Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-56350 April 2, 1981

SAMUEL C. OCCENA, petitioner,

G.R. No. L-56404 April 2, 1981

RAMON A. GONZALES, MANUEL B. IMBONG, JO AUREA MARCOS-IMBONG, RAY ALLAN T.

FERNANDO, C.J.:

The challenge in these two prohibition proceedings against the validity of three Batasang Pambansa
Resolutions 1proposing constitutional amendments, goes further than merely assailing their alleged constitutional
infirmity. Petitioners Samuel Occena and Ramon A. Gonzales, both members of the Philippine Bar and former
delegates to the 1971 Constitutional Convention that framed the present Constitution, are suing as taxpayers. The
rather unorthodox aspect of these petitions is the assertion that the 1973 Constitution is not the fundamental law,
the Javellana 2 ruling to the contrary notwithstanding. To put it at its mildest, such an approach has the arresting
charm of novelty but nothing else. It is in fact self defeating, for if such were indeed the case, petitioners have
come to the wrong forum. We sit as a Court duty-bound to uphold and apply that Constitution. To contend
otherwise as was done here would be, quite clearly, an exercise in futility. Nor are the arguments of petitioners
cast in the traditional form of constitutional litigation any more persuasive. For reasons to be set forth, we dismiss
the petitions.

The suits for prohibition were filed respectively on March 6 3 and March 12, 1981. 4 On March 10 and 13
respectively, respondents were required to answer each within ten days from notice. 5 There was a comment on
the part of the respondents. Thereafter, both cases were set for hearing and were duly argued on March 26 by
petitioners and Solicitor General Estelito P. Mendoza for respondents. With the submission of pertinent data in
amplification of the oral argument, the cases were deemed submitted for decision.

It is the ruling of the Court, as set forth at the outset, that the petitions must be dismissed.

1. It is much too late in the day to deny the force and applicability of the 1973 Constitution. In the dispositive
portion of Javellana v. The Executive Secretary, 6 dismissing petitions for prohibition and mandamus to declare
invalid its ratification, this Court stated that it did so by a vote of six 7 to four. 8 It then concluded: "This being the
vote of the majority, there is no further judicial obstacle to the new Constitution being considered in force and
effect." 9 Such a statement served a useful purpose. It could even be said that there was a need for it. It served to
clear the atmosphere. It made manifest that, as of January 17, 1973, the present Constitution came into force and
effect. With such a pronouncement by the Supreme Court and with the recognition of the cardinal postulate that
what the Supreme Court says is not only entitled to respect but must also be obeyed, a factor for instability was
removed. Thereafter, as a matter of law, all doubts were resolved. The 1973 Constitution is the fundamental law.
It is as simple as that. What cannot be too strongly stressed is that the function of judicial review has both a
positive and a negative aspect. As was so convincingly demonstrated by Professors Black 10 and Murphy, 11 the
Supreme Court can check as well as legitimate. In declaring what the law is, it may not only nullify the acts of
coordinate branches but may also sustain their validity. In the latter case, there is an affirmation that what was
done cannot be stigmatized as constitutionally deficient. The mere dismissal of a suit of this character suffices.
That is the meaning of the concluding statement in Javellana. Since then, this Court has invariably applied the
present Constitution. The latest case in point is People v. Sola, 12 promulgated barely two weeks ago. During the
first year alone of the effectivity of the present Constitution, at least ten cases may be cited. 13

2. We come to the crucial issue, the power of the Interim Batasang Pambansa to propose amendments and how it
may be exercised. More specifically as to the latter, the extent of the changes that may be introduced, the number
of votes necessary for the validity of a proposal, and the standard required for a proper submission. As was
stated earlier, petitioners were unable to demonstrate that the challenged resolutions are tainted by
unconstitutionality.

(1) The existence of the power of the Interim Batasang Pambansa is indubitable. The applicable provision in the
1976 Amendments is quite explicit. Insofar as pertinent it reads thus: "The Interim Batasang Pambansa shall have
the same powers and its Members shall have the same functions, responsibilities, rights, privileges, and
disqualifications as the interim National Assembly and the regular National Assembly and the Members
thereof." 14One of such powers is precisely that of proposing amendments. The 1973 Constitution in its Transitory
Provisions vested the Interim National Assembly with the power to propose amendments upon special call by the
Prime Minister by a vote of the majority of its members to be ratified in accordance with the Article on
Amendments. 15 When, therefore, the InterimBatasang Pambansa, upon the call of the President and Prime
Minister Ferdinand E. Marcos, met as a constituent body it acted by virtue Of such impotence Its authority to do
so is clearly beyond doubt. It could and did propose the amendments embodied in the resolutions now being
assailed. It may be observed parenthetically that as far as petitioner Occena is Concerned, the question of the
authority of the Interim Batasang Pambansa to propose amendments is not new. In Occena v. Commission on
Elections, 16 filed by the same petitioner, decided on January 28, 1980, such a question was involved although not
directly passed upon. To quote from the opinion of the Court penned by Justice Antonio in that case:
"Considering that the proposed amendment of Section 7 of Article X of the Constitution extending the retirement
of members of the Supreme Court and judges of inferior courts from sixty-five (65) to seventy (70) years is but a
restoration of the age of retirement provided in the 1935 Constitution and has been intensively and extensively
discussed at the Interim Batasang Pambansa, as well as through the mass media, it cannot, therefore, be said that
our people are unaware of the advantages and disadvantages of the proposed amendment." 17

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

(3) That leaves only the questions of the vote necessary to propose amendments as well as the standard for proper
submission. Again, petitioners have not made out a case that calls for a judgment in their favor. The language of
the Constitution supplies the answer to the above questions. The Interim Batasang Pambansa, sitting as a
constituent body, can propose amendments. In that capacity, only a majority vote is needed. It would be an
indefensible proposition to assert that the three-fourth votes required when it sits as a legislative body applies as
well when it has been convened as the agency through which amendments could be proposed. That is not a
requirement as far as a constitutional convention is concerned. It is not a requirement either when, as in this case,
the Interim Batasang Pambansa exercises its constituent power to propose amendments. Moreover, even on the
assumption that the requirement of three- fourth votes applies, such extraordinary majority was obtained. It is
not disputed that Resolution No. 1 proposing an amendment allowing a natural-born citizen of the Philippines
naturalized in a foreign country to own a limited area of land for residential purposes was approved by the vote
of 122 to 5; Resolution No. 2 dealing with the Presidency, the Prime Minister and the Cabinet, and the National
Assembly by a vote of 147 to 5 with 1 abstention; and Resolution No. 3 on the amendment to the Article on the
Commission on Elections by a vote of 148 to 2 with 1 abstention. Where then is the alleged infirmity? As to the
requisite standard for a proper submission, the question may be viewed not only from the standpoint of the
period that must elapse before the holding of the plebiscite but also from the standpoint of such amendments
having been called to the attention of the people so that it could not plausibly be maintained that they were
properly informed as to the proposed changes. As to the period, the Constitution indicates the way the matter
should be resolved. There is no ambiguity to the applicable provision: "Any amendment to, or revision of, this
Constitution shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not later
than three months after the approval of such amendment or revision." 21 The three resolutions were approved by
the Interim Batasang Pambansa sitting as a constituent assembly on February 5 and 27, 1981. In the Batasang
Pambansa Blg. 22, the date of the plebiscite is set for April 7, 1981. It is thus within the 90-day period provided by
the Constitution. Thus any argument to the contrary is unavailing. As for the people being adequately informed,
it cannot be denied that this time, as in the cited 1980 Occena opinion of Justice Antonio, where the amendment
restored to seventy the retirement age of members of the judiciary, the proposed amendments have "been
intensively and extensively discussed at the Interim Batasang Pambansa, as well as through the mass media, [ so
that ] it cannot, therefore, be said that our people are unaware of the advantages and disadvantages of the
proposed amendment [ s ]." 22

WHEREFORE, the petitions are dismissed for lack of merit. No costs.

Barredo, Makasiar, Aquino Concepcion, Jr., Fernandez, Guerrero, De Castro and Melencio-Herrera, JJ., concur.

Abad Santos, J., is on leave.

Separate Opinions

TEEHANKEE, J., dissenting:

I vote to give due course to the petitions at bar and to grant the application for a temporary restraining order
enjoining the plebiscite scheduled for April 7, 1981.

1. Consistently with my dissenting opinion in Sanidad vs. Comelec 1 on the invalidity of the October 1976
amendments proposals to the 1973 Constitution for not having been proposed nor adopted in accordance with
the mandatory provisions thereof, as restated by me in Hidalgo vs. Marcos 2 and De la Llana vs. Comelec 3 ,
questioning the validity of the December 17, 1977 referendum exercise as to the continuance in office as
incumbent President and to be Prime Minister after the organization of the Interim Batasang Pambansa as
provided for in Amendment No. 3 of the 1976 Amendments, I am constrained to dissent from the majority
decision of dismissal of the petitions.

I had held in Sanidad that the transcendental constituent power to propose and approve amendments to the
Constitution as well as to set up the machinery and prescribe the procedure for the ratification of the amendments
proposals has been withheld by the Constitution from the President (Prime Minister) as sole repository of
executive power and that so long as the regular National Assembly provided for in Article VIII of the
Constitution had not come to existence and the proposals for constitutional amendments were now deemed
necessary to be discussed and adopted for submittal to the people, strict adherence with the mandatory
requirements of the amending process as provided in the Constitution must be complied with. This means, under
the prevailing doctrine of Tolentino vs. Comelec 4 that the proposed amendments to be valid must come from the
constitutional agency vested with the constituent power to do so, i.e. in the Interim National Assembly provided
in the Transitory Article XVII which would then have to be convened and not from the executive power as vested
in the President (Prime Minister) from whom such constituent power has been withheld.

2. As restated by me in the 1977 case of Hidalgo, under the controlling doctrine of Tolentino, the October 1976
constitutional amendments which created the Interim Batasang Pambansa in lieu of the Interim National
Assembly were invalid since as ruled by the Court therein, constitutional provisions on amendments "dealing
with the procedure or manner of amending the fundamental law are binding upon the Convention and the other
departments of the government (and) are no less binding upon the people" and "the very Idea of deparcing from
the fundamental law is anachronistic in the realm of constitutionalism and repugnant to the essence of the rule of
law." The proposed amendments at bar having been adopted by the Interim Batasang Pambansa as the fruit of the
invalid October, 1976 amendments must necessarily suffer from the same Congenital infirmity.

3. Prescinding from the foregoing and assuming the validity of the proposed amendments, I reiterate my stand
in Sanidad that the doctrine of fair and proper submission firs enunciated by a simple majority of six Justices (of
an eleven member Court prior to the 1973 Constitution which increased the official composition of the Court to
fifteen) in Gonzales vs. Comelec 5 and subsequently officially adopted by the required constitutional two-thirds
majority vote of the Court (of eight votes, then) in Tolentino is fully applicable in the case at bar. The three
resolutions proposing complex, complicated and radical amendments of our very structure of government were
considered and approved by the Interim Batasang Pambansa sitting as a constituent assembly on February 27,
1981. It set the date of the plebiscite for thirty-nine days later on April 7, 1981 which is totally inadequate and far
short of the ninety-day period fixed by the Constitution for submittal to the people to "sufficiently inform them of
the amendments to be voted upon, to conscientiously deliberate thereon and to express their will in a genuine
manner." 6
4. "The minimum requirements that must be met in order that there can be a proper submission to the people of a
proposed constitutional amendment" as stated by retired Justice Conrado V. Sanchez in his separate opinion
in Gonzales bears repeating as follows: "... we take the view that the words 'submitted to the people for their
ratification,' if construed in the light of the nature of the Constitution a fundamental charter that is legislation
direct from the people, an expression of their sovereign will is that it can only be amended by the people
expressing themselves according to the procedure ordained by the Constitution. Therefore, amendments must be
fairly laid before the people for their blessing or spurning. The people are not to be mere rubber stamps. They are
not to vote blindly. They must be afforded ample opportunity to mull over the original provisions, compare them
with the proposed amendments, and try to reach a conclusion as the dictates of their conscience suggest, free
from the incubus of extraneous or possibly insidious influences. We believe the word 'submitted' can only mean
that the government, within its maximum capabilities, should strain every short to inform every citizen of the
provisions to be amended, and the proposed amendments and the meaning, nature and effects thereof. ... What
the Constitution in effect directs is that the government, in submitting an amendment for ratification, should put
every instrumentality or agency within its structural framework to enlighten the people, educate them with
respect to their act of ratification or rejection. For, as we have earlier stated, one thing is submission and another is
ratification. There must be fair submission, intelligent consent or rejection. If with all these safeguards the people
still approve the amendments no matter how prejudicial it is to them, then so be it. For the people decree their
own fate."

Justice Sanchez therein ended the passage with an apt citation that "... The great men who builded the structure of
our state in this respect had the mental vision of a good Constitution voiced by Judge Cooley, who has said 'A
good Constitution should be beyond the reach of temporary excitement and popular caprice or passion. It is
needed for stability and steadiness; it must yield to the thought of the people; not to the whim of the people, or
the thought evolved in excitement, or hot blood, but the sober second thought, which alone if the government is
to be safe, can be allowed efficacy ... Changes in government are to be feard unless benefit is certain.' As Montaign
says: 'All great mutation shake and disorder a state. Good does not necessarily succeed evil; another evil may
succeed and a worse."'

Separate Opinions

TEEHANKEE, J., dissenting:

I vote to give due course to the petitions at bar and to grant the application for a temporary restraining order
enjoining the plebiscite scheduled for April 7, 1981.

1. Consistently with my dissenting opinion in Sanidad vs. Comelec 1 on the invalidity of the October 1976
amendments proposals to the 1973 Constitution for not having been proposed nor adopted in accordance with
the mandatory provisions thereof, as restated by me in Hidalgo vs. Marcos 2 and De la Llana vs. Comelec 3 ,
questioning the validity of the December 17, 1977 referendum exercise as to the continuance in office as
incumbent President and to be Prime Minister after the organization of the Interim Batasang Pambansa as
provided for in Amendment No. 3 of the 1976 Amendments, I am constrained to dissent from the majority
decision of dismissal of the petitions.

I had held in Sanidad that the transcendental constituent power to propose and approve amendments to the
Constitution as well as to set up the machinery and prescribe the procedure for the ratification of the amendments
proposals has been withheld by the Constitution from the President (Prime Minister) as sole repository of
executive power and that so long as the regular National Assembly provided for in Article VIII of the
Constitution had not come to existence and the proposals for constitutional amendments were now deemed
necessary to be discussed and adopted for submittal to the people, strict adherence with the mandatory
requirements of the amending process as provided in the Constitution must be complied with. This means, under
the prevailing doctrine of Tolentino vs. Comelec 4 that the proposed amendments to be valid must come from the
constitutional agency vested with the constituent power to do so, i.e. in the Interim National Assembly provided
in the Transitory Article XVII which would then have to be convened and not from the executive power as vested
in the President (Prime Minister) from whom such constituent power has been withheld.

2. As restated by me in the 1977 case of Hidalgo, under the controlling doctrine of Tolentino, the October 1976
constitutional amendments which created the Interim Batasang Pambansa in lieu of the Interim National
Assembly were invalid since as ruled by the Court therein, constitutional provisions on amendments "dealing
with the procedure or manner of amending the fundamental law are binding upon the Convention and the other
departments of the government (and) are no less binding upon the people" and "the very Idea of deparcing from
the fundamental law is anachronistic in the realm of constitutionalism and repugnant to the essence of the rule of
law." The proposed amendments at bar having been adopted by the Interim Batasang Pambansa as the fruit of the
invalid October, 1976 amendments must necessarily suffer from the same Congenital infirmity.

3. Prescinding from the foregoing and assuming the validity of the proposed amendments, I reiterate my stand
in Sanidad that the doctrine of fair and proper submission firs enunciated by a simple majority of six Justices (of
an eleven member Court prior to the 1973 Constitution which increased the official composition of the Court to
fifteen) in Gonzales vs. Comelec 5 and subsequently officially adopted by the required constitutional two-thirds
majority vote of the Court (of eight votes, then) in Tolentino is fully applicable in the case at bar. The three
resolutions proposing complex, complicated and radical amendments of our very structure of government were
considered and approved by the Interim Batasang Pambansa sitting as a constituent assembly on February 27,
1981. It set the date of the plebiscite for thirty-nine days later on April 7, 1981 which is totally inadequate and far
short of the ninety-day period fixed by the Constitution for submittal to the people to "sufficiently inform them of
the amendments to be voted upon, to conscientiously deliberate thereon and to express their will in a genuine
manner." 6

4. "The minimum requirements that must be met in order that there can be a proper submission to the people of a
proposed constitutional amendment" as stated by retired Justice Conrado V. Sanchez in his separate opinion
in Gonzales bears repeating as follows: "... we take the view that the words 'submitted to the people for their
ratification,' if construed in the light of the nature of the Constitution a fundamental charter that is legislation
direct from the people, an expression of their sovereign will is that it can only be amended by the people
expressing themselves according to the procedure ordained by the Constitution. Therefore, amendments must be
fairly laid before the people for their blessing or spurning. The people are not to be mere rubber stamps. They are
not to vote blindly. They must be afforded ample opportunity to mull over the original provisions, compare them
with the proposed amendments, and try to reach a conclusion as the dictates of their conscience suggest, free
from the incubus of extraneous or possibly insidious influences. We believe the word 'submitted' can only mean
that the government, within its maximum capabilities, should strain every short to inform every citizen of the
provisions to be amended, and the proposed amendments and the meaning, nature and effects thereof. ... What
the Constitution in effect directs is that the government, in submitting an amendment for ratification, should put
every instrumentality or agency within its structural framework to enlighten the people, educate them with
respect to their act of ratification or rejection. For, as we have earlier stated, one thing is submission and another is
ratification. There must be fair submission, intelligent consent or rejection. If with all these safeguards the people
still approve the amendments no matter how prejudicial it is to them, then so be it. For the people decree their
own fate."

Justice Sanchez therein ended the passage with an apt citation that "... The great men who builded the structure of
our state in this respect had the mental vision of a good Constitution voiced by Judge Cooley, who has said 'A
good Constitution should be beyond the reach of temporary excitement and popular caprice or passion. It is
needed for stability and steadiness; it must yield to the thought of the people; not to the whim of the people, or
the thought evolved in excitement, or hot blood, but the sober second thought, which alone if the government is
to be safe, can be allowed efficacy ... Changes in government are to be feard unless benefit is certain.' As Montaign
says: 'All great mutation shake and disorder a state. Good does not necessarily succeed evil; another evil may
succeed and a worse."'