not possible when based on the
number of inhabitants, for the population census cannot be accurate nor complete, dependent
as it is on the diligence of the census takers, aggravated by the constant movement of
population, as well as daily death and birth. It is enough that the basis employed is reasonable
and the resulting apportionment is substantially proportional. Resolution No. 4 fixed a
minimum of two delegates for a congressional district.

While there may be other formulas for a reasonable apportionment considering the evidence
submitted to Congress by the Bureau of Census and Statistics, we are not prepared to rule
that the computation formula adopted by, Congress for proportional representation as,
directed in Res. No. 4 is unreasonable and that the apportionment provided in R.A. No. 6132
does not constitute a substantially proportional representation.

In the Macias case, relied on by petitioner Gonzales, the apportionment law, which was
nullified as unconstitutional, granted more representatives to a province with less population
than the provinces with more inhabitants. Such is not the case here, where under Sec. 2 of
R.A. No. 6132 Batanes is allotted only two delegates, which number is equal to the number of
delegates accorded other provinces with more population. The present petitions therefore do
not present facts which fit the mould of the doctrine in the case of Macias et al. vs. Comelec,
supra.

The impossibility of absolute proportional representation is recognized by the Constitution

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

IV

Sec. 5 of R.A. 6132 is attacked on the ground that it is an undue deprivation of liberty without
due process of law and denies the equal protection of the laws. Said Sec. 5 disqualifies any
elected delegate from running "for any public office in any election" or from assuming "any
appointive office or position in any branch of the government government until after the final
adjournment of the Constitutional Convention."
That the citizen does not have any inherent nor natural right to a public office, is axiomatic
under our constitutional system. The State through its Constitution or legislative body, can
create an office and define the qualifications and disqualifications therefor as well as impose
inhibitions on a public officer. Consequently, only those with qualifications and who do not fall
under any constitutional or statutory inhibition can be validly elected or appointed to a public
office. The obvious reason for the questioned inhibition, is to immunize the delegates from the
perverting influence of self-interest, party interest or vested interest and to insure that he
dedicates all his time to performing solely in the interest of the nation his high and well nigh
sacred function of formulating the supreme law of the land, which may endure for generations
and which cannot easily be changed like an ordinary statute. With the disqualification
embodied in Sec. 5, the delegate will not utilize his position as a bargaining leverage for
concessions in the form of an elective or appointive office as long as the convention has not
finally adjourned. The appointing authority may, by his appointing power, entice votes for his
own proposals. Not love for self, but love for country must always motivate his actuations as
delegate; otherwise the several provisions of the new Constitution may only satisfy individual
or special interests, subversive of the welfare of the general citizenry. It should be stressed
that the disqualification is not permanent but only temporary only to continue until the final
adjournment of the convention which may not extend beyond one year. The convention that
framed the present Constitution finished its task in approximately seven months — from July
30, 1934 to February 8, 1935.

As admitted by petitioner Gonzales, this inhibition finds analogy in the constitutional provision
prohibiting a member of Congress, during the time for which he was elected, from being
appointed to any civil office which may have been created or the emolument whereof shall
have been increased while he was a member of the Congress. (Sec. 16, Art. VI, Phil.
Constitution.)

As observed by the Solicitor General in his Answer, the overriding objective of the challenged
disqualification, temporary in nature, is to compel the elected delegates to serve in full their
term as such and to devote all their time to the convention, pursuant to their representation
and commitment to the people; otherwise, his seat in the convention will be vacant and his
constituents will be deprived of a voice in the convention. The inhibition is likewise "designed
to prevent popular political figures from controlling elections or positions. Also it is a brake on
the appointing power, to curtail the latter's desire to 'raid' the convention of "talents" or attempt
to control the convention." (p. 10, Answer in L-32443.)

Thus the challenged disqualification prescribed in Sec. 5 of R.A. No. 6132 is a valid limitation
on the right to public office pursuant to state police power as it is reasonable and not arbitrary.

The discrimination under Sec. 5 against delegates to the Constitutional Convention is likewise
constitutional; for it is based on a substantial distinction which makes for real differences, is
germane to the purposes of the law, and applies to all members of the same class. 7 The
function of a delegate is more far-reaching and its effect more enduring than that of any
ordinary legislator or any other public officer. A delegate shapes the fundamental law of the
land which delineates the essential nature of the government, its basic organization and
powers, defines the liberties of the people, and controls all other laws. Unlike ordinary statutes,
constitutional amendments cannot be changed in one or two years. No other public officer
possesses such a power, not even the members of Congress unless they themselves,
propose constitutional amendments when acting as a Constituent Assembly pursuant to Art.
XV of the Constitution. The classification, therefore, is neither whimsical nor repugnant to the
sense of justice of the community.
As heretofore intimated, the inhibition is relevant to the object of the law, which is to insure
that the proposed amendments are meaningful to the masses of our people and not designed
for the enhancement of selfishness, greed, corruption, or injustice.

Lastly, the disqualification applies to all the delegates to the convention who will be elected on
the second Tuesday of November, 1970.

Paragraph 1, Sec. 8(a) of R.A. No. 6132 is impugned by both petitioners as violative of the
constitutional guarantees of due process, equal protection of the laws, freedom of
expressions, freedom of assembly and freedom of association.

This Court ruled last year that the guarantees of due process, equal protection of the laws,
peaceful assembly, free expression, and the right of association are neither absolute nor
illimitable rights; they are always subject to the pervasive and dormant police power of the
State and may be lawfully abridged to serve appropriate and important public interests.8

In said Gonzalez vs. Comelec case the Court applied the clear and present danger test to
determine whether a statute which trenches upon the aforesaid Constitutional guarantees, is
a legitimate exercise of police power.9

Paragraph 1 of Sec. 8(a), R.A. No. 6132 prohibits:

1. any candidate for delegate to the convention

(a) from representing, or

(b) allowing himself to be represented as being a candidate of

any political party or any other organization; and

2. any political party, political group, political committee, civic, religious,

professional or other organizations or organized group of whatever nature from

(a) intervening in the nomination of any such candidate or in the

filing of his certificate, or

(b) from giving aid or support directly or indirectly, material or

otherwise, favorable to or against his campaign for election.

The ban against all political parties or organized groups of whatever nature contained in par.
1 of Sec. 8(a), is confined to party or organization support or assistance, whether material,
moral, emotional or otherwise. The very Sec. 8(a) in its provisos permits the candidate to
utilize in his campaign the help of the members of his family within the fourth civil degree of
consanguinity or affinity, and a campaign staff composed of not more than one for every ten
precincts in his district. It allows the full exercise of his freedom of expression and his right to
peaceful assembly, because he cannot be denied any permit to hold a public meeting on the
pretext that the provision of said section may or will be violated. The right of a member of any
political party or association to support him or oppose his opponent is preserved as long as
such member acts individually. The very party or organization to which he may belong or which
may be in sympathy with his cause or program of reforms, is guaranteed the right to
disseminate information about, or to arouse public interest in, or to advocate for constitutional
reforms, programs, policies or constitutional proposals for amendments.
It is therefore patent that the restriction contained in Sec. 8(a) is so narrow that the basic
constitutional rights themselves remain substantially intact and inviolate. And it is therefore a
valid infringement of the aforesaid constitutional guarantees invoked by petitioners.

In the aforesaid case of Gonzales vs. Comelec, supra, this Court unanimously sustained the
validity of the limitation on the period for nomination of candidates in Sec. 50-A of R.A. No.
4880, thus:

The prohibition of too early nomination of candidates presents a question that

is not too formidable in character. According to the act: "It shall be unlawful for
any political party, political committee, or political group to nominate candidates
for any elective public office voted for at large earlier than one hundred and fifty
days immediately preceding an election, and for any other elective public office
earlier than ninety days immediately preceding an election.

The right of association is affected. Political parties have less freedom as to the
time during which they may nominate candidates; the curtailment is not such,
however, as to render meaningless such a basic right. Their scope of legitimate
activities, save this one, is not unduly narrowed. Neither is there infringement
of their freedom to assemble. They can do so, but not for such a purpose. We
sustain its validity. We do so unanimously. 10

In said Gonzales vs. Comelec case, this Court likewise held that the period for the conduct of
an election campaign or partisan political activity may be limited without offending the
aforementioned constitutional guarantees as the same is designed also to prevent a "clear
and present danger of a substantive evil, the debasement of the electoral process." 11

Even if the partisan activity consists of (a) forming organizations, associations, clubs,
committees or other group of persons for the purpose of soliciting votes and/or undertaking
any campaign or propaganda for or against a party or candidate; (b) holding political
conventions, caucuses, conferences, meetings, rallies, parades or other similar assemblies
for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or
against any candidate or party; and (c) giving, soliciting, or receiving contributions for election
campaign either directly or indirectly, (Sec. 50-B, pars. (a), (b), and (c), R.A. 4880), the
abridgment was still affirmed as constitutional by six members of this Court, which could not
"ignore ... the legislative declaration that its enactment was in response to a serious
substantive evil affecting the electoral process, not merely in danger of happening, but actually
in existence, and likely to continue unless curbed or remedied. To assert otherwise would be
to close one's eyes to the reality of the situation." 12;

Likewise, because four members dissented, this Court in said case of Gonzales vs. Comelec,
supra, failed to muster the required eight votes to declare as unconstitutional the limitation on
the period for (a) making speeches, announcements or commentaries or holding interviews
for or against the election of any party or candidate for public office; (b) publishing or
distributing campaign literature or materials; and (e) directly or indirectly soliciting votes and/or
undertaking any campaign or propaganda for or against any candidate or party specified in
Sec. 50-B, pars. (c), (d) & (e) of R.A. 4880. 13

The debasement of the electoral process as a substantive evil exists today and is one of the
major compelling interests that moved Congress into prescribing the total ban contained in
par. 1 of Sec. 8(a) of R.A. No. 6132, to justify such ban. In the said Gonzales vs. Comelec
case, this Court gave "due recognition to the legislative concern to cleanse, and if possible,
render spotless, the electoral process," 14 impressed as it was by the explanation made by the
author of R.A. No. 4880, Sen. Lorenzo Tañada, who appeared as amicus curiae, "that such
provisions were deemed by the legislative body to be part and parcel of the necessary and
appropriate response not merely to a clear and present danger but to the actual existence of
a grave and substantive evil of excessive partisanship, dishonesty and corruption as well as
violence that of late has marred election campaigns and partisan political activities in this
country. He did invite our attention likewise to the well-settled doctrine that in the choice of
remedies for an admitted malady requiring governmental action, on the legislature primarily
rests the responsibility. Nor should the cure prescribed by it, unless clearly repugnant to
fundamental rights, be ignored or disregarded." 15

But aside from the clear and imminent danger of the debasement of the electoral process, as
conceded by Senator Pelaez, the basic motivation, according to Senate Majority Floor Leader
Senator Arturo Tolentino, the sponsor of the Puyat-Tolentino amendment embodied in par. 1
of Sec. 8(a) of R.A. No. 6132, is to assure the candidates equal protection of the laws by
according them equality of chances. 16 The primary purpose of the prohibition then is also to
avert the clear and present danger of another substantive evil, the denial of the equal
protection of the laws. The candidates must depend on their individual merits and not on the
support of political parties or organizations. Senator Tolentino and Senator Salonga
emphasized that under this provision, the poor candidate has an even chance as against the
rich candidate. We are not prepared to disagree with them, because such a conclusion,
predicated as it is on empirical logic, finds support in our recent political history and
experience. Both Senators stressed that the independent candidate who wins in the election
against a candidate of the major political parties, is a rare phenomenon in this country and the
victory of an independent candidate mainly rests on his ability to match the resources, financial
and otherwise, of the political parties or organizations supporting his opponent. This position
is further strengthened by the principle that the guarantee of social justice under Sec. V, Art.
II of the Constitution, includes the guarantee of equal opportunity, equality of political rights,
and equality before the law enunciated by Mr. Justice Tuazon in the case Guido vs. Rural
Progress Administration. 17

While it may be true that a party's support of a candidate is not wrong per se it is equally true
that Congress in the exercise of its broad law-making authority can declare certain acts as
mala prohibita when justified by the exigencies of the times. One such act is the party or
organization support proscribed in Sec. 8(a),which ban is a valid limitation on the freedom of
association as well as expression, for the reasons aforestated.

Senator Tolentino emphasized that "equality of chances may be better attained by banning all
organization support." 18

The questioned par. 1 of Sec. 8 (a) likewise can easily pass the balancing-of-interest test. 19

In the apt words of the Solicitor General:

It is to be noted that right now the nation is on the threshold of rewriting its
Constitution in a hopeful endeavor to find a solution to the grave economic,
social and political problems besetting the country. Instead of directly proposing
the amendments Congress has chosen to call a Constitutional Convention
which shall have the task of fashioning a document that shall embody the
aspirations and ideals of the people. Because what is to be amended is the
fundamental law of the land, it is indispensable that the Constitutional
Convention be composed of delegates truly representative of the people's will.
Public welfare demands that the delegates should speak for the entire nation,
and their voices be not those of a particular segment of the citizenry, or of a
particular class or group of people, be they religious, political, civic or
professional in character. Senator Pelaez, Chairman of the Senate Committee
 on Codes and Constitutional Amendments, eloquently stated that "the function
of a constitution is not to represent anyone in interest or set of interests, not to
favor one group at the expense or disadvantage of the candidates — but to
encompass all the interests that exist within our society and to blend them into
one harmonious and balanced whole. For the constitutional system means, not
the predominance of interests, but the harmonious balancing thereof."

So that the purpose for calling the Constitutional Convention will not be deflated
or frustrated, it is necessary that the delegatee thereto be independent,
beholden to no one but to God, country and conscience.

xxx xxx xxx

The evil therefore, which the law seeks to prevent lies in the election of
delegates who, because they have been chosen with the aid and resources of
organizations, cannot be expected to be sufficiently representative of the
people. Such delegates could very well be the spokesmen of narrow political,
religious or economic interest and not of the great majority of the people. 20

We likewise concur with the Solicitor General that the equal protection of the laws is not unduly
subverted in par. I of Sec. 8(a); because it does not create any hostile discrimination against
any party or group nor does it confer undue favor or privilege on an individual as heretofore
stated. The discrimination applies to all organizations, whether political parties or social, civic,
religious, or professional associations. The ban is germane to the objectives of the law, which
are to avert the debasement of the electoral process, and to attain real equality of chances
among individual candidates and thereby make real the guarantee of equal protection of the
laws.

The political parties and the other organized groups have built-in advantages because of their
machinery and other facilities, which, the individual candidate who is without any organization
support, does not have. The fact that the other civic of religious organizations cannot have a
campaign machinery as efficient as that of a political party, does not vary the situation;
because it still has that much built-in advantage as against the individual candidate without
similar support. Moreover, these civic religious and professional organization may band
together to support common candidates, who advocates the reforms that these organizations
champion and believe are imperative. This is admitted by petitioner Gonzales thru the letter
of Senator Ganzon dated August 17, 1970 attached to his petition as Annex "D", wherein the
Senator stated that his own "Timawa" group had agreed with the Liberal Party in Iloilo to
support petitioner Gonzales and two others as their candidates for the convention, which
organized support is nullified by the questioned ban, Senator Ganzon stressed that "without
the group moving and working in joint collective effort" they cannot "exercise effective control
and supervision over our
leaders — the Women's League, the area commanders, etc."; but with their joining with the
LP's they "could have presented a solid front with very bright chances of capturing all seats."

The civic associations other than political parties cannot with reason insist that they should be
exempted from the ban; because then by such exemption they would be free to utilize the
facilities of the campaign machineries which they are denying to the political parties. Whenever
all organization engages in a political activity, as in this campaign for election of delegates to
the Constitutional Convention, to that extent it partakes of the nature of a political organization.
This, despite the fact that the Constitution and by laws of such civic, religious, or professional
associations usually prohibit the association from engaging in partisan political activity or
supporting any candidate for an elective office. Hence, they must likewise respect the ban.
The freedom of association also implies the liberty not to associate or join with others or join
any existing organization. A person may run independently on his own merits without need of
catering to a political party or any other association for support. And he, as much as the
candidate whose candidacy does not evoke sympathy from any political party or organized
group, must be afforded equal chances. As emphasized by Senators Tolentino and Salonga,
this ban is to assure equal chances to a candidate with talent and imbued with patriotism as
well as nobility of purpose, so that the country can utilize their services if elected.

Impressed as We are by the eloquent and masterly exposition of Senator Tañada for the
invalidation of par. 1 of Sec. 8(a) of R.A. No. 6132, demonstrating once again his deep concern
for the preservation of our civil liberties enshrined in the Bill of Rights, We are not persuaded
to entertain the belief that the challenged ban transcends the limits of constitutional invasion
of such cherished immunities.

WHEREFORE, the prayers in both petitions are hereby denied and R.A. No. 6132 including
Secs. 2, 4, 5, and 8(a), paragraph 1, thereof, cannot be declared unconstitutional. Without
costs.

Reyes, J.B.L., Dizon and Castro, JJ., concur.

Makalintal, J., concurs in the result.

Teehankee, J., is on leave.

 • Santiago v. COMELEC, G.R. No. 127325, March 19, 1997

G.R. No. 127325 March 19, 1997

MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA ISABEL

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

SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL ANG KONSTITUSYON

(DIK), MOVEMENT OF ATTORNEYS FOR BROTHERHOOD INTEGRITY AND
NATIONALISM, INC. (MABINI), INTEGRATED BAR OF THE PHILIPPINES (IBP), and
LABAN NG DEMOKRATIKONG PILIPINO (LABAN), petitioners-intervenors.

DAVIDE, JR., J.:

The heart of this controversy brought to us by way of a petition for prohibition under Rule 65
of the Rules of Court is the right of the people to directly propose amendments to the
Constitution through the system of initiative under Section 2 of Article XVII of the 1987
Constitution. Undoubtedly, this demands special attention, as this system of initiative was
unknown to the people of this country, except perhaps to a few scholars, before the drafting
of the 1987 Constitution. The 1986 Constitutional Commission itself, through the original
proponent1 and the main sponsor2 of the proposed Article on Amendments or Revision of the
Constitution, characterized this system as "innovative".3 Indeed it is, for both under the 1935
and 1973 Constitutions, only two methods of proposing amendments to, or revision of, the
Constitution were recognized, viz., (1) by Congress upon a vote of three-fourths of all its
members and (2) by a constitutional convention.4 For this and the other reasons hereafter
discussed, we resolved to give due course to this petition.

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

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

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

3. Instructing Municipal Election Registrars in all Regions of the Philippines, to

assist Petitioners and volunteers, in establishing signing stations at the time
and on the dates designated for the purpose.

Delfin alleged in his petition that he is a founding member of the Movement for People's
Initiative,6 a group of citizens desirous to avail of the system intended to institutionalize people
power; that he and the members of the Movement and other volunteers intend to exercise the
power to directly propose amendments to the Constitution granted under Section 2, Article
XVII of the Constitution; that the exercise of that power shall be conducted in proceedings
under the control and supervision of the COMELEC; that, as required in COMELEC Resolution
No. 2300, signature stations shall be established all over the country, with the assistance of
municipal election registrars, who shall verify the signatures affixed by individual signatories;
that before the Movement and other volunteers can gather signatures, it is necessary that the
time and dates to be designated for the purpose be first fixed in an order to be issued by the
COMELEC; and that to adequately inform the people of the electoral process involved, it is
likewise necessary that the said order, as well as the Petition on which the signatures shall be
affixed, be published in newspapers of general and local circulation, under the control and
supervision of the COMELEC.

The Delfin Petition further alleged that the provisions sought to be amended are Sections 4
and 7 of Article VI,7 Section 4 of Article VII,8 and Section 8 of Article X9 of the Constitution.
Attached to the petition is a copy of a "Petition for Initiative on the 1987
Constitution" 10 embodying the proposed amendments which consist in the deletion from the
aforecited sections of the provisions concerning term limits, and with the following proposition:

DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE

GOVERNMENT OFFICIALS, AMENDING FOR THE PURPOSE SECTIONS 4
AND 7 OF ARTICLE VI, SECTION 4 OF ARTICLE VII, AND SECTION 8 OF
ARTICLE X OF THE 1987 PHILIPPINE CONSTITUTION?

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

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

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

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

On 18 December 1996, the petitioners herein — Senator Miriam Defensor Santiago,

Alexander Padilla, and Maria Isabel Ongpin — filed this special civil action for prohibition
raising the following arguments:

(1) The constitutional provision on people's initiative to amend the Constitution

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

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

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

(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern

"the conduct of initiative on the Constitution and initiative and referendum on
national and local laws, is ultra vires insofar as initiative on amendments to the
Constitution is concerned, since the COMELEC has no power to provide rules
and regulations for the exercise of the right of initiative to amend the
Constitution. Only Congress is authorized by the Constitution to pass the
implementing law.

(5) The people's initiative is limited to amendments to the Constitution, not

to revision thereof. Extending or lifting of term limits constitutes a revision and
is, therefore, outside the power of the people's initiative.

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

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

On 19 December 1996, this Court (a) required the respondents to comment on the petition
within a non-extendible period of ten days from notice; and (b) issued a temporary restraining
order, effective immediately and continuing until further orders, enjoining public respondent
COMELEC from proceeding with the Delfin Petition, and private respondents Alberto and
Carmen Pedrosa from conducting a signature drive for people's initiative to amend the
Constitution.
 15
On 2 January 1997, private respondents, through Atty Quadra, filed their Comment on the
petition. They argue therein that:

1. IT IS NOT TRUE THAT "IT WOULD ENTAIL EXPENSES TO THE

NATIONAL TREASURY FOR GENERAL REGISTRATION OF VOTERS
AMOUNTING TO AT LEAST PESOS: ONE HUNDRED EIGHTY MILLION
(P180,000,000.00)" IF THE "COMELEC GRANTS THE PETITION FILED BY
RESPONDENT DELFIN BEFORE THE COMELEC.

2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL

GOVERNMENT IF THE COMELEC GRANTS THE PETITION OF
RESPONDENT DELFIN. ALL EXPENSES IN THE SIGNATURE GATHERING
ARE ALL FOR THE ACCOUNT OF RESPONDENT DELFIN AND HIS
VOLUNTEERS PER THEIR PROGRAM OF ACTIVITIES AND
EXPENDITURES SUBMITTED TO THE COMELEC. THE ESTIMATED COST
OF THE DAILY PER DIEM OF THE SUPERVISING SCHOOL TEACHERS IN
THE SIGNATURE GATHERING TO BE DEPOSITED and TO BE PAID BY
DELFIN AND HIS VOLUNTEERS IS P2,571,200.00;

3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE

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

4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING

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

5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16,

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

6. EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290

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

7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF

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

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

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

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

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

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

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

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

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

(2) A separate subtitle on initiative on the Constitution is not necessary in R.A.

No. 6735 because, being national in scope, that system of initiative is deemed
included in the subtitle on National Initiative and Referendum; and Senator
Tolentino simply overlooked pertinent provisions of the law when he claimed
that nothing therein was provided for initiative on the Constitution.
 (3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A.
No. 6735 does not deal with initiative on the Constitution.

(4) Extension of term limits of elected officials constitutes a mere amendment

to the Constitution, not a revision thereof.

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

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

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

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

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

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

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

(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by

COMELEC Resolution No. 2300, since the COMELEC is without authority to
legislate the procedure for a people's initiative under Section 2 of Article XVII
of the Constitution. That function exclusively pertains to Congress. Section 20
of R.A. No. 6735 does not constitute a legal basis for the Resolution, as the
former does not set a sufficient standard for a valid delegation of power.

On 20 January 1997, Senator Raul Roco filed his Petition in

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Private respondents Alberto and Carmen Pedrosa filed their Consolidated Comments on the
Petitions in Intervention of Senator Roco, DIK and MABINI, and IBP. 23 The parties thereafter
filed, in due time, their separate memoranda. 24
As we stated in the beginning, we resolved to give due course to this special civil action.

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

THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY IN THE COMELEC

OF THE DELFIN PETITION.

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

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

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

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

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

Sec. 2. Petition for prohibition. — Where the proceedings of any tribunal,

corporation, board, or person, whether exercising functions judicial or
ministerial, are without or in excess of its or his jurisdiction, or with grave abuse
of discretion, and there is no appeal or any other plain, speedy and adequate
remedy in the ordinary course of law, a person aggrieved thereby may file a
verified petition in the proper court alleging the facts with certainty and praying
that judgment be rendered commanding the defendant to desist from further
proceedings in the action or matter specified therein.
It must also be noted that intervenor Roco claims that the COMELEC has no jurisdiction over
the Delfin Petition because the said petition is not supported by the required minimum number
of signatures of registered voters. LABAN also asserts that the COMELEC gravely abused its
discretion in refusing to dismiss the Delfin Petition, which does not contain the required
number of signatures. In light of these claims, the instant case may likewise be treated as a
special civil action for certiorari under Section I of Rule 65 of the Rules of Court.

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

A party's standing before this Court is a procedural technicality which it may, in

the exercise of its discretion, set aside in view of the importance of issues
raised. In the landmark Emergency Powers Cases, this Court brushed aside
this technicality because the transcendental importance to the public of these
cases demands that they be settled promptly and definitely, brushing aside, if
we must, technicalities of procedure.

II

R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF INITIATIVE ON

AMENDMENTS TO THE CONSTITUTION, BUT IS, UNFORTUNATELY,
INADEQUATE TO COVER THAT SYSTEM.

Section 2 of Article XVII of the Constitution provides:

Sec. 2. Amendments to this Constitution may likewise be directly proposed by

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

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

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

Without implementing legislation Section 2 cannot operate. Thus, although this

mode of amending the Constitution is a mode of amendment which bypasses
congressional action, in the last analysis it still is dependent on congressional
action.

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

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

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

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

(b) by a constitutional convention; or

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

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

MR. SUAREZ. Thank you, Madam President. May we

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

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

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

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

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

questions.

First, on Section 1 on the matter of initiative upon petition of at

least 10 percent, there are no details in the provision on how to
carry this out. Do we understand, therefore, that we are leaving
this matter to the legislature?

MR. SUAREZ. That is right, Madam President.

FR. BERNAS. And do we also understand, therefore, that for as

long as the legislature does not pass the necessary
implementing law on this, this will not operate?

MR. SUAREZ. That matter was also taken up during the

committee hearing, especially with respect to the budget
appropriations which would have to be legislated so that the
plebiscite could be called. We deemed it best that this matter be
 left to the legislature. The Gentleman is right. In any event, as
envisioned, no amendment through the power of initiative can
be called until after five years from the date of the ratification of
this Constitution. Therefore, the first amendment that could be
proposed through the exercise of this initiative power would be
after five years. It is reasonably expected that within that five-
year period, the National Assembly can come up with the
appropriate rules governing the exercise of this power.

FR. BERNAS. Since the matter is left to the legislature — the

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

MR. SUAREZ. No, it does not exclude that possibility because

even the legislature itself as a body could propose that
amendment, maybe individually or collectively, if it fails to
muster the three-fourths vote in order to constitute itself as a
constituent assembly and submit that proposal to the people for
ratification through the process of an initiative.

xxx xxx xxx

MS. AQUINO. Do I understand from the sponsor that the

intention in the proposal is to vest constituent power in the
people to amend the Constitution?

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

MS. AQUINO. I fully concur with the underlying precept of the

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

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

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

MR. SUAREZ. That proposition is nondebatable.

MS. AQUINO. Such that in order to underscore the primacy of

constituent power we have a separate article in the constitution
that would specifically cover the process and the modes of
amending the Constitution?
 MR. SUAREZ. That is right, Madam President.

MS. AQUINO. Therefore, is the sponsor inclined, as the

provisions are drafted now, to again concede to the legislature
the process or the requirement of determining the mechanics of
amending the Constitution by people's initiative?

MR. SUAREZ. The matter of implementing this could very well

be placed in the hands of the National Assembly, not unless we
can incorporate into this provision the mechanics that would
adequately cover all the conceivable situations. 33

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

MR. SUAREZ. . . . This proposal was suggested on the theory

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

xxx xxx xxx

MS. AQUINO. In which case, I am seriously bothered by

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

MR. SUAREZ. We would be amenable except that, as we

clarified a while ago, this process of initiative is limited to the
matter of amendment and should not expand into a
revision which contemplates a total overhaul of the Constitution.
That was the sense that was conveyed by the Committee.

MS. AQUINO. In other words, the Committee was attempting to

distinguish the coverage of modes (a) and (b) in Section 1 to
include the process of revision; whereas the process of initiation
to amend, which is given to the public, would only apply to
amendments?

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

the Committee. 35

Amendments to the proposed Section 2 were thereafter introduced by then Commissioner

Hilario G. Davide, Jr., which the Committee accepted. Thus:
 MR. DAVIDE. Thank you Madam President. I propose to
substitute the entire Section 2 with the following:

MR. DAVIDE. Madam President, I have modified the proposed

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

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR

THE IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.

MR. SUAREZ. Madam President, considering that the proposed

amendment is reflective of the sense contained in Section 2 of
our completed Committee Report No. 7, we accept the
proposed amendment. 36

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

MR. ROMULO. Under Commissioner Davide's amendment, is it

possible for the legislature to set forth certain procedures to
carry out the initiative. . .?

MR. DAVIDE. It can.

xxx xxx xxx

MR. ROMULO. But the Commissioner's amendment does not

prevent the legislature from asking another body to set the
proposition in proper form.

MR. DAVIDE. The Commissioner is correct. In other words, the

implementation of this particular right would be subject to
legislation, provided the legislature cannot determine anymore
the percentage of the requirement.

MR. ROMULO. But the procedures, including the determination

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

MR. ROMULO. In that provision of the Constitution can the

procedures which I have discussed be legislated?

MR. DAVIDE. Yes. 37

Commissioner Davide also reaffirmed that his modified amendment strictly

confines initiative to AMENDMENTS to — NOT REVISION of — the Constitution. Thus:

MR. DAVIDE. With pleasure, Madam President.

MR. MAAMBONG. My first question: Commissioner Davide's

proposed amendment on line 1 refers to "amendment." Does it
not cover the word "revision" as defined by Commissioner
Padilla when he made the distinction between the words
"amendments" and "revision"?

MR. DAVIDE. No, it does not, because "amendments" and

"revision" should be covered by Section 1. So insofar as
initiative is concerned, it can only relate to "amendments" not
"revision." 38

Commissioner Davide further emphasized that the process of proposing amendments

through initiative must be more rigorous and difficult than the initiative on legislation. Thus:

MR. DAVIDE. A distinction has to be made that under this

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

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

MR. DAVIDE. Thank you Madam President. Section 2, as

amended, reads as follows: "AMENDMENT TO THIS
 CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED
BY THE PEOPLE THROUGH INITIATIVE UPON A PETITION
OF AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER
OF REGISTERED VOTERS, OF WHICH EVERY
LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT
LEAST THREE PERCENT OF THE REGISTERED VOTERS
THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL
BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE
RATIFICATION OF THIS CONSTITUTION NOR OFTENER
THAN ONCE EVERY FIVE YEARS THEREAFTER.

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE

FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS
RIGHT. 40

The entire proposed Article on Amendments or Revisions was approved on second

reading on 9 July 1986. 41 Thereafter, upon his motion for reconsideration,
Commissioner Gascon was allowed to introduce an amendment to Section 2 which,
nevertheless, was withdrawn. In view thereof, the Article was again approved on
Second and Third Readings on 1 August 1986. 42

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

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

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

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

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

with

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

This substitute amendment was an investiture on Congress of a power to provide for

the rules implementing the exercise of the right. The "rules" means "the details on how
[the right] is to be carried out." 46

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

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

A careful scrutiny of the Act yields a negative answer.

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

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

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

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

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

(c) The petition shall state the following:

c.1 contents or text of the proposed law sought to be enacted, approved or

rejected, amended or repealed, as the case may be;
 c.2 the proposition;

c.3 the reason or reasons therefor;

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

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

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

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

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

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

Sec. 3. Definition of terms —

xxx xxx xxx

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

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

amendments to the Constitution;

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

legislation; and

a.3 Initiative on local legislation which refers to a petition proposing to enact a

regional, provincial, city, municipal, or barangay law, resolution or ordinance.
(Emphasis supplied).
Hence, to complete the classification under subtitles there should have been a subtitle on
initiative on amendments to the Constitution. 53

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

(b) The proposition in an initiative on the Constitution approved by the majority

of the votes cast in the plebiscite shall become effective as to the day of the
plebiscite.

(c) A national or local initiative proposition approved by majority of the votes

cast in an election called for the purpose shall become effective fifteen (15)
days after certification and proclamation of the Commission. (Emphasis
supplied).

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

Sec. 11. Indirect Initiative. — Any duly accredited people's organization, as

defined by law, may file a petition for indirect initiative with the House of
Representatives, and other legislative bodies. . . .

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

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

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

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

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

(b) The conduct and date of the initiative;

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

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

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

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

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

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

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

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

(d) The formulation of the proposition;

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

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

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

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

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

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

(k) The limitations on local initiative; and

(l) The limitations upon local legislative bodies. 56

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

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

The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete, inadequate, or
wanting in essential terms and conditions insofar as initiative on amendments to the
Constitution is concerned. Its lacunae on this substantive matter are fatal and cannot be cured
by "empowering" the COMELEC "to promulgate such rules and regulations as may be
necessary to carry out the purposes of [the] Act. 58
The rule is that what has been delegated, cannot be delegated or as expressed in a Latin
maxim: potestas delegata non delegari potest. 59 The recognized exceptions to the rule are as
follows:

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

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

(3) Delegation to the people at large;

(4) Delegation to local governments; and

(5) Delegation to administrative bodies. 60

Empowering the COMELEC, an administrative body exercising quasi-judicial functions, to

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

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

III

COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND

REGULATIONS ON THE CONDUCT OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, IS VOID.

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

IV

COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF

DISCRETION IN ENTERTAINING THE DELFIN PETITION.

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

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

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

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

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

CONCLUSION

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

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

WHEREFORE, judgment is hereby rendered

a) GRANTING the instant petition;

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

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

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

The Temporary Restraining Order issued on 18 December 1996 is made permanent as

against the Commission on Elections, but is LIFTED as against private respondents.

Resolution on the matter of contempt is hereby reserved.

SO ORDERED.

Narvasa, C.J., Regalado, Romero, Bellosillo, Kapunan, Hermosisima, Jr. and Torres, Jr., JJ.,
concur.

Padilla, J., took no part.

 • Occena v. COMELEC, G.R. No. 56350, April 2, 1981

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

SAMUEL C. OCCENA, petitioner,

vs.
THE COMMISSION ON ELECTIONS, THE COMMISSION ON AUDIT, THE NATIONAL
TREASURER, THE DIRECTOR OF PRINTING, respondents.

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

RAMON A. GONZALES, MANUEL B. IMBONG, JO AUREA MARCOS-IMBONG, RAY

ALLAN T. DRILON, NELSON B. MALANA and GIL M. TABIOS, petitioners,
vs.
THE NATIONAL TREASURER and the COMMISSION ON ELECTIONS, respondents.

FERNANDO, C.J.:

The challenge in these two prohibition proceedings against the validity of three Batasang
Pambansa 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.

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

1. It is much too late in the day to deny the force and applicability of the 1973 Constitution. In
the dispositive portion of Javellana v. The Executive Secretary, 6 dismissing petitions for
prohibition and mandamus to declare invalid its ratification, this Court stated that it did so by
a vote of six 7 to four. 8 It then concluded: "This being the vote of the majority, there is no
further judicial obstacle to the new Constitution being considered in force and effect." 9 Such
a statement served a useful purpose. It could even be said that there was a need for it. It
served to clear the atmosphere. It made manifest that, as of January 17, 1973, the present
Constitution came into force and effect. With such a pronouncement by the Supreme Court
and with the recognition of the cardinal postulate that what the Supreme Court says is not only
entitled to respect but must also be obeyed, a factor for instability was removed. Thereafter,
as a matter of law, all doubts were resolved. The 1973 Constitution is the fundamental law. It
is as simple as that. What cannot be too strongly stressed is that the function of judicial review
has both a positive and a negative aspect. As was so convincingly demonstrated by
Professors Black 10 and Murphy, 11 the Supreme Court can check as well as legitimate. In
declaring what the law is, it may not only nullify the acts of coordinate branches but may also
sustain their validity. In the latter case, there is an affirmation that what was done cannot be
stigmatized as constitutionally deficient. The mere dismissal of a suit of this character suffices.
That is the meaning of the concluding statement in Javellana. Since then, this Court has
invariably applied the present Constitution. The latest case in point is People v.
Sola, 12 promulgated barely two weeks ago. During the first year alone of the effectivity of the
present Constitution, at least ten cases may be cited. 13

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

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

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

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

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

Barredo, Makasiar, Aquino Concepcion, Jr., Fernandez, Guerrero, De Castro and Melencio-
Herrera, JJ., concur.

Abad Santos, J., is on leave.

 • Tolentino v. COMELEC, G.R. No. L-34150, October 16, 1971

G.R. No. L-34150 October 16, 1971

ARTURO M. TOLENTINO, petitioner,

vs.
COMMISSION ON ELECTIONS, and THE CHIEF ACCOUNTANT, THE AUDITOR, and THE
DISBURSING OFFICER OF THE 1971 CONSTITUTIONAL
CONVENTION, respondents, RAUL S. MANGLAPUS, JESUS G. BARRERA, PABLO S.
TRILLANA III, VICTOR DE LA SERNA, MARCELO B. FERNAN, JOSE Y. FERIA,
LEONARDO SIGUION REYNA, VICTOR F. ORTEGA, and JUAN V. BORRA, Intervenors.

Arturo M. Tolentino in his own behalf.

Ramon A. Gonzales for respondents Chief Accountant and Auditor of the 1971 Constitutional
Convention.

Emmanuel Pelaez, Jorge M. Juco and Tomas L. Echivarre for respondent Disbursing Officer
of the 1971 Constitutional Convention.

Intervenors in their own behalf.

BARREDO, J.:

Petition for prohibition principally to restrain the respondent Commission on Elections "from
undertaking to hold a plebiscite on November 8, 1971," at which the proposed constitutional
amendment "reducing the voting age" in Section 1 of Article V of the Constitution of the
Philippines to eighteen years "shall be, submitted" for ratification by the people pursuant to
Organic Resolution No. 1 of the Constitutional Convention of 1971, and the subsequent
implementing resolutions, by declaring said resolutions to be without the force and effect of
law in so far as they direct the holding of such plebiscite and by also declaring the acts of the
respondent Commission (COMELEC) performed and to be done by it in obedience to the
aforesaid Convention resolutions to be null and void, for being violative of the Constitution of
the Philippines.

As a preliminary step, since the petition named as respondent only the COMELEC, the Count
required that copies thereof be served on the Solicitor General and the Constitutional
Convention, through its President, for such action as they may deem proper to take. In due
time, respondent COMELEC filed its answer joining issues with petitioner. To further put things
in proper order, and considering that the fiscal officers of the Convention are indispensable
parties in a proceeding of this nature, since the acts sought to be enjoined involve the
expenditure of funds appropriated by law for the Convention, the Court also ordered that the
Disbursing Officer, Chief Accountant and Auditor of the Convention be made respondents.
After the petition was so amended, the first appeared thru Senator Emmanuel Pelaez and the
last two thru Delegate Ramon Gonzales. All said respondents, thru counsel, resist petitioner's
action.

For reasons of orderliness and to avoid unnecessary duplication of arguments and even
possible confusion, and considering that with the principal parties being duly represented by
able counsel, their interests would be adequately protected already, the Court had to limit the
number of intervenors from the ranks of the delegates to the Convention who, more or less,
have legal interest in the success of the respondents, and so, only Delegates Raul S.
Manglapus, Jesus G. Barrera, Pablo S. Trillana III, Victor de la Serna, Marcelo B. Fernan,
Jose Y. Feria, Leonardo Siguion Reyna, Victor Ortega and Juan B. Borra, all distinguished
lawyers in their own right, have been allowed to intervene jointly. The Court feels that with
such an array of brilliant and dedicated counsel, all interests involved should be duly and
amply represented and protected. At any rate, notwithstanding that their corresponding
motions for leave to intervene or to appear as amicus curiae 1 have been denied, the
pleadings filed by the other delegates and some private parties, the latter in representation of
their minor children allegedly to be affected by the result of this case with the records and the
Court acknowledges that they have not been without value as materials in the extensive study
that has been undertaken in this case.

The background facts are beyond dispute. The Constitutional Convention of 1971 came into
being by virtue of two resolutions of the Congress of the Philippines approved in its capacity
as a constituent assembly convened for the purpose of calling a convention to propose
amendments to the Constitution namely, Resolutions 2 and 4 of the joint sessions of Congress
held on March 16, 1967 and June 17, 1969 respectively. The delegates to the said Convention
were all elected under and by virtue of said resolutions and the implementing legislation
thereof, Republic Act 6132. The pertinent portions of Resolution No 2 read as follows:

SECTION 1. There is hereby called a convention to propose amendments to

the Constitution of the Philippines, to be composed of two elective Delegates
from each representative district who shall have the same qualifications as
those required of Members of the House of Representatives.

xxx xxx xxx

SECTION 7. The amendments proposed by the Convention shall be valid and

considered part of the Constitution when approved by a majority of the votes
cast in an election at which they are submitted to the people for their ratification
pursuant to Article XV of the Constitution.

Resolution No. 4 merely modified the number of delegates to represent the different cities and
provinces fixed originally in Resolution No 2.

After the election of the delegates held on November 10, 1970, the Convention held its
inaugural session on June 1, 1971. Its preliminary labors of election of officers, organization
of committees and other preparatory works over, as its first formal proposal to amend the
Constitution, its session which began on September 27, 1971, or more accurately, at about
3:30 in the morning of September 28, 1971, the Convention approved Organic Resolution No.
1 reading thus: .

CC ORGANIC RESOLUTION NO. 1

A RESOLUTION AMENDING SECTION ONE OF ARTICLE V OF THE

CONSTITUTION OF THE PHILIPPINES SO AS TO LOWER THE VOTING
AGE TO 18

BE IT RESOLVED as it is hereby resolved by the 1971 Constitutional

Convention:

Section 1. Section One of Article V of the Constitution of the Philippines is

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

Section 2. This amendment shall be valid as part of the Constitution of the

Philippines when approved by a majority of the votes cast in a plebiscite to
coincide with the local elections in November 1971.

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

Section 4. The Convention hereby authorizes the use of the sum of P75,000.00
from its savings or from its unexpended funds for the expense of the advanced
plebiscite; provided, however that should there be no savings or unexpended
sums, the Delegates waive P250.00 each or the equivalent of 2-1/2 days per
diem.

By a letter dated September 28, 1971, President Diosdado Macapagal, called upon
respondent Comelec "to help the Convention implement (the above) resolution." The said
letter reads:

September 28, 1971

The Commission on Elections Manila

Thru the Chairman

Gentlemen:

Last night the Constitutional Convention passed Resolution No. 1 quoted as

follows:

xxx xxx xxx

(see above)

Pursuant to the provision of Section 14, Republic Act No. 6132 otherwise
known as the Constitutional Convention Act of 1971, may we call upon you to
help the Convention implement this resolution:

Sincerely,

(Sgd.) DIOSDADO
P. MACAPAGAL
DIOSDADO P.
MACAPAGAL
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;

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

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

What happened afterwards may best be stated by quoting from intervenors' Governors'
statement of the genesis of the above proposal:

The President of the Convention also issued an order forming an Ad Hoc

Committee to implement the Resolution.

This Committee issued implementing guidelines which were approved by the

President who then transmitted them to the Commission on Elections.

The Committee on Plebiscite and Ratification filed a report on the progress of

the implementation of the plebiscite in the afternoon of October 7,1971,
enclosing copies of the order, resolution and letters of transmittal above
referred to (Copy of the report is hereto attached as Annex 8-Memorandum).

RECESS RESOLUTION

In its plenary session in the evening of October 7, 1971, the Convention

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

RESOLUTION CONFIRMING IMPLEMENTATION

On October 12, 1971, the Convention passed Resolution No. 24 submitted by

Delegate Jose Ozamiz confirming the authority of the President of the
Convention to implement Organic Resolution No. 1, including the creation of
the Ad Hoc Committee ratifying all acts performed in connection with said
implementation.

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

As a preliminary and prejudicial matter, the intervenors raise the question of jurisdiction. They
contend that the issue before Us is a political question and that the Convention being
legislative body of the highest order is sovereign, and as such, its acts impugned by petitioner
are beyond the control of the Congress and the courts. In this connection, it is to be noted that
none of the respondent has joined intervenors in this posture. In fact, respondents Chief
Accountant and Auditor of the convention expressly concede the jurisdiction of this Court in
their answer acknowledging that the issue herein is a justifiable one.

Strangely, intervenors cite in support of this contention portions of the decision of this Court in
the case of Gonzales v. Comelec, 21 SCRA 774, wherein the members of the Court, despite
their being divided in their opinions as to the other matters therein involved, were precisely
unanimous in upholding its jurisdiction. Obviously, distinguished counsel have either failed to
grasp the full impact of the portions of Our decision they have quoted or would misapply them
by taking them out of context.

There should be no more doubt as to the position of this Court regarding its jurisdiction vis-a-
vis the constitutionality of the acts of the Congress, acting as a constituent assembly, and, for
that matter, those of a constitutional convention called for the purpose of proposing
amendments to the Constitution, which concededly is at par with the former. A simple reading
of Our ruling in that very case of Gonzales relied upon by intervenors should dispel any
lingering misgivings as regards that point. Succinctly but comprehensively, Chief Justice
Concepcion held for the Court thus: .

As early as Angara vs. Electoral Commission (63 Phil. 139, 157), this Court —
speaking through one of the leading members of the Constitutional Convention
and a respected professor of Constitutional Law, Dr. Jose P. Laurel — declared
that "the judicial department is the only constitutional organ which can be called
upon to determine the proper allocation of powers between the several
departments and among the integral or constituent units thereof."

It is true that in Mabanag v. Lopez Vito (supra), this Court characterizing the
issue submitted thereto as a political one declined to pass upon the question
whether or not a given number of votes cast in Congress in favor of a proposed
amendment to the Constitution — which was being submitted to the people for
ratification — satisfied the three-fourths vote requirement of the fundamental
law. The force of this precedent has been weakened, however, by Suanes v.
Chief Accountant of the Senate (81 Phil. 818), Avelino v. Cuenco, (L-2851,
March 4 & 14, 1949), Tañada v. Cuenco, (L-10520, Feb. 28, 1957) and Macias
v. Commission on Elections, (L-18684, Sept. 14, 1961). In the first we held that
the officers and employees of the Senate Electoral Tribunal are under its
supervision and control, not of that of the Senate President, as claimed by the
 latter; in the second, this Court proceeded to determine the number of Senators
necessary for quorum in the Senate; in the third, we nullified the election, by
Senators belonging to the party having the largest number of votes in said
chamber, purporting to act, on behalf of the party having the second largest
number of votes therein of two (2) Senators belonging to the first party, as
members, for the second party, of the Senate Electoral Tribunal; and in the
fourth, we declared unconstitutional an act of Congress purporting to apportion
the representatives districts for the House of Representatives, upon the ground
that the apportionment had not been made as may be possible according to
the number of inhabitants of each province. Thus we rejected the theory,
advanced in these four (4) cases that the issues therein raised were political
questions the determination of which is beyond judicial review.

Indeed, the power to amend the Constitution or to propose amendments

thereto is not included in the general grant of legislative powers to Congress
(Section 1, Art. VI, Constitution of the Philippines). It is part of the inherent
powers of the people — as the repository sovereignty in a republican state,
such as ours (Section 1, Art. 11, Constitution of the Philippines) — to make,
and, hence, to amend their own Fundamental Law. Congress may propose
amendments to the Constitution merely because the same explicitly grants
such power. (Section 1, Art. XV, Constitution of the Philippines) Hence, when
exercising the same, it is said that Senators and members of the House of
Representatives act, not as members of Congress, but as component
elements of 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 unconstitutional. (Sec. 2(1), Art. VIII of the Constitution),
despite the eminently political character of treaty-making power.

In short, the issue whether or not a Resolution of Congress — acting as a

constituent assembly — violates the Constitution is essentially justiciable not
political, and, hence, subject to judicial review, and, to the extent that this view
may be inconsistent with the stand taken in Mabanag v. Lopez Vito, (supra) the
latter should be deemed modified accordingly. The Members of the Court are
unanimous on this point.

No one can rightly claim that within the domain of its legitimate authority, the Convention is
not supreme. Nowhere in his petition and in his oral argument and memoranda does petitioner
point otherwise. Actually, what respondents and intervenors are seemingly reluctant to admit
is that the Constitutional Convention of 1971, as any other convention of the same nature,
owes its existence and derives all its authority and power from the existing Constitution of the
Philippines. This Convention has not been called by the people directly as in the case of a
revolutionary convention which drafts the first Constitution of an entirely new government born
of either a war of liberation from a mother country or of a revolution against an existing
government or of a bloodless seizure of power a la coup d'etat. As to such kind of conventions,
it is absolutely true that the convention is completely without restrain and omnipotent all wise,
and it is as to such conventions that the remarks of Delegate Manuel Roxas of the
Constitutional Convention of 1934 quoted by Senator Pelaez refer. No amount of
rationalization can belie the fact that the current convention came into being only because it
was called by a resolution of a joint session of Congress acting as a constituent assembly by
authority of Section 1, Article XV of the present Constitution which provides:

ARTICLE XV — AMENDMENTS

SECTION 1. The Congress in joint session assembled, by a vote of three-

fourths of all the Members of the Senate and of the House of Representatives
voting separately, may propose amendments to this Constitution or call a
convention for the purpose. Such amendments shall be valid as part of this
Constitution when approved by a majority of the votes cast at an election at
which the amendments are submitted to the people for their ratification.

True it is that once convened, this Convention became endowed with extra ordinary powers
generally beyond the control of any department of the existing government, but the compass
of such powers can be co-extensive only with the purpose for which the convention was called
and as it may propose cannot have any effect as part of the Constitution until the same are
duly ratified by the people, it necessarily follows that the acts of convention, its officers and
members are not immune from attack on constitutional grounds. The present Constitution is
in full force and effect in its entirety and in everyone of its parts the existence of the Convention
notwithstanding, and operates even within the walls of that assembly. While it is indubitable
that in its internal operation and the performance of its task to propose amendments to the
Constitution it is not subject to any degree of restraint or control by any other authority than
itself, it is equally beyond cavil that neither the Convention nor any of its officers or members
can rightfully deprive any person of life, liberty or property without due process of law, deny to
anyone in this country the equal protection of the laws or the freedom of speech and of the
press in disregard of the Bill of Rights of the existing Constitution. Nor, for that matter, can
such Convention validly pass any resolution providing for the taking of private property without
just compensation or for the imposition or exacting of any tax, impost or assessment, or
declare war or call the Congress to a special session, suspend the privilege of the writ of
habeas corpus, pardon a convict or render judgment in a controversy between private
individuals or between such individuals and the state, in violation of the distribution of powers
in the Constitution.

It being manifest that there are powers which the Convention may not and cannot validly
assert, much less exercise, in the light of the existing Constitution, the simple question arises,
should an act of the Convention be assailed by a citizen as being among those not granted to
or inherent in it, according to the existing Constitution, who can decide whether such a
contention is correct or not? It is of the very essence of the rule of law that somehow
somewhere the Power and duty to resolve such a grave constitutional question must be lodged
on some authority, or we would have to confess that the integrated system of government
established by our founding fathers contains a wide vacuum no intelligent man could ignore,
which is naturally unworthy of their learning, experience and craftsmanship in constitution-
making.

We need not go far in search for the answer to the query We have posed. The very decision
of Chief Justice Concepcion in Gonzales, so much invoked by intervenors, reiterates and
reinforces the irrefutable logic and wealth of principle in the opinion written for a unanimous
Court by Justice Laurel in Angara vs. Electoral Commission, 63 Phil., 134, reading:
... (I)n the main, the Constitution has blocked out with deft strokes and in bold
lines, allotment of power to the executive, the legislative and the judicial
departments of the government. The overlapping and interlacing of functions
and duties between the several departments, however, sometimes makes it
hard to say where the one leaves off and the other begins. In times of social
disquietude or political excitement, the great landmark of the Constitution are
apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the
judicial department is the only constitutional organ which can be called upon to
determine the proper allocation of powers between the several departments
and among the integral or constituent units thereof.

As any human production our Constitution is of course lacking perfection and

perfectibility, but as much as it was within the power of our people, acting
through their delegates to so provide, that instrument which is the expression
of their sovereignty however limited, has established a republican government
intended to operate and function as a harmonious whole, under a system of
check and balances and subject to specific limitations and restrictions provided
in the said instrument. The Constitution sets forth in no uncertain language the
restrictions and limitations upon governmental powers and agencies. If these
restrictions and limitations are transcended it would be inconceivable if the
Constitution had not provided for a mechanism by which to direct the course of
government along constitutional channels, for then the distribution of powers
would be mere verbiage, the bill of rights mere expressions of sentiment and
the principles of good government mere political apothegms. Certainly the
limitations and restrictions embodied in our Constitution are real as they should
be in any living Constitution. In the United States where no express
constitutional grant is found in their constitution, the possession of this
moderating power of the courts, not to speak of its historical origin and
development there, has been set at rest by popular acquiescence for a period
of more than one and half centuries. In our case, this moderating power is
granted, if not expressly, by clear implication from section 2 of Article VIII of our
Constitution.

The Constitution is a definition of the powers or government. Who is to

determine the nature, scope and extent of such powers? The Constitution itself
has provided for the instrumentality of the judiciary as the rational way. And
when the judiciary mediates to allocate constitutional boundaries, it does not
assert any superiority over the other departments; it does not in reality nullify
or invalidate an act of the legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an actual
controversy the rights which that instrument secures and guarantees to them.
This is in truth all that is involved in what is termed "judicial supremacy" which
properly is the power of judicial review under the Constitution. Even then, this
power of judicial review is limited to actual cases and controversies to be
exercised after full opportunity of argument by the parties, and limited further
to the constitutional question raised or the very lis mota presented. Any attempt
at abstraction could only lead to dialectics and barren legal questions and to
strike conclusions unrelated to actualities. Narrowed as its functions is in this
manner the judiciary does not pass upon questions of wisdom, justice or
expediency of legislation. More than that, courts accord the presumption of
constitutionality to legislative enactments, not only because the legislature is
presumed to abide by the Constitution but also because the judiciary in the
determination of actual cases and controversies must reflect the wisdom and
justice of the people as expressed through their representatives in the
executive and legislative departments of the government.

But much as we might postulate on the internal checks of power provided in

our Constitution, it ought not the less to be remembered that, in the language
of James Madison, the system itself is not "the chief palladium of constitutional
liberty ... the people who are authors of this blessing must also be its guardians
... their eyes must be ever ready to mark, their voices to pronounce ...
aggression on the authority of their Constitution." In the last and ultimate
analysis then, must the success of our government in the unfolding years to
come be tested in the crucible of Filipino minds and hearts than in consultation
rooms and court chambers.

In the case at bar, the National Assembly has by resolution (No. 8) of December
3, 1935, confirmed the election of the herein petitioner to the said body. On the
other hand, the Electoral Commission has by resolution adopted on December
9, 1935, fixed said date as the last day for the filing of protests against the
election, returns and qualifications of members of the National Assembly;
notwithstanding the previous confirmations made by the National Assembly as
aforesaid. If, as contended by the petitioner, the resolution of the National
Assembly has the effect of cutting off the power of the Electoral Commission to
entertain protests against the election, returns and qualifications of members
of the National Assembly, submitted after December 3, 1935 then the
resolution of the Electoral Commission of December 9, 1935, is mere
surplusage and had no effect. But, if, as contended by the respondents, the
Electoral Commission has the sole power of regulating its proceedings to the
exclusion of the National Assembly, then the resolution of December 9, 1935,
by which the Electoral Commission fixed said date as the last day for filing
protests against the election, returns and qualifications of members of the
National Assembly, should be upheld.

Here is then presented an actual controversy involving as it does a conflict of

a grave constitutional nature between the National Assembly on the one hand
and the Electoral Commission on the other. From the very nature of the
republican government established in our country in the light of American
experience and of our own, upon the judicial department is thrown the solemn
and inescapable obligation of interpreting the Constitution and defining
constitutional boundaries. The Electoral Commission as we shall have
occasion to refer hereafter, is a constitutional organ, created for a specific
purpose, namely, to determine all contests relating to the election, returns and
qualifications of the members of the National Assembly. Although the Electoral
Commission may not be interfered with, when and while acting within the limits
of its authority, it does not follow that it is beyond the reach of the constitutional
mechanism adopted by the people and that it is not subject to constitutional
restriction. The Electoral Commission is not a separate department of the
government, and even if it were, conflicting claims of authority under the
fundamental law between departmental powers and agencies of the
government are necessarily determined by the judiciary in justiciable and
appropriate cases. Discarding the English type and other European types of
constitutional government, the framers of our Constitution adopted the
American type where the written constitution is interpreted and given effect by
the judicial department. In some countries which have declined to follow the
American example, provisions have been inserted in their constitutions
prohibiting the courts from exercising the power to interpret the fundamental
 law. This is taken as a recognition of what otherwise would be the rule that in
the absence of direct prohibition, courts are bound to assume what is logically
their function. For instance, the Constitution of Poland of 1921 expressly
provides that courts shall have no power to examine the validity of statutes (art.
81, Chap. IV). The former Austrian Constitution contained a similar declaration.
In countries whose constitution are silent in this respect, courts have assumed
this power. This is true in Norway, Greece, Australia and South Africa.
Whereas, in Czechoslovakia (arts. 2 and 3, Preliminary Law to Constitutional
Charter of the Czechoslavak, Republic, February 29, 1920) and Spain (arts.
121-123, Title IX, Constitution of the Republic of 1931) especial constitutional
courts are established to pass upon the validity of ordinary laws. In our case,
the nature of the present controversy shows the necessity of a final
constitutional arbiter to determine the conflict of authority between two
agencies created by the Constitution. Were we to decline to take cognizance
of the controversy, who will determine the conflict? And if the conflict were left
undecided and undetermined, would not a void be thus created in our
constitutional system which may in the long run prove destructive of the entire
framework? To ask these questions is to answer them. Natura vacuum
abhorret, so must we avoid exhaustion in our constitutional system. Upon
principle, reason, and authority, we are clearly of the opinion that upon the
admitted facts of the present case, this court has jurisdiction over the Electoral
Commission and the subject matter of the present controversy for the purpose
of determining the character, scope and extent of the constitutional grant to the
Electoral Commission as "the sole judge of all contests relating to the election,
returns and qualifications of the members of the National Assembly." .

As the Chief Justice has made it clear in Gonzales, like Justice Laurel did in Angara, these
postulates just quoted do not apply only to conflicts of authority between the three existing
regular departments of the government but to all such conflicts between and among these
departments, or, between any of them, on the one hand, and any other constitutionally created
independent body, like the electoral tribunals in Congress, the Comelec and the Constituent
assemblies constituted by the House of Congress, on the other. We see no reason of logic or
principle whatsoever, and none has been convincingly shown to Us by any of the respondents
and intervenors, why the same ruling should not apply to the present Convention, even if it is
an assembly of delegate elected directly by the people, since at best, as already
demonstrated, it has been convened by authority of and under the terms of the present
Constitution..

Accordingly, We are left with no alternative but to uphold the jurisdiction of the Court over the
present case. It goes without saying that We do this not because the Court is superior to the
Convention or that the Convention is subject to the control of the Court, but simply because
both the Convention and the Court are subject to the Constitution and the rule of law, and
"upon principle, reason and authority," per Justice Laurel, supra, it is within the power as it is
the solemn duty of the Court, under the existing Constitution to resolve the issues in which
petitioner, respondents and intervenors have joined in this case.

II

The issue of jurisdiction thus resolved, We come to the crux of the petition. Is it within the
powers of the Constitutional Convention of 1971 to order, on its own fiat, the holding of a
plebiscite for the ratification of the proposed amendment reducing to eighteen years the age
for the exercise of suffrage under Section 1 of Article V of the Constitution proposed in the
Convention's Organic Resolution No. 1 in the manner and form provided for in said resolution
and the subsequent implementing acts and resolution of the Convention?
At the threshold, the environmental circumstances of this case demand the most accurate and
unequivocal statement of the real issue which the Court is called upon to resolve. Petitioner
has very clearly stated that he is not against the constitutional extension of the right of suffrage
to the eighteen-year-olds, as a matter of fact, he has advocated or sponsored in Congress
such a proposal, and that, in truth, the herein petition is not intended by him to prevent that
the proposed amendment here involved be submitted to the people for ratification, his only
purpose in filing the petition being to comply with his sworn duty to prevent, Whenever he can,
any violation of the Constitution of the Philippines even if it is committed in the course of or in
connection with the most laudable undertaking. Indeed, as the Court sees it, the specific
question raised in this case is limited solely and only to the point of whether or not it is within
the power of the Convention to call for a plebiscite for the ratification by the people of the
constitutional amendment proposed in the abovequoted Organic Resolution No. 1, in the
manner and form provided in said resolution as well as in the subject question implementing
actions and resolution of the Convention and its officers, at this juncture of its proceedings,
when as it is a matter of common knowledge and judicial notice, it is not set to adjourn sine
die, and is, in fact, still in the preliminary stages of considering other reforms or amendments
affecting other parts of the existing Constitution; and, indeed, Organic Resolution No. 1 itself
expressly provides, that the amendment therein proposed "shall be without prejudice to other
amendments that will be proposed in the future by the 1971 Constitutional Convention on
other portions of the amended section or on other portions of the entire Constitution." In other
words, nothing that the Court may say or do, in this case should be understood as reflecting,
in any degree or means the individual or collective stand of the members of the Court on the
fundamental issue of whether or not the eighteen-year-olds should be allowed to vote, simply
because that issue is not before Us now. There should be no doubt in the mind of anyone that,
once the Court finds it constitutionally permissible, it will not hesitate to do its part so that the
said proposed amendment may be presented to the people for their approval or rejection.

Withal, the Court rests securely in the conviction that the fire and enthusiasm of the youth
have not blinded them to the absolute necessity, under the fundamental principles of
democracy to which the Filipino people is committed, of adhering always to the rule of law.
Surely, their idealism, sincerity and purity of purpose cannot permit any other line of conduct
or approach in respect of the problem before Us. The Constitutional Convention of 1971 itself
was born, in a great measure, because of the pressure brought to bear upon the Congress of
the Philippines by various elements of the people, the youth in particular, in their incessant
search for a peaceful and orderly means of bringing about meaningful changes in the structure
and bases of the existing social and governmental institutions, including the provisions of the
fundamental law related to the well-being and economic security of the underprivileged
classes of our people as well as those concerning the preservation and protection of our
natural resources and the national patrimony, as an alternative to violent and chaotic ways of
achieving such lofty ideals. In brief, leaving aside the excesses of enthusiasm which at times
have justifiably or unjustifiably marred the demonstrations in the streets, plazas and
campuses, the youth of the Philippines, in general, like the rest of the people, do not want
confusion and disorder, anarchy and violence; what they really want are law and order, peace
and orderliness, even in the pursuit of what they strongly and urgently feel must be done to
change the present order of things in this Republic of ours. It would be tragic and contrary to
the plain compulsion of these perspectives, if the Court were to allow itself in deciding this
case to be carried astray by considerations other than the imperatives of the rule of law and
of the applicable provisions of the Constitution. Needless to say, in a larger measure than
when it binds other departments of the government or any other official or entity, the
Constitution imposes upon the Court the sacred duty to give meaning and vigor to the
Constitution, by interpreting and construing its provisions in appropriate cases with the proper
parties, and by striking down any act violative thereof. Here, as in all other cases, We are
resolved to discharge that duty.
During these twice when most anyone feels very strongly the urgent need for constitutional
reforms, to the point of being convinced that meaningful change is the only alternative to a
violent revolution, this Court would be the last to put any obstruction or impediment to the work
of the Constitutional Convention. If there are respectable sectors opining that it has not been
called to supplant the existing Constitution in its entirety, since its enabling provision, Article
XV, from which the Convention itself draws life expressly speaks only of amendments which
shall form part of it, which opinion is not without persuasive force both in principle and in logic,
the seemingly prevailing view is that only the collective judgment of its members as to what is
warranted by the present condition of things, as they see it, can limit the extent of the
constitutional innovations the Convention may propose, hence the complete substitution of
the existing constitution is not beyond the ambit of the Convention's authority. Desirable as it
may be to resolve, this grave divergence of views, the Court does not consider this case to be
properly the one in which it should discharge its constitutional duty in such premises. The
issues raised by petitioner, even those among them in which respondents and intervenors
have joined in an apparent wish to have them squarely passed upon by the Court do not
necessarily impose upon Us the imperative obligation to express Our views thereon. The Court
considers it to be of the utmost importance that the Convention should be untrammelled and
unrestrained in the performance of its constitutionally as signed mission in the manner and
form it may conceive best, and so the Court may step in to clear up doubts as to the boundaries
set down by the Constitution only when and to the specific extent only that it would be
necessary to do so to avoid a constitutional crisis or a clearly demonstrable violation of the
existing Charter. Withal, it is a very familiar principle of constitutional law that constitutional
questions are to be resolved by the Supreme Court only when there is no alternative but to do
it, and this rule is founded precisely on the principle of respect that the Court must accord to
the acts of the other coordinate departments of the government, and certainly, the
Constitutional Convention stands almost in a unique footing in that regard.

In our discussion of the issue of jurisdiction, We have already made it clear that the Convention
came into being by a call of a joint session of Congress pursuant to Section I of Article XV of
the Constitution, already quoted earlier in this opinion. We reiterate also that as to matters not
related to its internal operation and the performance of its assigned mission to propose
amendments to the Constitution, the Convention and its officers and members are all subject
to all the provisions of the existing Constitution. Now We hold that even as to its latter task of
proposing amendments to the Constitution, it is subject to the provisions of Section I of Article
XV. This must be so, because it is plain to Us that the framers of the Constitution took care
that the process of amending the same should not be undertaken with the same ease and
facility in changing an ordinary legislation. Constitution making is the most valued power,
second to none, of the people in a constitutional democracy such as the one our founding
fathers have chosen for this nation, and which we of the succeeding generations generally
cherish. And because the Constitution affects the lives, fortunes, future and every other
conceivable aspect of the lives of all the people within the country and those subject to its
sovereignty, every degree of care is taken in preparing and drafting it. A constitution worthy of
the people for which it is intended must not be prepared in haste without adequate deliberation
and study. It is obvious that correspondingly, any amendment of the Constitution is of no less
importance than the whole Constitution itself, and perforce must be conceived and prepared
with as much care and deliberation. From the very nature of things, the drafters of an original
constitution, as already observed earlier, operate without any limitations, restraints or
inhibitions save those that they may impose upon themselves. This is not necessarily true of
subsequent conventions called to amend the original constitution. Generally, the framers of
the latter see to it that their handiwork is not lightly treated and as easily mutilated or changed,
not only for reasons purely personal but more importantly, because written constitutions are
supposed to be designed so as to last for some time, if not for ages, or for, at least, as long
as they can be adopted to the needs and exigencies of the people, hence, they must be
insulated against precipitate and hasty actions motivated by more or less passing political
moods or fancies. Thus, as a rule, the original constitutions carry with them limitations and
conditions, more or less stringent, made so by the people themselves, in regard to the process
of their amendment. And when such limitations or conditions are so incorporated in the original
constitution, it does not lie in the delegates of any subsequent convention to claim that they
may ignore and disregard such conditions because they are as powerful and omnipotent as
their original counterparts.

Nothing of what is here said is to be understood as curtailing in any degree the number and
nature and the scope and extent of the amendments the Convention may deem proper to
propose. Nor does the Court propose to pass on the issue extensively and brilliantly discussed
by the parties as to whether or not the power or duty to call a plebiscite for the ratification of
the amendments to be proposed by the Convention is exclusively legislative and as such may
be exercised only by the Congress or whether the said power can be exercised concurrently
by the Convention with the Congress. In the view the Court takes of present case, it does not
perceive absolute necessity to resolve that question, grave and important as it may be. Truth
to tell, the lack of unanimity or even of a consensus among the members of the Court in respect
to this issue creates the need for more study and deliberation, and as time is of the essence
in this case, for obvious reasons, November 8, 1971, the date set by the Convention for the
plebiscite it is calling, being nigh, We will refrain from making any pronouncement or
expressing Our views on this question until a more appropriate case comes to Us. After all,
the basis of this decision is as important and decisive as any can be.

The ultimate question, therefore boils down to this: Is there any limitation or condition in
Section 1 of Article XV of the Constitution which is violated by the act of the Convention of
calling for a plebiscite on the sole amendment contained in Organic Resolution No. 1? The
Court holds that there is, and it is the condition and limitation that all the amendments to be
proposed by the same Convention must be submitted to the people in a single "election" or
plebiscite. It being indisputable that the amendment now proposed to be submitted to a
plebiscite is only the first amendment the Convention propose We hold that the plebiscite
being called for the purpose of submitting the same for ratification of the people on November
8, 1971 is not authorized by Section 1 of Article XV of the Constitution, hence all acts of the
Convention and the respondent Comelec in that direction are null and void.

We have arrived at this conclusion for the following reasons:

1. The language of the constitutional provision aforequoted is sufficiently clear. lt says distinctly
that either Congress sitting as a constituent assembly or a convention called for the purpose
"may propose amendments to this Constitution," thus placing no limit as to the number of
amendments that Congress or the Convention may propose. The same provision also as
definitely provides that "such amendments shall be valid as part of this Constitution when
approved by a majority of the votes cast at an election at which the amendments are
submitted to the people for their ratification," thus leaving no room for doubt as to how many
"elections" or plebiscites may be held to ratify any amendment or amendments proposed by
the same constituent assembly of Congress or convention, and the provision unequivocably
says "an election" which means only one.

(2) Very little reflection is needed for anyone to realize the wisdom and appropriateness of this
provision. As already stated, amending the Constitution is as serious and important an
undertaking as constitution making itself. Indeed, any amendment of the Constitution is as
important as the whole of it if only because the Constitution has to be an integrated and
harmonious instrument, if it is to be viable as the framework of the government it establishes,
on the one hand, and adequately formidable and reliable as the succinct but comprehensive
articulation of the rights, liberties, ideology, social ideals, and national and nationalistic policies
and aspirations of the people, on the other. lt is inconceivable how a constitution worthy of any
country or people can have any part which is out of tune with its other parts..
A constitution is the work of the people thru its drafters assembled by them for the purpose.
Once the original constitution is approved, the part that the people play in its amendment
becomes harder, for when a whole constitution is submitted to them, more or less they can
assumed its harmony as an integrated whole, and they can either accept or reject it in its
entirety. At the very least, they can examine it before casting their vote and determine for
themselves from a study of the whole document the merits and demerits of all or any of its
parts and of the document as a whole. And so also, when an amendment is submitted to them
that is to form part of the existing constitution, in like fashion they can study with deliberation
the proposed amendment in relation to the whole existing constitution and or any of its parts
and thereby arrive at an intelligent judgment as to its acceptability.

This cannot happen in the case of the amendment in question. Prescinding already from the
fact that under Section 3 of the questioned resolution, it is evident that no fixed frame of
reference is provided the voter, as to what finally will be concomitant qualifications that will be
required by the final draft of the constitution to be formulated by the Convention of a voter to
be able to enjoy the right of suffrage, there are other considerations which make it impossible
to vote intelligently on the proposed amendment, although it may already be observed that
under Section 3, if a voter would favor the reduction of the voting age to eighteen under
conditions he feels are needed under the circumstances, and he does not see those conditions
in the ballot nor is there any possible indication whether they will ever be or not, because
Congress has reserved those for future action, what kind of judgment can he render on the
proposal?

But the situation actually before Us is even worse. No one knows what changes in the
fundamental principles of the constitution the Convention will be minded to approve. To be
more specific, we do not have any means of foreseeing whether the right to vote would be of
any significant value at all. Who can say whether or not later on the Convention may decide
to provide for varying types of voters for each level of the political units it may divide the country
into. The root of the difficulty in other words, lies in that the Convention is precisely on the
verge of introducing substantial changes, if not radical ones, in almost every part and aspect
of the existing social and political order enshrined in the present Constitution. How can a voter
in the proposed plebiscite intelligently determine the effect of the reduction of the voting age
upon the different institutions which the Convention may establish and of which presently he
is not given any idea?

We are certain no one can deny that in order that a plebiscite for the ratification of an
amendment to the Constitution may be validly held, it must provide the voter not only sufficient
time but ample basis for an intelligent appraisal of the nature of the amendment per se as well
as its relation to the other parts of the Constitution with which it has to form a harmonious
whole. In the context of the present state of things, where the Convention has hardly started
considering the merits of hundreds, if not thousands, of proposals to amend the existing
Constitution, to present to the people any single proposal or a few of them cannot comply with
this requirement. We are of the opinion that the present Constitution does not contemplate in
Section 1 of Article XV a plebiscite or "election" wherein the people are in the dark as to frame
of reference they can base their judgment on. We reject the rationalization that the present
Constitution is a possible frame of reference, for the simple reason that intervenors themselves
are stating that the sole purpose of the proposed amendment is to enable the eighteen year
olds to take part in the election for the ratification of the Constitution to be drafted by the
Convention. In brief, under the proposed plebiscite, there can be, in the language of Justice
Sanchez, speaking for the six members of the Court in Gonzales, supra, "no proper
submission".

III
The Court has no desire at all to hamper and hamstring the noble work of the Constitutional
Convention. Much less does the Court want to pass judgment on the merits of the proposal to
allow these eighteen years old to vote. But like the Convention, the Court has its own duties
to the people under the Constitution which is to decide in appropriate cases with appropriate
parties Whether or not the mandates of the fundamental law are being complied with. In the
best light God has given Us, we are of the conviction that in providing for the questioned
plebiscite before it has finished, and separately from, the whole draft of the constitution it has
been called to formulate, the Convention's Organic Resolution No. 1 and all subsequent acts
of the Convention implementing the same violate the condition in Section 1, Article XV that
there should only be one "election" or plebiscite for the ratification of all the amendments the
Convention may propose. We are not denying any right of the people to vote on the proposed
amendment; We are only holding that under Section 1, Article XV of the Constitution, the same
should be submitted to them not separately from but together with all the other amendments
to be proposed by this present Convention.

IN VIEW OF ALL THE FOREGOING, the petition herein is granted. Organic Resolution No. 1
of the Constitutional Convention of 1971 and the implementing acts and resolutions of the
Convention, insofar as they provide for the holding of a plebiscite on November 8, 1971, as
well as the resolution of the respondent Comelec complying therewith (RR Resolution No.
695) are hereby declared null and void. The respondents Comelec, Disbursing Officer, Chief
Accountant and Auditor of the Constitutional Convention are hereby enjoined from taking any
action in compliance with the said organic resolution. In view of the peculiar circumstances of
this case, the Court declares this decision immediately executory. No costs.

Concepcion, C.J., Teehankee, Villamor and Makasiar, JJ., concur.

• Sanidad v. COMELEC, G.R. No. L-44640, October 12, 1976

[printed in STATCON]
 • Province of Cotabato v. The Gov’t of the RP Peace Panel on Ancestral
Domain, G.R. No. 183591, October 14, 2008

G.R. No. 183591 October 14, 2008

THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS

SACDALAN and/or VICE-GOVERNOR EMMANUEL PIÑOL, for and in his own
behalf, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON
ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH
ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN and/or GEN.
HERMOGENES ESPERON, JR., the latter in his capacity as the present and duly-
appointed Presidential Adviser on the Peace Process (OPAPP) or the so-called Office
of the Presidential Adviser on the Peace Process, respondents.

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

G.R. No. 183752 October 14, 2008

CITY GOVERNMENT OF ZAMBOANGA, as represented by HON. CELSO L. LOBREGAT,

City Mayor of Zamboanga, and in his personal capacity as resident of the City of
Zamboanga, Rep. MA. ISABELLE G. CLIMACO, District 1, and Rep. ERICO BASILIO A.
FABIAN, District 2, City of Zamboanga, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING
PANEL (GRP), as represented by RODOLFO C. GARCIA, LEAH ARMAMENTO,
SEDFREY CANDELARIA, MARK RYAN SULLIVAN and HERMOGENES ESPERON, in his
capacity as the Presidential Adviser on Peace Process, respondents.

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

G.R. No. 183893 October 14, 2008

THE CITY OF ILIGAN, duly represented by CITY MAYOR LAWRENCE LLUCH

CRUZ, petitioner,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON
ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH
ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN; GEN.
HERMOGENES ESPERON, JR., in his capacity as the present and duly appointed
Presidential Adviser on the Peace Process; and/or SEC. EDUARDO ERMITA, in his
capacity as Executive Secretary. respondents.

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

G.R. No. 183951 October 14, 2008

THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as represented by

HON. ROLANDO E. YEBES, in his capacity as Provincial Governor, HON. FRANCIS H.
OLVIS, in his capacity as Vice-Governor and Presiding Officer of the Sangguniang
Panlalawigan, HON. CECILIA JALOSJOS CARREON, Congresswoman,
1st Congressional District, HON. CESAR G. JALOSJOS, Congressman,
3rd Congressional District, and Members of the Sangguniang Panlalawigan of the
Province of Zamboanga del Norte, namely, HON. SETH FREDERICK P. JALOSJOS,
HON. FERNANDO R. CABIGON, JR., HON. ULDARICO M. MEJORADA II, HON. EDIONAR
M. ZAMORAS, HON. EDGAR J. BAGUIO, HON. CEDRIC L. ADRIATICO, HON.
FELIXBERTO C. BOLANDO, HON. JOSEPH BRENDO C. AJERO, HON. NORBIDEIRI B.
EDDING, HON. ANECITO S. DARUNDAY, HON. ANGELICA J. CARREON and HON.
LUZVIMINDA E. TORRINO, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING
PANEL [GRP], as represented by HON. RODOLFO C. GARCIA and HON. HERMOGENES
ESPERON, in his capacity as the Presidential Adviser of Peace Process, respondents.

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

G.R. No. 183962 October 14, 2008

ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L. PIMENTEL III, petitioners,

vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING
PANEL, represented by its Chairman RODOLFO C. GARCIA, and the MORO ISLAMIC
LIBERATION FRONT PEACE NEGOTIATING PANEL, represented by its Chairman
MOHAGHER IQBAL, respondents.

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

FRANKLIN M. DRILON and ADEL ABBAS TAMANO, petitioners-in-intervention.

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

SEN. MANUEL A. ROXAS, petitioners-in-intervention.

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

MUNICIPALITY OF LINAMON duly represented by its Municipal Mayor NOEL N.

DEANO, petitioners-in-intervention,

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

THE CITY OF ISABELA, BASILAN PROVINCE, represented by MAYOR CHERRYLYN P.

SANTOS-AKBAR, petitioners-in-intervention.

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

THE PROVINCE OF SULTAN KUDARAT, rep. by HON. SUHARTO T. MANGUDADATU,

in his capacity as Provincial Governor and a resident of the Province of Sultan
Kudarat, petitioner-in-intervention.

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

RUY ELIAS LOPEZ, for and in his own behalf and on behalf of Indigenous Peoples in
Mindanao Not Belonging to the MILF, petitioner-in-intervention.
x--------------------------------------------x

CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT, JOSELITO C. ALISUAG

and RICHALEX G. JAGMIS, as citizens and residents of Palawan, petitioners-in-
intervention.

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

MARINO RIDAO and KISIN BUXANI, petitioners-in-intervention.

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

MUSLIM LEGAL ASSISTANCE FOUNDATION, INC (MUSLAF), respondent-in-intervention.

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

MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & DEVELOPMENT

(MMMPD), respondent-in-intervention.

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

DECISION

CARPIO MORALES, J.:

Subject of these consolidated cases is the extent of the powers of the President in pursuing
the peace process. While the facts surrounding this controversy center on the armed conflict
in Mindanao between the government and the Moro Islamic Liberation Front (MILF), the legal
issue involved has a bearing on all areas in the country where there has been a long-standing
armed conflict. Yet again, the Court is tasked to perform a delicate balancing act. It must
uncompromisingly delineate the bounds within which the President may lawfully exercise her
discretion, but it must do so in strict adherence to the Constitution, lest its ruling unduly restricts
the freedom of action vested by that same Constitution in the Chief Executive precisely to
enable her to pursue the peace process effectively.

I. FACTUAL ANTECEDENTS OF THE PETITIONS

On August 5, 2008, the Government of the Republic of the Philippines (GRP) and the MILF,
through the Chairpersons of their respective peace negotiating panels, were scheduled to sign
a Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect of the GRP-MILF
Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.

The MILF is a rebel group which was established in March 1984 when, under the leadership
of the late Salamat Hashim, it splintered from the Moro National Liberation Front (MNLF) then
headed by Nur Misuari, on the ground, among others, of what Salamat perceived to be the
manipulation of the MNLF away from an Islamic basis towards Marxist-Maoist orientations.1

The signing of the MOA-AD between the GRP and the MILF was not to materialize, however,
for upon motion of petitioners, specifically those who filed their cases before the scheduled
signing of the MOA-AD, this Court issued a Temporary Restraining Order enjoining the GRP
from signing the same.
The MOA-AD was preceded by a long process of negotiation and the concluding of several
prior agreements between the two parties beginning in 1996, when the GRP-MILF peace
negotiations began. On July 18, 1997, the GRP and MILF Peace Panels signed the Agreement
on General Cessation of Hostilities. The following year, they signed the General Framework
of Agreement of Intent on August 27, 1998.

The Solicitor General, who represents respondents, summarizes the MOA-AD by stating that
the same contained, among others, the commitment of the parties to pursue peace
negotiations, protect and respect human rights, negotiate with sincerity in the resolution and
pacific settlement of the conflict, and refrain from the use of threat or force to attain undue
advantage while the peace negotiations on the substantive agenda are on-going.2

Early on, however, it was evident that there was not going to be any smooth sailing in the
GRP-MILF peace process. Towards the end of 1999 up to early 2000, the MILF attacked a
number of municipalities in Central Mindanao and, in March 2000, it took control of the town
hall of Kauswagan, Lanao del Norte.3 In response, then President Joseph Estrada declared
and carried out an "all-out-war" against the MILF.

When President Gloria Macapagal-Arroyo assumed office, the military offensive against the
MILF was suspended and the government sought a resumption of the peace talks. The MILF,
according to a leading MILF member, initially responded with deep reservation, but when
President Arroyo asked the Government of Malaysia through Prime Minister Mahathir
Mohammad to help convince the MILF to return to the negotiating table, the MILF convened
its Central Committee to seriously discuss the matter and, eventually, decided to meet with
the GRP.4

The parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitated by the
Malaysian government, the parties signing on the same date the Agreement on the General
Framework for the Resumption of Peace Talks Between the GRP and the MILF. The MILF
thereafter suspended all its military actions.5

Formal peace talks between the parties were held in Tripoli, Libya from June 20-22, 2001, the
outcome of which was the GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement 2001)
containing the basic principles and agenda on the following aspects of the
negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral Domain Aspect. With
regard to the Ancestral Domain Aspect, the parties in Tripoli Agreement 2001 simply agreed
"that the same be discussed further by the Parties in their next meeting."

A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7, 2001 which
ended with the signing of the Implementing Guidelines on the Security Aspect of the Tripoli
Agreement 2001 leading to a ceasefire status between the parties. This was followed by the
Implementing Guidelines on the Humanitarian Rehabilitation and Development Aspects of the
Tripoli Agreement 2001, which was signed on May 7, 2002 at Putrajaya, Malaysia.
Nonetheless, there were many incidence of violence between government forces and the
MILF from 2002 to 2003.

Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and he was
replaced by Al Haj Murad, who was then the chief peace negotiator of the MILF. Murad's
position as chief peace negotiator was taken over by Mohagher Iqbal.6

In 2005, several exploratory talks were held between the parties in Kuala Lumpur, eventually
leading to the crafting of the draft MOA-AD in its final form, which, as mentioned, was set to
be signed last August 5, 2008.
II. STATEMENT OF THE PROCEEDINGS

Before the Court is what is perhaps the most contentious "consensus" ever embodied in an
instrument - the MOA-AD which is assailed principally by the present petitions bearing docket
numbers 183591, 183752, 183893, 183951 and 183962.

Commonly impleaded as respondents are the GRP Peace Panel on Ancestral Domain7 and
the Presidential Adviser on the Peace Process (PAPP) Hermogenes Esperon, Jr.

On July 23, 2008, the Province of North Cotabato8 and Vice-Governor Emmanuel Piñol filed
a petition, docketed as G.R. No. 183591, for Mandamus and Prohibition with Prayer for the
Issuance of Writ of Preliminary Injunction and Temporary Restraining Order.9 Invoking the
right to information on matters of public concern, petitioners seek to compel respondents to
disclose and furnish them the complete and official copies of the MOA-AD including its
attachments, and to prohibit the slated signing of the MOA-AD, pending the disclosure of the
contents of the MOA-AD and the holding of a public consultation thereon. Supplementarily,
petitioners pray that the MOA-AD be declared unconstitutional.10

This initial petition was followed by another one, docketed as G.R. No. 183752, also for
Mandamus and Prohibition11 filed by the City of Zamboanga,12 Mayor Celso Lobregat, Rep.
Ma. Isabelle Climaco and Rep. Erico Basilio Fabian who likewise pray for similar injunctive
reliefs. Petitioners herein moreover pray that the City of Zamboanga be excluded from the
Bangsamoro Homeland and/or Bangsamoro Juridical Entity and, in the alternative, that the
MOA-AD be declared null and void.

By Resolution of August 4, 2008, the Court issued a Temporary Restraining

Order commanding and directing public respondents and their agents to cease and desist
from formally signing the MOA-AD.13 The Court also required the Solicitor General to submit
to the Court and petitioners the official copy of the final draft of the MOA-AD,14 to which she
complied.15

Meanwhile, the City of Iligan16 filed a petition for Injunction and/or Declaratory Relief, docketed
as G.R. No. 183893, praying that respondents be enjoined from signing the MOA-AD or, if the
same had already been signed, from implementing the same, and that the MOA-AD be
declared unconstitutional. Petitioners herein additionally implead Executive Secretary
Eduardo Ermita as respondent.

The Province of Zamboanga del Norte,17 Governor Rolando Yebes, Vice-Governor Francis
Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the members18 of the
Sangguniang Panlalawigan of Zamboanga del Norte filed on August 15, 2008 a petition for
Certiorari, Mandamus and Prohibition,19 docketed as G.R. No. 183951. They pray, inter alia,
that the MOA-AD be declared null and void and without operative effect, and that respondents
be enjoined from executing the MOA-AD.

On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a petition
for Prohibition,20 docketed as G.R. No. 183962, praying for a judgment prohibiting and
permanently enjoining respondents from formally signing and executing the MOA-AD and or
any other agreement derived therefrom or similar thereto, and nullifying the MOA-AD for being
unconstitutional and illegal. Petitioners herein additionally implead as respondent the MILF
Peace Negotiating Panel represented by its Chairman Mohagher Iqbal.

Various parties moved to intervene and were granted leave of court to file their petitions-
/comments-in-intervention. Petitioners-in-Intervention include Senator Manuel A. Roxas,
former Senate President Franklin Drilon and Atty. Adel Tamano, the City of Isabela21 and
Mayor Cherrylyn Santos-Akbar, the Province of Sultan Kudarat22 and Gov. Suharto
Mangudadatu, the Municipality of Linamon in Lanao del Norte,23 Ruy Elias Lopez of Davao
City and of the Bagobo tribe, Sangguniang Panlungsod member Marino Ridao and
businessman Kisin Buxani, both of Cotabato City; and lawyers Carlo Gomez, Gerardo Dilig,
Nesario Awat, Joselito Alisuag, Richalex Jagmis, all of Palawan City. The Muslim Legal
Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral Movement for Peace and
Development (MMMPD) filed their respective Comments-in-Intervention.

By subsequent Resolutions, the Court ordered the consolidation of the petitions. Respondents
filed Comments on the petitions, while some of petitioners submitted their respective Replies.

Respondents, by Manifestation and Motion of August 19, 2008, stated that the Executive
Department shall thoroughly review the MOA-AD and pursue further negotiations to address
the issues hurled against it, and thus moved to dismiss the cases. In the succeeding exchange
of pleadings, respondents' motion was met with vigorous opposition from petitioners.

The cases were heard on oral argument on August 15, 22 and 29, 2008 that tackled the
following principal issues:

1. Whether the petitions have become moot and academic

(i) insofar as the mandamus aspect is concerned, in view of the disclosure of

official copies of the final draft of the Memorandum of Agreement (MOA); and

(ii) insofar as the prohibition aspect involving the Local Government Units is
concerned, if it is considered that consultation has become fait accompli with
the finalization of the draft;

2. Whether the constitutionality and the legality of the MOA is ripe for adjudication;

3. Whether respondent Government of the Republic of the Philippines Peace Panel

committed grave abuse of discretion amounting to lack or excess of jurisdiction when
it negotiated and initiated the MOA vis-à-vis ISSUES Nos. 4 and 5;

4. Whether there is a violation of the people's right to information on matters of public

concern (1987 Constitution, Article III, Sec. 7) under a state policy of full disclosure of
all its transactions involving public interest (1987 Constitution, Article II, Sec. 28)
including public consultation under Republic Act No. 7160 (LOCAL GOVERNMENT
CODE OF 1991)[;]

If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of Civil
Procedure is an appropriate remedy;

5. Whether by signing the MOA, the Government of the Republic of the Philippines
would be BINDING itself

a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate

state, or a juridical, territorial or political subdivision not recognized by law;

b) to revise or amend the Constitution and existing laws to conform to the MOA;

c) to concede to or recognize the claim of the Moro Islamic Liberation Front for
ancestral domain in violation of Republic Act No. 8371 (THE INDIGENOUS
 PEOPLES RIGHTS ACT OF 1997), particularly Section 3(g) & Chapter VII
(DELINEATION, RECOGNITION OF ANCESTRAL DOMAINS)[;]

If in the affirmative, whether the Executive Branch has the authority to so bind the
Government of the Republic of the Philippines;

6. Whether the inclusion/exclusion of the Province of North Cotabato, Cities of

Zamboanga, Iligan and Isabela, and the Municipality of Linamon, Lanao del Norte
in/from the areas covered by the projected Bangsamoro Homeland is a justiciable
question; and

7. Whether desistance from signing the MOA derogates any prior valid commitments
of the Government of the Republic of the Philippines.24

The Court, thereafter, ordered the parties to submit their respective Memoranda. Most of the
parties submitted their memoranda on time.

III. OVERVIEW OF THE MOA-AD

As a necessary backdrop to the consideration of the objections raised in the subject five
petitions and six petitions-in-intervention against the MOA-AD, as well as the two comments-
in-intervention in favor of the MOA-AD, the Court takes an overview of the MOA.

The MOA-AD identifies the Parties to it as the GRP and the MILF.

Under the heading "Terms of Reference" (TOR), the MOA-AD includes not only four earlier
agreements between the GRP and MILF, but also two agreements between the GRP and the
MNLF: the 1976 Tripoli Agreement, and the Final Peace Agreement on the Implementation of
the 1976 Tripoli Agreement, signed on September 2, 1996 during the administration of
President Fidel Ramos.

The MOA-AD also identifies as TOR two local statutes - the organic act for the Autonomous
Region in Muslim Mindanao (ARMM)25 and the Indigenous Peoples Rights Act (IPRA),26 and
several international law instruments - the ILO Convention No. 169 Concerning Indigenous
and Tribal Peoples in Independent Countries in relation to the UN Declaration on the Rights
of the Indigenous Peoples, and the UN Charter, among others.

The MOA-AD includes as a final TOR the generic category of "compact rights entrenchment
emanating from the regime of dar-ul-mua'hada (or territory under compact) and dar-ul-sulh (or
territory under peace agreement) that partakes the nature of a treaty device."

During the height of the Muslim Empire, early Muslim jurists tended to see the world through
a simple dichotomy: there was the dar-ul-Islam (the Abode of Islam) and dar-ul-harb (the
Abode of War). The first referred to those lands where Islamic laws held sway, while the
second denoted those lands where Muslims were persecuted or where Muslim laws were
outlawed or ineffective.27 This way of viewing the world, however, became more complex
through the centuries as the Islamic world became part of the international community of
nations.

As Muslim States entered into treaties with their neighbors, even with distant States and inter-
governmental organizations, the classical division of the world into dar-ul-Islam and dar-ul-
harb eventually lost its meaning. New terms were drawn up to describe novel ways of
perceiving non-Muslim territories. For instance, areas like dar-ul-mua'hada (land of compact)
and dar-ul-sulh (land of treaty) referred to countries which, though under a secular regime,
maintained peaceful and cooperative relations with Muslim States, having been bound to each
other by treaty or agreement. Dar-ul-aman (land of order), on the other hand, referred to
countries which, though not bound by treaty with Muslim States, maintained freedom of
religion for Muslims.28

It thus appears that the "compact rights entrenchment" emanating from the regime of dar-ul-
mua'hada and dar-ul-sulh simply refers to all other agreements between the MILF and the
Philippine government - the Philippines being the land of compact and peace agreement - that
partake of the nature of a treaty device, "treaty" being broadly defined as "any solemn
agreement in writing that sets out understandings, obligations, and benefits for both parties
which provides for a framework that elaborates the principles declared in the [MOA-AD]."29

The MOA-AD states that the Parties "HAVE AGREED AND ACKNOWLEDGED AS
FOLLOWS," and starts with its main body.

The main body of the MOA-AD is divided into four strands, namely, Concepts and
Principles, Territory, Resources, and Governance.

A. CONCEPTS AND PRINCIPLES

This strand begins with the statement that it is "the birthright of all Moros and all Indigenous
peoples of Mindanao to identify themselves and be accepted as ‘Bangsamoros.'" It defines
"Bangsamoro people" as the natives or original inhabitants of Mindanao and its adjacent
islands including Palawan and the Sulu archipelago at the time of conquest or
colonization, and their descendants whether mixed or of full blood, including their spouses.30

Thus, the concept of "Bangsamoro," as defined in this strand of the MOA-AD, includes not
only "Moros" as traditionally understood even by Muslims,31 but all indigenous peoples of
Mindanao and its adjacent islands. The MOA-AD adds that the freedom of choice of
indigenous peoples shall be respected. What this freedom of choice consists in has not been
specifically defined.

The MOA-AD proceeds to refer to the "Bangsamoro homeland," the ownership of which is
vested exclusively in the Bangsamoro people by virtue of their prior rights of
occupation.32 Both parties to the MOA-AD acknowledge that ancestral domain does not form
part of the public domain.33

The Bangsamoro people are acknowledged as having the right to self-governance, which right
is said to be rooted on ancestral territoriality exercised originally under the suzerain authority
of their sultanates and the Pat a Pangampong ku Ranaw. The sultanates were described as
states or "karajaan/kadatuan" resembling a body politic endowed with all the elements of a
nation-state in the modern sense.34

The MOA-AD thus grounds the right to self-governance of the Bangsamoro people on the past
suzerain authority of the sultanates. As gathered, the territory defined as the Bangsamoro
homeland was ruled by several sultanates and, specifically in the case of the Maranao, by
the Pat a Pangampong ku Ranaw, a confederation of independent principalities
(pangampong) each ruled by datus and sultans, none of whom was supreme over the others.35

The MOA-AD goes on to describe the Bangsamoro people as "the ‘First Nation' with defined
territory and with a system of government having entered into treaties of amity and commerce
with foreign nations."
The term "First Nation" is of Canadian origin referring to the indigenous peoples of that
territory, particularly those known as Indians. In Canada, each of these indigenous peoples is
equally entitled to be called "First Nation," hence, all of them are usually described collectively
by the plural "First Nations."36 To that extent, the MOA-AD, by identifying the Bangsamoro
people as "the First Nation" - suggesting its exclusive entitlement to that designation - departs
from the Canadian usage of the term.

The MOA-AD then mentions for the first time the "Bangsamoro Juridical Entity" (BJE) to
which it grants the authority and jurisdiction over the Ancestral Domain and Ancestral Lands
of the Bangsamoro.37

B. TERRITORY

The territory of the Bangsamoro homeland is described as the land mass as well as the
maritime, terrestrial, fluvial and alluvial domains, including the aerial domain and the
atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region.38

More specifically, the core of the BJE is defined as the present geographic area of the ARMM -
thus constituting the following areas: Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan,
and Marawi City. Significantly, this core also includes certain municipalities of Lanao del Norte
that voted for inclusion in the ARMM in the 2001 plebiscite.39

Outside of this core, the BJE is to cover other provinces, cities, municipalities and barangays,
which are grouped into two categories, Category A and Category B. Each of these areas is to
be subjected to a plebiscite to be held on different dates, years apart from each other. Thus,
Category A areas are to be subjected to a plebiscite not later than twelve (12) months following
the signing of the MOA-AD.40 Category B areas, also called "Special Intervention Areas," on
the other hand, are to be subjected to a plebiscite twenty-five (25) years from the signing of a
separate agreement - the Comprehensive Compact.41

The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all natural
resources within its "internal waters," defined as extending fifteen (15) kilometers from the
coastline of the BJE area;42 that the BJE shall also have "territorial waters," which shall stretch
beyond the BJE internal waters up to the baselines of the Republic of the Philippines (RP)
south east and south west of mainland Mindanao; and that within these territorial waters, the
BJE and the "Central Government" (used interchangeably with RP) shall
exercise joint jurisdiction, authority and management over all natural resources.43 Notably,
the jurisdiction over the internal waters is not similarly described as "joint."

The MOA-AD further provides for the sharing of minerals on the territorial waters between the
Central Government and the BJE, in favor of the latter, through production sharing and
economic cooperation agreement.44 The activities which the Parties are allowed to conduct on
the territorial waters are enumerated, among which are the exploration and utilization of
natural resources, regulation of shipping and fishing activities, and the enforcement of police
and safety measures.45 There is no similar provision on the sharing of minerals and allowed
activities with respect to the internal waters of the BJE.

C. RESOURCES

The MOA-AD states that the BJE is free to enter into any economic cooperation and trade
relations with foreign countries and shall have the option to establish trade missions in those
countries. Such relationships and understandings, however, are not to include aggression
against the GRP. The BJE may also enter into environmental cooperation agreements.46
The external defense of the BJE is to remain the duty and obligation of the Central
Government. The Central Government is also bound to "take necessary steps to ensure the
BJE's participation in international meetings and events" like those of the ASEAN and the
specialized agencies of the UN. The BJE is to be entitled to participate in Philippine official
missions and delegations for the negotiation of border agreements or protocols for
environmental protection and equitable sharing of incomes and revenues involving the bodies
of water adjacent to or between the islands forming part of the ancestral domain.47

With regard to the right of exploring for, producing, and obtaining all potential sources of
energy, petroleum, fossil fuel, mineral oil and natural gas, the jurisdiction and control thereon
is to be vested in the BJE "as the party having control within its territorial jurisdiction." This
right carries the proviso that, "in times of national emergency, when public interest so
requires," the Central Government may, for a fixed period and under reasonable terms as may
be agreed upon by both Parties, assume or direct the operation of such resources.48

The sharing between the Central Government and the BJE of total production pertaining to
natural resources is to be 75:25 in favor of the BJE.49

The MOA-AD provides that legitimate grievances of the Bangsamoro people arising from any
unjust dispossession of their territorial and proprietary rights, customary land tenures, or their
marginalization shall be acknowledged. Whenever restoration is no longer possible, reparation
is to be in such form as mutually determined by the Parties.50

The BJE may modify or cancel the forest concessions, timber licenses, contracts or
agreements, mining concessions, Mineral Production and Sharing Agreements (MPSA),
Industrial Forest Management Agreements (IFMA), and other land tenure instruments granted
by the Philippine Government, including those issued by the present ARMM.51

D. GOVERNANCE

The MOA-AD binds the Parties to invite a multinational third-party to observe and monitor the
implementation of the Comprehensive Compact. This compact is to embody the "details for
the effective enforcement" and "the mechanisms and modalities for the actual implementation"
of the MOA-AD. The MOA-AD explicitly provides that the participation of the third party shall
not in any way affect the status of the relationship between the Central Government and the
BJE.52

The "associative" relationship

between the Central Government
and the BJE

The MOA-AD describes the relationship of the Central Government and the BJE as
"associative," characterized by shared authority and responsibility. And it states that the
structure of governance is to be based on executive, legislative, judicial, and administrative
institutions with defined powers and functions in the Comprehensive Compact.

The MOA-AD provides that its provisions requiring "amendments to the existing legal
framework" shall take effect upon signing of the Comprehensive Compact and upon effecting
the aforesaid amendments, with due regard to the non-derogation of prior agreements and
within the stipulated timeframe to be contained in the Comprehensive Compact. As will be
discussed later, much of the present controversy hangs on the legality of this
provision.
The BJE is granted the power to build, develop and maintain its own institutions inclusive of
civil service, electoral, financial and banking, education, legislation, legal, economic, police
and internal security force, judicial system and correctional institutions, the details of which
shall be discussed in the negotiation of the comprehensive compact.

As stated early on, the MOA-AD was set to be signed on August 5, 2008 by Rodolfo Garcia
and Mohagher Iqbal, Chairpersons of the Peace Negotiating Panels of the GRP and the MILF,
respectively. Notably, the penultimate paragraph of the MOA-AD identifies the signatories as
"the representatives of the Parties," meaning the GRP and MILF themselves, and not merely
of the negotiating panels.53 In addition, the signature page of the MOA-AD states that it is
"WITNESSED BY" Datuk Othman Bin Abd Razak, Special Adviser to the Prime Minister of
Malaysia, "ENDORSED BY" Ambassador Sayed Elmasry, Adviser to Organization of the
Islamic Conference (OIC) Secretary General and Special Envoy for Peace Process in
Southern Philippines, and SIGNED "IN THE PRESENCE OF" Dr. Albert G. Romulo, Secretary
of Foreign Affairs of RP and Dato' Seri Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs,
Malaysia, all of whom were scheduled to sign the Agreement last August 5, 2008.

Annexed to the MOA-AD are two documents containing the respective lists cum maps of the
provinces, municipalities, and barangays under Categories A and B earlier mentioned in the
discussion on the strand on TERRITORY.

IV. PROCEDURAL ISSUES

A. RIPENESS

The power of judicial review is limited to actual cases or controversies.54 Courts decline to
issue advisory opinions or to resolve hypothetical or feigned problems, or mere academic
questions.55 The limitation of the power of judicial review to actual cases and controversies
defines the role assigned to the judiciary in a tripartite allocation of power, to assure that the
courts will not intrude into areas committed to the other branches of government.56

An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal
claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract
difference or dispute. There must be a contrariety of legal rights that can be interpreted and
enforced on the basis of existing law and jurisprudence.57 The Court can decide the
constitutionality of an act or treaty only when a proper case between opposing parties is
submitted for judicial determination.58

Related to the requirement of an actual case or controversy is the requirement of ripeness. A

question is ripe for adjudication when the act being challenged has had a direct adverse effect
on the individual challenging it.59 For a case to be considered ripe for adjudication, it is a
prerequisite that something had then been accomplished or performed by either branch before
a court may come into the picture,60 and the petitioner must allege the existence of an
immediate or threatened injury to itself as a result of the challenged action. 61 He must show
that he has sustained or is immediately in danger of sustaining some direct injury as a result
of the act complained of.62

The Solicitor General argues that there is no justiciable controversy that is ripe for judicial
review in the present petitions, reasoning that

The unsigned MOA-AD is simply a list of consensus points subject to further

negotiations and legislative enactments as well as constitutional processes aimed at
attaining a final peaceful agreement. Simply put, the MOA-AD remains to be a proposal
 that does not automatically create legally demandable rights and obligations until the
list of operative acts required have been duly complied with. x x x

xxxx

In the cases at bar, it is respectfully submitted that this Honorable Court has no
authority to pass upon issues based on hypothetical or feigned constitutional problems
or interests with no concrete bases. Considering the preliminary character of the MOA-
AD, there are no concrete acts that could possibly violate petitioners' and intervenors'
rights since the acts complained of are mere contemplated steps toward the
formulation of a final peace agreement. Plainly, petitioners and intervenors' perceived
injury, if at all, is merely imaginary and illusory apart from being unfounded and based
on mere conjectures. (Underscoring supplied)

The Solicitor General cites63 the following provisions of the MOA-AD:

TERRITORY

xxxx

2. Toward this end, the Parties enter into the following stipulations:

xxxx

d. Without derogating from the requirements of prior agreements, the Government

stipulates to conduct and deliver, using all possible legal measures, within twelve (12)
months following the signing of the MOA-AD, a plebiscite covering the areas as
enumerated in the list and depicted in the map as Category A attached herein (the
"Annex"). The Annex constitutes an integral part of this framework agreement. Toward
this end, the Parties shall endeavor to complete the negotiations and resolve all
outstanding issues on the Comprehensive Compact within fifteen (15) months from the
signing of the MOA-AD.

xxxx

GOVERNANCE

xxxx

7. The Parties agree that mechanisms and modalities for the actual implementation of
this MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such
steps to enable it to occur effectively.

Any provisions of the MOA-AD requiring amendments to the existing legal framework
shall come into force upon the signing of a Comprehensive Compact and upon
effecting the necessary changes to the legal framework with due regard to non-
derogation of prior agreements and within the stipulated timeframe to be contained in
the Comprehensive Compact.64 (Underscoring supplied)

The Solicitor General's arguments fail to persuade.

Concrete acts under the MOA-AD are not necessary to render the present controversy ripe.
In Pimentel, Jr. v. Aguirre,65 this Court held:
 x x x [B]y the mere enactment of the questioned law or the approval of the challenged
action, the dispute is said to have ripened into a judicial controversy even without any
other overt act. Indeed, even a singular violation of the Constitution and/or the law is
enough to awaken judicial duty.

xxxx

By the same token, when an act of the President, who in our constitutional scheme is
a coequal of Congress, is seriously alleged to have infringed the Constitution and the
laws x x x settling the dispute becomes the duty and the responsibility of the courts.66

In Santa Fe Independent School District v. Doe,67 the United States Supreme Court held that
the challenge to the constitutionality of the school's policy allowing student-led prayers and
speeches before games was ripe for adjudication, even if no public prayer had yet been led
under the policy, because the policy was being challenged as unconstitutional on its face.68

That the law or act in question is not yet effective does not negate ripeness. For example,
in New York v. United States,69 decided in 1992, the United States Supreme Court held that
the action by the State of New York challenging the provisions of the Low-Level Radioactive
Waste Policy Act was ripe for adjudication even if the questioned provision was not to take
effect until January 1, 1996, because the parties agreed that New York had to take immediate
action to avoid the provision's consequences.70

The present petitions pray for Certiorari,71 Prohibition, and Mandamus. Certiorari and
Prohibition are remedies granted by law when any tribunal, board or officer has acted, in the
case of certiorari, or is proceeding, in the case of prohibition, without or in excess of its
jurisdiction or with grave abuse of discretion amounting to lack or excess of
jurisdiction.72 Mandamus is a remedy granted by law when any tribunal, corporation, board,
officer or person unlawfully neglects the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from
the use or enjoyment of a right or office to which such other is entitled.73 Certiorari, Mandamus
and Prohibition are appropriate remedies to raise constitutional issues and to review and/or
prohibit/nullify, when proper, acts of legislative and executive officials.74

The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O. No. 3),
issued on February 28, 2001.75 The said executive order requires that "[t]he government's
policy framework for peace, including the systematic approach and the administrative
structure for carrying out the comprehensive peace process x x x be governed by this
Executive Order."76

The present petitions allege that respondents GRP Panel and PAPP Esperon drafted the
terms of the MOA-AD without consulting the local government units or communities affected,
nor informing them of the proceedings. As will be discussed in greater detail later, such
omission, by itself, constitutes a departure by respondents from their mandate under E.O. No.
3.

Furthermore, the petitions allege that the provisions of the MOA-AD violate the Constitution.
The MOA-AD provides that "any provisions of the MOA-AD requiring amendments to the
existing legal framework shall come into force upon the signing of a Comprehensive Compact
and upon effecting the necessary changes to the legal framework," implying an amendment
of the Constitution to accommodate the MOA-AD. This stipulation, in effect, guaranteed to
the MILF the amendment of the Constitution. Such act constitutes another violation of its
authority. Again, these points will be discussed in more detail later.
As the petitions allege acts or omissions on the part of respondent that exceed their
authority, by violating their duties under E.O. No. 3 and the provisions of the Constitution and
statutes, the petitions make a prima facie case for Certiorari, Prohibition, and Mandamus, and
an actual case or controversy ripe for adjudication exists. When an act of a branch of
government is seriously alleged to have infringed the Constitution, it becomes not only
the right but in fact the duty of the judiciary to settle the dispute.77

B. LOCUS STANDI

For a party to have locus standi, one must allege "such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of difficult constitutional questions."78

Because constitutional cases are often public actions in which the relief sought is likely to
affect other persons, a preliminary question frequently arises as to this interest in the
constitutional question raised.79

When suing as a citizen, the person complaining must allege that he has been or is about to
be denied some right or privilege to which he is lawfully entitled or that he is about to be
subjected to some burdens or penalties by reason of the statute or act complained of.80 When
the issue concerns a public right, it is sufficient that the petitioner is a citizen and has an
interest in the execution of the laws.81

For a taxpayer, one is allowed to sue where there is an assertion that public funds are illegally
disbursed or deflected to an illegal purpose, or that there is a wastage of public funds through
the enforcement of an invalid or unconstitutional law.82 The Court retains discretion whether
or not to allow a taxpayer's suit.83

In the case of a legislator or member of Congress, an act of the Executive that injures the
institution of Congress causes a derivative but nonetheless substantial injury that can be
questioned by legislators. A member of the House of Representatives has standing to maintain
inviolate the prerogatives, powers and privileges vested by the Constitution in his office.84

An organization may be granted standing to assert the rights of its members,85 but the mere
invocation by the Integrated Bar of the Philippines or any member of the legal profession of
the duty to preserve the rule of law does not suffice to clothe it with standing.86

As regards a local government unit (LGU), it can seek relief in order to protect or vindicate an
interest of its own, and of the other LGUs.87

Intervenors, meanwhile, may be given legal standing upon showing of facts that satisfy the
requirements of the law authorizing intervention,88 such as a legal interest in the matter in
litigation, or in the success of either of the parties.

In any case, the Court has discretion to relax the procedural technicality on locus standi, given
the liberal attitude it has exercised, highlighted in the case of David v. Macapagal-
Arroyo,89 where technicalities of procedure were brushed aside, the constitutional issues
raised being of paramount public interest or of transcendental importance deserving the
attention of the Court in view of their seriousness, novelty and weight as precedents.90 The
Court's forbearing stance on locus standi on issues involving constitutional issues has for its
purpose the protection of fundamental rights.
In not a few cases, the Court, in keeping with its duty under the Constitution to determine
whether the other branches of government have kept themselves within the limits of the
Constitution and the laws and have not abused the discretion given them, has brushed aside
technical rules of procedure.91

In the petitions at bar, petitioners Province of North Cotabato (G.R. No. 183591) Province
of Zamboanga del Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893) and City of
Zamboanga (G.R. No. 183752) and petitioners-in-intervention Province of Sultan
Kudarat, City of Isabela and Municipality of Linamon have locus standi in view of the direct
and substantial injury that they, as LGUs, would suffer as their territories, whether in whole or
in part, are to be included in the intended domain of the BJE. These petitioners allege that
they did not vote for their inclusion in the ARMM which would be expanded to form the BJE
territory. Petitioners' legal standing is thus beyond doubt.

In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino Pimentel
III would have no standing as citizens and taxpayers for their failure to specify that they would
be denied some right or privilege or there would be wastage of public funds. The fact that they
are a former Senator, an incumbent mayor of Makati City, and a resident of Cagayan de Oro,
respectively, is of no consequence. Considering their invocation of the transcendental
importance of the issues at hand, however, the Court grants them standing.

Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers, assert
that government funds would be expended for the conduct of an illegal and unconstitutional
plebiscite to delineate the BJE territory. On that score alone, they can be given legal standing.
Their allegation that the issues involved in these petitions are of "undeniable transcendental
importance" clothes them with added basis for their personality to intervene in these petitions.

With regard to Senator Manuel Roxas, his standing is premised on his being a member of
the Senate and a citizen to enforce compliance by respondents of the public's constitutional
right to be informed of the MOA-AD, as well as on a genuine legal interest in the matter in
litigation, or in the success or failure of either of the parties. He thus possesses the requisite
standing as an intervenor.

With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3rd district of
Davao City, a taxpayer and a member of the Bagobo tribe; Carlo B. Gomez, et al., as members
of the IBP Palawan chapter, citizens and taxpayers; Marino Ridao, as taxpayer, resident and
member of the Sangguniang Panlungsod of Cotabato City; and Kisin Buxani, as taxpayer,
they failed to allege any proper legal interest in the present petitions. Just the same, the Court
exercises its discretion to relax the procedural technicality on locus standi given the
paramount public interest in the issues at hand.

Intervening respondents Muslim Multi-Sectoral Movement for Peace and Development,

an advocacy group for justice and the attainment of peace and prosperity in Muslim Mindanao;
and Muslim Legal Assistance Foundation Inc., a non-government organization of Muslim
lawyers, allege that they stand to be benefited or prejudiced, as the case may be, in the
resolution of the petitions concerning the MOA-AD, and prays for the denial of the petitions on
the grounds therein stated. Such legal interest suffices to clothe them with standing.

B. MOOTNESS

Respondents insist that the present petitions have been rendered moot with the satisfaction
of all the reliefs prayed for by petitioners and the subsequent pronouncement of the Executive
Secretary that "[n]o matter what the Supreme Court ultimately decides[,] the government will
not sign the MOA."92
In lending credence to this policy decision, the Solicitor General points out that the President
had already disbanded the GRP Peace Panel.93

In David v. Macapagal-Arroyo,94 this Court held that the "moot and academic" principle not
being a magical formula that automatically dissuades courts in resolving a case, it will decide
cases, otherwise moot and academic, if it finds that (a) there is a grave violation of the
Constitution;95 (b) the situation is of exceptional character and paramount public interest is
involved;96 (c) the constitutional issue raised requires formulation of controlling principles to
guide the bench, the bar, and the public;97 and (d) the case is capable of repetition yet evading
review.98

Another exclusionary circumstance that may be considered is where there is

a voluntary cessation of the activity complained of by the defendant or doer. Thus, once a suit
is filed and the doer voluntarily ceases the challenged conduct, it does not automatically
deprive the tribunal of power to hear and determine the case and does not render the case
moot especially when the plaintiff seeks damages or prays for injunctive relief against the
possible recurrence of the violation.99

The present petitions fall squarely into these exceptions to thus thrust them into the domain
of judicial review. The grounds cited above in David are just as applicable in the present cases
as they were, not only in David, but also in Province of Batangas v. Romulo100 and Manalo v.
Calderon101 where the Court similarly decided them on the merits, supervening events that
would ordinarily have rendered the same moot notwithstanding.

Petitions not mooted

Contrary then to the asseverations of respondents, the non-signing of the MOA-AD and the
eventual dissolution of the GRP Peace Panel did not moot the present petitions. It bears
emphasis that the signing of the MOA-AD did not push through due to the Court's issuance of
a Temporary Restraining Order.

Contrary too to respondents' position, the MOA-AD cannot be considered a mere "list of
consensus points," especially given its nomenclature, the need to have it signed or
initialed by all the parties concerned on August 5, 2008, and the far-reaching Constitutional
implications of these "consensus points," foremost of which is the creation of the BJE.

In fact, as what will, in the main, be discussed, there is a commitment on the part of
respondents to amend and effect necessary changes to the existing legal framework
for certain provisions of the MOA-AD to take effect. Consequently, the present petitions
are not confined to the terms and provisions of the MOA-AD, but to other on-
going and future negotiations and agreements necessary for its realization. The petitions
have not, therefore, been rendered moot and academic simply by the public disclosure of the
MOA-AD,102 the manifestation that it will not be signed as well as the disbanding of the GRP
Panel not withstanding.

Petitions are imbued with paramount public interest

There is no gainsaying that the petitions are imbued with paramount public interest, involving
a significant part of the country's territory and the wide-ranging political modifications of
affected LGUs. The assertion that the MOA-AD is subject to further legal enactments
including possible Constitutional amendments more than ever provides impetus for the
Court to formulate controlling principles to guide the bench, the bar, the public and, in
this case, the government and its negotiating entity.
Respondents cite Suplico v. NEDA, et al.103 where the Court did not "pontificat[e] on issues
which no longer legitimately constitute an actual case or controversy [as this] will do more
harm than good to the nation as a whole."

The present petitions must be differentiated from Suplico. Primarily, in Suplico, what was
assailed and eventually cancelled was a stand-alone government procurement contract for a
national broadband network involving a one-time contractual relation between two parties-the
government and a private foreign corporation. As the issues therein involved specific
government procurement policies and standard principles on contracts, the majority opinion
in Suplico found nothing exceptional therein, the factual circumstances being peculiar only to
the transactions and parties involved in the controversy.

The MOA-AD is part of a series of agreements

In the present controversy, the MOA-AD is a significant part of a series of

agreements necessary to carry out the Tripoli Agreement 2001. The MOA-AD which dwells
on the Ancestral Domain Aspect of said Tripoli Agreement is the third such component to be
undertaken following the implementation of the Security Aspect in August 2001 and
the Humanitarian, Rehabilitation and Development Aspect in May 2002.

Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008 to the
Solicitor General, has stated that "no matter what the Supreme Court ultimately decides[,] the
government will not sign the MOA[-AD]," mootness will not set in in light of the terms of the
Tripoli Agreement 2001.

Need to formulate principles-guidelines

Surely, the present MOA-AD can be renegotiated or another one will be drawn up to carry
out the Ancestral Domain Aspect of the Tripoli Agreement 2001, in another or in any form,
which could contain similar or significantly drastic provisions. While the Court notes the word
of the Executive Secretary that the government "is committed to securing an agreement that
is both constitutional and equitable because that is the only way that long-lasting peace can
be assured," it is minded to render a decision on the merits in the present petitions
to formulate controlling principles to guide the bench, the bar, the public and, most
especially, the government in negotiating with the MILF regarding Ancestral Domain.

Respondents invite the Court's attention to the separate opinion of then Chief Justice Artemio
Panganiban in Sanlakas v. Reyes104 in which he stated that the doctrine of "capable of
repetition yet evading review" can override mootness, "provided the party raising it in a proper
case has been and/or continue to be prejudiced or damaged as a direct result of their
issuance." They contend that the Court must have jurisdiction over the subject matter for the
doctrine to be invoked.

The present petitions all contain prayers for Prohibition over which this Court exercises original
jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP) is a petition for Injunction and
Declaratory Relief, the Court will treat it as one for Prohibition as it has far reaching
implications and raises questions that need to be resolved.105 At all events, the Court has
jurisdiction over most if not the rest of the petitions.

Indeed, the present petitions afford a proper venue for the Court to again apply the doctrine
immediately referred to as what it had done in a number of landmark cases. 106 There is
a reasonable expectation that petitioners, particularly the Provinces of North Cotabato,
Zamboanga del Norte and Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela, and
the Municipality of Linamon, will again be subjected to the same problem in the future as
respondents' actions are capable of repetition, in another or any form.

It is with respect to the prayers for Mandamus that the petitions have become moot,
respondents having, by Compliance of August 7, 2008, provided this Court and petitioners
with official copies of the final draft of the MOA-AD and its annexes. Too, intervenors have
been furnished, or have procured for themselves, copies of the MOA-AD.

V. SUBSTANTIVE ISSUES

As culled from the Petitions and Petitions-in-Intervention, there are basically two
SUBSTANTIVE issues to be resolved, one relating to the manner in which the MOA-AD was
negotiated and finalized, the other relating to its provisions, viz:

1. Did respondents violate constitutional and statutory provisions on public consultation and
the right to information when they negotiated and later initialed the MOA-AD?

2. Do the contents of the MOA-AD violate the Constitution and the laws?

ON THE FIRST SUBSTANTIVE ISSUE

Petitioners invoke their constitutional right to information on matters of public concern, as

provided in Section 7, Article III on the Bill of Rights:

Sec. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to
official acts, transactions, or decisions, as well as to government research data used
as basis for policy development, shall be afforded the citizen, subject to such limitations
as may be provided by law.107

As early as 1948, in Subido v. Ozaeta,108 the Court has recognized the statutory right to
examine and inspect public records, a right which was eventually accorded constitutional
status.

The right of access to public documents, as enshrined in both the 1973 Constitution and the
1987 Constitution, has been recognized as a self-executory constitutional right.109

In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the Court ruled that access to public
records is predicated on the right of the people to acquire information on matters of public
concern since, undoubtedly, in a democracy, the pubic has a legitimate interest in matters of
social and political significance.

x x x The incorporation of this right in the Constitution is a recognition of the fundamental role
of free exchange of information in a democracy. There can be no realistic perception by the
public of the nation's problems, nor a meaningful democratic decision-making if they are
denied access to information of general interest. Information is needed to enable the members
of society to cope with the exigencies of the times. As has been aptly observed: "Maintaining
the flow of such information depends on protection for both its acquisition and its dissemination
since, if either process is interrupted, the flow inevitably ceases." x x x111

In the same way that free discussion enables members of society to cope with the exigencies
of their time, access to information of general interest aids the people in democratic decision-
making by giving them a better perspective of the vital issues confronting the nation112 so that
they may be able to criticize and participate in the affairs of the government in a responsible,
reasonable and effective manner. It is by ensuring an unfettered and uninhibited exchange of
ideas among a well-informed public that a government remains responsive to the changes
desired by the people.113

The MOA-AD is a matter of public concern

That the subject of the information sought in the present cases is a matter of public
concern114 faces no serious challenge. In fact, respondents admit that the MOA-AD is indeed
of public concern.115 In previous cases, the Court found that the regularity of real estate
transactions entered in the Register of Deeds,116 the need for adequate notice to the public of
the various laws,117 the civil service eligibility of a public employee,118 the proper management
of GSIS funds allegedly used to grant loans to public officials,119 the recovery of the Marcoses'
alleged ill-gotten wealth,120 and the identity of party-list nominees,121 among others, are
matters of public concern. Undoubtedly, the MOA-AD subject of the present cases is of
public concern, involving as it does the sovereignty and territorial integrity of the State,
which directly affects the lives of the public at large.

Matters of public concern covered by the right to information include steps and negotiations
leading to the consummation of the contract. In not distinguishing as to the executory nature
or commercial character of agreements, the Court has categorically ruled:

x x x [T]he right to information "contemplates inclusion of negotiations leading to

the consummation of the transaction." Certainly, a consummated contract is not a
requirement for the exercise of the right to information. Otherwise, the people can
never exercise the right if no contract is consummated, and if one is consummated, it
may be too late for the public to expose its defects.

Requiring a consummated contract will keep the public in the dark until the contract,
which may be grossly disadvantageous to the government or even illegal, becomes fait
accompli. This negates the State policy of full transparency on matters of public
concern, a situation which the framers of the Constitution could not have intended.
Such a requirement will prevent the citizenry from participating in the public discussion
of any proposed contract, effectively truncating a basic right enshrined in the Bill of
Rights. We can allow neither an emasculation of a constitutional right, nor a retreat by
the State of its avowed "policy of full disclosure of all its transactions involving public
interest."122 (Emphasis and italics in the original)

Intended as a "splendid symmetry"123 to the right to information under the Bill of Rights is the
policy of public disclosure under Section 28, Article II of the Constitution reading:

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public
interest.124

The policy of full public disclosure enunciated in above-quoted Section

28 complements the right of access to information on matters of public concern found in the
Bill of Rights. The right to information guarantees the right of the people to demand
information, while Section 28 recognizes the duty of officialdom to give information even if
nobody demands.125

The policy of public disclosure establishes a concrete ethical principle for the conduct of public
affairs in a genuinely open democracy, with the people's right to know as the centerpiece. It is
a mandate of the State to be accountable by following such policy.126 These provisions are
vital to the exercise of the freedom of expression and essential to hold public officials at all
times accountable to the people.127

Whether Section 28 is self-executory, the records of the deliberations of the Constitutional

Commission so disclose:

MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated or
will not be in force and effect until after Congress shall have provided it.

MR. OPLE. I expect it to influence the climate of public ethics immediately but, of
course, the implementing law will have to be enacted by Congress, Mr. Presiding
Officer.128

The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on the
issue, is enlightening.

MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer, did
I get the Gentleman correctly as having said that this is not a self-executing provision?
It would require a legislation by Congress to implement?

MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an

amendment from Commissioner Regalado, so that the safeguards on national interest
are modified by the clause "as may be provided by law"

MR. DAVIDE. But as worded, does it not mean that this will immediately take effect
and Congress may provide for reasonable safeguards on the sole ground national
interest?

MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should
immediately influence the climate of the conduct of public affairs but, of course,
Congress here may no longer pass a law revoking it, or if this is approved, revoking
this principle, which is inconsistent with this policy.129 (Emphasis supplied)

Indubitably, the effectivity of the policy of public disclosure need not await the passing
of a statute. As Congress cannot revoke this principle, it is merely directed to provide for
"reasonable safeguards." The complete and effective exercise of the right to information
necessitates that its complementary provision on public disclosure derive the same self-
executory nature. Since both provisions go hand-in-hand, it is absurd to say that the
broader130 right to information on matters of public concern is already enforceable while the
correlative duty of the State to disclose its transactions involving public interest is not
enforceable until there is an enabling law. Respondents cannot thus point to the absence of
an implementing legislation as an excuse in not effecting such policy.

An essential element of these freedoms is to keep open a continuing dialogue or process of

communication between the government and the people. It is in the interest of the State that
the channels for free political discussion be maintained to the end that the government may
perceive and be responsive to the people's will.131 Envisioned to be corollary to the twin rights
to information and disclosure is the design for feedback mechanisms.

MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be able
to participate? Will the government provide feedback mechanisms so that the
people can participate and can react where the existing media facilities are not
 able to provide full feedback mechanisms to the government? I suppose this will
be part of the government implementing operational mechanisms.

MR. OPLE. Yes. I think through their elected representatives and that is how these
courses take place. There is a message and a feedback, both ways.

xxxx

MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last sentence?

I think when we talk about the feedback network, we are not talking about public
officials but also network of private business o[r] community-based
organizations that will be reacting. As a matter of fact, we will put more credence or
credibility on the private network of volunteers and voluntary community-based
organizations. So I do not think we are afraid that there will be another OMA in the
making.132 (Emphasis supplied)

The imperative of a public consultation, as a species of the right to information, is evident in

the "marching orders" to respondents. The mechanics for the duty to disclose information and
to conduct public consultation regarding the peace agenda and process is manifestly provided
by E.O. No. 3.133 The preambulatory clause of E.O. No. 3 declares that there is a need to
further enhance the contribution of civil society to the comprehensive peace process by
institutionalizing the people's participation.

One of the three underlying principles of the comprehensive peace process is that it "should
be community-based, reflecting the sentiments, values and principles important to all Filipinos"
and "shall be defined not by the government alone, nor by the different contending groups
only, but by all Filipinos as one community."134 Included as a component of the comprehensive
peace process is consensus-building and empowerment for peace, which includes "continuing
consultations on both national and local levels to build consensus for a peace agenda and
process, and the mobilization and facilitation of people's participation in the peace process."135

Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate
"continuing" consultations, contrary to respondents' position that plebiscite is "more
than sufficient consultation."136

Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of which
is to "[c]onduct regular dialogues with the National Peace Forum (NPF) and other peace
partners to seek relevant information, comments, recommendations as well as to render
appropriate and timely reports on the progress of the comprehensive peace process."137 E.O.
No. 3 mandates the establishment of the NPF to be "the principal forum for the PAPP to
consult with and seek advi[c]e from the peace advocates, peace partners and concerned
sectors of society on both national and local levels, on the implementation of the
comprehensive peace process, as well as for government[-]civil society dialogue and
consensus-building on peace agenda and initiatives."138

In fine, E.O. No. 3 establishes petitioners' right to be consulted on the peace agenda,
as a corollary to the constitutional right to information and disclosure.

PAPP Esperon committed grave abuse of discretion

The PAPP committed grave abuse of discretion when he failed to carry out the pertinent
consultation. The furtive process by which the MOA-AD was designed and crafted runs
contrary to and in excess of the legal authority, and amounts to a whimsical, capricious,
oppressive, arbitrary and despotic exercise thereof.

The Court may not, of course, require the PAPP to conduct the consultation in a particular
way or manner. It may, however, require him to comply with the law and discharge the
functions within the authority granted by the President.139

Petitioners are not claiming a seat at the negotiating table, contrary to respondents' retort in
justifying the denial of petitioners' right to be consulted. Respondents' stance manifests the
manner by which they treat the salient provisions of E.O. No. 3 on people's participation. Such
disregard of the express mandate of the President is not much different from superficial
conduct toward token provisos that border on classic lip service.140 It illustrates a gross
evasion of positive duty and a virtual refusal to perform the duty enjoined.

As for respondents' invocation of the doctrine of executive privilege, it is not tenable under the
premises. The argument defies sound reason when contrasted with E.O. No. 3's explicit
provisions on continuing consultation and dialogue on both national and local levels.
The executive order even recognizes the exercise of the public's right even before the
GRP makes its official recommendations or before the government proffers its definite
propositions.141 It bear emphasis that E.O. No. 3 seeks to elicit relevant advice, information,
comments and recommendations from the people through dialogue.

AT ALL EVENTS, respondents effectively waived the defense of executive privilege in view of
their unqualified disclosure of the official copies of the final draft of the MOA-AD. By
unconditionally complying with the Court's August 4, 2008 Resolution, without a prayer for the
document's disclosure in camera, or without a manifestation that it was complying therewith ex
abundante ad cautelam.

Petitioners' assertion that the Local Government Code (LGC) of 1991 declares it a State policy
to "require all national agencies and offices to conduct periodic consultations with appropriate
local government units, non-governmental and people's organizations, and other concerned
sectors of the community before any project or program is implemented in their respective
jurisdictions"142 is well-taken. The LGC chapter on intergovernmental relations puts flesh into
this avowed policy:

Prior Consultations Required. - No project or program shall be implemented by

government authorities unless the consultations mentioned in Sections 2 (c) and 26
hereof are complied with, and prior approval of the sanggunian concerned is obtained:
Provided, That occupants in areas where such projects are to be implemented shall
not be evicted unless appropriate relocation sites have been provided, in accordance
with the provisions of the Constitution.143 (Italics and underscoring supplied)

In Lina, Jr. v. Hon. Paño,144 the Court held that the above-stated policy and above-quoted
provision of the LGU apply only to national programs or projects which are to be implemented
in a particular local community. Among the programs and projects covered are those that are
critical to the environment and human ecology including those that may call for the eviction of
a particular group of people residing in the locality where these will be implemented.145 The
MOA-AD is one peculiar program that unequivocally and unilaterally vests ownership
of a vast territory to the Bangsamoro people,146 which could pervasively and drastically
result to the diaspora or displacement of a great number of inhabitants from their total
environment.

With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs), whose

interests are represented herein by petitioner Lopez and are adversely affected by the MOA-
AD, the ICCs/IPs have, under the IPRA, the right to participate fully at all levels of decision-
making in matters which may affect their rights, lives and destinies.147 The MOA-AD, an
instrument recognizing ancestral domain, failed to justify its non-compliance with the clear-cut
mechanisms ordained in said Act,148 which entails, among other things, the observance of the
free and prior informed consent of the ICCs/IPs.

Notably, the IPRA does not grant the Executive Department or any government agency the
power to delineate and recognize an ancestral domain claim by mere agreement or
compromise. The recognition of the ancestral domain is the raison d'etre of the MOA-AD,
without which all other stipulations or "consensus points" necessarily must fail. In proceeding
to make a sweeping declaration on ancestral domain, without complying with the IPRA, which
is cited as one of the TOR of the MOA-AD, respondents clearly transcended the
boundaries of their authority. As it seems, even the heart of the MOA-AD is still subject to
necessary changes to the legal framework. While paragraph 7 on Governance suspends the
effectivity of all provisions requiring changes to the legal framework, such clause is itself
invalid, as will be discussed in the following section.

Indeed, ours is an open society, with all the acts of the government subject to public scrutiny
and available always to public cognizance. This has to be so if the country is to remain
democratic, with sovereignty residing in the people and all government authority emanating
from them.149

ON THE SECOND SUBSTANTIVE ISSUE

With regard to the provisions of the MOA-AD, there can be no question that they cannot all be
accommodated under the present Constitution and laws. Respondents have admitted as
much in the oral arguments before this Court, and the MOA-AD itself recognizes the need to
amend the existing legal framework to render effective at least some of its provisions.
Respondents, nonetheless, counter that the MOA-AD is free of any legal infirmity because
any provisions therein which are inconsistent with the present legal framework will not be
effective until the necessary changes to that framework are made. The validity of this argument
will be considered later. For now, the Court shall pass upon how

The MOA-AD is inconsistent with the Constitution and laws as presently worded.

In general, the objections against the MOA-AD center on the extent of the powers conceded
therein to the BJE. Petitioners assert that the powers granted to the BJE exceed those granted
to any local government under present laws, and even go beyond those of the present ARMM.
Before assessing some of the specific powers that would have been vested in the BJE,
however, it would be useful to turn first to a general idea that serves as a unifying link to the
different provisions of the MOA-AD, namely, the international law concept of association.
Significantly, the MOA-AD explicitly alludes to this concept, indicating that the Parties actually
framed its provisions with it in mind.

Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES,

and paragraph 4 on GOVERNANCE. It is in the last mentioned provision, however, that the
MOA-AD most clearly uses it to describe the envisioned relationship between the BJE and the
Central Government.

4. The relationship between the Central Government and the Bangsamoro

juridical entity shall be associative characterized by shared authority and
responsibility with a structure of governance based on executive, legislative, judicial
and administrative institutions with defined powers and functions in the comprehensive
compact. A period of transition shall be established in a comprehensive peace compact
 specifying the relationship between the Central Government and the BJE. (Emphasis
and underscoring supplied)

The nature of the "associative" relationship may have been intended to be defined more
precisely in the still to be forged Comprehensive Compact. Nonetheless, given that there is a
concept of "association" in international law, and the MOA-AD - by its inclusion of international
law instruments in its TOR- placed itself in an international legal context, that concept of
association may be brought to bear in understanding the use of the term "associative" in the
MOA-AD.

Keitner and Reisman state that

[a]n association is formed when two states of unequal power voluntarily establish
durable links. In the basic model, one state, the associate, delegates certain
responsibilities to the other, the principal, while maintaining its international
status as a state. Free associations represent a middle ground between
integration and independence. x x x150 (Emphasis and underscoring supplied)

For purposes of illustration, the Republic of the Marshall Islands and the Federated States of
Micronesia (FSM), formerly part of the U.S.-administered Trust Territory of the Pacific
Islands,151 are associated states of the U.S. pursuant to a Compact of Free Association. The
currency in these countries is the U.S. dollar, indicating their very close ties with the U.S., yet
they issue their own travel documents, which is a mark of their statehood. Their international
legal status as states was confirmed by the UN Security Council and by their admission to UN
membership.

According to their compacts of free association, the Marshall Islands and the FSM generally
have the capacity to conduct foreign affairs in their own name and right, such capacity
extending to matters such as the law of the sea, marine resources, trade, banking, postal, civil
aviation, and cultural relations. The U.S. government, when conducting its foreign affairs, is
obligated to consult with the governments of the Marshall Islands or the FSM on matters which
it (U.S. government) regards as relating to or affecting either government.

In the event of attacks or threats against the Marshall Islands or the FSM, the U.S. government
has the authority and obligation to defend them as if they were part of U.S. territory. The U.S.
government, moreover, has the option of establishing and using military areas and facilities
within these associated states and has the right to bar the military personnel of any third
country from having access to these territories for military purposes.

It bears noting that in U.S. constitutional and international practice, free association is
understood as an international association between sovereigns. The Compact of Free
Association is a treaty which is subordinate to the associated nation's national constitution,
and each party may terminate the association consistent with the right of independence. It has
been said that, with the admission of the U.S.-associated states to the UN in 1990, the UN
recognized that the American model of free association is actually based on an underlying
status of independence.152

In international practice, the "associated state" arrangement has usually been used as
a transitional device of former colonies on their way to full independence. Examples of states
that have passed through the status of associated states as a transitional phase are Antigua,
St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since become
independent states.153
Back to the MOA-AD, it contains many provisions which are consistent with the international
legal concept of association, specifically the following: the BJE's capacity to enter into
economic and trade relations with foreign countries, the commitment of the Central
Government to ensure the BJE's participation in meetings and events in the ASEAN and the
specialized UN agencies, and the continuing responsibility of the Central Government over
external defense. Moreover, the BJE's right to participate in Philippine official missions bearing
on negotiation of border agreements, environmental protection, and sharing of revenues
pertaining to the bodies of water adjacent to or between the islands forming part of the
ancestral domain, resembles the right of the governments of FSM and the Marshall Islands to
be consulted by the U.S. government on any foreign affairs matter affecting them.

These provisions of the MOA indicate, among other things, that the Parties aimed to vest in
the BJE the status of an associated state or, at any rate, a status closely approximating
it.

The concept of association is not recognized under the present Constitution

No province, city, or municipality, not even the ARMM, is recognized under our laws as having
an "associative" relationship with the national government. Indeed, the concept implies powers
that go beyond anything ever granted by the Constitution to any local or regional
government. It also implies the recognition of the associated entity as a state. The
Constitution, however, does not contemplate any state in this jurisdiction other than the
Philippine State, much less does it provide for a transitory status that aims to prepare any part
of Philippine territory for independence.

Even the mere concept animating many of the MOA-AD's provisions, therefore, already
requires for its validity the amendment of constitutional provisions, specifically the following
provisions of Article X:

SECTION 1. The territorial and political subdivisions of the Republic of the Philippines
are the provinces, cities, municipalities, and barangays. There shall
be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter
provided.

SECTION 15. There shall be created autonomous regions in Muslim Mindanao and in
the Cordilleras consisting of provinces, cities, municipalities, and geographical areas
sharing common and distinctive historical and cultural heritage, economic and social
structures, and other relevant characteristics within the framework of this
Constitution and the national sovereignty as well as territorial integrity of the
Republic of the Philippines.

The BJE is a far more powerful

entity than the autonomous region
recognized in the Constitution

It is not merely an expanded version of the ARMM, the status of its relationship with the
national government being fundamentally different from that of the ARMM. Indeed, BJE is a
state in all but name as it meets the criteria of a state laid down in the Montevideo
Convention,154 namely, a permanent population, a defined territory, a government, and
a capacity to enter into relations with other states.

Even assuming arguendo that the MOA-AD would not necessarily sever any portion of
Philippine territory, the spirit animating it - which has betrayed itself by its use of the concept
of association - runs counter to the national sovereignty and territorial integrity of the
Republic.

The defining concept underlying the relationship between the national government and
the BJE being itself contrary to the present Constitution, it is not surprising that many
of the specific provisions of the MOA-AD on the formation and powers of the BJE are
in conflict with the Constitution and the laws.

Article X, Section 18 of the Constitution provides that "[t]he creation of the autonomous region
shall be effective when approved by a majority of the votes cast by the constituent units in a
plebiscite called for the purpose, provided that only provinces, cities, and geographic areas
voting favorably in such plebiscite shall be included in the autonomous region."
(Emphasis supplied)

As reflected above, the BJE is more of a state than an autonomous region. But even assuming
that it is covered by the term "autonomous region" in the constitutional provision just quoted,
the MOA-AD would still be in conflict with it. Under paragraph 2(c) on TERRITORY in relation
to 2(d) and 2(e), the present geographic area of the ARMM and, in addition, the municipalities
of Lanao del Norte which voted for inclusion in the ARMM during the 2001 plebiscite - Baloi,
Munai, Nunungan, Pantar, Tagoloan and Tangkal - are automatically part of the BJE without
need of another plebiscite, in contrast to the areas under Categories A and B mentioned earlier
in the overview. That the present components of the ARMM and the above-mentioned
municipalities voted for inclusion therein in 2001, however, does not render another plebiscite
unnecessary under the Constitution, precisely because what these areas voted for then was
their inclusion in the ARMM, not the BJE.

The MOA-AD, moreover, would not

comply with Article X, Section 20 of
the Constitution

since that provision defines the powers of autonomous regions as follows:

SECTION 20. Within its territorial jurisdiction and subject to the provisions of this
Constitution and national laws, the organic act of autonomous regions shall provide for
legislative powers over:

(1) Administrative organization;

(2) Creation of sources of revenues;

(3) Ancestral domain and natural resources;

(4) Personal, family, and property relations;

(5) Regional urban and rural planning development;

(6) Economic, social, and tourism development;

(7) Educational policies;

(8) Preservation and development of the cultural heritage; and

 (9) Such other matters as may be authorized by law for the promotion of the general
welfare of the people of the region. (Underscoring supplied)

Again on the premise that the BJE may be regarded as an autonomous region, the MOA-AD
would require an amendment that would expand the above-quoted provision. The mere
passage of new legislation pursuant to sub-paragraph No. 9 of said constitutional provision
would not suffice, since any new law that might vest in the BJE the powers found in the MOA-
AD must, itself, comply with other provisions of the Constitution. It would not do, for instance,
to merely pass legislation vesting the BJE with treaty-making power in order to accommodate
paragraph 4 of the strand on RESOURCES which states: "The BJE is free to enter into any
economic cooperation and trade relations with foreign countries: provided, however, that such
relationships and understandings do not include aggression against the Government of the
Republic of the Philippines x x x." Under our constitutional system, it is only the President who
has that power. Pimentel v. Executive Secretary155 instructs:

In our system of government, the President, being the head of state, is regarded
as the sole organ and authority in external relations and is the country's sole
representative with foreign nations. As the chief architect of foreign policy, the
President acts as the country's mouthpiece with respect to international affairs.
Hence, the President is vested with the authority to deal with foreign states and
governments, extend or withhold recognition, maintain diplomatic relations, enter
into treaties, and otherwise transact the business of foreign relations. In the
realm of treaty-making, the President has the sole authority to negotiate with
other states. (Emphasis and underscoring supplied)

Article II, Section 22 of the Constitution must also be amended if the scheme envisioned
in the MOA-AD is to be effected. That constitutional provision states: "The State recognizes
and promotes the rights of indigenous cultural communities within the framework of national
unity and development." (Underscoring supplied) An associative arrangement does not
uphold national unity. While there may be a semblance of unity because of the associative
ties between the BJE and the national government, the act of placing a portion of Philippine
territory in a status which, in international practice, has generally been a preparation for
independence, is certainly not conducive to national unity.

Besides being irreconcilable with the Constitution, the MOA-AD is also inconsistent with
prevailing statutory law, among which are R.A. No. 9054156 or the Organic Act of the
ARMM, and the IPRA.157

Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the
definition of "Bangsamoro people" used in the MOA-AD. Paragraph 1 on Concepts and
Principles states:

1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to

identify themselves and be accepted as "Bangsamoros". The Bangsamoro people
refers to those who are natives or original inhabitants of Mindanao and its
adjacent islands including Palawan and the Sulu archipelago at the time of conquest
or colonization of its descendants whether mixed or of full blood. Spouses and their
descendants are classified as Bangsamoro. The freedom of choice of the Indigenous
people shall be respected. (Emphasis and underscoring supplied)

This use of the term Bangsamoro sharply contrasts with that found in the Article X, Section 3
of the Organic Act, which, rather than lumping together the identities of the Bangsamoro and
other indigenous peoples living in Mindanao, clearly distinguishes between Bangsamoro
people and Tribal peoples, as follows:
 "As used in this Organic Act, the phrase "indigenous cultural community" refers
to Filipino citizens residing in the autonomous region who are:

(a) Tribal peoples. These are citizens whose social, cultural and economic conditions
distinguish them from other sectors of the national community; and

(b) Bangsa Moro people. These are citizens who are believers in Islam and who
have retained some or all of their own social, economic, cultural, and political
institutions."

Respecting the IPRA, it lays down the prevailing procedure for the delineation and recognition
of ancestral domains. The MOA-AD's manner of delineating the ancestral domain of the
Bangsamoro people is a clear departure from that procedure. By paragraph 1 of Territory, the
Parties simply agree that, subject to the delimitations in the agreed Schedules, "[t]he
Bangsamoro homeland and historic territory refer to the land mass as well as the maritime,
terrestrial, fluvial and alluvial domains, and the aerial domain, the atmospheric space above
it, embracing the Mindanao-Sulu-Palawan geographic region."

Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure, as illustrated in
the following provisions thereof:

SECTION 52. Delineation Process. - The identification and delineation of ancestral

domains shall be done in accordance with the following procedures:

xxxx

b) Petition for Delineation. - The process of delineating a specific perimeter may be

initiated by the NCIP with the consent of the ICC/IP concerned, or through a Petition
for Delineation filed with the NCIP, by a majority of the members of the ICCs/IPs;

c) Delineation Proper. - The official delineation of ancestral domain boundaries

including census of all community members therein, shall be immediately undertaken
by the Ancestral Domains Office upon filing of the application by the ICCs/IPs
concerned. Delineation will be done in coordination with the community concerned and
shall at all times include genuine involvement and participation by the members of the
communities concerned;

d) Proof Required. - Proof of Ancestral Domain Claims shall include the testimony of
elders or community under oath, and other documents directly or indirectly attesting to
the possession or occupation of the area since time immemorial by such ICCs/IPs in
the concept of owners which shall be any one (1) of the following authentic documents:

1) Written accounts of the ICCs/IPs customs and traditions;

2) Written accounts of the ICCs/IPs political structure and institution;

3) Pictures showing long term occupation such as those of old improvements,

burial grounds, sacred places and old villages;

4) Historical accounts, including pacts and agreements concerning boundaries

entered into by the ICCs/IPs concerned with other ICCs/IPs;

5) Survey plans and sketch maps;

 6) Anthropological data;

7) Genealogical surveys;

8) Pictures and descriptive histories of traditional communal forests and

hunting grounds;

9) Pictures and descriptive histories of traditional landmarks such as

mountains, rivers, creeks, ridges, hills, terraces and the like; and

10) Write-ups of names and places derived from the native dialect of the
community.

e) Preparation of Maps. - On the basis of such investigation and the findings of fact
based thereon, the Ancestral Domains Office of the NCIP shall prepare a perimeter
map, complete with technical descriptions, and a description of the natural features
and landmarks embraced therein;

f) Report of Investigation and Other Documents. - A complete copy of the preliminary

census and a report of investigation, shall be prepared by the Ancestral Domains Office
of the NCIP;

g) Notice and Publication. - A copy of each document, including a translation in the

native language of the ICCs/IPs concerned shall be posted in a prominent place therein
for at least fifteen (15) days. A copy of the document shall also be posted at the local,
provincial and regional offices of the NCIP, and shall be published in a newspaper of
general circulation once a week for two (2) consecutive weeks to allow other claimants
to file opposition thereto within fifteen (15) days from date of such publication:
Provided, That in areas where no such newspaper exists, broadcasting in a radio
station will be a valid substitute: Provided, further, That mere posting shall be deemed
sufficient if both newspaper and radio station are not available;

h) Endorsement to NCIP. - Within fifteen (15) days from publication, and of the
inspection process, the Ancestral Domains Office shall prepare a report to the NCIP
endorsing a favorable action upon a claim that is deemed to have sufficient proof.
However, if the proof is deemed insufficient, the Ancestral Domains Office shall require
the submission of additional evidence: Provided, That the Ancestral Domains Office
shall reject any claim that is deemed patently false or fraudulent after inspection and
verification: Provided, further, That in case of rejection, the Ancestral Domains Office
shall give the applicant due notice, copy furnished all concerned, containing the
grounds for denial. The denial shall be appealable to the NCIP: Provided, furthermore,
That in cases where there are conflicting claims among ICCs/IPs on the boundaries of
ancestral domain claims, the Ancestral Domains Office shall cause the contending
parties to meet and assist them in coming up with a preliminary resolution of the
conflict, without prejudice to its full adjudication according to the section below.

xxxx

To remove all doubts about the irreconcilability of the MOA-AD with the present legal system,
a discussion of not only the Constitution and domestic statutes, but also of international law is
in order, for
Article II, Section 2 of the Constitution states that the Philippines "adopts the generally
accepted principles of international law as part of the law of the land."

Applying this provision of the Constitution, the Court, in Mejoff v. Director of Prisons,158 held
that the Universal Declaration of Human Rights is part of the law of the land on account of
which it ordered the release on bail of a detained alien of Russian descent whose deportation
order had not been executed even after two years. Similarly, the Court in Agustin v.
Edu159 applied the aforesaid constitutional provision to the 1968 Vienna Convention on Road
Signs and Signals.

International law has long recognized the right to self-determination of "peoples," understood
not merely as the entire population of a State but also a portion thereof. In considering the
question of whether the people of Quebec had a right to unilaterally secede from Canada, the
Canadian Supreme Court in REFERENCE RE SECESSION OF QUEBEC160 had occasion to
acknowledge that "the right of a people to self-determination is now so widely recognized in
international conventions that the principle has acquired a status beyond ‘convention' and is
considered a general principle of international law."

Among the conventions referred to are the International Covenant on Civil and Political
Rights161 and the International Covenant on Economic, Social and Cultural Rights162 which
state, in Article 1 of both covenants, that all peoples, by virtue of the right of self-determination,
"freely determine their political status and freely pursue their economic, social, and cultural
development."

The people's right to self-determination should not, however, be understood as extending to

a unilateral right of secession. A distinction should be made between the right of internal and
external self-determination. REFERENCE RE SECESSION OF QUEBEC is again instructive:

"(ii) Scope of the Right to Self-determination

126. The recognized sources of international law establish that the right to self-
determination of a people is normally fulfilled through internal self-
determination - a people's pursuit of its political, economic, social and cultural
development within the framework of an existing state. A right to external self-
determination (which in this case potentially takes the form of the assertion of a
right to unilateral secession) arises in only the most extreme of cases and, even
then, under carefully defined circumstances. x x x

External self-determination can be defined as in the following statement from

the Declaration on Friendly Relations, supra, as

The establishment of a sovereign and independent State, the free association or

integration with an independent State or the emergence into any other political
status freely determined by a people constitute modes of implementing the right of
self-determination by that people. (Emphasis added)

127. The international law principle of self-determination has evolved within a

framework of respect for the territorial integrity of existing states. The various
international documents that support the existence of a people's right to self-
determination also contain parallel statements supportive of the conclusion that the
exercise of such a right must be sufficiently limited to prevent threats to an existing
state's territorial integrity or the stability of relations between sovereign states.

x x x x (Emphasis, italics and underscoring supplied)

The Canadian Court went on to discuss the exceptional cases in which the right to external
self-determination can arise, namely, where a people is under colonial rule, is subject to
foreign domination or exploitation outside a colonial context, and - less definitely but asserted
by a number of commentators - is blocked from the meaningful exercise of its right to internal
self-determination. The Court ultimately held that the population of Quebec had no right to
secession, as the same is not under colonial rule or foreign domination, nor is it being deprived
of the freedom to make political choices and pursue economic, social and cultural
development, citing that Quebec is equitably represented in legislative, executive and judicial
institutions within Canada, even occupying prominent positions therein.

The exceptional nature of the right of secession is further exemplified in the REPORT OF THE
INTERNATIONAL COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF THE AALAND
ISLANDS QUESTION.163 There, Sweden presented to the Council of the League of Nations
the question of whether the inhabitants of the Aaland Islands should be authorized to
determine by plebiscite if the archipelago should remain under Finnish sovereignty or be
incorporated in the kingdom of Sweden. The Council, before resolving the question, appointed
an International Committee composed of three jurists to submit an opinion on the preliminary
issue of whether the dispute should, based on international law, be entirely left to the domestic
jurisdiction of Finland. The Committee stated the rule as follows:

x x x [I]n the absence of express provisions in international treaties, the right of

disposing of national territory is essentially an attribute of the sovereignty of
every State. Positive International Law does not recognize the right of national
groups, as such, to separate themselves from the State of which they form part
by the simple expression of a wish, any more than it recognizes the right of other
States to claim such a separation. Generally speaking, the grant or refusal of the
right to a portion of its population of determining its own political fate by
plebiscite or by some other method, is, exclusively, an attribute of the
sovereignty of every State which is definitively constituted. A dispute between
two States concerning such a question, under normal conditions therefore, bears upon
a question which International Law leaves entirely to the domestic jurisdiction of one
of the States concerned. Any other solution would amount to an infringement of
sovereign rights of a State and would involve the risk of creating difficulties and a lack
of stability which would not only be contrary to the very idea embodied in term "State,"
but would also endanger the interests of the international community. If this right is not
possessed by a large or small section of a nation, neither can it be held by the State
to which the national group wishes to be attached, nor by any other State. (Emphasis
and underscoring supplied)

The Committee held that the dispute concerning the Aaland Islands did not refer to a question
which is left by international law to the domestic jurisdiction of Finland, thereby applying the
exception rather than the rule elucidated above. Its ground for departing from the general rule,
however, was a very narrow one, namely, the Aaland Islands agitation originated at a time
when Finland was undergoing drastic political transformation. The internal situation of Finland
was, according to the Committee, so abnormal that, for a considerable time, the conditions
required for the formation of a sovereign State did not exist. In the midst of revolution, anarchy,
and civil war, the legitimacy of the Finnish national government was disputed by a large section
of the people, and it had, in fact, been chased from the capital and forcibly prevented from
carrying out its duties. The armed camps and the police were divided into two opposing forces.
In light of these circumstances, Finland was not, during the relevant time period, a "definitively
constituted" sovereign state. The Committee, therefore, found that Finland did not possess
the right to withhold from a portion of its population the option to separate itself - a right which
sovereign nations generally have with respect to their own populations.
Turning now to the more specific category of indigenous peoples, this term has been used, in
scholarship as well as international, regional, and state practices, to refer to groups with
distinct cultures, histories, and connections to land (spiritual and otherwise) that have been
forcibly incorporated into a larger governing society. These groups are regarded as
"indigenous" since they are the living descendants of pre-invasion inhabitants of lands now
dominated by others. Otherwise stated, indigenous peoples, nations, or communities are
culturally distinctive groups that find themselves engulfed by settler societies born of the forces
of empire and conquest.164 Examples of groups who have been regarded as indigenous
peoples are the Maori of New Zealand and the aboriginal peoples of Canada.

As with the broader category of "peoples," indigenous peoples situated within states do not
have a general right to independence or secession from those states under international
law,165 but they do have rights amounting to what was discussed above as the right
to internal self-determination.

In a historic development last September 13, 2007, the UN General Assembly adopted the
United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP) through General
Assembly Resolution 61/295. The vote was 143 to 4, the Philippines being included among
those in favor, and the four voting against being Australia, Canada, New Zealand, and the
U.S. The Declaration clearly recognized the right of indigenous peoples to self-
determination, encompassing the right to autonomy or self-government, to wit:

Article 3

Indigenous peoples have the right to self-determination. By virtue of that right they
freely determine their political status and freely pursue their economic, social and
cultural development.

Article 4

Indigenous peoples, in exercising their right to self-determination, have the right

to autonomy or self-government in matters relating to their internal and local
affairs, as well as ways and means for financing their autonomous functions.

Article 5

Indigenous peoples have the right to maintain and strengthen their distinct political,
legal, economic, social and cultural institutions, while retaining their right to participate
fully, if they so choose, in the political, economic, social and cultural life of the State.

Self-government, as used in international legal discourse pertaining to indigenous peoples,

has been understood as equivalent to "internal self-determination."166 The extent of self-
determination provided for in the UN DRIP is more particularly defined in its subsequent
articles, some of which are quoted hereunder:

Article 8

1. Indigenous peoples and individuals have the right not to be subjected to forced
assimilation or destruction of their culture.

2. States shall provide effective mechanisms for prevention of, and redress for:
(a) Any action which has the aim or effect of depriving them of their integrity as
distinct peoples, or of their cultural values or ethnic identities;

(b) Any action which has the aim or effect of dispossessing them of their lands,
territories or resources;

(c) Any form of forced population transfer which has the aim or effect of violating
or undermining any of their rights;

(d) Any form of forced assimilation or integration;

(e) Any form of propaganda designed to promote or incite racial or ethnic

discrimination directed against them.

Article 21

1. Indigenous peoples have the right, without discrimination, to the improvement of

their economic and social conditions, including, inter alia, in the areas of education,
employment, vocational training and retraining, housing, sanitation, health and social
security.

2. States shall take effective measures and, where appropriate, special measures to
ensure continuing improvement of their economic and social conditions. Particular
attention shall be paid to the rights and special needs of indigenous elders, women,
youth, children and persons with disabilities.

Article 26

1. Indigenous peoples have the right to the lands, territories and resources
which they have traditionally owned, occupied or otherwise used or acquired.

2. Indigenous peoples have the right to own, use, develop and control the lands,
territories and resources that they possess by reason of traditional ownership or other
traditional occupation or use, as well as those which they have otherwise acquired.

3. States shall give legal recognition and protection to these lands, territories and
resources. Such recognition shall be conducted with due respect to the customs,
traditions and land tenure systems of the indigenous peoples concerned.

Article 30

1. Military activities shall not take place in the lands or territories of indigenous peoples,
unless justified by a relevant public interest or otherwise freely agreed with or
requested by the indigenous peoples concerned.

2. States shall undertake effective consultations with the indigenous peoples

concerned, through appropriate procedures and in particular through their
representative institutions, prior to using their lands or territories for military activities.

Article 32

1. Indigenous peoples have the right to determine and develop priorities and strategies
for the development or use of their lands or territories and other resources.
 2. States shall consult and cooperate in good faith with the indigenous peoples
concerned through their own representative institutions in order to obtain their free and
informed consent prior to the approval of any project affecting their lands or territories
and other resources, particularly in connection with the development, utilization or
exploitation of mineral, water or other resources.

3. States shall provide effective mechanisms for just and fair redress for any such
activities, and appropriate measures shall be taken to mitigate adverse environmental,
economic, social, cultural or spiritual impact.

Article 37

1. Indigenous peoples have the right to the recognition, observance and enforcement
of treaties, agreements and other constructive arrangements concluded with States or
their successors and to have States honour and respect such treaties, agreements
and other constructive arrangements.

2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights

of indigenous peoples contained in treaties, agreements and other constructive
arrangements.

Article 38

States in consultation and cooperation with indigenous peoples, shall take the
appropriate measures, including legislative measures, to achieve the ends of this
Declaration.

Assuming that the UN DRIP, like the Universal Declaration on Human Rights, must now be
regarded as embodying customary international law - a question which the Court need not
definitively resolve here - the obligations enumerated therein do not strictly require the
Republic to grant the Bangsamoro people, through the instrumentality of the BJE, the
particular rights and powers provided for in the MOA-AD. Even the more specific provisions of
the UN DRIP are general in scope, allowing for flexibility in its application by the different
States.

There is, for instance, no requirement in the UN DRIP that States now guarantee indigenous
peoples their own police and internal security force. Indeed, Article 8 presupposes that it is
the State which will provide protection for indigenous peoples against acts like the forced
dispossession of their lands - a function that is normally performed by police officers. If the
protection of a right so essential to indigenous people's identity is acknowledged to be the
responsibility of the State, then surely the protection of rights less significant to them as such
peoples would also be the duty of States. Nor is there in the UN DRIP an acknowledgement
of the right of indigenous peoples to the aerial domain and atmospheric space. What it
upholds, in Article 26 thereof, is the right of indigenous peoples to the lands, territories and
resources which they have traditionally owned, occupied or otherwise used or acquired.

Moreover, the UN DRIP, while upholding the right of indigenous peoples to autonomy, does
not obligate States to grant indigenous peoples the near-independent status of an associated
state. All the rights recognized in that document are qualified in Article 46 as follows:

1. Nothing in this Declaration may be interpreted as implying for any State, people,
group or person any right to engage in any activity or to perform any act contrary to
the Charter of the United Nations or construed as authorizing or encouraging any
 action which would dismember or impair, totally or in part, the territorial
integrity or political unity of sovereign and independent States.

Even if the UN DRIP were considered as part of the law of the land pursuant to Article II,
Section 2 of the Constitution, it would not suffice to uphold the validity of the MOA-AD so as
to render its compliance with other laws unnecessary.

It is, therefore, clear that the MOA-AD contains numerous provisions that cannot be
reconciled with the Constitution and the laws as presently worded. Respondents proffer,
however, that the signing of the MOA-AD alone would not have entailed any violation of law
or grave abuse of discretion on their part, precisely because it stipulates that the provisions
thereof inconsistent with the laws shall not take effect until these laws are amended. They cite
paragraph 7 of the MOA-AD strand on GOVERNANCE quoted earlier, but which is reproduced
below for convenience:

7. The Parties agree that the mechanisms and modalities for the actual implementation
of this MOA-AD shall be spelt out in the Comprehensive Compact to mutually take
such steps to enable it to occur effectively.

Any provisions of the MOA-AD requiring amendments to the existing legal framework
shall come into force upon signing of a Comprehensive Compact and upon effecting
the necessary changes to the legal framework with due regard to non derogation of
prior agreements and within the stipulated timeframe to be contained in the
Comprehensive Compact.

Indeed, the foregoing stipulation keeps many controversial provisions of the MOA-AD from
coming into force until the necessary changes to the legal framework are effected. While the
word "Constitution" is not mentioned in the provision now under consideration or
anywhere else in the MOA-AD, the term "legal framework" is certainly broad enough to
include the Constitution.

Notwithstanding the suspensive clause, however, respondents, by their mere act of

incorporating in the MOA-AD the provisions thereof regarding the associative relationship
between the BJE and the Central Government, have already violated the Memorandum of
Instructions From The President dated March 1, 2001, which states that the "negotiations shall
be conducted in accordance with x x x the principles of the sovereignty and territorial
integrity of the Republic of the Philippines." (Emphasis supplied) Establishing an associative
relationship between the BJE and the Central Government is, for the reasons already
discussed, a preparation for independence, or worse, an implicit acknowledgment of an
independent status already prevailing.

Even apart from the above-mentioned Memorandum, however, the MOA-AD is defective
because the suspensive clause is invalid, as discussed below.

The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is founded on
E.O. No. 3, Section 5(c), which states that there shall be established Government Peace
Negotiating Panels for negotiations with different rebel groups to be "appointed by the
President as her official emissaries to conduct negotiations, dialogues, and face-to-face
discussions with rebel groups." These negotiating panels are to report to the President,
through the PAPP on the conduct and progress of the negotiations.

It bears noting that the GRP Peace Panel, in exploring lasting solutions to the Moro Problem
through its negotiations with the MILF, was not restricted by E.O. No. 3 only to those options
available under the laws as they presently stand. One of the components of a comprehensive
peace process, which E.O. No. 3 collectively refers to as the "Paths to Peace," is the pursuit
of social, economic, and political reforms which may require new legislation or even
constitutional amendments. Sec. 4(a) of E.O. No. 3, which reiterates Section 3(a), of E.O. No.
125,167 states:

SECTION 4. The Six Paths to Peace. - The components of the comprehensive peace
process comprise the processes known as the "Paths to Peace". These component
processes are interrelated and not mutually exclusive, and must therefore be pursued
simultaneously in a coordinated and integrated fashion. They shall include, but may
not be limited to, the following:

a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component

involves the vigorous implementation of various policies, reforms, programs and
projects aimed at addressing the root causes of internal armed conflicts and
social unrest. This may require administrative action, new legislation or even
constitutional amendments.

x x x x (Emphasis supplied)

The MOA-AD, therefore, may reasonably be perceived as an attempt of respondents to

address, pursuant to this provision of E.O. No. 3, the root causes of the armed conflict in
Mindanao. The E.O. authorized them to "think outside the box," so to speak. Hence, they
negotiated and were set on signing the MOA-AD that included various social, economic, and
political reforms which cannot, however, all be accommodated within the present legal
framework, and which thus would require new legislation and constitutional amendments.

The inquiry on the legality of the "suspensive clause," however, cannot stop here, because it
must be asked whether the President herself may exercise the power delegated to the
GRP Peace Panel under E.O. No. 3, Sec. 4(a).

The President cannot delegate a power that she herself does not possess. May the President,
in the course of peace negotiations, agree to pursue reforms that would require new legislation
and constitutional amendments, or should the reforms be restricted only to those solutions
which the present laws allow? The answer to this question requires a discussion of the extent
of the President's power to conduct peace negotiations.

That the authority of the President to conduct peace negotiations with rebel groups is not
explicitly mentioned in the Constitution does not mean that she has no such authority.
In Sanlakas v. Executive Secretary,168 in issue was the authority of the President to declare a
state of rebellion - an authority which is not expressly provided for in the Constitution. The
Court held thus:

"In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into
jurisprudence. There, the Court, by a slim 8-7 margin, upheld the President's power to
forbid the return of her exiled predecessor. The rationale for the majority's ruling rested
on the President's

. . . unstated residual powers which are implied from the grant of

executive power and which are necessary for her to comply with her
duties under the Constitution. The powers of the President are not limited
to what are expressly enumerated in the article on the Executive
Department and in scattered provisions of the Constitution. This is so,
notwithstanding the avowed intent of the members of the Constitutional
Commission of 1986 to limit the powers of the President as a reaction to the
 abuses under the regime of Mr. Marcos, for the result was a limitation of specific
powers of the President, particularly those relating to the commander-in-chief
clause, but not a diminution of the general grant of executive power.

Thus, the President's authority to declare a state of rebellion springs in the main
from her powers as chief executive and, at the same time, draws strength from
her Commander-in-Chief powers. x x x (Emphasis and underscoring supplied)

Similarly, the President's power to conduct peace negotiations is implicitly included in her
powers as Chief Executive and Commander-in-Chief. As Chief Executive, the President has
the general responsibility to promote public peace, and as Commander-in-Chief, she has the
more specific duty to prevent and suppress rebellion and lawless violence.169

As the experience of nations which have similarly gone through internal armed conflict will
show, however, peace is rarely attained by simply pursuing a military solution. Oftentimes,
changes as far-reaching as a fundamental reconfiguration of the nation's constitutional
structure is required. The observations of Dr. Kirsti Samuels are enlightening, to wit:

x x x [T]he fact remains that a successful political and governance transition must form
the core of any post-conflict peace-building mission. As we have observed in Liberia
and Haiti over the last ten years, conflict cessation without modification of the political
environment, even where state-building is undertaken through technical electoral
assistance and institution- or capacity-building, is unlikely to succeed. On average,
more than 50 percent of states emerging from conflict return to conflict. Moreover, a
substantial proportion of transitions have resulted in weak or limited democracies.

The design of a constitution and its constitution-making process can play an important
role in the political and governance transition. Constitution-making after conflict is an
opportunity to create a common vision of the future of a state and a road map on how
to get there. The constitution can be partly a peace agreement and partly a framework
setting up the rules by which the new democracy will operate.170

In the same vein, Professor Christine Bell, in her article on the nature and legal status of peace
agreements, observed that the typical way that peace agreements establish or confirm
mechanisms for demilitarization and demobilization is by linking them to new constitutional
structures addressing governance, elections, and legal and human rights institutions.171

In the Philippine experience, the link between peace agreements and constitution-making has
been recognized by no less than the framers of the Constitution. Behind the provisions of the
Constitution on autonomous regions172 is the framers' intention to implement a particular
peace agreement, namely, the Tripoli Agreement of 1976 between the GRP and the MNLF,
signed by then Undersecretary of National Defense Carmelo Z. Barbero and then MNLF
Chairman Nur Misuari.

MR. ROMULO. There are other speakers; so, although I have some more questions,
I will reserve my right to ask them if they are not covered by the other speakers. I have
only two questions.

I heard one of the Commissioners say that local autonomy already exists in the
Muslim region; it is working very well; it has, in fact, diminished a great deal of the
problems. So, my question is: since that already exists, why do we have to go into
something new?
 MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner Yusup
Abubakar is right that certain definite steps have been taken to implement the
provisions of the Tripoli Agreement with respect to an autonomous region in
Mindanao. This is a good first step, but there is no question that this is merely a
partial response to the Tripoli Agreement itself and to the fuller standard of
regional autonomy contemplated in that agreement, and now by state
policy.173(Emphasis supplied)

The constitutional provisions on autonomy and the statutes enacted pursuant to them have,
to the credit of their drafters, been partly successful. Nonetheless, the Filipino people are still
faced with the reality of an on-going conflict between the Government and the MILF. If the
President is to be expected to find means for bringing this conflict to an end and to achieve
lasting peace in Mindanao, then she must be given the leeway to explore, in the course of
peace negotiations, solutions that may require changes to the Constitution for their
implementation. Being uniquely vested with the power to conduct peace negotiations with
rebel groups, the President is in a singular position to know the precise nature of their
grievances which, if resolved, may bring an end to hostilities.

The President may not, of course, unilaterally implement the solutions that she considers
viable, but she may not be prevented from submitting them as recommendations to Congress,
which could then, if it is minded, act upon them pursuant to the legal procedures for
constitutional amendment and revision. In particular, Congress would have the option,
pursuant to Article XVII, Sections 1 and 3 of the Constitution, to propose the recommended
amendments or revision to the people, call a constitutional convention, or submit to the
electorate the question of calling such a convention.

While the President does not possess constituent powers - as those powers may be exercised
only by Congress, a Constitutional Convention, or the people through initiative and referendum
- she may submit proposals for constitutional change to Congress in a manner that does not
involve the arrogation of constituent powers.

In Sanidad v. COMELEC,174 in issue was the legality of then President Marcos' act of directly
submitting proposals for constitutional amendments to a referendum, bypassing the interim
National Assembly which was the body vested by the 1973 Constitution with the power to
propose such amendments. President Marcos, it will be recalled, never convened the interim
National Assembly. The majority upheld the President's act, holding that "the urges of absolute
necessity" compelled the President as the agent of the people to act as he did, there being no
interim National Assembly to propose constitutional amendments. Against this ruling, Justices
Teehankee and Muñoz Palma vigorously dissented. The Court's concern at present, however,
is not with regard to the point on which it was then divided in that controversial case, but on
that which was not disputed by either side.

Justice Teehankee's dissent,175 in particular, bears noting. While he disagreed that the
President may directly submit proposed constitutional amendments to a referendum, implicit
in his opinion is a recognition that he would have upheld the President's action along with the
majority had the President convened the interim National Assembly and coursed his proposals
through it. Thus Justice Teehankee opined:

"Since the Constitution provides for the organization of the essential departments of
government, defines and delimits the powers of each and prescribes the manner of
the exercise of such powers, and the constituent power has not been granted to but
has been withheld from the President or Prime Minister, it follows that the President's
questioned decrees proposing and submitting constitutional amendments directly to
the people (without the intervention of the interim National Assembly in whom
 the power is expressly vested) are devoid of constitutional and legal
basis."176 (Emphasis supplied)

From the foregoing discussion, the principle may be inferred that the President - in the course
of conducting peace negotiations - may validly consider implementing even those policies that
require changes to the Constitution, but she may not unilaterally implement them without the
intervention of Congress, or act in any way as if the assent of that body were assumed
as a certainty.

Since, under the present Constitution, the people also have the power to directly propose
amendments through initiative and referendum, the President may also submit her
recommendations to the people, not as a formal proposal to be voted on in a plebiscite similar
to what President Marcos did in Sanidad, but for their independent consideration of whether
these recommendations merit being formally proposed through initiative.

These recommendations, however, may amount to nothing more than the President's
suggestions to the people, for any further involvement in the process of initiative by the Chief
Executive may vitiate its character as a genuine "people's initiative." The only initiative
recognized by the Constitution is that which truly proceeds from the people. As the Court
stated in Lambino v. COMELEC:177

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

It will be observed that the President has authority, as stated in her oath of office, 178 only
to preserve and defend the Constitution. Such presidential power does not, however, extend
to allowing her to change the Constitution, but simply to recommend proposed amendments
or revision. As long as she limits herself to recommending these changes and submits to the
proper procedure for constitutional amendments and revision, her mere recommendation
need not be construed as an unconstitutional act.

The foregoing discussion focused on the President's authority to

propose constitutional amendments, since her authority to propose new legislation is not in
controversy. It has been an accepted practice for Presidents in this jurisdiction to propose new
legislation. One of the more prominent instances the practice is usually done is in the yearly
State of the Nation Address of the President to Congress. Moreover, the annual general
appropriations bill has always been based on the budget prepared by the President, which -
for all intents and purposes - is a proposal for new legislation coming from the President.179

The "suspensive clause" in the MOA-AD viewed in light of the above-discussed

standards

Given the limited nature of the President's authority to propose constitutional amendments,
she cannot guarantee to any third party that the required amendments will eventually be put
in place, nor even be submitted to a plebiscite. The most she could do is submit these
proposals as recommendations either to Congress or the people, in whom constituent powers
are vested.
Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof which
cannot be reconciled with the present Constitution and laws "shall come into force upon
signing of a Comprehensive Compact and upon effecting the necessary changes to the legal
framework." This stipulation does not bear the marks of a suspensive condition - defined in
civil law as a future and uncertain event - but of a term. It is not a question of whether the
necessary changes to the legal framework will be effected, but when. That there is no
uncertainty being contemplated is plain from what follows, for the paragraph goes on to state
that the contemplated changes shall be "with due regard to non derogation of prior
agreements and within the stipulated timeframe to be contained in the Comprehensive
Compact."

Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect the changes to
the legal framework contemplated in the MOA-AD - which changes would include
constitutional amendments, as discussed earlier. It bears noting that,

By the time these changes are put in place, the MOA-AD itself would be counted among
the "prior agreements" from which there could be no derogation.

What remains for discussion in the Comprehensive Compact would merely be the
implementing details for these "consensus points" and, notably, the deadline for effecting the
contemplated changes to the legal framework.

Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of the

President's authority to propose constitutional amendments, it being a virtual guarantee
that the Constitution and the laws of the Republic of the Philippines will certainly be adjusted
to conform to all the "consensus points" found in the MOA-AD. Hence, it must be struck down
as unconstitutional.

A comparison between the "suspensive clause" of the MOA-AD with a similar provision
appearing in the 1996 final peace agreement between the MNLF and the GRP is most
instructive.

As a backdrop, the parties to the 1996 Agreement stipulated that it would be implemented in
two phases. Phase I covered a three-year transitional period involving the putting up of new
administrative structures through Executive Order, such as the Special Zone of Peace and
Development (SZOPAD) and the Southern Philippines Council for Peace and Development
(SPCPD), while Phase II covered the establishment of the new regional autonomous
government through amendment or repeal of R.A. No. 6734, which was then the Organic Act
of the ARMM.

The stipulations on Phase II consisted of specific agreements on the structure of the expanded
autonomous region envisioned by the parties. To that extent, they are similar to the provisions
of the MOA-AD. There is, however, a crucial difference between the two agreements. While
the MOA-AD virtually guarantees that the "necessary changes to the legal framework"
will be put in place, the GRP-MNLF final peace agreement states thus: "Accordingly, these
provisions [on Phase II] shall be recommended by the GRP to Congress for incorporation in
the amendatory or repealing law."

Concerns have been raised that the MOA-AD would have given rise to a binding international
law obligation on the part of the Philippines to change its Constitution in conformity thereto,
on the ground that it may be considered either as a binding agreement under international
law, or a unilateral declaration of the Philippine government to the international community
that it would grant to the Bangsamoro people all the concessions therein stated. Neither
ground finds sufficient support in international law, however.
The MOA-AD, as earlier mentioned in the overview thereof, would have included foreign
dignitaries as signatories. In addition, representatives of other nations were invited to witness
its signing in Kuala Lumpur. These circumstances readily lead one to surmise that the MOA-
AD would have had the status of a binding international agreement had it been signed. An
examination of the prevailing principles in international law, however, leads to the contrary
conclusion.

The Decision on Challenge to Jurisdiction: Lomé Accord Amnesty180 (the Lomé Accord case)
of the Special Court of Sierra Leone is enlightening. The Lomé Accord was a peace agreement
signed on July 7, 1999 between the Government of Sierra Leone and the Revolutionary United
Front (RUF), a rebel group with which the Sierra Leone Government had been in armed
conflict for around eight years at the time of signing. There were non-contracting signatories
to the agreement, among which were the Government of the Togolese Republic, the Economic
Community of West African States, and the UN.

On January 16, 2002, after a successful negotiation between the UN Secretary-General and
the Sierra Leone Government, another agreement was entered into by the UN and that
Government whereby the Special Court of Sierra Leone was established. The sole purpose
of the Special Court, an international court, was to try persons who bore the greatest
responsibility for serious violations of international humanitarian law and Sierra Leonean law
committed in the territory of Sierra Leone since November 30, 1996.

Among the stipulations of the Lomé Accord was a provision for the full pardon of the members
of the RUF with respect to anything done by them in pursuit of their objectives as members of
that organization since the conflict began.

In the Lomé Accord case, the Defence argued that the Accord created an internationally
binding obligation not to prosecute the beneficiaries of the amnesty provided therein, citing,
among other things, the participation of foreign dignitaries and international organizations in
the finalization of that agreement. The Special Court, however, rejected this argument, ruling
that the Lome Accord is not a treaty and that it can only create binding obligations and rights
between the parties in municipal law, not in international law. Hence, the Special Court held,
it is ineffective in depriving an international court like it of jurisdiction.

"37. In regard to the nature of a negotiated settlement of an internal armed conflict it

is easy to assume and to argue with some degree of plausibility, as Defence
counsel for the defendants seem to have done, that the mere fact that in addition
to the parties to the conflict, the document formalizing the settlement is signed
by foreign heads of state or their representatives and representatives of
international organizations, means the agreement of the parties is
internationalized so as to create obligations in international law.

xxxx

40. Almost every conflict resolution will involve the parties to the conflict and the
mediator or facilitator of the settlement, or persons or bodies under whose auspices
the settlement took place but who are not at all parties to the conflict, are not
contracting parties and who do not claim any obligation from the contracting parties or
incur any obligation from the settlement.

41. In this case, the parties to the conflict are the lawful authority of the State
and the RUF which has no status of statehood and is to all intents and purposes
a faction within the state. The non-contracting signatories of the Lomé
Agreement were moral guarantors of the principle that, in the terms of Article
 XXXIV of the Agreement, "this peace agreement is implemented with integrity
and in good faith by both parties". The moral guarantors assumed no legal
obligation. It is recalled that the UN by its representative appended, presumably for
avoidance of doubt, an understanding of the extent of the agreement to be
implemented as not including certain international crimes.

42. An international agreement in the nature of a treaty must create rights and
obligations regulated by international law so that a breach of its terms will be a breach
determined under international law which will also provide principle means of
enforcement. The Lomé Agreement created neither rights nor obligations
capable of being regulated by international law. An agreement such as the Lomé
Agreement which brings to an end an internal armed conflict no doubt creates a
factual situation of restoration of peace that the international community acting
through the Security Council may take note of. That, however, will not convert it
to an international agreement which creates an obligation enforceable in
international, as distinguished from municipal, law. A breach of the terms of such
a peace agreement resulting in resumption of internal armed conflict or creating a
threat to peace in the determination of the Security Council may indicate a reversal of
the factual situation of peace to be visited with possible legal consequences arising
from the new situation of conflict created. Such consequences such as action by the
Security Council pursuant to Chapter VII arise from the situation and not from the
agreement, nor from the obligation imposed by it. Such action cannot be regarded as
a remedy for the breach. A peace agreement which settles an internal armed
conflict cannot be ascribed the same status as one which settles an international
armed conflict which, essentially, must be between two or more warring States.
The Lomé Agreement cannot be characterised as an international instrument. x
x x" (Emphasis, italics and underscoring supplied)

Similarly, that the MOA-AD would have been signed by representatives of States and
international organizations not parties to the Agreement would not have sufficed to vest in it a
binding character under international law.

In another vein, concern has been raised that the MOA-AD would amount to a unilateral
declaration of the Philippine State, binding under international law, that it would comply with
all the stipulations stated therein, with the result that it would have to amend its Constitution
accordingly regardless of the true will of the people. Cited as authority for this view is Australia
v. France,181 also known as the Nuclear Tests Case, decided by the International Court of
Justice (ICJ).

In the Nuclear Tests Case, Australia challenged before the ICJ the legality of France's nuclear
tests in the South Pacific. France refused to appear in the case, but public statements from its
President, and similar statements from other French officials including its Minister of Defence,
that its 1974 series of atmospheric tests would be its last, persuaded the ICJ to dismiss the
case.182 Those statements, the ICJ held, amounted to a legal undertaking addressed to the
international community, which required no acceptance from other States for it to become
effective.

Essential to the ICJ ruling is its finding that the French government intended to be bound to
the international community in issuing its public statements, viz:

43. It is well recognized that declarations made by way of unilateral acts, concerning
legal or factual situations, may have the effect of creating legal obligations.
Declarations of this kind may be, and often are, very specific. When it is the intention
of the State making the declaration that it should become bound according to
 its terms, that intention confers on the declaration the character of a legal
undertaking, the State being thenceforth legally required to follow a course of
conduct consistent with the declaration. An undertaking of this kind, if given
publicly, and with an intent to be bound, even though not made within the context of
international negotiations, is binding. In these circumstances, nothing in the nature of
a quid pro quo nor any subsequent acceptance of the declaration, nor even any reply
or reaction from other States, is required for the declaration to take effect, since such
a requirement would be inconsistent with the strictly unilateral nature of the juridical
act by which the pronouncement by the State was made.

44. Of course, not all unilateral acts imply obligation; but a State may choose to
take up a certain position in relation to a particular matter with the intention of
being bound-the intention is to be ascertained by interpretation of the act. When
States make statements by which their freedom of action is to be limited, a restrictive
interpretation is called for.

xxxx

51. In announcing that the 1974 series of atmospheric tests would be the last,
the French Government conveyed to the world at large, including the Applicant,
its intention effectively to terminate these tests. It was bound to assume that
other States might take note of these statements and rely on their being
effective. The validity of these statements and their legal consequences must be
considered within the general framework of the security of international
intercourse, and the confidence and trust which are so essential in the relations
among States. It is from the actual substance of these statements, and from the
circumstances attending their making, that the legal implications of the
unilateral act must be deduced. The objects of these statements are clear and
they were addressed to the international community as a whole, and the Court
holds that they constitute an undertaking possessing legal effect. The Court
considers *270 that the President of the Republic, in deciding upon the effective
cessation of atmospheric tests, gave an undertaking to the international community to
which his words were addressed. x x x (Emphasis and underscoring supplied)

As gathered from the above-quoted ruling of the ICJ, public statements of a state
representative may be construed as a unilateral declaration only when the following conditions
are present: the statements were clearly addressed to the international community, the state
intended to be bound to that community by its statements, and that not to give legal effect to
those statements would be detrimental to the security of international intercourse. Plainly,
unilateral declarations arise only in peculiar circumstances.

The limited applicability of the Nuclear Tests Case ruling was recognized in a later case
decided by the ICJ entitled Burkina Faso v. Mali,183 also known as the Case Concerning the
Frontier Dispute. The public declaration subject of that case was a statement made by the
President of Mali, in an interview by a foreign press agency, that Mali would abide by the
decision to be issued by a commission of the Organization of African Unity on a frontier dispute
then pending between Mali and Burkina Faso.

Unlike in the Nuclear Tests Case, the ICJ held that the statement of Mali's President was not
a unilateral act with legal implications. It clarified that its ruling in the Nuclear Tests case rested
on the peculiar circumstances surrounding the French declaration subject thereof, to wit:

40. In order to assess the intentions of the author of a unilateral act, account must be
taken of all the factual circumstances in which the act occurred. For example, in the
 Nuclear Tests cases, the Court took the view that since the applicant States were
not the only ones concerned at the possible continuance of atmospheric testing
by the French Government, that Government's unilateral declarations had
‘conveyed to the world at large, including the Applicant, its intention effectively
to terminate these tests‘ (I.C.J. Reports 1974, p. 269, para. 51; p. 474, para. 53). In
the particular circumstances of those cases, the French Government could not
express an intention to be bound otherwise than by unilateral declarations. It is
difficult to see how it could have accepted the terms of a negotiated solution
with each of the applicants without thereby jeopardizing its contention that its
conduct was lawful. The circumstances of the present case are radically
different. Here, there was nothing to hinder the Parties from manifesting an
intention to accept the binding character of the conclusions of the Organization
of African Unity Mediation Commission by the normal method: a formal
agreement on the basis of reciprocity. Since no agreement of this kind was
concluded between the Parties, the Chamber finds that there are no grounds to
interpret the declaration made by Mali's head of State on 11 April 1975 as a unilateral
act with legal implications in regard to the present case. (Emphasis and underscoring
supplied)

Assessing the MOA-AD in light of the above criteria, it would not have amounted to a unilateral
declaration on the part of the Philippine State to the international community. The Philippine
panel did not draft the same with the clear intention of being bound thereby to the international
community as a whole or to any State, but only to the MILF. While there were States and
international organizations involved, one way or another, in the negotiation and projected
signing of the MOA-AD, they participated merely as witnesses or, in the case of Malaysia, as
facilitator. As held in the Lomé Accord case, the mere fact that in addition to the parties to the
conflict, the peace settlement is signed by representatives of states and international
organizations does not mean that the agreement is internationalized so as to create
obligations in international law.

Since the commitments in the MOA-AD were not addressed to States, not to give legal effect
to such commitments would not be detrimental to the security of international intercourse - to
the trust and confidence essential in the relations among States.

In one important respect, the circumstances surrounding the MOA-AD are closer to that
of Burkina Faso wherein, as already discussed, the Mali President's statement was not held
to be a binding unilateral declaration by the ICJ. As in that case, there was also nothing to
hinder the Philippine panel, had it really been its intention to be bound to other States, to
manifest that intention by formal agreement. Here, that formal agreement would have come
about by the inclusion in the MOA-AD of a clear commitment to be legally bound to the
international community, not just the MILF, and by an equally clear indication that the
signatures of the participating states-representatives would constitute an acceptance of that
commitment. Entering into such a formal agreement would not have resulted in a loss of face
for the Philippine government before the international community, which was one of the
difficulties that prevented the French Government from entering into a formal agreement with
other countries. That the Philippine panel did not enter into such a formal agreement suggests
that it had no intention to be bound to the international community. On that ground, the MOA-
AD may not be considered a unilateral declaration under international law.

The MOA-AD not being a document that can bind the Philippines under international law
notwithstanding, respondents' almost consummated act of guaranteeing amendments to
the legal framework is, by itself, sufficient to constitute grave abuse of discretion. The
grave abuse lies not in the fact that they considered, as a solution to the Moro Problem, the
creation of a state within a state, but in their brazen willingness to guarantee that Congress
and the sovereign Filipino people would give their imprimatur to their solution.
Upholding such an act would amount to authorizing a usurpation of the constituent powers
vested only in Congress, a Constitutional Convention, or the people themselves through the
process of initiative, for the only way that the Executive can ensure the outcome of the
amendment process is through an undue influence or interference with that process.

The sovereign people may, if it so desired, go to the extent of giving up a portion of its own
territory to the Moros for the sake of peace, for it can change the Constitution in any it wants,
so long as the change is not inconsistent with what, in international law, is known as Jus
Cogens.184 Respondents, however, may not preempt it in that decision.

SUMMARY

The petitions are ripe for adjudication. The failure of respondents to consult the local
government units or communities affected constitutes a departure by respondents from their
mandate under E.O. No. 3. Moreover, respondents exceeded their authority by the mere act
of guaranteeing amendments to the Constitution. Any alleged violation of the Constitution by
any branch of government is a proper matter for judicial review.

As the petitions involve constitutional issues which are of paramount public interest or of
transcendental importance, the Court grants the petitioners, petitioners-in-intervention and
intervening respondents the requisite locus standi in keeping with the liberal stance adopted
in David v. Macapagal-Arroyo.

Contrary to the assertion of respondents that the non-signing of the MOA-AD and the eventual
dissolution of the GRP Peace Panel mooted the present petitions, the Court finds that the
present petitions provide an exception to the "moot and academic" principle in view of (a) the
grave violation of the Constitution involved; (b) the exceptional character of the situation and
paramount public interest; (c) the need to formulate controlling principles to guide the bench,
the bar, and the public; and (d) the fact that the case is capable of repetition yet evading
review.

The MOA-AD is a significant part of a series of agreements necessary to carry out the GRP-
MILF Tripoli Agreement on Peace signed by the government and the MILF back in June 2001.
Hence, the present MOA-AD can be renegotiated or another one drawn up that could contain
similar or significantly dissimilar provisions compared to the original.

The Court, however, finds that the prayers for mandamus have been rendered moot in view
of the respondents' action in providing the Court and the petitioners with the official copy of
the final draft of the MOA-AD and its annexes.

The people's right to information on matters of public concern under Sec. 7, Article III of the
Constitution is in splendid symmetry with the state policy of full public disclosure of all its
transactions involving public interest under Sec. 28, Article II of the Constitution. The right to
information guarantees the right of the people to demand information, while Section 28
recognizes the duty of officialdom to give information even if nobody demands. The complete
and effective exercise of the right to information necessitates that its complementary provision
on public disclosure derive the same self-executory nature, subject only to reasonable
safeguards or limitations as may be provided by law.

The contents of the MOA-AD is a matter of paramount public concern involving public interest
in the highest order. In declaring that the right to information contemplates steps and
negotiations leading to the consummation of the contract, jurisprudence finds no distinction as
to the executory nature or commercial character of the agreement.
An essential element of these twin freedoms is to keep a continuing dialogue or process of
communication between the government and the people. Corollary to these twin rights is the
design for feedback mechanisms. The right to public consultation was envisioned to be a
species of these public rights.

At least three pertinent laws animate these constitutional imperatives and justify the exercise
of the people's right to be consulted on relevant matters relating to the peace agenda.

One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both national
and local levels and for a principal forum for consensus-building. In fact, it is the duty of the
Presidential Adviser on the Peace Process to conduct regular dialogues to seek relevant
information, comments, advice, and recommendations from peace partners and concerned
sectors of society.

Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national
offices to conduct consultations before any project or program critical to the environment and
human ecology including those that may call for the eviction of a particular group of people
residing in such locality, is implemented therein. The MOA-AD is one peculiar program that
unequivocally and unilaterally vests ownership of a vast territory to the Bangsamoro people,
which could pervasively and drastically result to the diaspora or displacement of a great
number of inhabitants from their total environment.

Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clear-
cut procedure for the recognition and delineation of ancestral domain, which entails, among
other things, the observance of the free and prior informed consent of the Indigenous Cultural
Communities/Indigenous Peoples. Notably, the statute does not grant the Executive
Department or any government agency the power to delineate and recognize an ancestral
domain claim by mere agreement or compromise.

The invocation of the doctrine of executive privilege as a defense to the general right to
information or the specific right to consultation is untenable. The various explicit legal
provisions fly in the face of executive secrecy. In any event, respondents effectively waived
such defense after it unconditionally disclosed the official copies of the final draft of the MOA-
AD, for judicial compliance and public scrutiny.

In sum, the Presidential Adviser on the Peace Process committed grave abuse of discretion
when he failed to carry out the pertinent consultation process, as mandated by E.O. No. 3,
Republic Act No. 7160, and Republic Act No. 8371. The furtive process by which the MOA-
AD was designed and crafted runs contrary to and in excess of the legal authority, and
amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof. It
illustrates a gross evasion of positive duty and a virtual refusal to perform the duty enjoined.

The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific
provisions but the very concept underlying them, namely, the associative relationship
envisioned between the GRP and the BJE, are unconstitutional, for the concept
presupposes that the associated entity is a state and implies that the same is on its way to
independence.

While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with the
present legal framework will not be effective until that framework is amended, the same does
not cure its defect. The inclusion of provisions in the MOA-AD establishing an associative
relationship between the BJE and the Central Government is, itself, a violation of the
Memorandum of Instructions From The President dated March 1, 2001, addressed to the
government peace panel. Moreover, as the clause is worded, it virtually guarantees that the
necessary amendments to the Constitution and the laws will eventually be put in place. Neither
the GRP Peace Panel nor the President herself is authorized to make such a guarantee.
Upholding such an act would amount to authorizing a usurpation of the constituent powers
vested only in Congress, a Constitutional Convention, or the people themselves through the
process of initiative, for the only way that the Executive can ensure the outcome of the
amendment process is through an undue influence or interference with that process.

While the MOA-AD would not amount to an international agreement or unilateral declaration
binding on the Philippines under international law, respondents' act of guaranteeing
amendments is, by itself, already a constitutional violation that renders the MOA-AD fatally
defective.

WHEREFORE, respondents' motion to dismiss is DENIED. The main and intervening petitions
are GIVEN DUE COURSE and hereby GRANTED.

The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli
Agreement on Peace of 2001 is declared contrary to law and the Constitution.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice
 • Lambino v. COMELEC, G.R. No. 174153, October 25, 2006

G.R. No. 174153 October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH 6,327,952 REGISTERED

VOTERS, Petitioners,
vs.
THE COMMISSION ON ELECTIONS, Respondent.

x——————————————————–x

ALTERNATIVE LAW GROUPS, INC., Intervenor.

x —————————————————— x

ONEVOICE INC., CHRISTIAN S.MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III,

BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE, and CARLOS P. MEDINA, JR., Intervenors.

x—————————————————— x

ATTY. PETE QUIRINO QUADRA, Intervenor.

x——————————————————–x

BAYAN represented by its Chairperson Dr. Carolina Pagaduan-Araullo, BAYAN MUNA

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

x——————————————————–x

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

x——————————————————–x

ARTURO M. DE CASTRO, Intervenor.

x ——————————————————- x

TRADE UNION CONGRESS OF THE PHILIPPINES, Intervenor.

x———————————————————x
LUWALHATI RICASA ANTONINO, Intervenor.

x ——————————————————- x

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS

C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR.,
FORTUNATO P. AGUAS, and AMADO GAT INCIONG, Intervenors.

x ——————————————————- x

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

x ——————————————————– x

PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and MR.

VICTORINO F. BALAIS, Intervenors.

x ——————————————————– x

SENATE OF THE PHILIPPINES, represented by its President, MANUEL VILLAR,

JR., Intervenor.

x ——————————————————- x

SULONG BAYAN MOVEMENT FOUNDATION, INC., Intervenor.

x ——————————————————- x

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

x ——————————————————– x

INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND CEBU PROVINCE

CHAPTERS, Intervenors.

x ——————————————————–x

SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR. and SENATORS SERGIO R.

OSMENA III, JAMBY MADRIGAL, JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO
LACSON, Intervenors.

x —————————————————–x

JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO, Intervenors.

x —————————————————–x

G.R. No. 174299 October 25, 2006

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

DECISION

CARPIO, J.:

The Case

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

Antecedent Facts

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

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

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

DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987

CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT
BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM, AND
PROVIDING ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT
FROM ONE SYSTEM TO THE OTHER?

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

The Ruling of the COMELEC

On 31 August 2006, the COMELEC issued its Resolution denying due course to the Lambino
Group’s petition for lack of an enabling law governing initiative petitions to amend the
Constitution. The COMELEC invoked this Court’s ruling in Santiago v. Commission on
Elections8 declaring RA 6735 inadequate to implement the initiative clause on proposals to
amend the Constitution.9
In G.R. No. 174153, the Lambino Group prays for the issuance of the writs of certiorari and
mandamus to set aside the COMELEC Resolution of 31 August 2006 and to compel the
COMELEC to give due course to their initiative petition. The Lambino Group contends that the
COMELEC committed grave abuse of discretion in denying due course to their petition
since Santiago is not a binding precedent. Alternatively, the Lambino Group claims
that Santiago binds only the parties to that case, and their petition deserves cognizance as
an expression of the “will of the sovereign people.”

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

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

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

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

The Issues

The petitions raise the following issues:

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

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

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

The Ruling of the Court

There is no merit to the petition.

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

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

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

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

The deliberations of the Constitutional Commission vividly explain the meaning of an

amendment “directly proposed by the people through initiative upon a petition,” thus:

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

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

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

MR. SUAREZ: The people themselves, Madam President.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Province: City/Municipality: No. of

Legislative District: Barangay: VerifiedSignatures:

PROPOSITION: “DO YOU APPROVE OF THE AMENDMENT OF ARTICLES VI AND VII OF

THE 1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE
PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM
OF GOVERNMENT, IN ORDER TO ACHIEVE GREATER EFFICIENCY, SIMPLICITY AND
ECONOMY IN GOVERNMENT; AND PROVIDING AN ARTICLE XVIII AS TRANSITORY
PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO ANOTHER?”

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

Precinct Name Address Birthdate Signature Verification

Number
Last Name, First MM/DD/YY
Name, M.I.
1
2
3
4
5
6
7
8
9
10
_________________ _________________ __________________
Barangay OfficialWitness Witness
(Print Name and Sign) (Print Name and Sign) (Print Name and Sign)

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

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

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

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

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

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

RESOLUTION NO. 2006-02

RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLE’S CONSULTATIVE

COMMISSION ON CHARTER CHANGE THROUGH PEOPLE’S INITIATIVE AND REFERENDUM
AS A MODE OF AMENDING THE 1987 CONSTITUTION

WHEREAS, there is a need for the Union of Local Authorities of the Philippines (ULAP) to adopt
a common stand on the approach to support the proposals of the People’s Consultative
Commission on Charter Change;
WHEREAS, ULAP maintains its unqualified support to the agenda of Her Excellency President
Gloria Macapagal-Arroyo for constitutional reforms as embodied in the ULAP Joint Declaration
for Constitutional Reforms signed by the members of the ULAP and the majority coalition of
the House of Representatives in Manila Hotel sometime in October 2005;

WHEREAS, the People’s Consultative Commission on Charter Change created by Her

Excellency to recommend amendments to the 1987 Constitution has submitted its final report
sometime in December 2005;

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

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

WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, THAT ALL THE MEMBER-

LEAGUES OF THE UNION OF LOCAL AUTHORITIES OF THE PHILIPPINES (ULAP) SUPPORT
THE PORPOSALS (SIC) OF THE PEOPLE’S CONSULATATIVE (SIC) COMMISSION ON
CHARTER CHANGE THROUGH PEOPLE’S INITIATIVE AND REFERENDUM AS A MODE OF
AMENDING THE 1987 CONSTITUTION;

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

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

For example, the proposed revisions of the Consultative Commission affect all provisions of
the existing Constitution, from the Preamble to the Transitory Provisions. The proposed
revisions have profound impact on the Judiciary and the National Patrimony provisions of the
existing Constitution, provisions that the Lambino Group’s proposed changes do not touch.
The Lambino Group’s proposed changes purport to affect only Articles VI and VII of the
existing Constitution, including the introduction of new Transitory Provisions.

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

In their Manifestation explaining their amended petition before the COMELEC, the Lambino
Group declared:
After the Petition was filed, Petitioners belatedly realized that the proposed amendments
alleged in the Petition, more specifically, paragraph 3 of Section 4 and paragraph 2 of Section
5 of the Transitory Provisions were inaccurately stated and failed to correctly reflect their
proposed amendments.

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

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

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

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

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

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

Indeed, it is basic in American jurisprudence that the proposed amendment must be

incorporated with, or attached to, the initiative petition signed by the people. In the present
initiative, the Lambino Group’s proposed changes were not incorporated with, or attached to,
the signature sheets. The Lambino Group’s citation of Corpus Juris Secundum pulls the rug
from under their feet.

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

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

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

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

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

In any event, the Lambino Group’s signature sheets do not contain the full text of the proposed
changes, either on the face of the signature sheets, or as attachment with an indication in the
signature sheet of such attachment. Petitioner Atty. Lambino admitted this during the oral
arguments, and this admission binds the Lambino Group. This fact is also obvious from a
mere reading of the signature sheet. This omission is fatal. The failure to so include the text
of the proposed changes in the signature sheets renders the initiative void for non-compliance
with the constitutional requirement that the amendment must be “directly proposed by the
people through initiative upon a petition.” The signature sheet is not the “petition” envisioned
in the initiative clause of the Constitution.

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

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

2. The interim Parliament can continue to function indefinitely until its members, who are
almost all the present members of Congress, decide to call for new parliamentary elections.
Thus, the members of the interim Parliament will determine the expiration of their own term
of office; 27
3. Within 45 days from the ratification of the proposed changes, the interim Parliament shall
convene to propose further amendments or revisions to the Constitution.28

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

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

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

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

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

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

Thus, the members of the interim Parliament will decide the expiration of their own term of
office. This allows incumbent members of the House of Representatives to hold office beyond
their current three-year term of office, and possibly even beyond the five-year term of office of
regular members of the Parliament. Certainly, this is contrary to the representations of Atty.
Lambino and his group to the 6.3 million people who signed the signature sheets. Atty.
Lambino and his group deceived the 6.3 million signatories, and even the entire nation.

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

The Lambino Group’s initiative springs another surprise on the people who signed the
signature sheets. The proposed changes mandate the interim Parliament to make further
amendments or revisions to the Constitution. The proposed Section 4(4), Article XVIII on
Transitory Provisions, provides:
Section 4(4). Within forty-five days from ratification of these amendments, the interim
Parliament shall convene to propose amendments to, or revisions of, this
Constitution consistent with the principles of local autonomy, decentralization and a strong
bureaucracy. (Emphasis supplied)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Constitution entrusts to the people the power to directly propose amendments to the
Constitution. This Court trusts the wisdom of the people even if the members of this Court do
not personally know the people who sign the petition. However, this trust emanates from a
fundamental assumption: the full text of the proposed amendment is first shown to the
people before they sign the petition, not after they have signed the petition.
In short, the Lambino Group’s initiative is void and unconstitutional because it dismally fails to
comply with the requirement of Section 2, Article XVII of the Constitution that the initiative must
be “directly proposed by the people through initiative upon a petition.”

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

A people’s initiative to change the Constitution applies only to an amendment of the

Constitution and not to its revision. In contrast, Congress or a constitutional convention can
propose both amendments and revisions to the Constitution. Article XVII of the Constitution
provides:

ARTICLE XVII
AMENDMENTS OR REVISIONS

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

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

(2) A constitutional convention.

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

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

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

MR. SUAREZ: Thank you, Madam President.

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

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

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

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

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

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

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

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

xxxx

MR. MAAMBONG: My first question: Commissioner Davide’s proposed amendment on line

1 refers to “amendments.” Does it not cover the word “revision” as defined by Commissioner
Padilla when he made the distinction between the words “amendments” and “revision”?

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

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

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

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

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

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

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

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

To call it an amendment is a misnomer.

Whether it be a revision or a new constitution, it is not such a measure as can be submitted

to the people through the initiative. If a revision, it is subject to the requirements of Article XVII,
Section 2(1); if a new constitution, it can only be proposed at a convention called in the manner
provided in Article XVII, Section 1. x x x x

Similarly, in this jurisdiction there can be no dispute that a people’s initiative can only propose
amendments to the Constitution since the Constitution itself limits initiatives to amendments.
There can be no deviation from the constitutionally prescribed modes of revising the
Constitution. A popular clamor, even one backed by 6.3 million signatures, cannot justify a
deviation from the specific modes prescribed in the Constitution itself.

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

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

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

The question is, does the Lambino Group’s initiative constitute an amendment or revision of
the Constitution? If the Lambino Group’s initiative constitutes a revision, then the present
petition should be dismissed for being outside the scope of Section 2, Article XVII of the
Constitution.
Courts have long recognized the distinction between an amendment and a revision of a
constitution. One of the earliest cases that recognized the distinction described the
fundamental difference in this manner:

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

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

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

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

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

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

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

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

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

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

The proposal here to amend Section 1 of Article III of the 1968 Constitution to provide for a
Unicameral Legislature affects not only many other provisions of the Constitution but
provides for a change in the form of the legislative branch of government, which has been in
existence in the United States Congress and in all of the states of the nation, except one, since
the earliest days. It would be difficult to visualize a more revolutionary change. The concept
of a House and a Senate is basic in the American form of government. It would not only
radically change the whole pattern of government in this state and tear apart the whole fabric
of the Constitution, but would even affect the physical facilities necessary to carry on
government.

xxxx

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

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

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

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

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

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

99. With this distinction in mind, we note that the constitutional provisions expressly provide
for both “amendment” and “revision” when it speaks of legislators and constitutional delegates,
while the same provisions expressly provide only for “amendment” when it speaks of the
people. It would seem that the apparent distinction is based on the actual experience of the
people, that on one hand the common people in general are not expected to work full-time on
the matter of correcting the constitution because that is not their occupation, profession or
vocation; while on the other hand, the legislators and constitutional convention delegates
are expected to work full-time on the same matter because that is their occupation, profession
or vocation. Thus, the difference between the words “revision” and “amendment” pertain
only to the process or procedure of coming up with the corrections, for purposes of
interpreting the constitutional provisions.

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

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

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

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

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

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

We first address Mabon’s argument that Article XVII, section 2(1), does not prohibit revisions
instituted by initiative. In Holmes v. Appling, x x x, the Supreme Court concluded that a revision
of the constitution may not be accomplished by initiative, because of the provisions of Article
XVII, section 2. After reviewing Article XVII, section1, relating to proposed amendments, the
court said:

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

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

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

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

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

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

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

However, there can be no fixed rule on whether a change is an amendment or a revision. A

change in a single word of one sentence of the Constitution may be a revision and not an
amendment. For example, the substitution of the word “republican” with “monarchic” or
“theocratic” in Section 1, Article II50 of the Constitution radically overhauls the entire structure
of government and the fundamental ideological basis of the Constitution. Thus, each specific
change will have to be examined case-by-case, depending on how it affects other provisions,
as well as how it affects the structure of government, the carefully crafted system of checks-
and-balances, and the underlying ideological basis of the existing Constitution.

Since a revision of a constitution affects basic principles, or several provisions of a constitution,

a deliberative body with recorded proceedings is best suited to undertake a revision. A
revision requires harmonizing not only several provisions, but also the altered principles with
those that remain unaltered. Thus, constitutions normally authorize deliberative bodies like
constituent assemblies or constitutional conventions to undertake revisions. On the other
hand, constitutions allow people’s initiatives, which do not have fixed and identifiable
deliberative bodies or recorded proceedings, to undertake only amendments and not
revisions.

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

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

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

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

The irreconcilable inconsistency envisioned in the proposed Section 2 of the Transitory

Provisions is not between a provision in Article VI of the 1987 Constitution and a provision in
the proposed changes. The inconsistency is between a provision in Article VI of the 1987
Constitution and the “Parliamentary system of government,” and the inconsistency shall be
resolved in favor of a “unicameral parliamentary form of government.”

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

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

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

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

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

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

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

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

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

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

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

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

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

5. Conclusion

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

To allow such change in the fundamental law is to set adrift the Constitution in unchartered
waters, to be tossed and turned by every dominant political group of the day. If this Court
allows today a cavalier change in the Constitution outside the constitutionally prescribed
modes, tomorrow the new dominant political group that comes will demand its own set of
changes in the same cavalier and unconstitutional fashion. A revolving-door constitution does
not augur well for the rule of law in this country.
An overwhelming majority—16,622,111 voters comprising 76.3 percent of the total votes
cast53—approved our Constitution in a national plebiscite held on 11 February 1987. That
approval is the unmistakable voice of the people, the full expression of the people’s
sovereign will. That approval included the prescribed modes for amending or revising the
Constitution.

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

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

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

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

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

SO ORDERED.

Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-

Martinez, Corona, Carpio Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, Garcia, and
Velasco, Jr., JJ., concur.

Notes:

1
Including Sigaw ng Bayan and Union of Local Authorities of the Philippines (ULAP).

2
This provision states: “Requirements. — x x x x

(b) A petition for an initiative on the 1987 Constitution must have at least twelve per centum
(12%) of the total number of registered voters as signatories, of which every legislative district
must be represented by at least three per centum (3%) of the registered voters therein.
Initiative on the Constitution may be exercised only after five (5) years from the ratification of
the 1987 Constitution and only once every five (5) years thereafter.

(c) The petition shall state the following:

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

c.2. the proposition;

c.3. the reason or reasons therefor;

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

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

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

3
This provision states: “Verification of Signatures. — The Election Registrar shall verify the
signatures on the basis of the registry list of voters, voters’ affidavits and voters identification
cards used in the immediately preceding election.”

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

Section 1. (1) The legislative and executive powers shall be vested in a unicameral Parliament
which shall be composed of as many members as may be provided by law, to be apportioned
among the provinces, representative districts, and cities in accordance with the number of
their respective inhabitants, with at least three hundred thousand inhabitants per district, and
on the basis of a uniform and progressive ratio. Each district shall comprise, as far as
practicable, contiguous, compact and adjacent territory, and each province must have at least
one member.

(2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at least
twenty-five years old on the day of the election, a resident of his district for at least one year
prior thereto, and shall be elected by the qualified voters of his district for a term of five years
without limitation as to the number thereof, except those under the party-list system which
shall be provided for by law and whose number shall be equal to twenty per centum of the
total membership coming from the parliamentary districts.

5
Sections 1, 2, 3, and 4 of Article VII will be changed thus:

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

6
Sections 1-5 of the Transitory Provisions read:

Section 1. (1) The incumbent President and Vice President shall serve until the expiration of
their term at noon on the thirtieth day of June 2010 and shall continue to exercise their powers
under the 1987 Constitution unless impeached by a vote of two thirds of all the members of
the interim parliament.
(2) In case of death, permanent disability, resignation or removal from office of the incumbent
President, the incumbent Vice President shall succeed as President. In case of death,
permanent disability, resignation or removal from office of both the incumbent President and
Vice President, the interim Prime Minister shall assume all the powers and responsibilities of
Prime Minister under Article VII as amended.

Section 2. Upon the expiration of the term of the incumbent President and Vice President, with
the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall
hereby be amended and Sections 18 and 24 which shall be deleted, all other sections of Article
VI are hereby retained and renumbered sequentially as Section 2, ad seriatim up to 26, unless
they are inconsistent with the Parliamentary system of government, in which case, they shall
be amended to conform with a unicameral parliamentary form of government; provided,
however, that any and all references therein to “Congress”, “Senate”, “House of
Representatives” and “Houses of Congress” shall be changed to read “Parliament”; that any
and all references therein to “Member[s] of Congress”, “Senator[s]” or “Member[s] of the
House of Representatives” shall be changed to read as “Member[s] of Parliament” and any
and all references to the “President” and or “Acting President” shall be changed to read “Prime
Minister”.

Section 3. Upon the expiration of the term of the incumbent President and Vice President, with
the exception of Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution which are hereby
amended and Sections 7, 8, 9, 10, 11 and 12 which are hereby deleted, all other Sections of
Article VII shall be retained and renumbered sequentially as Section 2, ad seriatim up to 14,
unless they shall be inconsistent with Section 1 hereof, in which case they shall be deemed
amended so as to conform to a unicameral Parliamentary System of government; provided
however that any and all references therein to “Congress”, “Senate”, “House of
Representatives” and “Houses of Congress” shall be changed to read “Parliament”; that any
and all references therein to “Member[s] of Congress”, “Senator[s]” or “Member[s] of the
House of Representatives” shall be changed to read as “Member[s] of Parliament” and any
and all references to the “President” and or “Acting President” shall be changed to read “Prime
Minister”.

Section 4. (1) There shall exist, upon the ratification of these amendments, an interim
Parliament which shall continue until the Members of the regular Parliament shall have been
elected and shall have qualified. It shall be composed of the incumbent Members of the Senate
and the House of Representatives and the incumbent Members of the Cabinet who are heads
of executive departments.

(2) The incumbent Vice President shall automatically be a Member of Parliament until noon of
the thirtieth day of June 2010. He shall also be a member of the cabinet and shall head a
ministry. He shall initially convene the interim Parliament and shall preside over its sessions
for the election of the interim Prime Minister and until the Speaker shall have been elected by
a majority vote of all the members of the interim Parliament from among themselves.

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

Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate, from
among the members of the interim Parliament, an interim Prime Minister, who shall be elected
by a majority vote of the members thereof. The interim Prime Minister shall oversee the various
ministries and shall perform such powers and responsibilities as may be delegated to him by
the incumbent President.
(2) The interim Parliament shall provide for the election of the members of Parliament, which
shall be synchronized and held simultaneously with the election of all local government
officials. Thereafter, the Vice President, as Member of Parliament, shall immediately convene
the Parliament and shall initially preside over its session for the purpose of electing the Prime
Minister, who shall be elected by a majority vote of all

its members, from among themselves. The duly elected Prime Minister shall continue to
exercise and perform the powers, duties and responsibilities of the interim Prime Minister until
the expiration of the term of incumbent President and Vice President.

7
As revised, Article XVIII contained a new paragraph in Section 4 (paragraph 3) and a
modified paragraph 2, Section 5, thus:

Section 4. x x x x

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

xxxx

Section 5. x x x x

(2) The interim Parliament shall provide for the election of the members of Parliament, which
shall be synchronized and held simultaneously with the election of all local government
officials. The duly elected Prime Minister shall continue to exercise and perform the powers,
duties and responsibilities of the interim Prime Minister until the expiration of the term of the
incumbent President and Vice President.

8
336 Phil. 848 (1997); Resolution dated 10 June 1997.

9
The COMELEC held:

We agree with the Petitioners that this Commission has the solemn Constitutional duty to
enforce and administer all laws and regulations relative to the conduct of, as in this case,
initiative.

This mandate, however, should be read in relation to the other provisions of the Constitution
particularly on initiative.

Section 2, Article XVII of the 1987 Constitution provides:

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

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

The afore-quoted provision of the Constitution being a non self-executory provision needed
an enabling law for its implementation. Thus, in order to breathe life into the constitutional right
of the people under a system of initiative to directly propose, enact, approve or reject, in whole
or in part, the Constitution, laws, ordinances, or resolution, Congress enacted Republic Act
No. 6735.
However, the Supreme Court, in the landmark case of Santiago vs. Commission on
Elections struck down the said law for being incomplete, inadequate, or wanting in essential
terms and conditions insofar as initiative on amendments to the Constitution is concerned.

The Supreme Court likewise declared that this Commission should be permanently enjoined
from entertaining or taking cognizance of any petition for initiative on amendments to the
Constitution until a sufficient law shall have been validly enacted to provide for the
implementation of the system.

Thus, even if the signatures in the instant Petition appear to meet the required minimum per
centum of the total number of registered voters, of which every legislative district is
represented by at least three per centum of the registered voters therein, still the Petition
cannot be given due course since the Supreme Court categorically declared R.A. No. 6735 as
inadequate to cover the system of initiative on amendments to the Constitution.

This Commission is not unmindful of the transcendental importance of the right of the people
under a system of initiative. However, neither can we turn a blind eye to the pronouncement
of the High Court that in the absence of a valid enabling law, this right of the people remains
nothing but an “empty right”, and that this Commission is permanently enjoined from
entertaining or taking cognizance of any petition for initiative on amendments to the
Constitution.

Considering the foregoing, We are therefore constrained not to entertain or give due course
to the instant Petition.

10
Arturo M. De Castro; Ronald L. Adamat, Rolando Manuel Rivera, Ruelo Baya; Philippine
Transport and General Workers Organization (PTGWO); Trade Union Congress of the
Philippines; Sulong Bayan Movement Foundation, Inc.

11
Onevoice Inc., Christian S. Monsod, Rene B. Azurin, Manuel L. Quezon III, Benjamin T.
Tolosa, Jr., Susan V. Ople and Carlos P. Medina, Jr.; Alternative Law Groups, Inc.; Atty. Pete
Quirino Quadra; Bayan, Bayan Muna, Kilusang Mayo Uno, Head, Ecumenical Bishops Forum,
Migrante, Gabriela, Gabriela Women’s Party, Anakbayan, League of Filipino Students, Jojo
Pineda, Dr. Darby Santiago, Dr. Reginald Pamugas; Loretta Ann P. Rosales, and Mario Joyo
Aguja, Ana Theresa Hontiveros-Baraquel, Luwalhati Ricasa Antonino; Philippine Constitution
Association (PHILCONSA), Conrado F. Estrella, Tomas C. Toledo, Mariano M. Tajon, Froilan
M. Bacungan, Joaquin T. Venus, Jr., Fortunato P. Aguas, and Amado Gat Inciong; Senate of
the Philippines; Jose Anselmo I. Cadiz, Byron D. Bocar, Ma. Tanya Karina A. Lat, Antonio L.
Salvador and Randall C. Tabayoyong, Integrated Bar of the Philippines, Cebu City and Cebu
Province Chapters; Senate Minority Leader Aquilino Q. Pimentel, Jr., and Senators Sergio R.
Osmeňa III, Jamby Madrigal, Jinggoy Estrada, Alfredo S. Lim and Panfilo Lacson; Joseph
Ejercito Estrada and Pwersa ng Masang Pilipino.

12
This provision states: “Amendments to this Constitution may likewise be directly proposed
by the people through initiative upon a petition of at least twelve per centum of the total number
of registered voters, of which every legislative district must be represented by at least three
per centum of the registered voters therein. No amendment under this section shall be
authorized within five years following the ratification of this Constitution nor oftener than once
every five years.”

13
I RECORD, 387-388.

14
During the deliberations of the Constitutional Commission, Commissioner Rene V.
Sarmiento made the following report (I RECORD 389):
MR. SARMIENTO: Madam President, I am happy that the Committee on Amendments and
Transitory Provisions decided to retain the system of initiative as a mode of amending the
Constitution. I made a survey of American constitutions and I discovered that 13 States
provide for a system of initiative as a mode of amending the Constitution—Arizona, Arkansas,
California, Colorado, Massachusetts, Michigan, Missouri, Nebraska, Nevada, North Dakota,
Ohio, Oklahoma and Oregon. The initiative for ordinary laws only is used in Idaho, Maine,
Montana and South Dakota. So, I am happy that this was accepted or retained by the
Committee.

xxxx

The Americans in turn copied the concept of initiatives from the Swiss beginning in 1898 when
South Dakota adopted the initiative in its constitution. The Swiss cantons experimented with
initiatives in the 1830s. In 1891, the Swiss incorporated the initiative as a mode of amending
their national constitution. Initiatives promote “direct democracy” by allowing the people to
directly propose amendments to the constitution. In contrast, the traditional mode of changing
the constitution is known as “indirect democracy” because the amendments are referred to
the voters by the legislature or the constitutional convention.

15
Florida requires only that the title and summary of the proposed amendment are “printed in
clear and unambiguous language.” Advisory Opinion to the Attorney General RE Right of
Citizens to Choose Health Care Providers, No. 90160, 22January 1998, Supreme Court of
Florida.

16
State ex. rel Patton v. Myers, 127 Ohio St. 95, 186 N.E. 872 (1933); Whitman v. Moore, 59
Ariz. 211, 125 P.2d 445 (1942); Heidtman v. City of Shaker Heights, 99 Ohio App. 415, 119
N.E. 2d 644 (1954); Christen v. Baker, 138 Colo. 27, 328 P.2d 951 (1958); Stop the Pay Hike
Committee v. Town Council of Town of Irvington, 166 N.J. Super. 197, 399 A.2d 336 (1979);
State ex rel Evans v. Blackwell, Slip copy, 2006 WL 1102804 (Ohio App. 10 Dist.), 2006-Ohio-
2076.

17
407 Mass. 949, 955 (1990). Affirmed by the District Court of Massachusetts in Henry v.
Conolly, 743 F. Supp. 922 (1990) and by the Court of Appeals, First Circuit, in Henry v.
Conolly, 9109 F. 2d. 1000 (1990), and cited in Marino v. Town Council of Southbridge, 13
Mass.L.Rptr. 14 (2001).

18
89 P.3d 1227, 1235 (2004).

19
Stumpf v. Law, 839 P. 2d 120, 124 (1992).

20
Exhibit “B” of the Lambino Group’s Memorandum filed on 11 October 2006.

21
Annex “B” of the Comment/Opposition in Intervention of Atty. Pete Quirino-Quadra filed on
7 September 2006.

22
www.ulap.gov.ph.

23
www.ulap.gov.ph/reso2006-02.html.

24
The full text of the proposals of the Consultative Commission on Charter Change can be
downloaded at its official website at www.concom.ph.

25
The Lambino Group’s Memorandum, p. 5.
26
Under the proposed Section 1(2), Article VI of the Constitution, members of Parliament shall
be elected for a term of five years “without limitation as to the number thereof.”

27
Under the proposed Section 4(1), Article XVIII, Transitory Provisions of the Constitution, the
interim Parliament “shall continue until the Members of the regular Parliament shall have been
elected and shall have qualified.” Also, under the proposed Section 5(2), Article XVIII, of the
same Transitory Provisions, the interim Parliament “shall provide for the election of the
members of Parliament.”

28
Under the proposed Section 4(3), Article XVIII, Transitory Provisions of the Constitution, the
interim Parliament, within 45 days from ratification of the proposed changes, “shall convene
to propose amendments to, or revisions of, this Constitution.”

29
448 So.2d 984, 994 (1984), internal citations omitted.

30
698 P.2d 1173, 1184 (1985).

31
I RECORD 386, 392, 402-403.

32
196 P.2d 787, 790 (1948). See also Lowe v. Keisling, 130 Or.App. 1, 882 P.2d 91 (1994).

33
392 P.2d 636, 638 (1964).

34
930 P.2d 186, 196 (1996), internal citations omitted.

35
Livermore v. Waite, 102 Cal. 113, 118-119 (1894).

36
Amador Valley Joint Union High School District v. State Board of Equalization, 583 P.2d
1281, 1286 (1978).

37
Id.

38
Legislature of the State of California v. EU, 54 Cal.3d 492, 509 (1991).

39
California Association of Retail Tobacconists v. State, 109 Cal.App.4th 792, 836 (2003).

40
See note 44, infra.

41
Joaquin Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary,
p. 1294 (2003).

42
238 So.2d 824 (1970).

43
Id. at 830-832.

44
As stated by Associate Justice Romeo J. Callejo, Sr. during the 26 September 2006 oral
arguments.

45
Francisco, Jr. v. House of Representatives, G.R. No. 160261, 10 November 2003, 415
SCRA 44; J.M. Tuason & Co., Inc. v. Land Tenure Administration, 142 Phil. 393 (1970); Gold
Creek Mining Corporation v. Rodriguez, 66 Phil. 259 (1938).
46
882 P.2d 91, 96-97 (1994). On the merits, the Court in Lowe v. Keisling found the
amendment in question was not a revision.

47
Section 1, Article V of the Constitution.

48
Section 11(1), Article XVI of the Constitution.

49
Section 2, Article VII of the Constitution.

50
This section provides: “The Philippines is a democratic and republican State. Sovereignty
resides in the people and all government authority emanates from them.”

51
Spouses Mirasol v. Court of Appeals, 403 Phil. 760 (2001); Intia Jr. v. COA, 366 Phil. 273
(1999).

52
G.R. No. 129754, Resolution dated 23 September 1997.

Presidential Proclamation No. 58 dated February 11, 1987, entitled “Proclaiming the
53

Ratification of the Constitution of the Republic of the Philippines Adopted by the Constitutional
Commission of 1986, including the Ordinance Appended thereto.”

• Lambino v. COMELEC, G.R. No. 174153, November 21, 2006