9.

These amendments shall take effect after the incumbent President shall have
proclaimed that they have been ratified by a majority of the votes cast in the
referendum-plebiscite."cralaw virtua1aw library
The Commission on Elections was vested with the exclusive supervision and
control of the October 1976 National Referendum-Plebiscite.
On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD, father and
son, commenced L-44640 for Prohibition with Preliminary Injunction seeking to
enjoin the Commission on Elections from holding and conducting the
Referendum Plebiscite on October 16; to declare without force and effect
Presidential Decree Nos. 991 and 1033, insofar as they propose amendments to
the Constitution, as well as Presidential Decree No. 1031, insofar as it directs the
Commission on Elections to supervise, control, hold, and conduct the
Referendum-Plebiscite scheduled on October 16, 1976.
Petitioners contend that under the 1935 and 1973 Constitutions there is no grant
to the incumbent President to exercise the constituent power to propose
amendments to the new Constitution. As a consequence, the ReferendumPlebiscite on October 16 has no constitutional or legal basis.
On October 5, 1976, the Solicitor General filed the comment for respondent
Commission on Elections. The Solicitor General principally maintains that
petitioners have no standing to sue; the issue raised is political in nature,
beyond judicial cognizance of this Court; at this state of the transition period,
only the incumbent President has the authority to exercise constituent power;
the referendum-plebiscite is a step towards normalization.
On September 30, 1976, another action for Prohibition with Preliminary
Injunction, docketed as L-44684, was instituted by VICENTE M. GUZMAN, a
delegate to the 1971 Constitutional Convention, asserting that the power to
propose amendments to, or revision of the Constitution during the transition
period is expressly conferred on the interim National Assembly under action 16,
Article XVII of the Constitution. 3
Still another petition for Prohibition with Preliminary Injunction was filed on
October 5, 1976 by RAUL M. GONZALES, his son RAUL, JR., and ALFREDO
SALAPANTAN, docketed as L-44714, to restrain the implementation of
Presidential Decrees relative to the forthcoming Referendum-Plebiscite of
October 16.
These last petitioners argue that even granting him legislative powers under
Martial Law, the incumbent President cannot act as a constituent assembly to
propose amendments to the Constitution; a referendum-plebiscite is untenable
under the Constitutions of 1935 and 1973; the submission of the proposed
amendments in such a short period of time for deliberation renders the
plebiscite a nullity; to lift Martial Law, the President need not consult the people
via referendum; and allowing 15-year olds to vote would amount to an
amendment of the Constitution, which confines the right of suffrage to those
citizens of the Philippines 18 years of age and above.

We find the petitions in the three entitled cases to be devoid of merit.

I
Justiciability of question raised.
1. As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo C.
Sanidad and Pablito V. Sanidad) possess locus standi to challenge the
constitutional premise of Presidential Decree Nos. 991, 1031, and 1033. It is now
an ancient rule that the valid source of a statute Presidential Decrees are of
such nature may be contested by one who will sustain a direct injury as a
result of its enforcement. At the instance of taxpayers, laws providing for the
disbursement of public funds may be enjoined, upon the theory that the
expenditure of public funds by an officer of the State for the purpose of
executing an unconstitutional act constitutes a misapplication of such funds. 4
The breadth of Presidential Decree No. 991 carries an appropriation of Five
Million Pesos for the effective implementation of its purposes. 5 Presidential
Decree No. 1031 appropriates the sum of Eight Million Pesos to carry out its
provisions. 6 The interest of the aforenamed petitioners as taxpayers in the
lawful expenditure of these amounts of public money sufficiently clothes them
with that personality to litigate the validity of the Decrees appropriating said
funds. Moreover, as regards taxpayers suits, this Court enjoys that open
discretion to entertain the same or not. 7 For the present case, We deem it
sound to exercise that discretion affirmatively so that the authority upon which
the disputed Decrees are predicated may be inquired into.
2. The Solicitor General would consider the question at bar as a pure political
one, lying outside the domain of judicial review. We disagree. The amending
process both as to proposal and ratification, raises a judicial question. 8 This is
especially true in cases where the power of the Presidency to initiate the
amending process by proposals of amendments, a function normally exercised
by the legislature, is seriously doubted. Under the terms of the 1973
Constitution, the power to propose amendments to the Constitution resides in
the interim National Assembly during the period of transition (Sec. 15, Transitory
Provisions). After that period, and the regular National Assembly in its active
session, the power to propose amendments becomes ipso facto the prerogative
of the regular National Assembly (Sec. 1, pars. 1 and 2 of Art. XVI, 1973
Constitution). The normal course has not been followed. Rather than calling the
interim National Assembly to constitute itself into a constituent assembly, the
incumbent President undertook the proposal of amendments and submitted the
proposed amendments thru Presidential Decree 1033 to the people in a
Referendum-Plebiscite on October 16. Unavoidably, the regularity of the
procedure for amendments, written in lambent words in the very Constitution
sought to be amended, raises a contestable issue. The implementing
Presidential Decree Nos. 991, 1031, and 1033, which commonly purport to have
the force and effect of legislation are assailed as invalid, thus the issue of the
validity of said Decrees is plainly a justiciable one, within the competence of this
Court to pass upon. Section 2 (2) Article X of the new Constitution provides: "All
cases involving the constitutionality of a treaty, executive agreement, or law

shall be heard and decided by the Supreme Court en banc and no treaty,
executive agreement, or law may be declared unconstitutional without the
concurrence of at least ten Members. . . .." The Supreme Court has the last word
in the construction not only of treaties and statutes, but also of the Constitution
itself. 9 The amending, like all other powers organized in the Constitution, is in
form a delegated and hence a limited power, so that the Supreme Court is
vested with that authority to determine whether that power has been discharged
within its limits.chanrobles law library : red
Political questions are neatly associated with the wisdom, not the legality of a
particular act. Where the vortex of the controversy refers to the legality or
validity of the contested act, that matter is definitely justiciable or non-political.
What is in the heels of the Court is not the wisdom of the act of the incumbent
President in proposing amendments to the Constitution, but his constitutional
authority to perform such act or to assume the power of a constituent assembly.
Whether the amending process confers on the President that power to propose
amendments is therefore a downright justiciable question. Should the contrary
be found, the actuation of the President would merely he a brutum fulmen. If the
Constitution provides how it may be amended, the judiciary as the interpreter of
that Constitution, can declare whether the procedure followed or the authority
assumed was valid or not. 10
We cannot accept the view of the Solicitor General, in pursuing his theory of
non-justiciability, that the question of the Presidents authority to propose
amendments and the regularity of the procedure adopted for submission of the
proposals to the people ultimately lie in the judgment of the latter. A clear
Descartes fallacy of vicious circle. Is it not that the people themselves, by their
sovereign act, provided for the authority and procedure for the amending
process when they ratified the present Constitution in 1973? Whether, therefore,
that constitutional provision has been followed or not is indisputably a proper
subject of inquiry, not by the people themselves of course who exercise no
power of judicial review, but by the Supreme Court in whom the people
themselves vested that power, a power which includes the competence to
determine whether the constitutional norms for amendments have been
observed or not. And, this inquiry must be done a priori not a posteriori, i.e.,
before the submission to and ratification by the people.
Indeed, the precedents evolved by the Court on prior constitutional cases
underline the preference of the Courts majority to treat such issue of
Presidential role in the amending process as one of non-political impression. In
the Plebiscite Cases, 11 the contention of the Solicitor General that the issue on
the legality of Presidential Decree No. 73 "submitting to the Filipino people (on
January 15, 1973) for ratification or rejection the Constitution of the Republic of
the Philippines proposed by the 1971 Constitutional Convention and
appropriating funds therefor, "is a political one, was rejected and the Court
unanimously considered the issue as justiciable in nature. Subsequently, in the
Ratification Cases 12 involving the issue of whether or not the validity of
Presidential Proclamation No. 1102, "announcing the Ratification by the Filipino
people of the Constitution proposed by the 1971 Constitutional Convention,"
partakes of the nature of a political question, the affirmative stand of the

Solicitor General was dismissed, the Court ruled that the question raised is
justiciable. Chief Justice Concepcion, expressing the majority view, said," (T)hus,
in the aforementioned plebiscite cases, We rejected the theory of the
respondents therein that the question-whether Presidential Decree No. 73 calling
a plebiscite to be held on January 15, 1973, for the ratification or rejection of the
proposed new Constitution, was valid or not, was not a proper subject of judicial
inquiry because, they claimed, it partook of a political nature, and We
unanimously declared that the issue was a justiciable one. With identical
unanimity. We overruled the respondents contention in the 1971 habeas
corpus cases, questioning Our authority to determine the constitutional
sufficiency of the factual bases of the Presidential proclamation suspending the
privilege of the writ of habeas corpus on August 21, 1971, despite the opposite
view taken by this Court in Varcelon v. Baker and Montenegro v. Castaeda,
insofar as it adhered to the former case, which view We, accordingly, abandoned
and refused to apply. For the same reason, We did not apply and expressly
modified, in Gonzales v. Commission on Elections, the political-question thereby
adopted in Mabanag v. Lopez Vito." 13 The return to Barcelon v. Baker and
Mabanag v. Lopez Vito, urged by the Solicitor General, was decisively refused by
the Court. Chief Justice Concepcion continued: "The reasons adduced in support
thereof are, however, substantially the same as those given in support of the
political question theory advanced in saidhabeas corpus and plebiscite cases,
which were carefully considered by this Court and found by it to be legally
unsound and constitutionally untenable. As consequence. Our decisions in the
aforementioned habeas corpus cases partakes of the nature and effect of a stare
decisis which gained added weight by its virtual reiteration."cralaw tua1aw
library
II
The amending process as laid out in the new Constitution.
1. Article XVI of the 1973 Constitution on Amendments
ordains:jgc:chanrobles.com.ph
"SECTION 1. (1) Any amendment to, or revision of, this Constitution may be
proposed by the National Assembly upon a vote of three-fourths of all its
Members, or by a constitutional convention.
(2) The National Assembly may, by a vote of two-thirds of all its Members, call a
constitutional convention or, by a majority vote of all its Members, submit the
question of calling such a convention to the electorate in an election.
SECTION 2. Any amendment to, or revision of, this Constitution shall be valid
when ratified by a majority of the votes cast in a plebiscite which shall be held
not later than three months a after the approval of such amendment or
revision."cralaw virtua1aw library
In the present period of transition, the interim National Assembly instituted in
the Transitory Provisions is conferred with that amending power. Section 15 of
the Transitory Provisions reads:jgc:chanrobles.com.ph

"SECTION 15. The interim National Assembly, upon special call by the interim
Prime Minister, may, by a majority vote of all its Members, propose amendments
to this Constitution. Such amendments shall take effect when ratified in
accordance with Article Sixteen hereof."cralaw virtua1aw library
There are, therefore, two periods contemplated in the constitutional life of the
nation, i.e., period of normalcy and period of transition. In times of normalcy, the
amending process may be initiated by the proposals of the (1) regular National
Assembly upon a vote of three-fourths of all its members; or (2) by a
Constitutional Convention called by a vote of two-thirds of all the Members of
the National Assembly. However the calling of a Constitutional Convention may
be submitted to the electorate in an election voted upon by a majority vote of all
the members of the National Assembly. In times of transition, amendments may
be proposed by a majority vote of all the Members of the interim National
Assembly upon special call by the interim Prime Minister.
2. This Court in Aquino v. COMELEC, 14 had already settled that the incumbent
President is vested with that prerogative of discretion as to when he shall initially
convene the interim National Assembly. Speaking for the majority opinion in that
case, Justice Makasiar said: "The Constitutional Convention intended to leave to
the President the determination of the time when he shall initially convene the
interim National Assembly, consistent with the prevailing conditions of peace
and order in the country." Concurring, Justice Fernandez, himself a member of
that Constitutional Convention, revealed:" (W)hen the Delegates to the
Constitutional Convention voted on the Transitory Provisions, they were aware of
the fact that under the same, the incumbent President was given the discretion
as to when he could convene the interim National Assembly; it was so stated
plainly by the sponsor, Delegate Yaneza; as a matter of fact, the proposal that it
be convened immediately, made by Delegate Pimentel (V), was rejected." 15
The Presidents decision to defer the convening of the interim National Assembly
soon found support from the people themselves. In the plebiscite of January 1015, 1973, at which the ratification of the 1973 Constitution was submitted, the
people voted against the convening of the interim National Assembly. In the
referendum of July 24, 1973, the Citizens Assemblies ("bagangays") reiterated
their sovereign will to withhold the convening of the interim National Assembly.
Again, in the referendum of February 27, 1975, the proposed question of
whether the interim National Assembly shall be initially convened was
eliminated, because some of the members of Congress and delegates of the
Constitutional Convention, who were deemed automatically members of the
interim National Assembly, were against its inclusion since in that referendum of
January, 1973, the people had already resolved against it.
3. In sensu striciore, when the legislative arm of the state undertakes the
proposals of amendment to a Constitution, that body is not in the usual function
of lawmaking. It is not legislating when engaged in the amending process. 16
Rather, it is exercising a peculiar power bestowed upon it by the fundamental
charter itself. In the Philippines, that power is provided for in Article XVI of the
1973 Constitution (for the regular National Assembly) or in Section 15 of the
Transitory Provisions (for the interim National Assembly). While ordinarily it is the
business of the legislating body to legislate for the nation by virtue of

constitutional conferment, amending of the Constitution is not legislative in

character. In political science a distinction is made between constitutional
content of an organic character and that of a legislative character. The
distinction, however, is one of policy, not of law. 17 Such being the case,
approval of the President of any proposed amendment is a misnomer. 18 The
prerogative of the President to approve or disapprove applies only to the
ordinary cases of legislation. The President has nothing to do with proposition or
adoption of amendments to the Constitution. 19
III
Concentration of Powers in the President during crisis government.
1. In general, the governmental powers in crisis government the Philippines is
a crisis government today are more or less concentrated in the President. 20
According to Rossiter," (t)he concentration of government power in a democracy
faced by an emergency is a corrective to the crisis inefficiencies inherent in the
doctrine of the separation of powers. In most free states it has generally been
regarded as Imperative that the total power of the government be parceled out
among three mutually independent branches executive, legislature, and
judiciary. It is believed to be distructive of constitutionalism if any one branch
should exercise any two or more types of power, and certainly a total disregard
of the separation of powers is, as Madison wrote in the Federalist, No. 47, the
very definition of tyranny. In normal times the separation of powers forms a
distinct obstruction to arbitrary governmental action. By this same token, in
abnormal times it may form an insurmountable barrier to a decisive emergency
action in behalf of the state and its independent existence. There are moments
in the life of any government when all powers must work together in unanimity
of purpose and action, even if this means the temporary union of executive,
legislative, and judicial power in the hands of one man. The more complete the
separation of powers in a constitutional system, the more difficult and yet the
more necessary will be their fusion in time of crisis." This is evident in a
comparison of the crisis potentialities of the cabinet and presidential systems of
government. In the former the all-important harmony of legislature and
executive is taken for granted; in the latter it is neither guaranteed nor to be to
confidently expected. As a result, cabinet is more easily established and more
trustworthy than presidential dictatorship. The power of the state in crisis must
not only be concentrated and expanded; it must also be freed from the normal
system of constitutional and legal limitations. 21 John Locke, on the other hand,
claims for the executive in its own right a broad discretion capable even of
setting aside the ordinary laws in the meeting of special exigencies for which the
legislative power had not provided. 22 The rationale behind such broad
emergency powers of the Executive is the release of the government from "the
paralysis of constitutional restraints" so that the crisis may be ended and normal
times restored.
2. The presidential exercise of legislative powers in times of martial law is now a
conceded valid act. That sun clear authority of the President is saddled on
Section 3 (pars. 1 and 2) of the Transitory Provisions, thus: 23

"The incumbent President of the Philippines shall initially convene the interim
National Assembly and shall preside over its sessions until the interim Speaker
shall have been elected. He shall continue to exercise his powers and
prerogatives under the nineteen hundred and thirty-five Constitution and the
powers vested in the President and the Prime Minister under this Constitution
until he calls upon the interim National Assembly to elect the interim President
and the interim Prime Minister, who shall then exercise their respective powers
vested by this Constitution.
All proclamations, orders, decrees, instructions, and acts promulgated, issued, or
done by the incumbent President shall be part of the law of the land, and shall
remain valid, binding, and effective even after lifting of martial law or the
ratification of this Constitution, unless modified, revoked, or superseded by
subsequent proclamations, orders, decrees, instructions, or other acts of the
incumbent President, or unless expressly and explicitly modified or repealed by
the regular National Assembly."cralaw virtua1aw library
"It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention
delegate, "that the Constitutional Convention, while giving to the President the
discretion when to call the interim National Assembly to session, and knowing
that it may not be convened soon, would create a vacuum in the exercise of
legislative powers. Otherwise, with no one to exercise the lawmaking powers,
there would be paralyzation of the entire governmental machinery." 24
Paraphrasing Rossiter, this is an extremely important factor in any constitutional
dictatorship which extends over a period of time. The separation of executive
and legislature ordained in the Constitution presents a distinct obstruction to
efficient crisis government. The steady increase in executive power is not too
much a cause for worry as the steady increase in the magnitude and complexity
of the problems the President has been called upon by the Filipino people to
solve in their behalf, which involve rebellion, subversion, secession, recession,
inflation, and economic crisis a. crisis greater than war. In short, while
conventional constitutional law just confines the Presidents power as
Commander-in-Chief to the direction of the operation of the national forces, yet
the facts of our political, social, and economic disturbances had convincingly
shown that in meeting the same, indefinite power should be attributed to the
President to take emergency measures.25cralaw:red
IV
Authority of the incumbent President to propose amendments to the
Constitution.
1. As earlier pointed out, the power to legislate is constitutionally consigned to
the interim National Assembly during the transition period. However, the initial
convening of that Assembly is a matter fully addressed to the judgment of the
incumbent President. And, in the exercise of that judgment, the President opted
to defer convening of that body in utter recognition of the peoples preference.
Likewise, in the period of transition, the power to propose amendments to the
Constitution lies in the interim National Assembly upon special call by the
President (Sec. 15 of the Transitory Provisions). Again, harking to the dictates of

the sovereign will, the President decided not to call the interim National
Assembly. Would it then be within the bounds of the Constitution and of law for
the President to assume that constituent power of the interim Assembly vis-a-vis
his assumption of that bodys legislative functions? The answer is yes. If the
President has been legitimately discharging the legislative functions of the
interim Assembly, there is no reason why he cannot validly discharge the
function of that Assembly to propose amendments to the Constitution, which is
but adjunct, although peculiar, to its gross legislative power. This, of course, is
not to say that the President has converted his office into a constituent assembly
of that nature normally constituted by the legislature. Rather, with the interim
National Assembly not convened and only the Presidency and the Supreme
Court in operation, the urges of absolute necessity render it imperative upon the
President to act as agent for and in behalf of the people to propose amendments
to the Constitution. Parenthetically, by its very constitution, the Supreme Court
possesses no capacity to propose amendments without constitutional
infractions. For the President to shy away from that actuality and decline to
undertake the amending process would leave the governmental machinery at a
stalemate or create in the powers of the State a destructive vacuum, thereby
impeding the objective of a crisis government "to end the crisis and restore
normal times." In these parlous times, that Presidential initiative to reduce into
concrete forms the constant voices of the people reigns supreme. After all,
constituent assemblies or constitutional conventions, like the President now, are
mere agents of the people. 26
2. The Presidents action is not a unilateral move. As early as the referendums of
January 1973 and February 1975, the people had already rejected the calling of
the interim National Assembly. The Lupong Tagapagpaganap of the Katipunan ng
mga Sanggunian, the Pambansang Katipunan ng mga Barangay, and the
Pambansang Katipunan ng mga Barangay, representing 42,000 barangays,
about the same number of Kabataang Barangay organizations, Sanggunians in
1,458 municipalities, 72 provinces, 3 sub-provinces, and 60 cities had informed
the President that the prevailing sentiment of the people is for the abolition of
the interim National Assembly. Other issues concerned the lifting of martial law
and amendments to the Constitution. 27 The national organizations of
Sangguniang Bayan presently proposed to settle the issues of martial law, the
interim Assembly, its replacement, the period of its existence, the length of the
period for the exercise by the President of its present powers in a referendum to
be held on October 16. 28 The Batasang Bayan (legislative council) created
under Presidential Decree 995 of September 10, 1976, composed of 19 cabinet
members, 9 officials with cabinet rank, 91 members of the Lupong
Tagapagpaganap (executive committee) of the Katipunan ng mga Sangguniang
Bayan voted in session to submit directly to the people in a plebiscite on
October 16, the previously quoted proposed amendments to the Constitution,
including the issue of martial law. 29 Similarly, the "barangays" and the
"sanggunians" endorsed to the President the submission of the proposed
amendments to the people on October 16. All the foregoing led the President to
initiate the proposal of amendments to the Constitution and the subsequent
issuance of Presidential Decree No. 1033 on September 22, 1976 submitting the
questions (proposed amendments) to the people in the National ReferendumPlebiscite on October 16.

V
The People as Sovereign.
1. Unlike in a federal state, the location of sovereignty in a unitary state is easily
seen. In the Philippines, a republican and unitary state, sovereignty "resides in
the people and all government authority emanates from them. 30 In its fourth
meaning, Savigny would treat "people" as "that particular organized assembly of
individuals in which, according to the Constitution, the highest power exists." 31
This is the concept of popular sovereignty. It means that the constitutional
legislator, namely, the people, is sovereign. 32 In consequence, the people may
thus write into the Constitution their convictions on any subject they choose in
the absence of express constitutional prohibition. 33 This is because, as Holmes
said, the Constitution "is an experiment, as all life is an experiment." 34 "The
necessities of orderly government," wrote Rottschaefer, "do not require that one
generation should be permitted to permanently fetter all future generations." A
constitution is based, therefore, upon a self-limiting decision of the people when
they adopt it. 35
2. The October 16 referendum-plebiscite is a resounding call to the people to
exercise their sovereign power as constitutional legislator. The proposed
amendments, as earlier discussed, proceed not from the thinking of a single
man. Rather, they are the collated thoughts of the sovereign will reduced only
into enabling forms by the authority who can presently exercise the powers of
the government. In equal vein, the submission of those proposed amendments
and the question of martial law in a referendum-plebiscite expresses but the
option of the people themselves implemented only by the authority of the
President. Indeed, it may well be said that the amending process is a sovereign
act, although the authority to initiate the same and the procedure to be followed
reside somehow in a particular body.
VI
Referendum-Plebiscite not rendered nugatory by the participation of the 15-year
olds.
1. October 16 is in parts a referendum and a plebiscite. The question (1) Do
you want martial law to be continued? is a referendum question, wherein the
15-year olds may participate. This was prompted by the desire of the
Government to reach the larger mass of the people so that their true pulse may
be felt to guide the President in pursuing his program for a New Order. For the
succeeding question on the proposed amendments, only those of voting age of
18 years may participate. This is the plebiscite aspect, as contemplated in
Section 2, Article XVI of the new Constitution. 36 On this second question, it
would only be the votes of those 18 years old and above which will have valid
bearing on the results. The fact that the voting populace are simultaneously
asked to answer the referendum question and the plebiscite question does not
infirm the referendum-plebiscite. There is nothing objectionable in consulting the
people on a given issue, which is of current one and submitting to them for
ratification of proposed constitutional amendments. The fear of commingled
votes (15-year olds and 18-year olds above) is readily dispelled by the provision

of two ballot boxes for every barangay center, one containing the ballots of
voters fifteen years of age and under eighteen, and another containing the
ballots of voters eighteen years of age and above. 37 The ballots in the ballot
box for voters fifteen years of age and under eighteen shall be counted ahead of
the ballots of voters eighteen years and above contained in another ballot box.
And, the results of the referendum-plebiscite shall be separately prepared for the
age groupings, i.e., ballots contained in each of the two boxes. 38
2. It is apt to distinguish here between a "referendum" and a "plebiscite." A
"referendum" is merely consultative in character. It is simply a means of
assessing public reaction to the given issues submitted to the people for their
consideration, the calling of which is derived from or within the totality of the
executive power of the President. 39 It is participated in by all citizens from the
age of fifteen, regardless of whether or not they are illiterates, feeble-minded, or
ex-convicts. 40 A "plebiscite," on the other hand, involves the constituent act of
those "citizens of the Philippines not otherwise disqualified by law, who are
eighteen years of age or over, and who shall have resided in the Philippines for
at least one year and in the place wherein they propose to vote for at least six
months preceding the election." 41 Literacy, property, or any other substantive
requirement is not imposed. It is generally associated with the amending
process of the Constitution, more particularly, the ratification aspect.
VII
Freedoms of expression and assembly not disturbed.
1. There appears to be no valid basis for the claim that the regime of martial law
stultifies in main the freedom to dissent. That speaks of a bygone fear. The
martial law regime which, in the observation of Justice Fernando, "is impressed
with a mild character" recorded no State imposition for a muffled voice. To be
sure, there are restraints of the individual liberty, but on certain grounds no total
suppression of that liberty is aimed at. The machinery for the referendumplebiscite on October 16 recognizes all the embracing freedoms of expression
and assembly. The President himself had announced that he would not
countenance any suppression of dissenting views on the issues, as he is not
interested in winning a "yes" or "no" vote, but on the genuine sentiment of the
people on the issues at hand. 42 Thus, the dissenters soon found their way to
the public forums, voicing out loud and clear their adverse views on the
proposed amendments and even on the valid ratification of the 1973
Constitution, which is already a settled matter. 43 Even government employees
have been held by the Civil Service Commission free to participate in public
discussion and even campaign for their stand on the referendum-plebiscite
issues. 44
VIII
Time for deliberation is not short.
1. The period from September 21 to October 16 or a period of 3 weeks is not too
short for free debates or discussions on the referendum-plebiscite issues. The
questions are not new. They are the issues of the day. The people have been

living with them since the proclamation of martial law four years ago. The
referendums of 1973 and 1975 carried the same issue of martial law. That
notwithstanding, the contested brief period for discussion is not without
counterparts in previous plebiscites for constitutional amendments. Justice
Makasiar, in the Referendum Case, recalls: "Under the old Society, 15 days were
allotted for the publication in three consecutive issues of the Official Gazette of
the womens suffrage amendment to the Constitution before the scheduled
plebiscite on April 30, 1937 (Com. Act No. 34). The constitutional amendment to
append as ordinance the complicated Tydings-Kocialskowski was published in
only three consecutive issues of the Official Gazette for 10 days prior to the
scheduled plebiscite (Com. Act 492). For the 1940 Constitutional amendments
providing for the bicameral Congress, the re-election of the President and VicePresident, and the creation of the Commission on Elections, 20 days of
publication in three consecutive issues of the Official Gazette was fixed (Com.
Act No. 517). And the Parity Amendment, an involved constitutional amendment
affecting the economy as well as the independence of the Republic was
publicized in three consecutive issues of the Official Gazette for 20 days prior to
the plebiscite (Rep. Act No. 73)." 45

the people?

2. It is worthy to note that Article XVI of the Constitution makes no provision as

to the specific date when the plebiscite shall be held, but simply states that it
"shall be held not later than three months after the approval of such amendment
or revision." In Coleman v. Miller, 46 the United States Supreme court held that
this matter of submission involves "an appraisal of a great variety of relevant
conditions, political, social and economic," which "are essentially political and
not justiciable." The constituent body or in the instant cases, the President, may
fix the time within which the people may act. This is because, first, proposal and
ratification are not treated as unrelated acts, but as succeeding steps in a single
endeavor, the natural inference being that they are not to be widely separated
in time; second, it is only when there is deemed to be a necessity therefor that
amendments are to be proposed, the reasonable implication being that when
proposed, they are to be considered and disposed of the presently, and third,
ratification is but the expression of the approbation of the people, hence, it must
be done contemporaneously. 47 In the words of Jameson," (a)n alteration of the
Constitution proposed today has relation to the sentiment and the felt needs of
today, and that, if not ratified early while that sentiment may fairly be supposed
to exist, it ought to be regarded as waived, and not again to be voted upon,
unless a second time proposed by [proper body]." 48

Upon the third issue, Chief Justice Castro and Associate Justices Barredo,
Makasiar, Aquino, Concepcion Jr. and Martin are of the view that there is a
sufficient and proper submission of the proposed amendments for ratification by
the people. Associate Justices Barredo and Makasiar expressed the hope,
however, that the period of time may be extended. Associate Justices Fernando,
Makasiar and Antonio are of the view that the question is political and therefore
beyond the competence and cognizance of this Court. Associate Justice
Fernando adheres to his concurrence in the opinion of Chief Justice Concepcion
in Gonzales v. COMELEC (21 SCRA 774). Associate Justices Teehankee and Muoz
Palma hold that precinding from the Presidents lack of authority to exercise the
constituent power to propose the amendments, etc., as above stated, there is no
fair and proper submission with sufficient information and time to assure
intelligent consent or rejection under the standards set by this Court in the
controlling cases of Gonzales, supra and Tolentino v. COMELEC (41 SCRA 702).

3. Is the submission to the people of the proposed amendments within the time
frame allowed therefor a sufficient and proper submission?
Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices Enrique
M. Fernando, Claudio Teehankee, Antonio P. Barredo, Cecilia Muoz Palma,
Hermogenes Concepcion Jr. and Ruperto G. Martin are of the view that the
question posed is justiciable, while Associate Justices Felix V. Makasiar, Felix Q.
Antonio and Ramon C. Aquino hold the view that the question is political.
Upon the second issue, Chief Justice Castro and Associate Justices Barredo,
Makasiar, Antonio, Aquino, Concepcion Jr. and Martin voted in the affirmative,
while Associate Justices Teehankee and Muoz Palma voted in the negative.
Associate Justice Fernando, conformably to his concurring and dissenting opinion
in Aquino v. Enrile (59 SCRA 183), specifically dissents from the proposition that
there is concentration of powers in the Executive during periods of crisis, thus
raising serious doubts as to the power of the President to propose amendments.

Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino,
Concepcion Jr. and Martin voted to dismiss the three petitions at bar. For reasons
as expressed in his separate opinion, Associate Justice Fernando concurs in the
result. Associate Justices Teehankee and Muoz Palma voted to grant the
petitions.

IN RESUME
The three issues are:chanrob1es virtual 1aw library
1. Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031
and 1033 political or justiciable?
2. During the present stage of the transition period, and under the
environmental circumstances now obtaining, does the President possess power
to propose amendments to the Constitution as well as set up the required
machinery and prescribe the procedure for the ratification of his proposals by

ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are hereby
dismissed. This decision is immediately executory.
SO ORDERED.
Aquino, J., concurs in the result.
Separate Opinions
CASTRO, C.J., concurring:chanrob1es virtual 1aw library
From the challenge as formulated in the three petitions at bar and the grounds
advanced by the Solicitor General in opposition thereto, as well as the

arguments adduced by the counsels of the parties at the hearing had on October
7 and 8, 1976, three vital issues readily project themselves as the centers of
controversy, namely:chanrob1es virtual 1aw library
(1) Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031
and 1033 political or justiciable?
(2) During the present stage of the transition period, and under the
environmental circumstances now obtaining, does the President possess power
to propose amendments to the Constitution as well as set up the required
machinery and Prescribe the procedure for the ratification of his proposals by
the people?
(3) Is the submission to the people of the proposed amendments within the time
frame allowed therefor a sufficient and proper submission?
I
First Issue
The threshold question is not at all one of first impression. Specifically on the
matter of proposals to amend the Constitution, this Court, in Mabanag v. Lopez
Vito (78 Phil. 1), inceptively announced the dictum that
"Proposal to amend the Constitution is a highly political function performed by
the Congress in its sovereign legislative capacity and committed to its charge by
the Constitution itself. The exercise of this power is even independent of any
intervention by the Chief Executive. If on grounds of expediency scrupulous
attention of the judiciary be needed to safeguard public interest, there is less
reason for judicial inquiry into the validity of a proposal than into that of a
ratification."cralaw virtua1aw library
In time, however, the validity of the said pronouncement was eroded. In the
assessment of the Court itself
"The force of this precedent has been weakened, however, by Suanes v. Chief
Accountant of the Senate (81 Phil. 818), Avelino v. Cuenco (L-2581, March 4 and
14, 1949), Taada v. Cuenco (L-10520, February 28, 1957), and Macias v.
Commission on Elections (L-18684, September 14, 1961).
"In short, the issue whether or not a Resolution of Congress acting as a
constituent assembly violates the Constitution is essentially justiciable, not
political, and, hence, subject to judicial review, and, to the extent that this view
may be inconsistent with the stand taken in Mabanag v. Lopez Vito (supra), the
latter should be deemed modified accordingly. The Members of the Court are
unanimous on this point." (Gonzales v. Commission on Elections, et al, L-28196,
November 9, 1967, 21 SCRA 774, 786-787).
The abandonment of the Mabanag v. Lopez Vito doctrine appears to have been
completed when, in Javellana v. Executive Secretary, Et. Al. (L-36142, March 31,
1973, 50 SCRA 30), six members of the Court concurred in the view that the
question of whether the 1973 Constitution was ratified in accordance with the

provisions of Article XV (Amendments) of the 1935 Constitution is inherently and

essentially justiciable.
As elucidated therein, with extensive quotations from Taada v. Cuenco (103
Phil. 1051)
". . . the term political question connotes, in legal parlance, what it means in
ordinary parlance, namely, a question of policy in matters concerning the
government of a State, as a body politic. In other words, in the language of
Corpus Juris Secundum (supra), it refers to those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the Legislature
or executive branch of the government. It is concerned with issues dependent
upon the wisdom, not legality, of a particular measure.
"Accordingly, when the grant of power is qualified, conditional or subject to
limitations, the issue on whether or not the prescribed qualifications or
conditions have been met, or the limitations respected, is justiciable or nonpolitical, the crux of the problem being one of legality or validity of the contested
act, not its wisdom. Otherwise, said qualifications, conditions or limitations
particularly those prescribed or imposed by the Constitution would be set at
naught." (Javellana v. Executive Secretary, supra).
So it is in the situation here presented. The basic issue is the constitutional
validity of the presidential acts of proposing amendments to the Constitution
and of calling a referendum-plebiscite for the ratification of the proposals made.
Evidently, the question does not concern itself with the wisdom of the exercise of
the authority claimed or of the specific amendments proposed. Instead the
inquiry vel non is focused solely on the existence of the said power in the
President a question purely of legality determinable thru interpretation and
construction of the letter and spirit of the Constitution by the Court as the final
arbiter in the delineation of constitutional boundaries and the allocation of
constitutional powers.chanrobles law library : red
For the Court to shun cognizance of the challenge herein presented, especially in
these parlous years, would be to abdicate its constitutional powers, shirk its
constitutional responsibility, and deny the people their ultimate recourse for
judicial determination.
I have thus no hesitancy in concluding that the question here presented is well
within the periphery of judicial inquiry.
II
Second Issue
The main question stands on a different footing; it appears unprecedented both
here and elsewhere. Its solution, I believe, can be found and unraveled only by a
critical assessment of the existing legal order in the light of the prevailing
political and factual milieu.

To be sure, there is an impressive array of consistent jurisprudence on the

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

this Constitution. Such amendments shall take effect when ratified in accordance
with Article Sixteen hereof."cralaw virtua1aw library
Patently, the reference to the "interim National Assembly" and the "interim
Prime Minister" limits the application thereof to the second stage of the
transition period, i.e., after the interim National Assembly shall have been
convened and the interim Prime Minister shall have been chosen.
Upon the other hand, the provisions of Article XVI (Amendments), to wit
"SECTION 1. (1) Any amendment to, or revision of, this Constitution may be
proposed by the National Assembly upon a vote of three-fourths of all its
Members, or by a constitutional convention.
"(2.) The National Assembly may, by a vote of two-thirds of all its Members, call
a constitutional convention or, by a majority vote of all its Members, submit the
question of calling such a convention to the electorate in an election.
"SEC. 2. Any amendment to, or revision of, this Constitution shall be valid when
ratified by a majority of the votes cast in a plebiscite which shall be held not
later than three months after the approval of such amendment or
revision."cralaw virtua1aw library
unequivocally contemplate amendments after the regular Government shall
have become fully operative, referring as they do to the National Assembly
which will come Into being only at that time.
In the face of this constitutional hiatus, we are confronted with the dilemma
whether amendments to the Constitution may be effected during the aforesaid
first stage and, if in the affirmative, by whom and in what manner such
amendments may be proposed and ratified.
Susceptibility to change is one of the hallmarks of an ideal Constitution. Not
being a mere declaration of the traditions of a nation but more the embodiment
of a peoples hopes and aspirations, its strictures are not unalterable. They are,
instead, dynamic precepts intended to keep in stride with and attuned to the
living social organism they seek to fashion and govern. If it is conceded that "the
political or philosophical aphorism of one generation is doubted by the next and
entirely discarded by the third," then a Constitution must be able to adjust to the
changing needs and demands of society so that the latter may survive, progress
and endure. On these verities, there can be no debate.
During the first stage of the transition period in which the Government is at
present which is understandably the most critical the need for change may
be most pressing and imperative, and to disavow the existence of the right to
amend the Constitution would be sheer political heresy. Such view would deny
the people a mechanism for effecting peaceful change, and belie the organic
conception of the Constitution by depriving it of its means of growth. Such a
result obviously could not have been intended by the framers of the
fundamental law.chanrobles law library : red

decrees and instructions having the stature and force of law.

It seems, however, that the happenstance that the first period would come to
pass before the convocation of the interim National Assembly was not
anticipated, hence, the omission of an express mandate to govern the said
situation in so far as amendments are concerned. But such omission through
inadvertence should not, because it cannot, negate the sovereign power of the
people to amend the fundamental charter that governs their lives and their
future and perhaps even the very survival of the nation.
Upon the other hand, it is clear from the afore-quoted provisions on the
amendatory process that the intent was, instead, to provide a simpler and more
expeditious mode of amending the Constitution during the transition period. For,
while under Article XVI thereof, proposals for amendment may be made directly
by the regular National Assembly by a vote of at least three-fourths of all its
members, under Section 15 of Article XVII, a bare majority vote of all the
members of the interim National Assembly would suffice for the purpose. The
relaxation and the disparity in the vote requirement are revealing. They can only
signify a recognition of the need to facilitate the adoption of amendments during
the second state of the transition period so that the interim National Assembly
will be able, in a manner of speaking, to iron out the kinks in the new
Constitution, remove imperfections therein, and provide for changed or changing
circumstances before the establishment of the regular Government. In this
context, therefore, it is inutile speculation to assume that the Constitution was
intended to render impotent or bar the effectuation of needful change at an
even more critical period the first stage. With greater reason, therefore, must
the right and power to amend the Constitution during the first stage of the
transition period be upheld, albeit within its express and implied
constraints.chanrobles virtual lawlibrary
Neither can it be successfully argued, in the same context and in the present
posture, that the Constitution may be amended during the said first stage only
by convening the interim National Assembly. That is to say and require that the
said stage must first be brought to an end before any amendment may be
proposed and ratified. Settled jurisprudence does not square with such a
proposition. As aptly noted in Aquino v. Commission on Elections, Et Al., supra,
the framers of the Constitution set no deadline for the convening of the interim
National Assembly because they could not have foreseen how long the crises
which impelled the proclamation and justify the continued state of martial law
would last. Indeed, the framers committed to the sound judgment or the
President the determination of the time when the interim National Assembly
should be convoked. That judgment is not subject to judicial review, save
possibly to determine whether arbitrariness has infected such exercise; absent
such a taint, the matter is solely in the keeping of the President. To thus contend
that only by convening the interim Nation Assembly may the Constitution be
amended at this. time would effectively override the judgment vested in the
President, even in default of any showing that in not convoking the interim
National Assembly he has acted arbitrarily or gravely abused his discretion.
Furthermore, to sustain such a contention would not only negate the mandate so
resoundingly expressed by the people in two national referenda against the
immediate convening of the interim National Assembly, but as well deride the
President has exercised the legislative power to issue proclamations, orders

Given the constitutional stalemate or impasse spawned by these supervening

developments, the logical query that compels itself for resolution is: By whom,
then, may proposals for the amendment of the Constitution be made and in
what manner may said proposals be ratified by the people?
It is conventional wisdom that, conceptually, the constituent power is not to be
confused with legislative power in general because the prerogative to propose
amendments to the Constitution is not in any sense embraced within the ambit
of ordinary law-making. Hence, there is much to recommend the proposition
that, in default of an express grant thereof, the legislature traditionally the
delegated repository thereof may not claim it under a general grant of
legislative authority. In the same vein, neither would it be altogether
unassailable to say that because by constitutional tradition and express
allocation the constituent power under the Constitution is located in the lawmaking agency and at this stage of the transition period the law-making
authority is firmly recognized as being lodged in the President, the said
constituent power should now logically be in the hands of the President, who
may thus exercise it in place of the interim National Assembly. Instead, as
pointed out in Gonzales v. Commission on Elections, Et Al., supra, the power to
amend the Constitution or to propose amendments thereto
". . . is part of the inherent powers of the people as the reposition of
sovereignty in a republican state, such as ours to make, and, hence, to amend
their own Fundamental Law."cralaw virtua1aw library
As such it is undoubtedly a power that only the sovereign people, either directly
by themselves or through their chosen delegate, can wield. Since it has been
shown that the people, inadvertently or otherwise, have not delegated that
power to any instrumentality during the current stage of our hegira from crisis to
normalcy, it follows of necessity that the same remains with them for them to
exercise in the manner they see fit and through the agency they choose. And,
even if it were conceded that as it is reputedly the rule in some jurisdictions
a delegation of the constituent authority amounts to a complete divestiture from
the people of the power delegated which they may not thereafter unilaterally
reclaim from the delegate, there would he no violence done to such rule,
assuming it to be applicable here, inasmuch as that power, under the
environmental circumstances adverted to, has not been delegated to anyone in
the first place. The constituent power during the first stage of the transition
period belongs to and remains with the people, and accordingly may be
exercised by them how and when at their pleasure.
At this juncture, a flashback to the recent and contemporary political ferment in
the country proves revelatory. The people, shocked and revolted by the "obvious
immorality" of the unabashed manner by which the delegates to the
Constitutional Convention virtually legislated themselves into office as ipso facto
members of the interim National Assembly by the mere fiat of voting for the
transitory provisions of the Constitution, and the stark reality that the unwieldy
political monstrosity that the interim Assembly portended to be would have
proven to be a veritable drain on the meager financial resources of a nation

struggling for survival, have unequivocally put their foot down, as it were, on the
convocation thereof. But this patently salutary decision of the people proved to
be double-edged. It likewise bound the political machinery of the Government in
a virtual straight-jacket and consigned the political evolution of the nation into a
state of suspended animation. Faced with the ensuing dilemma, the people
understandably agitated for a solution. Through consultations in the barangays
and sanggunian assemblies, the instrumentalities through which the peoples
voice is articulated in the unique system of participatory democracy in the
country today, the underpinnings for the hastening of the return to constitutional
normalcy quickly evolved into an overwhelming sentiment to amend the
Constitution in order to replace the discredited interim National Assembly with
what the people believe will be an appropriate agency to eventually take over
the law-making power and thus pave the way for the early lifting of martial rule.
In pursuit of this sentiment, and to translate its constraints into concrete action,
the Pambansang Katipunan ng mga Barangay, the Pambansang Katipunan ng
mga Kabataang Barangay, the Lupong Tagapagpaganap of the Katipunan ng
mga Sanggunian, and finally the Batasang Bayan, to a man and as one voice,
have come forward with definitive proposals for the amendment of the
Constitution, and, choosing the President the only political arm of the State at
this time through which that decision could be implemented and the end in view
attained as their spokesman, proposed the amendments under challenge in
the cases at bar.chanrobles lawlibrary : rednad
In the light of this milieu and its imperatives, one thing is inescapable: the
proposals now submitted to the people for their ratification in the forthcoming
referendum-plebiscite are factually not of the President; they are directly those
of the people themselves speaking thru their authorized instrumentalities. The
President merely formalized the said proposals in Presidential Decree No. 1033.
It being conceded in all quarters that sovereignty resides in the people and it
having been demonstrated that their constituent power to amend the
Constitution has not been delegated by them to any instrumentality of the
Government during the present stage of the transition period of our political
development, the conclusion is ineluctable that their exertion of that residuary
power cannot be vulnerable to any constitutional challenge as being ultra vires.
Accordingly, without venturing to rule on whether or not the President is vested
with constituent power as it does not appear necessary to do so in the
premises the proposals here challenged, being acts of the sovereign people
no less, cannot be said to be afflicted with unconstitutionality. A fortiori, the
concomitant authority to call a plebiscite and to appropriate funds therefor is
even less vulnerable not only because the President, in exercising said authority,
has acted as a mere alter ego of the people who made the proposals, but
likewise because the said authority is legislative in nature rather than
constituent.
III
Third Issue
Little need be said of the claimed insufficiency and impropriety of the
submission of the proposed amendments for ratification from the standpoint of
time. The thesis cannot be disputed that a fair submission presupposes an

adequate time lapse to enable the people to be sufficiently enlightened on the

merits or demerits of the amendments presented for their ratification or
rejection. However, circumstances there are which unmistakably demonstrated
that the desideratum is met. Even if the proposal appear to have been
formalized only upon the promulgation of Presidential Decree No. 1033 on
September 22, 1976, they are actually the crystallization of sentiments that for
so long have preoccupied the minds of the people and their authorized
representatives, from the very lowest level of the political hierarchy Hence,
unlike proposals emanating from a legislative body, the same cannot but be said
to have been mulled over, pondered upon, debated, discussed and sufficiently
understood by the great masses of the nation long before they ripened into
formal proposals.
Besides, it is a fact of which judicial notice may well be taken that in the not so
distant past when the 1973 Constitution was submitted to the people for
ratification, an all-out campaign, in which all the delegates of the Constitutional
Convention reportedly participated, was launched to acquaint the people with
the ramifications and working of the new system of government sought to be
inaugurated thereunder. It may thus well be assumed that the people in general
have since acquired, in the very least, a working knowledge of the entirety of the
Constitution. The changes now proposed the most substantial of which being
merely the replacement of the interim National Assembly with another
legislative arm for the Government during the transition period until the regular
National Assembly shall have been constituted do not appear to be of such
complexity as to require considerable time to be brought home to the full
understanding of the people. And, in fact, the massive and wide-ranging
informational and educational campaign to this end has been and still is in full
swing, with all the media, the barangays, the civic and sectoral groups, and even
the religious all over the land in active and often enthusiastic if not frenetic
involvement.
Indeed, when the people cast their votes on October 16, a negative vote could
very well mean an understanding of the proposals which they reject; while an
affirmative vote could equally be indicative of such understanding and/or an
abiding credence in the fidelity with which the President has kept the trust they
have confided to him as President and administrator of martial rule.
IV
Conclusion
It is thus my considered view that no question viable for this Court to pass
judgment upon is posed. Accordingly, I vote for the outright dismissal of the
three petitions at bar.
FERNANDO, J., concurring and dissenting:chanrob1es virtual 1aw library
These three petitions, the latest in a series of cases starting from Planas v.
Commission on Elections, 1 continuing with the epochal resolution in Javellana v.
Executive Secretary, 2 and followed successively in three crucial decisions,
Aquino v. Ponce Enrile, 3 Aquino v. Commission on Elections, 4 and Aquino v.
Military Commission, 5 manifest to the same degree the delicate and awesome

10

character of the function of judicial review. While previous rulings supply

guidance and enlightenment, care is to be taken to avoid doctrinaire rigidity
unmindful of altered circumstances and the urgencies of the times. It is
inappropriate to resolve the complex problems of a critical period without full
awareness of the consequences that flow from whatever decision is reached.
Jural norms must be read in the context of social facts. There is need therefore of
adjusting inherited principles to new needs. For law, much more so constitutional
law, is simultaneously a reflection of and a force in the society that it controls.
No quality then can be more desirable in constitutional adjudication than that
intellectual and imaginative insight which goes into the heart of the matter. The
judiciary must survey things as they are in the light of what they must become.
It must inquire into the specific problem posed not only in terms of the teaching
of the past but also of the emerging political and legal theory, especially so
under a leadership notable for its innovative approach to social problems and
the vigor of its implementation. This, on the one side. It must equally be borne in
mind through that this Court must ever be conscious of the risk inherent in its
being considered as a mere subservient instrument of government policy,
however admittedly salutary or desirable. There is still the need to demonstrate
that the conclusion reached by it in cases appropriate for its determination has
support in the law that must be applied. To my mind that was the norm followed,
the conclusion reached being that the three petitions be dismissed. I am in
agreement. It is with regret however that based on my reading of past decisions,
both Philippine and American, and more specifically my concurring opinion in
Aquino v. Ponce Enrile, I must dissent from the proposition set forth in the able
and scholarly opinion of Justice Martin that there is concentration of power in the
President during a crisis government. Consequently, I cannot see my way clear
to accepting the view that the authority to propose amendments is not open to
question. At the very least, serious doubts could be entertained on the
matter.chanroblesvirtualawlibrary
1. With due respect then, I have to dissociate myself from my brethren who
would rule that governmental powers in a crisis government, following Rossiter,
"are more or less concentrated in the President." Adherence to my concurring
and dissenting opinion in Aquino v. Ponce Enrile 6 leaves me no choice.

appraisal. 10 Thus: "So-called martial law, except in occupied territory of an

enemy, is merely the calling in of the aid of military forces by the executive, who
is charged with the enforcement of the law, with or without special authorization
by the legislature. Such declaration of martial law does not suspend the civil law,
though it may interfere with the exercise of ones ordinary rights. The right to
call out the military forces to maintain order and enforce the law is simply part of
the police power. It is only justified when it reasonably appears necessary, and
only justifies such acts as reasonably appear necessary to meet the exigency,
including the arrest, or in extreme cases the killing of those who create the
disorder or oppose the authorities. When the exigency is over the members of
the military forces are criminally and civilly liable for acts done beyond the scope
of reasonable necessity. When honestly and reasonably coping with a situation
of insurrection or riot a member of the military forces cannot be made liable for
his acts, and persons reasonably arrested under such circumstances will not,
during the insurrection or riot, be free by writ of habeas corpus." 11 When the
opinion cited Willoughbys concept of martial law, stress was laid on his being
"partial to the claims of liberty." 12 This is evident in the explicit statement from
his work quoted by me: "There is, then, strictly speaking, no such thing in
American law as a declaration of martial law whereby military law is substituted
for civil law. So-called declarations of martial law are, indeed, often made but
their legal effect goes no further than to warn citizens that the military powers
have been called upon by the executive to assist him in the maintenance of law
and order, and that, while the emergency lasts, they must, upon pain of arrest
and punishment not commit any acts which will in any way render more difficult
the restoration of order and the enforcement of law. Some of the authorities
stating substantially this doctrine are quoted in the footnote below." 13 Nor did I
stop there. The words of Willis were likewise cited: "Martial law proper, that is,
military law in case of insurrection, riots, and invasions, is not a substitute for
the civil law, but is rather an aid to the execution of civil law. Declarations of
martial law go no further than to warn citizens that the executive has called
upon the military power to assist him in the maintenance of law and order. While
martial law is in force, no new powers are given to the executive and no civil
rights of the individual, other than the writ of habeas corpus, are suspended. The
relations between the citizen and his state are unchanged." 14

It must be stated at the outset that with the sufficiency of doctrines supplied by
our past decisions to point the way to what I did consider the appropriate
response to the basic issue raised in the Aquino and the other habeas
corpus petitions resolved jointly, it was only in the latter portion of my opinion
that reference was made to United States Supreme Court pronouncements on
martial law, at the most persuasive in character and rather few in number "due
no doubt to the absence in the American Constitution of any provision
concerning it." 7 It was understandable then that it was only after the landmark
Ex parte Milligan case, that commentators like Cooley in 1868 and Watson in
1910 paid attention, minimal at that, to the subject. 8 It was next set forth that
in the works on American constitutional law published in this century especially
after the leading cases of Sterling v. Constantin and Duncan v. Kahanamoku,
"there was a fuller treatment of the question of martial law." 9 While it is the
formulation of Willoughby that for me is most acceptable, my opinion did take
note that another commentator, Burdick, came out earlier with a similar

The conclusion reached by me as to the state of American federal law on the

question of martial law was expressed thus: "It is readily evident that even when
Milligan supplied the only authoritative doctrine, Burdick and Willoughby did not
ignore the primacy of civil liberties. Willis wrote after Sterling. It would indeed be
surprising if his opinion were otherwise. After Duncan, such an approach
becomes even more strongly fortified. Schwartz, whose treatise is the latest to
be published, has this summary of what he considers the present state of
American law: The Milligan and Duncan cases show plainly that martial law is
the public law of necessity. Necessity alone calls it forth; necessity justifies its
exercise; and necessity measures the extent and degree to which it may be
employed. It is, the high Court has affirmed, an unbending rule of law that the
exercise of military power, where the rights of the citizen are concerned, may
never be pushed beyond what the exigency requires. If martial law rule survives
the necessity on which alone it rests, for even a single minute, it becomes a
mere exercise of lawless violence. Further: Sterling v. Constantin is of basic

11

importance. Before it, a number of decisions, including one by the highest Court,
went on the theory that the executive had a free hand in taking martial-law
measures. Under them, it has been widely supposed that a martial-law
proclamation was so far conclusive that any action taken under it was immune
from judicial scrutiny. Sterling v. Constantin definitely discredits these earlier
decisions and the doctrine of conclusiveness derived from them. Under Sterling
v. Constantin, where martial law measures impinge upon personal or property
rights -normally beyond the scope of military power, whose intervention is lawful
only because an abnormal situation has made it necessary the executives
ipse dixit is not of itself conclusive of the necessity." 15
There was likewise an effort on my part to show what for me is the legal effect of
martial law being expressly provided for in the Constitution rather than being
solely predicated on the common law power based on the urgent need for it
because of compelling circumstances incident to the state of actual clash of
arms: "It is not to be lost sight of that the basis for the declaration of martial law
in the Philippines is not mere necessity but an explicit constitutional provision.
On the other hand, Milligan, which furnished the foundation for Sterling and
Duncan had its roots in the English common law. There is pertinence therefore in
ascertaining its significance under that system. According to the noted English
author, Dicey: Martial law, in the proper sense of that term, in which it means
the suspension of ordinary law and the temporary government of a country or
parts of it by military tribunals, is unknown to the law of England. We have
nothing equivalent to what is called in France the "Declaration of the State of
Siege," under which the authority ordinarily vested in the civil power for the
maintenance of order and police passes entirely to the army (autorite militaire).
This is an unmistakable proof of the permanent supremacy of the law under our
constitution. There was this qualification: Martial law is sometimes employed as
a name for the common law right of the Crown and its servants to repel force by
force in the case of invasion, insurrection, riot, or generally of any violent
resistance to the law, This right, or power, is essential to the very existence of
orderly government, and is most assuredly recognized in the most ample
manner by the law of England. It is a power which has in itself no special
connection with the existence of an armed force. The Crown has the right to put
down breaches of the peace. Every subject, whether a civilian or a soldier,
whether what is called a servant of the government, such for example as a
policeman, or a person in no way connected with the administration, not only
has the right, but is, as a matter of legal duty, bound to assist in putting down
breaches of the peace. No doubt policemen or soldiers are the persons who, as
being specially employed in the maintenance of order, are most generally called
upon to suppress a riot, but it is clear that all loyal subjects are bound to take
their part in the suppression of riots." 16
Commitment to such an approach results in my inability to subscribe to the
belief that martial law in terms of what is provided both in the 1935 and the
present Constitution, affords sufficient justification for the concentration of
powers in the Executive during periods of crisis. The better view, considering the
juristic theory on which our fundamental law rests is that expressed by Justice
Black in Duncan v. Kahanamoku: "Legislatures and courts are not merely
cherished American institutions; they are indispensable to our government." 17

If there has been no observance of such a cardinal concept at the present, it is

due to the fact that before the former Congress could meet in regular session
anew, the present Constitution was adopted, abolishing it and providing for an
interim National Assembly, which has not been convened. 18 So I did view the
matter.
2. Nor did I ignore Rossiter in my Aquino v. Ponce Enrile opinion. Reference was
made to the first chapter on his work on Constitutional Dictatorship where he
spoke of martial rule as "a device designed for use in the crisis of invasion or
rebellion. It may be most precisely defined as an extension of military
government to the civilian population, the substitution of the will of a military
commander for the will of the peoples elected government." 19 Since, for me at
least, the Rossiter characterization of martial law has in it more of the common
law connotation, less than duly mindful of the jural effects of its inclusion in the
Constitution itself as a legitimate device for coping with emergency conditions in
times of grave danger, but always subject to attendant limitations in accordance
with the fundamental postulate of a charters supremacy, I felt justified in
concluding: "Happily for the Philippines, the declaration of martial law lends
itself to the interpretation that the Burdick, Willoughby, Willis, Schwartz
formulations paying due regard to the primacy of liberty possess relevance. It
cannot be said that the martial rule concept of Rossiter, latitudinarian in scope,
has been adopted, even on the assumption that it can be reconciled with our
Constitution. What is undeniable is that President Marcos has repeatedly
maintained that Proclamation No. 1081 was precisely based on the Constitution
and that the validity of acts taken thereunder could be passed upon by the
Supreme Court. For me, that is quite reassuring, persuaded as I am likewise that
the view of Rossiter is opposed to the fundamental concept of our polity, which
puts a premium on freedom." 20
3. Candor and accuracy compel the admission that such a conclusion has to be
qualified. For in the opinion of the Court in the aforecited Aquino v. Commission
on Elections, penned by Justice Makasiar, the proposition was expressly affirmed
"that as Commander-in-Chief and enforcer or administrator of martial law, the
incumbent President of the Philippines can promulgate proclamations, orders
and decrees during the period of Martial Law essential to the security and
preservation of the Republic, to the defense of the political and social liberties of
the people and to the institution of reforms to prevent the resurgence of
rebellion or insurrection or secession or the threat thereof as well as to meet the
impact of a worldwide recession, inflation or economic crisis which presently
threatens all nations including highly developed countries." 21 To that extent,
Rossiters view, mainly relied upon, now possesses juristic significance in this
jurisdiction. What, for me at least, gives cause for concern is that with the
opinion of the Court this intrusion of what I would consider an alien element in
the limited concept of martial law as set forth in the Constitution would be
allowed further incursion into the corpus of the law, with the invocation of the
view expressed in the last chapter of his work, approving the "concentration of
governmental power in a democracy [as] a corrective to the crisis inefficiencies
inherent in the doctrine of the separation of powers." 22 It is to the credit of the
late Professor Rossiter as an objective scholar that in the very same last chapter,
just three pages later, he touched explicitly on the undesirable aspect of a

12

constitutional dictatorship. Thus: "Constitutional Dictatorship is a dangerous

thing. A declaration of martial law or the passage of an enabling act is a step
which must always be feared and sometimes bitterly resisted, for it is at once an
admission of the incapacity of democratic institutions to defend the order within
which they function and a too conscious employment of powers and methods
long ago outlawed as destructive of constitutional government. Executive
legislation, state control of popular liberties, military courts, and arbitrary
executive action were governmental features attacked by the men who fought
for freedom not because they were inefficient or unsuccessful, but because they
were dangerous and oppressive. The reinstitution of any of these features is a
perilous matter, a step to be taken only when the dangers to a free state will be
greater if the dictatorial institution is not adopted." 23
4. It is by virtue of such considerations that I find myself unable to share the
view of those of my brethren who would accord recognition to the Rossiter
concept of concentration of governmental power in the Executive during periods
of crisis. This is not to lose sight of the undeniable fact that in this country
through the zeal, vigor, and energy lavished on projects conducive to the
general welfare, considerable progress has been achieved under martial rule. A
fair summary may be found in a recent address of the First Lady before the
delegates to the 1976 International Monetary Fund-World Bank Joint Annual
Meeting: "The wonder is that so much has been done in so brief a time. Since
September 1972, when President Marcos established the crisis government,
peace and order have been restored in a country once avoided as one of the
most unsafe in the world. We have liberated millions of Filipino farmers from the
bondage of tenancy, in the most vigorous and extensive implementation of
agrarian reform." 24 Further, she said: "A dynamic economy has replaced a
stagnant order, and its rewards are distributed among the many, not hoarded by
a few. Our foreign policy, once confined by fear and suspicion to a narrow alley
of self-imposed isolation, now travels the broad expressways of friendship and
constructive interaction with the whole world, these in a new spirit of confidence
and self-reliance. And finally, forced to work out our own salvation, the Filipino
has re-discovered the well-springs of his strength and resiliency. As Filipinos, we
have found our true identity. And having broken our crisis of identity, we are no
longer apologetic and afraid." 25 The very idea of a crisis, however, signifies a
transitory, certainly not a permanent, state of things. President Marcos
accordingly has not been hesitant in giving utterance to his conviction that full
implementation of the modified parliamentary system under the present
Constitution should not be further delayed. The full restoration of civilian rule
can thus be expected. That is more in accord with the imperatives of a
constitutional order. It should not go unnoticed either that the President has
referred to the present regime as one of "constitutional authoritarianism." That
has a less objectionable ring, authority being more identified with the idea of
law, as based on right, the very antithesis of naked force, which to the popular
mind is associated with dictatorship, even if referred to as
"constitutional."cralaw virtua1aw library
For me likewise, that equally eminent scholar Corwin, also invoked in the opinion
of the Court, while no doubt a partisan of a strong Presidency, was not averse to
constitutional restraints even during periods of crisis. So I would interpret this

excerpt from the fourth edition of his classic treatise on the Presidency: "A
regime of martial law may be compendiously, if not altogether accurately,
defined as one in which the ordinary law, as administered by the ordinary courts,
is superseded for the time being by the will of a military commander. It follows
that, when martial law is instituted under national authority, it rests ultimately
on the will of the President of the United States in his capacity as Commander-inChief. It should be added at once, nevertheless, that the subject is one in which
the record of actual practice fails often to support the niceties of theory. Thus,
the employment of the military arm in the enforcement of the civil law does not
invariably, or even usually, involve martial law in the strict sense, for, as was
noted in the preceding section, soldiers are often placed simply at the disposal
and direction of the civil authorities as a kind of supplementary police, or posse
comitatus; on the other hand by reason of the discretion that the civil authorities
themselves are apt to vest in the military in any emergency requiring its
assistance, the line between such an employment of the military and a regime of
martial law is frequently any but a hard and fast one. And partly because of
these ambiguities the conception itself of martial law today bifurcates into two
conceptions, one of which shades off into military government and the other into
the situation just described, in which the civil authority remains theoretically in
control although dependent on military aid. Finally, there is the situation that
obtained throughout the North during the Civil War, when the privilege of the
writ of habeas corpus was suspended as to certain classes of suspects, although
other characteristics of martial law were generally absent." 26
It is by virtue of the above considerations that, with due respect to the opinion of
my brethren, I cannot yield assent to the Rossiter view of concentration of
governmental powers in the Executive during martial law.
5. There is necessity then, for me at least, that the specific question raised in all
three petitions be squarely faced. It is to the credit of the opinion of the Court
that it did so. The basic issue posed concerns the boundaries of the power of the
President during this period of martial law, more precisely whether it covers
proposing amendments to the Constitution. There is the further qualification if
the stand of respondents be taken into account that the interim National
Assembly has not been convened and is not likely to be called into session in
deference to the wishes of the people as expressed in three previous referenda.
It is the ruling of the majority that the answer be in the affirmative, such
authority being well within the area of presidential competence. Again I find
myself unable to join readily in that conviction. It does seem to me that the
metes and bounds of the executive domain, while still recognizable, do appear
blurred. This is not to assert that there is absolutely no basis for such a
conclusion, sustained as it is by a liberal construction of the principle that
underlies Aquino v. Commission on Elections as to the validity of the exercise of
the legislative prerogative by the President as long as the interim National
Assembly is not convened. For me, the stage of certitude has not been reached.
I cannot simply ignore the vigorous plea of petitioners that there is a
constitutional deficiency consisting in the absence of any constituent power on
the part of the President, the express provision of the Constitution conferring it
on the interim National Assembly. 27 The learned advocacy reflected in the
pleadings as well as the oral discourse of Solicitor General Estelito P. Mendoza 28

13

failed to erase the grave doubts in my mind that the Aquino doctrine as to the
possession of legislative competence by the President during this period of
transition with the interim lawmaking body not called into session be thus
expanded. The majority of my brethren took that step. I am not prepared to go
that far. I will explain why.
The way, for me, is beset with obstacles. In the first place, such an approach
would lose sight of the distinction between matters legislative and constituent.
That is implicit in the treatise on the 1935 Constitution by Justices Malcolm and
Laurel. 29 In their casebook 30 published the same year, one of the four
decisions on the subject of constitutional amendments is Ellingham v. Dye 31
which categorically distinguished between constituent and legislative powers.
Dean Sinco, a well-known authority on the subject, was quite explicit. Thus: "If
there had been no express provision in the Constitution granting Congress the
power to propose amendments, it would be outside its authority to assume that
power. Congress may not claim it under the general grant of legislative power
for such grant does not carry with it the right to erect the state, institute the
form of its government, which is considered a function inherent in the people.
Congressional law-making authority is limited to the power of approving the laws
of civil conduct relating to the details and particulars of the government
instituted, the government established by the people." 32 If that distinction he
preserved, then for me the aforecited Aquino decision does not reach the heart
of the matter.
Nor is this all. In the main opinion of Justice Makasiar as well as that of the then
Justice, now Chief Justice, Castro, support for the ruling that the President cannot
he deemed as devoid of legislative power during this transition stage is supplied
by implications from explicit constitutional provisions. 33 That is not the case
with the power to propose amendments. It is solely the interim National
Assembly that is mentioned. That is the barrier that for me is well-nigh
insurmountable. If I limit myself to entertaining doubts rather than registering a
dissent on this point, it is solely because of the consideration, possessed of
weight and significance, that there may be indeed in this far-from-quiescent and
static period a need for amendments. I do not feel confident therefore that a
negative vote on my part would be warranted. What would justify the step taken
by the President, even if no complete acceptance be accorded to the view that
he was a mere conduit of the barangays on this matter, is that as noted in both
qualified concurrences by Justices Teehankee and Muoz Palma in Aquino, as far
as the legislative and appropriation powers are concerned is the necessity that
unless such authority be recognized, there may be paralyzation of governmental
activities. While not squarely applicable, such an approach has, to my mind, a
persuasive quality as far as the power to propose amendments is concerned.
Thus I would confine myself to the expression of serious doubts on the question
rather than a dissent.
6. The constitutional issue posed as thus viewed leaves me free to concur in the
result that the petitions be dismissed. That is to accord respect to the principle
that judicial review goes no further than to checking clear infractions of the
fundamental law, except in the field of human rights where a much greater

vigilance is required. That is to make of the Constitution a pathway to rather

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

14

leadership is not to be minimized. It is crucial; it is of the essence. Nonetheless,

it is their will, if given expression in a manner sanctioned by law and with due
care that there he no mistake in its appraisal, that should be controlling. There is
all the more reason then to encourage their participation in the power process.
That is to make the regime truly democratic. Constitutional orthodoxy requires,
however, that the fundamental law be followed. So I would interpret Laski, 43
Corwin, 44 Lerner, 45 Bryn-Jones, 46 and McIver. 47

to be a factor for unity under a rule of law. There must be, on its part, awareness
of the truth that a new juridical age born before its appointed time may be the
cause of unprecedented travail that may not end at birth. It is by virtue of such
considerations that I did strive for a confluence of principle and practicality. I
must confess that I did approach the matter with some misgivings and certainly
without any illusion of omniscience. I am comforted by the thought that
immortality does not inhere in judicial opinions.cralawnad

7. There is reassurance in the thought that this Court has affirmed its
commitment to the principle that the amending process gives rise to a
justiciable rather than a political question. So it has been since the leading case
of Gonzales v. Commission on Elections. 48 It has since then been followed in
Tolentino v. Commission on Elections, 49 Planas v. Commission On Elections, 50
and lastly, in Javellana v. The Executive Secretary. 51 This Court did not heed the
vigorous plea of the Solicitor General to resurrect the political question doctrine
announced in Mabanag v. Lopes Vito. 52 This is not to deny that the federal rule
in the United States as set forth in the leading case of Coleman v. Miller, 53 a
1939 decision, and relatively recent State court decisions, supply ammunition to
such a contention. 54 That may be the case in the United States, but certainly
not in this jurisdiction. Philippine constitutional tradition is to the contrary. It can
trace its origin to these words in the valedictory address before the 1934-35
Constitutional Convention by the illustrious Claro M. Recto: "It is one of the
paradoxes a democracy that the people of times place more confidence in
instrumentalities of the State other than those directly chosen by them for the
exercise of their sovereignty." 55 It can be said with truth, therefore, that there
has invariably been a judicial predisposition to activism rather than self-restraint.
The thinking all these years has been that it goes to the heart of
constitutionalism. It may be said that this Court has shunned the role of a mere
interpreter; it did exercise at times creative power. It has to that extent
participated in the molding of policy. It has always recognized that in the large
and undefined field of constitutional law, adjudication partakes of the quality of
statecraft. The assumption has been that just because it cannot by itself
guarantee the formation, much less the perpetuation of democratic values or,
realistically, it cannot prevail against the pressure of political forces if they are
bent in other directions, it does not follow that it should not contribute its
thinking to the extent that it can. It has been asked, it will continue to be asked,
to decide momentous questions at each critical stage of this nations life.

8. I am thus led by my studies on the subject of constitutional law and, much

more so, by previous judicial opinions to concur in the dismissal of the petitions.
If I gave expression to views not currently fashionable, it is solely due to deeplyingrained beliefs. Certainly, I am the first to recognize the worth of the social and
economic reforms so needed by the troubled present that have been introduced
and implemented. There is no thought then of minimizing, much less of refusing
to concede, the considerable progress that has been made and the benefits that
have been achieved under this Administration. Again, to reiterate one of my
cherished convictions, I certainly approve of the adherence to the fundamental
principle of popular sovereignty, which, to be meaningful however, requires both
freedom in its manifestation and accuracy in ascertaining what it wills. Then,
too, it is fitting and proper that a distinction was made between two aspects of
the coming poll, the referendum and the plebiscite. It is only the latter that is
impressed with authoritative force. So the Constitution requires. Lastly, there
should be, as I did mention in my concurrence in Aquino v. Commission on
Elections, 56 full respect for free speech and press, free assembly and free
association. There should be no thought of branding the opposition as the
enemy and the expression of its views as anathema. Dissent, it is fortunate to
note, has been encouraged. It has not been identified with disloyalty. That ought
to be the case, and not solely due to presidential decrees. Constructive criticism
is to be welcomed not so much because of the right to be heard but because
there may be something worth hearing. That is to ensure a true ferment of
ideas, an interplay of knowledgeable minds. There are though well-defined
limits. One may not advocate disorder in the name of protest, much less preach
rebellion under the cloak of dissent. What i mean to stress is that except on a
showing of clear and present danger, there must be respect for the traditional
liberties that make a society truly free.chanrobles virtual lawlibrary

There must be, however, this caveat. Judicial activism gives rise to difficulties in
an era of transformation and change. A society in flux calls for dynamism in the
law, which must be responsive to the social forces at work. It cannot remain
static. It must be sensitive to life. This Court then must avoid the rigidity of legal
ideas. It must resist the temptation of wallowing in the wasteland of meaningless
abstractions. It must face stubborn reality. It has to have a feel for the
complexities of the times. This is not to discount the risk that it may be swept
too far and too fast in the surge of novel concepts. The past too is entitled to a
hearing; it cannot just be summarily ignored. History still has its uses. It is not
for this Court to renounce the virtue of systematic jural consistency. It cannot
simply yield to the sovereign sway of the accomplished fact. It must be deaf to
the dissonant dialectic of what appears to be a splintered society. It should strive

TEEHANKEE, J., dissenting:chanrob1es virtual 1aw library

I. On the merits: I dissent from the majoritys dismissal of the petitions for lack of
merit and vote to grant the petitions for the following reasons and
considerations:chanrob1es virtual 1aw library
1. It is undisputed that neither the 1935 Constitution nor the 1973 Constitution
grants to the incumbent President the constituent power to propose and approve
amendments to the Constitution to be submitted to the people for ratification in
a plebiscite.
The 1935 Constitution expressly vests the constituent power in Congress, by a
three-fourths vote of all its members, to propose amendments or call a
constitutional convention for the purpose. 1

15

The 1973 Constitution expressly vests the constituent power in the regular
National Assembly to propose amendments (by a three-fourths vote of all its
members) or "call a constitutional convention" (by a two-thirds vote of all its
members) or "submit the question of calling such convention to the electorate in
an election" (by a majority vote of all its members). 2
The transitory provisions of the 1973 Constitution expressly vest the constituent
power during the period of transition in the interim National Assembly "upon
special call by the interim Prime Minister (the incumbent President 3). by a
majority vote of all its members (to) propose amendments." 4
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 Presidents questioned decrees 5 proposing and submitting
constitutional amendments directly to the people (without the intervention of
the interim National Assembly in whom the power is expressly vested) are
devoid of constitutional and legal basis.
2. The doctrine in the leading case of Tolentino v. Comelec is controlling in the
case at bar. In therein declaring null and void the acts of the 1971 Constitutional
Convention and of the Comelec in calling a plebiscite with the general elections
scheduled for November 8, 1971 for the purpose of submitting for the peoples
ratification an advance amendment reducing the voting age from 21 years to 18
years, and issuing writs of prohibition and injunction against the holding of the
plebiscite, this Court speaking through Mr. Justice Barredo ruled that
The Constitutional provisions on amendments 6 "dealing with the procedure
or manner of amending the fundamental law are binding upon the Convention
and the other departments of the government, (and) are no less binding upon
the people" ; 7
"As long as any amendment is formulated and submitted under the aegis of
the present Charter, any proposal for such amendment which is not in
conformity with the letter, spirit and intent of the Charter for effecting
amendments, cannot receive the sanction of this Court" ; 8
"The real issue here cannot be whether or not the amending process
delineated by the present Constitution may be disregarded in favor of allowing
the sovereign people to express their decision on the proposed amendments, if
only because it is evident that the very idea of departing from the fundamental
law is anachronistic in the realm of constitutionalism and repugnant to the
essence of the rule of law" ; 9 and
Accordingly barred the plebiscite as improper and premature, since "the
provisional nature of the proposed amendment and the manner of its submission
to the people for ratification or rejection" did not "conform with the mandate of
the people themselves in such regard, as expressed in the Constitution itself",
10 i.e. the mandatory requirements of the amending process as set forth in the

Article on Amendments.
3. Applying the above rulings of Tolentino to the case at bar, mutatis mutandis, it
is clear that where the proposed amendments are violative of the Constitutional
mandate on the amending process not merely for being a "partial amendment"
of a "temporary or provisional character" (as in Tolentino) but more so for not
being proposed and approved by the department vested by the Constitution with
the constituent power to do so, and hence transgressing the substantive
provision that it is only the interim National Assembly, upon special call of the
interim Prime Minister, by a majority vote of all its members that may propose
the amendments, the Court must declare the amendment proposals null and
void.
4. This is so because the Constitution is a "superior paramount law,
unchangeable by ordinary means" 11 but only by the particular mode and
manner prescribed therein by the people. As stressed by Cooley, "by the
Constitution which they establish, (the people) not only tie up the hands of their
official agencies but their own hands as well; and neither the officers of the
State, nor the whole people as an aggregate body, are at liberty to take action in
opposition to this fundamental law." 12
The vesting of the constituent power to propose amendments in the legislative
body (the regular National Assembly or the interim National Assembly during the
transition period) or in a constitutional contention called for the purpose is in
accordance with universal practice. "From the very necessity of the case" Cooley
points out "amendments to an existing constitution, or entire revisions of it,
must be prepared and matured by some body of representatives chosen for the
purpose. It is obviously impossible for the whole people to meet, prepare, and
discuss the proposed alterations, and there seems to be no feasible mode by
which an expression of their will can be obtained, except by asking it upon the
single point of assent or disapproval." This body of representatives vested with
the constituent power "submits the result of their deliberations" and "puts in
proper form the questions of amendment upon which the people are to pass"
for ratification or rejection. 13
5. The Court in Tolentino thus rejected the argument "that the end sought to be
achieved is to be desired" and in denying reconsideration, in paraphrase of the
late Claro M. Recto, declared that "let those who would put aside, invoking
grounds at best controversial, any mandate of the fundamental law purportedly
in order to attain some laudable objective bear in mind that someday somehow
others with purportedly more laudable objectives may take advantage of the
precedent and continue the destruction of the Constitution, making those who
laid down the precedent of justifying deviations from the requirements of the
Constitution the victims of their own folly."cralaw virtua1aw library
This same apprehension was echoed by now retired Justice Calixto O. Zaldivar in
his dissenting opinion in the Ratification cases 14 that "we will be opening the
gates for a similar disregard to the Constitution in the future. What I mean is that
if this Court now declares that a new Constitution is now in force because the
members of the citizens assemblies had approved said new Constitution,
although that approval was not in accordance with the procedure and the

16

requirements prescribed in the 1935 Constitution, it can happen again in some

future time that some amendments to the Constitution may be adopted, even in
a manner contrary to the existing Constitution and the law, and then said
proposed amendments is submitted to the people in any manner and what will
matter is that a basis is claimed that there was approval by the people. There
will not be stability in our constitutional system, and necessarily no stability in
our government."cralaw virtua1aw library
6. It is not legally tenable for the majority, without overruling the controlling
precedent of Tolentino (and without mustering the required majority vote to so
overrule) to accept the proposed; amendments as valid notwithstanding their
being not in conformity with the letter, spirit and intent of the provision of the
Charter for effecting amendments" on the reasoning that "If the President has
been legitimately discharging the legislative functions of the interim National
Assembly, there is no reason why he cannot validly discharge the function of
that Assembly to propose amendments to the Constitution, which is but adjunct,
although peculiar, to its gross legislative functions." 15
In the earlier leading case of Gonzales v. Comelec 16 , this Court speaking
through now retired Chief Justice Roberto Concepcion, pointed out that "Indeed,
the power to amend the Constitution or to propose amendments thereto is not
included in the general grant of legislative powers to Congress" 17 or to the
National Assembly. 18 Where it not for the express grant in the Transitory
Provisions of the constituent power to the interim National Assembly, the interim
National Assembly could not claim the power under the general grant of
legislative power during the transition period.
The majoritys ruling in the Referendum cases 19 that the Transitory Provisions
in section 3(2) recognized the existence of the authority to legislate in favor of
the incumbent President during the period of martial law manifestly cannot be
stretched to encompass the constituent power as expressly vested in the interim
National Assembly in derogation of the allotment of powers defined in the
Constitution.

law library : red

7. Neither is the justification of "constitutional impasse" tenable. The sentiment
of the people against the convening of the interim National Assembly and to
have no elections for "at least seven (7) years" concededly could not amend the
Constitution insofar as the interim National Assembly is concerned (since it
admittedly came into existence "immediately" upon the proclamation of
ratification of the 1973 Constitution), much less remove the constituent power
from said interim National Assembly.
As stressed in the writers separate opinion in the Referendum cases 22 ,"
(W)hile it has been advanced that the decision to defer the initial convocation of
the interim National Assembly was supported by the results of the referendum in
January, 1973 when the people voted against the convening of the interim
National Assembly for at least seven years, such sentiment cannot be given any
legal force and effect in the light of the States admission at the hearing that
such referendums are merely consultative and cannot amend the Constitution or
any provision which call for the immediate existence and initial convening of
the interim National Assembly to give priority to measures for the orderly
transition from the presidential to the parliamentary system and the other
urgent measures enumerated in section 5 thereof."
While the people reportedly expressed their mandate against the convening of
the interim National Assembly to discharge its legislative tasks during the period
of transition under martial law, they certainly had no opportunity and did not
express themselves against convening the interim National Assembly to
discharge the consistent power to propose amendments likewise vested in it by
the peoples official mandate in the Constitution.
In point of fact, when the holding of the October 16, 1976 referendum was first
announced, the newspapers reported that among the seven questions proposed
by the sanggunian and barangay national executive committees for the
referendum was the convening of the interim National Assembly. 23

Paraphrasing Cooley on the non-delegation of legislative power as one of the

settled maxims of constitutional law, 20 the constituent power has been lodged
by the sovereign power of the people with the interim National Assembly during
the transition period and there it must remain as the sole constitutional agency
until the Constitution itself is changed.

It was further reported that the proposals which were termed tentative "will be
discussed and studied by (the President), the members of the cabinet, and the
security council" and that the barangays felt, notwithstanding the previous
referenda on the convening of the interim National Assembly that "it is time to
again ask the peoples opinion of this matter." 24

As was aptly stated by Justice Jose P. Laurel in the 1936 landmark case of Angara
v. Electoral Commission 21" (T)he Constitution sets forth in no uncertain
language the restrictions and limitations upon governmental powers and
agencies. If these restrictions and limitations are transcended it would be
inconceivable if the Constitution had not provided for a mechanism by which to
direct the course of government along constitutional channels, for then the
distribution of powers would be mere verbiage, the bill of rights mere
expressions of sentiment, and the principles of good government mere political
apothegms. Certainly, the limitations and restrictions embodied in our
Constitution are real as they should be in any living Constitution." chanrobles

8. If proposals for constitutional amendments are now deemed necessary to be

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

17

It will not do to contend that these proposals represent the voice of the people
for as was aptly stated by Cooley "The voice of the people, acting in their
sovereign capacity, can be of legal force only when expressed at the times and
under the conditions which they themselves have prescribed and pointed out by
the Constitution. . . .." 26
The same argument was put forward and rejected by this Court in Tolentino
which rejected the contention that the "Convention being a legislative body of
the highest order (and directly elected by the people to speak their voice) is
sovereign, and as such, its acts impugned by petitioner are beyond the control
of Congress and the Courts" and ruled that the constitutional article on the
amending process "is nothing more than a part of the Constitution thus ordained
by the people. Hence, in construing said section, We must read it as if the people
had said, The Constitution may be amended, but it is our will that the
amendment must be proposed and submitted to Us for ratification only in the
manner herein provided." 27
This Court therein stressed that "This must be so, because it is plain to Us that
the framers of the Constitution took care that the process of amending the same
should not be undertaken with the same ease and facility in changing an
ordinary legislation. Constitution making is the most valued power, second to
none, of the people in a constitutional democracy such as the one our founding
fathers have chosen for this nation, and which we of the succeeding generations
generally cherish. And because the Constitution affects the lives, fortunes, future
and every other conceivable aspect of the lives of all the people within the
country and those subject to its sovereignty, every degree of care is taken in
preparing and drafting it. A constitution worthy of the people for which it is
intended must not be prepared in haste without adequate deliberation and
study. It is obvious that correspondingly, any amendment of the Constitution is
of no less importance than the whole Constitution itself, and perforce must be
conceived and prepared with as much care and deliberation;" and that "written
constitutions are supposed to be designed so as to last for some time, if not for
ages, or for, at least, as long as they can be adopted to the needs and
exigencies of the people, hence, they must be insulated against precipitate and
hasty actions motivated by more or less passing political moods or fancies. Thus,
as a rule, the original constitutions carry with them limitations and conditions,
more or less stringent, made so by the people themselves, in regard to the
process of their amendment." 28
9. The convening of the interim National Assembly to exercise the constituent
power to proposed amendments is the only way to fulfill the express mandate of
the Constitution.
As Mr. Justice Fernando emphasized for this Court in Mutuc v. Comelec 29 in the
setting aside of a Comelec resolution banning the use of political taped jingles
by candidates for Constitutional Convention delegates in the special 1970
elections, "the concept of the Constitution as the fundamental law. setting forth
the criterion for the validity of any public act whether proceeding from the
highest official or the lowest functionary, is a postulate of our system of
government. That is to manifest fealty to the rule of law, with priority accorded

to that which occupies the topmost rung in the legal hierarchy. The three
departments of government in the discharge of the functions with which it is
entrusted have no choice but to yield obedience to its commands. Whatever
limits it imposes must be observed. Congress in the enactment of statutes must
ever be on guard lest the restrictions on its authority, whether substantive or
formal, be transcended. The Presidency in the execution of the laws cannot
ignore or disregard what it ordains. In its task of applying the law to the facts as
found in deciding cases, the judiciary is called upon to maintain inviolate what is
decreed by the fundamental law."cralaw virtua1aw library
This is but to give meaning to the plain and clear mandate of section 15 of the
Transitory Provisions (which allows of no other interpretation) that during the
stage of transition the interim National Assembly alone exercises the constituent
power to propose amendments, upon special call therefor. This is reinforced by
the fact that the cited section does not grant to the interim National Assembly
the same power granted to the regular National Assembly of calling a
constitutional convention, thus expressing the will of the Convention (and
presumably of the people upon ratification) that if ever the need to propose
amendments arose during the limited period of transition, the interim National
Assembly alone would discharge the task and no constitutional convention could
be called for the purpose.
As to the alleged costs involved in convening the interim National Assembly to
propose amendments, among them its own abolition, (P24 million annually in
salaries alone for its 400 members at P60,000.00 per annum per member,
assuming that its deliberations could last for one year), suffice it to recall this
Courts pronouncement in Tolentino (in rejecting a similar argument on the costs
of holding a plebiscite separately from the general elections for elective officials)
that "it is a matter of public knowledge that bigger amounts have been spent or
thrown to waste for many lesser objectives. . . . Surely, the amount of seventeen
million pesos or even more is not too much a price to pay for fealty and loyalty
to the Constitution . . ." 30 and that "while the financial costs of a separate
plebiscite may be high, it can never be as much as the dangers involved in
disregarding clear mandate of the Constitution, no matter how laudable the
objective" and "no consideration of financial costs shall deter Us from adherence
to the requirements of the Constitution." 31
10. The imposition of martial law (and "the problems of rebellion, subversion,
secession, recession, inflation and economic crisis -a crisis greater than war") 32
cited by the majority opinion as justifying the concentration of powers in the
President, and the recognition now of his exercising the constituent power to
propose amendments to the Fundamental Law "as agent for and in behalf of the
people" 33 has no constitutional basis.
In the post-war Emergency Powers 33* , former Chief Justice Ricardo Paras
reaffirmed for the Court the principle that emergency in itself cannot and should
not create power. "In our democracy the hope and survival of the nation lie in
the wisdom and unselfish patriotism of all officials and in their faithful adherence
to the Constitution."

18

The martial law clause of the 1973 Constitution found in Article IX, section 12, as
stressed by the writer in his separate opinion in the Referendum Cases, 34 "is a
verbatim reproduction of Article VII, section 10 (2) of the 1935 Constitution and
provides for the imposition of martial law only in case of invasion, insurrection
or rebellion, or imminent danger thereof, when the public safety requires it and
hence the use of the legislative power or more accurately military power under
martial rule is limited to such necessary measures as will safeguard the Republic
and suppress the rebellion (or invasion)." 35

that, despite the requisite ratification by the people, the actual contents of our
fundamental law will really be determined by the Convention; that accordingly
the people should exercise the greatest possible degree of circumspection in the
election of delegates thereto . . .." 38

11. Article XVII, section 3 (2) of the 1973 Constitution which has been held by
the majority in the Referendum Cases to be the recognition or warrant for the
exercise of legislative power by the President during the period of martial law is
but a transitory provision. Together with the martial law clause, they constitute
hut two provisions which are not to be considered in isolation from the
Constitution but as mere integral parts thereof which must he harmonized
consistently with the entire Constitution.

It has thus been aptly observed that "Martial law is an emergency regime,
authorized by and subject to the Constitution. Its basic premise is to preserve
and to maintain the Republic against the dangers that threaten it Such premise
imposes constraints and limitations. For the martial law regime fulfills the
constitutional purpose only if, by reason of martial law measures, the Republic is
preserved. If by reason of such measures the Republic is so transformed that it is
changed in its nature and becomes a State other than republican, then martial
law is a failure; worse, martial law would have become the enemy of the
Republic rather than its defender and preserver." 40

As Cooley restated the rule: "effect is to be given, if possible, to the whole

instrument, and to every section and clause. If different portions seem to
conflict, the courts must harmonize them, if practicable, and must lean in favor
of a construction which will render every word operative, rather than one which
may make some words idle and nugatory.
"This rule is applicable with special force to written constitutions, in which the
people will be presumed to have expressed themselves in careful and measured
terms, corresponding with the immense importance of the powers delegated,
leaving as little as possible to implication. It is scarcely conceivable that a case
can arise where a court would be justified in declaring any portion of a written
constitution nugatory because of ambiguity. One part may qualify another so as
to restrict its operation, or apply it otherwise than the natural construction would
require if it stood by itself; but one part is not to be allowed to defeat another, if
by any reasonable construction the two can be made to stand together." 36
The transcendental constituent power to propose and approve amendments to
the Constitution as well as set up the machinery and prescribe the procedure for
the ratification of his proposals has been withheld from the President (Prime
Minister) as sole repository of the Executive Power, presumably in view of the
immense powers already vested in him by the Constitution but just as
importantly, because by the very nature of the constituent power, such
amendments proposals have to be prepared, deliberated and matured by a
deliberative assembly of representatives such as the interim National Assembly
and hence may not be antithetical entrusted to one man.
Former Chief Justice Roberto Concepcion had observed before the election of the
1971 Constitutional Convention that the records of past plebiscites show that the
constitutional agency vested with the exercise of the constituent power
(Congress or the Constitutional Convention) really determine the amendments to
the Constitution since the proposals were invariably ratified by the people, 37
thus: "although the people have Convention, such power is not, in view of the
circumstances attending its exercise, as effective as one might otherwise think;

12 Martial law concededly does not abrogate the Constitution nor obliterate its
constitutional boundaries and allocation of powers among the Executive,
Legislative and Judicial Departments. 39

II. On the question of the Courts jurisdiction to pass upon the constitutionality of
the questioned presidential decrees: let it be underscored that the Court has
long set at rest the question.
The trail was blazed for the Court since the benchmark case of Angara v.
Electoral commission when Justice Jose P. Laurel echoed U.S. Chief Justice
Marshalls "climactic phrase" that "we must never forget that it is a Constitution
we are expounding" and declared the Courts "solemn and sacred" constitutional
obligation of judicial review and laid down the doctrine that the Philippine
Constitution as "a definition of the powers of government" placed upon the
judiciary the great burden of "determining the nature, scope and extent of such
powers" and stressed that "when the judiciary mediates to allocate
constitutional boundaries, it does not assert any superiority over the other
departments. but only asserts the solemn and sacred obligation entrusted to it
by the Constitution to determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual controversy the rights
which the instrument secures and guarantees to them."
At the same time, the Court likewise adhered to the constitutional tenet that
political questions, i.e. questions which are intended by the Constitutional and
relevant laws to be conclusively determined by the" political", i.e. elective,
branches of government (namely, the Executive and the Legislative) are outside
the Courts jurisdiction. 41
Thus, in Gonzales, 42 (by a unanimous Court) and in Tolentino 43 (by the
required constitutional majority), the Court has since consistently ruled that
when proposing and approving amendments to the Constitution, the members of
Congress, acting as a constituent assembly or the members of the Constitutional
Convention elected directly for the purpose "do not have the final say on
whether or not their acts are within or beyond constitutional limits. Otherwise,
they could brush aside and set the same at naught, contrary to the basic tenet

19

that ours is a government of laws, not of men, and to the rigid nature of our
Constitution. Such rigidity is stressed by the fact that, the Constitution expressly
confers upon the Supreme Court, the power to declare a treaty unconstitutional,
despite the eminently political character of treaty-making power." 44
As amplified by former Chief Justice Conception in Javellana v. Executive
Secretary 45 (by a majority vote), "when the grant of power is qualified,
conditional or subject to limitations, the issue on whether or not the prescribed
qualifications or conditions have been met, or the limitations respected, is
justiciable or non-political, the crux of the problem being one of legality or
validity of the contested act, not its wisdom. Otherwise, said qualifications,
conditions and limitations-particularly those prescribed or imposed by the
Constitution-would be set at naught."
The fact that the proposed amendments are to be submitted to the people for
ratification by no means makes the question political and non-justiciable, since
as stressed even in Javellana, the issue of validity of the Presidents
proclamation of ratification of the 1973 Constitution presented a justiciable and
non-political question.

Stated otherwise, the question of whether the Legislative

acting as a constituent assembly or the Constitutional
Convention called for the purpose, in proposing
amendments to the people for ratification followed the
constitutional procedure and requirements on the amending
process is perforce a justiciable question and does not raise
a political question of policy or wisdom of the proposed
amendments, which
properly submitted, are reserved for the peoples decision.
The substantive question presented in the case at bar of whether the President
may legally exercise the constituent power vested in the interim National
Assembly (which has not been granted to his office) and propose constitutional
amendments is prominently a justiciable issue.

Justice Laurel in Angara had duly enjoined that "in times of

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

To follow the easy way out by disclaiming jurisdiction over the issue as a political
question would be judicial abdication.
III. On the question of whether there is a sufficient and proper submittal of the
proposed amendments to the people: Prescinding from the writers view of the
nullity of the questioned decrees for lack of authority on the Presidents part to
exercise the constituent power, I hold that the doctrine of fair and proper
submission first enunciated by a simple majority of six Justices in Gonzales and
subsequently officially adopted by the required constitutional two-thirds majority
of the Court in Tolentino is controlling in the case at bar.
1. There cannot be said to be fair and proper submission of the proposed
amendments. As ruled by this Court in Tolentino, where "the proposed
amendment in question is expressly saddled with reservations which naturally
impair, in great measure, its very essence as a proposed constitutional
amendment" and where "the way the proposal is worded, read together with the
reservations tacked to it by the Convention thru Section 3 of the questioned
resolution, it is too much of a speculation to assume what exactly the
amendment would really amount to in the end. All in all, as already pointed out
in our discussion of movants first ground, if this kind of amendment is allowed,
the Philippines will appear before the world to be in the absurd position of being
the only country with a constitution containing a provision so ephemeral no one
knows until when it will be actually in force", there can be no proper submission.
In Tolentino a solitary amendment reducing the voting age to 18 years was
struck down by this Court which ruled that "in order that a plebiscite for the
ratification of an amendment to the Constitution may be validly held, it must
provide the voter not only sufficient time but ample basis for an intelligent
appraisal of the nature of the amendment per se as well as its relation to the
other parts of the Constitution with which it has to form a harmonious whole,"
and that there was no proper submission "wherein the people are in the dark as
to frame of reference they can base their judgment on."
2. The now Chief Justice and Mr. Justice Makasiar with two other member 46
graphically pointed out in their joint separate opinion that the solitary question
"would seem to be uncomplicated and innocuous. But it is one of lifes verities
that things which appear to be simple may turn out not to be so simple after all."
47
They further expressed "essential agreement" with Mr. Justice Conrado V.
Sanchez separate opinion in Gonzales "on the minimum requirements that must
be met in order that there can be a proper submission to the people of a
proposed constitutional amendment" which reads thus:jgc:chanrobles.com.ph
". . . we take the view that the words submitted to the people for their
ratification, if constrained in the light of the nature of the Constitution a
fundamental charter that is legislation direct from the people, an expression of
their sovereign will is that it can only be amended by the people expressing
themselves according to the procedure ordained by the Constitution. Therefore,

20

amendments must be fairly laid before the people for their blessing or spurning.
The people are rot to be mere rubber stamps. They are not to vote blindly. They
must be afforded ample opportunity to mull over the original provisions,
compare them with the proposed amendments, and try to reach a conclusion as
the dictates of their conscience suggest, free from the incubus of extraneous or
possibly insidious influences. We believe the word submitted can only mean
that the government, within its maximum capabilities, should strain every effort
to inform every citizen of the provisions to be amended, and the proposed
amendments and the meaning, nature and effects thereof. By this, we are not to
be understood as saying that, if one citizen or 100 citizens or 1,000 citizens
cannot be reached, then there is no submission within the meaning of the word
as intended by the framers of the Constitution. What the Constitution in effect
directs is that the government, in submitting an amendment for ratification,
should put every instrumentality or agency within its structural framework to
enlighten the people, educate them with respect to their act of ratification or
rejection. For, as we have earlier stated, one thing is submission and another is
ratification. There must be fair submission, intelligent, consent or rejection. If
with all these safeguards the people still approve the amendment no matter how
prejudicial it is to them, then so be it. For the people decree their own fate." 48
Justice Sanchez therein ended the passage with an apt citation that." . . The
great men who builded the structure of our state in this respect had the mental
vision of a good Constitution voiced by Judge Cooley, who has said A good
Constitution should be beyond the reach of temporary excitement and popular
caprice or passion. It is needed for stability and steadiness; it must yield to the
thought of the people; not to the whim of the people, or the thought evolved in
excitement or hot blood, but the sober second thought, which alone, if the
government is to be safe, can be allowed efficiency. . . . Changes in government
are to be feared unless the benefit is certain. As Montaign says: All great
mutations shake and disorder a state. Good does not necessarily succeed evil:
another evil may succeed and a worse." 49
Justice Sanchez thus stated the rule that has been adopted by the Court in
Tolentino that there is no proper submission "if the people are not sufficiently
informed of the amendments to be voted upon, to conscientiously deliberate
thereon, to express their will in a genuine manner. . . .." 50

highest order, was reported by the newspapers last October 3 to have observed
that "there is no urgency in approving the proposed amendments to the
Constitution and suggested that the question regarding charter changes be
modified instead of asking the people to vote on hurriedly prepared
amendments." He further pointed out that "apart from lacking the parliamentary
style in the body of the Constitution, they do not indicate what particular
provisions are being repealed or amended." 52
As of this writing, October 11, 1976, the papers today reported his seven-page
analysis questioning among others the proposed granting of dual legislative
powers to both the President and the Batasang Pambansa and remarking that
"This dual legislative authority can give rise to confusion and serious
constitutional questions." 53
Aside from the inadequacy of the limited time given for the peoples
consideration of the proposed amendments, there can be no proper submission
because the proposed amendments are not in proper form and violate the
cardinal rule of amendments of written constitutions that the specific provisions
of the Constitution being repealed or amended as well as how the specific
provisions as amended would read, should be clearly stated in careful and
measured terms. There can be no proper submission because the vagueness
and ambiguity of the proposals do not sufficiently inform the people of the
amendments for conscientious deliberation and intelligent consent or rejection.
4. While the press and the Solicitor General at the hearing have stated that the
principal thrust of the proposals is to substitute the interim National Assembly
with an interim Batasang Pambansa, a serious study thereof in detail would lead
to the conclusion that the whole context of the 1973 Constitution proper would
be affected and grave amendments and modifications thereof would apparently
be made, among others, as follows:chanrob1es virtual 1aw library
Under Amendment No. 1, the qualification age of members of the interim
Batasang Pambansa is reduced to 18 years;
Under Amendment No. 2, the treaty-concurring power of the Legislature is
withheld from the interim Batasang Pambansa;

3. From the complex and complicated proposed amendments set forth in the
challenged decree and the plethora of confused and confusing clarifications
reported in the daily newspapers, it is manifest that there is no proper
submission of the proposed amendments.

Under Amendment No. 3, notwithstanding the convening of the interim Batasang

Pambansa within 30 days from the election and selection of the members (for
which there is no fixed date) the incumbent President apparently becomes a
regular President and Prime Minister (not ad interim);

Nine (9) proposed constitutional amendments were officially proposed and made
known as per Presidential Decree No. 1033 dated September 22, 1976 for
submittal at the "referendum-plebiscite" called for this coming Saturday,
October 16, 1976 wherein the 15-year and under 18-year-olds are enjoined to
vote 51 notwithstanding their lack of qualification under Article VI of the
Constitution.

Under Amendment No. 4, the disqualifications imposed on members of the

Cabinet in the Constitution such as the prohibition against the holding of more
than one office in the government including government-owned or controlled
corporations would appear to be eliminated, if not prescribed by the President;
Under Amendment No. 5, the President shall continue to exercise legislative
powers until martial law is lifted;

Former Senator Arturo Tolentino, an acknowledged parliamentarian of the

21

Under Amendment No. 6, there is a duality of legislative authority given the

President and the interim Batasang Pambansa as well as the regular National
Assembly, as pointed out by Senator Tolentino, with the President continuing to
exercise legislative powers in case of "grave emergency or a threat or
imminence thereof" (without definition of terms) or when said Assemblies "fail or
are unable to act adequately on any matter for any reason that in his judgment
requires immediate action", thus radically affecting provisions of the Constitution
governing the said departments;

the defunct Congress, who are mandated by the Constitution to become

members of the interim National Assembly, have gained so widespread a
notoriety that the mere mention of Congress conjures the image of a den of
thieves who are out to fool the people most of the time. Among the three
branches of government, it was the most discredited. In fact, upon the
declaration of martial law, some people were heard to mutter that a regime that
has finally put an end to such congressional shenanigans could not be all that
bad.

Under Amendment No. 7, the barangays and Sanggunians would apparently be

constitutionalized, although their functions, powers and composition may be
altered by law. Referendums (which are not authorized in the present 1973
Constitution) would also be constitutionalized, giving rise to the possibility
fraught with grave consequences, as acknowledged at the hearing, that
amendments to the Constitution may thereafter be effected by referendum,
rather than by the rigid and strict amending process provided presently in Article
XVI of the Constitution;

"A substitute legislative body is contemplated to help the President in

promulgating laws, and perhaps minimize the issuance of ill-drafted decrees
which necessitate constant amendments. But care should be taken that this new
legislative body would not become a mere rubber stamp akin to those of other
totalitarian countries. It should he given real powers, otherwise we will just have
another nebulous creation having the form but lacking the substance. Already
the President has expressed the desire that among the powers he would like to
have with regard to the proposed legislative body is that of abolishing it in case
there is a need to do so. As to what would occasion such a need, only the
President himself can determine. This would afford the Chief Executive almost
total power over the legislature, for he could always offer the members thereof a
carrot and a stick.

Under Amendment No. 8, there is a general statement in general that the

unspecified provisions of the Constitution "not inconsistent with any of these
amendments" shall continue in full force and effect; and
Under Amendment No. 9, the incumbent President is authorized to proclaim the
ratification of the amendments by the majority of votes cast.
It has likewise been stressed by the officials concerned that the proposed
amendments come in a package and may not be voted upon separately but on
an "all or nothing" basis.
5. Whether the people can normally express their will in a genuine manner and
with due circumspection on the proposed amendments amidst the constraints of
martial law is yet another question. That a period of free debate and discussion
has to be declared of itself shows the limitations on free debate and discussion.
The facilities for free debate and discussion over the mass media, print and
otherwise are wanting. The President himself is reported to have observed the
timidity of the media under martial law and to have directed the press to air the
views of the opposition. 54
Indeed, the voice of the studentry as reflected in the editorial of the Philippine
Collegian issue of September 23, 1976 comes as a welcome and refreshing
model of conscientious deliberation, as our youth analyzes the issues "which will
affect generations yet to come" and urge the people to "mull over the pros and
cons very carefully", as follows:jgc:chanrobles.com.ph
"THE REFERENDUM ISSUES
"On October 16, the people may be asked to decide on two important national
issues the creation of a new legislative body and the lifting of martial law.
"On the first issue, it is almost sure that the interim National Assembly will not
be convened, primarily because of its membership. Majority of the members of

"On the matter of lifting martial law, the people have expressed ambivalent
attitudes. Some of them, remembering the turmoil that prevailed before the
declaration of martial law, have expressed the fear that its lifting might
precipitate the revival of the abuses of the past, and provide an occasion for evil
elements to resurface with their usual tricks. Others say that it is about time
martial law was lifted, since the peace and order situation has already stabilized
and the economy seems to have been perked up.
"The regime of martial law has been with us for four years now. No doubt,
martial law has initially secured some reforms for the country. The people were
quite willing to participate in the new experiment, thrilled by the novelty of it all.
After the euphoria, however, the people seem to have gone back to the old
ways, with the exception that some of our freedoms were taken away, and an
authoritarian regime established.
"We must bear in mind that martial law was envisioned only to cope with an
existing national crisis. It was not meant to be availed of for a long period of
time, otherwise it would undermine our adherence to a democratic form of
government. In the words of the Constitution, martial law shall only be declared
in times of rebellion, insurrection invasion, or imminent danger thereof, when
the public safety requires it. Since we no longer suffer from internal
disturbances of a gargantuan scale, it is about time we seriously rethink the
necessity of prolonging the martial law regime. If we justify the continuance of
martial law by economic or other reasons other than the foregoing constitutional
grounds, then our faith in the Constitution might be questioned. Even without
martial law, the incumbent Chief Executive still holds vast powers under the
Constitution. After all, the gains of the New Society can be secured without
sacrificing the freedom of our people. If the converse is true, then we might have

22

to conclude that the Filipinos deserve a dictatorial form of government. The

referendum results will show whether the people themselves have adopted this
sad conclusion.
"The response of the people to the foregoing issues will affect generations yet to
come, so they should mull over the pros and cons very carefully."cralaw
virtua1aw library
6. This opinion is written in the same spirit as the Presidents exhortations on the
first anniversary of proclamation of the 1973 Constitution that we "let the
Constitution remain firm and stable" so that it may "guide the people", and that
we "remain steadfast on the rule of law and the Constitution" as he recalled his
rejection of the "exercise (of) power that can be identified merely with a
revolutionary government" that makes its own law, thus:jgc:chanrobles.com.ph
". . . Whoever he may be and whatever position he may happen to have,
whether in government or outside government, it is absolutely necessary now
that we look solemnly and perceptively into the Constitution and try to discover
for ourselves what our role is in the successful implementation of that
Constitution. With this thought, therefore, we can agree on one thing and that is:
Let all of us age, let all of us then pass away as a pace in the development of our
country, but let the Constitution remain firm and stable and let institutions grow
in strength from day to day, from achievement to achievement, and so long as
that Constitution stands, whoever may the man in power be, whatever may his
purpose be, that Constitution will guide the people and no man, however,
powerful he may be, will dare to destroy and wreck the foundation of such a
Constitution.
"These are the reasons why I personally, having proclaimed martial law, having
been often induced to exercise power that can be identified merely with a
revolutionary government, have remained steadfast on the rule of law and the
Constitution." 54*
IV. A final word on the Courts resolution of October 5, 1976 which in reply to the
Comelec query allowed by a vote of 7 to 3, judges of all courts, after office
hours, "to accept invitations to act as resource speakers under Section 5 of
Presidential Decree No. 991, as amended, as well as to take sides in discussions
and debates on the referendum-plebiscite questions under Section 7 of the same
Decree." 55
The writer with Mr. Justice Makasiar and Madame Justice Muoz Palma had
dissented from the majority resolution, with all due respect, on the ground that
the non-participation of judges in such public discussions and debates on the
referendum-plebiscite questions would preserve the traditional non-involvement
of the judiciary in public discussions of controversial issues. This is essential for
the maintenance and enhancement of the peoples faith and confidence in the
judiciary. The questions of the validity of the scheduled referendum-plebiscite
and of whether there is proper submission of the proposed amendments were
precisely subjudice by virtue of the cases at bar.

The lifting of the traditional inhibition of judges from public discussion and
debate might blemish the image and independence of the judiciary. Aside from
the fact that the fixing of a time limit for the acceptance of their courtesy
resignations to avoid an indefinite state of insecurity of their tenure in office still
pends, litigants and their relatives and friends as well as a good sector of the
public would be hesitant to air views contrary to that of the Judge.
Justices Makasiar and Muoz Palma who share these views have agreed that we
make them of record here, since we understand that the permission given in the
resolution is nevertheless addressed to the personal decision and conscience of
each judge, and these views may be of some guidance to them.
BARREDO, J., concurring:chanrob1es virtual 1aw library
While I am in full agreement with the majority of my brethren that the herein
petitions should he dismissed, as in fact I vote for their dismissal, I deem it
imperative that I should state separately the considerations that have impelled
me to do so.
Perhaps, it is best that I should start by trying to disabuse the minds of those
who I have doubts as to whether or not I should have taken part in the
consideration and resolution of these cases. Indeed, it would not be befitting my
position in this Highest Tribunal of the land for me to leave unmentioned the
circumstances which have given cause, I presume, for others to feel
apprehensive that my participation in these proceedings might detract from that
degree of faith in the impartiality that the Courts judgment herein should
ordinarily command. In a way, it can be said, of course, that I am the one most
responsible for such a rather problematical situation, and it is precisely for this
reason that I have decided to begin this opinion with a discussion of why I have
not inhibited myself, trusting most confidently that what I have to say will be
taken in the same spirit of good faith, sincerity and purity of purpose in which I
am resolved to offer the same.
Plain honesty dictates that I should make of record here the pertinent contents
of the official report of the Executive Committee of the Katipunan ng mga
Sanggunian submitted to the Katipunan itself about the proceedings held on
August 14, 1976. It is stated in that public document that:jgc:chanrobles.com.ph
"THE ISSUE WITH REGARDS TO THE CONVENING OF A LEGISLATIVE body came
out when the President expressed his desire to share his powers with other
people.
Aware of this, a five-man Committee members of the Philippine Constitution
Association (PHILCONSA) headed by Supreme Court Justice Antonio Barredo
proposed on July 28, the establishment of Sangguniang Pambansa or Batasang
Pambansa which would help the President in the performance of his legislative
functions. The proposed new body will take the place of the interim National
Assembly which is considered not practical to convene at this time considering
the constitution of its membership.
Upon learning the proposal of Justice Barredo, the countrys 42,000 barangay

23

assemblies on August 1 suggested that the people be consulted on a proposal to

create a new legislative body to replace the interim assembly provided for by
the Constitution. The suggestion of the barangay units was made through their
national association, Pambansang Katipunan ng mga Barangay headed by Mrs.
Nora Z. Petines. She said that the people have shown in at least six instances
including in the two past referenda that they are against the convening of the
interim National Assembly. She also said that since the people had ruled out the
calling of such assembly and that they have once proposed that the President
create instead the Sangguniang Pambansa or a legislative advisory body, then
the proposal to create a new legislative must necessarily be referred to the
people.
The federation of Kabataang Barangay, also numbering 42,000 units like their
elder counterparts in the Katipunan ng mga Barangay also asserted their own
right to be heard on whatever plans are afoot to convene a new legislative body.
On August 6, a meeting of the national directorate of PKB was held to discuss
matters pertaining to the stand of the PKB with regards to the convening of a
new legislative body. The stand of the PKB is to create a legislative advisory
council in place of the old assembly. Two days after, August 8, the Kabataang
Barangay held a symposium and made a stand which is the creation of a body
with full legislative powers.
A nationwide clamor for the holding of meeting in their respective localities to
discuss more intelligently the proposal to create a new legislative body was
made by various urban and rural Sangguniang Bayans.
Numerous requests made by some members coming from 75 provincial and 61
city SB assemblies, were forwarded to the Department of Local Government and
Community Development (DLGCD).
On August 7, Local Government Secretary, Jose A. Roo granted the request by
convening the 91 member National Executive Committee of the Pambansang
Katipunan ng mga Sanggunian on August 14 which was held at Session Hall,
Quezon City. Invited also to participate were 13 Regional Federation Presidents
each coming from the PKB and the PKKB."cralaw virtua1aw library
Actually, the extent of my active participation in the events and deliberations
that have culminated in the holding of the proposed referendum-plebiscite on
October 16, 1976, which petitioners are here seeking to enjoin, has been more
substantial and meaningful than the above report imparts. Most importantly,
aside from being probably the first person to publicly articulate the need for the
creation of an interim legislative body to take the place of the interim National
Assembly provided for in the Transitory Provisions of the Constitution, as
suggested in the above report, I might say that I was the one most vehement
and persistent in publicly advocating and urging the authorities concerned to
directly submit to the people in a plebiscite whatever amendments of the
Constitution might be considered necessary for the establishment of such
substitute interim legislature. In the aforementioned session of the Executive
Committee of the Katipunan, I discoursed on the indispensability of a new

interim legislative body as the initial step towards the early lifting of martial law
and on the fundamental considerations why in our present situation a
constitutional convention would be superfluous in amending the Constitution.
Moreover, it is a matter of public knowledge that in a speech I delivered at the
Coral Ballroom of the Hilton Hotel in the evening of August 17, 1976, I
denounced in no uncertain terms the plan to call a constitutional convention. I
reiterated the same views on September 7, 1976 at the initial conference called
by the Comelec in the course of the information and educational campaign it
was enjoined to conduct on the subject. And looking back at the subsequent
developments up to September 22, 1976, when the Batasang Bayan approved
and the President signed the now impugned Presidential Decree No. 1033, it is
but human for me to want to believe that to a certain extent my strong
criticisms and resolute stand against any other alternative procedure of
amending the Constitution for the purpose intended had borne fruit.
I must hasten to add at this point, however, that in a larger sense, the initiative
for all I have done, was not altogether mine alone. The truth of the matter is that
throughout the four years of this martial law government, it has always been my
faith, as a result of casual and occasional exchanges of thought with President
Marcos, that when the appropriate time does come, the President would
somehow make it known that in his judgment, the situation has already so
improved as to permit the implementation, if gradual, of the constitutionally
envisioned evolution of our government from its present state to a parliamentary
one. Naturally, this would inevitably involve the establishment of a legislative
body to replace the abortive interim National Assembly. I have kept tract of all
the public and private pronouncements of the President, and it was the result of
my reading thereof that furnished the immediate basis for my virtually
precipitating, in one way or another, the materialization of the forthcoming
referendum-plebiscite. In other words, in the final analysis, it was the Presidents
own attitude on the matter that made it opportune for me to articulate my own
feelings and ideas as to how the nation can move meaningfully towards
normalization and to publicly raise the issues that have been ventilated by the
parties in the instant cases.chanrobles law library : red
I would not be human, if I did not consider myself privileged in having been
afforded by Divine Providence the opportunity to contribute a modest share in
the formulation of the steps that should lead ultimately to the lifting of martial
law in our country. Indeed, I am certain every true Filipino is anxiously looking
forward to that eventuality. And if for having voiced the sentiments of our
people, where others would have preferred to be comfortably silent, and if for
having made public what every Filipino must have been feeling in his heart all
these years, I should be singled out as entertaining such preconceived opinions
regarding the issues before the Court in the cases at bar as to preclude me from
taking part in their disposition, I can only say that I do not believe there is any
other Filipino in and out of the Court today who is not equally situated as I am.
The matters that concern the Court in the instant petitions to not involve merely
the individual interests of any single person or group of persons. Besides, the
stakes in these cases affect everyone commonly, not individually. The current of
history that has passed through the whole country in the wake of martial law has

24

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

as a member of the Supreme Court can sit in it at any time or for any reason.
The Judicial power is vested in the Supreme Court composed as the Constitution
ordains that power cannot be exercised by a Supreme Court constituted
otherwise. And so, when as in the instant cases where, if any of the member of
Court is to abstain from taking part, there would be no quorum and no court
to render the decision it is the ineludible duty of all the incumbent justices to
participate in the proceedings and to cast their votes, considering that for the
reasons stated above, the provisions of Section 9 of the Judiciary Act do not
appear to conform with the concept of the office of Justice of the Supreme Court
contemplated in the Constitution.chanroblesvirtualawlibrary
The very nature of the office of Justice of the Supreme Court as the tribunal of
last resort and bulwark of the rights and liberties of all the people demands that
only one of dependable and trustworthy probity should occupy the same.
Absolute integrity, mental and otherwise, must be possessed by everyone who is
appointed thereto. The moral character of every member of the Court must be
assumed to be such that in no case whatsoever, regardless of the issues and the
parties involved, may it be feared that anyones life, liberty or property, much
less the national interests, would ever be in jeopardy of being unjustly and
improperly subjected to any kind of judicial sanction. In sum, every Justice of the
Supreme Court is expected to be capable of rising above himself in every case
and of having full control of his emotions and prejudices, such that with the legal
training and experience he must of necessity be adequately equipped with, it
would be indubitable that his judgment cannot be but objectively impartial,
Indeed, even the appointing power, to whom the Justices owe their positions,
should never hope to be unduly favored by any action of the Supreme Court. All
appointments to the Court are based on these considerations, hence the
ordinary rules on inhibition and disqualification do not have to be applied to its
members.
With the preliminary matter of my individual circumstances out of the way, I
shall now address myself to the grave issues submitted for Our resolution.
-IIn regard to the first issue as to whether the questions posed in the petitions
herein are political or justiciable, suffice it for me to reiterate the fundamental
position I took in the Martial Law cases, 1 thus:jgc:chanrobles.com.ph
"As We enter the extremely delicate task of resolving the grave issues thus
thrust upon Us. We are immediately encountered by absolute verities to guide
Us all the way. The first and most important of them is that the Constitution
(Unless expressly stated otherwise, all references to the Constitution in this
discussion are to both the 1935 and 1973 charters, since, after all, the pertinent
provisions are practically identical in both.) is the supreme law of the land. This
means among other things that all the powers of the government and of all its
officials from the President down to the lowest emanate from it. None of them
may exercise any power unless it can be traced thereto either textually or by
natural and logical implication.

25

"The second is that it is settled that the Judiciary provisions of the Constitution
point to the Supreme Court as the ultimate arbiter of all conflicts as to what the
Constitution or any part thereof means. While the other Departments may adopt
their own construction thereof, when such construction is challenged by the
proper party in an appropriate case wherein a decision would be impossible
without determining the correct construction, the Supreme Courts word on the
matter controls.
"The fifth is that in the same manner that the Executive power conferred upon
the Executive by the Constitution is complete, total and unlimited, so also, the
judicial power vested in the Supreme Court and the inferior courts, is the very
whole of that power, without any limitation or qualification.
"From these incontrovertible postulates, it results, first of all, that the main
question before Us is not in reality one of jurisdiction, for there can be no
conceivable controversy, especially one involving a conflict as to the correct
construction of the Constitution, that is not contemplated to be within the
judicial authority of the courts to hear and decide. The judicial power of the
courts being unlimited and unqualified, it extends over all situations that call for
the ascertainment and protection of the rights of any party allegedly violated,
even when the alleged violator is the highest official of the land or the
government itself. It is, therefore, evidence that the Courts jurisdiction to take
cognizance of and to decide the instant petitions on their merits is beyond
challenge.
"In this connection, however, it must be borne in mind that in the form of
government envisaged by the farmers of the Constitution and adopted by our
people, the Courts indisputable and plenary authority to decide does not
necessarily impose upon it the duty to interpose its fiat as the only means of
setting the conflicting claims of the parties before it. It is ingrained in the
distribution of powers in the fundamental law that hand in hand with the vesting
of the judicial power upon the Court, the Constitution has coevally conferred
upon it the discretion to determine, in consideration of the constitutional
prerogatives granted to the other Departments, when to refrain from imposing
judicial solutions and instead defer to the judgment of the latter. It is in the very
nature of republican governments that certain matters are left in the residual
power of the people themselves to resolve, either directly at the polls or thru
their elected representatives in the political Departments of the government.
And these reserved matters are easily distinguishable by their very nature, when
one studiously considers the basic functions and responsibilities entrusted by
the charter to each of the great Departments of the government. To cite an
obvious example, the protection, defense and preservation of the state against
internal or external aggression threatening its very existence is far from being
within the ambit of judicial responsibility. The distinct role then of the Supreme
Court of being the final arbiter in the determination of constitutional
controversies does not have to be asserted in such contemplated situations,
thereby to give way to the ultimate prerogative of the people articulated thru
suffrage or thru the acts of their political representatives they have elected for
the purpose.

Indeed, these fundamental considerations are the ones that lie at the base of
what is known in American constitutional law as the political question doctrine,
which in that jurisdiction is unquestionably deemed to be part and purse of the
rule of law, exactly like its apparently more attractive or popular opposite,
judicial activism, which is the fullest exertion of judicial power, upon the theory
that unless the courts intervene injustice might prevail. It has been invoked and
applied by this Court in varied forms and modes of projection in several
momentous instances in the past, (Barcelon v. Baker, 5 Phil. 87; Severino v.
Governor-General, 16 Phil. 366; Abueva v. Wood, 45 Phil. 612; Alejandrino v.
Quezon, 46 Phil. 85; Vera v. Avelino, 77 Phil. 192; Mabanag v. Lopez Vito, 78 Phil.
1; Cabili v. Francisco, 88 Phil. 654; Montenegro v. Castaeda, 91 Phil. 882;
Santos v. Yatco, 55 O.G. 8641 [Minute Resolution of Nov. 6, 1959]; Osmea v.
Pendatun, Oct. 28, 1960.) and it is the main support of the stand of the Solicitor
General on the issue of jurisdiction in the cases at bar. It is also referred to as
the doctrine of judicial self-restraint or abstention. But as the nomenclatures
themselves imply, activism and self-restraint are both subjective attitudes, not
inherent imperatives. The choice of alternatives in any particular eventuality is
naturally dictated by what in the Courts considered opinion is what the
Constitution envisions should be done in order to accomplish the objectives of
government and of nationhood. And perhaps it may be added here to avoid
confusion of concepts, that We are not losing sight of the traditional approach
based on the doctrine of separation of powers. In truth, We perceive that even
under such mode of rationalization, the existence of power is secondary, respect
for the acts of a co-ordinate, co-equal and co-independent Department being the
general rule, particularly when the issue is not encroachment of delimited areas
of functions but alleged abuse of a Departments own basic prerogatives. (59
SCRA, pp. 379-383.)
Applying the foregoing considerations to the cases at bar, I hold that the Court
has jurisdiction to pass on the merits of the various claims of petitioners. At the
same time, however, I maintain that the basic nature of the issues herein raised
requires that the Court should exercise its constitutionally endowed prerogative
to refrain from exerting its judicial authority in the premises.chanrobles virtual
lawlibrary
Stripped of incidental aspects, the constitutional problem that confronts Us
stems from the absence of any clear and definite express provision in the
Charter applicable to the factual milieu herein involved. The primary issue is, to
whom, under the circumstances, does the authority to propose amendments to
the Constitution property belong? To say, in the light of Section 15 of Article XVII
of the Charter, that faculty lies in the interim National Assembly is to beg the
main question. Indeed, there could be no occasion for doubt or debate, if it could
only be assumed that the interim National Assembly envisaged in Sections 1 and
2 of the same Article XVII may be convoked. But precisely, the fundamental
issue We are called upon to decide is whether or not it is still constitutionally
possible to convene that body. And relative to that question, the inquiry centers
on whether or not the political developments since the ratification of the
Constitution indicate that the people have in effect enjoined the convening of
the interim National Assembly altogether. On this score, it is my assessment that

26

the results of the referenda of January 10-15, 1973, July 27-28, 1973 and
February 27, 1975 clearly show that the great majority of our people, for reasons
plainly obvious to anyone who would consider the composition of that Assembly,
what with its more than 400 members automatically voted into it by the
Constitutional Convention together with its own members, are against its being
convoked at all.
Whether or not such a manifest determination of the sentiments of the people
should be given effect without a formal amendment of the Constitution is
something that constitutional scholars may endlessly debate on. What cannot be
disputed, however, is that the government and the nation have acquiesced to it
and have actually operated on the basis thereof. Proclamation 1103 which, on
the predicate that the overwhelming majority of the people desire that the
interim Assembly be not convened, has ordained the suspension of its
convocation, has not been assailed either judicially or otherwise since the date
of its promulgation on January 17, 1973.
In these premises, it is consequently the task of the Court to determine what,
under these circumstances, is the constitutional relevance of the interim
National Assembly to any proposal to amend the Constitution at this time. It is
my considered opinion that in resolving that question, the Court must have to
grapple with the problem of what to do with the will of the people, which
although manifested in a manner not explicitly provided for in the Constitution,
was nevertheless official, and reliable, and what is more important clear and
unmistakable, despite the known existence of well-meaning, if insufficiently
substantial dissent. Such being the situation, I hold that it is not proper for the
Court to interpose its judicial authority against the evident decision of the people
and should leave it to the political department of the government to devise the
ways and means of resolving the resulting problem of how to amend the
Constitution, so long as in choosing the same, the ultimate constituent power is
left to be exercised by the people themselves in a well-ordered plebiscite as
required by the fundamental law.
-2Assuming We have to inquire into the merits of the issue relative to the
constitutional authority behind the projected amendment of the Charter in the
manner provided in Presidential Decree 1033, I hold that in the peculiar situation
in which the government is today, it is not incompatible with the Constitution for
the President to propose the subject amendments for ratification by the people
in a formal plebiscite under the supervision of the Commission on Elections. On
the contrary, in the absence of any express prohibition in the letter of the
Charter, the Presidential Decree in question is entirely consistent with the spirit
and the principles underlying the Constitution. The correctness of this conclusion
should become even more patent, when one considers the political
developments that the people have brought about since the ratification of the
Constitution on January 17, 1973.
I consider it apropos at this juncture to repeat my own words in a speech I
delivered on the occasion of the celebration of Law Day on September 18, 1975

before the members of the Philippine Constitution Association and their

guests:jgc:chanrobles.com.ph
"To fully comprehend the constitutional situation in the Philippines today, one
has to bear in mind that, as I have mentioned earlier, the martial law proclaimed
under the 1935 Constitution overtook the drafting of the new charter by the
Constitutional Convention of 1971. It was inevitable, therefore, that the
delegates had to take into account not only the developments under it but, most
of all, its declared objectives and what the President, as its administrator, was
doing to achieve them. In this connection, it is worthy of mention that an
attempt to adjourn the convention was roundly voted down to signify the
determination of the delegates to finish earliest their work, thereby to
accomplish the mission entrusted to them by the people to introduce meaningful
reforms in our government and society. Indeed, the constituent labors gained
rapid tempo, but in the process, the delegates were to realize that the reforms
they were formulating could be best implemented if the martial law powers of
the President were to be allowed to subsist even after the ratification of the
Constitution they were approving. This denouement was unusual. Ordinarily, a
constitution born out of a crisis is supposed to provide all the needed cures and
can, therefore, be immediately in full force and effect after ratification. Not so,
with our 1973 Constitution, Yes, according to the Supreme Court, there is no
more judicial obstacle to the new Constitution being considered in force and
effect, but in truth, it is not yet so in full. Let me explain.
To begin with, in analyzing the new Constitution, we must be careful to
distinguish between the body or main part thereof and its transitory provisions.
It is imperative to do so because the transitory provisions of our Constitution are
extraordinary in the sense that obviously they have been designed to provide
not only for the transition of our government from the presidential form under
the past charter to a parliamentary one as envisaged in the new fundamental
law, but also to institutionalize, according to the President, the reforms
introduced thru the exercise of his martial law powers. Stated differently, the
transitory provisions, as it has turned out, has in effect established a transition
government, not, I am sure, perceived by many. It is a government that is
neither presidential nor parliamentary. It is headed, of course, by President
Marcos who not only retains all his powers under the 1935 Constitution but
enjoys as well those of the President and the Prime Minister under the new
Constitution. Most importantly, he can and does legislate alone. But to be more
accurate, I should say that he legislates alone in spite of the existence of the
interim National Assembly unequivocally ordained by the Constitution, for the
simple reason that he has suspended the convening of said assembly by issuing
Proclamation No. 1103 purportedly in deference to the sovereign will of the
Filipino people expressed in the January 10-15, 1973 referendum.
Thus, we have here the unique case of a qualified ratification. The whole
Constitution was submitted for approval or disapproval of the people, and after
the votes were counted and the affirmative majority known, we were told that
the resulting ratification was subject to the condition that the interim National
Assembly evidently established in the Constitution as the distinctive and
indispensable element of a parliamentary form of government should

27

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

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

28

designed by the constitutional convention to perform the constituent function of

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

prerogative of calling a convention, one can readily appreciate that the spirit of
the Constitution does not countenance or favor the calling of a convention
during the transition, if only because such a procedure would be time
consuming, cumbersome and expensive. And when it is further noted that the
requirement as to the number of votes needed for a proposal is only a majority,
whereas it is three-fourths in respect to regular Assembly, and, relating this
point to the provision of Section 2 of Article XVI to the effect that all ratification
plebiscites must be held "not later than three months after the approval" of the
proposed amendment by the proposing authority, the adoption of the most
simple manner of amending the charter, as that provided for in the assailed
Presidential Decree 1033 suggests itself as the one most in accord with the
intent of the fundamental law.
There is nothing strange in adopting steps not directly based on the letter of the
Constitution for the purpose of amending or changing the same. To cite but one
important precedent, as explained by Mr. Justice Makasiar in his concurring
opinion in Javellana 2 , the present Constitution of the United States was neither
proposed nor ratified in the manner ordained by the original charter of that
country, the Articles of Confederation and Perpetual Union.
In brief, if the convening and operation of the interim National Assembly has
been effectuated through a referendum-plebiscite in January, 1973, and ratified
expressly and impliedly in two subsequent referenda, those of July, 1973 and
February, 1975, why may not a duly held plebiscite suffice for the purpose of
creating a substitute for that Assembly? It should be borne in mind that after all,
as indicated in the whereas of the impugned Presidential Decree, actually, the
proposed amendments were initiated by the barangays and sanggunian
members. In other words, in submitting the amendments for ratification, the
President is merely acting as the conduit thru whom a substantial portion of the
people, represented in the Katipunan ng Mga Sanggunian, Barangay at
Kabataang Barangay, seek the approval of the people as a whole of the
amendments in question. If all these mean that the sovereign people have
arrogated unto themselves the functions relative to the amendment to the
Constitution, I would regard myself as totally devoid of legal standing to question
it, having in mind that the most fundamental tenet on which our whole political
structure rests is that "sovereignty resides in the people and all government
authority emanates from them."cralaw virtua1aw library
In the light of the foregoing considerations, I hold that Presidential Decree No.
1033 does not infringe the Constitution, if only because the specific provision it
is supposed to infringe does not exist in legal contemplation since it was
coevally made inoperative when the people ratified the Constitution on January
17, 1973. I am fully convinced that there is nothing in the procedure of
amendment contained in said decree that is inconsistent with the fundamental
principles of constitutionalism. On the contrary, I find that the Decree, in issue
conforms admirably with the underlying tenet of our government the
sovereignty and plenary power of the people.
On the issue of whether or not October 16, 1976 is too proximate to enable the
people to sufficiently comprehend the issues and intelligently vote in the

29

referendum and plebiscite set by Presidential Decree 1033, all I can say is that
while perhaps my other colleagues are right in holding that the period given to
the people is adequate, I would leave it to the President to consider whether or
not it would be wiser to extend the same. Just to avoid adverse comments later I
wish the President orders a postponement. But whether such postponement is
ordered or not, date of the referendum-plebiscite anywhere from October 16,
1976 to any other later date, would be of no vital import.
In conclusion, I vote to dismiss all the three petitions before Us.
MAKASIAR, J., concurring and dissenting:chanrob1es virtual 1aw library
Since the validity or effectivity of the proposed amendments is to be decided
ultimately by the people in their sovereign capacity, the question is political as
the term is defined in Taada, Et. Al. v. Cuenco, Et. Al. (103 Phil. 1051), which is
a bar to any judicial inquiry, for the reasons stated in Our opinion in Javellana,
Et. Al. v. Executive Secretary, Et. Al. (L-36142); Tan, Et. Al. v. Executive
Secretary, Et. Al. (L-36164); Roxas, Et. Al. v. Executive Secretary, Et. Al. (L36165); Monteclaro, etc., Et. Al. v. Executive Secretary, Et. Al. (L-36236); and
Dilag, Et. Al. v. Executive Secretary, Et. Al. (L-36283, March 31, 1973, 50 SCRA
30, 204-283). The procedure for amendment is not important. Ratification by the
people is all that is indispensable to validate an amendment. Once ratified, the
method of making the proposal and the period for submission become irrelevant.
The contrary view negates the very essence of a republican democracy that
the people are sovereign and renders meaningless the emphatic declaration
in the very first provision of Article II of the 1973 Constitution that the Philippines
is a republican state, sovereignty resides in the people and all government
authority emanates from them. It is axiomatic that sovereignty is illimitable. The
representatives cannot dictate to the sovereign people. They may guide them;
but they cannot supplant their judgment. Such an opposite view likewise
distrusts the wisdom of the people as much as it despises their intelligence. It
evinces a presumptuous pretension to intellectual superiority. There are
thousands upon thousands among the citizenry, who are not in the public
service, who are more learned and better skilled than many of their elected
representatives.
Moreover, WE already ruled in Aquino, Et. Al. v. Comelec, Et. Al. (L-40004, Jan.
31, 1975, 62 SCRA 275, 298-302) that the President as enforcer or administrator
of martial rule during the period of martial law can legislate; and that he has the
discretion as to when the convene the interim National Assembly depending on
prevailing conditions of peace and order. In view of the fact that the interim
National Assembly has not been convoked in obedience to the desire of the
people clearly expressed in the 1973 referenda, the President therefore remains
the lone law-making authority while martial law subsists. Consequently, he can
also exercise the power of the interim National Assembly to propose
amendments to the New Constitution (Sec. 15, Art. XVII). If, as conceded by
petitioner Vicente Guzman (L-44684), former delegate to the 1971 Constitutional
Convention which drafted the 1973 Constitution, the President, during the period
of martial law, can call a constitutional convention for the purpose, admittedly a
constituent power, it stands to reason that the President can likewise legally

propose amendments to the fundamental law.chanrobles law library : red

ANTONIO, J., concurring:chanrob1es virtual 1aw library
I.
At the threshold, it is necessary to clarify what is a "political question." It must
be noted that this device has been utilized by the judiciary "to avoid determining
questions it is ill equipped to determine or that could be settled in any event
only with the effective support of the political branches." 1 According to Weston,
judges, whether "personal representatives of a truly sovereign king, or taking
their seats as the creatures of a largely popular sovereignty speaking through a
written constitution, derive their power by a delegation, which clearly or
obscurely as the case may be, delineates and delimits their delegated
jurisdiction. . . . Judicial questions . . . are those which the sovereign has set to
be decided in the courts. Political question, similarly, are those which the
sovereign has entrusted to the so-called political departments of government or
has reserved to be settled by its own extra-governmental action." 2 Reflecting a
similar concept, this Court has defined a "political question" as a "matter which
is to be exercised by the people in their primary political capacity or that has
been specifically delegated to some other department or particular officer of the
government, with discretionary power to act." 3 In other words, it refers to those
questions which, under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of government. 4
In determining whether an issue falls within the political question category, the
absence of a satisfactory criterion for a judicial determination or the
appropriateness of attributing finality to the action of the political departments
of government is a dominant consideration. This was explained by Justice
Brennan in Baker v. Carr, 5 thus:jgc:chanrobles.com.ph
"Prominent on the surface of any case held to involve political question is found
a textually demonstrable constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable and manageable
standards for resolving it; or the impossibility of deciding without an initial policy
determination of a kind clearly for non-judicial discretion; or the impossibility of
a courts undertaking independent resolution without expressing lack of the
respect due coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or the potentiality
of embarrassment from multifarious pronouncements by various departments on
one question. . . ."cralaw virtua1aw library
To decide whether a matter has in a measure been committed by the
Constitution to another branch of government or retained by the people to be
decided by them in their sovereign capacity, or whether that branch exceeds
whatever authority has been committed, is indeed a delicate exercise in
constitutional interpretation.
In Coleman v. Miller, 6 the United States Supreme Court held that the efficacy of

30

the ratification by state legislatures of a constitutional amendment is a political

question. On the question of whether the State Legislature could constitutionally
ratify an amendment, after the same had been previously rejected by it, it was
held that the ultimate authority over the question was in Congress in the
exercise of its control over the promulgation of the adoption of the amendment.
And in connection with the second question of whether the amendment has lost
its vitality through the lapse of time, the Court held that the question was
likewise political, involving "as it does . . . an appraisal of a great variety of
relevant conditions, political, social and economic, which can hardly be said to
be within the appropriate range of evidence receivable in a court of justice and
as to which it would be an extravagant extension of juridical authority to assert
judicial notice as the basis of deciding a controversy with respect to the validity
of an amendment actually ratified. On the other hand, these conditions are
appropriate for the consideration of the political departments of the
Government. The questions they involve are essentially political and not
justiciable."cralaw virtua1aw library
In their concurring opinions, Justices Black, Roberts, Frankfurter and Douglas
stressed that:jgc:chanrobles.com.ph
"The Constitution grants Congress exclusive power to control submission of
constitutional amendments. Final determination by Congress that ratification by
three-fourths of the States has taken place is conclusive upon the courts. In the
exercise of that power, Congress, of course, is governed by the Constitution.
However, whether submission, intervening procedure for Congressional
determination of ratification conforms to the commands of the Constitution, call
for decisions by a political department of questions of a type which this Court
has frequently designated political. And decision of a political question by the
political department to which the Constitution has committed it conclusively
binds the judges, as well as all other officers, citizens and subjects of . . .
government. Proclamation under authority of Congress that an amendment has
been ratified will carry with it a solemn assurance by the Congress that
ratification has taken place as the Constitution commands. Upon this assurance
a proclaimed amendment must be accepted as a part of the Constitution,
leaving to the judiciary its traditional authority of interpretation. To the extent
that the Courts opinion in the present case even impliedly assumes a power to
make judicial interpretation of the exclusive constitutional authority of Congress
over submission and ratification of amendments, we are unable to agree."cralaw
virtua1aw library
Relying on this doctrine enunciated in Coleman v. Miller, supra, this Court, in
Mabanag v. Lopez Vito, 7 speaking through Mr. Justice Pedro Tuason, ruled that
the process of constitutional amendment, involving proposal and ratification, is a
political question. In the Mabanag case, the petitioners sought to prevent the
enforcement of a resolution of Congress proposing the "Parity Amendment" to
the Philippine Constitution on the ground that it had not been approved by the
three-fourths vote of all the members of each house as required by Article XV of
the 1935 Constitution. It was claimed that three (3) Senators and eight (8)
members of the House of Representatives had been suspended and that their
membership was not considered in the determination of the three-fourths vote.
In dismissing the petition on the ground that the question of the validity of the

proposal was political, the Court stated:jgc:chanrobles.com.ph

"If ratification of an amendment is a political question, a proposal which leads to
ratification has to be a political question. The two steps complement each other
in a scheme intended to achieve a single objective. It is to be noted that
amendatory process as provided in Section 1 of Article XV of the Philippine
Constitution consists of (only) two distinct parts: proposal and ratification.
There is no logic in attaching political character to one and withholding that
character from the other. Proposal to amend the Constitution is highly political
function performed by the Congress in its sovereign legislative capacity and
committed to its charge by the Constitution itself. . . ." (At pages 4-5,Emphasis
supplied.)
It is true that in Gonzales v. Comelec, 8 this Court held that "the issue whether
or not a Resolution of Congress, acting as a constituent assembly violates the
Constitution is essentially justiciable, not political, and hence, subject to judicial
review." What was involved in Gonzales, however, was not a proposed
amendment to the Constitution but an act of Congress, 9 submitting proposed
amendments to the Constitution. Similarly, in Tolentino v. Commission on
Elections. 10 what was involved was not the validity of the proposal to lower the
voting age but rather that of the resolution of the Constitutional Convention
submitting the proposal for ratification. The question was whether piecemeal
amendments to the Constitution could be submitted to the people for approval
or rejection.
II
Here, the point has been stressed that the President is acting as agent for and in
behalf of the people in proposing the amendment. There can be no question that
in the referendums of January, 1973 and in the subsequent referendums the
people had clearly and categorically rejected the calling of the interim National
Assembly. As stated in the main opinion, the Lupang Tagapagpaganap of the
Katipunan ng mga Sanggunian, the Pambansang Katipunan ng mga Barangay,
representing 42,000 barangays, the Kabataang Barangay organizations and the
various sectoral groups had proposed the replacement of the interim National
Assembly. These barangays and the Sanggunian assemblies are effective
instrumentalities through which the desires of the people are articulated and
expressed. The Batasang Bayan (Legislative Council), composed of nineteen (19)
cabinet members and nine (9) officials with cabinet rank, and ninety-one (91)
members of the Lupang Tagapagpaganap (Executive Committee) of the
Katipunan ng mga Sangguniang Bayan voted in their special session to submit
directly to the people in a plebiscite on October 16, 1976 the afore-mentioned
constitutional amendments. Through the Pambansang Katipunan ng mga
Barangay and the Pampurok na Katipunan ng mga Sangguniang Bayan, the
people have expressed their desire not only to abolish the interim National
Assembly, but to replace it with a more representative body acceptable to them
in order to effect the desirable constitutional changes necessary to hasten the
political evolution of the government towards the parliamentary system, while at
the same time ensuring that the gains of the New Society, which are vital to the
welfare of the people, shall be safeguarded. The proposed constitutional

31

amendments, therefore, represent a consensus of the people.

It would be futile to insist that the interim National Assembly should have been
convened to propose those amendments pursuant to Section 15 of Article XVII of
the Constitution. This Court, in the case of Aquino v. Commission, on Elections,
11 took judicial notice of the fact that in the referendum of January, 1973, a
majority of those who approved the new Constitution conditioned their votes on
the demand that the interim National Assembly provided in the Transitory
Provisions should not be convened, and the President "in deference to the
sovereign will of the Filipino people" declared that the convening of said body
shall be suspended. 12 As this Court observed in the Aquino
case:jgc:chanrobles.com.ph
"His decision to defer the initial convocation of the interim National Assembly
was supported by the sovereign people at the referendum in January, 1973 when
the people voted to postpone the convening of the interim National Assembly
until after at least seven (7) years from the approval of the new Constitution.
And the reason why the same question was eliminated from the questions to be
submitted at the referendum on February 27, 1975, is that even some members
of the Congress and delegates of the Constitutional Convention, who are already
ipso facto members of the interim National Assembly, are against such inclusion;
because the issue was already decided in the January, 1973 referendum by the
sovereign people indicating thereby their disenchantment with any Assembly as
the former Congress failed to institutionalize the reforms they demanded and
had wasted public funds through endless debates without relieving the suffering
of the general mass of citizenry" (p. 302.)
The action of the President in suspending the convening of the interim National
Assembly has met the overwhelming approval of the people in subsequent
referenda.
Since it was the action by the people that gave binding force and effect to the
new Constitution, then it must be accepted as a necessary consequence that
their objection against the immediate convening of the interim National
Assembly must be respected as a positive mandate of the sovereign.
In the Philippines, which is a unitary state, sovereignty "resides in the people
and all government authority emanates from them." 13 The term "people" as
sovereign is comprehensive in its context. The people, as sovereign creator of all
political reality, is not merely the enfranchised citizens but the political unity of
the people. 14 It connotes, therefore, a people which exists not only in the
urgent present but in the continuum of history. The assumption that the opinion
of The People as voters can be treated as the expression of the interests of The
People as a historic community was, to the distinguished American journalist and
public philosopher, Walter Lippmann, unwarranted.
"Because of the discrepancy between The People as Voters and The People as
the corporate nation, the voters have no title to consider themselves the
proprietors of the commonwealth and to claim that their interests are identical
to the public interest. A prevailing plurality of the voters are not The People. The

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

32

even less vulnerable not only because the President, in exercising said authority,
has acted as a mere alter ego of the people who made the proposals, but
likewise because the said authority is legislative in nature rather than
constituent.

at times precarious road, the burden being lightened only by the thought that in
this grave task of administering justice, when matters of conscience are at issue,
one must be prepared to espouse and embrace a rightful cause however
unpopular it may be.

This is but a recognition that the People of the Philippines have the inherent,
sole and exclusive right of regulating their own government, and of altering or
abolishing their Constitution whenever it may be necessary to their safety or
happiness. There appears to be no justification, under the existing
circumstances, for a Court to create by implication a limitation on the sovereign
power of the people. As has been clearly explained in a previous case: 16

1. That sovereignty resides in the people and all government authority emanates
from them is a fundamental, basic principle of government which cannot be
disputed, but when the people have opted to govern themselves under the
mantle of a written constitution, each and every citizen, from the highest to the
lowliest has the sacred duty to respect and obey the Charter they have so
ordained.

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

"By the Constitution which they establish, they not only tie up the hands of their
official agencies, but their own hands as well; and neither the officers of the
state, nor the whole people as an aggregate body, are at liberty to take action in
opposition to this fundamental law." (Cooleys Constitutional Limitations, 7th Ed.
p. 56, Emphasis Supplied)

III
The paramount consideration that impelled Us to arrive at the foregoing opinion
is the necessity of ensuring popular control over the constituent power. "If the
people are to control the constituent power the power to make and change
the fundamental law of the State," observed Wheeler, 17 "the process of
Constitutional change must not be based too heavily upon existing agencies of
government." Indeed, the basic premise of republicanism is that the ordinary
citizen, the common man, can be trusted to determine his political destiny.
Therefore, it is time that the people should be accorded the fullest opportunity to
decide the laws that shall provide for their governance. For in the ultimate
analysis, the success of the national endeavor shall depend on the vision,
discipline and firmness of the moral will of every Filipino.
IN VIEW OF THE FOREGOING CONSIDERATIONS, We vote to dismiss the petitions.
Aquino, J., concur.
MUOZ PALMA, J., dissenting:chanrob1es virtual 1aw library
I concur fully with the remarkably frank (so characteristic of him) dissenting
opinion of my distinguished colleague, Justice Claudio Teehankee. If I am writing
this brief statement it is only to unburden myself of some thoughts which trouble
my mind and leave my conscience with no rest nor peace.
Generally, one who dissents from a majority view of the Court takes a lonely and

The afore-quoted passage from the eminent jurist and author Judge Cooley,
although based on declarations of law of more than a century ago, lays down a
principle which to my mind is one of the enduring cornerstones of the Rule of
Law. It is a principle with which I have been familiar as a student of law under
the tutelage of revered Professors, Dr. Vicente G. Sinco and Justice Jose P. Laurel,
and which I pray will prevail at all times to ensure the existence of a free, stable,
and civilized society.
The Filipino people, wanting to ensure to themselves a democratic republican
form of government, have promulgated a Constitution whereby the power to
govern themselves has been entrusted to and distributed among three branches
of government; they have also mandated in clear and unmistakable terms the
method by which provisions in their fundamental Charter may be amended or
revised. Having done so, the people are bound by these constitutional
limitations. For while there is no surrender or abdication of the peoples ultimate
authority to amend, revise, or adopt a new Constitution, sound reason demands
that they keep themselves within the procedural bounds of the existing
fundamental law. The right of the people to amend or change their Constitution
if and when the need arises is not to be denied, but we assert that absent a
revolutionary state or condition in the country, the change must be
accomplished through the ordinary, regular and legitimate processes provided
for in the Constitution. 1
I cannot subscribe therefore to the view taken by the Solicitor General that the
people, being sovereign, have the authority to amend the Constitution even in a
manner different from and contrary to that expressly provided for in that
instrument, and that the amendatory process is intended more as a limitation of
a power rather than a grant of power to a particular agency and it should not be
construed as limiting the ultimate sovereign will of the people to decide on
amendments to the Constitution. 2 Such a view will seriously undermine the
very existence of a constitutional government and will permit anarchy and/or
mob rule to set afoot and prevail. Was it the Greek philosopher Plato who warned

33

that the rule of the mob is a prelude to the rule of the tyrant?
I would use the following excerpt from Bernas, S.J., "The 1973 Philippine
Constitution, Notes and Cases" as relevant to my point:jgc:chanrobles.com.ph
". . . the amendatory provisions are called a constitution of sovereignty
because they define the constitutional meaning of sovereignty of the people.
Popular sovereignty, as embodied in the Philippine Constitution, is not extreme
popular sovereignty. As one American writer put it:chanrob1es virtual 1aw library
A constitution like the American one serves as a basic check upon the popular
will at any given time. It is the distinctive function of such written document to
classify certain things as legal fundamentals; these fundamentals may not be
changed except by the slow and cumbersome process of amendment. The
people themselves have decided, in constitutional convention assembled, to
limit themselves and future generations in the exercise of the sovereign power
which they would otherwise possess. And it is precisely such limitation that
enables those subject to governmental authority to appeal from the people
drunk to the people sober, in time of excitement and hysteria. The Constitution,
in the neat phrase of the Iowa court, is the protector of the people against injury
by the people." *
Truly, what need is there for providing in the Constitution a process by which the
fundamental law may be amended if, after all, the people by themselves can set
the same at naught even in times of peace when civil authority reigns supreme?
To go along with the respondents theory in this regard is to render written
Constitutions useless or mere "ropes of sand", allowing for a government of men
instead of one of laws. For it cannot be discounted that a situation may arise
where the people are heralded to action at a point of a gun or by the fiery
eloquence of a demagogue, and where passion overpowers reason, and mass
action overthrows legal processes.
History has recorded such instances, and I can think of no better example than
that of Jesus Christ of Judea who was followed and loved by the people while
curing the sick, making the lame walk and the blind see, but shortly was
condemned by the same people turned into fanatic rabble crying out "Crucify
Him, Crucify Him" upon being incited into action by chief priests and elders of
Jerusalem.
Yes, to quote once more from Judge Cooley:jgc:chanrobles.com.ph
"A good Constitution should be beyond the reason of temporary excitement and
popular caprice or passion. It is needed for stability and steadiness; it must yield
to the thought of the people; not to the whim of the people, or the thought
evolved in excitement or hot blood, but the sober second thought, which alone,
if the government is to be safe, can be allowed efficiency. . . . Changes in
government are to be feared unless the benefit is certain." (quoted in Ellingham
v. Dye, 99 N.E. 1, 15) 3

2. Presidential Decrees Nos. 991 and 1033 which call for a national referendumplebiscite on October 16, 1976 for the purpose, among other things, of
amending certain provisions of the 1973 Constitution are null and void; as they
contravene the express provisions on the amending process of the 1973
Constitution laid down in Article XVI, Section 1(1) and Article XVII, Section 15,
more particularly the latter which applies during the present transition period.
The Opinion of Justice Teehankee discusses in detail this particular matter.
I would just wish to stress the point that although at present there is no interim
National Assembly which may propose amendments to the Constitution, the
existence of a so-called "vacuum" or "hiatus" does not justify a transgression of
the constitutional provisions on the manner of amending the fundamental law.
We cannot cure one infirmity the existence of a "vacuum" caused by the nonconvening of the interim National Assembly with another infirmity, that is,
doing violence to the Charter.
"All great mutations shake and disorder a state. Good does not necessarily
succeed evil; another evil may succeed and a worse." (Am. Law Rev. 1889, p.
311., quoted in Ellingham v. Dye, supra, p. 15)
Respondents contend that the calling of the referendum-plebiscite for the
purpose indicated is a step necessary to restore the state of normalcy in the
country. To my mind, the only possible measure that will lead our country and
people to a condition of normalcy is the lifting or ending of the state of martial
law. If I am constrained to make this statement it is because so much stress was
given during the hearings of these cases on this particular point, leaving one
with the impression that for petitioners to contest the holding of the October 16
referendum-plebiscite is for them to assume a position of blocking or installing
the lifting of martial law, which I believe is unfair to the petitioners. Frankly, I
cannot see the connection between the two. My esteemed colleagues should
pardon me therefore if I had ventured to state that the simple solution to the
present dilemma is the lifting of martial law and the implementation of the
constitutional provisions which will usher in the parliamentary form of
government ordained in the Constitutional, which, as proclaimed in Proclamation
1102, the people themselves have ratified.
If the people have indeed ratified the 1973 Constitution, then they are bound by
their act and cannot escape from the pretended unfavorable consequences
thereof, the only remedy being to set in motion the constitutional machinery by
which the supposed desired amendments may properly be adopted and
submitted to the electorate for ratification.
Constitutional processes are to be observed strictly, if we have to maintain and
preserve the system of government decreed under the fundamental Charter. As
said by Justice Enrique Fernando in Mutuc v. Commission on
Elections:jgc:chanrobles.com.ph
". . . The concept of the Constitution as the fundamental law, setting forth the
criterion for the validity of any public act whether proceeding from the highest
official or the lowest functionary, is a postulate of our system of government.

34

That is to manifest fealty to the rule of law, with priority accorded to that which
occupies the topmost rung in the legal hierarchy.." . . (36 SCRA, 228,
234, Emphasis supplied)
A contrary view would lead to disastrous consequences for, in the words of Chief
Justice Cox of the Supreme Court of Indiana in Ellingham v. Dye, (supra, p. 7)
liberty and popular sovereignty are not meant to give rein to passion or
thoughtless impulse but to allow the exercise of power by the people for the
general good under constant restraints of law.
3. The true question before Us is one of power: Does the incumbent President of
the Philippines possess constituent powers? Again, the negative answer is
explained in detail in the dissenting opinion of Justice Teehankee.
Respondents would justify the incumbent Presidents exercise of constituent
powers on theory that he is vested with legislative powers as held by this Court
in Benigno S. Aquino, Jr., Et. Al. v. Commission on Elections, Et Al., L-40004,
January 31, 1975. I wish to stress that although in my separate opinion in said
case I agreed that Section 3 (2) of the Transitory provisions grants to the
incumbent President legislative powers, I qualified my statement as
follows:jgc:chanrobles.com.ph
". . . As to, whether, or not, this unlimited legislative power of the President
continues to exist even after the ratification of the Constitution is a matter which
I am not ready to concede at the moment, and which at any rate I believe is not
essential in resolving this Petition for reasons to be given later. Nonetheless, I
hold the view that the President is empowered to issue proclamations, orders,
decrees, etc. to carry out and implement the objectives of the proclamation of
martial law be it under the 1935 or 1973 Constitution, and for the orderly and
efficient functioning of the government, its instrumentalities, and agencies. This
grant of legislative power is necessary to fill up a vacuum during the transition
period when the interim National Assembly is not yet convened and functioning,
for otherwise, there will be a disruption of official functions resulting in a collapse
of the government and of the existing social order." (62 SCRA, pp. 275, 347)
I believe it is not disputed that legislative power is essentially different from
constituent power; one does not encompass the other unless so specified in the
Charter, and the 1973 Constitution contains provisions in this regard. This is
well-explained in Justice Teehankees Opinion. The state of necessity brought
about by the current political situation, invoked by the respondents, provides no
source of power to propose amendments to the existing Constitution. Must we
"bend the Constitution to suit the law of the hour?" 4 or cure its defects "by
inflicting upon it a wound which nothing can heal," commit one assault after the
other "until all respect for the fundamental law is lost and the powers of
government are just what those in authority please to call them?" 5 Or can we
now ignore what this Court, speaking through Justice Barredo, said in Tolentino v.
Comelec:jgc:chanrobles.com.ph
". . . let those who would put aside, invoking. grounds at best controversial, any
mandate of the fundamental law purportedly in order to attain some laudable

objective bear in mind that someday somehow others with purportedly more
laudable objectives may take advantage of the precedent and continue the
destruction of the Constitution, making those who laid down the precedent of
justifying deviations from the requirements of the Constitution the victims of
their own folly." 6
Respondents emphatically assert that the final word is the peoples word and that
ultimately it is in the hands of the people where the final decision rests. (Comment,
pp. 18, 19, 22) Granting in gratia argumenti that it is so, let it be an expression of the
will of the people under a normal political situation and not under the aegis of martial
rule for as I have stated in Aquino v. Comelec, Et Al., supra, a referendum (and now a
plebiscite) held under a regime of martial law can be of no far reaching significance
because it is being accomplished under an atmosphere or climate of fear as it entails
a wide area of curtailment and infringement of individual rights, such as, human
liberty, property rights, rights of free expression and assembly, protection against
unreasonable searches and seizures, liberty of abode and of travel, and so on.
4. The other issues such as the sufficiency and proper submission of the proposed
amendments for ratification by the people are expounded in Justice Teehankees
Opinion. I wish to stress indeed that it is incorrect to state that the thrust of the
proposed amendments is the abolition of the interim National Assembly and its
substitution with an "interim Batasang Pambansa", for that is not all. Proposed
amendment No. 6 will permit or allow the concentration of power in one man the
Executive Prime Minister or President or whatever you may call him for it gives
him expressly (which the 1973 Constitution or the 1935 Constitution does not)
legislative powers even during the existence of the appropriate legislative body,
dependent solely on the executives judgment on the existence of a grave
emergency or a threat or imminence thereof. **
I must be forgiven if, not concerned with the present, I am haunted however by what
can happen in the future, when we shall all be gone. Verily, this is a matter of grave
concern which necessitates full, mature, sober deliberation of the people but which
they can do only in a climate of freedom without the restraints of martial law.
I close, remembering what Claro M. Recto, President of the Constitutional Convention
which drafted the 1935 Philippine Constitution, once said:jgc:chanrobles.com.ph
". . . Nor is it enough that our people possess a written constitution in order that their
government may be called constitutional. To be deserving of this name, and to drive
away all danger of anarchy as well as of dictatorship whether by one man or a few, it
is necessary that both the government authorities and the people faithfully observe
and obey the constitution, and that the citizens be duly conversant not only with their
rights but also with their duties." 7
Jose P. Laurel who served his people as Justice of the Supreme Court of this country
gave this reminder; the grave and perilous task of halting transgressions and
vindicating cherished rights is reposed mainly on the judiciary and therefore let the
Courts be the vestal keepers of the purity and sanctity of our Constitution. 8
On the basis of the foregoing, I vote to declare Presidential Decrees Nos. 991 and
1033 unconstitutional and enjoin the implementation thereof.

35

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

I vote for the dismissal of the petitions.
1. The issue is not political and therefore justiciable.
The term "political question", as this Court has previously defined, refers to those
questions which, under the constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has been
delegated to the Legislature or executive branch of the Government It is concerned
with the issues dependent upon the wisdom, not legality, of a particular measure. 1
Here, the question raised is whether the President has authority to propose to the
people amendments to the Constitution which the petitioners claim is vested solely
upon the National Assembly, the constitutional convention called for the purpose,
and the interim National Assembly. This is not a political question since it involves the
determination of conflicting claims of authority under the constitution.
In Gonzales v. Comelec, 2 this Court, resolving the issue of whether or not a
Resolution of Congress, acting as a constituent assembly, violates the Constitution,
ruled that the question is essentially justiciable, not political, and hence, subject to
judicial review.
In Tolentino v. Comelec, 3 this Court finally dispelled all doubts as to its position
regarding its jurisdiction vis-a-vis the constitutionality of the acts of Congress, acting
as a constituent assembly, as well as those of a constitutional convention called for
the purpose of proposing amendments to the constitution. Insofar as observance of
constitutional provisions on the procedure for amending the constitution is
concerned, the issue is cognizable by this Court under its powers of judicial review.
2. As to the merits, a brief backdrop of the decision to hold the referendum-plebiscite
will help resolve the issue. It is to be noted that under the 1973 Constitution, an
interim National Assembly was organized to bring about an orderly transition from
the presidential to the parliamentary system of government. 4 The people, however,
probably distrustful of the members who are old-time politicians and constitutional
delegates who had voted themselves into membership in the interim National
Assembly, voted against the convening of the said interim assembly for at least
seven years, 5 thus creating a political stalemate and a consequent delay in the
transformation of the government into the parliamentary system. To resolve the
impasse, the President, at the instance of the barangays and sanggunian assemblies
through their duly authorized instrumentalities who recommended a study of the
feasibility of abolishing and replacing the interim National Assembly with another
interim body truly representative of the people in a reformed society, issued
Presidential Decree No. 991, on September 2, 1976, calling for a national referendum
on October 16, 1976 to ascertain the wishes of the people as to the ways and means
that may be available to attain the objective; providing for a period of educational
and information campaign on the issues; and establishing the mechanics and manner
for holding thereof. But the people, through their barangays, addressed resolutions to
the Batasang Bayan, expressing their desire to have the constitution amended, thus
prompting the President to issue Presidential Decree No. 1033, stating the questions
to be submitted to the people in the referendum-plebiscite on October 16, 1976.
As will be seen, the authority to amend the Constitution was removed from the
interim National Assembly and transferred to the seat of sovereignty itself. Since the
Constitution emanates from the people who are the repository of all political powers,

their authority to amend the Constitution through the means they have adopted,
aside from those mentioned in the Constitution, cannot be gainsaid. Not much
reflection is also needed to show that the President did not exercise his martial law
legislative powers when he proposed the amendments to the Constitution. He was
merely acting as an instrument to carry out the will of the people. Neither could he
convene the interim National Assembly, as suggested by the petitioners, without
doing violence to the peoples will expressed overwhelmingly when they decided
against convening the interim assembly for at least seven years.
3. The period granted to the people to consider the proposed amendments is
reasonably long and enough to afford intelligent discussion of the issues to be voted
upon. PD 991 has required the barangays to hold assemblies or meetings to discuss
and debate on the referendum questions, which in fact they have been doing.
Considering that the proposed amendments came from the representatives of the
people themselves, the people must have already formed a decision by this time on
what stand to take on the proposed amendments come the day for the plebiscite.
Besides, the Constitution itself requires the holding of a plebiscite for the ratification
of an amendment not later than three (3) months after the approval of such
amendment or revision, 6 but without setting a definite period within which such
plebiscite shall not be held. From this I can only conclude that the framers of the
Constitution desired that only a short period shall elapse from the approval of such
amendment or resolution to its ratification by the people.
Sanidad vs. Commission on Elections
Facts
On 2 September 1976, President Ferdinand E. Marcos issued PD 991 calling
for a national referendum on 16 October 1976 for the Citizens Assemblies
("barangays") to resolve the issues of martial law, the interim assembly, its
replacement, the powers of such replacement, the period of its existence, the length
of the period for the exercise by the President of his present powers.
On 22 September 1976, the President issued another PD 1031, amending the
previous Presidential Decree 991, by declaring the provisions of Presidential Decree
229 providing for the manner of voting and canvass of votes in "barangays" (Citizens
Assemblies) applicable to the national referendum-plebiscite of 16 October 1976. The
President also issued PD 1033, stating the questions to be submitted to the people in
the referendum-plebiscite on 16 October 1976. The Decree recites in its "whereas"
clauses that the people's continued opposition to the convening of the interim
National Assembly evinces their desire to have such body abolished and replaced
thru a constitutional amendment, providing for a new interim legislative body, which
will be submitted directly to the people in the referendum-plebiscite of October 16.
The Commission on Elections was vested with the exclusive supervision and control
of the October 1976 National Referendum-Plebiscite.
Pablo C. Sanidad and Pablito V. Sanidad, father and son, commenced for
Prohibition with Preliminary Injunction seeking to enjoin the COMELEC from holding
and conducting the Referendum Plebiscite on October 16; to declare without force
and effect PD 991, 1033 and 1031. They contend that under the 1935 and 1973
Constitutions there is no grant to the incumbent President to exercise the constituent
power to propose amendments to the new Constitution.

36

On 30 September 1976, another action for Prohibition with Preliminary

Injunction, was instituted by Vicente M. Guzman, a delegate to the 1971
Constitutional Convention, asserting that the power to propose amendments to, or
revision of the Constitution during the transition period is expressly conferred on the
interim National Assembly under action 16, Article XVII of the Constitution. Another
petition for Prohibition with Preliminary Injunction was filed by Raul M. Gonzales, his
son, and Alfredo Salapantan, to restrain the implementation of Presidential Decrees.
Issue: W/N the President may call upon a referendum for the amendment of the
Constitution.
Held:
Section 1 of Article XVI of the 1973 Constitution on Amendments ordains that
"(1) Any amendment to, or revision of, this Constitution may be proposed by the
National Assembly upon a vote of three-fourths of all its Members, or by a
constitutional convention. (2) The National Assembly may, by a vote of two-thirds of
all its Members, call a constitutional convention or, by a majority vote of all its
Members, submit the question of calling such a convention to the electorate in an
election." Section 2 thereof provides that "Any amendment to, or revision of, this
Constitution shall be valid when ratified by a majority of the votes cast in a plebiscite
which shall be held not later than three months a after the approval of such
amendment or revision."
In the present period of transition, the interim National Assembly instituted
in the Transitory Provisions is conferred with that amending power. Section 15 of the
Transitory Provisions reads "The interim National Assembly, upon special call by the
interim Prime Minister, may, by a majority vote of all its Members, propose
amendments to this Constitution. Such amendments shall take effect when ratified in
accordance with Article 16 hereof."
There are, therefore, two periods contemplated in the constitutional life of
the nation: period of normalcy and period of transition. In times of normalcy, the
amending process may be initiated by the proposals of the (1) regular National
Assembly upon a vote of three-fourths of all its members; or (2) by a Constitutional
Convention called by a vote of two-thirds of all the Members of the National
Assembly. However the calling of a Constitutional Convention may be submitted to
the electorate in an election voted upon by a majority vote of all the members of the
National Assembly. In times of transition, amendments may be proposed by a
majority vote of all the Members of the interim National Assembly upon special call
by the interim Prime Minister.

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

The Court in Aquino v. COMELEC, had already settled that the incumbent
President is vested with that prerogative of discretion as to when he shall initially
convene the interim National Assembly. The Constitutional Convention intended to

37