Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 160261             November 10, 2003

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

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G.R. No. 160262 November 10, 2003

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

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G.R. No. 160263 November 10, 2003

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

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G.R. No. 160277 November 10, 2003

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

JAIME N. SORIANO, respondent-in-intervention,SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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G.R. No. 160292 November 10, 2003

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

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G.R. No. 160295 November 10, 2003

SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M. GONZALES, petitioners,WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention,

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

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G.R. No. 160310 November 10, 2003

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

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G.R. No. 160318 November 10, 2003

PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners, vs.HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF REPRESENTATIVES, HON. SENATE PRESIDENT FRANKLIN M. DRILON, AND ALL MEMBERS, PHILIPPINE SENATE, respondents.

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G.R. No. 160342 November 10, 2003

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

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G.R. No. 160343 November 10, 2003

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

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G.R. No. 160360 November 10, 2003

CLARO B. FLORES, petitioner, vs.THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER, AND THE SENATE OF THE PHILIPPINES, THROUGH THE SENATE PRESIDENT, respondents.

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G.R. No. 160365 November 10, 2003

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

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G.R. No. 160370 November 10, 2003

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

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G.R. No. 160376 November 10, 2003

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

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G.R. No. 160392 November 10, 2003

VENICIO S. FLORES AND HECTOR L. HOFILEÑA, petitioners, vs.THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER JOSE G. DE VENECIA, AND THE SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT FRANKLIN DRILON, respondents.

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G.R. No. 160397 November 10, 2003

IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST CHIEF JUSTICE HILARIO G. DAVIDE, JR., ATTY. DIOSCORO U. VALLEJOS, JR., petitioner.

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G.R. No. 160403 November 10, 2003

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

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G.R. No. 160405 November 10, 2003

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

CARPIO MORALES, J.:

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

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

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

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

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

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

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

Article XI of our present 1987 Constitution provides:

ARTICLE XI

Accountability of Public Officers

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

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

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

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

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

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

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

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

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

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

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

11TH CONGRESS RULES 12TH CONGRESS NEW RULES

RULE II

INITIATING IMPEACHMENT

Section 2. Mode of Initiating Impeachment. – Impeachment shall be initiated only by a verified complaint for impeachment filed by any Member of the House of Representatives or by any citizen upon a

RULE V

BAR AGAINST INITIATION OF IMPEACHMENT PROCEEDINGS AGAINST THE SAME OFFICIAL

Section 16. – Impeachment Proceedings Deemed Initiated. – In cases where a Member of the House files a verified complaint of impeachment or a citizen

resolution of endorsement by any Member thereof or by a verified complaint or resolution of impeachment filed by at least one-third (1/3) of all the Members of the House.

files a verified complaint that is endorsed by a Member of the House through a resolution of endorsement against an impeachable officer, impeachment proceedings against such official are deemed initiated on the day the Committee on Justice finds that the verified complaint and/or resolution against such official, as the case may be, is sufficient in substance, or on the date the House votes to overturn or affirm the finding of the said Committee that the verified complaint and/or resolution, as the case may be, is not sufficient in substance.

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

 

RULE V

BAR AGAINST IMPEACHMENT

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

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

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

On June 2, 2003, former President Joseph E. Estrada filed an impeachment complaint4 (first impeachment complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate Justices5 of this Court for "culpable violation of the Constitution, betrayal of the public trust and other high crimes."6 The complaint was endorsed by Representatives Rolex T. Suplico, Ronaldo B. Zamora and Didagen Piang Dilangalen,7 and was referred to the House Committee on Justice on August 5, 20038 in accordance with Section 3(2) of Article XI of the Constitution which reads:

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

The House Committee on Justice ruled on October 13, 2003 that the first impeachment complaint was "sufficient in form,"9 but voted to dismiss the same on October 22, 2003 for being insufficient in substance.10 To date, the Committee Report to this effect has not yet been sent to the House in plenary in accordance with the said Section 3(2) of Article XI of the Constitution.

Four months and three weeks since the filing on June 2, 2003 of the first complaint or on October 23, 2003, a day after the House Committee on Justice voted to dismiss it, the second impeachment complaint11 was filed with the Secretary General of the House12 by Representatives Gilberto C. Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella (Third District, Camarines Sur) against Chief Justice Hilario G. Davide, Jr., founded on the alleged results of the legislative inquiry initiated by above-mentioned House Resolution. This second impeachment complaint was accompanied by a "Resolution of Endorsement/Impeachment" signed by at least one-third (1/3) of all the Members of the House of Representatives.13

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

In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he has a duty as a member of the Integrated Bar of the Philippines to use all available legal remedies to stop an unconstitutional impeachment, that the issues raised in his petition for Certiorari, Prohibition and Mandamus are of transcendental importance, and that he "himself was a victim of the capricious and arbitrary changes in the Rules of Procedure in Impeachment Proceedings

introduced by the 12th Congress,"14 posits that his right to bring an impeachment complaint against then Ombudsman Aniano Desierto had been violated due to the capricious and arbitrary changes in the House Impeachment Rules adopted and approved on November 28, 2001 by the House of Representatives and prays that (1) Rule V, Sections 16 and 17 and Rule III, Sections 5, 6, 7, 8, and 9 thereof be declared unconstitutional; (2) this Court issue a writ of mandamus directing respondents House of Representatives et. al. to comply with Article IX, Section 3 (2), (3) and (5) of the Constitution, to return the second impeachment complaint and/or strike it off the records of the House of Representatives, and to promulgate rules which are consistent with the Constitution; and (3) this Court permanently enjoin respondent House of Representatives from proceeding with the second impeachment complaint.

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

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

In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court has recognized that he has locus standi to bring petitions of this nature in the cases of Chavez v. PCGG15 and Chavez v. PEA-Amari Coastal Bay Development Corporation,16 prays in his petition for Injunction that the second impeachment complaint be declared unconstitutional.

In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers and members of the legal profession, pray in their petition for Prohibition for an order prohibiting respondent House of Representatives from drafting, adopting, approving and transmitting to the Senate the second impeachment complaint, and respondents De Venecia and Nazareno from transmitting the Articles of Impeachment to the Senate.

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

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

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

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

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

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

In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et. al., in their petition for Prohibition and Injunction which they claim is a class suit filed in behalf of all citizens, citing Oposa v. Factoran17 which was filed in behalf of succeeding generations of Filipinos, pray for the issuance of a writ prohibiting respondents House of Representatives and the Senate from conducting further proceedings on the second impeachment complaint and that this Court declare as unconstitutional the second impeachment complaint and the acts of respondent House of Representatives in interfering with the fiscal matters of the Judiciary.

In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino, alleging that the issues in his petition for Prohibition are of national and transcendental significance and that as an official of the Philippine Judicial Academy, he has a direct and substantial interest in the unhampered operation of the Supreme Court and its officials in discharging their duties in accordance with the Constitution, prays for the issuance of a writ prohibiting the House of Representatives from transmitting the Articles of Impeachment to the Senate and the Senate from receiving the same or giving the impeachment complaint due course.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc. filed a Motion for Intervention in G.R. No. 160261. On November 5, 2003, World War II Veterans Legionnaires of the Philippines, Inc. also filed a "Petition-in-Intervention with Leave to Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and 160310.

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

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

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

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

a) locus standi of petitioners;

b) ripeness(prematurity; mootness);

c) political question/justiciability;

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

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

f) constitutionality of the House Rules on Impeachment vis-a-vis Section 3(5) of Article XI of the Constitution; and

g) judicial restraint (Italics in the original)

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

Judicial Review

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

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

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

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

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

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

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

The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution. Even then, this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis

mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government.24 (Italics in the original; emphasis and underscoring supplied)

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

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

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

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

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

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

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

Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution. (Emphasis supplied)

As indicated in Angara v. Electoral Commission,31 judicial review is indeed an integral component of the delicate system of checks and balances which, together with the corollary principle of separation of powers, forms the bedrock of our republican form of government and insures that its vast powers are utilized only for the benefit of the people for which it serves.

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

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

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

x x x

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

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

I suppose nobody can question it.

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

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

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

x x x

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

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

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

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

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

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

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

As it did in Nitafan v. Commissioner on Internal Revenue40 where, speaking through Madame Justice Amuerfina A. Melencio-Herrera, it declared:

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

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

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

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

It is a well-established rule in constitutional construction that no one provision of the Constitution is to be separated from all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purposes of the instrument. Sections bearing on a particular subject should be considered and interpreted together as to effectuate the whole purpose of the Constitution and one section is not to be allowed to defeat another, if by any reasonable construction, the two can be made to stand together.

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

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

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

It is in the context of the foregoing backdrop of constitutional refinement and jurisprudential application of the power of judicial review that respondents Speaker De Venecia, et. al. and intervenor Senator Pimentel raise the novel argument that the Constitution has excluded impeachment proceedings from the coverage of judicial review.

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

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

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

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

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

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

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

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

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

The cases of Romulo v. Yniguez58 and Alejandrino v. Quezon,59 cited by respondents in support of the argument that the impeachment power is beyond the scope of judicial review, are not in point. These cases concern the denial of petitions for writs of mandamus to compel the legislature to perform non-ministerial acts, and do not concern the exercise of the power of judicial review.

There is indeed a plethora of cases in which this Court exercised the power of judicial review over congressional action. Thus, in Santiago v. Guingona, Jr.,60 this Court ruled that it is well within the power and jurisdiction of the Court to inquire whether the Senate or its officials committed a violation of the Constitution or grave abuse of discretion in the exercise of their functions and prerogatives. In Tanada v. Angara,61 in seeking to nullify an act of the Philippine Senate on the ground that it contravened the Constitution, it held that the petition raises a justiciable controversy and that when an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. In Bondoc v. Pineda,62 this Court declared null and void a resolution of the House of Representatives withdrawing the nomination, and rescinding the election, of a

congressman as a member of the House Electoral Tribunal for being violative of Section 17, Article VI of the Constitution. In Coseteng v. Mitra,63 it held that the resolution of whether the House representation in the Commission on Appointments was based on proportional representation of the political parties as provided in Section 18, Article VI of the Constitution is subject to judicial review. In Daza v. Singson,64 it held that the act of the House of Representatives in removing the petitioner from the Commission on Appointments is subject to judicial review. In Tanada v. Cuenco,65 it held that although under the Constitution, the legislative power is vested exclusively in Congress, this does not detract from the power of the courts to pass upon the constitutionality of acts of Congress. In Angara v. Electoral Commission,66 it ruled that confirmation by the National Assembly of the election of any member, irrespective of whether his election is contested, is not essential before such member-elect may discharge the duties and enjoy the privileges of a member of the National Assembly.

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

Essential Requisites for Judicial Review

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

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

Standing

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

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

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

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

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

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

x x x

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

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

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

When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of.77 In fine, when the proceeding involves the assertion of a public right,78 the mere fact that he is a citizen satisfies the requirement of personal interest.

In the case of a taxpayer, he is allowed to sue where there is a claim that public funds are illegally disbursed, or that public money is being deflected to any improper purpose, or that there is a wastage of public funds through the enforcement of an invalid or unconstitutional law.79 Before he can invoke the power of judicial review, however, he must specifically prove that he has sufficient interest in preventing the illegal expenditure of money raised by taxation and that he would sustain a direct injury as a result of the enforcement of the questioned statute or contract. It is not sufficient that he has merely a general interest common to all members of the public.80

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

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

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

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

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

There being no doctrinal definition of transcendental importance, the following instructive determinants formulated by former Supreme Court Justice Florentino P. Feliciano are instructive: (1) the character of the funds or other assets involved in the case; (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government; and (3) the lack of any other party with a more direct and specific interest in raising the questions being raised.90 Applying these determinants, this Court is satisfied that the issues raised herein are indeed of transcendental importance.

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

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

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

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

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

Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et al. and World War II Veterans Legionnaires of the Philippines, Inc. possess a legal interest in the matter in litigation the respective motions to intervene were hereby granted.

Senator Aquilino Pimentel, on the other hand, sought to intervene for the limited purpose of making of record and arguing a point of view that differs with Senate President Drilon's. He alleges that submitting to this Court's jurisdiction as the Senate President does will undermine the independence of the Senate which will sit as an impeachment court once the Articles of Impeachment are transmitted to it from the House of Representatives. Clearly, Senator

Pimentel possesses a legal interest in the matter in litigation, he being a member of Congress against which the herein petitions are directed. For this reason, and to fully ventilate all substantial issues relating to the matter at hand, his Motion to Intervene was granted and he was, as earlier stated, allowed to argue.

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

to wit:

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

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

Ripeness and Prematurity

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

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

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

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

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

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

Justiciability

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

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

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

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

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

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

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

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

I suppose nobody can question it.

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

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

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

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

x x x

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

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

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

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

x x x

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

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

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

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

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

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

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

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

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

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

MR. CONCEPCION. Yes.

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

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

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

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

x x x

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

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

MR. CONCEPCION. No.

FR. BERNAS. It is not.

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

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

MR. CONCEPCION. No, certainly not.

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

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

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

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

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

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

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

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

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

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

And in Daza v. Singson,109 speaking through Justice Isagani Cruz, this Court ruled:

In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that, even if we were to assume that the issue presented before us was political in nature, we would still not be precluded from resolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the political question.110 x x x (Emphasis and underscoring supplied.)

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

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

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

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

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

These petitions raise five substantial issues:

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

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

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

IV. Whether Sections 15 and 16 of Rule V of the Rules on Impeachment adopted by the 12th Congress are unconstitutional for violating the provisions of Section 3, Article XI of the Constitution.

V. Whether the second impeachment complaint is barred under Section 3(5) of Article XI of the Constitution.

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

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

Lis Mota

It is a well-settled maxim of adjudication that an issue assailing the constitutionality of a governmental act should be avoided whenever possible. Thus, in the case of Sotto v. Commission on Elections,115 this Court held:

x x x It is a well-established rule that a court should not pass upon a constitutional question and decide a law to be unconstitutional or invalid, unless such question is raised by the parties and that when it is raised, if the record also presents some other ground upon which the court may rest its judgment, that course will be adopted and the constitutional question will be left for consideration until a case arises in which a decision upon such question will be unavoidable.116 [Emphasis and underscoring supplied]

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

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

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

As noted earlier, the instant consolidated petitions, while all seeking the invalidity of the second impeachment complaint, collectively raise several constitutional issues upon which the outcome of this controversy could possibly be made to rest. In determining whether one, some or all of the remaining substantial issues should be passed upon, this Court is guided by the related cannon of adjudication that "the court should not form a rule of constitutional law broader than is required by the precise facts to which it is applied."119

In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among other reasons, the second impeachment complaint is invalid since it directly resulted from a Resolution120 calling for a legislative inquiry into the JDF, which Resolution and legislative inquiry petitioners claim to likewise be unconstitutional for being: (a) a violation of the rules and jurisprudence on investigations in aid of legislation; (b) an open breach of the doctrine of separation of powers; (c) a violation of the constitutionally mandated fiscal autonomy of the judiciary; and (d) an assault on the independence of the judiciary.121

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

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

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

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

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

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

Section 3(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.

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

"We are the proponents/sponsors of the Resolution of Endorsement of the abovementioned Complaint of Representatives Gilberto Teodoro and Felix William B. Fuentebella x x x"124

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

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

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

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

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

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

Judicial Restraint

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1. that there be absolute necessity of deciding a case

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

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

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

5. that the parties are not in estoppel

6. that the Court upholds the presumption of constitutionality.

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

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

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

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

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

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

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

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

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

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

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

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

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

Constitutionality of the Rules of Procedurefor Impeachment Proceedingsadopted by the 12th Congress

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

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

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

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

Briefly then, an impeachment proceeding is not a single act. It is a comlexus of acts consisting of a beginning, a middle and an end. The end is the transmittal of the articles of impeachment to the Senate. The middle consists of those deliberative moments leading to the formulation of the articles of impeachment. The beginning or the initiation is the filing of the complaint and its referral to the Committee on Justice.

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

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

MR. MAAMBONG. With reference to Section 3, regarding the procedure and the substantive provisions on impeachment, I understand there have been many proposals and, I think, these would need some time for Committee action.

However, I would just like to indicate that I submitted to the Committee a resolution on impeachment proceedings, copies of which have been furnished the Members of this body. This is borne out of my experience as a member of the Committee on Justice, Human Rights and Good Government which took charge of the last impeachment resolution filed before the First Batasang Pambansa. For the information of the Committee, the resolution covers several steps in the impeachment proceedings starting with initiation, action of the Speaker committee action, calendaring of report, voting on the report, transmittal referral to the Senate, trial and judgment by the Senate.

x x x

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

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

x x x

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

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

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

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

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

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

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

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

x x x

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

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

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

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

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

Father Bernas concludes that when Section 3 (5) says, "No impeachment proceeding shall be initiated against the same official more than once within a period of one year," it means that no second verified complaint may be accepted and referred to the Committee on Justice for action. By his explanation, this interpretation is founded on the common understanding of the meaning of "to initiate" which means to begin. He reminds that the Constitution is ratified by

the people, both ordinary and sophisticated, as they understand it; and that ordinary people read ordinary meaning into ordinary words and not abstruse meaning, they ratify words as they understand it and not as sophisticated lawyers confuse it.

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

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

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

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

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

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

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

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

Section 3. (1) x x x

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

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

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

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

It is basic that all rules must not contravene the Constitution which is the fundamental law. If as alleged Congress had absolute rule making power, then it would by necessary implication have the power to alter or amend the meaning of the Constitution without need of referendum.

In Osmeña v. Pendatun,149 this Court held that it is within the province of either House of Congress to interpret its rules and that it was the best judge of what constituted "disorderly behavior" of its members. However, in Paceta v. Secretary of the Commission on Appointments,150 Justice (later Chief Justice) Enrique Fernando, speaking for this Court and quoting Justice Brandeis in United States v. Smith,151 declared that where the construction to be given to a rule affects persons other than members of the Legislature, the question becomes judicial in nature. In Arroyo v. De Venecia,152 quoting United States v. Ballin, Joseph & Co.,153 Justice Vicente Mendoza, speaking for this Court, held that while the Constitution empowers each house to determine its rules of proceedings, it may not by its rules ignore constitutional restraints or violate fundamental rights, and further that there should be a reasonable relation between

the mode or method of proceeding established by the rule and the result which is sought to be attained. It is only within these limitations that all matters of method are open to the determination of the Legislature. In the same case of Arroyo v. De Venecia, Justice Reynato S. Puno, in his Concurring and Dissenting Opinion, was even more emphatic as he stressed that in the Philippine setting there is even more reason for courts to inquire into the validity of the Rules of Congress, viz:

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

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

"x x x

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

Rule XV

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

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

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

x x x

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

x x x

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

x x x

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

x x x

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

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

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

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

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

Validity of the Second Impeachment Complaint

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

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

Conclusion

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

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

This Court did not heed the call to adopt a hands-off stance as far as the question of the constitutionality of initiating the impeachment complaint against Chief Justice Davide is concerned. To reiterate what has been already explained, the Court found the existence in full of all the requisite conditions for its exercise of its constitutionally vested power and duty of judicial review over an issue whose resolution precisely called for the construction or interpretation of a provision of the fundamental law of the land. What lies in here is an issue of a genuine constitutional material which only this Court can properly and competently address and adjudicate in accordance with the clear-cut allocation of powers under our system of government. Face-to-face thus with a matter or problem that squarely falls under the Court's jurisdiction, no other course of action can be had but for it to pass upon that problem head on.

The claim, therefore, that this Court by judicially entangling itself with the process of impeachment has effectively set up a regime of judicial supremacy, is patently without basis in fact and in law.

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

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

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

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

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

WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in Impeachment Proceedings which were approved by the House of Representatives on November 28, 2001 are unconstitutional. Consequently, the second impeachment complaint against Chief Justice Hilario G. Davide, Jr. which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix William B. Fuentebella with the Office of the Secretary General of the House of Representatives on October 23, 2003 is barred under paragraph 5, section 3 of Article XI of the Constitution.

SO ORDERED.

Bellosillo and Tinga, JJ., see separate opinion.Puno, and Ynares-Santiago, J., see concurring and dissenting opinion.Vitug, Panganiban, Sandoval-Gutierrez and Callejo, Sr., JJ., see separate concurring opinion.Quisumbing, J., concurring separate opinion received.Carpio, J., concur.Austria-Martinez, J., concur in the majority opinion and in the separate opinion of J. Vitug.Corona, J., will write a separate concurring opinion.Azcuna, J., concur in the separate opinion.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

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

RAMON A. GONZALES, petitioner, vs.COMMISSION ON ELECTIONS, DIRECTOR OF PRINTING and AUDITOR GENERAL, respondents.

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

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), petitioner, vs.COMMISSION ON ELECTIONS, respondent.

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

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

CONCEPCION, C.J.:

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

Petitioner therein prays for judgment:

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

2) declaring said Act unconstitutional and void.

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

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

2. R. B. H. No. 2, calling a convention to propose amendments to said Constitution, the convention to be composed of two (2) elective delegates from each representative district, to be "elected in the general elections to be held on the second Tuesday of November, 1971;" and

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

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

The petition in L-28196 was filed on October 21, 1967. At the hearing thereof, on October 28, 1967, the Solicitor General appeared on behalf of respondents. Moreover, Atty. Juan T. David and counsel for the Philippine Constitution Association — hereinafter referred to as the PHILCONSA — were allowed to argue as amici curiae. Said counsel for the PHILCONSA, Dr. Salvador Araneta, likewise prayed that the decision in this case be deferred until after a substantially identical case brought by said organization before the Commission on Elections,1 which was expected to decide it any time, and whose decision would, in all probability, be appealed to this Court — had been submitted thereto for final determination, for a joint decision on the identical issues raised in both cases. In fact, on October 31, 1967, the PHILCONSA filed with this Court the petition in G. R. No. L-28224, for review by certiorari of the resolution of the Commission on Elections2 dismissing the petition therein. The two (2) cases were deemed submitted for decision on November 8, 1967, upon the filing of the answer of respondent, the memorandum of the petitioner and the reply memorandum of respondent in L-28224.

Ramon A. Gonzales, the petitioner in L-28196, is admittedly a Filipino citizen, a taxpayer, and a voter. He claims to have instituted case L-28196 as a class unit, for and in behalf of all citizens, taxpayers, and voters similarly situated. Although respondents and the Solicitor General have filed an answer denying the truth of this allegation, upon the ground that they have no knowledge or information to form a belief as to the truth thereof, such denial would appear to be a perfunctory one. In fact, at the hearing of case L-28196, the Solicitor General expressed himself in favor of a judicial determination of the merits of the issued raised in said case.

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

JURISDICTION

As early as Angara vs. Electoral Commission,4 this Court — speaking through one of the leading members of the Constitutional Convention and a respected professor of Constitutional Law, Dr. Jose P. Laurel — declared that "the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof." It is true that in Mabanag vs. Lopez Vito,5 this Court characterizing the issue submitted thereto as a political one, declined to pass upon the question whether or not a given number of votes cast in Congress in favor of a proposed amendment to the Constitution — which was being submitted to the people for ratification — satisfied the three-fourths vote requirement of the fundamental law. The force of this precedent has been weakened, however, by Suanes vs. Chief Accountant

of the Senate,6 Avelino vs. Cuenco,7 Tañada vs. Cuenco,8 and Macias vs. Commission on Elections.9 In the first, we held that the officers and employees of the Senate Electoral Tribunal are under its supervision and control, not of that of the Senate President, as claimed by the latter; in the second, this Court proceeded to determine the number of Senators necessary for a quorum in the Senate; in the third, we nullified the election, by Senators belonging to the party having the largest number of votes in said chamber, purporting to act on behalf of the party having the second largest number of votes therein, of two (2) Senators belonging to the first party, as members, for the second party, of the, Senate Electoral Tribunal; and in the fourth, we declared unconstitutional an act of Congress purporting to apportion the representative districts for the House of Representatives, upon the ground that the apportionment had not been made as may be possible according to the number of inhabitants of each province. Thus we rejected the theory, advanced in these four (4) cases, that the issues therein raised were political questions the determination of which is beyond judicial review.

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

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

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

THE MERITS

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

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

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

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

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

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

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

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

Legality of Congress and Legal Status of the Congressmen

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

The House of Representatives shall be composed of not more than one hundred and twenty Members who shall be apportioned among the several provinces as nearly as may be according to the number of their respective inhabitants, but each province shall have at least one Member. The Congress shall by law make an apportionment within three years after the return of every enumeration, and not otherwise. Until such apportionment shall have been made, the House of Representatives shall have the same number of Members as that fixed by law for the National Assembly, who shall be elected by the qualified electors from the present Assembly districts. Each representative district shall comprise, as far as practicable, contiguous and compact territory.

It is urged that the last enumeration or census took place in 1960; that, no apportionment having been made within three (3) years thereafter, the Congress of the Philippines and/or the election of its Members became illegal; that Congress and its Members, likewise, became a de facto Congress and/or de facto congressmen, respectively; and that, consequently, the disputed Resolutions, proposing amendments to the Constitution, as well as Republic Act No. 4913, are null and void.

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

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

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

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

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

It is argued that the above-quoted provision refers only to the elections held in 1935. This theory assumes that an apportionment had to be made necessarily before the first elections to be held after the inauguration of the Commonwealth of the Philippines, or in 1938.19 The assumption, is, however, unwarranted, for there had been no enumeration in 1935, and nobody could foretell when it would be made. Those who drafted and adopted the Constitution in 1935 could be certain, therefore, that the three-year period, after the earliest possible enumeration, would expire after the elections in 1938.

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

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

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

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

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

Upon the other hand, the Constitution authorizes the impeachment of the President, the Vice-President, the Justices of the Supreme Court and the Auditor General for, inter alia, culpable violation of the Constitution,20 the enforcement of which is, not only their mandatory duty, but also, their main function. This provision indicates that, despite the violation of such mandatory duty, the title to their respective offices remains unimpaired, until dismissal or ouster pursuant to a judgment of conviction rendered in accordance with Article IX of the Constitution. In short, the loss of office or the extinction of title thereto is not automatic.

Even if we assumed, however, that the present Members of Congress are merely de facto officers, it would not follow that the contested resolutions and Republic Act No. 4913 are null and void. In fact, the main reasons for the existence of the de facto doctrine is that public interest demands that acts of persons holding, under color of title, an office created by a valid statute be, likewise, deemed valid insofar as the public — as distinguished from the officer in question — is concerned.21 Indeed, otherwise, those dealing with officers and employees of the Government would be entitled to demand from them satisfactory proof of their title to the positions they hold, before dealing with them, or before recognizing their authority or obeying their commands, even if they should act within the limits of the authority vested in their respective offices, positions or employments.22 One can imagine this great inconvenience, hardships and evils that would result in the absence of the de facto doctrine.

As a consequence, the title of a de facto officer cannot be assailed collaterally.23 It may not be contested except directly, by quo warranto proceedings. Neither may the validity of his acts be questioned upon the ground that he is merely a de facto officer.24 And the reasons are obvious: (1) it would be an indirect inquiry into the title to the office; and (2) the acts of a de facto officer, if within the competence of his office, are valid, insofar as the public is concerned.

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

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

Available Alternatives to Congress

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

It is, also, noteworthy that R. B. H. Nos. 1 and 3 propose amendments to the constitutional provision on Congress, to be submitted to the people for ratification on November 14, 1967, whereas R. B. H. No. 2 calls for a convention in 1971, to consider proposals for amendment to the Constitution, in general. In other words, the subject-matter of R. B. H. No. 2 is different from that of R B. H. Nos. 1 and 3.

Moreover, the amendments proposed under R. B. H. Nos. 1 and 3, will be submitted for ratification several years before those that may be proposed by the constitutional convention called in R. B. H. No. 2. Again, although the three (3) resolutions were passed on the same date, they were taken up and put to a vote separately, or one after the other. In other words, they were not passed at the same

time.

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

resolutions on the same day.

Counsel ask: Since Congress has decided to call a constitutional convention to propose amendments, why not let the whole thing be submitted to said convention, instead of, likewise, proposing some specific amendments, to be submitted for ratification before said convention is held? The force of this argument must be conceded. but the same impugns the wisdom of the action taken by Congress,

not its authority to take it. One seeming purpose thereof to permit Members of Congress to run for election as delegates to the constitutional convention and participate in the proceedings therein, without forfeiting their seats in Congress. Whether or not this should be done is a political question, not subject to review by the courts of justice.

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

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

Article XV of the Constitution provides:

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

election at which the amendments are submitted to the people for their ratification.

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

amendments for ratification in general elections.

It would be better, from the viewpoint of a thorough discussion of the proposed amendments, that the same be submitted to the people's approval independently of the election of public officials. And there is no denying the fact that an adequate appraisal of the merits and demerits proposed amendments is likely to be overshadowed by the great attention usually commanded by the choice of

personalities involved in general elections, particularly when provincial and municipal officials are to be chosen. But, then, these considerations are addressed to the wisdom of holding a plebiscite simultaneously with the election of public officer. They do not deny the authority of Congress to choose either alternative, as implied in the term "election" used, without qualification, in the abovequoted

provision of the Constitution. Such authority becomes even more patent when we consider: (1) that the term "election," normally refers to the choice or selection of candidates to public office by popular vote; and (2) that the word used in Article V of the Constitution, concerning the grant of suffrage to women is, not "election," but "plebiscite."

Petitioners maintain that the term "election," as used in Section 1 of Art. XV of the Constitution, should be construed as meaning a special election. Some members of the Court even feel that said term ("election") refers to a "plebiscite," without any "election," general or special, of public officers. They opine that constitutional amendments are, in general, if not always, of such important, if not

transcendental and vital nature as to demand that the attention of the people be focused exclusively on the subject-matter thereof, so that their votes thereon may reflect no more than their intelligent, impartial and considered view on the merits of the proposed amendments, unimpaired, or, at least, undiluted by extraneous, if not insidious factors, let alone the partisan political considerations that are

likely to affect the selection of elective officials.

This, certainly, is a situation to be hoped for. It is a goal the attainment of which should be promoted. The ideal conditions are, however, one thing. The question whether the Constitution forbids the submission of proposals for amendment to the people except under such conditions, is another thing. Much as the writer and those who concur in this opinion admire the contrary view, they find themselves

unable to subscribe thereto without, in effect, reading into the Constitution what they believe is not written thereon and can not fairly be deduced from the letter thereof, since the spirit of the law should not be a matter of sheer speculation.

The majority view — although the votes in favor thereof are insufficient to declare Republic Act No. 4913 unconstitutional — as ably set forth in the opinion penned by Mr. Justice Sanchez, is, however, otherwise.

Would the Submission now of the Contested Amendments to the People Violate the Spirit of the Constitution?

It should be noted that the contested Resolutions were approved on March 16, 1967, so that, by November 14, 1967, our citizenry shall have had practically eight (8) months to be informed on the amendments in question. Then again, Section 2 of Republic Act No. 4913 provides:

(1) that "the amendments shall be published in three consecutive issues of the Official Gazette, at least twenty days prior to the election;"

(2) that "a printed copy of the proposed amendments shall be posted in a conspicuous place in every municipality, city and provincial office building and in every polling place not later than October 14, 1967," and that said copy "shall remain posted therein until after the election;"

(3) that "at least five copies of said amendment shall be kept in each polling place, to be made available for examination by the qualified electors during election day;"

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

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

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

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

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

Said Constitution, with the Ordinance appended thereto, shall be published in the Official Gazette, in English and in Spanish, for three consecutive issues at least fifteen days prior to said election, and a printed copy of said Constitution, with the Ordinance appended thereto, shall be posted in a conspicuous place in each municipal and provincial government

office building and in each polling place not later than the twenty-second day of April, nineteen hundred and thirty-five, and shall remain posted therein continually until after the termination of the election. At least ten copies of the Constitution with the Ordinance appended thereto, in English and in Spanish, shall be kept at each polling place available for

examination by the qualified electors during election day. Whenever practicable, copies in the principal local dialects as may be determined by the Secretary of the Interior shall also be kept in each polling place.

The provision concerning woman's suffrage is Section 1 of Commonwealth Act No. 34, reading:

Said Article V of the Constitution shall be published in the Official Gazette, in English and in Spanish, for three consecutive issues at least fifteen days prior to said election, and the said Article V shall be posted in a conspicuous place in each municipal and provincial office building and in each polling place not later than the twenty-second day of April, nineteen

and thirty-seven, and shall remain posted therein continually until after the termination of the plebiscite. At least ten copies of said Article V of the Constitution, in English and in Spanish, shall be kept at each polling place available for examination by the qualified electors during the plebiscite. Whenever practicable, copies in the principal native languages, as may

be determined by the Secretary of the Interior, shall also be kept in each polling place.

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

The said amendments shall be published in English and Spanish in three consecutive issues of the Official Gazette at least twenty days prior to the election. A printed copy thereof shall be posted in a conspicuous place in every municipal, city, and provincial government office building and in every polling place not later than May eighteen, nineteen hundred and

forty, and shall remain posted therein until after the election. At least ten copies of said amendments shall be kept in each polling place to be made available for examination by the qualified electors during election day. When practicable, copies in the principal native languages, as may be determined by the Secretary of the Interior, shall also be kept therein.

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

The said amendment shall be published in English and Spanish in three consecutive issues of the Official Gazette at least twenty days prior to the election. A printed copy thereof shall be posted in a conspicuous place in every municipal, city, and provincial government office building and in every polling place not later than February eleven, nineteen hundred

and forty-seven, and shall remain posted therein until after the election. At least, ten copies of the said amendment shall be kept in each polling place to be made available for examination by the qualified electors during election day. When practicable, copies in the principal native languages, as may be determined by the Commission on Elections, shall also be

kept in each polling place.

The main difference between the present situation and that obtaining in connection with the former proposals does not arise from the law enacted therefor. The difference springs from the circumstance that the major political parties had taken sides on previous amendments to the Constitution — except, perhaps, the woman's suffrage — and, consequently, debated thereon at some length before the

plebiscite took place. Upon the other hand, said political parties have not seemingly made an issue on the amendments now being contested and have, accordingly, refrained from discussing the same in the current political campaign. Such debates or polemics as may have taken place — on a rather limited scale — on the latest proposals for amendment, have been due principally to the initiative of a

few civic organizations and some militant members of our citizenry who have voiced their opinion thereon. A legislation cannot, however, be nullified by reason of the failure of certain sectors of the community to discuss it sufficiently. Its constitutionality or unconstitutionality depends upon no other factors than those existing at the time of the enactment thereof, unaffected by the acts or omissions of law

enforcing agencies, particularly those that take place subsequently to the passage or approval of the law.

Referring particularly to the contested proposals for amendment, the sufficiency or insufficiency, from a constitutional angle, of the submission thereof for ratification to the people on November 14, 1967, depends — in the view of those who concur in this opinion, and who, insofar as this phase of the case, constitute the minority — upon whether the provisions of Republic Act No. 4913 are such as to

fairly apprise the people of the gist, the main idea or the substance of said proposals, which is — under R. B. H. No. 1 — the increase of the maximum number of seats in the House of Representatives, from 120 to 180, and — under R. B. H. No. 3 — the authority given to the members of Congress to run for delegates to the Constitutional Convention and, if elected thereto, to discharge the duties of

such delegates, without forfeiting their seats in Congress. We — who constitute the minority — believe that Republic Act No. 4913 satisfies such requirement and that said Act is, accordingly, constitutional.

A considerable portion of the people may not know how over 160 of the proposed maximum of representative districts are actually apportioned by R. B. H. No. 1 among the provinces in the Philippines. It is not improbable, however, that they are not interested in the details of the apportionment, or that a careful reading thereof may tend in their simple minds, to impair a clear vision thereof. Upon the

other hand, those who are more sophisticated, may enlighten themselves sufficiently by reading the copies of the proposed amendments posted in public places, the copies kept in the polling places and the text of contested resolutions, as printed in full on the back of the ballots they will use.

It is, likewise, conceivable that as many people, if not more, may fail to realize or envisage the effect of R. B. H. No. 3 upon the work of the Constitutional Convention or upon the future of our Republic. But, then, nobody can foretell such effect with certainty. From our viewpoint, the provisions of Article XV of the Constitution are satisfied so long as the electorate knows that R. B. H. No. 3 permits

Congressmen to retain their seats as legislators, even if they should run for and assume the functions of delegates to the Convention.

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

The system of checks and balances underlying the judicial power to strike down acts of the Executive or of Congress transcending the confines set forth in the fundamental laws is not in derogation of the principle of separation of powers, pursuant to which each department is supreme within its own sphere. The determination of the conditions under which the proposed amendments shall be submitted

to the people is concededly a matter which falls within the legislative sphere. We do not believe it has been satisfactorily shown that Congress has exceeded the limits thereof in enacting Republic Act No. 4913. Presumably, it could have done something better to enlighten the people on the subject-matter thereof. But, then, no law is perfect. No product of human endeavor is beyond improvement.

Otherwise, no legislation would be constitutional and valid. Six (6) Members of this Court believe, however, said Act and R. B. H. Nos. 1 and 3 violate the spirit of the Constitution.

Inasmuch as there are less than eight (8) votes in favor of declaring Republic Act 4913 and R. B. H. Nos. 1 and 3 unconstitutional and invalid, the petitions in these two (2) cases must be, as they are hereby, dismiss and the writs therein prayed for denied, without special pronouncement as to costs. It is so ordered.

Makalintal and Bengzon, J.P., JJ., concur.

Fernando, J., concurs fully with the above opinion, adding a few words on the question of jurisdiction.

Separate Opinions

MAKALINTAL, J., concurring:

I concur in the foregoing opinion of the Chief Justice. I would make some additional observations in connection with my concurrence. Sections 2 and 4 of Republic Act No. 4913 provide:

Sec. 2. The amendments shall be published in three consecutive issues of the Official Gazette at least twenty days prior to the election. A printed copy thereof shall be posted in a conspicuous place in every municipality, city and provincial office building and in every polling place not later than October fourteen, nineteen hundred and sixty-seven, and shall

remain posted therein until after the election. At least five copies of the said amendments shall be kept in each polling place to be made available for examination by the qualified electors during election day. When practicable, copies in the principal native languages, as may be determined by the Commission on Elections, shall be kept in each polling place. The

Commission on Elections shall make available copies of each amendments in English, Spanish and, whenever practicable, in the principal native languages, for free distribution.

xxx      xxx      xxx

Sec. 4. The ballots which shall be used in the election for the approval of said amendments shall be printed in English and Pilipino and shall be in the size and form prescribed by the Commission on Elections: Provided, however, That at the back of said ballot there shall be printed in full Resolutions of both Houses of Congress Numbered One and Three, both

adopted on March sixteen, nineteen hundred and sixty-seven, proposing the amendments: Provided, further, That the questionnaire appearing on the face of the ballot shall be as follows:

Are you in favor of the proposed amendment to Section five of Article VI of our Constitution printed at the back of this ballot?

Are you in favor of the proposed amendment to section sixteen of Article VI of our Constitution printed at the back of this ballot?

To vote for the approval of the proposed amendments, the voter shall write the word "yes" or its equivalent in Pilipino or in the local dialect in the blank space after each question; to vote for the rejection thereof, he shall write the word "No" or its equivalent in Pilipino or in the local dialect.

I believe that intrinsically, that is, considered in itself and without reference to extraneous factors and circumstances, the manner prescribed in the aforesaid provisions is sufficient for the purpose of having the proposed amendments submitted to the people for their ratification, as enjoined in Section 1, Article XV of the Constitution. I am at a loss to say what else should have been required by the Act to

make it adhere more closely to the constitutional requirement. Certainly it would have been out of place to provide, for instance, that government officials and employees should go out and explain the amendments to the people, or that they should be the subject of any particular means or form of public discussion.

The objection of some members of the Court to Republic Act No. 4913 seems to me predicated on the fact that there are so many other issues at stake in the coming general election that the attention of the electorate, cannot be entirely focused on the proposed amendments, such that there is a failure to properly submit them for ratification within the intendment of the Constitution. If that is so, then

the defect is not intrinsic in the law but in its implementation. The same manner of submitting the proposed amendments to the people for ratification may, in a different setting, be sufficient for the purpose. Yet I cannot conceive that the constitutionality or unconstitutionality of a law may be made to depend willy-nilly on factors not inherent in its provisions. For a law to be struck down as unconstitutional

it must be so by reason of some irreconcilable conflict between it and the Constitution. Otherwise a law may be either valid or invalid, according to circumstances not found in its provisions, such as the zeal with which they are carried out. To such a thesis I cannot agree. The criterion would be too broad and relative, and dependent upon individual opinions that at best are subjective. What one may

regard as sufficient compliance with the requirement of submission to the people, within the context of the same law, may not be so to another. The question is susceptible of as many views as there are viewers; and I do not think this Court would be justified in saying that its own view on the matter is the correct one, to the exclusion of the opinions of others.

On the other hand, I reject the argument that the ratification must necessarily be in a special election or plebiscite called for that purpose alone. While such procedure is highly to be preferred, the Constitution speaks simply of "an election at which the amendments are submitted to the people for their ratification," and I do not subscribe to the restrictive interpretation that the petitioners would place on

this provision, namely, that it means only a special election.

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

It is the glory of our institutions that they are founded upon law, that no one can exercise any authority over the rights and interests of others except pursuant to and in the manner authorized by law.1 Based upon this principle, petitioners Ramon A. Gonzales and Philippine Constitution Association (PHILCONSA) come to this Court in separate petitions.

Petitioner Gonzales, as taxpayer, voter and citizen, and allegedly in representation thru class suit of all citizens of this country, filed this suit for prohibition with preliminary injunction to restrain the Commission on Elections, Director of Printing and Auditor General from implementing and/or complying with Republic Act 4913, assailing said law as unconstitutional.

Petitioner PHILCONSA, as a civic, non-profit and non-partisan corporation, assails the constitutionality not only of Republic Act 4913 but also of Resolutions of Both Houses Nos. 1 and 3 of March 16, 1967.

Republic Act 4913, effective June 17, 1967, is an Act submitting to the Filipino people for approval the amendments to the Constitution of the Philippines proposed by the Congress of the Philippines in Resolutions of Both Houses Numbered 1 and 3, adopted on March 16, 1967. Said Republic Act fixes the date and manner of the election at which the aforesaid proposed amendments shall be voted

upon by the people, and appropriates funds for said election. Resolutions of Both Houses Nos. 1 and 3 propose two amendments to the Constitution: the first, to amend Sec. 5, Art. VI, by increasing the maximum membership of the House of Representatives from 120 to 180, apportioning 160 of said 180 seats and eliminating the provision that Congress shall by law make an apportionment within three

years after the return of every enumeration; the second, to amend Sec. 16, Art. VI, by allowing Senators and Representatives to be delegates to a constitutional convention without forfeiting their seats.

Since both petitions relate to the proposed amendments, they are considered together herein.

Specifically and briefly, petitioner Gonzales' objections are as follows: (1) Republic Act 4913 violates Sec. 1, Art. XV of the Constitution, in submitting the proposed amendments to the Constitution, to the people for approval, at the general election of 1967 instead of at a special election solely for that purpose; (2) Republic Act 4913 violates Sec. 1, Art. XV of the Constitution, since it was not passed with

the 3/4 vote in joint session required when Congress proposes amendments to the Constitution, said Republic Act being a step in or part of the process of proposing amendments to the Constitution; and (3) Republic Act 4913 violates the due process clause of the Constitution (Sec. 1, Subsec. 1, Art. III), in not requiring that the substance of the proposed amendments be stated on the face of the ballot

or otherwise rendering clear the import of the proposed amendments, such as by stating the provisions before and after said amendments, instead of printing at the back of the ballot only the proposed amendments.

Since observance of Constitutional provisions on the procedure for amending the Constitution is concerned, the issue is cognizable by this Court under its powers to review an Act of Congress to determine its conformity to the fundamental law. For though the Constitution leaves Congress free to propose whatever Constitutional amendment it deems fit, so that the substance or content of said

proposed amendment is a matter of policy and wisdom and thus a political question, the Constitution nevertheless imposes requisites as to the manner or procedure of proposing such amendments, e.g., the three-fourths vote requirement. Said procedure or manner, therefore, from being left to the discretion of Congress, as a matter of policy and wisdom, is fixed by the Constitution. And to that extent,

all questions bearing on whether Congress in proposing amendments followed the procedure required by the Constitution, is perforce justiciable, it not being a matter of policy or wisdom.

Turning then to petitioner Gonzales' first objection, Sec. 1, Art. XV clearly does not bear him on the point. It nowhere requires that the ratification be thru an election solely for that purpose. It only requires that it be at "an election at which the amendments are submitted to the people for their ratification." To join it with an election for candidates to public office, that is, to make it concurrent with such

election, does not render it any less an election at which the proposed amendments are submitted to the people for their ratification. To prohibition being found in the plain terms of the Constitution, none should be inferred. Had the framers of requiring Constitution thought of requiring a special election for the purpose only of the proposed amendments, they could have said so, by qualifying the phrase

with some word such as "special" or "solely" or "exclusively". They did not.

It is not herein decided that such concurrence of election is wise, or that it would not have been better to provide for a separate election exclusively for the ratification of the proposed amendments. The point however is that such separate and exclusive election, even if it may be better or wiser, which again, is not for this Court to decide, is not included in the procedure required by the Constitution to

amend the same. The function of the Judiciary is "not to pass upon questions of wisdom, justice or expediency of legislation".2 It is limited to determining whether the action taken by the Legislative Department has violated the Constitution or not. On this score, I am of the opinion that it has not.

Petitioner Gonzales' second point is that Republic Act 4913 is deficient for not having been passed by Congress in joint session by 3/4 vote.

Sec. 1, Art. XV of the Constitution provides:

Sec. 1. The Congress in joint session assembled, by a vote of three-fourths of all the members of the Senate and of the House of Representatives voting separately, may propose amendments to this Constitution or call a convention for that purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an

election to which the amendments are submitted to the people for their ratification.

Does Republic Act 4913 propose amendments to the Constitution? If by the term "propose amendment" is meant to determine WHAT said amendment shall be, then Republic Act 4913 does not; Resolutions of Both Houses 1 and 3 already did that. If, on the other hand, it means, or also means, to provide for how, when, and by what means the amendments shall be submitted to the people for

approval, then it does.

A careful reading of Sec. 1, Art. XV shows that the first sense. is the one intended. Said Section has two sentences: in the first, it requires the 3/4 voting in joint session, for Congress to "propose amendments". And then in the second sentence, it provides that "such amendments . . . shall be submitted to the people for their ratification". This clearly indicates that by the term "propose amendments" in

the first sentence is meant to frame the substance or the content or the WHAT-element of the amendments; for it is this and this alone that is submitted to the people for their ratification. The details of when the election shall be held for approval or rejection of the proposed amendments, or the manner of holding it, are not submitted for ratification to form part of the Constitution. Stated differently, the

plain language of Section 1, Art. XV, shows that the act of proposing amendments is distinct from — albeit related to — that of submitting the amendments to the people for their ratification; and that the 3/4 voting requirement applies only to the first step, not to the second one.

It follows that the submission of proposed amendments can be done thru an ordinary statute passed by Congress. The Constitution does not expressly state by whom the submission shall be undertaken; the rule is that a power not lodged elsewhere under the Constitution is deemed to reside with the legislative body, under the doctrine of residuary powers. Congress therefore validly enacted Republic

Act 4913 to fix the details of the date and manner of submitting the proposed amendments to the people for their ratification. Since it does not "propose amendments" in the sense referred to by Sec. 1, Art. XV of the Constitution, but merely provides for how and when the amendments, already proposed, are going to be voted upon, the same does not need the 3/4 vote in joint session required in Sec.

1, Art. XV of the Constitution. Furthermore, Republic Act 4913 is an appropriation measure. Sec. 6 thereof appropriates P1,000,000 for carrying out its provisions. Sec. 18, Art. VI of the Constitution states that "All appropriation . . . bills shall originate exclusively in the House of Representatives". Republic Act 4913, therefore, could not have been validly adopted in a joint session, reinforcing the view

that Sec. 1, Art. XV does not apply to such a measure providing for the holding of the election to ratify the proposed amendments, which must perforce appropriate funds for its purpose.

Petitioner Gonzales contends, thirdly, that Republic Act 4913 offends against substantive due process. An examination of the provisions of the law shows no violation of the due process clause of the Constitution. The publication in the Official Gazette at least 20 days before the election, the posting of notices in public buildings not later than October 14, 1967, to remain posted until after the elections,

the placing of copies of the proposed amendments in the polling places, aside from printing the same at the back of the ballot, provide sufficient opportunity to the voters to cast an intelligent vote on the proposal. Due process refers only to providing fair opportunity; it does not guarantee that the opportunity given will in fact be availed of; that is the look-out of the voter and the responsibility of the

citizen. As long as fair and reasonable opportunity to be informed is given, and it is, the due process clause is not infringed.

Non-printing of the provisions to be amended as they now stand, and the printing of the full proposed amendments at the back of the ballot instead of the substance thereof at the face of the ballot, do not deprive the voter of fair opportunity to be informed. The present wording of the Constitution is not being veiled or suppressed from him; he is conclusively presumed to know them and they are

available should he want to check on what he is conclusively presumed to know. Should the voters choose to remain ignorant of the present Constitution, the fault does not lie with Congress. For opportunity to familiarize oneself with the Constitution as it stands has been available thru all these years. Perhaps it would have been more convenient for the voters if the present wording of the provisions

were also to be printed on the ballot. The same however is a matter of policy. As long as the method adopted provides sufficiently reasonable chance to intelligently vote on the amendments, and I think it does in this case, it is not constitutionally defective.

Petitioner Gonzales' other arguments touch on the merits or wisdom of the proposed amendments. These are for the people in their sovereign capacity to decide, not for this Court.

Two arguments were further advanced: first, that Congress cannot both call a convention and propose amendments; second, that the present Congress is a de facto one, since no apportionment law was adopted within three years from the last census of 1960, so that the Representatives elected in 1961 are de facto officers only. Not being de jure, they cannot propose amendments, it is argued.

As to the first point, Sec. 1 of Art. XV states that Congress "may propose amendments or call a convention for that purpose". The term "or", however, is frequently used as having the same meaning as "and" particularly in permissive, affirmative sentences so that the interpretation of the word "or" as "and" in the Constitution in such use will not change its meaning (Vicksburg S. & P. R. Co. v.

Goodenough, 32 So. 404, 411, 108 La, 442). And it should be pointed out that the resolutions proposing amendments (R.B.H. Nos. 1 and 3) are different from that calling for a convention (R.B.H. No. 2). Surely, if Congress deems it better or wise to amend the Constitution before a convention called for is elected, it should not be fettered from doing so. For our purposes in this case, suffice it to note

that the Constitution does not prohibit it from doing so.

As to the second argument, it is also true that Sec. 5 of Art. VI of the Constitution provides in part that "The Congress shall by law make an apportionment within three years after the return of every enumeration, and not otherwise". It however further states in the next sentence: "Until such apportionment shall have been made, the House of Representatives shall have the same number of Members as

that fixed by law for the National Assembly, who shall be elected by the qualified electors from the present assembly districts." The failure of Congress, therefore, to pass a valid redistricting law since the time the above provision was adopted, does not render the present districting illegal or unconstitutional. For the Constitution itself provides for its continuance in such case, rendering legal and de jure

the status quo.

For the above reasons, I vote to uphold the constitutionality of Republic Act 4913, and fully concur with the opinion of the Chief Justice.

FERNANDO, J., concurring:

At the outset, we are faced with a question of jurisdiction. The opinion prepared by the Chief Justice discusses the matter with a fullness that erases doubts and misgivings and clarifies the applicable principles. A few words may however be added.

We start from the premise that only where it can be shown that the question is to be solved by public opinion or where the matter has been left by the Constitution to the sole discretion of any of the political branches, as was so clearly stated by the then Justice Concepcion in Tañada v. Cuenco,1 may this Court avoid passing on the issue before it. Whatever may be said about the present question, it is

hard to speak with certitude considering Article XV, that Congress may be entrusted with the full and uncontrolled discretion on the procedure leading to proposals for an amendment of the Constitution.

It may be said however that in Mabanag v. Lopez Vito,2 this Court through Justice Tuason followed Coleman v. Miller,3 in its holding that certain aspects of the amending process may be considered political. His opinion quoted with approval the view of Justice Black, to which three other members of the United States Supreme Court agreed, that the process itself is political in its entirety, "from

submission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control or interference at any point." In a sense that would solve the matter neatly. The judiciary would be spared the at times arduous and in every case soul-searching process of determining whether the procedure for amendments required by the Constitution has been followed.

At the same time, without impugning the motives of Congress, which cannot be judicially inquired into at any rate, it is not beyond the realm of possibility that a failure to observe the requirements of Article XV would occur. In the event that judicial intervention is sought, to rely automatically on the theory of political question to avoid passing on such a matter of delicacy might under certain

circumstances be considered, and rightly so, as nothing less than judicial abdication or surrender.

What appears regrettable is that a major opinion of an esteemed jurist, the late Justice Tuason, would no longer be controlling. There is comfort in the thought that the view that then prevailed was itself a product of the times. It could very well be that considering the circumstances existing in 1947 as well as the particular amendment sought to be incorporated in the Constitution, the parity rights

ordinance, the better part of wisdom in view of the grave economic situation then confronting the country would be to avoid the existence of any obstacle to its being submitted for ratification. Moreover, the Republic being less than a year old, American Supreme Court opinions on constitutional questions were-invariably accorded uncritical acceptance. Thus the approach followed by Justice Tuason is

not difficult to understand. It may be said that there is less propensity now, which is all to the good, for this Court to accord that much deference to constitutional views coming from the quarter.

Nor is this mode of viewing the opinion of Justice Tuason to do injustice to his memory. For as he stated in another major opinion in Araneta v. Dinglasan,4 in ascertaining the meaning to be given the Emergency Powers Act,5 one should not ignore what would ensue if a particular mode of construction were followed. As he so emphatically stated, "We test a rule by its results."

The consequences of a judicial veto on the then proposed amendment on the economic survival of the country, an erroneous appraisal it turned out later, constituted an effective argument for its submission. Why not then consider the question political and let the people decide? That assumption could have been indulged in. It could very well be the inarticulate major premise. For many it did bear the

stamp of judicial statesmanship.

The opinion of Chief Justice Concepcion renders crystal-clear why as of this date and in the foreseeable future judicial inquiry to assure the utmost compliance with the constitutional requirement would be a more appropriate response.

SANCHEZ, J., in separate opinion:

Right at the outset, the writer expresses his deep appreciation to Mr. Justice Calixto O. Zaldivar and Mr. Justice Fred Ruiz Castro for their invaluable contribution to the substance and form of the opinion which follows.

Directly under attack in this, a petition for prohibition, is the constitutionality of Republic Act 4913, approved on June 17, 1967. This Act seeks to implement Resolutions 1 and 3 adopted by the Senate and the House of Representatives on March 16, 1967 with the end in view of amending vital portions of the Constitution.

Since the problem here presented has its roots in the resolutions aforesaid of both houses of Congress, it may just as well be that we recite in brief the salient features thereof. Resolution No. 1 increases the membership of the House of Representatives from 120 to 180 members, and immediately apportions 160 seats. A companion resolution is Resolution No. 3 which permits Senators and

Congressmen — without forfeiting their seats in Congress — to be members of the Constitutional Convention1 to be convened, as provided in another resolution — Resolution No. 2. Parenthetically, two of these proposed amendments to the Constitution (Resolutions I and 3) are to be submitted to the people for their ratification next November 14, 1967. Resolution No. 2 just adverted to calls for a

constitutional convention also to propose amendments to the Constitution. The delegates thereto are to be elected on the second Tuesday of November 1970; the convention to sit on June 1, 1971; and the amendments proposed by the convention to be submitted to the people thereafter for their ratification.

Of importance now are the proposed amendments increasing the number of members of the House of representatives under Resolution No. 1, and that in Resolution No. 3 which gives Senators and Congressmen the right to sit as members of the constitutional convention to be convened on June 1, 1971. Because, these are the two amendments to be submitted to the people in the general elections

soon to be held on November 14, 1967, upon the provisions of Section 1, Republic Act 4913, which reads:

The amendments to the Constitution of the Philippines proposed by the Congress of the Philippines in Resolutions of both Houses Numbered One and Three, both adopted on March sixteen, nineteen hundred and sixty- seven, shall be submitted to the people for approval at the general election which shall be held on November fourteen, nineteen hundred and

sixty- seven, in accordance with the provisions of this Act.

Republic Act 4913 projects the basic angle of the problem thrust upon us — the manner in which the amendments proposed by Congress just adverted to be brought to the people's attention.

First, to the controlling constitutional precept. In order that proposed amendments to the Constitution may become effective, Section 1, Article XV thereof commands that such amendments must be "approved by a majority of the votes cast at an election at which amendments are submitted to the people for their ratification."2 The accent is on two words complementing each other, namely, "submitted"

and "ratification."

1. We are forced to take a long hard look at the core of the problem facing us. And this, because the amendments submitted are transcendental and encompassing. The ceiling of the number of Congressmen is sought to be elevated from 120 to 180 members; and Senators and Congressmen may run in constitutional conventions without forfeiting their seats. These certainly affect the people as a

whole. The increase in the number of Congressmen has its proportional increase in the people's tax burdens. They may not look at this with favor, what with the constitutional provision (Section 5, Article VI) that Congress "shall by law make an apportionment", without the necessity of disturbing the present constitutionally provided number of Congressmen. People in Quezon City, for instance, may

balk at the specific apportionment of the 160 seats set forth in Resolution No. 1, and ask for a Congressman of their own, on the theory of equal representation. And then, people may question the propriety of permitting the increased 180 Congressmen from taking part in the forthcoming constitutional convention and future conventions for fear that they may dominate its proceedings. They may

entertain the belief that, if at all, increase in the number of Congressmen should be a proper topic for deliberation in a constitutional convention which, anyway, will soon take place. They probably would ask: Why the hurry? These ponderables require the people's close scrutiny.

2. With these as backdrop, we perforce go into the philosophy behind the constitutional directive that constitutional amendments be submitted to the people for their ratification.

A constitutional amendment is not a temporary expedient. Unlike a statute which may suffer amendments three or more times in the same year, it is intended to stand the test of time. It is an expression of the people's sovereign will.

And so, our approach to the problem of the mechanics of submission for ratification of amendments is that reasoning on the basis of the spirit of the Constitution is just as important as reasoning by a strict adherence to the phraseology thereof. We underscore this, because it is within the realm of possibility that a Constitution maybe overhauled. Supposing three-fourths of the Constitution is to be

amended. Or, the proposal is to eliminate the all important; Bill of Rights in its entirety. We believe it to be beyond debate that in some such situations the amendments ought to call for a constitutional convention rather than a legislative proposal. And yet, nothing there is in the books or in the Constitution itself. which would require such amendments to be adopted by a constitutional convention. And

then, too, the spirit of the supreme enactment, we are sure, forbids that proposals therefor be initiated by Congress and thereafter presented to the people for their ratification.

In the context just adverted to, we take the view that the words "submitted to the people for their ratification", if construed in the light of the nature of the Constitution — a fundamental charter that is legislation direct from the people, an — expression of their sovereign will — is that it can only be amended by the people expressing themselves according to the procedure ordained by the Constitution.

Therefore, amendments must be fairly laid before the people for their blessing or spurning. The people are not to be mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunity to mull over the original provisions compare them with the proposed amendments, and try to reach a conclusion as the dictates of their conscience suggest, free from the incubus of extraneous

or possibly in insidious influences. We believe, the word "submitted" can only mean that the government, within its maximum capabilities, should strain every effort to inform very citizen of the provisions to be amended, and the proposed amendments and the meaning, nature and effects thereof. By this, we are not to be understood as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be

reached, then there is no submission within the meaning of the word as intended by the framers of the Constitution. What the Constitution in effect directs is that the government, in submitting an amendment for ratification, should put every instrumentality or agency within its structural framework to enlighten the people, educate them with respect to their act of ratification or rejection. For, as we have

earlier stated, one thing is submission and another is ratification. There must be fair submission, intelligent, consent or rejection. If with all these safeguards the people still approve the amendment no matter how prejudicial it is to them, then so be it. For, the people decree their own fate.

Aptly had it been said:

. . . The great men who builded the structure of our state in this respect had the mental vision of a good Constitution voiced by Judge Cooley, who has said "A good Constitution should beyond the reach of temporary excitement and popular caprice or passion. It is needed for stability and steadiness; it must yield to the thought of the people; not to the whim of

the people, or the thought evolved the excitement or hot blood, but the sober second thought, which alone, if the government is to be safe, can be allowed efficiency. . . . Changes in government are to be feared unless the benefit is certain. As Montaign says: "All great mutations shake and disorder a state. Good does not necessarily succeed evil; another evil

may succeed and a worse." Am. Law Rev. 1889, p. 3113

3. Tersely put, the issue before us funnels down to this proposition: If the people are not sufficiently informed of the amendments to be voted upon, to conscientiously deliberate thereon, to express their will in a genuine manner can it be said that in accordance with the constitutional mandate, "the amendments are submitted to the people for their ratification?" Our answer is "No".

We examine Republic Act 4913, approved on June 17, 1967 — the statute that submits to the people the constitutional amendments proposed by Congress in Resolutions 1 and 3. Section 2 of the Act provides the manner of propagation of the nature of the amendments throughout the country. There are five parts in said Section 2, viz:

(1) The amendment shall be published in three consecutive issues of the Official Gazette at least twenty days prior to the election.

(2) A printed copy thereof shall be posted in a conspicuous place in every municipality, city and provincial office building and in every polling place not later than October fourteen, nineteen hundred and sixty-seven, and shall remain posted therein until after the election.

(3) At least five copies of the said amendments shall be kept in each polling place to be made available for examination by the qualified electors during election day.

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

(5) The Commission on Elections shall make available copies of said amendments in English, Spanish and, whenever practicable, in the principal native languages, for free distribution.

A question that comes to mind is whether the procedure for dissemination of information regarding the amendments effectively brings the matter to the people. A dissection of the mechanics yields disturbing thoughts. First, the Official Gazette is not widely read. It does not reach the barrios. And even if it reaches the barrios, is it available to all? And if it is, would all under stand English? Second, it

should be conceded that many citizens, especially those in the outlying barrios, do not go to municipal, city and/or provincial office buildings, except on special occasions like paying taxes or responding to court summonses. And if they do, will they notice the printed amendments posted on the bulletin board? And if they do notice, such copy again is in English (sample submitted to this Court by the

Solicitor General) for, anyway, the statute does not require that it be in any other language or dialect. Third, it would not help any if at least five copies are kept in the polling place for examination by qualified electors during election day. As petitioner puts it, voting time is not study time. And then, who can enter the polling place, except those who are about to vote? Fourth, copies in the principal native

languages shall be kept in each polling place. But this is not, as Section 2 itself implies, in the nature of a command because such copies shall be kept therein only "when practicable" and "as may be determined by the Commission on Elections." Even if it be said that these are available before election, a citizen may not intrude into the school building where the polling places are usually located

without disturbing the school classes being held there. Fifth, it is true that the Comelec is directed to make available copies of such amendments in English, Spanish or whenever practicable, in the principal native languages, for free distribution. However, Comelec is not required to actively distribute them to the people. This is significant as to people in the provinces, especially those in the far-flung

barrios who are completely unmindful of the discussions that go on now and then in the cities and centers of population on the merits and demerits of the amendments. Rather, Comelec, in this case, is but a passive agency which may hold copies available, but which copies may not be distributed at all. Finally, it is of common knowledge that Comelec has more than its hands full in these pre-election

days. They cannot possibly make extensive distribution.

Voters will soon go to the polls to say "yes" or "no". But even the official sample ballot submitted to this Court would show that only the amendments are printed at the back. And this, in pursuance to Republic Act 4913 itself.

Surely enough, the voters do not have the benefit of proper notice of the proposed amendments thru dissemination by publication in extenso. People do not have at hand the necessary data on which to base their stand on the merits and demerits of said amendments.

We, therefore, hold that there is no proper submission of the proposed constitutional amendments within the meaning and intendment of Section 1, Article XV of the Constitution.

4. Contemporary history is witness to the fact that during the present election campaign the focus is on the election of candidates. The constitutional amendments are crowded out. Candidates on the homestretch, and their leaders as well as the voters, gear their undivided efforts to the election of officials; the constitutional amendments cut no ice with them. The truth is that even in the ballot itself, the

space accorded to the casting of "yes" or "no" vote would give one the impression that the constitutional amendments are but a bootstrap to the electoral ballot. Worse still, the fortunes of many elective officials, on the national and local levels, are inextricably intertwined with the results of the votes on the plebiscite. In a clash between votes for a candidate and conscience on the merits and demerits of

the constitutional amendments, we are quite certain that it is the latter that will be dented.

5. That proper submission of amendments to the people to enable them to equally ratify them properly is the meat of the constitutional requirement, is reflected in the sequence of uniform past practices. The Constitution had been amended thrice — in 1939, 1940 and 1947. In each case, the amendments were embodied in resolutions adopted by the Legislature, which thereafter fixed the dates at

which the proposed amendments were to be ratified or rejected. These plebiscites have been referred to either as an "election" or "general election". At no time, however, was the vote for the amendments of the Constitution held simultaneously with the election officials, national or local. Even with regard to the 1947 parity amendment; the record shows that the sole issue was the 1947 parity

amendment; and the special elections simultaneously held in only three provinces, Iloilo, Pangasinan and Bukidnon, were merely incidental thereto.

In the end we say that the people are the last ramparts that guard against indiscriminate changes in the Constitution that is theirs. Is it too much to ask that reasonable guarantee be made that in the matter of the alterations of the law of the land, their true voice be heard? The answer perhaps is best expressed in the following thoughts: "It must be remembered that the Constitution is the people's

enactment. No proposed change can become effective unless they will it so through the compelling force of need of it and desire for it."4

For the reasons given, our vote is that Republic Act 4913 must be stricken down as in violation of the Constitution.

Zaldivar and Castro, JJ., concur.

Reyes, J.B.L., Dizon and Angeles, JJ., concur in the result.

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

I concur in the result with the opinion penned by Mr. Justice Sanchez. To approve a mere proposal to amend the Constitution requires (Art. XV) a three-fourths (3/4) vote of all the members of each legislative chamber, the highest majority ever demanded by the fundamental charter, one higher even than that required in order to declare war (Sec. 24, Article VI), with all its dire consequences. If such an

overwhelming majority, that was evidently exacted in order to impress upon all and sundry the seriousness of every constitutional amendment, is asked for a proposal to amend the Constitution, I find it impossible to believe that it was ever intended by its framers that such amendment should be submitted and ratified by just "a majority of the votes cast at an election at which the amendments are

submitted to the people for their ratification", if the concentration of the people's attention thereon to be diverted by other extraneous issues, such as the choice of local and national officials. The framers of the Constitution, aware of the fundamental character thereof, and of the need of giving it as much stability as is practicable, could have only meant that any amendments thereto should be debated,

considered and voted upon at an election wherein the people could devote undivided attention to the subject. That this was the intention and the spirit of the provision is corroborated in the case of all other constitutional amendments in the past, that were submitted to and approved in special elections exclusively devoted to the issue whether the legislature's amendatory proposals should be ratified or

not.

Dizon, Angeles, Zaldivar and Castro, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

 

G.R. No. 127325 March 19, 1997

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

SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL ANG KONSTITUSYON (DIK), MOVEMENT OF ATTORNEYS FOR BROTHERHOOD INTEGRITY AND NATIONALISM, INC. (MABINI), INTEGRATED BAR OF THE PHILIPPINES (IBP), and LABAN NG DEMOKRATIKONG PILIPINO (LABAN), petitioners-intervenors.

 

DAVIDE, JR., J.:

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

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

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

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

3. Instructing Municipal Election Registrars in all Regions of the Philippines, to assist Petitioners and volunteers, in establishing signing stations at the time and on the dates designated for the purpose.

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

The Delfin Petition further alleged that the provisions sought to be amended are Sections 4 and 7 of Article VI, 7 Section 4 of Article VII, 8 and Section 8 of Article X 9 of the Constitution. Attached to the petition is a copy of a "Petition for Initiative on the 1987 Constitution" 10 embodying the proposed amendments which consist in the deletion from the aforecited sections of the provisions concerning term limits, and with the following proposition:

DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE GOVERNMENT OFFICIALS, AMENDING FOR THE PURPOSE SECTIONS 4 AND 7 OF ARTICLE VI, SECTION 4 OF ARTICLE VII, AND SECTION 8 OF ARTICLE X OF THE 1987 PHILIPPINE CONSTITUTION?

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

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

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

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

On 18 December 1996, the petitioners herein — Senator Miriam Defensor Santiago, Alexander Padilla, and Maria Isabel Ongpin — filed this special civil action for prohibition raising the following arguments:

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

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

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

(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern "the conduct of initiative on the Constitution and initiative and referendum on national and local laws, is ultra vires insofar as initiative on amendments to the Constitution is concerned, since the COMELEC has no power to provide rules and regulations for the exercise of the right of initiative to amend the Constitution. Only Congress is authorized by the Constitution to pass the implementing law.

(5) The people's initiative is limited to amendments to the Constitution, not to revision thereof. Extending or lifting of term limits constitutes a revision and is, therefore, outside the power of the people's initiative.

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

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

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

On 2 January 1997, private respondents, through Atty Quadra, filed their Comment 15 on the petition. They argue therein that:

1. IT IS NOT TRUE THAT "IT WOULD ENTAIL EXPENSES TO THE NATIONAL TREASURY FOR GENERAL REGISTRATION OF VOTERS AMOUNTING TO AT LEAST PESOS: ONE HUNDRED EIGHTY MILLION (P180,000,000.00)" IF THE "COMELEC GRANTS THE PETITION FILED BY RESPONDENT DELFIN BEFORE THE COMELEC.

2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL GOVERNMENT IF THE COMELEC GRANTS THE PETITION OF RESPONDENT DELFIN. ALL EXPENSES IN THE SIGNATURE GATHERING ARE ALL FOR THE ACCOUNT OF RESPONDENT DELFIN AND HIS VOLUNTEERS PER THEIR PROGRAM OF ACTIVITIES AND EXPENDITURES SUBMITTED TO THE COMELEC. THE ESTIMATED COST OF THE DAILY PER DIEM OF THE SUPERVISING SCHOOL TEACHERS IN THE SIGNATURE GATHERING TO BE DEPOSITED and TO BE PAID BY DELFIN AND HIS VOLUNTEERS IS P2,571,200.00;

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

4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING LAW IMPLEMENTING THE POWER OF PEOPLE INITIATIVE TO PROPOSE AMENDMENTS TO THE CONSTITUTION. SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 IS A DUPLICATION OF WHAT ARE ALREADY PROVIDED FOR IN REP. ACT NO. 6735;

5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16, 1991 PURSUANT TO REP. ACT 6735 WAS UPHELD BY THE HONORABLE COURT IN THE RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416 WHERE THE HONORABLE COURT SAID: "THE COMMISSION ON ELECTIONS CAN DO NO LESS BY SEASONABLY AND JUDICIOUSLY PROMULGATING GUIDELINES AND RULES FOR BOTH NATIONAL AND LOCAL USE, IN IMPLEMENTING OF THESE LAWS."

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

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

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

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

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

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

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

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

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

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

(2) A separate subtitle on initiative on the Constitution is not necessary in R.A. No. 6735 because, being national in scope, that system of initiative is deemed included in the subtitle on National Initiative and Referendum; and Senator Tolentino simply overlooked pertinent provisions of the law when he claimed that nothing therein was provided for initiative on the Constitution.

(3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A. No. 6735 does not deal with initiative on the Constitution.

(4) Extension of term limits of elected officials constitutes a mere amendment to the Constitution, not a revision thereof.

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

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

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

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

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

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

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

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

On 20 January 1997, Senator Raul Roco filed his Petition inIntervention. 21 He avers that R.A. No. 6735 is the enabling law that implements the people's right to initiate constitutional amendments. This law is a consolidation of Senate Bill No. 17 and House Bill No. 21505; he co-authored the House Bill and even delivered a sponsorship speech thereon. He likewise submits that the COMELEC was empowered under Section 20 of that law to promulgate COMELEC Resolution No. 2300. Nevertheless, he contends that the respondent Commission is without jurisdiction to take cognizance of the Delfin Petition and to order its publication because the said petition is not the initiatory pleading contemplated under the Constitution, Republic Act No. 6735, and COMELEC Resolution No. 2300. What vests jurisdiction upon the COMELEC in an initiative on the Constitution is the filing of a petition for initiative which is signed by the required number of registered voters. He also submits that the proponents of a constitutional amendment cannot avail of the authority and resources of the COMELEC to assist them is securing the required number of signatures, as the COMELEC's role in an initiative on the Constitution is limited to the determination of the sufficiency of the initiative petition and the call and supervision of a plebiscite, if warranted.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Private respondents Alberto and Carmen Pedrosa filed their Consolidated Comments on the Petitions in Intervention of Senator Roco, DIK and MABINI, and IBP. 23 The parties thereafter filed, in due time, their separate memoranda. 24

As we stated in the beginning, we resolved to give due course to this special civil action.

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

I

THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY IN THE COMELEC OF THE DELFIN PETITION.

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

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

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

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

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

Sec. 2. Petition for prohibition. — Where the proceedings of any tribunal, corporation, board, or person, whether exercising functions judicial or ministerial, are without or in excess of its or his jurisdiction, or with grave abuse of discretion, and there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered commanding the defendant to desist from further proceedings in the action or matter specified therein.

It must also be noted that intervenor Roco claims that the COMELEC has no jurisdiction over the Delfin Petition because the said petition is not supported by the required minimum number of signatures of registered voters. LABAN also asserts that the COMELEC gravely abused its discretion in refusing to dismiss the Delfin Petition, which does not contain the required number of signatures. In light of these claims, the instant case may likewise be treated as a special civil action for certiorari under Section I of Rule 65 of the Rules of Court.

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

A party's standing before this Court is a procedural technicality which it may, in the exercise of its discretion, set aside in view of the importance of issues raised. In the landmark Emergency Powers Cases, this Court brushed aside this technicality because the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure.

II

R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF INITIATIVE ON AMENDMENTS TO THE CONSTITUTION, BUT IS, UNFORTUNATELY, INADEQUATE TO COVER THAT SYSTEM.

Section 2 of Article XVII of the Constitution provides:

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.

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

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

Without implementing legislation Section 2 cannot operate. Thus, although this mode of amending the Constitution is a mode of amendment which bypasses congressional action, in the last analysis it still is dependent on congressional action.

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

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

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

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

(b) by a constitutional convention; or

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

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

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

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

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

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

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

First, on Section 1 on the matter of initiative upon petition of at least 10 percent, there are no details in the provision on how to carry this out. Do we understand, therefore, that we are leaving this matter to the legislature?

MR. SUAREZ. That is right, Madam President.

FR. BERNAS. And do we also understand, therefore, that for as long as the legislature does not pass the necessary implementing law on this, this will not operate?

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

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

MR. SUAREZ. No, it does not exclude that possibility because even the legislature itself as a body could propose that amendment, maybe individually or collectively, if it fails to muster the three-fourths vote in order to constitute itself as a constituent assembly and submit that proposal to the people for ratification through the process of an initiative.

xxx xxx xxx

MS. AQUINO. Do I understand from the sponsor that the intention in the proposal is to vest constituent power in the people to amend the Constitution?

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

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

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

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

MR. SUAREZ. That proposition is nondebatable.

MS. AQUINO. Such that in order to underscore the primacy of constituent power we have a separate article in the constitution that would specifically cover the process and the modes of amending the Constitution?

MR. SUAREZ. That is right, Madam President.

MS. AQUINO. Therefore, is the sponsor inclined, as the provisions are drafted now, to again concede to the legislature the process or the requirement of determining the mechanics of amending the Constitution by people's initiative?

MR. SUAREZ. The matter of implementing this could very well be placed in the hands of the National Assembly, not unless we can incorporate into this provision the mechanics that would adequately cover all the conceivable situations. 33

It was made clear during the interpellations that the aforementioned Section 2 is limited to proposals to AMEND — not to REVISE — the Constitution; thus:

MR. SUAREZ. . . . This proposal was suggested on the theory that this matter of initiative, which came about because of the extraordinary developments this year, has to be separated from the traditional modes of amending the Constitution as embodied in Section 1. The committee members felt that this system of initiative should not extend to the revision of the entire Constitution, so we removed it from the operation of Section 1 of the proposed Article on Amendment or Revision. 34

xxx xxx xxx

MS. AQUINO. In which case, I am seriously bothered by providing this process of initiative as a separate section in the Article on Amendment. Would the sponsor be amenable to accepting an amendment in terms of realigning Section 2 as another subparagraph (c) of Section 1, instead of setting it up as another separate section as if it were a self-executing provision?

MR. SUAREZ. We would be amenable except that, as we clarified a while ago, this process of initiative is limited to the matter of amendment and should not expand into a revision which contemplates a total overhaul of the Constitution. That was the sense that was conveyed by the Committee.

MS. AQUINO. In other words, the Committee was attempting to distinguish the coverage of modes (a) and (b) in Section 1 to include the process of revision; whereas the process of initiation to amend, which is given to the public, would only apply to amendments?

MR. SUAREZ. That is right. Those were the terms envisioned in the Committee. 35

Amendments to the proposed Section 2 were thereafter introduced by then Commissioner Hilario G. Davide, Jr., which the Committee accepted. Thus:

MR. DAVIDE. Thank you Madam President. I propose to substitute the entire Section 2 with the following:

MR. DAVIDE. Madam President, I have modified the proposed amendment after taking into account the modifications submitted by the sponsor himself and the honorable Commissioners Guingona, Monsod, Rama, Ople, de los Reyes and Romulo. The modified amendment in substitution of the proposed Section 2 will now read as follows: "SECTION 2. — AMENDMENTS TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER Of REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST THREE PERCENT OF THE REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.

MR. SUAREZ. Madam President, considering that the proposed amendment is reflective of the sense contained in Section 2 of our completed Committee Report No. 7, we accept the proposed amendment. 36

The interpellations which ensued on the proposed modified amendment to Section 2 clearly showed that it was a legislative act which must implement the exercise of the right. Thus:

MR. ROMULO. Under Commissioner Davide's amendment, is it possible for the legislature to set forth certain procedures to carry out the initiative. . .?

MR. DAVIDE. It can.

xxx xxx xxx

MR. ROMULO. But the Commissioner's amendment does not prevent the legislature from asking another body to set the proposition in proper form.

MR. DAVIDE. The Commissioner is correct. In other words, the implementation of this particular right would be subject to legislation, provided the legislature cannot determine anymore the percentage of the requirement.

MR. ROMULO. But the procedures, including the determination of the proper form for submission to the people, may be subject to legislation.

MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other words, none of the procedures to be proposed by the legislative body must diminish or impair the right conceded here.

MR. ROMULO. In that provision of the Constitution can the procedures which I have discussed be legislated?

MR. DAVIDE. Yes. 37

Commissioner Davide also reaffirmed that his modified amendment strictly confines initiative to AMENDMENTS to — NOT REVISION of — the Constitution. Thus:

MR. DAVIDE. With pleasure, Madam President.

MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment on line 1 refers to "amendment." Does it not cover the word "revision" as defined by Commissioner Padilla when he made the distinction between the words "amendments" and "revision"?

MR. DAVIDE. No, it does not, because "amendments" and "revision" should be covered by Section 1. So insofar as initiative is concerned, it can only relate to "amendments" not "revision." 38

Commissioner Davide further emphasized that the process of proposing amendments through initiative must be more rigorous and difficult than the initiative on legislation. Thus:

MR. DAVIDE. A distinction has to be made that under this proposal, what is involved is an amendment to the Constitution. To amend a Constitution would ordinarily require a proposal by the National Assembly by a vote of three-fourths; and to call a constitutional convention would require a higher number. Moreover, just to submit the issue of calling a constitutional convention, a majority of the National Assembly is required, the import being that the process of amendment must be made more rigorous and difficult than probably initiating an ordinary legislation or putting an end to a law proposed by the National Assembly by way of a referendum. I cannot agree to reducing the requirement approved by the Committee on the Legislative because it would require another voting by the Committee, and the voting as precisely based on a requirement of 10 percent. Perhaps, I might present such a proposal, by way of an amendment, when the Commission shall take up the Article on the Legislative or on the National Assembly on plenary sessions. 39

The Davide modified amendments to Section 2 were subjected to amendments, and the final version, which the Commission approved by a vote of 31 in favor and 3 against, reads as follows:

MR. DAVIDE. Thank you Madam President. Section 2, as amended, reads as follows: "AMENDMENT TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST THREE PERCENT OF THE REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDEFOR THE IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT. 40

The entire proposed Article on Amendments or Revisions was approved on second reading on 9 July 1986. 41 Thereafter, upon his motion for reconsideration, Commissioner Gascon was allowed to introduce an amendment to Section 2 which, nevertheless, was withdrawn. In view thereof, the Article was again approved on Second and Third Readings on 1 August 1986. 42

However, the Committee on Style recommended that the approved Section 2 be amended by changing "percent" to "per centum" and "thereof" to "therein" and deleting the phrase "by law" in the second paragraph so that said paragraph reads: The Congress 43 shall provide for the implementation of the exercise of this right. 44 This amendment was approved and is the text of the present second paragraph of Section 2.

The conclusion then is inevitable that, indeed, the system of initiative on the Constitution under Section 2 of Article XVII of the Constitution is not self-executory.

Has Congress "provided" for the implementation of the exercise of this right? Those who answer the question in the affirmative, like the private respondents and intervenor Senator Roco, point to us R.A. No. 6735.

There is, of course, no other better way for Congress to implement the exercise of the right than through the passage of a statute or legislative act. This is the essence or rationale of the last minute amendment by the Constitutional Commission to substitute the last paragraph of Section 2 of Article XVII then reading:

The Congress 45 shall by law provide for the implementation of the exercise of this right.

with

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

This substitute amendment was an investiture on Congress of a power to provide for the rules implementing the exercise of the right. The "rules" means "the details on how [the right] is to be carried out." 46

We agree that R.A. No. 6735 was, as its history reveals, intended to cover initiative to propose amendments to the Constitution. The Act is a consolidation of House Bill No. 21505 and Senate Bill No. 17. The former was prepared by the Committee on Suffrage and Electoral Reforms of the House of Representatives on the basis of two House Bills referred to it, viz., (a) House Bill No. 497, 47 which dealt with the initiative and referendum mentionedin Sections 1 and 32 of Article VI of the Constitution; and (b) House Bill No. 988, 48 which dealt with the subject matter of House Bill No. 497, as well as with initiative and referendum under Section 3 of Article X (Local Government) and initiative provided for in Section 2 of Article XVII of the Constitution. Senate Bill No. 17 49 solely dealt with initiative and referendum concerning ordinances or resolutions of local government units. The Bicameral Conference Committee consolidated Senate Bill No. 17 and House Bill No. 21505 into a draft bill, which was subsequently approved on 8 June 1989 by the Senate 50 and by the House of Representatives. 51 This approved bill is now R.A. No. 6735.

But is R.A. No. 6735 a full compliance with the power and duty of Congress to "provide for the implementation of the exercise of the right?"

A careful scrutiny of the Act yields a negative answer.

First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act does not suggest an initiative on amendments to the Constitution. The said section reads:

Sec. 2. Statement and Policy. — The power of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed. (Emphasis supplied).

The inclusion of the word "Constitution" therein was a delayed afterthought. That word is neither germane nor relevant to said section, which exclusively relates to initiative and referendum on national laws and local laws, ordinances, and resolutions. That section is silent as to amendments on the Constitution. As pointed out earlier, initiative on the Constitution is confined only to proposals to AMEND. The people are not accorded the power to "directly propose, enact, approve, or reject, in whole or in part, the Constitution" through the system of initiative. They can only do so with respect to "laws, ordinances, or resolutions."

The foregoing conclusion is further buttressed by the fact that this section was lifted from Section 1 of Senate Bill No. 17, which solely referred to a statement of policy on local initiative and referendum and appropriately used the phrases "propose and enact," "approve or reject" and "in whole or in part." 52

Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative on amendments to the Constitution and mentions it as one of the three systems of initiative, and that Section 5 (Requirements) restates the constitutional requirements as to the percentage of the registered voters who must submit the proposal. But unlike in the case of the other systems of initiative, the Act does not provide for the contents of a petition for initiative on the Constitution. Section 5, paragraph (c) requires, among other things, statement of the proposed law sought to be enacted, approved or rejected, amended or repealed, as the case may be. It does not include, as among the contents of the petition, the provisions of the Constitution sought to be amended, in the case of initiative on the Constitution. Said paragraph (c) reads in full as follows:

(c) The petition shall state the following:

c.1 contents or text of the proposed law sought to be enacted, approved or rejected, amended or repealed, as the case may be;

c.2 the proposition;

c.3 the reason or reasons therefor;

c.4 that it is not one of the exceptions provided therein;

c.5 signatures of the petitioners or registered voters; and

c.6 an abstract or summary proposition is not more than one hundred (100) words which shall be legibly written or printed at the top of every page of the petition. (Emphasis supplied).

The use of the clause "proposed laws sought to be enacted, approved or rejected, amended or repealed" only strengthens the conclusion that Section 2, quoted earlier, excludes initiative on amendments to the Constitution.

Third. While the Act provides subtitles for National Initiative and Referendum (Subtitle II) and for Local Initiative and Referendum (Subtitle III), no subtitle is provided for initiative on the Constitution. This conspicuous silence as to the latter simply means that the main thrust of the Act is initiative and referendum on national and local laws. If Congress intended R.A. No. 6735 to fully provide for the implementation of the initiative on amendments to the Constitution, it could have provided for a subtitle therefor, considering that in the order of things, the primacy of interest, or hierarchy of values, the right of the people to directly propose amendments to the Constitution is far more important than the initiative on national and local laws.

We cannot accept the argument that the initiative on amendments to the Constitution is subsumed under the subtitle on National Initiative and Referendum because it is national in scope. Our reading of Subtitle II (National Initiative and Referendum) and Subtitle III (Local Initiative and Referendum) leaves no room for doubt that the classification is not based on the scope of the initiative involved, but on its nature and character. It is "national initiative," if what is proposed to be adopted or enacted is a national law, or a law which only Congress can pass. It is "local initiative" if what is proposed to be adopted or enacted is a law, ordinance, or resolution which only the legislative bodies of the governments of the autonomous regions, provinces, cities, municipalities, and barangays can pass. This classification of initiative into national and local is actually based on Section 3 of the Act, which we quote for emphasis and clearer understanding:

Sec. 3. Definition of terms —

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There are three (3) systems of initiative, namely:

a.1 Initiative on the Constitution which refers to a petition proposing amendments to the Constitution;

a.2 Initiative on Statutes which refers to a petition proposing to enact a national legislation; and

a.3 Initiative on local legislation which refers to a petition proposing to enact a regional, provincial, city, municipal, or barangay law, resolution or ordinance. (Emphasis supplied).

Hence, to complete the classification under subtitles there should have been a subtitle on initiative on amendments to the Constitution. 53

A further examination of the Act even reveals that the subtitling is not accurate. Provisions not germane to the subtitle on National Initiative and Referendum are placed therein, like (1) paragraphs (b) and (c) of Section 9, which reads:

(b) The proposition in an initiative on the Constitution approved by the majority of the votes cast in the plebiscite shall become effective as to the day of the plebiscite.

(c) A national or local initiative proposition approved by majority of the votes cast in an election called for the purpose shall become effective fifteen (15) days after certification and proclamation of the Commission. (Emphasis supplied).

(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative with the legislative bodies of local governments; thus:

Sec. 11. Indirect Initiative. — Any duly accredited people's organization, as defined by law, may file a petition for indirect initiative with the House of Representatives, and other legislative bodies. . . .

and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the findings of sufficiency or insufficiency of the petition for initiative or referendum, which could be petitions for both national and local initiative and referendum.

Upon the other hand, Section 18 on "Authority of Courts" under subtitle III on Local Initiative and Referendum is misplaced, 54 since the provision therein applies to both national and local initiative and referendum. It reads:

Sec. 18. Authority of Courts. — Nothing in this Act shall prevent or preclude the proper courts from declaring null and void any proposition approved pursuant to this Act for violation of the Constitution or want of capacity of the local legislative body to enact the said measure.

Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing for the details in the implementation of initiative and referendum on national and local legislation thereby giving them special attention, it failed, rather intentionally, to do so on the system of initiative on amendments to the Constitution. Anent the initiative on national legislation, the Act provides for the following:

(a) The required percentage of registered voters to sign the petition and the contents of the petition;

(b) The conduct and date of the initiative;

(c) The submission to the electorate of the proposition and the required number of votes for its approval;

(d) The certification by the COMELEC of the approval of the proposition;

(e) The publication of the approved proposition in the Official Gazette or in a newspaper of general circulation in the Philippines; and

(f) The effects of the approval or rejection of the proposition. 55

As regards local initiative, the Act provides for the following:

(a) The preliminary requirement as to the number of signatures of registered voters for the petition;

(b) The submission of the petition to the local legislative body concerned;

(c) The effect of the legislative body's failure to favorably act thereon, and the invocation of the power of initiative as a consequence thereof;

(d) The formulation of the proposition;

(e) The period within which to gather the signatures;

(f) The persons before whom the petition shall be signed;

(g) The issuance of a certification by the COMELEC through its official in the local government unit concerned as to whether the required number of signatures have been obtained;

(h) The setting of a date by the COMELEC for the submission of the proposition to the registered voters for their approval, which must be within the period specified therein;

(i) The issuance of a certification of the result;

(j) The date of effectivity of the approved proposition;

(k) The limitations on local initiative; and

(l) The limitations upon local legislative bodies. 56

Upon the other hand, as to initiative on amendments to the Constitution, R.A. No. 6735, in all of its twenty-three sections, merely (a) mentions, the word "Constitution" in Section 2; (b) defines "initiative on the Constitution" and includes it in the enumeration of the three systems of initiative in Section 3; (c) speaks of "plebiscite" as the process by which the proposition in an initiative on the Constitution may be approved or rejected by the people; (d) reiterates the constitutional requirements as to the number of voters who should sign the petition; and (e) provides for the date of effectivity of the approved proposition.

There was, therefore, an obvious downgrading of the more important or the paramount system of initiative. RA. No. 6735 thus delivered a humiliating blow to the system of initiative on amendments to the Constitution by merely paying it a reluctant lip service. 57

The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. Its lacunae on this substantive matter are fatal and cannot be cured by "empowering" the COMELEC "to promulgate such rules and regulations as may be necessary to carry out the purposes of [the] Act. 58

The rule is that what has been delegated, cannot be delegated or as expressed in a Latin maxim: potestas delegata non delegari potest. 59 The recognized exceptions to the rule are as follows:

(1) Delegation of tariff powers to the President under Section 28(2) of Article VI of the Constitution;

(2) Delegation of emergency powers to the President under Section 23(2) of Article VI of the Constitution;

(3) Delegation to the people at large;

(4) Delegation to local governments; and

(5) Delegation to administrative bodies. 60

Empowering the COMELEC, an administrative body exercising quasi-judicial functions, to promulgate rules and regulations is a form of delegation of legislative authority under no. 5 above. However, in every case of permissible delegation, there must be a showing that the delegation itself is valid. It is valid only if the law (a) is complete in itself, setting forth therein the policy to be executed, carried out, or implemented by the delegate; and (b) fixes a standard — the limits of which are sufficiently determinate and determinable — to which the delegate must conform in the performance of his functions. 61 A sufficient standard is one which defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative command is to be effected. 62

Insofar as initiative to propose amendments to the Constitution is concerned, R.A. No. 6735 miserably failed to satisfy both requirements in subordinate legislation. The delegation of the power to the COMELEC is then invalid.

III

COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND REGULATIONS ON THE CONDUCT OF INITIATIVE ON AMENDMENTS TO THE CONSTITUTION, IS VOID.

It logically follows that the COMELEC cannot validly promulgate rules and regulations to implement the exercise of the right of the people to directly propose amendments to the Constitution through the system of initiative. It does not have that power under R.A. No. 6735. Reliance on the COMELEC's power under Section 2(1) of Article IX-C of the Constitution is misplaced, for the laws and regulations referred to therein are those promulgated by the COMELEC under (a) Section 3 of Article IX-C of the Constitution, or (b) a law where subordinate legislation is authorized and which satisfies the "completeness" and the "sufficient standard" tests.

IV

COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN ENTERTAINING THE DELFIN PETITION.

Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the power of Congress to implement the right to initiate constitutional amendments, or that it has validly vested upon the COMELEC the power of subordinate legislation and that COMELEC Resolution No. 2300 is valid, the COMELEC acted without jurisdiction or with grave abuse of discretion in entertaining the Delfin Petition.

Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No. 6735, a petition for initiative on the Constitution must be signed by at least 12% of the total number of registered voters of which every legislative district is represented by at least 3% of the registered voters therein. The Delfin Petition does not contain signatures of the required number of voters. Delfin himself admits that he has not yet gathered signatures and that the purpose of his petition is primarily to obtain assistance in his drive to gather signatures. Without the required signatures, the petition cannot be deemed validly initiated.

The COMELEC acquires jurisdiction over a petition for initiative only after its filing. The petition then is the initiatory pleading. Nothing before its filing is cognizable by the COMELEC, sitting en banc. The only participation of the COMELEC or its personnel before the filing of such petition are (1) to prescribe the form of the petition; 63 (2) to issue through its Election Records and Statistics Office a certificate on the total number of registered voters in each legislative district; 64 (3) to assist, through its election registrars, in the establishment of signature stations; 65 and (4) to verify, through its election registrars, the signatures on the basis of the registry list of voters, voters' affidavits, and voters' identification cards used in the immediately preceding election. 66

Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and COMELEC Resolution No. 2300, it cannot be entertained or given cognizance of by the COMELEC. The respondent Commission must have known that the petition does not fall under any of the actions or proceedings under the COMELEC Rules of Procedure or under Resolution No. 2300, for which reason it did not assign to the petition a docket number. Hence, the said petition was merely entered as UND, meaning, undocketed. That petition was nothing more than a mere scrap of paper, which should not have been dignified by the Order of 6 December 1996, the hearing on 12 December 1996, and the order directing Delfin and the oppositors to file their memoranda or oppositions. In so dignifying it, the COMELEC acted without jurisdiction or with grave abuse of discretion and merely wasted its time, energy, and resources.

The foregoing considered, further discussion on the issue of whether the proposal to lift the term limits of elective national and local officials is an amendment to, and not a revision of, the Constitution is rendered unnecessary, if not academic.

CONCLUSION

This petition must then be granted, and the COMELEC should be permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system.

We feel, however, that the system of initiative to propose amendments to the Constitution should no longer be kept in the cold; it should be given flesh and blood, energy and strength. Congress should not tarry any longer in complying with the constitutional mandate to provide for the implementation of the right of the people under that system.

WHEREFORE, judgment is hereby rendered

a) GRANTING the instant petition;

b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to the Constitution, and to have failed to provide sufficient standard for subordinate legislation;

c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections prescribing rules and regulations on the conduct of initiative or amendments to the Constitution; and

d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-037).

The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the Commission on Elections, but is LIFTED as against private respondents.

Resolution on the matter of contempt is hereby reserved.

SO ORDERED.

Narvasa, C.J., Regalado, Romero, Bellosillo, Kapunan, Hermosisima, Jr. and Torres, Jr., JJ., concur.

Padilla, J., took no part.

 

 

 

Separate Opinions

 

PUNO, J., concurring and dissenting:

I join the ground-breaking ponencia of our esteemed colleague, Mr. Justice Davide insofar as it orders the COMELEC to dismiss the Delfin petition. I regret, however, I cannot share the view that R.A. No. 5735 and COMELEC Resolution No. 2300 are legally defective and cannot implement the people's initiative to amend the Constitution. I likewise submit that the petition with respect to the Pedrosas has no leg to stand on and should be dismissed. With due respect:

I

First, I submit that R.A. No. 6735 sufficiently implements the right of the people to initiate amendments to the Constitution thru initiative. Our effort to discover the meaning of R.A. No. 6735 should start with the search of the intent of our lawmakers. A knowledge of this intent is critical for the intent of the legislature is the law and the controlling factor in its interpretation. 1 Stated otherwise, intent is the essence of the law, the spirit which gives life to its enactment. 2

Significantly, the majority decision concedes that ". . . R.A. No. 6735 was intended to cover initiative to propose amendments to the Constitution." It ought to be so for this intent is crystal clear from the history of the law which was a consolidation of House Bill No. 21505 3 and Senate Bill No. 17. 4 Senate Bill No. 17 was entitled "An Act Providing for a System of Initiative and Referendum and the Exception Therefrom, Whereby People in Local Government Units Can Directly Propose and Enact Resolutions and Ordinances or Approve or Reject any Ordinance or Resolution Passed by the Local Legislative Body." Beyond doubt, Senate Bill No. 17 did not include people's initiative to propose amendments to the Constitution. In checkered contrast, House Bill No. 21505 5 expressly included people's initiative to amend the Constitution. Congressman (now Senator) Raul Roco emphasized in his sponsorship remarks: 6

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SPONSORSHIP REMARKS OF MR. ROCO

At the outset, Mr. Roco provided the following backgrounder on the constitutional basis of the proposed measure.

1. As cited in Vera vs. Avelino (1946), the presidential system which was introduced by the 1935 Constitution saw the application of the principle of separation of powers.

2. While under the parliamentary system of the 1973 Constitution the principle remained applicable, the 1981 amendments to the Constitution of 1973 ensured presidential dominance over the Batasang Pambansa.

Constitutional history then saw the shifting and sharing of legislative powers between the Legislature and the Executive departments. Transcending changes in the exercise of legislative power is the declaration in the Philippine Constitution that the Philippines is a republican state where sovereignty resides in the people and all sovereignty emanates from them.

3. Under the 1987 Constitution, the lawmaking power is still preserved in Congress; however, to institutionalize direct action of the people as exemplified in the 1986 Revolution, the Constitution recognizes the power of the people, through the system of initiative and referendum.

As cited in Section 1, Article VI of the 1987 Constitution, Congress does not have plenary powers since reserve powers are given to the people expressly. Section 32 of the same Article mandates Congress to pass at the soonest possible time, a bill on referendum and initiative, and to share its legislative powers with the people.

Section 2, Article XVII of the 1987 Constitution, on the other hand, vests in the people the power to directly propose amendments to the Constitution through initiative, upon petition of at least 12 percent of the total number of registered voters.

Stating that House Bill No. 21505 is the Committee's response to the duty imposed on Congress to implement the exercise by the people of the right to initiative and referendum, Mr. Roco recalled the beginnings of the system of initiative and referendum under Philippine Law. He cited Section 99 of the Local Government Code which vests in the barangay assembly the power to initiate legislative processes, decide the holding of plebiscite and hear reports of the Sangguniang Barangay, all of which are variations of the power of initiative and referendum. He added that the holding of barangay plebiscites and referendum are likewise provided in Sections 100 and 101 of the same Code.

Thereupon, for the sake of brevity, Mr. Roco moved that pertinent quotation on the subject which he will later submit to the Secretary of the House be incorporated as part of his sponsorship speech.

He then cited examples of initiative and referendum similar to those contained in the instant Bill among which are the constitutions of states in the United States which recognize the right of registered voters to initiate the enactment of any statute or to project any existing law or parts thereof in a referendum. These states, he said, are Alaska, Alabama, Montana, Massachusets, Dakota, Oklahoma, Oregon, and practically all other states.

Mr. Roco explained that in certain American states, the kind of laws to which initiative and referendum apply is also without limitation, except for emergency measures, which are likewise incorporated in House Bill No. 21505. He added that the procedure provided by the Bill from the filing of the petition, the requirements of a certain percentage of supporters to present a proposition, to the submission to electors are substantially similar to the provisions in American laws. Although an infant in Philippine political structure, the system of initiative and referendum, he said, is a tried and tested system in other jurisdictions, and the Bill is patterned after American experience.

He further explained that the bill has only 12 sections, and recalled that the Constitutional Commissioners saw the system of the initiative and referendum as an instrument which can be used should the legislature show itself to be indifferent to the needs of the people. This is the reason, he claimed, why now is an opportune time to pass the Bill even as he noted the felt necessity of the times to pass laws which are necessary to safeguard individual rights and liberties.

At this juncture Mr. Roco explained the process of initiative and referendum as advocated in House Bill No. 21505. He stated that:

1. Initiative means that the people, on their own political judgment, submit a Bill for the consideration of the general electorate.

2. The instant Bill provides three kinds of initiative, namely; the initiative to amend the Constitution once every five years; the initiative to amend statutes approved by Congress; and the initiative to amend local ordinances.

3. The instant Bill gives a definite procedure and allows the Commission on Elections (COMELEC) to define rules and regulations on the power of initiative.

4. Referendum means that the legislators seek the consent of the people on measures that they have approved.

5. Under Section 4 of the Bill the people can initiate a referendum which is a mode of plebiscite by presenting a petition therefor, but under certain limitations, such as the signing of said petition by at least 10 percent of the total of registered voters at which every legislative district is represented by at least three percent of the registered voters thereof. Within 30 days after receipt of the petition, the COMELEC shall determine the sufficiency of the petition, publish the same, and set the date of the referendum within 45 to 90-day period.

6. When the matter under referendum or initiative is approved by the required number of votes, it shall become effective 15 days following the completion of its publication in the Official Gazette.

In concluding his sponsorship remarks, Mr. Roco stressed that the Members cannot ignore the people's call for initiative and referendum and urged the Body to approve House Bill No. 21505.

At this juncture, Mr. Roco also requested that the prepared text of his speech together with the footnotes be reproduced as part of the Congressional Records.

The same sentiment as to the bill's intent to implement people's initiative to amend the Constitution was stressed by then Congressman (now Secretary of Agriculture) Salvador Escudero III in his sponsorship remarks, viz: 7

xxx xxx xxx

SPONSORSHIP REMARKS OF MR. ESCUDERO

Mr. Escudero first pointed out that the people have been clamoring for a truly popular democracy ever since, especially in the so-called parliament of the streets. A substantial segment of the population feels, he said, that the form of democracy is there, but not the reality or substance of it because of the increasingly elitist approach of their representatives to the country's problem.

Whereupon, Mr. Escudero pointed out that the Constitution has provided a means whereby the people can exercise the reserved power of initiative to propose amendments to the Constitution, and requested that Sections 1 and 32, Article VI; Section 3, Article X; and Section 2, Article XVII of the Constitution be made part of his sponsorship remarks.

Mr. Escudero also stressed that an implementing law is needed for the aforecited Constitutional provisions. While the enactment of the Bill will give way to strong competition among cause-oriented and sectoral groups, he continued, it will hasten the politization of the citizenry, aid the government in forming an enlightened public opinion, and produce more responsive legislation. The passage of the Bill will also give street parliamentarians the opportunity to articulate their ideas in a democratic forum, he added.

Mr. Escudero stated that he and Mr. Roco hoped for the early approval of the Bill so that it can be initially used for the Agrarian Reform Law. He said that the passage of House Bill No. 21505 will show that the Members can set aside their personal and political consideration for the greater good of the people.

The disagreeing provisions in Senate Bill No. 17 and House Bill No. 21505 were threshed out in a Bicameral Conference Committee. 8 In the meeting of the Committee on June 6, 1989, 9 the members agreed that the two (2) bills should be consolidated and that the consolidated version should include people's initiative to amend the Constitution as contemplated by House Bill No. 21505. The transcript of the meeting states:

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

HON. ROCO. Yes, we shall consolidate.

CHAIRMAN GONZALES. Consolidation of the Senate and House Bill No. so and so. 10

When the consolidated bill was presented to the House for approval, then Congressman Roco upon interpellation by Congressman Rodolfo Albano, again confirmed that it covered people's initiative to amend the Constitution. The record of the House Representative states: 11

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THE SPEAKER PRO TEMPORE. The Gentleman from Camarines Sur is recognized.

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

I move that we approve the consolidated bill.

MR. ALBANO. Mr. Speaker.

THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader?

MR. ALBANO. Will the distinguished sponsor answer just a few questions?

THE SPEAKER PRO TEMPORE. The Gentlemen will please proceed.

MR. ALBANO. I heard the sponsor say that the only difference in the two bills was that in the Senate version there was a provision for local initiative and referendum, whereas the House version has none.

MR. ROCO. In fact, the Senate version provide purely for local initiative and referendum, whereas in the House version, we provided purely for national and constitutional legislation.

MR. ALBANO. Is it our understanding therefore, that the two provisions were incorporated?

MR. ROCO. Yes, Mr. Speaker.

MR. ALBANO. So that we will now have a complete initiative and referendum both in the constitutional amendment and national legislation.

MR. ROCO. That is correct.

MR. ALBANO. And provincial as well as municipal resolutions?

MR. ROCO. Down to barangay, Mr. Speaker.

MR. ALBANO. And this initiative and referendum is in consonance with the provision of the Constitution whereby it mandates this Congress to enact the enabling law, so that we shall have a system which can be done every five years. Is it five years in the provision of the Constitution?

MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments in the 1987 Constitution, it is every five years.

MR. ALBANO. For every five years, Mr. Speaker?

MR. ROCO. Within five years, we cannot have multiple initiatives and referenda.

MR. ALBANO. Therefore, basically, there was no substantial difference between the two versions?

MR. ROCO. The gaps in our bill were filled by the Senate which, as I said earlier, ironically was about local, provincial and municipal legislation.

MR. ALBANO. And the two bills were consolidated?

MR. ROCO. Yes, Mr. Speaker.

MR. ALBANO. Thank you, Mr. Speaker.

APPROVAL OF C.C.R.ON S.B. NO. 17 AND H.B. NO. 21505(The Initiative and Referendum Act)

THE SPEAKER PRO TEMPORE. There was a motion to approve this consolidated bill on Senate Bill No. 17 and House Bill No. 21505.

Is there any objection? (Silence. The Chair hears none; the motion is approved.

Since it is crystalline that the intent of R.A. No. 6735 is to implement the people's initiative to amend the Constitution, it is our bounden duty to interpret the law as it was intended by the legislature. We have ruled that once intent is ascertained, it must be enforced even if it may not be consistent with the strict letter of the law and this ruling is as old as the mountain. We have also held that where a law is susceptible of more than one interpretation, that interpretation which will most tend to effectuate the manifest intent of the legislature will be adopted. 12

The text of R.A. No. 6735 should therefore be reasonably construed to effectuate its intent to implement the people's initiative to amend the Constitution. To be sure, we need not torture the text of said law to reach the conclusion that it implements people's initiative to amend the Constitution. R.A. No. 6735 is replete with references to this prerogative of the people.

First, the policy statement declares:

Sec. 2. Statement of Policy. — The power of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed. (emphasis supplied)

Second, the law defines "initiative" as "the power of the people to propose amendments to the constitution or to propose and enact legislations through an election called for the purpose," and "plebiscite" as "the electoral process by which an initiative on the Constitution is approved or rejected by the people.

Third, the law provides the requirements for a petition for initiative to amend the Constitution. Section 5(b) states that "(a) petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein." It also states that "(i)nitiative on the Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five (5) years thereafter.

Finally, R.A. No. 6735 fixes the effectivity date of the amendment. Section 9(b) states that "(t)he proposition in an initiative on the Constitution approved by a majority of the votes cast in the plebiscite shall become effective as to the day of the plebiscite.

It is unfortunate that the majority decision resorts to a strained interpretation of R.A. No. 6735 to defeat its intent which it itself concedes is to implement people's initiative to propose amendments to the Constitution. Thus, it laments that the word "Constitution" is neither germane nor relevant to the policy thrust of section 2 and that the statute's subtitling is not accurate. These lapses are to be expected for laws are not always written in impeccable English. Rightly, the Constitution does not require our legislators to be word-smiths with the ability to write bills with poetic commas like Jose Garcia Villa or in lyrical prose like Winston Churchill. But it has always been our good policy not to refuse to effectuate the intent of a law on the ground that it is badly written. As the distinguished Vicente Francisco 13 reminds us: "Many laws contain words which have not been used accurately. But the use of inapt or inaccurate language or words, will not vitiate the statute if the legislative intention can be ascertained. The same is equally true with reference to awkward, slovenly, or ungrammatical expressions, that is, such expressions and words will be construed as carrying the meaning the legislature intended that they bear, although such a construction necessitates a departure from the literal meaning of the words used.

In the same vein, the argument that R.A. No. 7535 does not include people's initiative to amend the Constitution simply because it lacks a sub-title on the subject should be given the weight of helium. Again, the hoary rule in statutory construction is that headings prefixed to titles, chapters and sections of a statute may be consulted in aid of interpretation, but inferences drawn therefrom are entitled to very little weight, and they can never control the plain terms of the enacting clauses. 14

All said, it is difficult to agree with the majority decision that refuses to enforce the manifest intent or spirit of R.A. No. 6735 to implement the people's initiative to amend the Constitution. It blatantly disregards the rule cast in concrete that the letter of the law must yield to its spirit for the letter of the law is its body but its spirit is its soul. 15

II

COMELEC Resolution No. 2300, 16 promulgated under the stewardship of Commissioner Haydee Yorac, then its Acting Chairman, spelled out the procedure on how to exercise the people's initiative to amend the Constitution. This is in accord with the delegated power granted by section 20 of R.A. No. 6735 to the COMELEC which expressly states: "The Commission is hereby empowered to promulgate such rules and regulations as may be necessary to carry out the purposes of this Act." By no means can this delegation of power be assailed as infirmed. In the benchmark case of Pelaez v. Auditor General, 17 this Court, thru former Chief Justice Roberto Concepcion laid down the test to determine whether there is undue delegation of legislative power, viz:

xxx xxx xxx

Although Congress may delegate to another branch of the Government the power to fill details in the execution, enforcement or administration of a law, it is essential, to forestall a violation of the principle of separation of powers, that said law: (a) be complete in itself — it must set forth therein the policy to be executed, carried out or implemented by the delegate — and (b) to fix standard — the limits of which are sufficiently determinate or determinable — to which the delegate must conform in the performance of his functions. Indeed, without a statutory declaration of policy, which is the essence of every law, and, without the aforementioned standard, there would be no means to determine, with reasonable certainty, whether the delegate has acted within or beyond the scope of his authority. Hence, he could thereby arrogate upon himself the power, not only to make the law, but, also — and this is worse — to unmake it, by adopting measures inconsistent with the end sought to be attained by the Act of Congress, thus nullifying the principle of separation of powers and the system of checks and balances, and, consequently, undermining the very foundation of our republican system.

Section 68 of the Revised Administrative Code does not meet these well-settled requirements for a valid delegation of the power to fix the details in the enforcement of a law. It does not enunciate any policy to be carried out or implemented by the President. Neither does it give a standard sufficiently precise to avoid the evil effects above referred to.

R.A. No. 6735 sufficiently states the policy and the standards to guide the COMELEC in promulgating the law's implementing rules and regulations of the law. As aforestated, section 2 spells out the policy of the law; viz: "The power of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed." Spread out all over R.A. No. 6735 are the standards to canalize the delegated power to the COMELEC to promulgate rules and regulations from overflowing. Thus, the law states the number of signatures necessary to start a people's initiative, 18 directs how initiative proceeding is commenced, 19 what the COMELEC should do upon filing of the petition for initiative, 20 how a proposition is approved, 21 when a plebiscite may be held, 22 when the amendment takes effect 23 and what matters may not be the subject of any initiative. 24 By any measure, these standards are adequate.

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

MR. ROMULO. Under Commissioner Davide's amendment, it is possible for the legislature to set forth certain procedures to carry out the initiative. . . ?

MR. DAVIDE. It can.

xxx xxx xxx

MR. ROMULO. But the Commissioner's amendment does not prevent the legislature from asking another body to set the proposition in proper form.

MR. DAVIDE. The Commissioner is correct. In other words, the implementation of this particular right would be subject to legislation, provided the legislature cannot determine anymore the percentage of the requirement.

MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other words, none of the procedures to be proposed by the legislative body must diminish or impair the right conceded here.

MR. ROMULO. In that provision of the Constitution can the procedures which I have discussed be legislated?

MR. DAVIDE. Yes.

In his book, The Intent of the 1986 Constitution Writers, 27 Father Bernas likewise affirmed: "In response to questions of Commissioner Romulo, Davide explained the extent of the power of the legislature over the process: it could for instance, prescribe the 'proper form before (the amendment) is submitted to the people,' it could authorize another body to check the proper form. It could also authorize the COMELEC, for instance, to check the authenticity of the signatures of petitioners. Davide concluded: 'As long as it will not destroy the substantive right to initiate. In other words, none of the procedures to be proposed by the legislative body must diminish or impair the right conceded here.'" Quite clearly, the prohibition against the legislature is to impair the substantive right of the people to initiate amendments to the Constitution. It is not, however, prohibited from legislating the procedure to enforce the people's right of initiative or to delegate it to another body like the COMELEC with proper standard.

A survey of our case law will show that this Court has prudentially refrained from invalidating administrative rules on the ground of lack of adequate legislative standard to guide their promulgation. As aptly perceived by former Justice Cruz, "even if the law itself does not expressly pinpoint the standard, the courts will bend backward to locate the same elsewhere in order to spare the statute, if it can, from constitutional infirmity." 28 He cited the ruling in Hirabayashi v. United States, 29 viz:

xxx xxx xxx

It is true that the Act does not in terms establish a particular standard to which orders of the military commander are to conform, or require findings to be made as a prerequisite to any order. But the Executive Order, the Proclamations and the statute are not to be read in isolation from each other. They were parts of a single program and must be judged as such. The Act of March 21, 1942, was an adoption by Congress of the Executive Order and of the Proclamations. The Proclamations themselves followed a standard authorized by the Executive Order — the necessity of protecting military resources in the designated areas against espionage and sabotage.

In the case at bar, the policy and the standards are bright-lined in R.A. No. 6735. A 20-20 look at the law cannot miss them. They were not written by our legislators in invisible ink. The policy and standards can also be found in no less than section 2, Article XVII of the Constitution on Amendments or Revisions. There is thus no reason to hold that the standards provided for in R.A. No. 6735 are insufficient for in other cases we have upheld as adequate more general standards such as "simplicity and dignity," 30 "public interest," 31 "public welfare," 32 "interest of law and order," 33 "justice and equity," 34 "adequate and efficient instruction," 35 "public safety," 36 "public policy", 37 "greater national interest", 38 "protect the local consumer by stabilizing and subsidizing domestic pump rates", 39 and "promote simplicity, economy and efficiency in government." 40 A due regard and respect to the legislature, a co-equal and coordinate branch of government, should counsel this Court to refrain from refusing to effectuate laws unless they are clearly unconstitutional.

III

It is also respectfully submitted that the petition should he dismissed with respect to the Pedrosas. The inclusion of the Pedrosas in the petition is utterly baseless. The records show that the case at bar started when respondent Delfin alone and by himself filed with the COMELEC a Petition to Amend the Constitution to Lift Term Limits of Elective Officials by People's Initiative. The Pedrosas did not join the petition. It was Senator Roco who moved to intervene and was allowed to do so by the COMELEC. The petition was heard and before the COMELEC could resolve the Delfin petition, the case at bar was filed by the petitioners with this Court. Petitioners sued the COMELEC. Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa in their capacities as founding members of the People's Initiative for Reform, Modernization and Action (PIRMA). The suit is an original action for prohibition with prayer for temporary restraining order and/or writ of preliminary injunction.

The petition on its face states no cause of action against the Pedrosas. The only allegation against the Pedrosas is that they are founding members of the PIRMA which proposes to undertake the signature drive for people's initiative to amend the Constitution. Strangely, the PIRMA itself as an organization was not impleaded as a respondent. Petitioners then prayed that we order the Pedrosas ". . . to desist from conducting a signature drive for a people's initiative to amend the Constitution." On December 19, 1996, we temporarily enjoined the Pedrosas ". . . from conducting a signature drive for people's initiative to amend the Constitution." It is not enough for the majority to lift the temporary restraining order against the Pedrosas. It should dismiss the petition and all motions for contempt against them without equivocation.

One need not draw a picture to impart the proposition that in soliciting signatures to start a people's initiative to amend the Constitution the Pedrosas are not engaged in any criminal act. Their solicitation of signatures is a right guaranteed in black and white by section 2 of Article XVII of the Constitution which provides that ". . . amendments to this Constitution may likewise be directly proposed by the people through initiative. . ." This right springs from the principle proclaimed in section 1, Article II of the Constitution that in a democratic and republican state "sovereignty resides in the people and all government authority emanates from them." The Pedrosas are part of the people and their voice is part of the voice of the people. They may constitute but a particle of our sovereignty but no power can trivialize them for sovereignty is indivisible.

But this is not all. Section 16 of Article XIII of the Constitution provides: "The right of the people and their organizations to effective and reasonable participation at all levels of social, political and economic decision-making shall not be abridged. The State shall by law, facilitate the establishment of adequate consultation mechanisms." This is another novel provision of the 1987 Constitution strengthening the sinews of the sovereignty of our people. In soliciting signatures to amend the Constitution, the Pedrosas are participating in the political decision-making process of our people. The Constitution says their right cannot be abridged without any ifs and buts. We cannot put a question mark on their right.

Over and above these new provisions, the Pedrosas' campaign to amend the Constitution is an exercise of their freedom of speech and expression and their right to petition the government for redress of grievances. We have memorialized this universal right in all our fundamental laws from the Malolos Constitution to the 1987 Constitution. We have iterated and reiterated in our rulings that freedom of speech is a preferred right, the matrix of other important rights of our people. Undeniably, freedom of speech enervates the essence of the democratic creed of think and let think. For this reason, the Constitution encourages speech even if it protects the speechless.

It is thus evident that the right of the Pedrosas to solicit signatures to start a people's initiative to amend the Constitution does not depend on any law, much less on R.A. 6735 or COMELEC Resolution No. 2300. No law, no Constitution can chain the people to an undesirable status quo. To be sure, there are no irrepealable laws just as there are no irrepealable Constitutions. Change is the predicate of progress and we should not fear change. Mankind has long recognized the truism that the only constant in life is change and so should the majority.

IV

In a stream of cases, this Court has rhapsodized people power as expanded in the 1987 Constitution. On October 5, 1993, we observed that people's might is no longer a myth but an article of faith in our Constitution. 41 On September 30, 1994, we postulated that people power can be trusted to check excesses of government and that any effort to trivialize the effectiveness of people's initiatives ought to be rejected. 42 On September 26, 1996, we pledged that ". . . this Court as a matter of policy and doctrine will exert every effort to nurture, protect and promote their legitimate exercise." 43 Just a few days ago, or on March 11, 1997, by a unanimous decision, 44 we allowed a recall election in Caloocan City involving the mayor and ordered that he submits his right to continue in office to the judgment of the tribunal of the people. Thus far, we have succeeded in transforming people power from an opaque abstraction to a robust reality. The Constitution calls us to encourage people empowerment to blossom in full. The Court cannot halt any and all signature campaigns to amend the Constitution without setting back the flowering of people empowerment. More important, the Court cannot seal the lips of people who are pro-change but not those who are anti-change without concerting the debate on charter change into a sterile talkaton. Democracy is enlivened by a dialogue and not by a monologue for in a democracy nobody can claim any infallibility.

Melo and Mendoza, JJ., concur.

 

VITUG, J., concurring and dissenting:

The COMELEC should have dismissed, outrightly, the Delfin Petition.

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

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.

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

The Delfin petition is thus utterly deficient. Instead of complying with the constitutional imperatives, the petition would rather have much of its burden passed on, in effect, to the COMELEC. The petition would require COMELEC to schedule "signature gathering all over the country," to cause the necessary publication of the petition "in newspapers of general and local circulation," and to instruct "Municipal Election Registrars in all Regions of the Philippines to assist petitioners and volunteers in establishing signing stations at the time and on the dates designated for the purpose.

I submit, even then, that the TRO earlier issued by the Court which, consequentially, is made permanent under the ponencia should be held to cover only the Delfin petition and must not be so understood as having intended or contemplated to embrace the signature drive of the Pedrosas. The grant of such a right is clearly implicit in the constitutional mandate on people initiative.

The distinct greatness of a democratic society is that those who reign are the governed themselves. The postulate is no longer lightly taken as just a perceived myth but a veritable reality. The past has taught us that the vitality of government lies not so much in the strength of those who lead as in the consent of those who are led. The role of free speech is pivotal but it can only have its true meaning if it comes with the correlative end of being heard.

Pending a petition for a people's initiative that is sufficient in form and substance, it behooves the Court, I most respectfully submit, to yet refrain from resolving the question of whether or not Republic Act No. 6735 has effectively and sufficiently implemented the Constitutional provision on right of the people to directly propose constitutional amendments. Any opinion or view formulated by the Court at this point would at best be only a non-binding, albeit possibly persuasive, obiter dictum.

I vote for granting the instant petition before the Court and for clarifying that the TRO earlier issued by the Court did not prescribe the exercise by the Pedrosas of their right to campaign for constitutional amendments.

 

FRANCISCO, J., dissenting and concurring:

There is no question that my esteemed colleague Mr. Justice Davide has prepared a scholarly and well-written ponencia. Nonetheless, I cannot fully subscribe to his view that R. A. No. 6735 is inadequate to cover the system of initiative on amendments to the Constitution.

To begin with, sovereignty under the constitution, resides in the people and all government authority emanates from them. 1 Unlike our previous constitutions, the present 1987 Constitution has given more significance to this declaration of principle for the people are now vested with power not only to propose, enact or reject any act or law passed by Congress or by the local legislative body, but to propose amendments to the constitution as well. 2 To implement these constitutional edicts, Congress in 1989 enacted Republic Act No. 6735, otherwise known as "The initiative and Referendum Act". This law, to my mind, amply covers an initiative on the constitution. The contrary view maintained by petitioners is based principally on the alleged lack of sub-title in the law on initiative to amend the constitution and on their allegation that:

Republic Act No. 6735 provides for the effectivity of the law after publication in print media. [And] [t]his indicates that Republic Act No. 6735 covers only laws and not constitutional amendments, because constitutional amendments take effect upon ratification not after publication. 3

which allegation manifests petitioners' selective interpretation of the law, for under Section 9 of Republic Act No. 6735 on the Effectivity of Initiative or Referendum Proposition paragraph (b) thereof is clear in providing that:

The proposition in an initiative on the constitution approved by a majority of the votes cast in the plebiscite shall become effective as to the day of the plebiscite.

It is a rule that every part of the statute must be interpreted with reference the context, i.e., that every part of the statute must be construed together with the other parts and kept subservient to the general intent of the whole enactment. 4 Thus, the provisions of Republic Act No. 6735 may not be interpreted in isolation. The legislative intent behind every law is to be extracted from the statute as a whole. 5

In its definition of terms, Republic Act No. 6735 defines initiative as "the power of the people to propose amendments to the constitution or to propose and enact legislations through an election called for the purpose". 6 The same section, in enumerating the three systems of initiative, included an "initiative on the constitution which refers to a petition proposing amendments to the constitution" 7 Paragraph (e) again of Section 3 defines "plebiscite" as "the electoral process by which an initiative on the constitution is approved or rejected by the people" And as to the material requirements for an initiative on the Constitution, Section 5(b) distinctly enumerates the following:

A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of the registered voters as signatories, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein. Initiative on the constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five years thereafter.

These provisions were inserted, on purpose, by Congress the intent being to provide for the implementation of the right to propose an amendment to the Constitution by way of initiative. "A legal provision", the Court has previously said, "must not be construed as to be a useless surplusage, and accordingly, meaningless, in the sense of adding nothing to the law or having no effect whatsoever thereon". 8 That this is the legislative intent is further shown by the deliberations in Congress, thus:

. . . More significantly, in the course of the consideration of the Conference Committee Report on the disagreeing provisions of Senate Bill No. 17 and House Bill No. 21505, it was noted:

MR. ROCO. On the Conference Committee Report on the disagreeing provisions between Senate Bill No. 17 and the consolidated House Bill No. 21505 which refers to the system providing for the initiative and referendum, fundamentally, Mr. Speaker, we consolidated the Senate and the House versions, so both versions are totally intact in the bill. The Senators ironically provided for local initiative and referendum and the House of Representatives correctly provided for initiative and referendum an the Constitution and on national legislation.

I move that we approve the consolidated bill.

MR. ALBANO, Mr. Speaker.

THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader?

MR. ALBANO. Will the distinguished sponsor answer just a few questions?

THE SPEAKER PRO TEMPORE. What does the sponsor say?

MR. ROCO. Willingly, Mr. Speaker.

THE SPEAKER PRO TEMPORE. The Gentleman will please proceed.

MR. ALBANO. I heard the sponsor say that the only difference in the two bills was that in the Senate version there was a provision for local initiative and referendum, whereas the House version has none.

MR. ROCO. In fact, the Senate version provided purely for local initiative and referendum, whereas in the House version, we provided purely for national and constitutional legislation.

MR. ALBANO. Is it our understanding, therefore, that the two provisions were incorporated?

MR. ROCO. Yes, Mr. Speaker.

MR. ALBANO. So that we will now have a complete initiative and referendum both in the constitutional amendment and national legislation.

MR. ROCO. That is correct.

MR. ALBANO. And provincial as well as municipal resolutions?

MR. ROCO. Down to barangay, Mr. Speaker.

MR. ALBANO. And this initiative and referendum is in consonance with the provision of the Constitution to enact the enabling law, so that we shall have a system which can be done every five years. Is it five years in the provision of the Constitution?

MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments to the 1987 Constitution, it is every five years." (Id. [Journal and Record of the House of Representatives], Vol. VIII, 8 June 1989, p. 960; quoted in Garcia v. Comelec, 237 SCRA 279, 292-293 [1994]; emphasis supplied)

. . . The Senate version of the Bill may not have comprehended initiatives on the Constitution. When consolidated, though, with the House version of the Bill and as approved and enacted into law, the proposal included initiative on both the Constitution and ordinary laws. 9

Clearly then, Republic Act No. 6735 covers an initiative on the constitution. Any other construction as what petitioners foist upon the Court constitute a betrayal of the intent and spirit behind the enactment.

At any rate, I agree with the ponencia that the Commission on Elections, at present, cannot take any action (such as those contained in the Commission's orders dated December 6, 9, and 12, 1996 [Annexes B, C and B-1]) indicative of its having already assumed jurisdiction over private respondents' petition. This is so because from the tenor of Section 5 (b) of R.A. No. 6735 it would appear that proof of procurement of the required percentage of registered voters at the time the petition for initiative is filed, is a jurisdictional requirement.

Thus:

A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein. Initiative on the Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five (5) years thereafter.

Here private respondents' petition is unaccompanied by the required signatures. This defect notwithstanding, it is without prejudice to the refiling of their petition once compliance with the required percentage is satisfactorily shown by private respondents. In the absence, therefore, of an appropriate petition before the Commission on Elections, any determination of whether private respondents' proposal constitutes an amendment or revision is premature.

ACCORDINGLY, I take exception to the conclusion reached in the ponencia that R.A. No. 6735 is an "inadequate" legislation to cover a people's initiative to propose amendments to the Constitution. I, however, register my concurrence with the dismissal, in the meantime, of private respondents' petition for initiative before public respondent Commission on Elections until the same be supported by proof of strict compliance with Section 5 (b) of R.A. No. 6735.

Melo and Mendoza, JJ., concur.

 

PANGANIBAN, J., concurring and dissenting:

Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for the majority, holds that:

(1) The Comelec acted without jurisdiction or with grave abuse of discretion in entertaining the "initiatory" Delfin Petition.

(2) While the Constitution allows amendments to "be directly proposed by the people through initiative," there is no implementing law for the purpose. RA 6735 is "incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned."

(3) Comelec Resolution No. 2330, "insofar as it prescribes rules and regulations on the conduct of initiative on amendments to the Constitution, is void."

I concur with the first item above. Until and unless an initiatory petition can show the required number of signatures — in this case, 12% of all the registered voters in the Philippines with at least 3% in every legislative district — no public funds may be spent and no government resources may be used in an initiative to amend the Constitution. Verily, the Comelec cannot even entertain any petition absent such signatures. However, I dissent most respectfully from the majority's two other rulings. Let me explain.

Under the above restrictive holdings espoused by the Court's majority, the Constitution cannot be amended at all through a people's initiative. Not by Delfin, not by Pirma, not by anyone, not even by all the voters of the country acting together. This decision will effectively but unnecessarily curtail, nullify, abrogate and render inutile the people's right to change the basic law. At the very least, the majority holds the right hostage to congressional discretion on whether to pass a new law to implement it, when there is already one existing at present. This right to amend through initiative, it bears stressing, is guaranteed by Section 2, Article XVII of the Constitution, as follows:

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.

With all due respect, I find the majority's position all too sweeping and all too extremist. It is equivalent to burning the whole house to exterminate the rats, and to killing the patient to relieve him of pain. What Citizen Delfin wants the Comelec to do we should reject. But we should not thereby preempt any future effort to exercise the right of initiative correctly and judiciously. The fact that the Delfin Petition proposes a misuse of initiative does not justify a ban against its proper use. Indeed, there is a right way to do the right thing at the right time and for the right reason.

Taken Together and Interpreted Properly, the Constitution, RA 6735 and Comelec Resolution 2300 Are Sufficient to Implement Constitutional Initiatives

While RA 6735 may not be a perfect law, it was — as the majority openly concedes — intended by the legislature to cover and, I respectfully submit, it contains enough provisions to effectuate an initiative on the Constitution. 1 I completely agree with the inspired and inspiring opinions of Mr. Justice Reynato S. Puno and Mr. Justice Ricardo J. Francisco that RA 6735, the Roco law on initiative, sufficiently implements the right of the people to initiate amendments to the Constitution. Such views, which I shall no longer repeat nor elaborate on, are thoroughly consistent with this Court's unanimous en banc rulings in Subic Bay Metropolitan Authority vs. Commission on Elections, 2 that "provisions for initiative . . . are (to be) liberally construed to effectuate their purposes, to facilitate and not hamper the exercise by the voters of the rights granted thereby"; and in Garcia vs. Comelec, 3 that any "effort to trivialize the effectiveness of people's initiatives ought to be rejected."

No law can completely and absolutely cover all administrative details. In recognition of this, RA 6735 wisely empowered 4 the Commission on Election "to promulgate such rules and regulations as may be necessary to carry out the purposes of this Act." And pursuant thereto, the Comelec issued its Resolution 2300 on 16 January 1991. Such Resolution, by its very words, was promulgated "to govern the conduct of initiative on the Constitution and initiative and referendum on national and local laws," not by the incumbent Commission on Elections but by one then composed of Acting Chairperson Haydee B. Yorac, Comms. Alfredo E. Abueg Jr., Leopoldo L. Africa, Andres R. Flores, Dario C. Rama and Magdara B. Dimaampao. All of these Commissioners who signed Resolution 2300 have retired from the Commission, and thus we cannot ascribe any vile motive unto them, other than an honest, sincere and exemplary effort to give life to a cherished right of our people.

The majority argues that while Resolution 2300 is valid in regard to national laws and local legislations, it is void in reference to constitutional amendments. There is no basis for such differentiation. The source of and authority for the Resolution is the same law, RA 6735.

I respectfully submit that taken together and interpreted properly and liberally, the Constitution (particularly Art. XVII, Sec. 2), R4 6735 and Comelec Resolution 2300 provide more than sufficient authority to implement, effectuate and realize our people's power to amend the Constitution.

Petitioner Delfin and the PedrosaSpouses Should Not Be Muzzled

I am glad the majority decided to heed our plea to lift the temporary restraining order issued by this Court on 18 December 1996 insofar as it prohibited Petitioner Delfin and the Spouses Pedrosa from exercising their right of initiative. In fact, I believe that such restraining order as against private respondents should not have been issued, in the first place. While I agree that the Comelec should be stopped from using public funds and government resources to help them gather signatures, I firmly believe that this Court has no power to restrain them from exercising their right of initiative. The right to propose amendments to the Constitution is really a species of the right of free speech and free assembly. And certainly, it would be tyrannical and despotic to stop anyone from speaking freely and persuading others to conform to his/her beliefs. As the eminent Voltaire once said, "I may disagree with what you say, but I will defend to the death your right to say it." After all, freedom is not really for the thought we agree with, but as Justice Holmes wrote, "freedom for the thought that we hate." 5

Epilogue

By way of epilogue, let me stress the guiding tenet of my Separate Opinion. Initiative, like referendum and recall, is a new and treasured feature of the Filipino constitutional system. All three are institutionalized legacies of the world-admired EDSA people power. Like elections and plebiscites, they are hallowed expressions of popular sovereignty. They are sacred democratic rights of our people to be used as their final weapons against political excesses, opportunism, inaction, oppression and misgovernance; as well as their reserved instruments to exact transparency, accountability and faithfulness from their chosen leaders. While on the one hand, their misuse and abuse must be resolutely struck down, on the other, their legitimate exercise should be carefully nurtured and zealously protected.

WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et al. and to DIRECT Respondent Commission on Elections to DISMISS the Delfin Petition on the ground of prematurity, but not on the other grounds relied upon by the majority. I also vote to LIFT the temporary restraining order issued on 18 December 1996 insofar as it prohibits Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa from exercising their right to free speech in proposing amendments to the Constitution.

Melo and Mendoza, JJ., concur.

 

Separate Opinions

PUNO, J., concurring and dissenting:

I join the ground-breaking ponencia of our esteemed colleague, Mr. Justice Davide insofar as it orders the COMELEC to dismiss the Delfin petition. I regret, however, I cannot share the view that R.A. No. 5735 and COMELEC Resolution No. 2300 are legally defective and cannot implement the people's initiative to amend the Constitution. I likewise submit that the petition with respect to the Pedrosas has no leg to stand on and should be dismissed. With due respect:

I

First, I submit that R.A. No. 6735 sufficiently implements the right of the people to initiate amendments to the Constitution thru initiative. Our effort to discover the meaning of R.A. No. 6735 should start with the search of the intent of our lawmakers. A knowledge of this intent is critical for the intent of the legislature is the law and the controlling factor in its interpretation. 1 Stated otherwise, intent is the essence of the law, the spirit which gives life to its enactment. 2

Significantly, the majority decision concedes that ". . . R.A. No. 6735 was intended to cover initiative to propose amendments to the Constitution." It ought to be so for this intent is crystal clear from the history of the law which was a consolidation of House Bill No. 21505 3 and Senate Bill No. 17. 4 Senate Bill No. 17 was entitled "An Act Providing for a System of Initiative and Referendum and the Exception Therefrom, Whereby People in Local Government Units Can Directly Propose and Enact Resolutions and Ordinances or Approve or Reject any Ordinance or Resolution Passed by the Local Legislative Body." Beyond doubt, Senate Bill No. 17 did not include people's initiative to propose amendments to the Constitution. In checkered contrast, House Bill No. 21505 5 expressly included people's initiative to amend the Constitution. Congressman (now Senator) Raul Roco emphasized in his sponsorship remarks: 6

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SPONSORSHIP REMARKS OF MR. ROCO

At the outset, Mr. Roco provided the following backgrounder on the constitutional basis of the proposed measure.

1. As cited in Vera vs. Avelino (1946), the presidential system which was introduced by the 1935 Constitution saw the application of the principle of separation of powers.

2. While under the parliamentary system of the 1973 Constitution the principle remained applicable, the 1981 amendments to the Constitution of 1973 ensured presidential dominance over the Batasang Pambansa.

Constitutional history then saw the shifting and sharing of legislative powers between the Legislature and the Executive departments. Transcending changes in the exercise of legislative power is the declaration in the Philippine Constitution that the Philippines is a republican state where sovereignty resides in the people and all sovereignty emanates from them.

3. Under the 1987 Constitution, the lawmaking power is still preserved in Congress; however, to institutionalize direct action of the people as exemplified in the 1986 Revolution, the Constitution recognizes the power of the people, through the system of initiative and referendum.

As cited in Section 1, Article VI of the 1987 Constitution, Congress does not have plenary powers since reserve powers are given to the people expressly. Section 32 of the same Article mandates Congress to pass at the soonest possible time, a bill on referendum and initiative, and to share its legislative powers with the people.

Section 2, Article XVII of the 1987 Constitution, on the other hand, vests in the people the power to directly propose amendments to the Constitution through initiative, upon petition of at least 12 percent of the total number of registered voters.

Stating that House Bill No. 21505 is the Committee's response to the duty imposed on Congress to implement the exercise by the people of the right to initiative and referendum, Mr. Roco recalled the beginnings of the system of initiative and referendum under Philippine Law. He cited Section 99 of the Local Government Code which vests in the barangay assembly the power to initiate legislative processes, decide the holding of plebiscite and hear reports of the Sangguniang Barangay, all of which are variations of the power of initiative and referendum. He added that the holding of barangay plebiscites and referendum are likewise provided in Sections 100 and 101 of the same Code.

Thereupon, for the sake of brevity, Mr. Roco moved that pertinent quotation on the subject which he will later submit to the Secretary of the House be incorporated as part of his sponsorship speech.

He then cited examples of initiative and referendum similar to those contained in the instant Bill among which are the constitutions of states in the United States which recognize the right of registered voters to initiate the enactment of any statute or to project any existing law or parts thereof in a referendum. These states, he said, are Alaska, Alabama, Montana, Massachusets, Dakota, Oklahoma, Oregon, and practically all other states.

Mr. Roco explained that in certain American states, the kind of laws to which initiative and referendum apply is also without limitation, except for emergency measures, which are likewise incorporated in House Bill No. 21505. He added that the procedure provided by the Bill from the filing of the petition, the requirements of a certain percentage of supporters to present a proposition, to the submission to electors are substantially similar to the provisions in American laws. Although an infant in Philippine political structure, the system of initiative and referendum, he said, is a tried and tested system in other jurisdictions, and the Bill is patterned after American experience.

He further explained that the bill has only 12 sections, and recalled that the Constitutional Commissioners saw the system of the initiative and referendum as an instrument which can be used should the legislature show itself to be indifferent to the needs of the people. This is the reason, he claimed, why now is an opportune time to pass the Bill even as he noted the felt necessity of the times to pass laws which are necessary to safeguard individual rights and liberties.

At this juncture Mr. Roco explained the process of initiative and referendum as advocated in House Bill No. 21505. He stated that:

1. Initiative means that the people, on their own political judgment, submit a Bill for the consideration of the general electorate.

2. The instant Bill provides three kinds of initiative, namely; the initiative to amend the Constitution once every five years; the initiative to amend statutes approved by Congress; and the initiative to amend local ordinances.

3. The instant Bill gives a definite procedure and allows the Commission on Elections (COMELEC) to define rules and regulations on the power of initiative.

4. Referendum means that the legislators seek the consent of the people on measures that they have approved.

5. Under Section 4 of the Bill the people can initiate a referendum which is a mode of plebiscite by presenting a petition therefor, but under certain limitations, such as the signing of said petition by at least 10 percent of the total of registered voters at which every legislative district is represented by at least three percent of the registered voters thereof. Within 30 days after receipt of the petition, the COMELEC shall determine the sufficiency of the petition, publish the same, and set the date of the referendum within 45 to 90-day period.

6. When the matter under referendum or initiative is approved by the required number of votes, it shall become effective 15 days following the completion of its publication in the Official Gazette.

In concluding his sponsorship remarks, Mr. Roco stressed that the Members cannot ignore the people's call for initiative and referendum and urged the Body to approve House Bill No. 21505.

At this juncture, Mr. Roco also requested that the prepared text of his speech together with the footnotes be reproduced as part of the Congressional Records.

The same sentiment as to the bill's intent to implement people's initiative to amend the Constitution was stressed by then Congressman (now Secretary of Agriculture) Salvador Escudero III in his sponsorship remarks, viz: 7

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SPONSORSHIP REMARKS OF MR. ESCUDERO

Mr. Escudero first pointed out that the people have been clamoring for a truly popular democracy ever since, especially in the so-called parliament of the streets. A substantial segment of the population feels, he said, that the form of democracy is there, but not the reality or substance of it because of the increasingly elitist approach of their representatives to the country's problem.

Whereupon, Mr. Escudero pointed out that the Constitution has provided a means whereby the people can exercise the reserved power of initiative to propose amendments to the Constitution, and requested that Sections 1 and 32, Article VI; Section 3, Article X; and Section 2, Article XVII of the Constitution be made part of his sponsorship remarks.

Mr. Escudero also stressed that an implementing law is needed for the aforecited Constitutional provisions. While the enactment of the Bill will give way to strong competition among cause-oriented and sectoral groups, he continued, it will hasten the politization of the citizenry, aid the government in forming an enlightened public opinion, and produce more responsive legislation. The passage of the Bill will also give street parliamentarians the opportunity to articulate their ideas in a democratic forum, he added.

Mr. Escudero stated that he and Mr. Roco hoped for the early approval of the Bill so that it can be initially used for the Agrarian Reform Law. He said that the passage of House Bill No. 21505 will show that the Members can set aside their personal and political consideration for the greater good of the people.

The disagreeing provisions in Senate Bill No. 17 and House Bill No. 21505 were threshed out in a Bicameral Conference Committee. 8 In the meeting of the Committee on June 6, 1989, 9 the members agreed that the two (2) bills should be consolidated and that the consolidated version should include people's initiative to amend the Constitution as contemplated by House Bill No. 21505. The transcript of the meeting states:

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

HON. ROCO. Yes, we shall consolidate.

CHAIRMAN GONZALES. Consolidation of the Senate and House Bill No. so and so. 10

When the consolidated bill was presented to the House for approval, then Congressman Roco upon interpellation by Congressman Rodolfo Albano, again confirmed that it covered people's initiative to amend the Constitution. The record of the House Representative states: 11

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THE SPEAKER PRO TEMPORE. The Gentleman from Camarines Sur is recognized.

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

I move that we approve the consolidated bill.

MR. ALBANO. Mr. Speaker.

THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader?

MR. ALBANO. Will the distinguished sponsor answer just a few questions?

THE SPEAKER PRO TEMPORE. The Gentlemen will please proceed.

MR. ALBANO. I heard the sponsor say that the only difference in the two bills was that in the Senate version there was a provision for local initiative and referendum, whereas the House version has none.

MR. ROCO. In fact, the Senate version provide purely for local initiative and referendum, whereas in the House version, we provided purely for national and constitutional legislation.

MR. ALBANO. Is it our understanding therefore, that the two provisions were incorporated?

MR. ROCO. Yes, Mr. Speaker.

MR. ALBANO. So that we will now have a complete initiative and referendum both in the constitutional amendment and national legislation.

MR. ROCO. That is correct.

MR. ALBANO. And provincial as well as municipal resolutions?

MR. ROCO. Down to barangay, Mr. Speaker.

MR. ALBANO. And this initiative and referendum is in consonance with the provision of the Constitution whereby it mandates this Congress to enact the enabling law, so that we shall have a system which can be done every five years. Is it five years in the provision of the Constitution?

MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments in the 1987 Constitution, it is every five years.

MR. ALBANO. For every five years, Mr. Speaker?

MR. ROCO. Within five years, we cannot have multiple initiatives and referenda.

MR. ALBANO. Therefore, basically, there was no substantial difference between the two versions?

MR. ROCO. The gaps in our bill were filled by the Senate which, as I said earlier, ironically was about local, provincial and municipal legislation.

MR. ALBANO. And the two bills were consolidated?

MR. ROCO. Yes, Mr. Speaker.

MR. ALBANO. Thank you, Mr. Speaker.

APPROVAL OF C.C.R.ON S.B. NO. 17 AND H.B. NO. 21505(The Initiative and Referendum Act)

THE SPEAKER PRO TEMPORE. There was a motion to approve this consolidated bill on Senate Bill No. 17 and House Bill No. 21505.

Is there any objection? (Silence. The Chair hears none; the motion is approved.

Since it is crystalline that the intent of R.A. No. 6735 is to implement the people's initiative to amend the Constitution, it is our bounden duty to interpret the law as it was intended by the legislature. We have ruled that once intent is ascertained, it must be enforced even if it may not be consistent with the strict letter of the law and this ruling is as old as the mountain. We have also held that where a law is susceptible of more than one interpretation, that interpretation which will most tend to effectuate the manifest intent of the legislature will be adopted. 12

The text of R.A. No. 6735 should therefore be reasonably construed to effectuate its intent to implement the people's initiative to amend the Constitution. To be sure, we need not torture the text of said law to reach the conclusion that it implements people's initiative to amend the Constitution. R.A. No. 6735 is replete with references to this prerogative of the people.

First, the policy statement declares:

Sec. 2. Statement of Policy. — The power of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed. (emphasis supplied)

Second, the law defines "initiative" as "the power of the people to propose amendments to the constitution or to propose and enact legislations through an election called for the purpose," and "plebiscite" as "the electoral process by which an initiative on the Constitution is approved or rejected by the people.

Third, the law provides the requirements for a petition for initiative to amend the Constitution. Section 5(b) states that "(a) petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein." It also states that "(i)nitiative on the Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five (5) years thereafter.

Finally, R.A. No. 6735 fixes the effectivity date of the amendment. Section 9(b) states that "(t)he proposition in an initiative on the Constitution approved by a majority of the votes cast in the plebiscite shall become effective as to the day of the plebiscite.

It is unfortunate that the majority decision resorts to a strained interpretation of R.A. No. 6735 to defeat its intent which it itself concedes is to implement people's initiative to propose amendments to the Constitution. Thus, it laments that the word "Constitution" is neither germane nor relevant to the policy thrust of section 2 and that the statute's subtitling is not accurate. These lapses are to be expected for laws are not always written in impeccable English. Rightly, the Constitution does not require our legislators to be word-smiths with the ability to write bills with poetic commas like Jose Garcia Villa or in lyrical prose like Winston Churchill. But it has always been our good policy not to refuse to effectuate the intent of a law on the ground that it is badly written. As the distinguished Vicente Francisco 13 reminds us: "Many laws contain words which have not been used accurately. But the use of inapt or inaccurate language or words, will not vitiate the statute if the legislative intention can be ascertained. The same is equally true with reference to awkward, slovenly, or ungrammatical expressions, that is, such expressions and words will be construed as carrying the meaning the legislature intended that they bear, although such a construction necessitates a departure from the literal meaning of the words used.

In the same vein, the argument that R.A. No. 7535 does not include people's initiative to amend the Constitution simply because it lacks a sub-title on the subject should be given the weight of helium. Again, the hoary rule in statutory construction is that headings prefixed to titles, chapters and sections of a statute may be consulted in aid of interpretation, but inferences drawn therefrom are entitled to very little weight, and they can never control the plain terms of the enacting clauses. 14

All said, it is difficult to agree with the majority decision that refuses to enforce the manifest intent or spirit of R.A. No. 6735 to implement the people's initiative to amend the Constitution. It blatantly disregards the rule cast in concrete that the letter of the law must yield to its spirit for the letter of the law is its body but its spirit is its soul. 15

II

COMELEC Resolution No. 2300, 16 promulgated under the stewardship of Commissioner Haydee Yorac, then its Acting Chairman, spelled out the procedure on how to exercise the people's initiative to amend the Constitution. This is in accord with the delegated power granted by section 20 of R.A. No. 6735 to the COMELEC which expressly states: "The Commission is hereby empowered to promulgate such rules and regulations as may be necessary to carry out the purposes of this Act." By no means can this delegation of power be assailed as infirmed. In the benchmark case of Pelaez v. Auditor General, 17 this Court, thru former Chief Justice Roberto Concepcion laid down the test to determine whether there is undue delegation of legislative power, viz:

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Although Congress may delegate to another branch of the Government the power to fill details in the execution, enforcement or administration of a law, it is essential, to forestall a violation of the principle of separation of powers, that said law: (a) be complete in itself — it must set forth therein the policy to be executed, carried out or implemented by the delegate — and (b) to fix standard — the limits of which are sufficiently determinate or determinable — to which the delegate must conform in the performance of his functions. Indeed, without a statutory declaration of policy, which is the essence of every law, and, without the aforementioned standard, there would be no means to determine, with reasonable certainty, whether the delegate has acted within or beyond the scope of his authority. Hence, he could thereby arrogate upon himself the power, not only to make the law, but, also — and this is worse — to unmake it, by adopting measures inconsistent with the end sought

to be attained by the Act of Congress, thus nullifying the principle of separation of powers and the system of checks and balances, and, consequently, undermining the very foundation of our republican system.

Section 68 of the Revised Administrative Code does not meet these well-settled requirements for a valid delegation of the power to fix the details in the enforcement of a law. It does not enunciate any policy to be carried out or implemented by the President. Neither does it give a standard sufficiently precise to avoid the evil effects above referred to.

R.A. No. 6735 sufficiently states the policy and the standards to guide the COMELEC in promulgating the law's implementing rules and regulations of the law. As aforestated, section 2 spells out the policy of the law; viz: "The power of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed." Spread out all over R.A. No. 6735 are the standards to canalize the delegated power to the COMELEC to promulgate rules and regulations from overflowing. Thus, the law states the number of signatures necessary to start a people's initiative, 18 directs how initiative proceeding is commenced, 19 what the COMELEC should do upon filing of the petition for initiative, 20 how a proposition is approved, 21 when a plebiscite may be held, 22 when the amendment takes effect 23 and what matters may not be the subject of any initiative. 24 By any measure, these standards are adequate.

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

MR. ROMULO. Under Commissioner Davide's amendment, it is possible for the legislature to set forth certain procedures to carry out the initiative. . . ?

MR. DAVIDE. It can.

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MR. ROMULO. But the Commissioner's amendment does not prevent the legislature from asking another body to set the proposition in proper form.

MR. DAVIDE. The Commissioner is correct. In other words, the implementation of this particular right would be subject to legislation, provided the legislature cannot determine anymore the percentage of the requirement.

MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other words, none of the procedures to be proposed by the legislative body must diminish or impair the right conceded here.

MR. ROMULO. In that provision of the Constitution can the procedures which I have discussed be legislated?

MR. DAVIDE. Yes.

In his book, The Intent of the 1986 Constitution Writers, 27 Father Bernas likewise affirmed: "In response to questions of Commissioner Romulo, Davide explained the extent of the power of the legislature over the process: it could for instance, prescribe the 'proper form before (the amendment) is submitted to the people,' it could authorize another body to check the proper form. It could also authorize the COMELEC, for instance, to check the authenticity of the signatures of petitioners. Davide concluded: 'As long as it will not destroy the substantive right to initiate. In other words, none of the procedures to be proposed by the legislative body must diminish or impair the right conceded here.'" Quite clearly, the prohibition against the legislature is to impair the substantive right of the people to initiate amendments to the Constitution. It is not, however, prohibited from legislating the procedure to enforce the people's right of initiative or to delegate it to another body like the COMELEC with proper standard.

A survey of our case law will show that this Court has prudentially refrained from invalidating administrative rules on the ground of lack of adequate legislative standard to guide their promulgation. As aptly perceived by former Justice Cruz, "even if the law itself does not expressly pinpoint the standard, the courts will bend backward to locate the same elsewhere in order to spare the statute, if it can, from constitutional infirmity." 28 He cited the ruling in Hirabayashi v. United States, 29 viz:

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It is true that the Act does not in terms establish a particular standard to which orders of the military commander are to conform, or require findings to be made as a prerequisite to any order. But the Executive Order, the Proclamations and the statute are not to be read in isolation from each other. They were parts of a single program and must be judged as such. The Act of March 21, 1942, was an adoption by Congress of the Executive Order and of the Proclamations. The Proclamations themselves followed a standard authorized by the Executive Order — the necessity of protecting military resources in the designated areas against espionage and sabotage.

In the case at bar, the policy and the standards are bright-lined in R.A. No. 6735. A 20-20 look at the law cannot miss them. They were not written by our legislators in invisible ink. The policy and standards can also be found in no less than section 2, Article XVII of the Constitution on Amendments or Revisions. There is thus no reason to hold that the standards provided for in R.A. No. 6735 are insufficient for in other cases we have upheld as adequate more general standards such as "simplicity and dignity," 30 "public interest," 31 "public welfare," 32 "interest of law and order," 33 "justice and equity," 34 "adequate and efficient

instruction," 35 "public safety," 36 "public policy", 37 "greater national interest", 38 "protect the local consumer by stabilizing and subsidizing domestic pump rates", 39 and "promote simplicity, economy and efficiency in government." 40 A due regard and respect to the legislature, a co-equal and coordinate branch of government, should counsel this Court to refrain from refusing to effectuate laws unless they are clearly unconstitutional.

III

It is also respectfully submitted that the petition should he dismissed with respect to the Pedrosas. The inclusion of the Pedrosas in the petition is utterly baseless. The records show that the case at bar started when respondent Delfin alone and by himself filed with the COMELEC a Petition to Amend the Constitution to Lift Term Limits of Elective Officials by People's Initiative. The Pedrosas did not join the petition. It was Senator Roco who moved to intervene and was allowed to do so by the COMELEC. The petition was heard and before the COMELEC could resolve the Delfin petition, the case at bar was filed by the petitioners with this Court. Petitioners sued the COMELEC. Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa in their capacities as founding members of the People's Initiative for Reform, Modernization and Action (PIRMA). The suit is an original action for prohibition with prayer for temporary restraining order and/or writ of preliminary injunction.

The petition on its face states no cause of action against the Pedrosas. The only allegation against the Pedrosas is that they are founding members of the PIRMA which proposes to undertake the signature drive for people's initiative to amend the Constitution. Strangely, the PIRMA itself as an organization was not impleaded as a respondent. Petitioners then prayed that we order the Pedrosas ". . . to desist from conducting a signature drive for a people's initiative to amend the Constitution." On December 19, 1996, we temporarily enjoined the Pedrosas ". . . from conducting a signature drive for people's initiative to amend the Constitution." It is not enough for the majority to lift the temporary restraining order against the Pedrosas. It should dismiss the petition and all motions for contempt against them without equivocation.

One need not draw a picture to impart the proposition that in soliciting signatures to start a people's initiative to amend the Constitution the Pedrosas are not engaged in any criminal act. Their solicitation of signatures is a right guaranteed in black and white by section 2 of Article XVII of the Constitution which provides that ". . . amendments to this Constitution may likewise be directly proposed by the people through initiative. . ." This right springs from the principle proclaimed in section 1, Article II of the Constitution that in a democratic and republican state "sovereignty resides in the people and all government authority emanates from them." The Pedrosas are part of the people and their voice is part of the voice of the people. They may constitute but a particle of our sovereignty but no power can trivialize them for sovereignty is indivisible.

But this is not all. Section 16 of Article XIII of the Constitution provides: "The right of the people and their organizations to effective and reasonable participation at all levels of social, political and economic decision-making shall not be abridged. The State shall by law, facilitate the establishment of adequate consultation mechanisms." This is another novel provision of the 1987 Constitution strengthening the sinews of the sovereignty of our people. In soliciting signatures to amend the Constitution, the Pedrosas are participating in the political decision-making process of our people. The Constitution says their right cannot be abridged without any ifs and buts. We cannot put a question mark on their right.

Over and above these new provisions, the Pedrosas' campaign to amend the Constitution is an exercise of their freedom of speech and expression and their right to petition the government for redress of grievances. We have memorialized this universal right in all our fundamental laws from the Malolos Constitution to the 1987 Constitution. We have iterated and reiterated in our rulings that freedom of speech is a preferred right, the matrix of other important rights of our people. Undeniably, freedom of speech enervates the essence of the democratic creed of think and let think. For this reason, the Constitution encourages speech even if it protects the speechless.

It is thus evident that the right of the Pedrosas to solicit signatures to start a people's initiative to amend the Constitution does not depend on any law, much less on R.A. 6735 or COMELEC Resolution No. 2300. No law, no Constitution can chain the people to an undesirable status quo. To be sure, there are no irrepealable laws just as there are no irrepealable Constitutions. Change is the predicate of progress and we should not fear change. Mankind has long recognized the truism that the only constant in life is change and so should the majority.

IV

In a stream of cases, this Court has rhapsodized people power as expanded in the 1987 Constitution. On October 5, 1993, we observed that people's might is no longer a myth but an article of faith in our Constitution. 41 On September 30, 1994, we postulated that people power can be trusted to check excesses of government and that any effort to trivialize the effectiveness of people's initiatives ought to be rejected. 42 On September 26, 1996, we pledged that ". . . this Court as a matter of policy and doctrine will exert every effort to nurture, protect and promote their legitimate exercise." 43 Just a few days ago, or on March 11, 1997, by a unanimous decision, 44 we allowed a recall election in Caloocan City involving the mayor and ordered that he submits his right to continue in office to the judgment of the tribunal of the people. Thus far, we have succeeded in transforming people power from an opaque abstraction to a robust reality. The Constitution calls us to encourage people empowerment to blossom in full. The Court cannot halt any and all signature campaigns to amend the Constitution without setting back the flowering of people empowerment. More important, the Court cannot seal the lips of people who are pro-change but not those who are anti-change without concerting the debate on charter change into a sterile talkaton. Democracy is enlivened by a dialogue and not by a monologue for in a democracy nobody can claim any infallibility.

Melo and Mendoza, JJ., concur.

 

VITUG, J., concurring and dissenting:

The COMELEC should have dismissed, outrightly, the Delfin Petition.

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

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.

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

The Delfin petition is thus utterly deficient. Instead of complying with the constitutional imperatives, the petition would rather have much of its burden passed on, in effect, to the COMELEC. The petition would require COMELEC to schedule "signature gathering all over the country," to cause the necessary publication of the petition "in newspapers of general and local circulation," and to instruct "Municipal Election Registrars in all Regions of the Philippines to assist petitioners and volunteers in establishing signing stations at the time and on the dates designated for the purpose.

I submit, even then, that the TRO earlier issued by the Court which, consequentially, is made permanent under the ponencia should be held to cover only the Delfin petition and must not be so understood as having intended or contemplated to embrace the signature drive of the Pedrosas. The grant of such a right is clearly implicit in the constitutional mandate on people initiative.

The distinct greatness of a democratic society is that those who reign are the governed themselves. The postulate is no longer lightly taken as just a perceived myth but a veritable reality. The past has taught us that the vitality of government lies not so much in the strength of those who lead as in the consent of those who are led. The role of free speech is pivotal but it can only have its true meaning if it comes with the correlative end of being heard.

Pending a petition for a people's initiative that is sufficient in form and substance, it behooves the Court, I most respectfully submit, to yet refrain from resolving the question of whether or not Republic Act No. 6735 has effectively and sufficiently implemented the Constitutional provision on right of the people to directly propose constitutional amendments. Any opinion or view formulated by the Court at this point would at best be only a non-binding, albeit possibly persuasive, obiter dictum.

I vote for granting the instant petition before the Court and for clarifying that the TRO earlier issued by the Court did not prescribe the exercise by the Pedrosas of their right to campaign for constitutional amendments.

 

FRANCISCO, J., dissenting and concurring:

There is no question that my esteemed colleague Mr. Justice Davide has prepared a scholarly and well-written ponencia. Nonetheless, I cannot fully subscribe to his view that R. A. No. 6735 is inadequate to cover the system of initiative on amendments to the Constitution.

To begin with, sovereignty under the constitution, resides in the people and all government authority emanates from them. 1 Unlike our previous constitutions, the present 1987 Constitution has given more significance to this declaration of principle for the people are now vested with power not only to propose, enact or reject any act or law passed by Congress or by the local legislative body, but to propose amendments to the constitution as well. 2 To implement these constitutional edicts, Congress in 1989 enacted Republic Act No. 6735, otherwise known as "The initiative and Referendum Act". This law, to my mind, amply covers an initiative on the constitution. The contrary view maintained by petitioners is based principally on the alleged lack of sub-title in the law on initiative to amend the constitution and on their allegation that:

Republic Act No. 6735 provides for the effectivity of the law after publication in print media. [And] [t]his indicates that Republic Act No. 6735 covers only laws and not constitutional amendments, because constitutional amendments take effect upon ratification not after publication. 3

which allegation manifests petitioners' selective interpretation of the law, for under Section 9 of Republic Act No. 6735 on the Effectivity of Initiative or Referendum Proposition paragraph (b) thereof is clear in providing that:

The proposition in an initiative on the constitution approved by a majority of the votes cast in the plebiscite shall become effective as to the day of the plebiscite.

It is a rule that every part of the statute must be interpreted with reference the context, i.e., that every part of the statute must be construed together with the other parts and kept subservient to the general intent of the whole enactment. 4 Thus, the provisions of Republic Act No. 6735 may not be interpreted in isolation. The legislative intent behind every law is to be extracted from the statute as a whole. 5

In its definition of terms, Republic Act No. 6735 defines initiative as "the power of the people to propose amendments to the constitution or to propose and enact legislations through an election called for the purpose". 6 The same section, in enumerating the three systems of initiative, included an "initiative on the constitution which refers to a petition proposing amendments to the constitution" 7 Paragraph (e) again of Section 3 defines "plebiscite" as "the electoral process by which an initiative on the constitution is approved or rejected by the people" And as to the material requirements for an initiative on the Constitution, Section 5(b) distinctly enumerates the following:

A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of the registered voters as signatories, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein. Initiative on the constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five years thereafter.

These provisions were inserted, on purpose, by Congress the intent being to provide for the implementation of the right to propose an amendment to the Constitution by way of initiative. "A legal provision", the Court has previously said, "must not be construed as to be a useless surplusage, and accordingly, meaningless, in the sense of adding nothing to the law or having no effect whatsoever thereon". 8 That this is the legislative intent is further shown by the deliberations in Congress, thus:

. . . More significantly, in the course of the consideration of the Conference Committee Report on the disagreeing provisions of Senate Bill No. 17 and House Bill No. 21505, it was noted:

MR. ROCO. On the Conference Committee Report on the disagreeing provisions between Senate Bill No. 17 and the consolidated House Bill No. 21505 which refers to the system providing for the initiative and referendum, fundamentally, Mr. Speaker, we consolidated the Senate and the House versions, so both versions are totally intact in the bill. The Senators ironically provided for local initiative and referendum and the House of Representatives correctly provided for initiative and referendum an the Constitution and on national legislation.

I move that we approve the consolidated bill.

MR. ALBANO, Mr. Speaker.

THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader?

MR. ALBANO. Will the distinguished sponsor answer just a few questions?

THE SPEAKER PRO TEMPORE. What does the sponsor say?

MR. ROCO. Willingly, Mr. Speaker.

THE SPEAKER PRO TEMPORE. The Gentleman will please proceed.

MR. ALBANO. I heard the sponsor say that the only difference in the two bills was that in the Senate version there was a provision for local initiative and referendum, whereas the House version has none.

MR. ROCO. In fact, the Senate version provided purely for local initiative and referendum, whereas in the House version, we provided purely for national and constitutional legislation.

MR. ALBANO. Is it our understanding, therefore, that the two provisions were incorporated?

MR. ROCO. Yes, Mr. Speaker.

MR. ALBANO. So that we will now have a complete initiative and referendum both in the constitutional amendment and national legislation.

MR. ROCO. That is correct.

MR. ALBANO. And provincial as well as municipal resolutions?

MR. ROCO. Down to barangay, Mr. Speaker.

MR. ALBANO. And this initiative and referendum is in consonance with the provision of the Constitution to enact the enabling law, so that we shall have a system which can be done every five years. Is it five years in the provision of the Constitution?

MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments to the 1987 Constitution, it is every five years." (Id. [Journal and Record of the House of Representatives], Vol. VIII, 8 June 1989, p. 960; quoted in Garcia v. Comelec, 237 SCRA 279, 292-293 [1994]; emphasis supplied)

. . . The Senate version of the Bill may not have comprehended initiatives on the Constitution. When consolidated, though, with the House version of the Bill and as approved and enacted into law, the proposal included initiative on both the Constitution and ordinary laws. 9

Clearly then, Republic Act No. 6735 covers an initiative on the constitution. Any other construction as what petitioners foist upon the Court constitute a betrayal of the intent and spirit behind the enactment.

At any rate, I agree with the ponencia that the Commission on Elections, at present, cannot take any action (such as those contained in the Commission's orders dated December 6, 9, and 12, 1996 [Annexes B, C and B-1]) indicative of its having already assumed jurisdiction over private respondents' petition. This is so because from the tenor of Section 5 (b) of R.A. No. 6735 it would appear that proof of procurement of the required percentage of registered voters at the time the petition for initiative is filed, is a jurisdictional requirement.

Thus:

A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein. Initiative on the Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five (5) years thereafter.

Here private respondents' petition is unaccompanied by the required signatures. This defect notwithstanding, it is without prejudice to the refiling of their petition once compliance with the required percentage is satisfactorily shown by private respondents. In the absence, therefore, of an appropriate petition before the Commission on Elections, any determination of whether private respondents' proposal constitutes an amendment or revision is premature.

ACCORDINGLY, I take exception to the conclusion reached in the ponencia that R.A. No. 6735 is an "inadequate" legislation to cover a people's initiative to propose amendments to the Constitution. I, however, register my concurrence with the dismissal, in the meantime, of private respondents' petition for initiative before public respondent Commission on Elections until the same be supported by proof of strict compliance with Section 5 (b) of R.A. No. 6735.

Melo and Mendoza, JJ., concur.

 

PANGANIBAN, J., concurring and dissenting:

Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for the majority, holds that:

(1) The Comelec acted without jurisdiction or with grave abuse of discretion in entertaining the "initiatory" Delfin Petition.

(2) While the Constitution allows amendments to "be directly proposed by the people through initiative," there is no implementing law for the purpose. RA 6735 is "incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned."

(3) Comelec Resolution No. 2330, "insofar as it prescribes rules and regulations on the conduct of initiative on amendments to the Constitution, is void."

I concur with the first item above. Until and unless an initiatory petition can show the required number of signatures — in this case, 12% of all the registered voters in the Philippines with at least 3% in every legislative district — no public funds may be spent and no government resources may be used in an initiative to amend the Constitution. Verily, the Comelec cannot even entertain any petition absent such signatures. However, I dissent most respectfully from the majority's two other rulings. Let me explain.

Under the above restrictive holdings espoused by the Court's majority, the Constitution cannot be amended at all through a people's initiative. Not by Delfin, not by Pirma, not by anyone, not even by all the voters of the country acting together. This decision will effectively but unnecessarily curtail, nullify, abrogate and render inutile the people's right to change the basic law. At the very least, the majority holds the right hostage to congressional discretion on whether to pass a new law to implement it, when there is already one existing at present. This right to amend through initiative, it bears stressing, is guaranteed by Section 2, Article XVII of the Constitution, as follows:

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.

With all due respect, I find the majority's position all too sweeping and all too extremist. It is equivalent to burning the whole house to exterminate the rats, and to killing the patient to relieve him of pain. What Citizen Delfin wants the Comelec to do we should reject. But we should not thereby preempt any future effort to exercise the right of initiative correctly and judiciously. The fact that the Delfin Petition proposes a misuse of initiative does not justify a ban against its proper use. Indeed, there is a right way to do the right thing at the right time and for the right reason.

Taken Together and Interpreted Properly, the Constitution, RA 6735 and Comelec Resolution 2300 Are Sufficient to Implement Constitutional Initiatives

While RA 6735 may not be a perfect law, it was — as the majority openly concedes — intended by the legislature to cover and, I respectfully submit, it contains enough provisions to effectuate an initiative on the Constitution. 1 I completely agree with the inspired and inspiring opinions of Mr. Justice Reynato S. Puno and Mr. Justice Ricardo J. Francisco that RA 6735, the Roco law on initiative, sufficiently implements the right of the people to initiate amendments to the Constitution. Such views, which I shall no longer repeat nor elaborate on, are thoroughly consistent with this Court's unanimous en banc rulings in Subic Bay Metropolitan Authority vs. Commission on Elections, 2 that "provisions for initiative . . . are (to be) liberally construed to effectuate their purposes, to facilitate and not hamper the exercise by the voters of the rights granted thereby"; and in Garcia vs. Comelec, 3 that any "effort to trivialize the effectiveness of people's initiatives ought to be rejected."

No law can completely and absolutely cover all administrative details. In recognition of this, RA 6735 wisely empowered 4 the Commission on Election "to promulgate such rules and regulations as may be necessary to carry out the purposes of this Act." And pursuant thereto, the Comelec issued its Resolution 2300 on 16 January 1991. Such Resolution, by its very words, was promulgated "to govern the conduct of initiative on the Constitution and initiative and referendum on national and local laws," not by the incumbent Commission on Elections but by one then composed of Acting Chairperson Haydee B. Yorac, Comms. Alfredo E. Abueg Jr., Leopoldo L. Africa, Andres R. Flores, Dario C. Rama and Magdara B. Dimaampao. All of these Commissioners who signed Resolution 2300 have retired from the Commission, and thus we cannot ascribe any vile motive unto them, other than an honest, sincere and exemplary effort to give life to a cherished right of our people.

The majority argues that while Resolution 2300 is valid in regard to national laws and local legislations, it is void in reference to constitutional amendments. There is no basis for such differentiation. The source of and authority for the Resolution is the same law, RA 6735.

I respectfully submit that taken together and interpreted properly and liberally, the Constitution (particularly Art. XVII, Sec. 2), R4 6735 and Comelec Resolution 2300 provide more than sufficient authority to implement, effectuate and realize our people's power to amend the Constitution.

Petitioner Delfin and the PedrosaSpouses Should Not Be Muzzled

I am glad the majority decided to heed our plea to lift the temporary restraining order issued by this Court on 18 December 1996 insofar as it prohibited Petitioner Delfin and the Spouses Pedrosa from exercising their right of initiative. In fact, I believe that such restraining order as against private respondents should not have been issued, in the first place. While I agree that the Comelec should be stopped from using public funds and government resources to help them gather signatures, I firmly believe that this Court has no power to restrain them from exercising their right of initiative. The right to propose amendments to the Constitution is really a species of the right of free speech and free assembly. And certainly, it would be tyrannical and despotic to stop anyone from speaking freely and persuading others to conform to his/her beliefs. As the eminent Voltaire once said, "I may disagree with what you say, but I will defend to the death your right to say it." After all, freedom is not really for the thought we agree with, but as Justice Holmes wrote, "freedom for the thought that we hate." 5

Epilogue

By way of epilogue, let me stress the guiding tenet of my Separate Opinion. Initiative, like referendum and recall, is a new and treasured feature of the Filipino constitutional system. All three are institutionalized legacies of the world-admired EDSA people power. Like elections and plebiscites, they are hallowed expressions of popular sovereignty. They are sacred democratic rights of our people to be used as their final weapons against political excesses, opportunism, inaction, oppression and misgovernance; as well as their reserved instruments to exact transparency, accountability and faithfulness from their chosen leaders. While on the one hand, their misuse and abuse must be resolutely struck down, on the other, their legitimate exercise should be carefully nurtured and zealously protected.

WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et al. and to DIRECT Respondent Commission on Elections to DISMISS the Delfin Petition on the ground of prematurity, but not on the other grounds relied upon by the majority. I also vote to LIFT the temporary restraining order issued on 18 December 1996 insofar as it prohibits Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa from exercising their right to free speech in proposing amendments to the Constitution.

Melo and Mendoza, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

 

G.R. No. L-34150 October 16, 1971

ARTURO M. TOLENTINO, petitioner, vs.

COMMISSION ON ELECTIONS, and THE CHIEF ACCOUNTANT, THE AUDITOR, and THE DISBURSING OFFICER OF THE 1971 CONSTITUTIONAL CONVENTION, respondents, RAUL S. MANGLAPUS, JESUS G. BARRERA, PABLO S. TRILLANA III, VICTOR DE LA SERNA, MARCELO B. FERNAN, JOSE Y. FERIA, LEONARDO SIGUION REYNA, VICTOR F. ORTEGA, and JUAN V. BORRA, Intervenors.

Arturo M. Tolentino in his own behalf.

Ramon A. Gonzales for respondents Chief Accountant and Auditor of the 1971 Constitutional Convention.

Emmanuel Pelaez, Jorge M. Juco and Tomas L. Echivarre for respondent Disbursing Officer of the 1971 Constitutional Convention.

Intervenors in their own behalf.

 

BARREDO, J.:

Petition for prohibition principally to restrain the respondent Commission on Elections "from undertaking to hold a plebiscite on November 8, 1971," at which the proposed constitutional amendment "reducing the voting age" in Section 1 of Article V of the Constitution of the Philippines to eighteen years "shall be, submitted" for ratification by the people pursuant to Organic Resolution No. 1 of the Constitutional Convention of 1971, and the subsequent implementing resolutions, by declaring said resolutions to be without the force and effect of law in so far as they direct the holding of such plebiscite and by also declaring the acts of the respondent Commission (COMELEC) performed and to be done by it in obedience to the aforesaid Convention resolutions to be null and void, for being violative of the Constitution of the Philippines.

As a preliminary step, since the petition named as respondent only the COMELEC, the Count required that copies thereof be served on the Solicitor General and the Constitutional Convention, through its President, for such action as they may deem proper to take. In due time, respondent COMELEC filed its answer joining issues with petitioner. To further put things in proper order, and considering that the fiscal officers of the Convention are indispensable parties in a proceeding of this nature, since the acts sought to be enjoined involve the expenditure of funds appropriated by law for the Convention, the Court also ordered that the Disbursing Officer, Chief Accountant and Auditor of the Convention be made respondents. After the petition was so amended, the first appeared thru Senator Emmanuel Pelaez and the last two thru Delegate Ramon Gonzales. All said respondents, thru counsel, resist petitioner's action.

For reasons of orderliness and to avoid unnecessary duplication of arguments and even possible confusion, and considering that with the principal parties being duly represented by able counsel, their interests would be adequately protected already, the Court had to limit the number of intervenors from the ranks of the delegates to the Convention who, more or less, have legal interest in the success of the respondents, and so, only Delegates Raul S. Manglapus, Jesus G. Barrera, Pablo S. Trillana III, Victor de la Serna, Marcelo B. Fernan, Jose Y. Feria, Leonardo Siguion Reyna, Victor Ortega and Juan B. Borra, all distinguished lawyers in their own right, have been allowed to intervene jointly. The Court feels that with such an array of brilliant and dedicated counsel, all interests involved should be duly and amply represented and protected. At any rate, notwithstanding that their corresponding motions for leave to intervene or to appear as amicus curiae 1 have been denied, the pleadings filed by the other delegates and some private parties, the latter in representation of their minor children allegedly to be affected by the result of this case with the records and the Court acknowledges that they have not been without value as materials in the extensive study that has been undertaken in this case.

The background facts are beyond dispute. The Constitutional Convention of 1971 came into being by virtue of two resolutions of the Congress of the Philippines approved in its capacity as a constituent assembly convened for the purpose of calling a convention to propose amendments to the Constitution namely, Resolutions 2 and 4 of the joint sessions of Congress held on March 16, 1967 and June 17, 1969 respectively. The delegates to the said Convention were all elected under and by virtue of said resolutions and the implementing legislation thereof, Republic Act 6132. The pertinent portions of Resolution No 2 read as follows:

SECTION 1. There is hereby called a convention to propose amendments to the Constitution of the Philippines, to be composed of two elective Delegates from each representative district who shall have the same qualifications as those required of Members of the House of Representatives.

xxx xxx xxx

SECTION 7. The amendments proposed by the Convention shall be valid and considered part of the Constitution when approved by a majority of the votes cast in an election at which they are submitted to the people for their ratification pursuant to Article XV of the Constitution.

Resolution No. 4 merely modified the number of delegates to represent the different cities and provinces fixed originally in Resolution No 2.

After the election of the delegates held on November 10, 1970, the Convention held its inaugural session on June 1, 1971. Its preliminary labors of election of officers, organization of committees and other preparatory works over, as its first formal proposal to amend the Constitution, its session which began on September 27, 1971, or more accurately, at about 3:30 in the morning of September 28, 1971, the Convention approved Organic Resolution No. 1 reading thus: .

CC ORGANIC RESOLUTION NO. 1

A RESOLUTION AMENDING SECTION ONE OF ARTICLE V OF THE CONSTITUTION OF THE PHILIPPINES SO AS TO LOWER THE VOTING AGE TO 18

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

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

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

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

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

Section 4. The Convention hereby authorizes the use of the sum of P75,000.00 from its savings or from its unexpended funds for the expense of the advanced plebiscite; provided, however that should there be no savings or unexpended sums, the Delegates waive P250.00 each or the equivalent of 2-1/2 days per diem.

By a letter dated September 28, 1971, President Diosdado Macapagal, called upon respondent Comelec "to help the Convention implement (the above) resolution." The said letter reads:

September 28, 1971

The Commission on Elections Manila

Thru the Chairman

Gentlemen:

Last night the Constitutional Convention passed Resolution No. 1 quoted as follows:

xxx xxx xxx

(see above)

Pursuant to the provision of Section 14, Republic Act No. 6132 otherwise known as the Constitutional Convention Act of 1971, may we call upon you to help the Convention implement this resolution:

Sincerely,

(Sgd.) DIOSDADO P. MACAPAGALDIOSDADO P. MACAPAGALPresident

On September 30, 1971, COMELEC "RESOLVED to inform the Constitutional Convention that it will hold the plebiscite on condition that:

(a) The Constitutional Convention will undertake the printing of separate official ballots, election returns and tally sheets for the use of said plebiscite at its expense;

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

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

What happened afterwards may best be stated by quoting from intervenors' Governors' statement of the genesis of the above proposal:

The President of the Convention also issued an order forming an Ad Hoc Committee to implement the Resolution.

This Committee issued implementing guidelines which were approved by the President who then transmitted them to the Commission on Elections.

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

RECESS RESOLUTION

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

RESOLUTION CONFIRMING IMPLEMENTATION

On October 12, 1971, the Convention passed Resolution No. 24 submitted by Delegate Jose Ozamiz confirming the authority of the President of the Convention to implement Organic Resolution No. 1, including the creation of the Ad Hoc Committee ratifying all acts performed in connection with said implementation.

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

As a preliminary and prejudicial matter, the intervenors raise the question of jurisdiction. They contend that the issue before Us is a political question and that the Convention being legislative body of the highest order is sovereign, and as such, its acts impugned by petitioner are beyond the control of the Congress and the courts. In this connection, it is to be noted that none of the respondent has joined intervenors in this posture. In fact, respondents Chief Accountant and Auditor of the convention expressly concede the jurisdiction of this Court in their answer acknowledging that the issue herein is a justifiable one.

Strangely, intervenors cite in support of this contention portions of the decision of this Court in the case of Gonzales v. Comelec, 21 SCRA 774, wherein the members of the Court, despite their being divided in their opinions as to the other matters therein involved, were precisely unanimous in upholding its jurisdiction. Obviously, distinguished counsel have either failed to grasp the full impact of the portions of Our decision they have quoted or would misapply them by taking them out of context.

There should be no more doubt as to the position of this Court regarding its jurisdiction vis-a-vis the constitutionality of the acts of the Congress, acting as a constituent assembly, and, for that matter, those of a constitutional convention called for the purpose of proposing amendments to the Constitution, which concededly is at par with the former. A simple reading of Our ruling in that very case of Gonzales relied upon by intervenors should dispel any lingering misgivings as regards that point. Succinctly but comprehensively, Chief Justice Concepcion held for the Court thus: .

As early as Angara vs. Electoral Commission (63 Phil. 139, 157), this Court — speaking through one of the leading members of the Constitutional Convention and a respected professor of Constitutional Law, Dr. Jose P. Laurel — declared that "the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof."

It is true that in Mabanag v. Lopez Vito (supra), this Court characterizing the issue submitted thereto as a political one declined to pass upon the question whether or not a given number of votes cast in Congress in favor of a proposed amendment to the Constitution — which was being submitted to the people for ratification — satisfied the three-fourths vote requirement of the fundamental law. The force of this precedent has been weakened, however, by Suanes v. Chief Accountant of the Senate (81 Phil. 818), Avelino v. Cuenco, (L-2851, March 4 & 14, 1949), Tañada v. Cuenco, (L-10520, Feb. 28, 1957) and Macias v. Commission on Elections, (L-18684, Sept. 14, 1961). In the first we held that the officers and employees of the Senate Electoral Tribunal are under its supervision and control, not of that of the Senate President, as claimed by the latter; in the second, this Court proceeded to determine the number of Senators necessary for quorum in the Senate; in the third, we nullified the election, by Senators belonging to the party having the largest number of votes in said chamber, purporting to act, on behalf of the party having the second largest number of votes therein of two (2) Senators belonging to the first party, as members, for the second party, of the Senate Electoral Tribunal; and in the fourth, we declared unconstitutional an act of Congress purporting to apportion the representatives districts for the House of Representatives, upon the ground that the apportionment had not been made as may be possible according to the number of inhabitants of each province. Thus we rejected the theory, advanced in these four (4) cases that the issues therein raised were political questions the determination of which is beyond judicial review.

Indeed, the power to amend the Constitution or to propose amendments thereto is not included in the general grant of legislative powers to Congress (Section 1, Art. VI, Constitution of the Philippines). It is part of the inherent powers of the people — as the repository sovereignty in a republican state, such as ours (Section 1, Art. 11, Constitution of the Philippines) — to make, and, hence, to amend their own Fundamental Law. Congress may propose amendments to the Constitution merely because the same explicitly grants such power. (Section 1, Art. XV, Constitution of the Philippines) Hence, when exercising the same, it is said that Senators and members of the House of Representatives act, not as members of Congress, but as component elements of a constituent assembly. When acting as such, the members of

Congress derive their authority from the Constitution, unlike the people, when performing the same function, (Of amending the Constitution) for their authority does not emanate from the Constitution — they are the very source of all powers of government including the Constitution itself.

Since, when proposing, as a constituent assembly, amendments to the Constitution, the members of Congress derive their authority from the Fundamental Law, it follows, necessarily, that they do not have the final say on whether or not their acts are within or beyond constitutional limits. Otherwise, they could brush aside and set the same at naught, contrary to the basic tenet that ours is a government of laws, not of men, and to the rigid nature of our Constitution. Such rigidity is stressed by the fact that the Constitution expressly confers upon the Supreme Court, (And, inferentially, to lower courts.) the power to declare a treaty unconstitutional. (Sec. 2(1), Art. VIII of the Constitution), despite the eminently political character of treaty-making power.

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

No one can rightly claim that within the domain of its legitimate authority, the Convention is not supreme. Nowhere in his petition and in his oral argument and memoranda does petitioner point otherwise. Actually, what respondents and intervenors are seemingly reluctant to admit is that the Constitutional Convention of 1971, as any other convention of the same nature, owes its existence and derives all its authority and power from the existing Constitution of the Philippines. This Convention has not been called by the people directly as in the case of a revolutionary convention which drafts the first Constitution of an entirely new government born of either a war of liberation from a mother country or of a revolution against an existing government or of a bloodless seizure of power a la coup d'etat. As to such kind of conventions, it is absolutely true that the convention is completely without restrain and omnipotent all wise, and it is as to such conventions that the remarks of Delegate Manuel Roxas of the Constitutional Convention of 1934 quoted by Senator Pelaez refer. No amount of rationalization can belie the fact that the current convention came into being only because it was called by a resolution of a joint session of Congress acting as a constituent assembly by authority of Section 1, Article XV of the present Constitution which provides:

ARTICLE XV — AMENDMENTS

SECTION 1. The Congress in joint session assembled, by a vote of three-fourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments to this Constitution or call a convention for the purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification.

True it is that once convened, this Convention became endowed with extra ordinary powers generally beyond the control of any department of the existing government, but the compass of such powers can be co-extensive only with the purpose for which the convention was called and as it may propose cannot have any effect as part of the Constitution until the same are duly ratified by the people, it necessarily follows that the acts of convention, its officers and members are not immune from attack on constitutional grounds. The present Constitution is in full force and effect in its entirety and in everyone of its parts the existence of the Convention notwithstanding, and operates even within the walls of that assembly. While it is indubitable that in its internal operation and the performance of its task to propose amendments to the Constitution it is not subject to any degree of restraint or control by any other authority than itself, it is equally beyond cavil that neither the Convention nor any of its officers or members can rightfully deprive any person of life, liberty or property without due process of law, deny to anyone in this country the equal protection of the laws or the freedom of speech and of the press in disregard of the Bill of Rights of the existing Constitution. Nor, for that matter, can such Convention validly pass any resolution providing for the taking of private property without just compensation or for the imposition or exacting of any tax, impost or assessment, or declare war or call the Congress to a special session, suspend the privilege of the writ of habeas corpus, pardon a convict or render judgment in a controversy between private individuals or between such individuals and the state, in violation of the distribution of powers in the Constitution.

It being manifest that there are powers which the Convention may not and cannot validly assert, much less exercise, in the light of the existing Constitution, the simple question arises, should an act of the Convention be assailed by a citizen as being among those not granted to or inherent in it, according to the existing Constitution, who can decide whether such a contention is correct or not? It is of the very essence of the rule of law that somehow somewhere the Power and duty to resolve such a grave constitutional question must be lodged on some authority, or we would have to confess that the integrated system of government established by our founding fathers contains a wide vacuum no intelligent man could ignore, which is naturally unworthy of their learning, experience and craftsmanship in constitution-making.

We need not go far in search for the answer to the query We have posed. The very decision of Chief Justice Concepcion in Gonzales, so much invoked by intervenors, reiterates and reinforces the irrefutable logic and wealth of principle in the opinion written for a unanimous Court by Justice Laurel in Angara vs. Electoral Commission, 63 Phil., 134, reading:

... (I)n the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government. The overlapping and interlacing of functions and duties between the several departments, however, sometimes makes it hard to say where the one leaves off and the other begins. In times of social disquietude or political excitement, the great landmark of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof.

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

The Constitution is a definition of the powers or government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the

rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution. Even then, this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to strike conclusions unrelated to actualities. Narrowed as its functions is in this manner the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government.

But much as we might postulate on the internal checks of power provided in our Constitution, it ought not the less to be remembered that, in the language of James Madison, the system itself is not "the chief palladium of constitutional liberty ... the people who are authors of this blessing must also be its guardians ... their eyes must be ever ready to mark, their voices to pronounce ... aggression on the authority of their Constitution." In the last and ultimate analysis then, must the success of our government in the unfolding years to come be tested in the crucible of Filipino minds and hearts than in consultation rooms and court chambers.

In the case at bar, the National Assembly has by resolution (No. 8) of December 3, 1935, confirmed the election of the herein petitioner to the said body. On the other hand, the Electoral Commission has by resolution adopted on December 9, 1935, fixed said date as the last day for the filing of protests against the election, returns and qualifications of members of the National Assembly; notwithstanding the previous confirmations made by the National Assembly as aforesaid. If, as contended by the petitioner, the resolution of the National Assembly has the effect of cutting off the power of the Electoral Commission to entertain protests against the election, returns and qualifications of members of the National Assembly, submitted after December 3, 1935 then the resolution of the Electoral Commission of December 9, 1935, is mere surplusage and had no effect. But, if, as contended by the respondents, the Electoral Commission has the sole power of regulating its proceedings to the exclusion of the National Assembly, then the resolution of December 9, 1935, by which the Electoral Commission fixed said date as the last day for filing protests against the election, returns and qualifications of members of the National Assembly, should be upheld.

Here is then presented an actual controversy involving as it does a conflict of a grave constitutional nature between the National Assembly on the one hand and the Electoral Commission on the other. From the very nature of the republican government established in our country in the light of American experience and of our own, upon the judicial department is thrown the solemn and inescapable obligation of interpreting the Constitution and defining constitutional boundaries. The Electoral Commission as we shall have occasion to refer hereafter, is a constitutional organ, created for a specific purpose, namely, to determine all contests relating to the election, returns and qualifications of the members of the National Assembly. Although the Electoral Commission may not be interfered with, when and while acting within the limits of its authority, it does not follow that it is beyond the reach of the constitutional mechanism adopted by the people and that it is not subject to constitutional restriction. The Electoral Commission is not a separate department of the government, and even if it were, conflicting claims of authority under the fundamental law between departmental powers and agencies of the government are necessarily determined by the judiciary in justiciable and appropriate cases. Discarding the English type and other European types of constitutional government, the framers of our Constitution adopted the American type where the written constitution is interpreted and given effect by the judicial department. In some countries which have declined to follow the American example, provisions have been inserted in their constitutions prohibiting the courts from exercising the power to interpret the fundamental law. This is taken as a recognition of what otherwise would be the rule that in the absence of direct prohibition, courts are bound to assume what is logically their function. For instance, the Constitution of Poland of 1921 expressly provides that courts shall have no power to examine the validity of statutes (art. 81, Chap. IV). The former Austrian Constitution contained a similar declaration. In countries whose constitution are silent in this respect, courts have assumed this power. This is true in Norway, Greece, Australia and South Africa. Whereas, in Czechoslovakia (arts. 2 and 3, Preliminary Law to Constitutional Charter of the Czechoslavak, Republic, February 29, 1920) and Spain (arts. 121-123, Title IX, Constitution of the Republic of 1931) especial constitutional courts are established to pass upon the validity of ordinary laws. In our case, the nature of the present controversy shows the necessity of a final constitutional arbiter to determine the conflict of authority between two agencies created by the Constitution. Were we to decline to take cognizance of the controversy, who will determine the conflict? And if the conflict were left undecided and undetermined, would not a void be thus created in our constitutional system which may in the long run prove destructive of the entire framework? To ask these questions is to answer them. Natura vacuum abhorret, so must we avoid exhaustion in our constitutional system. Upon principle, reason, and authority, we are clearly of the opinion that upon the admitted facts of the present case, this court has jurisdiction over the Electoral Commission and the subject matter of the present controversy for the purpose of determining the character, scope and extent of the constitutional grant to the Electoral Commission as "the sole judge of all contests relating to the election, returns and qualifications of the members of the National Assembly." .

As the Chief Justice has made it clear in Gonzales, like Justice Laurel did in Angara, these postulates just quoted do not apply only to conflicts of authority between the three existing regular departments of the government but to all such conflicts between and among these departments, or, between any of them, on the one hand, and any other constitutionally created independent body, like the electoral tribunals in Congress, the Comelec and the Constituent assemblies constituted by the House of Congress, on the other. We see no reason of logic or principle whatsoever, and none has been convincingly shown to Us by any of the respondents and intervenors, why the same ruling should not apply to the present Convention, even if it is an assembly of delegate elected directly by the people, since at best, as already demonstrated, it has been convened by authority of and under the terms of the present Constitution..

Accordingly, We are left with no alternative but to uphold the jurisdiction of the Court over the present case. It goes without saying that We do this not because the Court is superior to the Convention or that the Convention is subject to the control of the Court, but simply because both the Convention and the Court are subject to the Constitution and the rule of law, and "upon principle, reason and authority," per Justice Laurel, supra, it is within the power as it is the solemn duty of the Court, under the existing Constitution to resolve the issues in which petitioner, respondents and intervenors have joined in this case.

II

The issue of jurisdiction thus resolved, We come to the crux of the petition. Is it within the powers of the Constitutional Convention of 1971 to order, on its own fiat, the holding of a plebiscite for the ratification of the proposed amendment reducing to eighteen years the age for the exercise of suffrage under Section 1 of Article V of the Constitution proposed in the Convention's Organic Resolution No. 1 in the manner and form provided for in said resolution and the subsequent implementing acts and resolution of the Convention?

At the threshold, the environmental circumstances of this case demand the most accurate and unequivocal statement of the real issue which the Court is called upon to resolve. Petitioner has very clearly stated that he is not against the constitutional extension of the right of suffrage to the eighteen-year-olds, as a matter of fact, he has advocated or sponsored in Congress such a proposal, and that, in truth, the herein petition is not intended by him to prevent that the proposed amendment here involved be submitted to the people for ratification, his only purpose in filing the petition being to comply with his sworn duty to prevent, Whenever he can, any violation of the Constitution of the Philippines even if it is committed in the course of or in connection with the most laudable undertaking. Indeed, as the Court sees it, the specific question raised in this case is limited solely and only to the point of whether or not it is within the power of the Convention to call for a plebiscite for the ratification by the people of the constitutional amendment proposed in the abovequoted Organic Resolution No. 1, in the manner and form provided in said resolution as well as in the subject question implementing actions and resolution of the Convention and its officers, at this juncture of its proceedings, when as it is a matter of common knowledge and judicial notice, it is not set to adjourn sine die, and is, in fact, still in the preliminary stages of considering other reforms or amendments affecting other parts of the existing Constitution; and, indeed, Organic Resolution No. 1 itself expressly provides, that the amendment therein

proposed "shall be without prejudice to other amendments that will be proposed in the future by the 1971 Constitutional Convention on other portions of the amended section or on other portions of the entire Constitution." In other words, nothing that the Court may say or do, in this case should be understood as reflecting, in any degree or means the individual or collective stand of the members of the Court on the fundamental issue of whether or not the eighteen-year-olds should be allowed to vote, simply because that issue is not before Us now. There should be no doubt in the mind of anyone that, once the Court finds it constitutionally permissible, it will not hesitate to do its part so that the said proposed amendment may be presented to the people for their approval or rejection.

Withal, the Court rests securely in the conviction that the fire and enthusiasm of the youth have not blinded them to the absolute necessity, under the fundamental principles of democracy to which the Filipino people is committed, of adhering always to the rule of law. Surely, their idealism, sincerity and purity of purpose cannot permit any other line of conduct or approach in respect of the problem before Us. The Constitutional Convention of 1971 itself was born, in a great measure, because of the pressure brought to bear upon the Congress of the Philippines by various elements of the people, the youth in particular, in their incessant search for a peaceful and orderly means of bringing about meaningful changes in the structure and bases of the existing social and governmental institutions, including the provisions of the fundamental law related to the well-being and economic security of the underprivileged classes of our people as well as those concerning the preservation and protection of our natural resources and the national patrimony, as an alternative to violent and chaotic ways of achieving such lofty ideals. In brief, leaving aside the excesses of enthusiasm which at times have justifiably or unjustifiably marred the demonstrations in the streets, plazas and campuses, the youth of the Philippines, in general, like the rest of the people, do not want confusion and disorder, anarchy and violence; what they really want are law and order, peace and orderliness, even in the pursuit of what they strongly and urgently feel must be done to change the present order of things in this Republic of ours. It would be tragic and contrary to the plain compulsion of these perspectives, if the Court were to allow itself in deciding this case to be carried astray by considerations other than the imperatives of the rule of law and of the applicable provisions of the Constitution. Needless to say, in a larger measure than when it binds other departments of the government or any other official or entity, the Constitution imposes upon the Court the sacred duty to give meaning and vigor to the Constitution, by interpreting and construing its provisions in appropriate cases with the proper parties, and by striking down any act violative thereof. Here, as in all other cases, We are resolved to discharge that duty.

During these twice when most anyone feels very strongly the urgent need for constitutional reforms, to the point of being convinced that meaningful change is the only alternative to a violent revolution, this Court would be the last to put any obstruction or impediment to the work of the Constitutional Convention. If there are respectable sectors opining that it has not been called to supplant the existing Constitution in its entirety, since its enabling provision, Article XV, from which the Convention itself draws life expressly speaks only of amendments which shall form part of it, which opinion is not without persuasive force both in principle and in logic, the seemingly prevailing view is that only the collective judgment of its members as to what is warranted by the present condition of things, as they see it, can limit the extent of the constitutional innovations the Convention may propose, hence the complete substitution of the existing constitution is not beyond the ambit of the Convention's authority. Desirable as it may be to resolve, this grave divergence of views, the Court does not consider this case to be properly the one in which it should discharge its constitutional duty in such premises. The issues raised by petitioner, even those among them in which respondents and intervenors have joined in an apparent wish to have them squarely passed upon by the Court do not necessarily impose upon Us the imperative obligation to express Our views thereon. The Court considers it to be of the utmost importance that the Convention should be untrammelled and unrestrained in the performance of its constitutionally as signed mission in the manner and form it may conceive best, and so the Court may step in to clear up doubts as to the boundaries set down by the Constitution only when and to the specific extent only that it would be necessary to do so to avoid a constitutional crisis or a clearly demonstrable violation of the existing Charter. Withal, it is a very familiar principle of constitutional law that constitutional questions are to be resolved by the Supreme Court only when there is no alternative but to do it, and this rule is founded precisely on the principle of respect that the Court must accord to the acts of the other coordinate departments of the government, and certainly, the Constitutional Convention stands almost in a unique footing in that regard.

In our discussion of the issue of jurisdiction, We have already made it clear that the Convention came into being by a call of a joint session of Congress pursuant to Section I of Article XV of the Constitution, already quoted earlier in this opinion. We reiterate also that as to matters not related to its internal operation and the performance of its assigned mission to propose amendments to the Constitution, the Convention and its officers and members are all subject to all the provisions of the existing Constitution. Now We hold that even as to its latter task of proposing amendments to the Constitution, it is subject to the provisions of Section I of Article XV. This must be so, because it is plain to Us that the framers of the Constitution took care that the process of amending the same should not be undertaken with the same ease and facility in changing an ordinary legislation. Constitution making is the most valued power, second to none, of the people in a constitutional democracy such as the one our founding fathers have chosen for this nation, and which we of the succeeding generations generally cherish. And because the Constitution affects the lives, fortunes, future and every other conceivable aspect of the lives of all the people within the country and those subject to its sovereignty, every degree of care is taken in preparing and drafting it. A constitution worthy of the people for which it is intended must not be prepared in haste without adequate deliberation and study. It is obvious that correspondingly, any amendment of the Constitution is of no less importance than the whole Constitution itself, and perforce must be conceived and prepared with as much care and deliberation. From the very nature of things, the drafters of an original constitution, as already observed earlier, operate without any limitations, restraints or inhibitions save those that they may impose upon themselves. This is not necessarily true of subsequent conventions called to amend the original constitution. Generally, the framers of the latter see to it that their handiwork is not lightly treated and as easily mutilated or changed, not only for reasons purely personal but more importantly, because written constitutions are supposed to be designed so as to last for some time, if not for ages, or for, at least, as long as they can be adopted to the needs and exigencies of the people, hence, they must be insulated against precipitate and hasty actions motivated by more or less passing political moods or fancies. Thus, as a rule, the original constitutions carry with them limitations and conditions, more or less stringent, made so by the people themselves, in regard to the process of their amendment. And when such limitations or conditions are so incorporated in the original constitution, it does not lie in the delegates of any subsequent convention to claim that they may ignore and disregard such conditions because they are as powerful and omnipotent as their original counterparts.

Nothing of what is here said is to be understood as curtailing in any degree the number and nature and the scope and extent of the amendments the Convention may deem proper to propose. Nor does the Court propose to pass on the issue extensively and brilliantly discussed by the parties as to whether or not the power or duty to call a plebiscite for the ratification of the amendments to be proposed by the Convention is exclusively legislative and as such may be exercised only by the Congress or whether the said power can be exercised concurrently by the Convention with the Congress. In the view the Court takes of present case, it does not perceive absolute necessity to resolve that question, grave and important as it may be. Truth to tell, the lack of unanimity or even of a consensus among the members of the Court in respect to this issue creates the need for more study and deliberation, and as time is of the essence in this case, for obvious reasons, November 8, 1971, the date set by the Convention for the plebiscite it is calling, being nigh, We will refrain from making any pronouncement or expressing Our views on this question until a more appropriate case comes to Us. After all, the basis of this decision is as important and decisive as any can be.

The ultimate question, therefore boils down to this: Is there any limitation or condition in Section 1 of Article XV of the Constitution which is violated by the act of the Convention of calling for a plebiscite on the sole amendment contained in Organic Resolution No. 1? The Court holds that there is, and it is the condition and limitation that all the amendments to be proposed by the same Convention must be submitted to the people in a single "election" or plebiscite. It being indisputable that the amendment now proposed to be submitted to a plebiscite is only the first amendment the Convention propose We hold that the plebiscite being called for the purpose of submitting the same for ratification of the people on November 8, 1971 is not authorized by Section 1 of Article XV of the Constitution, hence all acts of the Convention and the respondent Comelec in that direction are null and void.

We have arrived at this conclusion for the following reasons:

1. The language of the constitutional provision aforequoted is sufficiently clear. lt says distinctly that either Congress sitting as a constituent assembly or a convention called for the purpose "may propose amendments to this Constitution," thus placing no limit as to the number of amendments that Congress or the Convention may propose. The same provision also as definitely provides that "such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification," thus leaving no room for doubt as to how many "elections" or plebiscites may be held to ratify any amendment or amendments proposed by the same constituent assembly of Congress or convention, and the provision unequivocably says "an election" which means only one.

(2) Very little reflection is needed for anyone to realize the wisdom and appropriateness of this provision. As already stated, amending the Constitution is as serious and important an undertaking as constitution making itself. Indeed, any amendment of the Constitution is as important as the whole of it if only because the Constitution has to be an integrated and harmonious instrument, if it is to be viable as the framework of the government it establishes, on the one hand, and adequately formidable and reliable as the succinct but comprehensive articulation of the rights, liberties, ideology, social ideals, and national and nationalistic policies and aspirations of the people, on the other. lt is inconceivable how a constitution worthy of any country or people can have any part which is out of tune with its other parts..

A constitution is the work of the people thru its drafters assembled by them for the purpose. Once the original constitution is approved, the part that the people play in its amendment becomes harder, for when a whole constitution is submitted to them, more or less they can assumed its harmony as an integrated whole, and they can either accept or reject it in its entirety. At the very least, they can examine it before casting their vote and determine for themselves from a study of the whole document the merits and demerits of all or any of its parts and of the document as a whole. And so also, when an amendment is submitted to them that is to form part of the existing constitution, in like fashion they can study with deliberation the proposed amendment in relation to the whole existing constitution and or any of its parts and thereby arrive at an intelligent judgment as to its acceptability.

This cannot happen in the case of the amendment in question. Prescinding already from the fact that under Section 3 of the questioned resolution, it is evident that no fixed frame of reference is provided the voter, as to what finally will be concomitant qualifications that will be required by the final draft of the constitution to be formulated by the Convention of a voter to be able to enjoy the right of suffrage, there are other considerations which make it impossible to vote intelligently on the proposed amendment, although it may already be observed that under Section 3, if a voter would favor the reduction of the voting age to eighteen under conditions he feels are needed under the circumstances, and he does not see those conditions in the ballot nor is there any possible indication whether they will ever be or not, because Congress has reserved those for future action, what kind of judgment can he render on the proposal?

But the situation actually before Us is even worse. No one knows what changes in the fundamental principles of the constitution the Convention will be minded to approve. To be more specific, we do not have any means of foreseeing whether the right to vote would be of any significant value at all. Who can say whether or not later on the Convention may decide to provide for varying types of voters for each level of the political units it may divide the country into. The root of the difficulty in other words, lies in that the Convention is precisely on the verge of introducing substantial changes, if not radical ones, in almost every part and aspect of the existing social and political order enshrined in the present Constitution. How can a voter in the proposed plebiscite intelligently determine the effect of the reduction of the voting age upon the different institutions which the Convention may establish and of which presently he is not given any idea?

We are certain no one can deny that in order that a plebiscite for the ratification of an amendment to the Constitution may be validly held, it must provide the voter not only sufficient time but ample basis for an intelligent appraisal of the nature of the amendment per se as well as its relation to the other parts of the Constitution with which it has to form a harmonious whole. In the context of the present state of things, where the Convention has hardly started considering the merits of hundreds, if not thousands, of proposals to amend the existing Constitution, to present to the people any single proposal or a few of them cannot comply with this requirement. We are of the opinion that the present Constitution does not contemplate in Section 1 of Article XV a plebiscite or "election" wherein the people are in the dark as to frame of reference they can base their judgment on. We reject the rationalization that the present Constitution is a possible frame of reference, for the simple reason that intervenors themselves are stating that the sole purpose of the proposed amendment is to enable the eighteen year olds to take part in the election for the ratification of the Constitution to be drafted by the Convention. In brief, under the proposed plebiscite, there can be, in the language of Justice Sanchez, speaking for the six members of the Court in Gonzales, supra, "no proper submission".

III

The Court has no desire at all to hamper and hamstring the noble work of the Constitutional Convention. Much less does the Court want to pass judgment on the merits of the proposal to allow these eighteen years old to vote. But like the Convention, the Court has its own duties to the people under the Constitution which is to decide in appropriate cases with appropriate parties Whether or not the mandates of the fundamental law are being complied with. In the best light God has given Us, we are of the conviction that in providing for the questioned plebiscite before it has finished, and separately from, the whole draft of the constitution it has been called to formulate, the Convention's Organic Resolution No. 1 and all subsequent acts of the Convention implementing the same violate the condition in Section 1, Article XV that there should only be one "election" or plebiscite for the ratification of all the amendments the Convention may propose. We are not denying any right of the people to vote on the proposed amendment; We are only holding that under Section 1, Article XV of the Constitution, the same should be submitted to them not separately from but together with all the other amendments to be proposed by this present Convention.

IN VIEW OF ALL THE FOREGOING, the petition herein is granted. Organic Resolution No. 1 of the Constitutional Convention of 1971 and the implementing acts and resolutions of the Convention, insofar as they provide for the holding of a plebiscite on November 8, 1971, as well as the resolution of the respondent Comelec complying therewith (RR Resolution No. 695) are hereby declared null and void. The respondents Comelec, Disbursing Officer, Chief Accountant and Auditor of the Constitutional Convention are hereby enjoined from taking any action in compliance with the said organic resolution. In view of the peculiar circumstances of this case, the Court declares this decision immediately executory. No costs.

Concepcion, C.J., Teehankee, Villamor and Makasiar, JJ., concur.

 

 

 

Separate Opinions

 

MAKALINTAL, J., reserves his vote —

I reserve my vote. The resolution in question is voted down by a sufficient majority of the Court on just one ground, which to be sure achieves the result from the legal and constitutional viewpoint. I entertain grave doubts as to the validity of the premises postulated and conclusions reached in support of the dispositive portion of the decision. However, considering the urgent nature of this case, the lack of time to set down at length my opinion on the particular issue upon which the decision is made to rest, and the fact that a dissent on the said issue would necessarily be inconclusive unless the other issues raised in the petition are also considered and ruled upon — a task that would be premature and pointless at this time — I limit myself to this reservation.

REYES, J.B.L., ZALDIVAR, CASTRO and MAKASIAR, JJ., concurring:

We concur in the main opinion penned by Mr. Justice Barredo in his usual inimitable, forthright and vigorous style. Like him, we do not express our individual views on the wisdom of the proposed constitutional amendment, which is not in issue here because it is a matter that properly and exclusively addresses itself to the collective judgment of the people.

We must, however, articulate two additional objections of constitutional dimension which, although they would seem to be superfluous because of the reach of the basic constitutional infirmity discussed in extenso in the main opinion, nevertheless appear to us to be just as fundamental in character and scope.

Assuming that the Constitutional Convention has power to propose piecemeal amendments and submit each separately to the people for ratification, we are nonetheless persuaded that (1) that there is no proper submission of title proposed amendment in question within the meaning and intendment of Section 1 of Article XV of the Constitution, and (2) that the forthcoming election is not the proper election envisioned by the same provision of the Constitution.

Mr. Justice C. V. Sanchez, in his dissent in Gonzales vs. Commission on Elections 1 and Philippine Constitution Association vs. Commission on Elections, 2 expounded his view, with which we essentially agree, 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. This is what he said:

... amendments must be fairly laid before the people for their blessing or spurning. The people are not to be mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunity to mull over the original provisions, compare them with the proposed amendments, and try to reach a conclusion as the dictates of their conscience suggest, free from the incubus of extraneous or possibly insidious influences. We believe the word "submitted" can only mean that the government, within its maximum capabilities, should strain every effort to inform 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 we have earlier stated, one thing is submission and another is ratification. There must be fair submission, intelligent consent or rejection." .

The second constitutional objection was given expression by one of the writers of this concurring opinion, in the following words:

I find it impossible to believe that it was ever intended by its framers that such amendment should be submitted and ratified by just "a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification", if the concentration of the people's attention thereon is to be diverted by other extraneous issues, such as the choice of local and national officials. The framers of the Constitution, aware of the fundamental character thereof, and of the need of giving it as much stability as is practicable, could have only meant that any amendments thereto should be debated, considered and voted upon an election wherein the people could devote undivided attention to the subject. 4

True it is that the question posed by the proposed amendment, "Do you or do you not want the 18-year old to be allowed to vote?," would seem to be uncomplicated and innocuous. But it is one of life's verities that things which appear to be simple may turn out not to be so simple after all.

A number of doubts or misgivings could conceivably and logically assail the average voter. Why should the voting age be lowered at all, in the first place? Why should the new voting age be precisely 18 years, and not 19 or 20? And why not 17? Or even 16 or 15? Is the 18-year old as mature as the 21-year old so that there is no need of an educational qualification to entitle him to vote? In this age of permissiveness and dissent, can the 18-year old be relied upon to vote with judiciousness when the 21-year old, in the past elections, has not performed so well? If the proposed amendment is voted down by the people, will the Constitutional Convention insist on the said amendment? Why is there an unseemly haste on the part of the Constitutional Convention in having this particular proposed amendment ratified at this particular time? Do some of the members of the Convention have future political plans which they want to begin to subserve by the approval this year of this amendment? If this amendment is approved, does it thereby mean that the 18-year old should now also shoulder the moral and legal responsibilities of the 21-year old? Will he be required to render compulsory military service under the colors? Will the age of contractual consent be reduced to 18 years? If I vote against this amendment, will I not be unfair to my own child who will be 18 years old, come 1973? .

The above are just samplings from here, there and everywhere — from a domain (of searching questions) the bounds of which are not immediately ascertainable. Surely, many more questions can be added to the already long litany. And the answers cannot be had except as the questions are debated fully, pondered upon purposefully, and accorded undivided attention.

Scanning the contemporary scene, we say that the people are not, and by election time will not be, sufficiently informed of the meaning, nature and effects of the proposed constitutional amendment. They have not been afforded ample time to deliberate thereon conscientiously. They have been and are effectively distracted from a full and dispassionate consideration of the merits and demerits of the proposed amendment by their traditional pervasive involvement in local elections and politics. They cannot thus weigh in tranquility the need for and the wisdom of the proposed amendment.

Upon the above disquisition, it is our considered view that the intendment of the words, "at an election at which the amendments are submitted to the people for their ratification," embodied in Section 1 of Article XV of the Constitution, has not been met.

FERNANDO, J., concurring and dissenting:

There is much to be said for the opinion of the Court penned by Justice Barredo, characterized by clarity and vigor, its manifestation of fealty to the rule of law couched in eloquent language, that commands assent. As the Constitution occupies the topmost rank in the hierarchy of legal norms, Congress and Constitutional Convention alike, no less than this Court, must bow to its supremacy. Thereby constitutionalism asserts itself. With the view I entertain of what is allowable, if not indeed required by the Constitution, my conformity does not extend as far as the acceptance of the conclusion reached. The question presented is indeed novel, not being controlled by constitutional prescription, definite and certain. Under the circumstances, with the express recognition in the Constitution of the powers of the Constitutional Convention to propose amendments, I cannot discern any objection to the validity of its action there being no legal impediment that would call for its nullification. Such an approach all the more commends itself to me considering that what was sought to be done is to refer the matter to the people in whom, according to our Constitution, sovereignty resides. It is in that sense that, with due respect, I find myself unable to join my brethren.

I. It is understandable then why the decisive issue posed could not be resolved by reliance on, implicit in the petition and the answer of intervenors, such concepts as legislative control of the constitutional convention referred to by petitioner on the one hand or, on the other, the theory of conventional sovereignty favored by intervenors. It is gratifying to note that during the oral argument of petitioner and counsel for respondents and intervenors, there apparently was a retreat from such extreme position, all parties, as should be the case, expressly avowing the primacy of the Constitution, the applicable provision of which as interpreted by this Court, should be controlling on both Congress and the Convention. It cannot be denied though that in at least one American state, that is Pennsylvania, there were decisions announcing the doctrine that the powers to be exercised by a constitutional convention are dependent on a legislative grant, in the absence of any authority conferred directly by the fundamental law. The result is a convention that is subordinate to the lawmaking body. Its field of competence is circumscribed. It has to look to the latter for the delimitation of its permissible scope of activity. It is thus made subordinate to the legislature. Nowhere has such a view been more vigorously expressed than in the Pennsylvania case of Wood's Appeal. 1 Its holding though finds no support under our constitutional provision.

It does not thereby follow that while free from legislative control, a constitutional convention may lay claim to an attribute sovereign in character. The Constitution is quite explicit that it is to the people, and to the people alone, in whom sovereignty resides. 2 Such a prerogative is therefore withheld from a convention. It is an agency entrusted with the responsibility of high import and significance it is true; it is denied unlimited legal competence though. That is what sovereignty connotes. It has to yield to the superior force of the Constitution. There can then be no basis for the exaggerated pretension that it is an alter ego of the people. It is to be admitted that there are some American state decisions, the most notable of which is Sproule v. Fredericks, 3 a Mississippi case, that dates back to 1892, that yield a different conclusion. The doctrine therein announced cannot bind us. Our Constitution makes clear that the power of a constitutional convention is not sovereign. It is appropriately termed constituent, limited as it is to the purpose of drafting a constitution or proposing revision or amendments to one in existence, subject in either case to popular approval.

The view that commends itself for acceptance is that legislature and constitutional convention, alike recognized by the Constitution, are coordinate, there being no superiority of one over the other. Insofar as the constituent power of proposing amendments to the Constitution is concerned, a constitutional convention enjoys a wide sphere of autonomy consistently with the Constitution which can be the only source of valid restriction on its competence. It is true it is to the legislative body that the call to a convention must proceed, but once convened, it cannot in any wise be interfered with, much less controlled by Congress. A contrary conclusion would impair its usefulness for the delicate, and paramount task assigned to it. A convention then is to be looked upon as if it were one of the three coordinate departments which under the principle of separation of powers is supreme within its field and has exclusive cognizance of matters properly subject to its jurisdiction. A succinct statement of the appropriate principle that should govern the relationship between a constitutional convention and a legislative body under American law is that found in Orfield's work. Thus: "The earliest view seems to have been that a convention was absolute. The convention was sovereign and subject to no restraint. On the other hand, Jameson, whose views have been most frequently cited in decisions, viewed a convention as a body with strictly limited powers, and subject to the restrictions imposed on it by the legislative call. A third and intermediate view is that urged by Dodd — that a convention, though not sovereign, is a body independent of the legislature; it is bound by the existing constitution, but not by the acts of the legislature, as to the extent of its constituent power. This view has become increasingly prevalent in the state decisions." 4

2. It is to the Constitution, and to the Constitution alone then, as so vigorously stressed in the opinion of the Court, that any limitation on the power the Constitutional, Convention must find its source. I turn to its Article XV. It reads: "The Congress in joint session assembled, by a vote of three fourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments to this Constitution or call a convention for that purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification."

Clearly, insofar as amendments, including revision, are concerned, there are two steps, proposal and thereafter ratification. Thus as to the former, two constituent bodies are provided for, the Congress of the Philippines in the mode therein provided, and a constitutional convention that may be called into being. Once assembled, a constitutional convention, like the Congress of the Philippines, possesses in all its plenitude the constituent power. Inasmuch as Congress may determine what amendments it would have the people ratify and thereafter take all the steps necessary so that the approval or disapproval of the electorate may be obtained, the convention likewise, to my mind, should be deemed possessed of all the necessary authority to assure that whatever amendments it seeks to introduce would be submitted to the people at an election called for that purpose. It would appear to me that to view the convention as being denied a prerogative which is not withheld from Congress as a constituent body would be to place it in an inferior category. Such a proposition I do not find acceptable. Congress and constitutional convention are agencies for submitting proposals under the fundamental law. A power granted to one should not be denied the other. No justification for such a drastic differentiation either in theory or practice exists.

Such a conclusion has for me the added reinforcement that to require ordinary legislation before the convention could be enabled to have its proposals voted on by the people would be to place a power in the legislative and executive branches that could, whether by act or omission, result in the frustration of the amending process. I am the first to admit that such likelihood is remote, but if such a risk even if minimal could be avoided, it should be, unless the compelling force of an applicable constitutional provision requires otherwise. Considering that a constitutional convention is not precluded from imposing additional restrictions on the powers of either the executive or legislative branches, or, for that matter, the judiciary, it would appear to be the better policy to interpret Article XV in such a way that would not sanction such restraint on the authority that must be recognized as vested in a constitutional convention. There is nothing in such a view that to my mind would collide with a reasonable interpretation of Article XV. It certainly is one way by which freed from pernicious abstractions, it would be easier to accommodate a constitution to the needs of an unfolding future. That is to facilitate its being responsive to the challenge that time inevitably brings in its wake.

From such an approach then, I am irresistibly led to the conclusion that the challenged resolution was well within the power of the convention. That would be to brush aside the web of unreality spun from a too-restrictive mode of appraising the legitimate scope of its competence. That would be, for me, to give added vigor and life to the conferment of authority vested in it, attended by such grave and awesome responsibility.

3. It becomes pertinent to inquire then whether the last sentence of Article XV providing that such amendment shall be valid when submitted and thereafter approved by the majority of the votes cast by the people at an election is a bar to the proposed submission. It is the conclusion arrived at by my brethren that there is to be only one election and that therefore the petition must be sustained as only when the convention has finished its work should all

amendments proposed be submitted for ratification. That is not for me, and I say this with respect, the appropriate interpretation. It is true that the Constitution uses the word "election" in the singular, but that is not decisive. No undue reliance should be accorded rules of grammar; they do not exert a compelling force in constitutional interpretation. Meaning is to be sought not from specific language in the singular but from the mosaic of significance derived from the total context. It could be, if it were not thus, self-defeating. Such a mode of construction does not commend itself. The words used in the Constitution are not inert; they derive vitality from the obvious purposes at which they are aimed. Petitioner's stress on linguistic refinement, while not implausible does not, for me, carry the day.

It was likewise argued by petitioner that the proposed amendment is provisional and therefore is not such as was contemplated in this article. I do not find such contention convincing. The fact that the Constitutional Convention did seek to consult the wishes of the people by the proposed submission of a tentative amendatory provision is an argument for its validity. It might be said of course that until impressed with finality, an amendment is not to be passed upon by the electorate. There is plausibility in such a view. A literal reading of the Constitution would support it. The spirit that informs it though would not, for me, be satisfied. From its silence I deduce the inference that there is no repugnancy to the fundamental law when the Constitutional Convention ascertains the popular will. In that sense, the Constitution, to follow the phraseology of Thomas Reed Powel, is not silently silent but silently vocal. What I deem the more important consideration is that while a public official, as an agent, has to locate his source of authority in either Constitution or statute, the people, as the principal, can only be limited in the exercise of their sovereign powers by the express terms of the Constitution. A concept to the contrary would to my way of thinking be inconsistent with the fundamental principle that it is in the people, and the people alone, that sovereignty resides.

4. The constitutional Convention having acted within the scope of its authority, an action to restrain or prohibit respondent Commission on Elections from conducting the plebiscite does not lie. It should not be lost sight of that the Commission on Elections in thus being charged with such a duty does not act in its capacity as the constitutional agency to take charge of all laws relative to the conduct of election. That is a purely executive function vested in it under Article X of the Constitution. 5 It is not precluded from assisting the Constitutional Convention if pursuant to its competence to amend the fundamental law it seeks, as in this case, to submit a proposal, even if admittedly tentative, to the electorate to ascertain its verdict. At any rate, it may be implied that under the 1971 Constitutional Convention Act, it is not to turn a deaf ear to a summons from the Convention to aid it in the legitimate discharge of its functions. 6

The aforesaid considerations, such as they are, but which for me have a force that I mind myself unable to overcome, leave me no alternative but to dissent from my brethren, with due acknowledgement of course that from their basic premises, the conclusion arrived at by them cannot be characterized as in any wise bereft of a persuasive quality of a high order.

 

 

Separate Opinions

MAKALINTAL, J., reserves his vote —

I reserve my vote. The resolution in question is voted down by a sufficient majority of the Court on just one ground, which to be sure achieves the result from the legal and constitutional viewpoint. I entertain grave doubts as to the validity of the premises postulated and conclusions reached in support of the dispositive portion of the decision. However, considering the urgent nature of this case, the lack of time to set down at length my opinion on the particular issue upon which the decision is made to rest, and the fact that a dissent on the said issue would necessarily be inconclusive unless the other issues raised in the petition are also considered and ruled upon — a task that would be premature and pointless at this time — I limit myself to this reservation.

REYES, J.B.L., ZALDIVAR, CASTRO and MAKASIAR, JJ., concurring:

We concur in the main opinion penned by Mr. Justice Barredo in his usual inimitable, forthright and vigorous style. Like him, we do not express our individual views on the wisdom of the proposed constitutional amendment, which is not in issue here because it is a matter that properly and exclusively addresses itself to the collective judgment of the people.

We must, however, articulate two additional objections of constitutional dimension which, although they would seem to be superfluous because of the reach of the basic constitutional infirmity discussed in extenso in the main opinion, nevertheless appear to us to be just as fundamental in character and scope.

Assuming that the Constitutional Convention has power to propose piecemeal amendments and submit each separately to the people for ratification, we are nonetheless persuaded that (1) that there is no proper submission of title proposed amendment in question within the meaning and intendment of Section 1 of Article XV of the Constitution, and (2) that the forthcoming election is not the proper election envisioned by the same provision of the Constitution.

Mr. Justice C. V. Sanchez, in his dissent in Gonzales vs. Commission on Elections 1 and Philippine Constitution Association vs. Commission on Elections, 2 expounded his view, with which we essentially agree, 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. This is what he said:

... amendments must be fairly laid before the people for their blessing or spurning. The people are not to be mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunity to mull over the original provisions, compare them with the proposed amendments, and try to reach a conclusion as the dictates of their conscience suggest, free from the incubus of extraneous or possibly insidious influences. We believe the word "submitted" can only mean that the government, within its maximum capabilities, should strain every effort to inform 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 we have earlier stated, one thing is submission and another is ratification. There must be fair submission, intelligent consent or rejection." .

The second constitutional objection was given expression by one of the writers of this concurring opinion, in the following words:

I find it impossible to believe that it was ever intended by its framers that such amendment should be submitted and ratified by just "a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification", if the concentration of the people's attention thereon is to be diverted by other extraneous issues, such as the choice of local and national officials. The framers of the Constitution, aware of the fundamental character thereof, and of the need of giving it as much stability as is practicable, could have only meant that any amendments thereto should be debated, considered and voted upon an election wherein the people could devote undivided attention to the subject. 4

True it is that the question posed by the proposed amendment, "Do you or do you not want the 18-year old to be allowed to vote?," would seem to be uncomplicated and innocuous. But it is one of life's verities that things which appear to be simple may turn out not to be so simple after all.

A number of doubts or misgivings could conceivably and logically assail the average voter. Why should the voting age be lowered at all, in the first place? Why should the new voting age be precisely 18 years, and not 19 or 20? And why not 17? Or even 16 or 15? Is the 18-year old as mature as the 21-year old so that there is no need of an educational qualification to entitle him to vote? In this age of permissiveness and dissent, can the 18-year old be relied upon to vote with judiciousness when the 21-year old, in the past elections, has not performed so well? If the proposed amendment is voted down by the people, will the Constitutional Convention insist on the said amendment? Why is there an unseemly haste on the part of the Constitutional Convention in having this particular proposed amendment ratified at this particular time? Do some of the members of the Convention have future political plans which they want to begin to subserve by the approval this year of this amendment? If this amendment is approved, does it thereby mean that the 18-year old should now also shoulder the moral and legal responsibilities of the 21-year old? Will he be required to render compulsory military service under the colors? Will the age of contractual consent be reduced to 18 years? If I vote against this amendment, will I not be unfair to my own child who will be 18 years old, come 1973? .

The above are just samplings from here, there and everywhere — from a domain (of searching questions) the bounds of which are not immediately ascertainable. Surely, many more questions can be added to the already long litany. And the answers cannot be had except as the questions are debated fully, pondered upon purposefully, and accorded undivided attention.

Scanning the contemporary scene, we say that the people are not, and by election time will not be, sufficiently informed of the meaning, nature and effects of the proposed constitutional amendment. They have not been afforded ample time to deliberate thereon conscientiously. They have been and are effectively distracted from a full and dispassionate consideration of the merits and demerits of the proposed amendment by their traditional pervasive involvement in local elections and politics. They cannot thus weigh in tranquility the need for and the wisdom of the proposed amendment.

Upon the above disquisition, it is our considered view that the intendment of the words, "at an election at which the amendments are submitted to the people for their ratification," embodied in Section 1 of Article XV of the Constitution, has not been met.

FERNANDO, J., concurring and dissenting:

There is much to be said for the opinion of the Court penned by Justice Barredo, characterized by clarity and vigor, its manifestation of fealty to the rule of law couched in eloquent language, that commands assent. As the Constitution occupies the topmost rank in the hierarchy of legal norms, Congress and Constitutional Convention alike, no less than this Court, must bow to its supremacy. Thereby constitutionalism asserts itself. With the view I entertain of what is allowable, if not indeed required by the Constitution, my conformity does not extend as far as the acceptance of the conclusion reached. The question presented is indeed novel, not being controlled by constitutional prescription, definite and certain. Under the circumstances, with the express recognition in the Constitution of the powers of the Constitutional Convention to propose amendments, I cannot discern any objection to the validity of its action there being no legal impediment that would call for its nullification. Such an approach all the more commends itself to me considering that what was sought to be done is to refer the matter to the people in whom, according to our Constitution, sovereignty resides. It is in that sense that, with due respect, I find myself unable to join my brethren.

I. It is understandable then why the decisive issue posed could not be resolved by reliance on, implicit in the petition and the answer of intervenors, such concepts as legislative control of the constitutional convention referred to by petitioner on the one hand or, on the other, the theory of conventional sovereignty favored by intervenors. It is gratifying to note that during the oral argument of petitioner and counsel for respondents and intervenors, there apparently was a retreat from such extreme position, all parties, as should be the case, expressly avowing the primacy of the Constitution, the applicable provision of which as interpreted by this Court, should be controlling on both Congress and the Convention. It cannot be denied though that in at least one American state, that is Pennsylvania, there were decisions announcing the doctrine that the powers to be exercised by a constitutional convention are dependent on a legislative grant, in the absence of any authority conferred directly by the fundamental law. The result is a convention that is subordinate to the lawmaking body. Its field of competence is circumscribed. It has to look to the latter for the delimitation of its permissible scope of activity. It is thus made subordinate to the legislature. Nowhere has such a view been more vigorously expressed than in the Pennsylvania case of Wood's Appeal. 1 Its holding though finds no support under our constitutional provision.

It does not thereby follow that while free from legislative control, a constitutional convention may lay claim to an attribute sovereign in character. The Constitution is quite explicit that it is to the people, and to the people alone, in whom sovereignty resides. 2 Such a prerogative is therefore withheld from a convention. It is an agency entrusted with the responsibility of high import and significance it is true; it is denied unlimited legal competence though. That is what sovereignty connotes. It has to yield to the superior force of the Constitution. There can then be no basis for the exaggerated pretension that it is an alter ego of the people. It is to be admitted that there are some American state decisions, the most notable of which is Sproule v. Fredericks, 3 a Mississippi case, that dates back to 1892, that yield a different conclusion. The doctrine therein announced cannot bind us. Our Constitution makes clear that the power of a constitutional convention is not sovereign. It is appropriately termed constituent, limited as it is to the purpose of drafting a constitution or proposing revision or amendments to one in existence, subject in either case to popular approval.

The view that commends itself for acceptance is that legislature and constitutional convention, alike recognized by the Constitution, are coordinate, there being no superiority of one over the other. Insofar as the constituent power of proposing amendments to the Constitution is concerned, a constitutional convention enjoys a wide sphere of autonomy consistently with the Constitution which can be the only source of valid restriction on its competence. It is true it is to the legislative body that the call to a convention must proceed, but once convened, it cannot in any wise be interfered with, much less controlled by Congress. A contrary conclusion would impair its usefulness for the delicate, and paramount task assigned to it. A convention then is to be looked upon as if it were one of the three coordinate departments which under the principle of separation of powers is supreme within its field and has exclusive cognizance of matters properly subject to its jurisdiction. A succinct statement of the appropriate principle that should govern the relationship between a constitutional convention and a legislative body under American law is that found in Orfield's work. Thus: "The earliest view seems to have been that a convention was absolute. The convention was sovereign and subject to no restraint. On the other hand, Jameson, whose views have been most frequently cited in decisions,

viewed a convention as a body with strictly limited powers, and subject to the restrictions imposed on it by the legislative call. A third and intermediate view is that urged by Dodd — that a convention, though not sovereign, is a body independent of the legislature; it is bound by the existing constitution, but not by the acts of the legislature, as to the extent of its constituent power. This view has become increasingly prevalent in the state decisions." 4

2. It is to the Constitution, and to the Constitution alone then, as so vigorously stressed in the opinion of the Court, that any limitation on the power the Constitutional, Convention must find its source. I turn to its Article XV. It reads: "The Congress in joint session assembled, by a vote of three fourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments to this Constitution or call a convention for that purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification."

Clearly, insofar as amendments, including revision, are concerned, there are two steps, proposal and thereafter ratification. Thus as to the former, two constituent bodies are provided for, the Congress of the Philippines in the mode therein provided, and a constitutional convention that may be called into being. Once assembled, a constitutional convention, like the Congress of the Philippines, possesses in all its plenitude the constituent power. Inasmuch as Congress may determine what amendments it would have the people ratify and thereafter take all the steps necessary so that the approval or disapproval of the electorate may be obtained, the convention likewise, to my mind, should be deemed possessed of all the necessary authority to assure that whatever amendments it seeks to introduce would be submitted to the people at an election called for that purpose. It would appear to me that to view the convention as being denied a prerogative which is not withheld from Congress as a constituent body would be to place it in an inferior category. Such a proposition I do not find acceptable. Congress and constitutional convention are agencies for submitting proposals under the fundamental law. A power granted to one should not be denied the other. No justification for such a drastic differentiation either in theory or practice exists.

Such a conclusion has for me the added reinforcement that to require ordinary legislation before the convention could be enabled to have its proposals voted on by the people would be to place a power in the legislative and executive branches that could, whether by act or omission, result in the frustration of the amending process. I am the first to admit that such likelihood is remote, but if such a risk even if minimal could be avoided, it should be, unless the compelling force of an applicable constitutional provision requires otherwise. Considering that a constitutional convention is not precluded from imposing additional restrictions on the powers of either the executive or legislative branches, or, for that matter, the judiciary, it would appear to be the better policy to interpret Article XV in such a way that would not sanction such restraint on the authority that must be recognized as vested in a constitutional convention. There is nothing in such a view that to my mind would collide with a reasonable interpretation of Article XV. It certainly is one way by which freed from pernicious abstractions, it would be easier to accommodate a constitution to the needs of an unfolding future. That is to facilitate its being responsive to the challenge that time inevitably brings in its wake.

From such an approach then, I am irresistibly led to the conclusion that the challenged resolution was well within the power of the convention. That would be to brush aside the web of unreality spun from a too-restrictive mode of appraising the legitimate scope of its competence. That would be, for me, to give added vigor and life to the conferment of authority vested in it, attended by such grave and awesome responsibility.

3. It becomes pertinent to inquire then whether the last sentence of Article XV providing that such amendment shall be valid when submitted and thereafter approved by the majority of the votes cast by the people at an election is a bar to the proposed submission. It is the conclusion arrived at by my brethren that there is to be only one election and that therefore the petition must be sustained as only when the convention has finished its work should all amendments proposed be submitted for ratification. That is not for me, and I say this with respect, the appropriate interpretation. It is true that the Constitution uses the word "election" in the singular, but that is not decisive. No undue reliance should be accorded rules of grammar; they do not exert a compelling force in constitutional interpretation. Meaning is to be sought not from specific language in the singular but from the mosaic of significance derived from the total context. It could be, if it were not thus, self-defeating. Such a mode of construction does not commend itself. The words used in the Constitution are not inert; they derive vitality from the obvious purposes at which they are aimed. Petitioner's stress on linguistic refinement, while not implausible does not, for me, carry the day.

It was likewise argued by petitioner that the proposed amendment is provisional and therefore is not such as was contemplated in this article. I do not find such contention convincing. The fact that the Constitutional Convention did seek to consult the wishes of the people by the proposed submission of a tentative amendatory provision is an argument for its validity. It might be said of course that until impressed with finality, an amendment is not to be passed upon by the electorate. There is plausibility in such a view. A literal reading of the Constitution would support it. The spirit that informs it though would not, for me, be satisfied. From its silence I deduce the inference that there is no repugnancy to the fundamental law when the Constitutional Convention ascertains the popular will. In that sense, the Constitution, to follow the phraseology of Thomas Reed Powel, is not silently silent but silently vocal. What I deem the more important consideration is that while a public official, as an agent, has to locate his source of authority in either Constitution or statute, the people, as the principal, can only be limited in the exercise of their sovereign powers by the express terms of the Constitution. A concept to the contrary would to my way of thinking be inconsistent with the fundamental principle that it is in the people, and the people alone, that sovereignty resides.

4. The constitutional Convention having acted within the scope of its authority, an action to restrain or prohibit respondent Commission on Elections from conducting the plebiscite does not lie. It should not be lost sight of that the Commission on Elections in thus being charged with such a duty does not act in its capacity as the constitutional agency to take charge of all laws relative to the conduct of election. That is a purely executive function vested in it under Article X of the Constitution. 5 It is not precluded from assisting the Constitutional Convention if pursuant to its competence to amend the fundamental law it seeks, as in this case, to submit a proposal, even if admittedly tentative, to the electorate to ascertain its verdict. At any rate, it may be implied that under the 1971 Constitutional Convention Act, it is not to turn a deaf ear to a summons from the Convention to aid it in the legitimate discharge of its functions. 6

The aforesaid considerations, such as they are, but which for me have a force that I mind myself unable to overcome, leave me no alternative but to dissent from my brethren, with due acknowledgement of course that from their basic premises, the conclusion arrived at by them cannot be characterized as in any wise bereft of a persuasive quality of a high order.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-68635 May 14, 1987

IN THE MATTER OF PROCEEDINGS FOR DISCIPLINARY ACTION AGAINST ATTY. WENCESLAO LAURETA, AND OF CONTEMPT PROCEEDINGS AGAINST EVA MARAVILLA-ILUSTRE in G.R. No. 68635, entitled "EVA MARAVILLA-ILUSTRE, vs. HON. INTERMEDIATE APPELLATE COURT, ET AL."

R E S O L U T I O N

 

PER CURIAM:

Before us are 1) Atty. Wenceslao Laureta's Motion for Reconsideration of the Per Curiam Resolution of this Court promulgated on March 12, 1987, finding him guilty of grave professional misconduct and suspending him indefinitely from the practice of law; and 2) Eva Maravilla-Ilustre's Motion for Reconsideration of the same Resolution holding her in contempt and ordering her to pay a fine of P1,000.00.

Essentially, Atty. Laureta maintains that the Order of suspension without hearing violated his right to life and due process of law and by reason thereof the Order is null and void; that the acts of misconduct imputed to him are without basis; that the charge against him that it was he who had circulated to the press copies of the Complaint filed before the Tanodbayan is unfounded such that, even in this Court's Resolution, his having distributed copies to the press is not stated positively; that the banner headline which appeared In the Daily Express is regrettable but that he was not responsible for such "misleading headline;" that he "did nothing of the sort" being fully conscious of his responsibilities as a law practitioner and officer of the Court; that as a former newspaperman, he would not have been satisfied with merely circulating copies of the Complaint to the press in envelopes where his name appears; "he himself would have written stories about the case in a manner that sells newspapers; even a series of juicy articles perhaps, something that would have further subjected the respondent justices to far worse publicity;" that, on the contrary, the press conference scheduled by Ilustre was cancelled through his efforts in order to prevent any further adverse publicity resulting from the filing of the complaint before the Tanodbayan; that, as a matter of fact, it was this Court's Resolution that was serialized in the Bulletin Today, which newspaper also made him the subject of a scathing editorial but that he "understands the cooperation because after all, the Court rendered a favorable judgment in the Bulletin union case last year;" that he considered it "below his dignity to plead for the chance to present his side" with the Editor, Mr. Ben Rodriguez, "a long-time personal friend" since he "can afford to be the sacrificial lamb if only to help the Honorable Court uphold its integrity;" that he was called by a reporter of DZRH and was asked to comment on the case filed before the Tanodbayan but that his remarks were confined to the filing of the case by Ilustre herself, and that the judgment of the trial Court had attained its finality long ago; that he is not Ilustre's counsel before the Tanodbayan and did not prepare the complaint filed before it, his professional services having been terminated upon the final dismissal of Ilustre's case before this Court; that similarities in the language and phraseology used in the Ilustre letters, in pleadings before this Court and before the Tanodbayan do not prove his authorship since other lawyers "even of a mediocre caliber" could very easily have reproduced them; that the discussions on the merits in the Per Curiam Resolution are "more properly addressed to the Tanodbayan, Justice Raul M. Gonzales being competent to deal with the case before him;" that he takes exception to the accusation that he has manifested lack of respect for and exposed to public ridicule the two highest Courts of the land, all he did having been to call attention to errors or injustice committed in the promulgation of judgments or orders; that he has "not authorized or assisted and/or abetted and could not have prevented the contemptuous statements, conduct, acts and malicious charges of Eva Maravilla Ilustre who was no longer his client when these alleged acts were done; that "he is grateful to this Court for the reminder on the first duty of a lawyer which is to the Court and not to his client, a duty that he has always impressed upon his law students;" and finally, that "for the record, he is sorry for the adverse publicity generated by the filing of the complaint against the Justices before the Tanodbayan."

In her own Motion for Reconsideration, Eva Maravilla-Ilustre also raises as her main ground the alleged deprivation of her constitutional right to due process. She maintains that as contempt proceedings are commonly treated as criminal in nature, the mode of procedure and rules of evidence in criminal prosecution should be assimilated, as far as practicable, in this proceeding, and that she should be given every opportunity to present her side. Additionally, she states that, with some sympathetic lawyers, they made an "investigation" and learned that the Resolution of the First Division was arrived at without any deliberation by its members; that Court personnel were "tight-lipped about the matter, which is shrouded mystery" thereby prompting her to pursue a course which she thought was legal and peaceful; that there is nothing wrong in making public the manner of voting by the Justices, and it was for that reason that she addressed Identical letters to Associate Justices Andres Narvasa, Ameurfina M. Herrera, Isagani Cruz and Florentino Feliciano; that "if the lawyers of my opponents were not a Solicitor General, and member of the Supreme Court and a Division Chairman, respectively, the resolution of May 14, 1986 would not have aroused my suspicion;" that instead of taking the law into her own hands or joining any violent movement, she took the legitimate step of making a peaceful investigation into how her case was decided, and brought her grievance to the Tanodbayan "in exasperation" against those whom she felt had committed injustice against her "in an underhanded manner."

We deny reconsideration in both instances.

The argument premised on lack of hearing and due process, is not impressed with merit. What due process abhors is absolute lack of opportunity to be heard (Tajonera vs. Lamaroza, et al., 110 SCRA 438 [1981]). The word "hearing" does not necessarily connote a "trial-type" proceeding. In the show-cause Resolution of this Court, dated January 29, 1987, Atty. Laureta was given sufficient opportunity to inform this Court of the reasons why he should not be subjected to dispose action. His Answer, wherein he prayed that the action against him be dismissed, contained twenty-two (22) pages, double spaced. Eva Maravilla-Ilustre was also given a like opportunity to explain her statements, conduct, acts and charges against the Court and/or the official actions of the Justices concerned. Her Compliance Answer, wherein she prayed that the contempt proceeding against her be dismissed, contained nineteen (19) pages, double spaced. Both were afforded ample latitude to explain matters fully. Atty. Laureta denied having authored the letters written by Ilustre, his being her counsel before the Tanodbayan, his having circularized to the press copies of the complaint filed before said body, and his having committed acts unworthy of his profession. But the Court believed otherwise and found that those letters and the charges levelled against the Justices concerned, of themselves and by themselves, betray not only their malicious and contemptuous character, but also the lack of respect for the two highest Courts of the land, a complete obliviousness to the fundamental principle of separation of powers, and a wanton disregard of the cardinal doctrine of independence of the Judiciary. Res ipsa loquitur. Nothing more needed to have been said or proven. The necessity to conduct any further evidentially hearing was obviated (See People vs. Hon. Valenzuela, G.R. Nos. 63950-60, April 19, 1985, 135 SCRA 712). Atty. Laureta and Ilustre were given ample opportunity to be heard, and were, in fact, heard.

(1)

In his Motion for Reconsideration, Atty. Laureta reiterates his allegations in his Answer to the show-cause Resolution that his professional services were terminated by Ilustre after the dismissal of the main petition by this Court; that he had nothing to do with the contemptuous letters to the individual Justices; and that he is not Ilustre's counsel before the Tanodbayan.

Significantly enough, however, copy of the Tanodbayan Resolution dismissing Ilustre's Complaint was furnished Atty. Laureta as "counsel for the complainant" at his address of record. Of note, too, is the fact that it was he who was following up the Complaint before the Tanodbayan and, after its dismissal, the Motion for Reconsideration of the Order of dismissal.

Of import, as well, is the report of Lorenzo C. Bardel, a process server of this Court, that after having failed to serve copy of the Per Curiam Resolution of March 12, 1987 of this Court on Ilustre personally at her address of record, "101 F. Manalo St., Cubao, Quezon City," having been informed that she is 6 not a resident of the place," he proceeded to the residence of Atty. Laureta where the latter's wife "voluntarily received the two copies of decision for her husband and for Ms. Maravina-Ilustre" (p. 670, Rollo, Vol. 11).

That Ilustre subsequently received copy of this Court's Resolution delivered to Mrs. Laureta is shown by the fact that she filed, as of March 27, 1987, a "Petition for Extension of Time to file Motion for Reconsideration" and subsequently the Motion for Reconsideration. In that Petition Ilustre acknowledged receipt of the Resolution on March 12, 1987, the very same date Mrs. Laureta received copy thereof. If, indeed, the lawyer-client relationship between her husband and Ilustre had been allegedly completely severed, all Mrs. Laureta had to do was to return to the Sheriff the copy intended for Ilustre. As it was, however, service on Atty. Laureta proved to be service on Ilustre as well. The close tie- up between the corespondents is heightened by the fact that three process servers of this Court failed to serve copy of this Court's Per Curiam Resolution on Ilustre personally.

Noteworthy, as well, is that by Atty. Laureta's own admission, he was the one called by a "reporter" of DZRH to comment on the Ilustre charges before the Tanodbayan. If, in fact, he had nothing to do with the complaint, he would not have been pinpointed at all. And if his disclaimer were the truth, the logical step for him to have taken was to refer the caller to the lawyer/s allegedly assisting Ilustre, at the very least, out of elementary courtesy and propriety. But he did nothing of the sort. " He gave his comment with alacrity.

The impudence and lack of respect of Atty. Laureta for this Court again surfaces when he asserts in his Motion for Reconsideration that he "understands the cooperation" of the Bulletin Today as manifested in the serialized publication of the Per Curiam Resolution of this Court and his being subjected to a scathing editorial by the same newspaper "because after all, the Court rendered a favorable judgment in the Bulletin union case last year." The malice lurking in that statement is most unbecoming of an officer of the Court and is an added reason for denying reconsideration.

Further, Atty. Laureta stubbornly contends that discussions on the merits in the Court's Per Curiam Resolution are more properly addressed to the Tanodbayan, forgetting, however, his own discourse on the merits in his Answer to this Court's Resolution dated January 29, 1987. He thus incorrigibly insists on subordinating the Judiciary to the executive notwithstanding the categorical pronouncement in the Per Curiam Resolution of March 12, 1987, that Article 204 of the Revised Penal Code has no application to the members of a collegiate Court; that a charge of violation of the Anti-Graft and Corrupt Practices Act on the ground that a collective decision is "unjust" cannot prosper; plus the clear and extended dissertation in the same Per Curiam Resolution on the fundamental principle of separation of powers and of checks and balances, pursuant to which it is this Court "entrusted exclusively with the judicial power to adjudicate with finality all justifiable disputes, public and private. No other department or agency may pass upon its judgments or declare them 'unjust' upon controlling and irresistible reasons of public policy and of sound practice."

Atty. Laureta's protestations that he has done his best to protect and uphold the dignity of this Court are belied by environmental facts and circumstances. His apologetic stance for the "adverse publicity" generated by the filing of the charges against the Justices concerned before the Tanodbayan rings with insincerity. The complaint was calculated precisely to serve that very purpose. The threat to bring the case to "another forum of justice" was implemented to the fun. Besides, he misses the heart of the matter. Exposure to the glare of publicity is an occupational hazard. If he has been visited with disciplinary sanctions it is because by his conduct, acts and statements, he has, overall, deliberately sought to destroy the "authenticity, integrity, and conclusiveness of collegiate acts," to "undermine the role of the Supreme Court as the final arbiter of all justifiable disputes," and to subvert public confidence in the integrity of the Courts and the Justices concerned, and in the orderly administration of justice.

In fine, we discern nothing in Atty. Laureta's Motion for Reconsideration that would call for a modification, much less a reversal, of our finding that he is guilty of grave professional misconduct that renders him unfit to continue to be entrusted with the duties and responsibilities pertaining to an attorney and officer of the Court.

(2)

Neither do we find merit in Ilustre's Motion for Reconsideration. She has turned deaf ears to any reason or clarification. She and her counsel have refused to accept the untenability of their case and the inevitability of losing in Court. They have allowed suspicion alone to blind their actions and in so doing degraded the administration of justice. "Investigation" was utterly uncalled for. All conclusions and judgments of the Court, be they en banc or by Division, are arrived at only after deliberation. The fact that no dissent was indicated in the Minutes of the proceedings held on May 14, 1986 showed that the members of the Division voted unanimously. Court personnel are not in a position to know the voting in any case because all deliberations are held behind closed doors without any one of them being present. No malicious inferences should have been drawn from their inability to furnish the information Ilustre and Atty. Laureta desired The personality of the Solicitor General never came into the picture. It was Justice Abad Santos, and not Justice Yap, who was Chairman of the First Division when the Resolution of May 14, 1986 denying the Petition was rendered. Thereafter Justice Yap inhibited himself from any participation. The fact that the Court en banc upheld the challenged Resolutions of the First Division emphasizes the irrespective of Ilustre's case irrespective of the personalities involved.

Additionally, Ilustre has been trifling with this Court. She has given our process servers the run-around. Three of them failed to serve on her personally her copy of this Court's Per Curiam Resolution of March 12, 1987 at her address of record. Mrs. Laureta informed process server Lorenzo C. Bardel that Ilustre was residing at 17-D, Quezon St., Tondo, Manila. Romeo C. Regala, another process server, went to that address to serve copy of the Resolution but he reported:

4. That inspite of diligent efforts to locate the address of ms.Eva Maravilla-Ilustre, said address could not be located;

5. That I even asked the occupants (Cerdan Family) of No. 17 Quezon Street, Tondo, Manila, and they informed that there is no such Ms. Eva Maravilla-Ilustre in the neighborhood and/or in the vicinity; ... (p. 672, Rollo, Vol. 11).

The third process server, Nelson C. Cabesuela, was also unable to serve copy of this Court's Resolution on Ilustre. He reported:

2. On March 17, 1987, at about 9:30 A.M., I arrived at the house in the address furnished at; the notice of judgment (101 Felix Manalo St., Cubao, Quezon City), and was received by an elderly woman who admitted to be the owner of the house but vehemently refused to be Identified, and told me that she does not know the addressee Maravilla, and told me further that she always meets different persons looking for Miss Maravilla because the latter always gives the address of her house;

3. That, I was reminded of an incident that I also experienced in the same place trying to serve a resolution to Miss Maravilla which was returned unserved because she is not known in the place; ... (p. 674, Rollo, Vol. II).

And yet, in her Petition for Extension of Time and in her Motion for Reconsideration she persists in giving that address at 101 Felix Manalo St., Cubao, Quezon City, where our process servers were told that she was not a resident of and that she was unknown thereat. If for her contumacious elusiveness and lack of candor alone, Ilustre deserves no further standing before this Court.

ACCORDINGLY, the respective Motions for reconsideration of Atty. Wenceslao G. Laureta for the setting aside of the order suspending him from the practice of law, and of Eva Maravilla Ilustre for the lifting of the penalty for contempt are DENIED, and this denial is FINAL. Eva Maravilla Ilustre shall pay the fine of P1,000.00 imposed on her within ten (10) days from notice, or, suffer imprisonment for ten (10) days upon failure to pay said fine within the stipulated period.

SO ORDERED.

Teehankee, C.J., Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.

Yap, J., * took no part.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 71977 February 27, 1987

DEMETRIO G. DEMETRIA, M.P., AUGUSTO S. SANCHEZ, M.P., ORLANDO S. MERCADO, M.P., HONORATO Y. AQUINO, M.P., ZAFIRO L. RESPICIO, M.P., DOUGLAS R. CAGAS, M.P., OSCAR F. SANTOS, M.P., ALBERTO G. ROMULO, M.P., CIRIACO R. ALFELOR, M.P., ISIDORO E. REAL, M.P., EMIGDIO L. LINGAD, M.P., ROLANDO C. MARCIAL, M.P., PEDRO M. MARCELLANA, M.P., VICTOR S. ZIGA, M.P., and ROGELIO V. GARCIA. M.P., petitioners, vs.HON. MANUEL ALBA in his capacity as the MINISTER OF THE BUDGET and VICTOR MACALINGCAG in his capacity as the TREASURER OF THE PHILIPPINES, respondents.

 

FERNAN, J.:

Assailed in this petition for prohibition with prayer for a writ of preliminary injunction is the constitutionality of the first paragraph of Section 44 of Presidential Decree No. 1177, otherwise known as the "Budget Reform Decree of 1977."

Petitioners, who filed the instant petition as concerned citizens of this country, as members of the National Assembly/Batasan Pambansa representing their millions of constituents, as parties with general interest common to all the people of the Philippines, and as taxpayers whose vital interests may be affected by the outcome of the reliefs prayed for" 1 listed the grounds relied upon in this petition as follows:

A. SECTION 44 OF THE 'BUDGET REFORM DECREE OF 1977' INFRINGES UPON THE FUNDAMENTAL LAW BY AUTHORIZING THE ILLEGAL TRANSFER OF PUBLIC MONEYS.

B. SECTION 44 OF PRESIDENTIAL DECREE NO. 1177 IS REPUGNANT TO THE CONSTITUTION AS IT FAILS TO SPECIFY THE OBJECTIVES AND PURPOSES FOR WHICH THE PROPOSED TRANSFER OF FUNDS ARE TO BE MADE.

C. SECTION 44 OF PRESIDENTIAL DECREE NO. 1177 ALLOWS THE PRESIDENT TO OVERRIDE THE SAFEGUARDS, FORM AND PROCEDURE PRESCRIBED BY THE CONSTITUTION IN APPROVING APPROPRIATIONS.

D. SECTION 44 OF THE SAME DECREE AMOUNTS TO AN UNDUE DELEGATION OF LEGISLATIVE POWERS TO THE EXECUTIVE.

E. THE THREATENED AND CONTINUING TRANSFER OF FUNDS BY THE PRESIDENT AND THE IMPLEMENTATION THEREOF BY THE BUDGET MINISTER AND THE TREASURER OF THE PHILIPPINES ARE WITHOUT OR IN EXCESS OF THEIR AUTHORITY AND JURISDICTION. 2

Commenting on the petition in compliance with the Court resolution dated September 19, 1985, the Solicitor General, for the public respondents, questioned the legal standing of petitioners, who were allegedly merely begging an advisory opinion from the Court, there being no justiciable controversy fit for resolution or determination. He further contended that the provision under consideration was enacted pursuant to Section 16[5], Article VIII of the 1973 Constitution; and that at any rate, prohibition will not lie from one branch of the government to a coordinate branch to enjoin the performance of duties within the latter's sphere of responsibility.

On February 27, 1986, the Court required the petitioners to file a Reply to the Comment. This, they did, stating, among others, that as a result of the change in the administration, there is a need to hold the resolution of the present case in abeyance "until developments arise to enable the parties to concretize their respective stands." 3

Thereafter, We required public respondents to file a rejoinder. The Solicitor General filed a rejoinder with a motion to dismiss, setting forth as grounds therefor the abrogation of Section 16[5], Article VIII of the 1973 Constitution by the Freedom Constitution of March 25, 1986, which has allegedly rendered the instant petition moot and academic. He likewise cited the "seven pillars" enunciated by Justice Brandeis in Ashwander v. TVA, 297 U.S. 288 (1936) 4 as basis for the petition's dismissal.

In the case of Evelio B. Javier v. The Commission on Elections and Arturo F. Pacificador, G.R. Nos. 68379-81, September 22, 1986, We stated that:

The abolition of the Batasang Pambansa and the disappearance of the office in dispute between the petitioner and the private respondents — both of whom have gone their separate ways — could be a convenient justification for dismissing the case. But there are larger issues involved that must be resolved now, once and for all, not only to dispel the legal ambiguities here raised. The more important purpose is to manifest in the clearest possible terms that this Court will not disregard and in effect condone wrong on the simplistic and tolerant pretext that the case has become moot and academic.

The Supreme Court is not only the highest arbiter of legal questions but also the conscience of the government. The citizen comes to us in quest of law but we must also give him justice. The two are not always the same. There are times when we cannot grant the latter because the issue has been settled and decision is no longer possible according to the law. But there are also times when although the dispute has disappeared, as in this case, it nevertheless cries out to be resolved. Justice demands that we act then, not only for the vindication of the outraged right, though gone, but also for the guidance of and as a restraint upon the future.

It is in the discharge of our role in society, as above-quoted, as well as to avoid great disservice to national interest that We take cognizance of this petition and thus deny public respondents' motion to dismiss. Likewise noteworthy is the fact that the new Constitution, ratified by the Filipino people in the plebiscite held on February 2, 1987, carries verbatim section 16[5], Article VIII of the 1973 Constitution under Section 24[5], Article VI. And while Congress has not officially reconvened, We see no cogent reason for further delaying the resolution of the case at bar.

The exception taken to petitioners' legal standing deserves scant consideration. The case of Pascual v. Secretary of Public Works, et al., 110 Phil. 331, is authority in support of petitioners' locus standi. Thus:

Again, it is well-settled that the validity of a statute may be contested only by one who will sustain a direct injury in consequence of its enforcement. Yet, there are many decisions nullifying at the instance of taxpayers, laws providing for the disbursement of public funds, upon the theory that the expenditure of public funds by an officer of the state for the purpose of administering an unconstitutional act constitutes a misapplication of such funds which may be enjoined at the request of a taxpayer. Although there are some decisions to the contrary, the prevailing view in the United States is stated in the American Jurisprudence as follows:

In the determination of the degree of interest essential to give the requisite standing to attack the constitutionality of a statute, the general rule is that not only persons individually affected, but also taxpayers have sufficient interest in preventing the illegal expenditures of moneys raised by taxation and may therefore question the constitutionality of statutes requiring expenditure of public moneys. [ 11 Am. Jur. 761, Emphasis supplied. ]

Moreover, in Tan v. Macapagal, 43 SCRA 677 and Sanidad v. Comelec, 73 SCRA 333, We said that as regards taxpayers' suits, this Court enjoys that open discretion to entertain the same or not.

The conflict between paragraph 1 of Section 44 of Presidential Decree No. 1177 and Section 16[5], Article VIII of the 1973 Constitution is readily perceivable from a mere cursory reading thereof. Said paragraph 1 of Section 44 provides:

The President shall have the authority to transfer any fund, appropriated for the different departments, bureaus, offices and agencies of the Executive Department, which are included in the General Appropriations Act, to any program, project or activity of any department, bureau, or office included in the General Appropriations Act or approved after its enactment.

On the other hand, the constitutional provision under consideration reads as follows:

Sec. 16[5]. No law shall be passed authorizing any transfer of appropriations, however, the President, the Prime Minister, the Speaker, the Chief Justice of the Supreme Court, and the heads of constitutional commis ions may by law be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.

The prohibition to transfer an appropriation for one item to another was explicit and categorical under the 1973 Constitution. However, to afford the heads of the different branches of the government and those of the constitutional commissions considerable flexibility in the use of public funds and resources, the constitution allowed the enactment of a law authorizing the transfer of funds for the purpose of augmenting an item from savings in another item in the appropriation of the government branch or constitutional body concerned. The leeway granted was thus limited. The purpose and conditions for which funds may be transferred were specified, i.e. transfer may be allowed for the purpose of augmenting an item and such transfer may be made only if there are savings from another item in the appropriation of the government branch or constitutional body.

Paragraph 1 of Section 44 of P.D. No. 1177 unduly over extends the privilege granted under said Section 16[5]. It empowers the President to indiscriminately transfer funds from one department, bureau, office or agency of the Executive Department to any program, project or activity of any department, bureau or office included in the General Appropriations Act or approved after its enactment, without regard as to whether or not the funds to be transferred are actually savings in the item from which the same are to be taken, or whether or not the transfer is for the purpose of augmenting the item to which said transfer is to be made. It does not only completely disregard the standards set in the fundamental law, thereby amounting to an undue delegation of legislative powers, but likewise goes beyond the tenor thereof. Indeed, such constitutional infirmities render the provision in question null and void.

"For the love of money is the root of all evil: ..." and money belonging to no one in particular, i.e. public funds, provide an even greater temptation for misappropriation and embezzlement. This, evidently, was foremost in the minds of the framers of the constitution in meticulously prescribing the rules regarding the appropriation and disposition of public funds as embodied in Sections 16 and 18 of Article VIII of the 1973 Constitution. Hence, the conditions on the release of money from the treasury [Sec. 18(1)]; the restrictions on the use of public funds for public purpose [Sec. 18(2)]; the prohibition to transfer an appropriation for an item to another [See. 16(5) and the requirement of specifications [Sec. 16(2)], among others, were all safeguards designed to forestall abuses in the expenditure of public funds. Paragraph 1 of Section 44 puts all these safeguards to naught. For, as correctly observed by petitioners, in view of the unlimited authority bestowed upon the President, "... Pres. Decree No. 1177 opens the floodgates for the enactment of unfunded appropriations, results in uncontrolled executive expenditures, diffuses accountability for budgetary performance and entrenches the pork barrel system as the ruling party may well expand [sic] public money not on the basis of development priorities but on political and personal expediency." 5 The contention of public respondents that paragraph 1 of Section 44 of P.D. 1177 was enacted pursuant to Section 16(5) of Article VIII of the 1973 Constitution must perforce fall flat on its face.

Another theory advanced by public respondents is that prohibition will not lie from one branch of the government against a coordinate branch to enjoin the performance of duties within the latter's sphere of responsibility.

Thomas M. Cooley in his "A Treatise on the Constitutional Limitations," Vol. 1, Eight Edition, Little, Brown and Company, Boston, explained:

... The legislative and judicial are coordinate departments of the government, of equal dignity; each is alike supreme in the exercise of its proper functions, and cannot directly or indirectly, while acting within the limits of its authority, be subjected to the control or supervision of the other, without an unwarrantable assumption by that other of power which, by the Constitution, is not conferred upon it. The Constitution apportions the powers of government, but it does not make any one of the three departments subordinate to another, when exercising the trust committed to it. The courts may declare legislative enactments unconstitutional and void in some cases, but not because the judicial power is superior in degree or dignity to the legislative. Being required to declare what the law is in the cases which come before them, they must enforce the Constitution, as the paramount law, whenever a legislative enactment comes in conflict with it. But the courts sit, not to review or revise the legislative action, but to enforce the legislative will, and it is only where they find that the legislature has failed to keep within its constitutional limits, that they are at liberty to disregard its action; and in doing so, they only do what every private citizen may do in respect to the mandates of the courts when the judges assumed to act and to render judgments or decrees without jurisdiction. "In exercising this high authority, the judges claim no judicial supremacy; they are only the administrators of the public will. If an act of the legislature is held void, it is not because the judges have any control over the legislative power, but because the act is forbidden by the Constitution, and because the will of the people, which is therein declared, is paramount to that of their representatives expressed in any law." [Lindsay v. Commissioners, & c., 2 Bay, 38, 61; People v. Rucker, 5 Col. 5; Russ v. Com., 210 Pa. St. 544; 60 Atl. 169, 1 L.R.A. [N.S.] 409, 105 Am. St. Rep. 825] (pp. 332-334).

Indeed, where the legislature or the executive branch is acting within the limits of its authority, the judiciary cannot and ought not to interfere with the former. But where the legislature or the executive acts beyond the scope of its constitutional powers, it becomes the duty of the judiciary to declare what the other branches of the government had assumed to do as void. This is the essence of judicial power conferred by the Constitution "in one Supreme Court and in such lower courts as may be established by law" [Art. VIII, Section 1 of the 1935 Constitution; Art. X, Section 1 of the 1973 Constitution and which was adopted as part of the Freedom Constitution, and Art. VIII, Section 1 of the 1987 Constitution] and which power this Court has exercised in many instances. *

Public respondents are being enjoined from acting under a provision of law which We have earlier mentioned to be constitutionally infirm. The general principle relied upon cannot therefore accord them the protection sought as they are not acting within their "sphere of responsibility" but without it.

The nation has not recovered from the shock, and worst, the economic destitution brought about by the plundering of the Treasury by the deposed dictator and his cohorts. A provision which allows even the slightest possibility of a repetition of this sad experience cannot remain written in our statute books.

WHEREFORE, the instant petition is granted. Paragraph 1 of Section 44 of Presidential Decree No. 1177 is hereby declared null and void for being unconstitutional.

SO ORDER RED.

Teehankee, C.J., Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-45081             July 15, 1936

JOSE A. ANGARA, petitioner, vs.THE ELECTORAL COMMISSION, PEDRO YNSUA, MIGUEL CASTILLO, and DIONISIO C. MAYOR, respondents.

Godofredo Reyes for petitioner.Office of the Solicitor General Hilado for respondent Electoral Commission.Pedro Ynsua in his own behalf.No appearance for other respondents.

LAUREL, J.:

This is an original action instituted in this court by the petitioner, Jose A. Angara, for the issuance of a writ of prohibition to restrain and prohibit the Electoral Commission, one of the respondents, from taking further cognizance of the protest filed by Pedro Ynsua, another respondent, against the election of said petitioner as member of the National Assembly for the first assembly district of the Province of Tayabas.

The facts of this case as they appear in the petition and as admitted by the respondents are as follows:

(1) That in the elections of September 17, 1935, the petitioner, Jose A. Angara, and the respondents, Pedro Ynsua, Miguel Castillo and Dionisio Mayor, were candidates voted for the position of member of the National Assembly for the first district of the Province of Tayabas;

(2) That on October 7, 1935, the provincial board of canvassers, proclaimed the petitioner as member-elect of the National Assembly for the said district, for having received the most number of votes;

(3) That on November 15, 1935, the petitioner took his oath of office;

(4) That on December 3, 1935, the National Assembly in session assembled, passed the following resolution:

[No. 8]

RESOLUCION CONFIRMANDO LAS ACTAS DE AQUELLOS DIPUTADOS CONTRA QUIENES NO SE HA PRESENTADO PROTESTA.

Se resuelve: Que las actas de eleccion de los Diputados contra quienes no se hubiere presentado debidamente una protesta antes de la adopcion de la presente resolucion sean, como por la presente, son aprobadas y confirmadas.

Adoptada, 3 de diciembre, 1935.

(5) That on December 8, 1935, the herein respondent Pedro Ynsua filed before the Electoral Commission a "Motion of Protest" against the election of the herein petitioner, Jose A. Angara, being the only protest filed after the passage of Resolutions No. 8 aforequoted, and praying, among other-things, that said respondent be declared elected member of the National Assembly for the first district of Tayabas, or that the election of said position be nullified;

(6) That on December 9, 1935, the Electoral Commission adopted a resolution, paragraph 6 of which provides:

6. La Comision no considerara ninguna protesta que no se haya presentado en o antes de este dia.

(7) That on December 20, 1935, the herein petitioner, Jose A. Angara, one of the respondents in the aforesaid protest, filed before the Electoral Commission a "Motion to Dismiss the Protest", alleging (a) that Resolution No. 8 of Dismiss the Protest", alleging (a) that Resolution No. 8 of the National Assembly was adopted in the legitimate exercise of its constitutional prerogative to prescribe the period during which protests against the election of its members should be presented; (b) that the aforesaid resolution has for its object, and is the accepted formula for, the limitation of said period; and (c) that the protest in question was filed out of the prescribed period;

(8) That on December 27, 1935, the herein respondent, Pedro Ynsua, filed an "Answer to the Motion of Dismissal" alleging that there is no legal or constitutional provision barring the presentation of a protest against the election of a member of the National Assembly after confirmation;

(9) That on December 31, 1935, the herein petitioner, Jose A. Angara, filed a "Reply" to the aforesaid "Answer to the Motion of Dismissal";

(10) That the case being submitted for decision, the Electoral Commission promulgated a resolution on January 23, 1936, denying herein petitioner's "Motion to Dismiss the Protest."

The application of the petitioner sets forth the following grounds for the issuance of the writ prayed for:

(a) That the Constitution confers exclusive jurisdiction upon the electoral Commission solely as regards the merits of contested elections to the National Assembly;

(b) That the Constitution excludes from said jurisdiction the power to regulate the proceedings of said election contests, which power has been reserved to the Legislative Department of the Government or the National Assembly;

(c) That like the Supreme Court and other courts created in pursuance of the Constitution, whose exclusive jurisdiction relates solely to deciding the merits of controversies submitted to them for decision and to matters involving their internal organization, the Electoral Commission can regulate its proceedings only if the National Assembly has not availed of its primary power to so regulate such proceedings;

(d) That Resolution No. 8 of the National Assembly is, therefore, valid and should be respected and obeyed;

(e) That under paragraph 13 of section 1 of the ordinance appended to the Constitution and paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd Congress of the United States) as well as under section 1 and 3 (should be sections 1 and 2) of article VIII of the Constitution, this Supreme Court has jurisdiction to pass upon the fundamental question herein raised because it involves an interpretation of the Constitution of the Philippines.

On February 25, 1936, the Solicitor-General appeared and filed an answer in behalf of the respondent Electoral Commission interposing the following special defenses:

(a) That the Electoral Commission has been created by the Constitution as an instrumentality of the Legislative Department invested with the jurisdiction to decide "all contests relating to the election, returns, and qualifications of the members of the National Assembly"; that in adopting its resolution of December 9, 1935, fixing this date as the last day for the presentation of protests against the election of any member of the National Assembly, it acted within its jurisdiction and in the legitimate exercise of the implied powers granted it by the Constitution to adopt the rules and regulations essential to carry out the power and functions conferred upon the same by the fundamental law; that in adopting its resolution of January 23, 1936, overruling the motion of the petitioner to dismiss the election protest in question, and declaring itself with jurisdiction to take cognizance of said protest, it acted in the legitimate exercise of its quasi-judicial functions a an instrumentality of the Legislative Department of the Commonwealth Government, and hence said act is beyond the judicial cognizance or control of the Supreme Court;

(b) That the resolution of the National Assembly of December 3, 1935, confirming the election of the members of the National Assembly against whom no protest had thus far been filed, could not and did not deprive the electoral Commission of its jurisdiction to take cognizance of election protests filed within the time that might be set by its own rules:

(c) That the Electoral Commission is a body invested with quasi-judicial functions, created by the Constitution as an instrumentality of the Legislative Department, and is not an "inferior tribunal, or corporation, or board, or person" within the purview of section 226 and 516 of the Code of Civil Procedure, against which prohibition would lie.

The respondent Pedro Ynsua, in his turn, appeared and filed an answer in his own behalf on March 2, 1936, setting forth the following as his special defense:

(a) That at the time of the approval of the rules of the Electoral Commission on December 9, 1935, there was no existing law fixing the period within which protests against the election of members of the National Assembly should be filed; that in fixing December 9, 1935, as the last day for the filing of protests against the election of members of the National Assembly, the Electoral Commission was exercising a power impliedly conferred upon it by the Constitution, by reason of its quasi-judicial attributes;

(b) That said respondent presented his motion of protest before the Electoral Commission on December 9, 1935, the last day fixed by paragraph 6 of the rules of the said Electoral Commission;

(c) That therefore the Electoral Commission acquired jurisdiction over the protest filed by said respondent and over the parties thereto, and the resolution of the Electoral Commission of January 23, 1936, denying petitioner's motion to dismiss said protest was an act within the jurisdiction of the said commission, and is not reviewable by means of a writ of prohibition;

(d) That neither the law nor the Constitution requires confirmation by the National Assembly of the election of its members, and that such confirmation does not operate to limit the period within which protests should be filed as to deprive the Electoral Commission of jurisdiction over protest filed subsequent thereto;

(e) That the Electoral Commission is an independent entity created by the Constitution, endowed with quasi-judicial functions, whose decision are final and unappealable;

( f ) That the electoral Commission, as a constitutional creation, is not an inferior tribunal, corporation, board or person, within the terms of sections 226 and 516 of the Code of Civil Procedure; and that neither under the provisions of sections 1 and 2 of article II (should be article VIII) of the Constitution and paragraph 13 of section 1 of the Ordinance appended thereto could it be subject in the exercise of its quasi-judicial functions to a writ of prohibition from the Supreme Court;

(g) That paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd Congress of the united States) has no application to the case at bar.

The case was argued before us on March 13, 1936. Before it was submitted for decision, the petitioner prayed for the issuance of a preliminary writ of injunction against the respondent Electoral Commission which petition was denied "without passing upon the merits of the case" by resolution of this court of March 21, 1936.

There was no appearance for the other respondents.

The issues to be decided in the case at bar may be reduced to the following two principal propositions:

1. Has the Supreme Court jurisdiction over the Electoral Commission and the subject matter of the controversy upon the foregoing related facts, and in the affirmative,

2. Has the said Electoral Commission acted without or in excess of its jurisdiction in assuming to the cognizance of the protest filed the election of the herein petitioner notwithstanding the previous confirmation of such election by resolution of the National Assembly?

We could perhaps dispose of this case by passing directly upon the merits of the controversy. However, the question of jurisdiction having been presented, we do not feel justified in evading the issue. Being a case primæ impressionis, it would hardly be consistent with our sense of duty to overlook the broader aspect of the question and leave it undecided. Neither would we be doing justice to the industry and vehemence of counsel were we not to pass upon the question of jurisdiction squarely presented to our consideration.

The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. For example, the Chief Executive under our Constitution is so far made a check on the legislative power that this assent is required in the enactment of laws. This, however, is subject to the further check that a bill may become a law notwithstanding the refusal of the President to approve it, by a vote of two-thirds or three-fourths, as the case may be, of the National Assembly. The President has also the right to convene the Assembly in special session whenever he chooses. On the other hand, the National Assembly operates as a check on the Executive in the sense that its consent through its Commission on Appointments is necessary in the appointments of certain officers; and the concurrence of a majority of all its members is essential to the conclusion of treaties. Furthermore, in its power to determine what courts other than the Supreme Court shall be established, to define their jurisdiction and to appropriate funds for their support, the National Assembly controls the judicial department to a certain extent. The Assembly also exercises the judicial power of trying impeachments. And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution.

But in the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government. The overlapping and interlacing of functions and duties between the several departments, however, sometimes makes it hard to say just where the one leaves off and the other begins. In times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof.

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

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

But much as we might postulate on the internal checks of power provided in our Constitution, it ought not the less to be remembered that, in the language of James Madison, the system itself is not "the chief palladium of constitutional liberty . . . the people who are authors of this blessing must also be its guardians . . . their eyes must be ever ready to mark, their voice to pronounce . . . aggression on the authority of their constitution." In the Last and ultimate analysis, then, must the success of our government in the unfolding years to come be tested in the crucible of Filipino minds and hearts than in consultation rooms and court chambers.

In the case at bar, the national Assembly has by resolution (No. 8) of December 3, 1935, confirmed the election of the herein petitioner to the said body. On the other hand, the Electoral Commission has by resolution adopted on December 9, 1935, fixed said date as the last day for the filing of protests against the election, returns and qualifications of members of the National Assembly, notwithstanding the previous confirmation made by the National Assembly as aforesaid. If, as contended by the petitioner, the resolution of the National Assembly has the effect of cutting off the power of the Electoral Commission to entertain protests against the election, returns and qualifications of members of the National Assembly, submitted after December 3, 1935, then the resolution of the Electoral Commission of December 9, 1935, is mere surplusage and had no effect. But, if, as contended by the respondents, the Electoral Commission has the sole power of regulating its proceedings to the exclusion of the National Assembly, then the resolution of December 9, 1935, by which the Electoral Commission fixed said date as the last day for filing protests against the election, returns and qualifications of members of the National Assembly, should be upheld.

Here is then presented an actual controversy involving as it does a conflict of a grave constitutional nature between the National Assembly on the one hand, and the Electoral Commission on the other. From the very nature of the republican government established in our country in the light of American experience and of our own, upon the judicial department is thrown the solemn and inescapable obligation of interpreting the Constitution and defining

constitutional boundaries. The Electoral Commission, as we shall have occasion to refer hereafter, is a constitutional organ, created for a specific purpose, namely to determine all contests relating to the election, returns and qualifications of the members of the National Assembly. Although the Electoral Commission may not be interfered with, when and while acting within the limits of its authority, it does not follow that it is beyond the reach of the constitutional mechanism adopted by the people and that it is not subject to constitutional restrictions. The Electoral Commission is not a separate department of the government, and even if it were, conflicting claims of authority under the fundamental law between department powers and agencies of the government are necessarily determined by the judiciary in justifiable and appropriate cases. Discarding the English type and other European types of constitutional government, the framers of our constitution adopted the American type where the written constitution is interpreted and given effect by the judicial department. In some countries which have declined to follow the American example, provisions have been inserted in their constitutions prohibiting the courts from exercising the power to interpret the fundamental law. This is taken as a recognition of what otherwise would be the rule that in the absence of direct prohibition courts are bound to assume what is logically their function. For instance, the Constitution of Poland of 1921, expressly provides that courts shall have no power to examine the validity of statutes (art. 81, chap. IV). The former Austrian Constitution contained a similar declaration. In countries whose constitutions are silent in this respect, courts have assumed this power. This is true in Norway, Greece, Australia and South Africa. Whereas, in Czechoslovakia (arts. 2 and 3, Preliminary Law to constitutional Charter of the Czechoslovak Republic, February 29, 1920) and Spain (arts. 121-123, Title IX, Constitutional of the Republic of 1931) especial constitutional courts are established to pass upon the validity of ordinary laws. In our case, the nature of the present controversy shows the necessity of a final constitutional arbiter to determine the conflict of authority between two agencies created by the Constitution. Were we to decline to take cognizance of the controversy, who will determine the conflict? And if the conflict were left undecided and undetermined, would not a void be thus created in our constitutional system which may be in the long run prove destructive of the entire framework? To ask these questions is to answer them. Natura vacuum abhorret, so must we avoid exhaustion in our constitutional system. Upon principle, reason and authority, we are clearly of the opinion that upon the admitted facts of the present case, this court has jurisdiction over the Electoral Commission and the subject mater of the present controversy for the purpose of determining the character, scope and extent of the constitutional grant to the Electoral Commission as "the sole judge of all contests relating to the election, returns and qualifications of the members of the National Assembly."

Having disposed of the question of jurisdiction, we shall now proceed to pass upon the second proposition and determine whether the Electoral Commission has acted without or in excess of its jurisdiction in adopting its resolution of December 9, 1935, and in assuming to take cognizance of the protest filed against the election of the herein petitioner notwithstanding the previous confirmation thereof by the National Assembly on December 3, 1935. As able counsel for the petitioner has pointed out, the issue hinges on the interpretation of section 4 of Article VI of the Constitution which provides:

"SEC. 4. There shall be an Electoral Commission composed of three Justice of the Supreme Court designated by the Chief Justice, and of six Members chosen by the National Assembly, three of whom shall be nominated by the party having the largest number of votes, and three by the party having the second largest number of votes therein. The senior Justice in the Commission shall be its Chairman. The Electoral Commission shall be the sole judge of all contests relating to the election, returns and qualifications of the members of the National Assembly." It is imperative, therefore, that we delve into the origin and history of this constitutional provision and inquire into the intention of its framers and the people who adopted it so that we may properly appreciate its full meaning, import and significance.

The original provision regarding this subject in the Act of Congress of July 1, 1902 (sec. 7, par. 5) laying down the rule that "the assembly shall be the judge of the elections, returns, and qualifications of its members", was taken from clause 1 of section 5, Article I of the Constitution of the United States providing that "Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members, . . . ." The Act of Congress of August 29, 1916 (sec. 18, par. 1) modified this provision by the insertion of the word "sole" as follows: "That the Senate and House of Representatives, respectively, shall be the sole judges of the elections, returns, and qualifications of their elective members . . ." apparently in order to emphasize the exclusive the Legislative over the particular case s therein specified. This court has had occasion to characterize this grant of power to the Philippine Senate and House of Representatives, respectively, as "full, clear and complete" (Veloso vs. Boards of Canvassers of Leyte and Samar [1919], 39 Phil., 886, 888.)

The first step towards the creation of an independent tribunal for the purpose of deciding contested elections to the legislature was taken by the sub-committee of five appointed by the Committee on Constitutional Guarantees of the Constitutional Convention, which sub-committee submitted a report on August 30, 1934, recommending the creation of a Tribunal of Constitutional Security empowered to hear legislature but also against the election of executive officers for whose election the vote of the whole nation is required, as well as to initiate impeachment proceedings against specified executive and judicial officer. For the purpose of hearing legislative protests, the tribunal was to be composed of three justices designated by the Supreme Court and six members of the house of the legislature to which the contest corresponds, three members to be designed by the majority party and three by the minority, to be presided over by the Senior Justice unless the Chief Justice is also a member in which case the latter shall preside. The foregoing proposal was submitted by the Committee on Constitutional Guarantees to the Convention on September 15, 1934, with slight modifications consisting in the reduction of the legislative representation to four members, that is, two senators to be designated one each from the two major parties in the Senate and two representatives to be designated one each from the two major parties in the House of Representatives, and in awarding representation to the executive department in the persons of two representatives to be designated by the President.

Meanwhile, the Committee on Legislative Power was also preparing its report. As submitted to the Convention on September 24, 1934 subsection 5, section 5, of the proposed Article on the Legislative Department, reads as follows:

The elections, returns and qualifications of the members of either house and all cases contesting the election of any of their members shall be judged by an Electoral Commission, constituted, as to each House, by three members elected by the members of the party having the largest number of votes therein, three elected by the members of the party having the second largest number of votes, and as to its Chairman, one Justice of the Supreme Court designated by the Chief Justice.

The idea of creating a Tribunal of Constitutional Security with comprehensive jurisdiction as proposed by the Committee on Constitutional Guarantees which was probably inspired by the Spanish plan (art. 121, Constitution of the Spanish Republic of 1931), was soon abandoned in favor of the proposition of the Committee on Legislative Power to create a similar body with reduced powers and with specific and limited jurisdiction, to be designated as a Electoral Commission. The Sponsorship Committee modified the proposal of the Committee on Legislative Power with respect to the composition of the Electoral Commission and made further changes in phraseology to suit the project of adopting a unicameral instead of a bicameral legislature. The draft as finally submitted to the Convention on October 26, 1934, reads as follows:

(6) The elections, returns and qualifications of the Members of the National Assembly and all cases contesting the election of any of its Members shall be judged by an Electoral Commission, composed of three members elected by the party having the largest number of votes in the National Assembly, three elected by the members of the party having the second largest number of votes, and three justices of the Supreme Court designated by the Chief Justice, the Commission to be presided over by one of said justices.

During the discussion of the amendment introduced by Delegates Labrador, Abordo, and others, proposing to strike out the whole subsection of the foregoing draft and inserting in lieu thereof the following: "The National Assembly shall be the soled and exclusive judge of the elections, returns, and qualifications of the Members", the following illuminating remarks were made on the floor of the Convention in its session of December 4, 1934, as to the scope of the said draft:

x x x           x x x           x x x

Mr. VENTURA. Mr. President, we have a doubt here as to the scope of the meaning of the first four lines, paragraph 6, page 11 of the draft, reading: "The elections, returns and qualifications of the Members of the National Assembly and all cases contesting the election of any of its Members shall be judged by an Electoral Commission, . . ." I should like to ask from the gentleman from Capiz whether the election and qualification of the member whose elections is not contested shall also be judged by the Electoral Commission.

Mr. ROXAS. If there is no question about the election of the members, there is nothing to be judged; that is why the word "judge" is used to indicate a controversy. If there is no question about the election of a member, there is nothing to be submitted to the Electoral Commission and there is nothing to be determined.

Mr. VENTURA. But does that carry the idea also that the Electoral Commission shall confirm also the election of those whose election is not contested?

Mr. ROXAS. There is no need of confirmation. As the gentleman knows, the action of the House of Representatives confirming the election of its members is just a matter of the rules of the assembly. It is not constitutional. It is not necessary. After a man files his credentials that he has been elected, that is sufficient, unless his election is contested.

Mr. VENTURA. But I do not believe that that is sufficient, as we have observed that for purposes of the auditor, in the matter of election of a member to a legislative body, because he will not authorize his pay.

Mr. ROXAS. Well, what is the case with regards to the municipal president who is elected? What happens with regards to the councilors of a municipality? Does anybody confirm their election? The municipal council does this: it makes a canvass and proclaims — in this case the municipal council proclaims who has been elected, and it ends there, unless there is a contest. It is the same case; there is no need on the part of the Electoral Commission unless there is a contest. The first clause refers to the case referred to by the gentleman from Cavite where one person tries to be elected in place of another who was declared elected. From example, in a case when the residence of the man who has been elected is in question, or in case the citizenship of the man who has been elected is in question.

However, if the assembly desires to annul the power of the commission, it may do so by certain maneuvers upon its first meeting when the returns are submitted to the assembly. The purpose is to give to the Electoral Commission all the powers exercised by the assembly referring to the elections, returns and qualifications of the members. When there is no contest, there is nothing to be judged.

Mr. VENTURA. Then it should be eliminated.

Mr. ROXAS. But that is a different matter, I think Mr. Delegate.

Mr. CINCO. Mr. President, I have a similar question as that propounded by the gentleman from Ilocos Norte when I arose a while ago. However I want to ask more questions from the delegate from Capiz. This paragraph 6 on page 11 of the draft cites cases contesting the election as separate from the first part of the sections which refers to elections, returns and qualifications.

Mr. ROXAS. That is merely for the sake of clarity. In fact the cases of contested elections are already included in the phrase "the elections, returns and qualifications." This phrase "and contested elections" was inserted merely for the sake of clarity.

Mr. CINCO. Under this paragraph, may not the Electoral Commission, at its own instance, refuse to confirm the elections of the members."

Mr. ROXAS. I do not think so, unless there is a protest.

Mr. LABRADOR. Mr. President, will the gentleman yield?

THE PRESIDENT. The gentleman may yield, if he so desires.

Mr. ROXAS. Willingly.

Mr. LABRADOR. Does not the gentleman from Capiz believe that unless this power is granted to the assembly, the assembly on its own motion does not have the right to contest the election and qualification of its members?

Mr. ROXAS. I have no doubt but that the gentleman is right. If this draft is retained as it is, even if two-thirds of the assembly believe that a member has not the qualifications provided by law, they cannot remove him for that reason.

Mr. LABRADOR. So that the right to remove shall only be retained by the Electoral Commission.

Mr. ROXAS. By the assembly for misconduct.

Mr. LABRADOR. I mean with respect to the qualifications of the members.

Mr. ROXAS. Yes, by the Electoral Commission.

Mr. LABRADOR. So that under this draft, no member of the assembly has the right to question the eligibility of its members?

Mr. ROXAS. Before a member can question the eligibility, he must go to the Electoral Commission and make the question before the Electoral Commission.

Mr. LABRADOR. So that the Electoral Commission shall decide whether the election is contested or not contested.

Mr. ROXAS. Yes, sir: that is the purpose.

Mr. PELAYO. Mr. President, I would like to be informed if the Electoral Commission has power and authority to pass upon the qualifications of the members of the National Assembly even though that question has not been raised.

Mr. ROXAS. I have just said that they have no power, because they can only judge.

In the same session, the first clause of the aforesaid draft reading "The election, returns and qualifications of the members of the National Assembly and" was eliminated by the Sponsorship Committee in response to an amendment introduced by Delegates Francisco, Ventura, Vinzons, Rafols, Lim, Mumar and others. In explaining the difference between the original draft and the draft as amended, Delegate Roxas speaking for the Sponsorship Committee said:

x x x           x x x           x x x

Sr. ROXAS. La diferencia, señor Presidente, consiste solamente en obviar la objecion apuntada por varios Delegados al efecto de que la primera clausula del draft que dice: "The elections, returns and qualifications of the members of the National Assembly" parece que da a la Comision Electoral la facultad de determinar tambien la eleccion de los miembros que no ha sido protestados y para obviar esa dificultad, creemos que la enmienda tien razon en ese sentido, si enmendamos el draft, de tal modo que se lea como sigue: "All cases contesting the election", de modo que los jueces de la Comision Electoral se limitaran solamente a los casos en que haya habido protesta contra las actas." Before the amendment of Delegate Labrador was voted upon the following interpellation also took place:

El Sr. CONEJERO. Antes de votarse la enmienda, quisiera

El Sr. PRESIDENTE. ¿Que dice el Comite?

El Sr. ROXAS. Con mucho gusto.

El Sr. CONEJERO. Tal como esta el draft, dando tres miembros a la mayoria, y otros tres a la minoria y tres a la Corte Suprema, ¿no cree Su Señoria que esto equivale practicamente a dejar el asunto a los miembros del Tribunal Supremo?

El Sr. ROXAS. Si y no. Creemos que si el tribunal o la Commission esta constituido en esa forma, tanto los miembros de la mayoria como los de la minoria asi como los miembros de la Corte Suprema consideraran la cuestion sobre la base de sus meritos, sabiendo que el partidismo no es suficiente para dar el triunfo.

El Sr. CONEJERO. ¿Cree Su Señoria que en un caso como ese, podriamos hacer que tanto los de la mayoria como los de la minoria prescindieran del partidismo?

El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo.

x x x           x x x           x x x

The amendment introduced by Delegates Labrador, Abordo and others seeking to restore the power to decide contests relating to the election, returns and qualifications of members of the National Assembly to the National Assembly itself, was defeated by a vote of ninety-eight (98) against fifty-six (56).

In the same session of December 4, 1934, Delegate Cruz (C.) sought to amend the draft by reducing the representation of the minority party and the Supreme Court in the Electoral Commission to two members each, so as to accord more representation to the majority party. The Convention rejected this amendment by a vote of seventy-six (76) against forty-six (46), thus maintaining the non-partisan character of the commission.

As approved on January 31, 1935, the draft was made to read as follows:

(6) All cases contesting the elections, returns and qualifications of the Members of the National Assembly shall be judged by an Electoral Commission, composed of three members elected by the party having the largest number of votes in the National Assembly, three elected by the members of the party having the second largest number of votes, and three justices of the Supreme Court designated by the Chief Justice, the Commission to be presided over by one of said justices.

The Style Committee to which the draft was submitted revised it as follows:

SEC. 4. There shall be an Electoral Commission composed of three Justices of the Supreme Court designated by the Chief Justice, and of six Members chosen by the National Assembly, three of whom shall be nominated by the party having the largest number of votes, and three by the party having the second largest number of votes therein. The senior Justice in the Commission shall be its chairman. The Electoral Commission shall be the sole judge of the election, returns, and qualifications of the Members of the National Assembly.

When the foregoing draft was submitted for approval on February 8, 1935, the Style Committee, through President Recto, to effectuate the original intention of the Convention, agreed to insert the phrase "All contests relating to" between the phrase "judge of" and the words "the elections", which was accordingly accepted by the Convention.

The transfer of the power of determining the election, returns and qualifications of the members of the legislature long lodged in the legislative body, to an independent, impartial and non-partisan tribunal, is by no means a mere experiment in the science of government.

Cushing, in his Law and Practice of Legislative Assemblies (ninth edition, chapter VI, pages 57, 58), gives a vivid account of the "scandalously notorious" canvassing of votes by political parties in the disposition of contests by the House of Commons in the following passages which are partly quoted by the petitioner in his printed memorandum of March 14, 1936:

153. From the time when the commons established their right to be the exclusive judges of the elections, returns, and qualifications of their members, until the year 1770, two modes of proceeding prevailed, in the determination of controverted elections, and rights of membership. One of the standing committees appointed at the commencement of each session, was denominated the committee of privileges and elections, whose functions was to hear and investigate all questions of this description which might be referred to them, and to report their proceedings, with their opinion thereupon, to the house, from time to time. When an election petition was referred to this committee they heard the parties and their witnesses and other evidence, and made a report of all the evidence, together with their opinion thereupon, in the form of resolutions, which were considered and agreed or disagreed to by the house. The other mode of proceeding was by a hearing at the bar of the house itself. When this court was adopted, the case was heard and decided by the house, in substantially the same manner as by a committee. The committee of privileges and elections although a select committee. The committee of privileges and elections although a select committee was usually what is called an open one; that is to say, in order to constitute the committee, a quorum of the members named was required to be present, but all the members of the house were at liberty to attend the committee and vote if they pleased.

154. With the growth of political parties in parliament questions relating to the right of membership gradually assumed a political character; so that for many years previous to the year 1770, controverted elections had been tried and determined by the house of commons, as mere party questions, upon which the strength of contending factions might be tested. Thus, for Example, in 1741, Sir Robert Walpole, after repeated attacks upon his government, resigned his office in consequence of an adverse vote upon the Chippenham election. Mr. Hatsell remarks, of the trial of election cases, as conducted under this system, that "Every principle of decency and justice were notoriously and openly prostituted, from whence the younger part of the house were insensibly, but too successfully, induced to adopt the same licentious conduct in more serious matters, and in questions of higher importance to the public welfare." Mr. George Grenville, a distinguished member of the house of commons, undertook to propose a remedy for the evil, and, on the 7th of March, 1770, obtained the unanimous leave of the house to bring in a bill, "to regulate the trial of controverted elections, or returns of members to serve in parliament." In his speech to explain his plan, on the motion for leave, Mr. Grenville alluded to the existing practice in the following terms: "Instead of trusting to the merits of their respective causes, the principal dependence of both parties is their private interest among us; and it is scandalously notorious that we are as earnestly canvassed to attend in favor of the opposite sides, as if we were wholly self-elective, and not bound to act by the principles of justice, but by the discretionary impulse of our own inclinations; nay, it is well known, that in every contested election, many members of this house, who are ultimately to judge in a kind of judicial capacity between the competitors, enlist themselves as parties in the contention, and take upon themselves the partial management of the very business, upon which they should determine with the strictest impartiality."

155. It was to put an end to the practices thus described, that Mr. Grenville brought in a bill which met with the approbation of both houses, and received the royal assent on the 12th of April, 1770. This was the celebrated law since known by the name of the Grenville Act; of which Mr. Hatsell declares, that it "was one of the nobles works, for the honor of the house of commons, and the security of the constitution, that was ever devised by any minister or statesman." It is probable, that the magnitude of the evil, or the apparent success of the remedy, may have led many of the contemporaries of the measure to the information of a judgement, which was not acquiesced in by some of the leading statesmen of the day, and has not been entirely confirmed by subsequent experience. The bill was objected to by Lord North, Mr. De Grey, afterwards chief justice of the common pleas, Mr. Ellis, Mr. Dyson, who had been clerk of the house, and Mr. Charles James Fox, chiefly on the ground, that the introduction of the new system was an essential alteration of the constitution of parliament, and a total abrogation of one of the most important rights and jurisdictions of the house of commons.

As early as 1868, the House of Commons in England solved the problem of insuring the non-partisan settlement of the controverted elections of its members by abdicating its prerogative to two judges of the King's Bench of the High Court of Justice selected from a rota in accordance with rules of court made for the purpose. Having proved successful, the practice has become imbedded in English jurisprudence (Parliamentary Elections Act, 1868 [31 & 32 Vict. c. 125] as amended by Parliamentary Elections and Corrupt Practices Act. 1879 [42 & 43 Vict. c. 75], s. 2; Corrupt and Illegal Practices Preventions Act, 1883 [46 & 47 Vict. c. 51;, s. 70; Expiring Laws Continuance Act, 1911 [1 & 2 Geo. 5, c. 22]; Laws of England, vol. XII, p. 408, vol. XXI, p. 787). In the Dominion of Canada, election contests which were originally heard by the Committee of the House of Commons, are since 1922 tried in the courts. Likewise, in the Commonwealth of Australia, election contests which were originally determined by each house, are since 1922 tried in the High Court. In Hungary, the organic law provides that all protests against the election of members of the Upper House of the Diet are to be resolved by the Supreme Administrative Court (Law 22 of 1916, chap. 2, art. 37, par. 6). The Constitution of Poland of March 17, 1921 (art. 19) and the Constitution of the Free City of Danzig of May 13, 1922 (art. 10) vest the authority to decide contested elections to the Diet or National Assembly in the Supreme Court. For the purpose of deciding legislative contests, the Constitution of the German Reich of July 1, 1919 (art. 31), the Constitution of the Czechoslovak Republic of February 29, 1920 (art. 19) and the Constitution of the Grecian Republic of June 2, 1927 (art. 43), all provide for an Electoral Commission.

The creation of an Electoral Commission whose membership is recruited both from the legislature and the judiciary is by no means unknown in the United States. In the presidential elections of 1876 there was a dispute as to the number of electoral votes received by each of the two opposing candidates. As the Constitution made no adequate provision for such a contingency, Congress passed a law on January 29, 1877 (United States Statutes at Large, vol. 19, chap. 37, pp. 227-229), creating a special Electoral Commission composed of five members elected by the Senate, five members elected by the House of Representatives, and five justices of the Supreme Court, the fifth justice to be selected by the four designated in the Act. The decision of the commission was to be binding unless rejected by the two houses voting separately. Although there is not much of a moral lesson to be derived from the experience of America in this regard, judging from the observations of Justice Field, who was a member of that body on the part of the Supreme Court (Countryman, the Supreme Court of the United States and its Appellate Power under the Constitution [Albany, 1913] — Relentless Partisanship of Electoral Commission, p. 25 et seq.), the experiment has at least abiding historical interest.

The members of the Constitutional Convention who framed our fundamental law were in their majority men mature in years and experience. To be sure, many of them were familiar with the history and political development of other countries of the world. When , therefore, they deemed it wise to create an Electoral Commission as a constitutional organ and invested it with the exclusive function of passing upon and determining the election, returns and qualifications of the members of the National Assembly, they must have done so not only in the light of their own experience but also having in view the experience of other enlightened peoples of the world. The creation of the Electoral Commission was designed to remedy certain evils of which the framers of our Constitution were cognizant. Notwithstanding the vigorous opposition of some members of the Convention to its creation, the plan, as hereinabove stated, was approved by that body by a vote of 98 against 58. All that can be said now is that, upon the approval of the constitutional the creation of the Electoral Commission is the expression of the wisdom and "ultimate justice of the people". (Abraham Lincoln, First Inaugural Address, March 4, 1861.)

From the deliberations of our Constitutional Convention it is evident that the purpose was to transfer in its totality all the powers previously exercised by the legislature in matters pertaining to contested elections of its members, to an independent and impartial tribunal. It was not so much the knowledge and appreciation of contemporary constitutional precedents, however, as the long-felt need of determining legislative contests devoid of partisan considerations which prompted the people, acting through their delegates to the Convention, to provide for this body known as the Electoral Commission. With this end in view, a composite body in which both the majority and minority parties are equally represented to off-set partisan influence in its deliberations was created, and further endowed with judicial temper by including in its membership three justices of the Supreme Court.

The Electoral Commission is a constitutional creation, invested with the necessary authority in the performance and execution of the limited and specific function assigned to it by the Constitution. Although it is not a power in our tripartite scheme of government, it is, to all intents and purposes, when acting within the limits of its authority, an independent organ. It is, to be sure, closer to the legislative department than to any other. The location of the provision (section 4) creating the Electoral Commission under Article VI entitled "Legislative Department" of our Constitution is very indicative. Its compositions is also significant in that it is constituted by a majority of members of the legislature. But it is a body separate from and independent of the legislature.

The grant of power to the Electoral Commission to judge all contests relating to the election, returns and qualifications of members of the National Assembly, is intended to be as complete and unimpaired as if it had remained originally in the legislature. The express lodging of that power in the Electoral Commission is an implied denial of the exercise of that power by the National Assembly. And this is as effective a restriction upon the legislative power as an express prohibition in the Constitution (Ex parte Lewis, 45 Tex. Crim. Rep., 1; State vs. Whisman, 36 S.D., 260; L.R.A., 1917B, 1). If we concede the power claimed in behalf of the National Assembly that said body may regulate the proceedings of the Electoral Commission and cut off the power of the commission to lay down the period within which protests should be filed, the grant of power to the commission would be ineffective. The Electoral Commission in such case would be invested with the power to determine contested cases involving the election, returns and qualifications of the members of the National Assembly but subject at all times to the regulative power of the National Assembly. Not only would the purpose of the framers of our Constitution of totally transferring this authority from the legislative body be frustrated, but a dual authority would be created with the resultant inevitable clash of powers from time to time. A sad spectacle would then be presented of the Electoral Commission retaining the bare authority of taking cognizance of cases referred to, but in reality without the necessary means to render that authority effective whenever and whenever the National Assembly has chosen to act, a situation worse than that intended to be remedied by the framers of our Constitution. The power to regulate on the part of the National Assembly in procedural matters will inevitably lead to the ultimate control by the Assembly of the entire proceedings of the Electoral Commission, and, by indirection, to the entire abrogation of the constitutional grant. It is obvious that this result should not be permitted.

We are not insensible to the impassioned argument or the learned counsel for the petitioner regarding the importance and necessity of respecting the dignity and independence of the national Assembly as a coordinate department of the government and of according validity to its acts, to avoid what he characterized would be practically an unlimited power of the commission in the admission of protests against members of the National Assembly. But as we have pointed out hereinabove, the creation of the Electoral Commission carried with it ex necesitate rei the power regulative in character to limit the time with which protests intrusted to its cognizance should be filed. It is a settled rule of construction that where a general power is conferred or duty enjoined, every particular power necessary for the exercise of the one or the performance of the other is also conferred (Cooley, Constitutional Limitations, eight ed., vol. I, pp. 138, 139). In the absence of any further constitutional provision relating to the procedure to be followed in filing protests before the Electoral Commission, therefore, the incidental power to promulgate such rules necessary for the proper exercise of its exclusive power to judge all contests relating to the election, returns and qualifications of members of the National Assembly, must be deemed by necessary implication to have been lodged also in the Electoral Commission.

It is, indeed, possible that, as suggested by counsel for the petitioner, the Electoral Commission may abuse its regulative authority by admitting protests beyond any reasonable time, to the disturbance of the tranquillity and peace of mind of the members of the National Assembly. But the possibility of abuse is not argument against the concession of the power as there is no power that is not susceptible of abuse. In the second place, if any mistake has been committed in the creation of an Electoral Commission and in investing it with exclusive jurisdiction in all cases relating to the election, returns, and qualifications of members of the National Assembly, the remedy is political, not judicial, and must be sought through the ordinary processes of democracy. All the possible abuses of the government are not intended to be corrected by the judiciary. We believe, however, that the people in creating the Electoral Commission reposed as much confidence in this body in the exclusive determination of the specified cases assigned to it, as they have given to the Supreme Court in the proper cases entrusted to it for decision. All the agencies of the government were designed by the Constitution to achieve specific purposes, and each constitutional organ working within its own particular sphere of discretionary action must be deemed to be animated with the same zeal and honesty in accomplishing the great ends for which they were created by the sovereign will. That the actuations of these constitutional agencies might leave much to be desired in given instances, is inherent in the perfection of human institutions. In the third place, from the fact that the Electoral Commission may not be interfered with in the exercise of its legitimate power, it does not follow that its acts, however illegal or unconstitutional, may not be challenge in appropriate cases over which the courts may exercise jurisdiction.

But independently of the legal and constitutional aspects of the present case, there are considerations of equitable character that should not be overlooked in the appreciation of the intrinsic merits of the controversy. The Commonwealth Government was inaugurated on November 15, 1935, on which date the Constitution, except as to the provisions mentioned in section 6 of Article XV thereof, went into effect. The new National Assembly convened on November 25th of that year, and the resolution confirming the election of the petitioner, Jose A. Angara was approved by that body on December 3, 1935. The protest by the herein respondent Pedro Ynsua against the election of the petitioner was filed on December 9 of the same year. The pleadings do not show when the Electoral Commission was formally organized but it does appear that on December 9, 1935, the Electoral Commission met for the first time and approved a resolution fixing said date as the last day for the filing of election protest. When, therefore, the National Assembly passed its resolution of December 3, 1935, confirming the election of the petitioner to the National Assembly, the Electoral Commission had not yet met; neither does it appear that said body had actually been organized. As a mater of fact, according to certified copies of official records on file in the archives division of the National Assembly attached to the record of this case upon the petition of the petitioner, the three justices of the Supreme Court the six members of the National Assembly constituting the Electoral Commission were respectively designated only on December 4 and 6, 1935. If Resolution No. 8 of the National Assembly confirming non-protested elections of members of the National Assembly had the effect of limiting or tolling the time for the presentation of protests, the

result would be that the National Assembly — on the hypothesis that it still retained the incidental power of regulation in such cases — had already barred the presentation of protests before the Electoral Commission had had time to organize itself and deliberate on the mode and method to be followed in a matter entrusted to its exclusive jurisdiction by the Constitution. This result was not and could not have been contemplated, and should be avoided.

From another angle, Resolution No. 8 of the National Assembly confirming the election of members against whom no protests had been filed at the time of its passage on December 3, 1935, can not be construed as a limitation upon the time for the initiation of election contests. While there might have been good reason for the legislative practice of confirmation of the election of members of the legislature at the time when the power to decide election contests was still lodged in the legislature, confirmation alone by the legislature cannot be construed as depriving the Electoral Commission of the authority incidental to its constitutional power to be "the sole judge of all contest relating to the election, returns, and qualifications of the members of the National Assembly", to fix the time for the filing of said election protests. Confirmation by the National Assembly of the returns of its members against whose election no protests have been filed is, to all legal purposes, unnecessary. As contended by the Electoral Commission in its resolution of January 23, 1936, overruling the motion of the herein petitioner to dismiss the protest filed by the respondent Pedro Ynsua, confirmation of the election of any member is not required by the Constitution before he can discharge his duties as such member. As a matter of fact, certification by the proper provincial board of canvassers is sufficient to entitle a member-elect to a seat in the national Assembly and to render him eligible to any office in said body (No. 1, par. 1, Rules of the National Assembly, adopted December 6, 1935).

Under the practice prevailing both in the English House of Commons and in the Congress of the United States, confirmation is neither necessary in order to entitle a member-elect to take his seat. The return of the proper election officers is sufficient, and the member-elect presenting such return begins to enjoy the privileges of a member from the time that he takes his oath of office (Laws of England, vol. 12, pp. 331. 332; vol. 21, pp. 694, 695; U. S. C. A., Title 2, secs. 21, 25, 26). Confirmation is in order only in cases of contested elections where the decision is adverse to the claims of the protestant. In England, the judges' decision or report in controverted elections is certified to the Speaker of the House of Commons, and the House, upon being informed of such certificate or report by the Speaker, is required to enter the same upon the Journals, and to give such directions for confirming or altering the return, or for the issue of a writ for a new election, or for carrying into execution the determination as circumstances may require (31 & 32 Vict., c. 125, sec. 13). In the United States, it is believed, the order or decision of the particular house itself is generally regarded as sufficient, without any actual alternation or amendment of the return (Cushing, Law and Practice of Legislative Assemblies, 9th ed., sec. 166).

Under the practice prevailing when the Jones Law was still in force, each house of the Philippine Legislature fixed the time when protests against the election of any of its members should be filed. This was expressly authorized by section 18 of the Jones Law making each house the sole judge of the election, return and qualifications of its members, as well as by a law (sec. 478, Act No. 3387) empowering each house to respectively prescribe by resolution the time and manner of filing contest in the election of member of said bodies. As a matter of formality, after the time fixed by its rules for the filing of protests had already expired, each house passed a resolution confirming or approving the returns of such members against whose election no protests had been filed within the prescribed time. This was interpreted as cutting off the filing of further protests against the election of those members not theretofore contested (Amistad vs. Claravall [Isabela], Second Philippine Legislature, Record — First Period, p. 89; Urguello vs. Rama [Third District, Cebu], Sixth Philippine Legislature; Fetalvero vs. Festin [Romblon], Sixth Philippine Legislature, Record — First Period, pp. 637-640; Kintanar vs. Aldanese [Fourth District, Cebu], Sixth Philippine Legislature, Record — First Period, pp. 1121, 1122; Aguilar vs. Corpus [Masbate], Eighth Philippine Legislature, Record — First Period, vol. III, No. 56, pp. 892, 893). The Constitution has repealed section 18 of the Jones Law. Act No. 3387, section 478, must be deemed to have been impliedly abrogated also, for the reason that with the power to determine all contest relating to the election, returns and qualifications of members of the National Assembly, is inseparably linked the authority to prescribe regulations for the exercise of that power. There was thus no law nor constitutional provisions which authorized the National Assembly to fix, as it is alleged to have fixed on December 3, 1935, the time for the filing of contests against the election of its members. And what the National Assembly could not do directly, it could not do by indirection through the medium of confirmation.

Summarizing, we conclude:

(a) That the government established by the Constitution follows fundamentally the theory of separation of power into the legislative, the executive and the judicial.

(b) That the system of checks and balances and the overlapping of functions and duties often makes difficult the delimitation of the powers granted.

(c) That in cases of conflict between the several departments and among the agencies thereof, the judiciary, with the Supreme Court as the final arbiter, is the only constitutional mechanism devised finally to resolve the conflict and allocate constitutional boundaries.

(d) That judicial supremacy is but the power of judicial review in actual and appropriate cases and controversies, and is the power and duty to see that no one branch or agency of the government transcends the Constitution, which is the source of all authority.

(e) That the Electoral Commission is an independent constitutional creation with specific powers and functions to execute and perform, closer for purposes of classification to the legislative than to any of the other two departments of the governments.

(f ) That the Electoral Commission is the sole judge of all contests relating to the election, returns and qualifications of members of the National Assembly.

(g) That under the organic law prevailing before the present Constitution went into effect, each house of the legislature was respectively the sole judge of the elections, returns, and qualifications of their elective members.

(h) That the present Constitution has transferred all the powers previously exercised by the legislature with respect to contests relating to the elections, returns and qualifications of its members, to the Electoral Commission.

(i) That such transfer of power from the legislature to the Electoral Commission was full, clear and complete, and carried with it ex necesitate rei the implied power inter alia to prescribe the rules and regulations as to the time and manner of filing protests.

( j) That the avowed purpose in creating the Electoral Commission was to have an independent constitutional organ pass upon all contests relating to the election, returns and qualifications of members of the National Assembly, devoid of partisan influence or consideration, which object would be frustrated if the National Assembly were to retain the power to prescribe rules and regulations regarding the manner of conducting said contests.

(k) That section 4 of article VI of the Constitution repealed not only section 18 of the Jones Law making each house of the Philippine Legislature respectively the sole judge of the elections, returns and qualifications of its elective members, but also section 478 of Act No. 3387 empowering each house to prescribe by resolution the time and manner of filing contests against the election of its members, the time and manner of notifying the adverse party, and bond or bonds, to be required, if any, and to fix the costs and expenses of contest.

(l) That confirmation by the National Assembly of the election is contested or not, is not essential before such member-elect may discharge the duties and enjoy the privileges of a member of the National Assembly.

(m) That confirmation by the National Assembly of the election of any member against whom no protest had been filed prior to said confirmation, does not and cannot deprive the Electoral Commission of its incidental power to prescribe the time within which protests against the election of any member of the National Assembly should be filed.

We hold, therefore, that the Electoral Commission was acting within the legitimate exercise of its constitutional prerogative in assuming to take cognizance of the protest filed by the respondent Pedro Ynsua against the election of the herein petitioner Jose A. Angara, and that the resolution of the National Assembly of December 3, 1935 can not in any manner toll the time for filing protests against the elections, returns and qualifications of members of the National Assembly, nor prevent the filing of a protest within such time as the rules of the Electoral Commission might prescribe.

In view of the conclusion reached by us relative to the character of the Electoral Commission as a constitutional creation and as to the scope and extent of its authority under the facts of the present controversy, we deem it unnecessary to determine whether the Electoral Commission is an inferior tribunal, corporation, board or person within the purview of sections 226 and 516 of the Code of Civil Procedure.

The petition for a writ of prohibition against the Electoral Commission is hereby denied, with costs against the petitioner. So ordered.

Avanceña, C. J., Diaz, Concepcion, and Horrilleno, JJ., concur.

Separate Opinions

ABAD SANTOS, J., concurring:

I concur in the result and in most of the views so ably expressed in the preceding opinion. I am, however, constrained to withhold my assent to certain conclusions therein advanced.

The power vested in the Electoral Commission by the Constitution of judging of all contests relating to the election, returns, and qualifications of the members of the National Assembly, is judicial in nature. (Thomas vs. Loney, 134 U.S., 372; 33 Law. ed., 949, 951.) On the other hand, the power to regulate the time in which notice of a contested election may be given, is legislative in character. (M'Elmoyle vs. Cohen, 13 Pet., 312; 10 Law. ed., 177; Missouri vs. Illinois, 200 U. S. 496; 50 Law. ed., 572.)

It has been correctly stated that the government established by the Constitution follows fundamentally the theory of the separation of powers into legislative, executive, and judicial. Legislative power is vested in the National Assembly. (Article VI, sec. 1.) In the absence of any clear constitutional provision to the contrary, the power to regulate the time in which notice of a contested election may be given, must be deemed to be included in the grant of legislative power to the National Assembly.

The Constitution of the United States contains a provision similar to the that found in Article VI, section 4, of the Constitution of the Philippines. Article I, section 5, of the Constitution of the United States provides that each house of the Congress shall be the judge of the elections, returns, and qualifications of its own members. Notwithstanding this provision, the Congress has assumed the power to regulate the time in which notice of a contested election may be given. Thus section 201, Title 2, of the United States Code Annotated prescribes:

Whenever any person intends to contest an election of any Member of the House of Representatives of the United States, he shall, within thirty days after the result of such election shall have been determined by the officer or board of canvassers authorized by law to determine the same, give notice, in writing, to the Member whose seat he designs to contest, of his intention to contest the same, and, in such notice, shall specify particularly the grounds upon which he relies in the contest. (R. S., par. 105.)

The Philippine Autonomy Act, otherwise known as the Jones Law, also contained a provision to the effect that the Senate and House of Representatives, respectively, shall be the sole judges of the elections, returns, and qualifications of their elective members. Notwithstanding this provision, the Philippine Legislature passed the Election Law, section 478 of which reads as follows:

The Senate and the House of Representatives shall by resolution respectively prescribe the time and manner of filing contest in the election of members of said bodies, the time and manner of notifying the adverse party, and bond or bonds, to be required, if any, and shall fix the costs and expenses of contest which may be paid from their respective funds.

The purpose sought to be attained by the creation of the Electoral Commission was not to erect a body that would be above the law, but to raise legislative elections contests from the category of political to that of justiciable questions. The purpose was not to place the commission beyond the reach of the law, but to insure the determination of such contests with the due process of law.

Section 478 of the Election Law was in force at the time of the adoption of the Constitution, Article XV, section 2, of which provides that —

All laws of the Philippine Islands shall continue in force until the inauguration of the Commonwealth of the Philippines; thereafter, such laws shall remain operative, unless inconsistent with this Constitution, until amended, altered, modified, or repealed by the National Assembly, and all references in such laws to the Government or officials of the Philippine Islands shall be construed, in so far as applicable, to refer to the Government and corresponding officials under this Constitution.

The manifest purpose of this constitutional provision was to insure the orderly processes of government, and to prevent any hiatus in its operations after the inauguration of the Commonwealth of the Philippines. It was thus provided that all laws of the Philippine Islands shall remain operative even after the inauguration of the Commonwealth of the Philippines, unless inconsistent with the Constitution, and that all references in such laws to the government or officials of the Philippine Islands shall be construed, in so far as applicable, to refer to the government and corresponding officials under the Constitution. It would seem to be consistent not only with the spirit but the letter of the Constitution to hold that section 478 of the Election Law remains operative and should now be construed to refer to the Electoral Commission, which, in so far as the power to judge election contests is concerned, corresponds to either the Senate or the House of Representative under the former regime. It is important to observe in this connection that said section 478 of the Election Law vested the power to regulate the time and manner in which notice of a contested election may be given, not in the Philippine Legislature but in the Senate and House of Representatives singly. In other words, the authority to prescribe the time and manner of filing contests in the elections of members of the Philippine Legislature was by statute lodged separately in the bodies clothed with power to decide such contests. Construing section 478 of the Election Law to refer to the National Assembly, as required by Article XV, section 2, of the Constitution, it seems reasonable to conclude that the authority to prescribe the time and manner of filing contests in the election of members of the National Assembly is vested in the Electoral Commission, which is now the body clothed with power to decide such contests.

In the light of what has been said, the resolution of the National Assembly of December 3, 1935, could not have the effect of barring the right of the respondent Pedro Ynsua to contest the election of the petitioner. By the same token, the Electoral Commission was authorized by law to adopt its resolution of December 9, 1935, which fixed the time with in which written contests must be filed with the commission.

Having been filed within the time fixed by its resolutions, the Electoral Commission has jurisdiction to hear and determine the contest filed by the respondent Pedro Ynsua against the petitioner Jose A. Angara.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

 

G.R. No. 133064 September 16, 1999

JOSE C. MIRANDA, ALFREDO S. DIRIGE, MANUEL H. AFIADO, MARIANO V. BABARAN and ANDRES R. CABUYADAO, petitioners, vs.HON. ALEXANDER AGUIRRE, In his capacity as Executive Secretary; HON. EPIMACO VELASCO, in his capacity as Secretary of Local Government, HON. SALVADOR ENRIQUEZ, in his capacity as Secretary of Budget, THE COMMISSION ON AUDIT, THE COMMISSION ON ELECTIONS, HON. BENJAMIN G. DY, in his capacity as Governor of Isabela, THE HONORABLE SANGGUNIANG PANLALAWIGAN OF ISABELA, ATTY. BALTAZAR PICIO, in his capacity as Provincial Administrator, and MR. ANTONIO CHUA, in his capacity as Provincial Treasurer, respondents, GIORGIDI B. AGGABAO, intervenor.

 

PUNO, J.:

This is a petition for a writ of prohibition with prayer for preliminary injunction assailing the constitutionality of Republic Act No. 8528 converting the city of Santiago, Isabela from an independent component city to a component city.

On May 5, 1994, Republic Act No. 7720 which converted the municipality of Santiago, Isabela into an independent component city was signed into law. On July 4, 1994, the people of Santiago ratified R.A. No. 7720 in a plebiscite. 1

On February 14, 1998, Republic Act No. 8528 was enacted. It amended R.A. No. 7720. Among others, it changed the status of Santiago from an independent component city to a component city, viz.:

AN ACT AMENDING CERTAIN SECTIONS OF REPUBLIC ACT NUMBERED 7720 — AN ACT CONVERTING THE MUNICIPALITY OF SANTIAGO INTO AN INDEPENDENT COMPONENT CITY TO BE KNOWN AS THE CITY OF SANTIAGO.

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

Sec. 1. Section 2 of Republic Act No. 7720 is hereby amended by deleting the words "an independent" thereon so that said Section will read as follows:

Sec. 2. The City of Santiago. — The Municipality of Santiago shall be converted into a component city to be known as the City of Santiago, hereinafter referred to as the City, which shall comprise of the present territory of the Municipality of Santiago, Isabela. The territorial jurisdiction of the City shall be within the present metes and bounds of the Municipality of Santiago.

Sec. 2. Section 51 of Republic Act No. 7720 is hereby amended deleting the entire section and in its stead substitute the following:

Sec. 51. Election of Provincial Governor, Vice-Governor, Sangguniang Panlalawigan Members, and any Elective Provincial Position for the Province of Isabela. — The voters of the City of Santiago shall be qualified to vote in the elections of the Provincial Governor, Vice-Governor, Sangguniang Panlalawigan members and other elective provincial positions of the Province of Isabela, and any such qualified voter can be a candidate for such provincial positions and any elective provincial office.

Sec. 3. Repealing Clause. — All existing laws or parts thereof inconsistent with the provisions of this Act are hereby repealed or modified accordingly.

Sec. 4. Effectivity. — This Act shall take effect upon its approval.

Approved.

Petitioners assail the constitutionality of R.A. No. 8528. 2 They alleged as ground the lack of provision in R.A. No. 8528 submitting the law for ratification by the people of Santiago City in a proper plebiscite. Petitioner Miranda was the mayor of Santiago at the time of the filing of the petition at bar. Petitioner Afiado is the President of the Liga ng mga Barangay ng Santiago City. Petitioners Dirige, Cabuyadao and Babaran are residents of Santiago City.

In their Comment, respondent provincial officials of Isabela defended the constitutionality of R.A. No. 8528. They assailed the standing of petitioners to file the petition at bar. They also contend that the petition raises a political question over which this Court lacks jurisdiction.

Another Comment was filed by the Solicitor General for the respondent public officials. The Solicitor General also contends that petitioners are not real parties in interest. More importantly, it is contended that R.A. No. 8528 merely reclassified Santiago City from an independent component city to a component city. It allegedly did not involve any "creation, division, merger, abolition, or substantial alteration of boundaries of local government units," hence, a plebiscite of the people of Santiago is unnecessary.

A third Comment similar in tone was submitted by intervenor Giorgidi B. Aggabao, 3 a member of the provincial board of Isabela. 4 He contended that both the Constitution and the Local Government Code of 1991 do not require a plebiscite "to approve a law that merely allowed qualified voters of a city to vote in provincial elections. The rules implementing the Local Government Code cannot require a plebiscite. He also urged that petitioners lacked locus standi.

Petitioners filed a Reply to meet the arguments of the respondents and the intervenor. They defended their standing. They also stressed the changes that would visit the city of Santiago as a result of its reclassification.

We find merit in the petition.

First. The challenge to the locus standi of petitioners cannot succeed. It is now an ancient rule that the constitutionality of law can be challenged by one who will sustain a direct injury as a result of its enforcement. 5 Petitioner Miranda was the mayor of Santiago City when he filed the present petition in his own right as mayor and not on behalf of the city, hence, he did not need the consent of the city council of Santiago. It is also indubitable that the change of status of the city of Santiago from independent component city to a mere component city will affect his powers as mayor, as will be shown hereafter. The injury that he would sustain from the enforcement of R.A. No. 8528 is direct and immediate and not a mere generalized grievance shared with the people of Santiago City. Similarly, the standing of the other petitioners rests on a firm foundation. They are residents and voters in the city of Santiago. They have the right to be heard in the conversion of their city thru a plebiscite to be conducted by the COMELEC. The denial of this right in R.A. No. 8528 gives them proper standing to strike the law as unconstitutional.1âwphi1.nêt

Second. The plea that this court back off from assuming jurisdiction over the petition at bar on the ground that it involves a political question has to be brushed aside. This plea has long lost its appeal especially in light of Section 1 of Article VIII of the 1987 Constitution which defines judicial power as including "the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." To be sure, the cut between a political and justiciable issue has been made by this Court in many cases and need no longer mystify us. In Tañada v. Cuenco, 6 we held:

xxx xxx xxx

The term "political question" connotes what it means in ordinary parlance, namely, a question of policy. 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 the government." It is concerned with issues dependent upon the wisdom, not legality, of a particular measure.

In Casibang v. Aquino, 7 we defined a justiciable issue as follows:

A purely justiciable issue implies a given right, legally demandable and enforceable, an act or omission violative of such right, and a remedy granted and sanctioned by law, for said breach of right.

Clearly, the petition at bar presents a justiciable issue. Petitioners claim that under Section 10, Article X of the 1987 Constitution they have a right to approve or disapprove R.A. No. 8528 in a plebiscite before it can be enforced. It ought to be self-evident that whether or not petitioners have the said right is a legal not a political question. For whether or not laws passed by Congress comply with the requirements of the Constitution pose questions that this Court alone can decide. The proposition that this Court is the ultimate arbiter of the meaning and nuances of the Constitution need not be the subject of a prolix explanation.

Third. The threshold issue is whether R.A. No. 8528 is unconstitutional for its failure to provide that the conversion of the city of Santiago from an independent component city to a component city should be submitted to its people in a proper plebiscite. We hold that the Constitution requires a plebiscite. Section 10, Article X of the 1987 Constitution provides:

No province, city, municipality, or barangay may be created, or divided, merged, abolished, or its boundary substantially altered except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.

This constitutional requirement is reiterrated in Section 10, Chapter 2 of the Local Government Code (R.A. No. 7160), thus:

Sec. 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.

The power to create, divide, merge, abolish or substantially alter boundaries of local government units belongs to Congress. 8 This power is part of the larger power to enact laws which the Constitution vested in Congress. 9 The exercise of the power must be in accord with the mandate of the Constitution. In the case at bar, the issue is whether the downgrading of Santiago City from an independent component city to a mere component city requires the approval of the people of Santiago City in a plebiscite. The resolution of the issue depends on whether or not the downgrading falls within the meaning of creation, division, merger, abolition or substantial alteration of boundaries of municipalities per Section 10, Article X of the Constitution. A close analysis of the said constitutional provision will reveal that the creation, division, merger, abolition or substantial alteration of boundaries of local government units involve a common denominator — material change in the political and economic rights of the local government units directly affected as well as the people therein. It is precisely for this reason that the Constitution requires the approval of the people "in the political units directly affected." It is not difficult to appreciate the rationale of this constitutional requirement. The 1987 Constitution, more than any of our previous Constitutions, gave more reality to the sovereignty of our people for it was borne out of the people power in the 1986 EDSA revolution. Its Section 10, Article X addressed the undesirable practice in the past whereby local government units were created, abolished, merged or divided on the basis of the vagaries of politics and not of the welfare of the people. Thus, the consent of the people of the local government unit directly affected was required to serve as a checking mechanism to any exercise of legislative power creating, dividing, abolishing, merging or altering the boundaries of local government units. It is one instance where the people in their sovereign capacity decide on a matter that affects them — direct democracy of the people as opposed to democracy thru people's representatives. This plebiscite requirement is also in accord with the philosophy of the Constitution granting more autonomy to local government units.

The changes that will result from the downgrading of the city of Santiago from an independent component city to a component city are many and cannot be characterized as insubstantial. For one, the independence of the city as a political unit will be diminished. The city mayor will be placed under the administrative supervision of the provincial governor. The resolutions and ordinances of the city council of Santiago will have to be reviewed by the Provincial Board of Isabela. Taxes that will be collected by the city will now have to be shared with the province. Petitioners pointed out these far reaching changes on the life of the people of the city of Santiago, viz.: 10

Although RESPONDENTS would like to make it appear that R.A. No. 8528 had "merely re-classified" Santiago City from an independent component city into a component city, the effect when challenged (sic) the Act were operational would be, actually, that of conversion. Consequently, there would be substantial changes in the political culture and administrative responsibilities of Santiago City, and the Province of Isabela. Santiago City from an independent component city will revert to the Province of Isabela, geographically, politically, and administratively. Thus, the territorial land area of Santiago City will be added to the land area comprising the province of Isabela. This will be to the benefit or advantage of the Provincial Government of Isabela on account of the subsequent increase of its share from the internal revenue allotment (IRA) from the National Government (Section 285, R.A. No. 7160 or the Local Government Code of 1991). The IRA is based on land area and population of local government units, provinces included.

The nature or kinds, and magnitude of the taxes collected by the City Government, and which taxes shall accrue solely to the City Government, will be redefined (Section 151, R.A. No. 7160), and may be shared with the province such as taxes on sand, gravel and other quarry resources (Section 138, R.A. No. 7160), professional taxes (Section 139, R.A. No. 7160), or amusement taxes (Section 140, R.A. No. 7160). The Provincial Government will allocate operating funds for the City. Inarguably, there would be a (sic) diminished funds for the local operations of the City Government because of reduced shares of the IRA in accordance with the schedule set forth by Section 285 of R.A. No. 7160. The City Government's share in the proceeds in the development and utilization of national wealth shall be diluted since certain portions shall accrue to the Provincial Government (Section 292, R.A. No. 7160).

The registered voters of Santiago City will vote for and can be voted as provincial officials (Section 451 and 452 [c], R.A. No. 7160).

The City Mayor will now be under the administrative supervision of the Provincial Governor who is tasked by law to ensure that every component city and municipality within the territorial jurisdiction of the province acts within the scope of its prescribed powers and functions (Section 29 and 465 (b) (2) (i), R.A. No. 7160), and to review (Section 30, R.A. No. 7160) all executive orders submitted by the former (Section 455 (b) (1) (xii), R.A. No. 7160) and (R)eportorial requirements with respect to the local governance and state of affairs of the city (Section 455 (b) (1) (xx), R.A. No. 7160). Elective city officials will also be effectively under the control of the Provincial Governor (Section 63, R.A. No. 7160). Such will be the great change in the state of the political autonomy of what is now Santiago City where by virtue of R.A. No. 7720, it is the Office of the President which has supervisory authority over it as an independent component city (Section 25, R.A. No. 7160; Section 4 (ARTICLE X), 1987 Constitution).

The resolutions and ordinances adopted and approved by the Sangguniang Panlungsod will be subject to the review of the Sangguniang Panlalawigan (Sections 56, 468, (a) (1) (i), 468 (a) (2) (vii), and 469 (c) (4), R.A. No. 7160). Likewise, the decisions in administrative cases by the former could be appealed and acted upon by the latter (Section 67 R.A. No. 7160).

It is markworthy that when R.A. No. 7720 upgraded the status of Santiago City from a municipality to an independent component city, it required the approval of its people thru a plebiscite called for the purpose. There is neither rhyme nor reason why this plebiscite should not be called to determine the will of the people of Santiago City when R.A. No. 8528 downgrades the status of their city. Indeed, there is more reason to consult the people when a law substantially diminishes their right. Rule II, Article 6, paragraph (f) (1) of the Implementing Rules and Regulations of the Local Government Code is in accord with the Constitution when it provides that:

(f) Plebiscite — (1) no creation, conversion, division, merger, abolition, or substantial alteration of boundaries of LGUS shall take effect unless approved by a majority of the votes cast in a plebiscite called for the purpose in the LGU or LGUs affected. The plebiscite shall be conducted by the Commission on Elections (COMELEC) within one hundred twenty (120) days from the effectivity of the law or ordinance prescribing such action, unless said law or ordinance fixes another date.

xxx xxx xxx

The rules cover all conversions, whether upward or downward in character, so long as they result in a material change in the local government unit directly affected, especially a change in the political and economic rights of its people.

A word on the dissenting opinions of our esteemed brethren. Mr. Justice Buena justifies R.A. No. 8528 on the ground that Congress has the power to amend the charter of Santiago City. This power of amendment, however, is limited by Section 10, Article X of the Constitution. Quite clearly, when an amendment of a law involves the creation, merger, division, abolition or substantial alteration of boundaries of local government units, a plebiscite in the political units directly affected is mandatory. He also contends that the amendment merely caused a transition in the status of Santiago as a city. Allegedly, it is a transition because no new city was created nor was a former city dissolved by R.A. No. 8528. As discussed above, the spirit of Section 10, Article X of the Constitution calls for the people of the local government unit directly affected to vote in a plebiscite whenever there is a material change in their rights and responsibilities. They may call the downgrading of Santiago to a component city as a mere transition but they cannot blink away from the fact that the transition will radically change its physical and political configuration as well as the rights and responsibilities of its people.

On the other hand, our esteemed colleague, Mr. Justice Mendoza, posits the theory that "only if the classification involves changes in income, population, and land area of the local government unit is there a need for such changes to be approved by the people . . . ."

With due respect, such an interpretation runs against the letter and spirit of Section 10, Article X of the 1987 Constitution which, to repeat, states: "No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered except in accordance with the criteria established in the Local Government Code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected." It is clear that the Constitution imposes two conditions — first, the creation, division, merger, abolition or substantial alteration of boundary of a local government unit must meet the criteria fixed by the Local Government Code on income, population and land area and second, the law must be approved by the people "by a majority of the votes cast in a plebiscite in the political units directly affected."

In accord with the Constitution, sections 7, 8, and 9 of the Local Government Code fixed the said criteria and they involve requirements on income, population and land area. These requirements, however, are imposed to help assure the economic viability of the local government unit concerned. They were not imposed to determine the necessity for a plebiscite of the people. Indeed, the Local Government Code does not state that there will be no more plebiscite after its requirements on income, population and land area have been satisfied. On the contrary, section 10, Chapter 2 of the Code provides: "No creation, division, merger, abolition, or substantial alteration of boundaries of local government units shall take effect unless approved by a majority of the votes casts in a plebiscite called for the purpose in the political unit or units directly affected. Said plebiscite shall be conducted by the COMELEC within one hundred twenty (120) days from the date of the effectivity of the law or ordinance effecting such action, unless said law or ordinance fixes anotherdate. 11 Senator Aquilino Pimentel, the principal author of the Local Government Code of 1991, opines that the plebiscite is absolute and mandatory. 12

It cannot be overstressed that the said two requirements of the Constitution have different purposes. The criteria fixed by the Local Government Code on income, population and land area are designed to achieve an economic purpose. They are to be based on verified indicators, hence, section 7, Chapter 2 of the Local Government Code requires that these "indicators shall be attested by the Department of Finance, the National Statistics Office, and the Lands Management Bureau of the Department of Environment and Natural Resources." In contrast, the people's plebiscite is required to achieve a political purpose — to use the people's voice as a check against the pernicious political practice of gerrymandering. There is no better check against this excess committed by the political representatives of the people themselves than the exercise of direct people power. As well-observed by one commentator, as the creation, division, merger, abolition, or substantial alteration of boundaries are ". . . basic to local government, it is also imperative that these acts be done not only by Congress but also be approved by the inhabitants of the locality concerned. . . . By giving the inhabitants a hand in their approval, the provision will also eliminate the old practice of gerrymandering and minimize legislative action designed for the benefit of a few politicians. Hence, it promotes the autonomy of local government units." 13

The records show that the downgrading of Santiago City was opposed by certain segments of its people. In the debates in Congress, it was noted that at the time R.A. No. 8528 was proposed, Santiago City has been converted to an independent component city barely two and a half (2 1/2) years ago and the conversion was approved by a majority of 14,000 votes. Some legislators expressed surprise for the sudden move to downgrade the status of Santiago City as there had been no significant change in its socio-economic-political status. The only reason given for the downgrading is to enable the people of the city to aspire for the leadership of the province. To say the least, the alleged reason is unconvincing for it is the essence of an independent component city that its people can no longer participate or be voted for in the election of officials of the province. The people of Santiago City were aware that they gave up that privilege when they voted to be independent from the province of Isabela. There was an attempt on the part of the Committee on Local Government to submit the downgrading of Santiago City to its people via a plebiscite. The amendment to this effect was about to be voted upon when a recess was called. After the recess, the chairman of the Committee announced the withdrawal of the amendment "after a very enlightening conversion with the elders of the Body." We quote the debates, viz.: 14

BILL ON SECOND READING

H.B. No. 8729 — City of Santiago

Senator Tatad. Mr. President, I move that we consider House Bill No. 8729 as reported out under Committee Report No. 971.

The President. Is there any objection? [Silence] there being none, the motion is approved.

Consideration of House Bill No. 8729 is now in order. With the permission of the Body, the Secretary will read only the title of the bill without prejudice to inserting in the Record the whole text thereof.

The Acting Secretary [Atty. Raval]. House Bill No. 8729, entitled:

AN ACT AMENDING CERTAIN SECTIONS OF R.A. NO. 7720 ENTITLED "AN ACT CONVERTING THE MUNICIPALITY OF SANTIAGO INTO AN INDEPENDENT COMPONENT CITY TO BE KNOWN AS THE CITY OF SANTIAGO

The following is the full text of H.B. No. 8729

Insert

Senator Tatad. Mr. President, for the sponsorship, I ask that the distinguished Chairman of the Committee on Local Government be recognized.

The President. Senator Sotto is recognized.

SPONSORSHIP SPEECH OF SENATOR SOTTO

Mr. President. House Bill No. 8729, which was introduced in the House by Congressman Antonio M. Abaya as its principal author, is a simple measure which merely seeks to convert the City of Santiago into a component city of the Province of Isabela.

The City of Santiago is geographically located within, and is physically an integral part of the Province of Isabela. As an independent component city, however, it is completely detached and separate from the said province as a local political unit. To use the language of the Explanatory Note of the proposed bill, the City of Santiago is an "island in the provincial milieu.

The residents of the city no longer participate in the elections, nor are they qualified to run for any elective positions in the Province of Isabela.

The Province of Isabela, on the other hand, is no longer vested with the power and authority of general supervision over the city and its officials, which power and authority are now exercised by the Office of the President, which is very far away from Santiago City.

Being geographically located within the Province of Isabela, the City of Santiago is affected, one way or the other, by the happenings in the said province, and is benefited by its progress and development. Hence, the proposed bill to convert the City of Santiago into a component city of Isabela.

Mr. President, it is my pleasure, therefore, to present for consideration of this august Body Committee Report No. 971 of the Committee on Local Government, recommending approval, with our proposed committee amendment, of House Bill No. 8729.

Thank you, Mr. President.

The President. The Majority Leader is recognized.

Senator Tatad. Mr. President, I moved (sic) that we close the period of interpellations.

The President. Is there any objection? [Silence] There being none, the period of interpellations is closed.

Senator Tatad. I move that we now consider the committee amendments.

Senator Roco. Mr. President.

The President. What is the pleasure of Senator Roco?

Senator Roco. Mr. President, may I ask for a reconsideration of the ruling on the motion to close the period of interpellations just to be able to ask a few questions?

Senator Tatad. May I move for a reconsideration of my motion, Mr. President.

The President. Is there any objection to the reconsideration of the closing of the period of interpellations? [Silence] There being none, the motion is approved.

Senator Roco is recognized.

Senator Roco. Will the distinguished gentlemen yield for some questions?

Senator Sotto. Willingly, Mr. President.

Senator Roco. Mr. President, together with the Chairman of the Committee on Local Government, we were with the sponsors when we approved this bill to make Santiago a City. That was about two and a half years ago. At that time, I remember it was the cry of the city that it be "independent." Now we are deleting that word "independent."

Mr. President, only because I was a co-author and a co-sponsor, for the Record, I want some explanation on what happened between then and now that has made us decided that the City of Santiago should cease to be independent and should now become a component city.

Senator Sotto. Mr. President, the officials of the province said during the public hearing that they are no longer vested with the power and authority of general supervision over the city. The power and authority is now being exercised by the Office of the President and it is quite far from the City of Santiago.

In the public hearing, we also gathered that there is a clamor from some sectors that they want to participate in the provincial elections.

Senator Roco. Mr. President, I did not mean to delay this. I did want it on record, however. I think there was a majority of 14,000 who approved the charter, and maybe we owe it to those who voted for that charter some degree of respect. But if there has been a change of political will, there has been a change of political will, then so be it.

Thank you, Mr. President.

Senator Sotto. Mr. President, to be very frank about it, that was a very important point raised by Senator Roco, and I will have to place it on the Record of the Senate that the reason why we are proposing a committee amendment is that, originally, there was an objection on the part of the local officials and those who oppose it by incorporating a plebiscite in this bill. That was the solution. Because there were some sectors in the City of Santiago who were opposing the reclassification or reconversion of the city into a component city.

Senator Roco. All I wanted to say, Mr. President — because the two of us had special pictures (sic) in the city — is that I thought it should be put on record that we have supported originally the proposal to make it an independent city. But now if it is their request, then, on the manifestation of the Chairman, let it be so.

Thank you.

Senator Drilon. Mr. President.

Senator Drilon. Will the gentleman yield for a few questions, Mr. President.

Senator Sotto. Yes, Mr. President.

Senator Drilon. Mr. President, further to the interpellation of our good friend, the Senator from Bicol, on the matter of the opinion of the citizens of Santiago City, there is a resolution passed by the Sanggunian on January 30, 1997 opposing the conversion of Santiago from an independent city.

This opposition was placed on records during the committee hearings. And that is the reason why, as mentioned by the good sponsor, one of the amendments is that a plebiscite be conducted before the law takes effect.

The question I would like to raise — and I would like to recall the statement of our Minority Leader — is that, at this time we should not be passing it for a particular politician.

In this particular case, it is obvious that this bill is being passed in order that the additional territory be added to the election of the provincial officials of the province of Isabela.

Now, is this for the benefit of any particular politician, Mr. President.

Senator Sotto. If it is, I am not aware of it, Mr. President.

Senator Alvarez. Mr. President.

The President. With the permission of the two gentlemen on the Floor, Senator Alvarez is recognized.

Senator Alvarez. As a born inbred citizen of this city, Mr. President, may I share some information.

Mr. President, if we open up the election of the city to the provincial leadership, it will not be to the benefit of the provincial leadership, because the provincial leadership will then campaign in a bigger territory.

As a matter of fact, the ones who will benefit from this are the citizens of Santiago who will now be enfranchised in the provincial electoral process, and whose children will have the opportunity to grow into provincial leadership. This is one of the prime reasons why this amendment is being put forward.

While it is true that there may have been a resolution by the city council, those who signed the resolution were not the whole of the council. This bill was sponsored by the congressman of that district who represents a constituency, the voice of the district.

I think, Mr. President, in considering which interest is paramount, whose voice must be heard, and if we have to fathom the interest of the people, the law which has been crafted here in accordance with the rules should be given account, as we do give account to many of the legislations coming from the House on local issues.

Senator Drilon. Mr. President, the reason why I am raising this question is that, as Senator Roco said, just two and-a-half years ago we passed a bill which indeed disenfranchized — if we want to use that phrase — the citizens of the City of Santiago in the matter of the provincial election. Two-and-a-half years after, we are changing the rule.

In the original charter, the citizens of the City of Santiago participated in a plebiscite in order to approve the conversion of the city into an independent city. I believe that the only way to resolve this issue raised by Senator Roco is again to subject this issue to another plebiscite as part of the provision of this proposed bill and as will be proposed by the Committee Chairman as an amendment.

Thank you very much, Mr. President.

Senator Alvarez. Mr. President, the Constitution does not require that the change from an independent to a component city be subjected to a plebiscite.

Secs. 10, 11, 12 of Article X of the 1987 Constitution provides as follows:

Sec. 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.

This change from an independent city into a component city is none of those enumerated. So the proposal coming from the House is in adherence to this constitutional mandate which does not require a plebiscite.

Senator Sotto. Mr. President, the key word here is "conversion". The word "conversion" appears in that provision wherein we must call a plebiscite. During the public hearing, the representative of Congressman Abaya was insisting that this is not a conversion; this is merely a reclassification. But it is clear in the bill.

We are amending a bill that converts, and we are converting it into a component city. That is how the members of the committee felt. That is why we have proposed an amendment to this, and this is to incorporate a plebiscite in as much as there is no provision on incorporating a plebiscite. Because we would like not only to give the other people of Santiago a chance or be enfranchised as far as the leadership of the province is concerned, but also we will give a chance to those who are opposing it. To them, this is the best compromise. Let the people decide, instead of the political leaders of Isabela deciding for them.

Senator Tatad. Mr. President.

The President. The Majority Leader is recognized.

Senator Tatad. At this point, Mr. President, I think we can move to close the period of interpellations.

The President. Is there any objection? [Silence] There being none, the motion is approved.

Senator Tatad. I move that we now consider the committee amendments, Mr. President.

The President. Is there any objection? [Silence] There being none the motion is approved.

Senator Sotto. On page 2, after line 13, insert a new Section 3, as follows:

Sec 3. SECTION 49 OF REPUBLIC ACT NO. 7720 IS HEREBY AMENDED BY DELETING THE ENTIRE SECTION AND IN ITS STEAD SUBSTITUTE THE FOLLOWING:

Sec. 49. PLEBISCITE. — THE CONVERSION OF THE CITY OF SANTIAGO INTO A COMPONENT CITY OF THE PROVINCE OF ISABELA SHALL TAKE EFFECT UPON THE RETIFICATION OF THIS ACT BY A MAJORITY OF THE PEOPLE OF SAID CITY IN A PLEBISCITE WHICH SHALL BE HELD FOR THE PURPOSE WITHIN SIXTY (60) DAYS FROM THE APPROVAL OF THIS ACT. THE COMMISSION ON ELECTIONS SHALL CONDUCT AND SUPERVISE SUCH PLEBISCITE.

The President. Is there any objection?

Senator Enrile. Mr. President.

The President. Senator Enrile is recognized.

Senator Enrile. I object to this committee amendment, Mr. President.

SUSPENSION OF SESSION

Senator Tatad. May I ask for a one-minute suspension of the session.

The President. The session is suspended for a few minutes if there is no objection. [There was none].

It was 7:54 p.m.

RESUMPTION OF SESSION

At 7:57 p.m., the session was resumed.

The President. The session is resumed.

Senator Sotto is recognized.

Senator Sotto. Mr. President, after a very enlightening conversation with the elders of the Body, I withdraw my amendment.

The President. The amendment is withdrawn.

Senator Maceda. Mr. President.

The President. Senator Maceda is recognized.

Senator Maceda. We wish to thank the sponsor for the withdrawal of the amendment.

Mr. President, with due respect to the Senator from Isabela — I am no great fan of the Senator from Isabela — but it so happens that this is a local bill affecting not only his province but his own city where he is a resident and registered voter.

So, unless the issue is really a matter of life and death and of national importance, senatorial courtesy demands that we, as much as possible, accommodate the request of the Senator from Isabela as we have done on matters affecting the district of other senators. I need not remind them.

Thank you anyway, Mr. President.

Senator Alvarez. Mr. President.

The President. Senator Alvarez is recognized.

Senator Alvarez. Mr. President, may I express my deepest appreciation for the statement of the gentleman from Ilocos and Laguna. Whatever he may have said, the feeling is not mutual. At least for now, I have suddenly become his great fan for the evening.

May I put on record, Mr. President, that I campaigned against the cityhood of Santiago not because I do not want it to be a city but because it had disenfranchised the young men of my city from aspiring for the leadership of the province. The town is the gem of the province. How could we extricate the town from the province?

But I would like to thank the gentleman, Mr. President, and also the Chairman of the Committee.

Senator Tatad. Mr. President.

The President. The Majority Leader is recognized.

Senator Tatad. There being no committee amendments, I move that the period of committee amendments be closed.

The President. Shall we amend the title of this bill by removing the word "independent" preceding "component city"?

Senator Sotto. No, Mr. President. We are merely citing the title. The main title of this House Bill No. 8729 is "An Act Amending Certain Sections of Republic Act 7720". The title is the title of Republic Act 7720. So, I do not think that we should amend that anymore.

The President. What is the pending motion? Will the gentleman kindly state the motion?

Senator Tatad. I move that we close the period of committee amendments.

The President. Is there any objection? [Silence] There being none, the motion is approved.

Senator Tatad. Unless there are any individual amendments, I move that we close the period of individual amendments.

The President. Is there any objection? [Silence] There being none, the period of individual amendments is closed.

APPROVAL OF H.B. NO. 8729 ON SECOND READING

Senator Tatad. Mr. President, I move that we vote on Second Reading on House Bill No. 8729.

The President. Is there any objection? [Silence] There being none, we shall now vote on Second Reading on House Bill No. 8729.

As many as are in favor of the bill, say aye.

Several Members. Aye.

As many as are against the bill, say nay. [Silences]

House Bill No. 8279 is approved on Second Reading.

The debates cannot but raise some quizzical eyebrows on the real purpose for the downgrading of the city of Santiago. There is all the reason to listen to the voice of the people of the city via a plebiscite.

In the case of Tan, et al. v. COMELEC, 15 BP 885 was enacted partitioning the province of Negros Occidental without consulting its people in a plebiscite. In his concurring opinion striking down the law as unconstitutional, Chief Justice Teehankee cited the illicit political purpose behind its enactment, viz:

The scenario, as petitioners urgently asserted, was "to have the creation of the new Province a fait accompli by the time elections are held on February 7, 1986. The transparent purpose is unmistakably so that the new Governor and other officials shall by then have been installed in office, ready to function for purposes of the election for President and Vice-President." Thus, the petitioners reported after the event: "With indecent haste, the plebiscite was held; Negros del Norte was set up and proclaimed by President Marcos as in existence; a new set of government officials headed by Governor Armando Gustilo was appointed; and, by the time the elections were held on February 7, 1986, the political machinery was in place to deliver the "solid North" to ex-President Marcos. The rest is history. What happened in Negros del Norte during the elections — the unashamed use of naked power and resources — contributed in no small way to arousing "people's power" and steel the ordinary citizen to perform deeds of courage and patriotism that makes one proud to be a Filipino today.

The challenged Act is manifestly void and unconstitutional. Consequently, all the implementing acts complained of, viz., the plebiscite, the proclamation of a new province of Negros del Norte and the appointment of its officials are equally void. The limited holding of the plebiscite only in the areas of the proposed new province (as provided by Section 4 of the Act) to the exclusion of the voters of the remaining areas of the integral province of Negros Occidental (namely, the three cities of Bacolod, Bago and La Carlota and the Municipalities of Las Castellana, Isabela, Moises Padilla, Pontevedra, Hinigaran, Himamaylan, Kabankalan, Murcia, Valladoid, San Enrique, Ilog, Cauayan, Hinoba-an and Sipalay and Candoni), grossly contravenes and disregards the mandate of Article XI, section 3 of the then prevailing 1973 Constitution that no province may be created or divided or its boundary substantially altered without "the approval of a majority of the votes in a plebiscite in the unit or units affected." It is plain that all the cities and municipalities of the province of Negros Occidental, not merely those of the proposed new province, comprise the units affected. It follows that the voters of the whole and entire province of Negros Occidental have to participate and give their approval in the plebiscite, because the whole is affected by its proposed division and substantial alteration of its boundary. To limit the plebiscite to only the voters of the areas to be partitioned and seceded from the province is as absurd and illogical as allowing only the secessionists to vote for the secession that they demanded against the wishes of the majority and to nullify the basic principle of majority rule.

Mr. Justice Mendoza and Mr. Justice Buena also cite two instances when allegedly independent component cities were downgraded into component cities without need of a plebiscite. They cite the City of Oroquieta, Misamis Occidental, 16 and the City of San Carlos, Pangasinan 17 whose charters were amended to allow their people to vote and be voted upon in the election of officials of the province to which their city belongs without submitting the amendment to a plebiscite. With due respect, the cities of Oroquieta and San Carlos are not similarly situated as the city of Santiago. The said two cities then were not independent component cities unlike the city of Santiago. The two cities were chartered but were not independent component cities for both were not highly urbanized cities which alone were considered independent cities at that time. Thus, when the case of San Carlos City was under consideration by the Senate, Senator Pimentel explained: 18

. . . Senator Pimentel. The bill under consideration, Mr. President, merely empowers the voters of San Carlos to vote in the elections of provincial officials. There is no intention whatsoever to downgrade the status of the City of San Carlos and there is no showing whatsoever that the enactment of this bill will, in any way, diminish the powers and prerogatives already enjoyed by the City of San Carlos. In fact, the City of San Carlos as of now, is a component city. It is not a highly urbanized city. Therefore, this bill merely, as we said earlier, grants the voters of the city, the power to vote in provincial elections, without in any way changing the character of its being a component city. It is for this reason that I vote in favor of this bill.

It was Senator Pimentel who also sponsored the bill 19 allowing qualified voters of the city of Oroquieta to vote in provincial elections of the province of Misamis Occidental. In his sponsorship speech, he explained that the right to vote being given to the people of Oroquieta City was consistent with its status as a component city. 20 Indeed, during the debates, former Senator Neptali Gonzales pointed out the need to remedy the anomalous situation then obtaining ". . . where voters of one component city cannot vote simply because their charters so provide." 21 Thus, Congress amended other charters of component cities prohibiting their people from voting in provincial elections.

IN VIEW WHEREOF, the petition is granted. Republic Act No. 8528 is declared unconstitutional and the writ of prohibition is hereby issued commanding the respondents to desist from implementing said law.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Kapunan, Panganiban, Pardo, Gonzaga-Reyes and Ynares-Santiago, JJ., concur.

Vitug, J., pls. see separate opinion.

Mendoza, J., please see dissent.

Quisumbing and Purisima, JJ., we join Justice Mendoza in his dissent.

Buena, J., please see dissent.

Separate Opinions

VITUG, J., separate opinion;

I share the opinion of the majority of my colleagues that, for the reasons expressed in the ponencia, a plebiscite is essential in order to render effective the conversion of the City of Santiago, Isabela, from an independent to a component city. I would not go to the extent, however, of declaring Republic Act No. 7720 unconstitutional; instead, with due respect, I take the view that a plebiscite can be held conformably with the provisions of the Local Government Code. I do not see, in this instance, a serious incompatibility in having Republic Act No. 7720 stand along with the Local Government Code.

MENDOZA, J., dissenting opinion;

The issue in this case is whether the conversion of the City of Santiago in Isabela province from an independent component city to a component city constitutes the creation, division, merger, abolition, or substantial alteration of the boundary of a city within the contemplation of Art. X, §10 of the Constitution so as to require the approval of the people in a plebiscite. The Court, in declaring R.A. No. 8528 unconstitutional for lack of provision for a plebiscite, does not say that the reclassification of Santiago City as an ordinary component city constitutes creation, division, merger, abolition, or substantial alteration of boundary. Nonetheless, the Court today holds that because the reclassification of the city would result in a "material change in the political and economic rights of the local government units directly affected as well as the people therein," the approval of the law in a plebiscite is required.1âwphi1.nêt

With all due respect I submit that not every change — however "material" and far-reaching — in the classification of a local government unit requires popular approval. Only if the reclassification involves changes in income, population, and land area of the local government unit is there a need for such changes to be approved by the people, for then there would be a creation, division, merger, abolition, or substantial alteration of the boundary of a local government unit, as the case may be, within the meaning of Art. X, §10 of the Constitution. Thus, the Local Government Code (R.A. No. 7160), in implementing the constitutional provision in question, states:

Sec. 7. Creation and Conversion. — As a general rule, the creation of a local government unit or its conversion from one level to another level shall be based on verifiable indicators or viability and projected capacity to provide services, to wit:

(a) Income. — It must be sufficient, based on acceptable standards, to provide for all essential government facilities and services and special functions commensurate with the size of its population, as expected of the local government unit concerned;

(b) Population. — It shall be determined as the total number of inhabitants within the territorial jurisdiction of the local government unit concerned; and

(c) Land Area. — It must be contiguous, unless it comprises two (2) or more islands or is separated by a local government unit independent of the others; properly identified by metes and bounds with technical descriptions; and sufficient to provide for such basic services and facilities to meet the requirements of its populace.

Compliance with the foregoing indicators shall be attested to by the Department of Finance (DOF), the National Statistics Office (NSO), and the Lands Management Bureau (LMB) of the Department of Environment and Natural Resources (DENR).

Sec. 8. Division and Merger. — Division and merger of existing local government units shall comply with the same requirements herein prescribed for their creation: Provided, however, That such division shall not reduce the income, population, or land area of the local government unit or units concerned to less than the minimum requirements prescribed in this Code: Provided, further, That the income classification of the original local government unit or units shall not fall below its current income classification prior to such division.

The income classification of local government units shall be updated within six (6) months from the effectivity of this Code to reflect the changes in their financial position resulting from the increased revenues as provided herein.

Sec. 9. Abolition of Local Government Units. — A local government unit may be abolished when its income, population, or land area has been irreversibly reduced to less than the minimum standards prescribed for its creation under Book III of this Code, as certified by the national agencies mentioned in Section 7 hereof to Congress or to the sanggunian concerned, as the case may be.

The law or ordinance abolishing a local government unit shall specify the province, city, municipality, or barangay with which the local government unit sought to be abolished will be incorporated or merged.

The conversion from an independent component city to a component city involves no such changes in income, population, or land area. There may be changes in the voting rights of the residents of the city, the supervision of the city's administration, and the city's share in the local taxes, as petitioners point out, but such changes do not amount to the creation, division, merger, abolition, or substantial alteration of the boundary of a local government unit so as to require a plebiscite for their approval. An independent component city and an ordinary component city are both component cities, as distinguished from highly urbanized cities. 1 The only difference between them is that the charters of the independent component cities prohibit their voters from voting for provincial elective officials and such cities are independent of the provinces in which they are located. 2 Thus, the Local Government Code provides:

Sec. 450. Requisites for Creation. — (a) A municipality or a cluster of barangays may be converted into a component city if it has an average annual income, as certified by the Department of Finance, of at least Twenty million pesos (P20,000,000.00) for the last two (2) consecutive years based on 1991 constant prices, and if it has either of the following requisites:

(i) a contiguous territory of at least one hundred (100) square kilometers, as certified by the Lands Management Bureau; or

(ii) a population of not less than one hundred fifty thousand (150,000) inhabitants, as certified by the National Statistics Office:

Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein.

(b) The territorial jurisdiction of a newly-created city shall be properly identified by metes and bounds. The requirement on land area shall not apply where the city proposed to be created is composed of one (1) or more islands. The territory need not be contiguous if it comprises two (2) or more islands.

(c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers, and nonrecurring income.

Sec. 451. Cities, Classified. — A city may either be component or highly urbanized: Provided, however, That the criteria established in this Code shall not affect the classification and corporate status of existing cities.

Independent component cities are those component cities whose charters prohibit their voters from voting for provincial elective officials. Independent component cities shall be independent of the province.

Sec. 452. Highly Urbanized Cities. — (a) Cities with a minimum population of two hundred thousand (200,000.00) inhabitants, as certified by the National Statistics Office, and with the latest annual income of at least Fifty Million Pesos (P50,000,000.00) based on 1991 constant prices, as certified by the city treasurer; shall be classified as highly urbanized cities.

(b) Cities which do not meet the above requirements shall be considered component cities of the province in which they are geographically located. If a component city is located within the boundaries of two (2) or more provinces, such city shall be considered a component of the province of which it used to be a municipality.

(c) Qualified voters of highly urbanized cities shall remain excluded from voting for elective provincial officials.

Unless otherwise provided in the Constitution or this Code, qualified voters of independent component cities shall be governed by their respective charters, as amended, on the participation of voters in provincial elections.

Qualified voters of cities who acquired the right to vote for elective provincial officials prior to the classification of said cities as highly urbanized after the ratification of the Constitution and before the effectivity of this Code, shall continue to exercise such right.

The Court says that the changes resulting from the reclassification of Santiago City as an ordinary component city "cannot be considered insubstantial." For one, it is said, its independence will be diminished because the city mayor will be placed under the administrative supervision of the provincial governor. For another, the resolutions and ordinances of the city council will have to be approved by the provincial board of Isabela.

The fact is that whether the City of Santiago is an independent component city or an ordinary component city, it is subject to administrative supervision, with the only difference that, as an independent component city, it is under the direct supervision of the President of the Philippines, whereas, as an ordinary component city, it will be subject to the supervision of the President through the province. 3 That is hardly a distinction. For the fact is that under the Constitution, the President of the Philippines exercises general supervision over all local governments. 4

Nor does it matter that ordinances passed by the city councils of component cities are subject to review (not approval as the Court says) by the provincial boards for the purpose of determining whether the ordinances are within the powers of the city councils to enact. 5 For that matter, ordinances passed by the city councils of independent component cities are likewise subject to review, although by the Office of the President. 6 The reason for this is to be found in Art. X, §4 of the Constitution which provides:

The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays shall ensure that the acts of their component units are within the scope of their prescribed powers and functions.

In any case, these are not important differences which determine whether the law effecting them should be approved in a plebiscite. The defining characteristics of a local government unit are its income, population, and local area, as §§450 and 452 of the LGC provide. These are referred to in §7 of the LGC and its Implementing Rules as the "verifiable indicators of viability and projected capacity to provide services." Tested by these standards, there is no change in the City of Santiago requiring the approval of the people in a plebiscite.

The majority states: "It is markworthy that when R.A. No. 7720 upgraded the status of Santiago City from a municipality to an independent component city, it required the approval of its People thru a plebiscite called for the purpose. There is neither rhyme nor reason why this plebiscite should not be called to determine the will of the people of Santiago City when R.A. No. 8525 downgrades the status of their city." The conversion of the then Municipality of Santiago in Isabela Province by R.A. No. 7720 was an act of creation. It was based on the municipality's satisfying the requisites for the creation of a city as provided in the LGC, to wit:

Sec. 450. Requisites for Creation. — (a) A municipality or a cluster of barangays may be converted into a component city if it has an average annual income, as certified by the Department of Finance, of a least Twenty million pesos (P20,000,000.00) for the last two (2) consecutive years based on 1991 constant prices, and if it has either of the following requisites:

(i) a contiguous territory of at least one hundred (100) square kilometers, as certified by the Lands Management Bureau; or

(ii) a population of not less than one hundred fifty thousand (150,000) inhabitants, as certified by the National Statistics Office;

Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein.

(b) The territorial jurisdiction of a newly-created city shall be properly identified by metes and bounds. The requirement on land area shall not apply where the city proposed to be created is composed of one (1) or more islands. The territory need not be contiguous if it comprises two (2) or more islands.

(c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers, and nonrecurring income.

As thus indicated these requisites are based on the "verifiable indicators" of income, population, and land area and, therefore, the conversion of what was once a municipality into a city needed approval in a plebiscite. But the conversion of Santiago City from an independent component city into a component city involves no more than a change in the right of the people (i.e., the registered voters of the city) to vote for provincial elective officials.

If an analogy is needed, it is to the reversion of a component city — whether independent or ordinary — to the status of a municipality. For then the city is actually abolished and abolition, as stated in the Art. X, §10 of the Constitution, must be approved by the majority of the votes cast in a plebiscite. Stated otherwise, when a municipality is converted into a city, a city is created, and when the city is reverted into a municipality, the city is abolished. Both acts of creation and abolition require the approval of the people in a plebiscite called for the purpose. But when an independent component city is converted into a component city, it is not created into another form, it is not divided, it is not merged with another unit of local government, it is not abolished, much less is its boundary substantially altered.

Indeed, this is not the first time that an independent component city is converted into a component city without a plebiscite. The City of Oroquieta, created as an independent component city in 1969 by R.A. No. 5518, was converted into a component city in 1989 by R.A. No. 6726, while the City of San Carlos, created as an independent component city in 1965 by R.A. No. 4187, was converted into a component city by R.A. No. 6843 in 1990. In both cases, the conversion was made without submitting the matter to a plebiscite.

There is, therefore, no reason for requiring that the reclassification of Santiago City as a component city must be approved by the majority of the votes cast in a plebiscite and for holding that, because R.A. No. 8528 contains no provision for such plebiscite, it is unconstitutional.

It is easy to sympathize with calls for plebiscites as an exercise of direct democracy by the people. But, although the Constitution declares that "Sovereignty resides in the people and all government authority emanates from them," it also provides that we are a "republican State." 7 It is thus a representative form of government that we have. With few exceptions, we have vested the legislative power in the Congress of the Philippines. 8 This means that when an act of the people's representatives assembled in Congress is duly passed and approved by the President in the manner prescribed in the Constitution, the act becomes a law 9 without the need of approval or ratification by the people in order to be effective. 10

This is the theory of representative government. Such a government is no less democratic because it is indirect. In some ways it is better than direct government given the complexity of modern society, let alone the volatility of voters and their susceptibility to manipulation. In this age of mass communication there is less reason to distrust the judgment of the people's representatives in Congress on matters such as this and, therefore, no reason to require the people to manifest their sovereign will, except where this is expressly required by the Constitution.

For the foregoing reasons, I vote to dismiss the petition in this case.

BUENA, J., dissenting opinion;

With all due respect to my esteemed colleague, Mr. Justice Reynato S. Puno, whose well-written ponencia expresses his opinion with clarity, I regret that I am unable to agree that Republic Act No. 8528 should be declared as unconstitutional for the following reasons:

1. Section 10, Article X of the 1987 Constitution provides that —

Sec. 10, Article X. — No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the Local Government Code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.

Sec. 10 Chapter 2 of the Local Government Code (R.A. No. 7160) provides:

Sec. 10, Chapter 2. — Plebiscite Requirement. No creation, division, merger, abolition, or substantial alteration of boundaries of local government units shall take effect unless approved by a majority of the votes cast in a plebiscite called for the purpose in the political unit or units directly affected. Said plebiscite shall be conducted by the Commission on Elections (COMELEC) within one hundred twenty (120) days from the date of effectivity of the law or ordinance effecting such action, unless said law or ordinance fixes another date.

In short, conversion does not appear in the 1987 Constitution nor in the Section 10, Chapter 2 of the Local Government Code. Surprisingly, Rule II, Article 6, paragraph (f) (1) of the Implementing Rules of the Local Government Code included conversion in the enumeration of the modes of changing the status of local government units, thus:

(f) Plebiscite. — (1) No creation, conversion, division, merger, abolition, or substantial alteration of boundaries of LGUs shall take effect unless approved by a majority of the votes cast in a plebiscite called for the purpose in the LGU or LGUs affected. The plebiscite shall be conducted by the Commission on Elections (COMELEC) within one hundred twenty (120) days from the effectivity of the law or ordinance prescribing such action, unless said law or ordinance fixes another date.

xxx xxx xxx (emphasis supplied)

Other than that, the Local Government Code uses the term "conversion" only in the following instances: (1) Section 7, which provides that "[a]s a general rule, the creation of a local government unit or its conversion from one level to another shall be based on verifiable indicators of viability and projected capacity to provide services, to wit: . . . . . .;" (2) Section 450, which provides for the requisites for the "conversion" of a municipality or a cluster of barangays into a component city; and (3) Section 462, which involves the "conversion" of existing sub-provinces into regular provinces.

Senator Aquilino Pimentel, Jr. defines 1 — "conversion," as "the elevation of an LGU from one level to another, like converting a municipality to a city or a component city to a highly urbanized one or the raising of the classification of one municipality, city or province from a fourth class category to third, second or first." It is my humble opinion therefore that the requirement of a plebiscite does not apply to the case at bar which does not involve the upgrading or elevation of Santiago City but a downgrading thereof.

2. I am not convinced that a mere Rule and Regulation intended to implement the Local Government Code can expand the terms and provisions clearly expressed in the basic law to be implemented. As aptly contended by the Solicitor General in his Comment on the petition viz.:

It is a settled jurisprudence that the power of administrative agencies to promulgate rules and regulations must be in strict compliance with the legislative enactment. Thus, in Tayug Rural Bank vs. Central Bank of the Philippines (146 SCRA 129-30), this Honorable Court ruled that in the case of discrepancy between the basic law and a rule or regulation to implement said law, the basic law prevails as said rule or regulation can not go beyond the terms and provisions of the basic law. Neither can such rules and regulations extend or expand the letter and spirit of the law they seek to implement. (Iglesia ni Kristo vs. Court of Appeals, 259 SCRA529) 2

As a matter of fact, Mr. Justice Puno, in his ponencia in the above cited case of Iglesia ni Kristo, opined that "(T)his rule is void for it runs smack against the hoary doctrine that administrative rules and regulations cannot expand the letter and spirit of the law they seek to enforce. 3

3. The proceedings in the Senate show that the Committee on Local Government, to which H.B. No. 8729 was referred, reported back to the Senate with the recommendation that it be approved with the following amendment:

Sec. 3. Section 49 of Republic Act No. 7720 is hereby amended by deleting the entire section and in its stead substitute the following:

Sec. 49. PLEBISCITE. — THE CONVERSION OF THE CITY OF SANTIAGO INTO A COMPONENT CITY OF THE PROVINCE OF ISABELA SHALL TAKE EFFECT UPON THE RATIFICATION OF THIS ACT BY A MAJORITY OF THE PEOPLE OF SAID CITY IN A PLEBISCITE WHICH SHALL BE HELD FOR THE PURPOSE WITHIN (60) DAYS FROM THE APPROVAL OF THIS ACT. THE COMMISSION ON ELECTIONS SHALL CONDUCT AND SUPERVISE SUCH PLEBISCITE.

However, after the deliberations in the Senate, the Committee on Local Government decided to withdraw the foregoing proposed amendment. Hence, on February 6, 1998, the Republic Act No. 8528, the constitutionality of which is challenged by the petitioners, was approved.

Be that as it may, may this Court properly require a plebiscite for the validity of said law when Congress itself, which had been given the opportunity to include such a requirement, decided against it? Are we not supplanting our judgment over that of Congress, a co-equal branch of government entrusted by the Constitution to enact laws? I respectfully submit that we may not do so without disturbing the balance of power as apportioned and delineated by the Constitution.

4. I likewise submit that we must consider the ramifications of a declaration of unconstitutionality of Republic Act No. 8528 on Republic Act No. 6726 (1989) and Republic Act No. 6843 (1990), respectively allowing the voters of the City of Oroquieta (Misamis Oriental) and San Carlos City (Pangasinan) to vote and be voted for any of the respective provincial offices, in effect downgrading them from independent component cities to component cities. The resulting confusion on the political structures of the local government units involved would surely be disastrous to the order and stability of these cities.

5. Finally, in a situation where the supposed breach of the constitution is doubtful, equivocal and, at best, based on argumentative implications, I believe that, as we have ruled in a plethora of cases 4, every law has in its favor, the presumption of constitutionality and in case of doubt, the Court must exert every effort to prevent the invalidation of the law and the nullification of the will of the legislature that enacted it and the executive that approved it.1âwphi1.nêt

I therefore vote to dismiss the petition.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 127882           January 27, 2004

LA BUGAL-B'LAAN TRIBAL ASSOCIATION, INC., represented by its Chairman F'LONG MIGUEL M. LUMAYONG, WIGBERTO E. TAÑADA, PONCIANO BENNAGEN, JAIME TADEO, RENATO R. CONSTANTINO, JR., F'LONG AGUSTIN M. DABIE, ROBERTO P. AMLOY, RAQIM L. DABIE, SIMEON H. DOLOJO, IMELDA M. GANDON, LENY B. GUSANAN, MARCELO L. GUSANAN, QUINTOL A. LABUAYAN, LOMINGGES D. LAWAY, BENITA P. TACUAYAN, minors JOLY L. BUGOY, represented by his father UNDERO D. BUGOY, ROGER M. DADING, represented by his father ANTONIO L. DADING, ROMY M. LAGARO, represented by his father TOTING A. LAGARO, MIKENY JONG B. LUMAYONG, represented by his father MIGUEL M. LUMAYONG, RENE T. MIGUEL, represented by his mother EDITHA T. MIGUEL, ALDEMAR L. SAL, represented by his father DANNY M. SAL, DAISY RECARSE, represented by her mother LYDIA S. SANTOS, EDWARD M. EMUY, ALAN P. MAMPARAIR, MARIO L. MANGCAL, ALDEN S. TUSAN, AMPARO S. YAP, VIRGILIO CULAR, MARVIC M.V.F. LEONEN, JULIA REGINA CULAR, GIAN CARLO CULAR, VIRGILIO CULAR, JR., represented by their father VIRGILIO CULAR, PAUL ANTONIO P. VILLAMOR, represented by his parents JOSE VILLAMOR and ELIZABETH PUA-VILLAMOR, ANA GININA R. TALJA, represented by her father MARIO JOSE B. TALJA, SHARMAINE R. CUNANAN, represented by her father ALFREDO M. CUNANAN, ANTONIO JOSE A. VITUG III, represented by his mother ANNALIZA A. VITUG, LEAN D. NARVADEZ, represented by his father MANUEL E. NARVADEZ, JR., ROSERIO MARALAG LINGATING, represented by her father RIO OLIMPIO A. LINGATING, MARIO JOSE B. TALJA, DAVID E. DE VERA, MARIA MILAGROS L. SAN JOSE, SR., SUSAN O. BOLANIO, OND, LOLITA G. DEMONTEVERDE, BENJIE L. NEQUINTO,1 ROSE LILIA S. ROMANO, ROBERTO S. VERZOLA, EDUARDO AURELIO C. REYES, LEAN LOUEL A. PERIA, represented by his father ELPIDIO V. PERIA,2 GREEN FORUM PHILIPPINES, GREEN FORUM WESTERN VISAYAS, (GF-WV), ENVIRONMETAL LEGAL ASSISTANCE CENTER (ELAC), PHILIPPINE KAISAHAN TUNGO SA KAUNLARAN NG KANAYUNAN AT REPORMANG PANSAKAHAN (KAISAHAN),3 KAISAHAN TUNGO SA KAUNLARAN NG KANAYUNAN AT REPORMANG PANSAKAHAN (KAISAHAN), PARTNERSHIP FOR AGRARIAN REFORM and RURAL DEVELOPMENT SERVICES, INC. (PARRDS), PHILIPPINE PART`NERSHIP FOR THE DEVELOPMENT OF HUMAN RESOURCES IN THE RURAL AREAS, INC. (PHILDHRRA), WOMEN'S LEGAL BUREAU (WLB), CENTER FOR ALTERNATIVE DEVELOPMENT INITIATIVES, INC. (CADI), UPLAND DEVELOPMENT INSTITUTE (UDI), KINAIYAHAN FOUNDATION, INC., SENTRO NG ALTERNATIBONG LINGAP PANLIGAL (SALIGAN), LEGAL RIGHTS AND NATURAL RESOURCES CENTER, INC. (LRC), petitioners, vs.VICTOR O. RAMOS, SECRETARY, DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES (DENR), HORACIO RAMOS, DIRECTOR, MINES AND GEOSCIENCES BUREAU (MGB-DENR), RUBEN TORRES, EXECUTIVE SECRETARY, and WMC (PHILIPPINES), INC.4 respondents.

D E C I S I O N

CARPIO-MORALES, J.:

The present petition for mandamus and prohibition assails the constitutionality of Republic Act No. 7942,5 otherwise known as the PHILIPPINE MINING ACT OF 1995, along with the Implementing Rules and Regulations issued pursuant thereto, Department of Environment and Natural Resources (DENR) Administrative Order 96-40, and of the Financial and Technical Assistance Agreement (FTAA) entered into on March 30, 1995 by the Republic of the Philippines and WMC (Philippines), Inc. (WMCP), a corporation organized under Philippine laws.

On July 25, 1987, then President Corazon C. Aquino issued Executive Order (E.O.) No. 2796 authorizing the DENR Secretary to accept, consider and evaluate proposals from foreign-owned corporations or foreign investors for contracts or agreements involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, which, upon appropriate recommendation of the Secretary, the President may execute with the foreign proponent. In entering into such proposals, the President shall consider the real contributions to the economic growth and general welfare of the country that will be realized, as well as the development and use of local scientific and technical resources that will be promoted by the proposed contract or agreement. Until Congress shall determine otherwise, large-scale mining, for purpose of this Section, shall mean those proposals for contracts or agreements for mineral resources exploration, development, and utilization involving a committed capital investment in a single mining unit project of at least Fifty Million Dollars in United States Currency (US $50,000,000.00).7

On March 3, 1995, then President Fidel V. Ramos approved R.A. No. 7942 to "govern the exploration, development, utilization and processing of all mineral resources."8 R.A. No. 7942 defines the modes of mineral agreements for mining operations,9 outlines the procedure for their filing and approval,10 assignment/transfer11 and withdrawal,12 and fixes their terms.13 Similar provisions govern financial or technical assistance agreements.14

The law prescribes the qualifications of contractors15 and grants them certain rights, including timber,16 water17 and easement18 rights, and the right to possess explosives.19 Surface owners, occupants, or concessionaires are forbidden from preventing holders of mining rights from entering private lands and concession areas.20 A procedure for the settlement of conflicts is likewise provided for.21

The Act restricts the conditions for exploration,22 quarry23 and other24 permits. It regulates the transport, sale and processing of minerals,25 and promotes the development of mining communities, science and mining technology,26 and safety and environmental protection.27

The government's share in the agreements is spelled out and allocated,28 taxes and fees are imposed,29 incentives granted.30 Aside from penalizing certain acts,31 the law likewise specifies grounds for the cancellation, revocation and termination of agreements and permits.32

On April 9, 1995, 30 days following its publication on March 10, 1995 in Malaya and Manila Times, two newspapers of general circulation, R.A. No. 7942 took effect.33 Shortly before the effectivity of R.A. No. 7942, however, or on March 30, 1995, the President entered into an FTAA with WMCP covering 99,387 hectares of land in South Cotabato, Sultan Kudarat, Davao del Sur and North Cotabato.34

On August 15, 1995, then DENR Secretary Victor O. Ramos issued DENR Administrative Order (DAO) No. 95-23, s. 1995, otherwise known as the Implementing Rules and Regulations of R.A. No. 7942. This was later repealed by DAO No. 96-40, s. 1996 which was adopted on December 20, 1996.

On January 10, 1997, counsels for petitioners sent a letter to the DENR Secretary demanding that the DENR stop the implementation of R.A. No. 7942 and DAO No. 96-40,35 giving the DENR fifteen days from receipt36 to act thereon. The DENR, however, has yet to respond or act on petitioners' letter.37

Petitioners thus filed the present petition for prohibition and mandamus, with a prayer for a temporary restraining order. They allege that at the time of the filing of the petition, 100 FTAA applications had already been filed, covering an area of 8.4 million hectares,38 64 of which applications are by fully foreign-owned corporations covering a total of 5.8 million hectares, and at least one by a fully foreign-owned mining company over offshore areas.39

Petitioners claim that the DENR Secretary acted without or in excess of jurisdiction:

I

x x x in signing and promulgating DENR Administrative Order No. 96-40 implementing Republic Act No. 7942, the latter being unconstitutional in that it allows fully foreign owned corporations to explore, develop, utilize and exploit mineral resources in a manner contrary to Section 2, paragraph 4, Article XII of the Constitution;

II

x x x in signing and promulgating DENR Administrative Order No. 96-40 implementing Republic Act No. 7942, the latter being unconstitutional in that it allows the taking of private property without the determination of public use and for just compensation;

III

x x x in signing and promulgating DENR Administrative Order No. 96-40 implementing Republic Act No. 7942, the latter being unconstitutional in that it violates Sec. 1, Art. III of the Constitution;

IV

x x x in signing and promulgating DENR Administrative Order No. 96-40 implementing Republic Act No. 7942, the latter being unconstitutional in that it allows enjoyment by foreign citizens as well as fully foreign owned corporations of the nation's marine wealth contrary to Section 2, paragraph 2 of Article XII of the Constitution;

V

x x x in signing and promulgating DENR Administrative Order No. 96-40 implementing Republic Act No. 7942, the latter being unconstitutional in that it allows priority to foreign and fully foreign owned corporations in the exploration, development and utilization of mineral resources contrary to Article XII of the Constitution;

VI

x x x in signing and promulgating DENR Administrative Order No. 96-40 implementing Republic Act No. 7942, the latter being unconstitutional in that it allows the inequitable sharing of wealth contrary to Sections [sic] 1, paragraph 1, and Section 2, paragraph 4[,] [Article XII] of the Constitution;

VII

x x x in recommending approval of and implementing the Financial and Technical Assistance Agreement between the President of the Republic of the Philippines and Western Mining Corporation Philippines Inc. because the same is illegal and unconstitutional.40

They pray that the Court issue an order:

(a) Permanently enjoining respondents from acting on any application for Financial or Technical Assistance Agreements;

(b) Declaring the Philippine Mining Act of 1995 or Republic Act No. 7942 as unconstitutional and null and void;

(c) Declaring the Implementing Rules and Regulations of the Philippine Mining Act contained in DENR Administrative Order No. 96-40 and all other similar administrative issuances as unconstitutional and null and void; and

(d) Cancelling the Financial and Technical Assistance Agreement issued to Western Mining Philippines, Inc. as unconstitutional, illegal and null and void.41

Impleaded as public respondents are Ruben Torres, the then Executive Secretary, Victor O. Ramos, the then DENR Secretary, and Horacio Ramos, Director of the Mines and Geosciences Bureau of the DENR. Also impleaded is private respondent WMCP, which entered into the assailed FTAA with the Philippine Government. WMCP is owned by WMC Resources International Pty., Ltd. (WMC), "a wholly owned subsidiary of Western Mining Corporation Holdings Limited, a publicly listed major Australian mining and exploration company."42 By WMCP's information, "it is a 100% owned subsidiary of WMC LIMITED."43

Respondents, aside from meeting petitioners' contentions, argue that the requisites for judicial inquiry have not been met and that the petition does not comply with the criteria for prohibition and mandamus. Additionally, respondent WMCP argues that there has been a violation of the rule on hierarchy of courts.

After petitioners filed their reply, this Court granted due course to the petition. The parties have since filed their respective memoranda.

WMCP subsequently filed a Manifestation dated September 25, 2002 alleging that on January 23, 2001, WMC sold all its shares in WMCP to Sagittarius Mines, Inc. (Sagittarius), a corporation organized under Philippine laws.44 WMCP was subsequently renamed "Tampakan Mineral Resources Corporation."45 WMCP claims that at least 60% of the equity of Sagittarius is owned by Filipinos and/or Filipino-owned corporations while about 40% is owned by Indophil Resources NL, an Australian company.46 It further claims that by such sale and transfer of shares, "WMCP has ceased to be connected in any way with WMC."47

By virtue of such sale and transfer, the DENR Secretary, by Order of December 18, 2001,48 approved the transfer and registration of the subject FTAA from WMCP to Sagittarius. Said Order, however, was appealed by Lepanto Consolidated Mining Co. (Lepanto) to the Office of the President which upheld it by Decision of July 23, 2002.49 Its motion for reconsideration having been denied by the Office of the President by Resolution of November 12, 2002,50 Lepanto filed a petition for review51 before the Court of Appeals. Incidentally, two other petitions for review related to the approval of the transfer and registration of the FTAA to Sagittarius were recently resolved by this Court.52

It bears stressing that this case has not been rendered moot either by the transfer and registration of the FTAA to a Filipino-owned corporation or by the non-issuance of a temporary restraining order or a preliminary injunction to stay the above-said July 23, 2002 decision of the Office of the President.53 The validity of the transfer remains in dispute and awaits final judicial determination. This assumes, of course, that such transfer cures the FTAA's alleged unconstitutionality, on which question judgment is reserved.

WMCP also points out that the original claimowners of the major mineralized areas included in the WMCP FTAA, namely, Sagittarius, Tampakan Mining Corporation, and Southcot Mining Corporation, are all Filipino-owned corporations,54 each of which was a holder of an approved Mineral Production Sharing Agreement awarded in 1994, albeit their respective mineral claims were subsumed in the WMCP FTAA;55 and that these three companies are the same companies that consolidated their interests in Sagittarius to whom WMC sold its 100% equity in WMCP.56 WMCP concludes that in the event that the FTAA is invalidated, the MPSAs of the three corporations would be revived and the mineral claims would revert to their original claimants.57

These circumstances, while informative, are hardly significant in the resolution of this case, it involving the validity of the FTAA, not the possible consequences of its invalidation.

Of the above-enumerated seven grounds cited by petitioners, as will be shown later, only the first and the last need be delved into; in the latter, the discussion shall dwell only insofar as it questions the effectivity of E. O. No. 279 by virtue of which order the questioned FTAA was forged.

I

Before going into the substantive issues, the procedural questions posed by respondents shall first be tackled.

REQUISITES FOR JUDICIAL REVIEW

When an issue of constitutionality is raised, this Court can exercise its power of judicial review only if the following requisites are present:

(1) The existence of an actual and appropriate case;

(2) A personal and substantial interest of the party raising the constitutional question;

(3) The exercise of judicial review is pleaded at the earliest opportunity; and

(4) The constitutional question is the lis mota of the case. 58

Respondents claim that the first three requisites are not present.

Section 1, Article VIII of the Constitution states that "(j)udicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable." The power of judicial review, therefore, is limited to the determination of actual cases and controversies.59

An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination, not conjectural or anticipatory,60 lest the decision of the court would amount to an advisory opinion.61 The power does not extend to hypothetical questions62 since any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities.63

"Legal standing" or locus standi has been defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged,64 alleging more than a generalized grievance.65 The gist of the question of standing is whether a party alleges "such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions."66 Unless a person is injuriously affected in any of his constitutional rights by the operation of statute or ordinance, he has no standing.67

Petitioners traverse a wide range of sectors. Among them are La Bugal B'laan Tribal Association, Inc., a farmers and indigenous people's cooperative organized under Philippine laws representing a community actually affected by the mining activities of WMCP, members of said cooperative,68 as well as other residents of areas also affected by the mining activities of WMCP.69 These petitioners have standing to raise the constitutionality of the questioned FTAA as they allege a personal and substantial injury. They claim that they would suffer "irremediable displacement"70 as a result of the implementation of the FTAA allowing WMCP to conduct mining activities in their area of residence. They thus meet the appropriate case requirement as they assert an interest adverse to that of respondents who, on the other hand, insist on the FTAA's validity.

In view of the alleged impending injury, petitioners also have standing to assail the validity of E.O. No. 279, by authority of which the FTAA was executed.

Public respondents maintain that petitioners, being strangers to the FTAA, cannot sue either or both contracting parties to annul it.71 In other words, they contend that petitioners are not real parties in interest in an action for the annulment of contract.

Public respondents' contention fails. The present action is not merely one for annulment of contract but for prohibition and mandamus. Petitioners allege that public respondents acted without or in excess of jurisdiction in implementing the FTAA, which they submit is unconstitutional. As the case involves constitutional questions, this Court is not concerned with whether petitioners are real parties in interest, but with whether they have legal standing. As held in Kilosbayan v. Morato:72

x x x. "It is important to note . . . that standing because of its constitutional and public policy underpinnings, is very different from questions relating to whether a particular plaintiff is the real party in interest or has capacity to sue. Although all three requirements are directed towards ensuring that only certain parties can maintain an action, standing restrictions require a partial consideration of the merits, as well as broader policy concerns relating to the proper role of the judiciary in certain areas.["] (FRIEDENTHAL, KANE AND MILLER, CIVIL PROCEDURE 328 [1985])

Standing is a special concern in constitutional law because in some cases suits are brought not by parties who have been personally injured by the operation of a law or by official action taken, but by concerned citizens, taxpayers or voters who actually sue in the public interest. Hence, the question in standing is whether such parties have "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." (Baker v. Carr, 369 U.S. 186, 7 L.Ed.2d 633 [1962].)

As earlier stated, petitioners meet this requirement.

The challenge against the constitutionality of R.A. No. 7942 and DAO No. 96-40 likewise fulfills the requisites of justiciability. Although these laws were not in force when the subject FTAA was entered into, the question as to their validity is ripe for adjudication.

The WMCP FTAA provides:

14.3 Future Legislation

Any term and condition more favourable to Financial &Technical Assistance Agreement contractors resulting from repeal or amendment of any existing law or regulation or from the enactment of a law, regulation or administrative order shall be considered a part of this Agreement.

It is undisputed that R.A. No. 7942 and DAO No. 96-40 contain provisions that are more favorable to WMCP, hence, these laws, to the extent that they are favorable to WMCP, govern the FTAA.

In addition, R.A. No. 7942 explicitly makes certain provisions apply to pre-existing agreements.

SEC. 112. Non-impairment of Existing Mining/Quarrying Rights. – x x x That the provisions of Chapter XIV on government share in mineral production-sharing agreement and of Chapter XVI on incentives of this Act shall immediately govern and apply to a mining lessee or contractor unless the mining lessee or contractor indicates his intention to the secretary, in writing, not to avail of said provisions x x x Provided, finally, That such leases, production-sharing agreements, financial or technical assistance agreements shall comply with the applicable provisions of this Act and its implementing rules and regulations.

As there is no suggestion that WMCP has indicated its intention not to avail of the provisions of Chapter XVI of R.A. No. 7942, it can safely be presumed that they apply to the WMCP FTAA.

Misconstruing the application of the third requisite for judicial review – that the exercise of the review is pleaded at the earliest opportunity – WMCP points out that the petition was filed only almost two years after the execution of the FTAA, hence, not raised at the earliest opportunity.

The third requisite should not be taken to mean that the question of constitutionality must be raised immediately after the execution of the state action complained of. That the question of constitutionality has not been raised before is not a valid reason for refusing to allow it to be raised later.73 A contrary rule would mean that a law, otherwise unconstitutional, would lapse into constitutionality by the mere failure of the proper party to promptly file a case to challenge the same.

PROPRIETY OF PROHIBITION AND MANDAMUS

Before the effectivity in July 1997 of the Revised Rules of Civil Procedure, Section 2 of Rule 65 read:

SEC. 2. Petition for prohibition. – When the proceedings of any tribunal, corporation, board, or person, whether exercising functions judicial or ministerial, are without or in excess of its or his jurisdiction, or with grave abuse of discretion, and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered commanding the defendant to desist from further proceeding in the action or matter specified therein.

Prohibition is a preventive remedy.74 It seeks a judgment ordering the defendant to desist from continuing with the commission of an act perceived to be illegal.75

The petition for prohibition at bar is thus an appropriate remedy. While the execution of the contract itself may be fait accompli, its implementation is not. Public respondents, in behalf of the Government, have obligations to fulfill under said contract. Petitioners seek to prevent them from fulfilling such obligations on the theory that the contract is unconstitutional and, therefore, void.

The propriety of a petition for prohibition being upheld, discussion of the propriety of the mandamus aspect of the petition is rendered unnecessary.

HIERARCHY OF COURTS

The contention that the filing of this petition violated the rule on hierarchy of courts does not likewise lie. The rule has been explained thus:

Between two courts of concurrent original jurisdiction, it is the lower court that should initially pass upon the issues of a case. That way, as a particular case goes through the hierarchy of courts, it is shorn of all but the important legal issues or those of first impression, which are the proper subject of attention of the appellate court. This is a procedural rule borne of experience and adopted to improve the administration of justice.

This Court has consistently enjoined litigants to respect the hierarchy of courts. Although this Court has concurrent jurisdiction with the Regional Trial Courts and the Court of Appeals to issue writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction, such concurrence does not give a party unrestricted freedom of choice of court forum. The resort to this Court's primary jurisdiction to issue said writs shall be allowed only where the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstances justify such invocation. We held in People v. Cuaresma that:

A becoming regard for judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level ("inferior") courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Court's original jurisdiction to issue these writs should be allowed only where there are special and important reasons therefor, clearly and specifically set out in the petition. This is established policy. It is a policy necessary to prevent inordinate demands upon the Court's time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further over-crowding of the Court's docket x x x.76 [Emphasis supplied.]

The repercussions of the issues in this case on the Philippine mining industry, if not the national economy, as well as the novelty thereof, constitute exceptional and compelling circumstances to justify resort to this Court in the first instance.

In all events, this Court has the discretion to take cognizance of a suit which does not satisfy the requirements of an actual case or legal standing when paramount public interest is involved.77 When the issues raised are of paramount importance to the public, this Court may brush aside technicalities of procedure.78

II

Petitioners contend that E.O. No. 279 did not take effect because its supposed date of effectivity came after President Aquino had already lost her legislative powers under the Provisional Constitution.

And they likewise claim that the WMC FTAA, which was entered into pursuant to E.O. No. 279, violates Section 2, Article XII of the Constitution because, among other reasons:

(1) It allows foreign-owned companies to extend more than mere financial or technical assistance to the State in the exploitation, development, and utilization of minerals, petroleum, and other mineral oils, and even permits foreign owned companies to "operate and manage mining activities."

(2) It allows foreign-owned companies to extend both technical and financial assistance, instead of "either technical or financial assistance."

To appreciate the import of these issues, a visit to the history of the pertinent constitutional provision, the concepts contained therein, and the laws enacted pursuant thereto, is in order.

Section 2, Article XII reads in full:

Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.

The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fish-workers in rivers, lakes, bays, and lagoons.

The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources.

The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution.

THE SPANISH REGIME AND THE REGALIAN DOCTRINE

The first sentence of Section 2 embodies the Regalian doctrine or jura regalia. Introduced by Spain into these Islands, this feudal concept is based on the State's power of dominium, which is the capacity of the State to own or acquire property.79

In its broad sense, the term "jura regalia" refers to royal rights, or those rights which the King has by virtue of his prerogatives. In Spanish law, it refers to a right which the sovereign has over anything in which a subject has a right of property or propriedad. These were rights enjoyed during feudal times by the king as the sovereign.

The theory of the feudal system was that title to all lands was originally held by the King, and while the use of lands was granted out to others who were permitted to hold them under certain conditions, the King theoretically retained the title. By fiction of law, the King was regarded as the original proprietor of all lands, and the true and only source of title, and from him all lands were held. The theory of jura regalia was therefore nothing more than a natural fruit of conquest.80

The Philippines having passed to Spain by virtue of discovery and conquest,81 earlier Spanish decrees declared that "all lands were held from the Crown."82

The Regalian doctrine extends not only to land but also to "all natural wealth that may be found in the bowels of the earth."83 Spain, in particular, recognized the unique value of natural resources, viewing them, especially minerals, as an abundant source of revenue to finance its wars against other nations.84 Mining laws during the Spanish regime reflected this perspective.85

THE AMERICAN OCCUPATION AND THE CONCESSION REGIME

By the Treaty of Paris of December 10, 1898, Spain ceded "the archipelago known as the Philippine Islands" to the United States. The Philippines was hence governed by means of organic acts that were in the nature of charters serving as a Constitution of the occupied territory from 1900 to 1935.86 Among the principal organic acts of the Philippines was the Act of Congress of July 1, 1902, more commonly known as the Philippine Bill of 1902, through which the United States Congress assumed the administration of the Philippine Islands.87 Section 20 of said Bill reserved the disposition of mineral lands of the public domain from sale. Section 21 thereof allowed the free and open exploration, occupation and purchase of mineral deposits not only to citizens of the Philippine Islands but to those of the United States as well:

Sec. 21. That all valuable mineral deposits in public lands in the Philippine Islands, both surveyed and unsurveyed, are hereby declared to be free and open to exploration, occupation and purchase, and the land in which they are found, to occupation and purchase, by citizens of the United States or of said Islands: Provided, That when on any lands in said Islands entered and occupied as agricultural lands under the provisions of this Act, but not patented,

mineral deposits have been found, the working of such mineral deposits is forbidden until the person, association, or corporation who or which has entered and is occupying such lands shall have paid to the Government of said Islands such additional sum or sums as will make the total amount paid for the mineral claim or claims in which said deposits are located equal to the amount charged by the Government for the same as mineral claims.

Unlike Spain, the United States considered natural resources as a source of wealth for its nationals and saw fit to allow both Filipino and American citizens to explore and exploit minerals in public lands, and to grant patents to private mineral lands.88 A person who acquired ownership over a parcel of private mineral land pursuant to the laws then prevailing could exclude other persons, even the State, from exploiting minerals within his property.89 Thus, earlier jurisprudence90 held that:

A valid and subsisting location of mineral land, made and kept up in accordance with the provisions of the statutes of the United States, has the effect of a grant by the United States of the present and exclusive possession of the lands located, and this exclusive right of possession and enjoyment continues during the entire life of the location. x x x.

x x x.

The discovery of minerals in the ground by one who has a valid mineral location perfects his claim and his location not only against third persons, but also against the Government. x x x. [Italics in the original.]

The Regalian doctrine and the American system, therefore, differ in one essential respect. Under the Regalian theory, mineral rights are not included in a grant of land by the state; under the American doctrine, mineral rights are included in a grant of land by the government.91

Section 21 also made possible the concession (frequently styled "permit", license" or "lease")92 system.93 This was the traditional regime imposed by the colonial administrators for the exploitation of natural resources in the extractive sector (petroleum, hard minerals, timber, etc.).94

Under the concession system, the concessionaire makes a direct equity investment for the purpose of exploiting a particular natural resource within a given area.95 Thus, the concession amounts to complete control by the concessionaire over the country's natural resource, for it is given exclusive and plenary rights to exploit a particular resource at the point of extraction.96 In consideration for the right to exploit a natural resource, the concessionaire either pays rent or royalty, which is a fixed percentage of the gross proceeds.97

Later statutory enactments by the legislative bodies set up in the Philippines adopted the contractual framework of the concession.98 For instance, Act No. 2932,99 approved on August 31, 1920, which provided for the exploration, location, and lease of lands containing petroleum and other mineral oils and gas in the Philippines, and Act No. 2719,100 approved on May 14, 1917, which provided for the leasing and development of coal lands in the Philippines, both utilized the concession system.101

THE 1935 CONSTITUTION AND THE NATIONALIZATION OF NATURAL RESOURCES

By the Act of United States Congress of March 24, 1934, popularly known as the Tydings-McDuffie Law, the People of the Philippine Islands were authorized to adopt a constitution.102 On July 30, 1934, the Constitutional Convention met for the purpose of drafting a constitution, and the Constitution subsequently drafted was approved by the Convention on February 8, 1935.103 The Constitution was submitted to the President of the United States on March 18, 1935.104 On March 23, 1935, the President of the United States certified that the Constitution conformed substantially with the provisions of the Act of Congress approved on March 24, 1934.105 On May 14, 1935, the Constitution was ratified by the Filipino people.106

The 1935 Constitution adopted the Regalian doctrine, declaring all natural resources of the Philippines, including mineral lands and minerals, to be property belonging to the State.107 As adopted in a republican system, the medieval concept of jura regalia is stripped of royal overtones and ownership of the land is vested in the State.108

Section 1, Article XIII, on Conservation and Utilization of Natural Resources, of the 1935 Constitution provided:

SECTION 1. All agricultural, timber, and mineral lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, and other natural resources of the Philippines belong to the State, and their disposition, exploitation, development, or utilization shall be limited to citizens of the Philippines, or to corporations or associations at least sixty per centum of the capital of which is owned by such citizens, subject to any existing right, grant, lease, or concession at the time of the inauguration of the Government established under this Constitution. Natural resources, with the exception of public agricultural land, shall not be alienated, and no license, concession, or lease for the exploitation, development, or utilization of any of the natural resources shall be granted for a period exceeding twenty-five years, except as to water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, in which cases beneficial use may be the measure and the limit of the grant.

The nationalization and conservation of the natural resources of the country was one of the fixed and dominating objectives of the 1935 Constitutional Convention.109 One delegate relates:

There was an overwhelming sentiment in the Convention in favor of the principle of state ownership of natural resources and the adoption of the Regalian doctrine. State ownership of natural resources was seen as a necessary starting point to secure recognition of the state's power to control their disposition, exploitation, development, or utilization. The delegates of the Constitutional Convention very well knew that the concept of State ownership of land and natural resources was introduced by the Spaniards, however, they were not certain whether it was continued and applied by the Americans. To remove all doubts, the Convention approved the provision in the Constitution affirming the Regalian doctrine.

The adoption of the principle of state ownership of the natural resources and of the Regalian doctrine was considered to be a necessary starting point for the plan of nationalizing and conserving the natural resources of the country. For with the establishment of the principle of state ownership of the natural resources, it would not be hard to secure the recognition of the power of the State to control their disposition, exploitation, development or utilization.110

The nationalization of the natural resources was intended (1) to insure their conservation for Filipino posterity; (2) to serve as an instrument of national defense, helping prevent the extension to the country of foreign control through peaceful economic penetration; and (3) to avoid making the Philippines a source of international conflicts with the consequent danger to its internal security and independence.111

The same Section 1, Article XIII also adopted the concession system, expressly permitting the State to grant licenses, concessions, or leases for the exploitation, development, or utilization of any of the natural resources. Grants, however, were limited to Filipinos or entities at least 60% of the capital of which is owned by Filipinos.lawph!l.ne+

The swell of nationalism that suffused the 1935 Constitution was radically diluted when on November 1946, the Parity Amendment, which came in the form of an "Ordinance Appended to the Constitution," was ratified in a plebiscite.112

The Amendment extended, from July 4, 1946 to July 3, 1974, the right to utilize and exploit our natural resources to citizens of the United States and business enterprises owned or controlled, directly or indirectly, by citizens of the United States:113

Notwithstanding the provision of section one, Article Thirteen, and section eight, Article Fourteen, of the foregoing Constitution, during the effectivity of the Executive Agreement entered into by the President of the Philippines with the President of the United States on the fourth of July, nineteen hundred and forty-six, pursuant to the provisions of Commonwealth Act Numbered Seven hundred and thirty-three, but in no case to extend beyond the third of July, nineteen hundred and seventy-four, the disposition, exploitation, development, and utilization of all agricultural, timber, and mineral lands of the public domain, waters, minerals, coals, petroleum, and other mineral oils, all forces and sources of potential energy, and other natural resources of the Philippines, and the operation of public utilities, shall, if open to any person, be open to citizens of the United States and to all forms of business enterprise owned or controlled, directly or indirectly, by citizens of the United States in the same manner as to, and under the same conditions imposed upon, citizens of the Philippines or corporations or associations owned or controlled by citizens of the Philippines.

The Parity Amendment was subsequently modified by the 1954 Revised Trade Agreement, also known as the Laurel-Langley Agreement, embodied in Republic Act No. 1355.114

THE PETROLEUM ACT OF 1949 AND THE CONCESSION SYSTEM

In the meantime, Republic Act No. 387,115 also known as the Petroleum Act of 1949, was approved on June 18, 1949.

The Petroleum Act of 1949 employed the concession system for the exploitation of the nation's petroleum resources. Among the kinds of concessions it sanctioned were exploration and exploitation concessions, which respectively granted to the concessionaire the exclusive right to explore for116 or develop117 petroleum within specified areas.

Concessions may be granted only to duly qualified persons118 who have sufficient finances, organization, resources, technical competence, and skills necessary to conduct the operations to be undertaken.119

Nevertheless, the Government reserved the right to undertake such work itself.120 This proceeded from the theory that all natural deposits or occurrences of petroleum or natural gas in public and/or private lands in the Philippines belong to the State.121 Exploration and exploitation concessions did not confer upon the concessionaire ownership over the petroleum lands and petroleum deposits.122 However, they did grant concessionaires the right to explore, develop, exploit, and utilize them for the period and under the conditions determined by the law.123

Concessions were granted at the complete risk of the concessionaire; the Government did not guarantee the existence of petroleum or undertake, in any case, title warranty.124

Concessionaires were required to submit information as maybe required by the Secretary of Agriculture and Natural Resources, including reports of geological and geophysical examinations, as well as production reports.125 Exploration126 and exploitation127 concessionaires were also required to submit work programs.lavvphi1.net

Exploitation concessionaires, in particular, were obliged to pay an annual exploitation tax,128 the object of which is to induce the concessionaire to actually produce petroleum, and not simply to sit on the concession without developing or exploiting it.129 These concessionaires were also bound to pay the Government royalty, which was not less than 12½% of the petroleum produced and saved, less that consumed in the operations of the concessionaire.130 Under Article 66, R.A. No. 387, the exploitation tax may be credited against the royalties so that if the concessionaire shall be actually producing enough oil, it would not actually be paying the exploitation tax.131

Failure to pay the annual exploitation tax for two consecutive years,132 or the royalty due to the Government within one year from the date it becomes due,133 constituted grounds for the cancellation of the concession. In case of delay in the payment of the taxes or royalty imposed by the law or by the concession, a surcharge of 1% per month is exacted until the same are paid.134

As a rule, title rights to all equipment and structures that the concessionaire placed on the land belong to the exploration or exploitation concessionaire.135 Upon termination of such concession, the concessionaire had a right to remove the same.136

The Secretary of Agriculture and Natural Resources was tasked with carrying out the provisions of the law, through the Director of Mines, who acted under the Secretary's immediate supervision and control.137 The Act granted the Secretary the authority to inspect any operation of the concessionaire and to examine all the books and accounts pertaining to operations or conditions related to payment of taxes and royalties.138

The same law authorized the Secretary to create an Administration Unit and a Technical Board.139 The Administration Unit was charged, inter alia, with the enforcement of the provisions of the law.140 The Technical Board had, among other functions, the duty to check on the performance of concessionaires and to determine whether the obligations imposed by the Act and its implementing regulations were being complied with.141

Victorio Mario A. Dimagiba, Chief Legal Officer of the Bureau of Energy Development, analyzed the benefits and drawbacks of the concession system insofar as it applied to the petroleum industry:

Advantages of Concession. Whether it emphasizes income tax or royalty, the most positive aspect of the concession system is that the State's financial involvement is virtually risk free and administration is simple and comparatively low in cost. Furthermore, if there is a competitive allocation of the resource leading to substantial bonuses and/or greater royalty coupled with a relatively high level of taxation, revenue accruing to the State under the concession system may compare favorably with other financial arrangements.

Disadvantages of Concession. There are, however, major negative aspects to this system. Because the Government's role in the traditional concession is passive, it is at a distinct disadvantage in managing and developing policy for the nation's petroleum resource. This is true for several reasons. First, even though most concession agreements contain covenants requiring diligence in operations and production, this establishes only an indirect and passive control of the host country in resource development. Second, and more importantly, the fact that the host country does not directly participate in resource management decisions inhibits its ability to train and employ its nationals in petroleum development. This factor could delay or prevent the country from effectively engaging in the development of its resources. Lastly, a direct role in management is usually necessary in order to obtain a knowledge of the international petroleum industry which is important to an appreciation of the host country's resources in relation to those of other countries.142

Other liabilities of the system have also been noted:

x x x there are functional implications which give the concessionaire great economic power arising from its exclusive equity holding. This includes, first, appropriation of the returns of the undertaking, subject to a modest royalty; second, exclusive management of the project; third, control of production of the natural resource, such as volume of production, expansion, research and development; and fourth, exclusive responsibility for downstream operations, like processing, marketing, and distribution. In short, even if nominally, the state is the sovereign and owner of the natural resource being exploited, it has been shorn of all elements of control over such natural resource because of the exclusive nature of the contractual regime of the concession. The concession system, investing as it does ownership of natural resources, constitutes a consistent inconsistency with the principle embodied in our Constitution that natural resources belong to the state and shall not be alienated, not to mention the fact that the concession was the bedrock of the colonial system in the exploitation of natural resources.143

Eventually, the concession system failed for reasons explained by Dimagiba:

Notwithstanding the good intentions of the Petroleum Act of 1949, the concession system could not have properly spurred sustained oil exploration activities in the country, since it assumed that such a capital-intensive, high risk venture could be successfully undertaken by a single individual or a small company. In effect, concessionaires' funds were easily exhausted. Moreover, since the concession system practically closed its doors to interested foreign investors, local capital was stretched to the limits. The old system also failed to consider the highly sophisticated technology and expertise required, which would be available only to multinational companies.144

A shift to a new regime for the development of natural resources thus seemed imminent.

PRESIDENTIAL DECREE NO. 87, THE 1973 CONSTITUTION AND THE SERVICE CONTRACT SYSTEM

The promulgation on December 31, 1972 of Presidential Decree No. 87,145 otherwise known as The Oil Exploration and Development Act of 1972 signaled such a transformation. P.D. No. 87 permitted the government to explore for and produce indigenous petroleum through "service contracts."146

"Service contracts" is a term that assumes varying meanings to different people, and it has carried many names in different countries, like "work contracts" in Indonesia, "concession agreements" in Africa, "production-sharing agreements" in the Middle East, and "participation agreements" in Latin America.147 A functional definition of "service contracts" in the Philippines is provided as follows:

A service contract is a contractual arrangement for engaging in the exploitation and development of petroleum, mineral, energy, land and other natural resources by which a government or its agency, or a private person granted a right or privilege by the government authorizes the other party (service contractor) to engage or participate in the exercise of such right or the enjoyment of the privilege, in that the latter provides financial or technical resources, undertakes the exploitation or production of a given resource, or directly manages the productive enterprise, operations of the exploration and exploitation of the resources or the disposition of marketing or resources.148

In a service contract under P.D. No. 87, service and technology are furnished by the service contractor for which it shall be entitled to the stipulated service fee.149 The contractor must be technically competent and financially capable to undertake the operations required in the contract.150

Financing is supposed to be provided by the Government to which all petroleum produced belongs.151 In case the Government is unable to finance petroleum exploration operations, the contractor may furnish services, technology and financing, and the proceeds of sale of the petroleum produced under the contract shall be the source of funds for payment of the service fee and the operating expenses due the contractor.152 The contractor shall undertake, manage and execute petroleum operations, subject to the government overseeing the management of the operations.153 The contractor provides all necessary services and technology and the requisite financing, performs the exploration work obligations, and assumes all exploration risks such that if no petroleum is produced, it will not be entitled to reimbursement.154 Once petroleum in commercial quantity is discovered, the contractor shall operate the field on behalf of the government.155

P.D. No. 87 prescribed minimum terms and conditions for every service contract.156 It also granted the contractor certain privileges, including exemption from taxes and payment of tariff duties,157 and permitted the repatriation of capital and retention of profits abroad.158

Ostensibly, the service contract system had certain advantages over the concession regime.159 It has been opined, though, that, in the Philippines, our concept of a service contract, at least in the petroleum industry, was basically a concession regime with a production-sharing element.160

On January 17, 1973, then President Ferdinand E. Marcos proclaimed the ratification of a new Constitution.161 Article XIV on the National Economy and Patrimony contained provisions similar to the 1935 Constitution with regard to Filipino participation in the nation's natural resources. Section 8, Article XIV thereof provides:

Sec. 8. All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries, wildlife, and other natural resources of the Philippines belong to the State. With the exception of agricultural, industrial or commercial, residential and resettlement lands of the public domain, natural resources shall not be alienated, and no license, concession, or lease for the exploration, development, exploitation, or utilization of any of the natural resources shall be granted for a period exceeding twenty-five years, renewable for not more than twenty-five years, except as to water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, in which cases beneficial use may be the measure and the limit of the grant.

While Section 9 of the same Article maintained the Filipino-only policy in the enjoyment of natural resources, it also allowed Filipinos, upon authority of the Batasang Pambansa, to enter into service contracts with any person or entity for the exploration or utilization of natural resources.

Sec. 9. The disposition, exploration, development, exploitation, or utilization of any of the natural resources of the Philippines shall be limited to citizens, or to corporations or associations at least sixty per centum of which is owned by such citizens. The Batasang Pambansa, in the national interest, may allow such citizens, corporations or associations to enter into service contracts for financial, technical, management, or other forms of assistance with any person or entity for the exploration, or utilization of any of the natural resources. Existing valid and binding service contracts for financial, technical, management, or other forms of assistance are hereby recognized as such. [Emphasis supplied.]

The concept of service contracts, according to one delegate, was borrowed from the methods followed by India, Pakistan and especially Indonesia in the exploration of petroleum and mineral oils.162 The provision allowing such contracts, according to another, was intended to "enhance the proper development of our natural resources since Filipino citizens lack the needed capital and technical know-how which are essential in the proper exploration, development and exploitation of the natural resources of the country."163

The original idea was to authorize the government, not private entities, to enter into service contracts with foreign entities.164 As finally approved, however, a citizen or private entity could be allowed by the National Assembly to enter into such service contract.165 The prior approval of the National Assembly was deemed sufficient to protect the national interest.166 Notably, none of the laws allowing service contracts were passed by the Batasang Pambansa. Indeed, all of them were enacted by presidential decree.

On March 13, 1973, shortly after the ratification of the new Constitution, the President promulgated Presidential Decree No. 151.167 The law allowed Filipino citizens or entities which have acquired lands of the public domain or which own, hold or control such lands to enter into service contracts for financial, technical, management or other forms of assistance with any foreign persons or entity for the exploration, development, exploitation or utilization of said lands.168

Presidential Decree No. 463,169 also known as The Mineral Resources Development Decree of 1974, was enacted on May 17, 1974. Section 44 of the decree, as amended, provided that a lessee of a mining claim may enter into a service contract with a qualified domestic or foreign contractor for the exploration, development and exploitation of his claims and the processing and marketing of the product thereof.

Presidential Decree No. 704170 (The Fisheries Decree of 1975), approved on May 16, 1975, allowed Filipinos engaged in commercial fishing to enter into contracts for financial, technical or other forms of assistance with any foreign person, corporation or entity for the production, storage, marketing and processing of fish and fishery/aquatic products.171

Presidential Decree No. 705172 (The Revised Forestry Code of the Philippines), approved on May 19, 1975, allowed "forest products licensees, lessees, or permitees to enter into service contracts for financial, technical, management, or other forms of assistance . . . with any foreign person or entity for the exploration, development, exploitation or utilization of the forest resources."173

Yet another law allowing service contracts, this time for geothermal resources, was Presidential Decree No. 1442,174 which was signed into law on June 11, 1978. Section 1 thereof authorized the Government to enter into service contracts for the exploration, exploitation and development of geothermal resources with a foreign contractor who must be technically and financially capable of undertaking the operations required in the service contract.

Thus, virtually the entire range of the country's natural resources –from petroleum and minerals to geothermal energy, from public lands and forest resources to fishery products – was well covered by apparent legal authority to engage in the direct participation or involvement of foreign persons or corporations (otherwise disqualified) in the exploration and utilization of natural resources through service contracts.175

THE 1987 CONSTITUTION AND TECHNICAL OR FINANCIAL ASSISTANCE AGREEMENTS

After the February 1986 Edsa Revolution, Corazon C. Aquino took the reins of power under a revolutionary government. On March 25, 1986, President Aquino issued Proclamation No. 3,176 promulgating the Provisional Constitution, more popularly referred to as the Freedom Constitution. By authority of the same Proclamation, the President created a Constitutional Commission (CONCOM) to draft a new constitution, which took effect on the date of its ratification on February 2, 1987.177

The 1987 Constitution retained the Regalian doctrine. The first sentence of Section 2, Article XII states: "All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State."

Like the 1935 and 1973 Constitutions before it, the 1987 Constitution, in the second sentence of the same provision, prohibits the alienation of natural resources, except agricultural lands.

The third sentence of the same paragraph is new: "The exploration, development and utilization of natural resources shall be under the full control and supervision of the State." The constitutional policy of the State's "full control and supervision" over natural resources proceeds from the concept of jura regalia, as well as the recognition of the importance of the country's natural resources, not only for national economic development, but also for its security and national defense.178 Under this provision, the State assumes "a more dynamic role" in the exploration, development and utilization of natural resources.179

Conspicuously absent in Section 2 is the provision in the 1935 and 1973 Constitutions authorizing the State to grant licenses, concessions, or leases for the exploration, exploitation, development, or utilization of natural resources. By such omission, the utilization of inalienable lands of public domain through "license, concession or lease" is no longer allowed under the 1987 Constitution.180

Having omitted the provision on the concession system, Section 2 proceeded to introduce "unfamiliar language":181

The State may directly undertake such activities or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens.

Consonant with the State's "full supervision and control" over natural resources, Section 2 offers the State two "options."182 One, the State may directly undertake these activities itself; or two, it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or entities at least 60% of whose capital is owned by such citizens.

A third option is found in the third paragraph of the same section:

The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fish-workers in rivers, lakes, bays, and lagoons.

While the second and third options are limited only to Filipino citizens or, in the case of the former, to corporations or associations at least 60% of the capital of which is owned by Filipinos, a fourth allows the participation of foreign-owned corporations. The fourth and fifth paragraphs of Section 2 provide:

The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources.

The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution.

Although Section 2 sanctions the participation of foreign-owned corporations in the exploration, development, and utilization of natural resources, it imposes certain limitations or conditions to agreements with such corporations.

First, the parties to FTAAs. Only the President, in behalf of the State, may enter into these agreements, and only with corporations. By contrast, under the 1973 Constitution, a Filipino citizen, corporation or association may enter into a service contract with a "foreign person or entity."

Second, the size of the activities: only large-scale exploration, development, and utilization is allowed. The term "large-scale usually refers to very capital-intensive activities."183

Third, the natural resources subject of the activities is restricted to minerals, petroleum and other mineral oils, the intent being to limit service contracts to those areas where Filipino capital may not be sufficient.184

Fourth, consistency with the provisions of statute. The agreements must be in accordance with the terms and conditions provided by law.

Fifth, Section 2 prescribes certain standards for entering into such agreements. The agreements must be based on real contributions to economic growth and general welfare of the country.

Sixth, the agreements must contain rudimentary stipulations for the promotion of the development and use of local scientific and technical resources.

Seventh, the notification requirement. The President shall notify Congress of every financial or technical assistance agreement entered into within thirty days from its execution.

Finally, the scope of the agreements. While the 1973 Constitution referred to "service contracts for financial, technical, management, or other forms of assistance" the 1987 Constitution provides for "agreements. . . involving either financial or technical assistance." It bears noting that the phrases "service contracts" and "management or other forms of assistance" in the earlier constitution have been omitted.

By virtue of her legislative powers under the Provisional Constitution,185 President Aquino, on July 10, 1987, signed into law E.O. No. 211 prescribing the interim procedures in the processing and approval of applications for the exploration, development and utilization of minerals. The omission in the 1987 Constitution of the term "service contracts" notwithstanding, the said E.O. still referred to them in Section 2 thereof:

Sec. 2. Applications for the exploration, development and utilization of mineral resources, including renewal applications and applications for approval of operating agreements and mining service contracts, shall be accepted and processed and may be approved x x x. [Emphasis supplied.]

The same law provided in its Section 3 that the "processing, evaluation and approval of all mining applications . . . operating agreements and service contracts . . . shall be governed by Presidential Decree No. 463, as amended, other existing mining laws, and their implementing rules and regulations. . . ."

As earlier stated, on the 25th also of July 1987, the President issued E.O. No. 279 by authority of which the subject WMCP FTAA was executed on March 30, 1995.

On March 3, 1995, President Ramos signed into law R.A. No. 7942. Section 15 thereof declares that the Act "shall govern the exploration, development, utilization, and processing of all mineral resources." Such declaration notwithstanding, R.A. No. 7942 does not actually cover all the modes through which the State may undertake the exploration, development, and utilization of natural resources.

The State, being the owner of the natural resources, is accorded the primary power and responsibility in the exploration, development and utilization thereof. As such, it may undertake these activities through four modes:

The State may directly undertake such activities.

(2) The State may enter into co-production, joint venture or production-sharing agreements with Filipino citizens or qualified corporations.

(3) Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens.

(4) For the large-scale exploration, development and utilization of minerals, petroleum and other mineral oils, the President may enter into agreements with foreign-owned corporations involving technical or financial assistance.186

Except to charge the Mines and Geosciences Bureau of the DENR with performing researches and surveys,187 and a passing mention of government-owned or controlled corporations,188 R.A. No. 7942 does not specify how the State should go about the first mode. The third mode, on the other hand, is governed by Republic Act No. 7076189 (the People's Small-Scale Mining Act of 1991) and other pertinent laws.190 R.A. No. 7942 primarily concerns itself with the second and fourth modes.

Mineral production sharing, co-production and joint venture agreements are collectively classified by R.A. No. 7942 as "mineral agreements."191 The Government participates the least in a mineral production sharing agreement (MPSA). In an MPSA, the Government grants the contractor192 the exclusive right to conduct mining operations within a contract area193 and shares in the gross output.194 The MPSA contractor provides the financing, technology, management and personnel necessary for the agreement's implementation.195 The total government share in an MPSA is the excise tax on mineral products under Republic Act No. 7729,196 amending Section 151(a) of the National Internal Revenue Code, as amended.197

In a co-production agreement (CA),198 the Government provides inputs to the mining operations other than the mineral resource,199 while in a joint venture agreement (JVA), where the Government enjoys the greatest participation, the Government and the JVA contractor organize a company with both parties having equity shares.200 Aside from earnings in equity, the Government in a JVA is also entitled to a share in the gross output.201 The Government may enter into a CA202 or JVA203 with one or more contractors. The Government's share in a CA or JVA is set out in Section 81 of the law:

The share of the Government in co-production and joint venture agreements shall be negotiated by the Government and the contractor taking into consideration the: (a) capital investment of the project, (b) the risks involved, (c) contribution of the project to the economy, and (d) other factors that will provide for a fair and equitable sharing between the Government and the contractor. The Government shall also be entitled to compensations for its other contributions which shall be agreed upon by the parties, and shall consist, among other things, the contractor's income tax, excise tax, special allowance, withholding tax due from the contractor's foreign stockholders arising from dividend or interest payments to the said foreign stockholders, in case of a foreign national and all such other taxes, duties and fees as provided for under existing laws.

All mineral agreements grant the respective contractors the exclusive right to conduct mining operations and to extract all mineral resources found in the contract area.204 A "qualified person" may enter into any of the mineral agreements with the Government.205 A "qualified person" is

any citizen of the Philippines with capacity to contract, or a corporation, partnership, association, or cooperative organized or authorized for the purpose of engaging in mining, with technical and financial capability to undertake mineral resources development and duly registered in accordance with law at least sixty per centum (60%) of the capital of which is owned by citizens of the Philippines x x x.206

The fourth mode involves "financial or technical assistance agreements." An FTAA is defined as "a contract involving financial or technical assistance for large-scale exploration, development, and utilization of natural resources."207 Any qualified person with technical and financial capability to undertake large-scale exploration, development, and utilization of natural resources in the Philippines may enter into such agreement directly with the Government through the DENR.208 For the purpose of granting an FTAA, a legally organized foreign-owned corporation (any corporation, partnership, association, or cooperative duly registered in accordance with law in which less than 50% of the capital is owned by Filipino citizens)209 is deemed a "qualified person."210

Other than the difference in contractors' qualifications, the principal distinction between mineral agreements and FTAAs is the maximum contract area to which a qualified person may hold or be granted.211 "Large-scale" under R.A. No. 7942 is determined by the size of the contract area, as opposed to the amount invested (US $50,000,000.00), which was the standard under E.O. 279.

Like a CA or a JVA, an FTAA is subject to negotiation.212 The Government's contributions, in the form of taxes, in an FTAA is identical to its contributions in the two mineral agreements, save that in an FTAA:

The collection of Government share in financial or technical assistance agreement shall commence after the financial or technical assistance agreement contractor has fully recovered its pre-operating expenses, exploration, and development expenditures, inclusive.213

III

Having examined the history of the constitutional provision and statutes enacted pursuant thereto, a consideration of the substantive issues presented by the petition is now in order.

THE EFFECTIVITY OF EXECUTIVE ORDER NO. 279

Petitioners argue that E.O. No. 279, the law in force when the WMC FTAA was executed, did not come into effect.

E.O. No. 279 was signed into law by then President Aquino on July 25, 1987, two days before the opening of Congress on July 27, 1987.214 Section 8 of the E.O. states that the same "shall take effect immediately." This provision, according to petitioners, runs counter to Section 1 of E.O. No. 200,215 which provides:

SECTION 1. Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided.216 [Emphasis supplied.]

On that premise, petitioners contend that E.O. No. 279 could have only taken effect fifteen days after its publication at which time Congress had already convened and the President's power to legislate had ceased.

Respondents, on the other hand, counter that the validity of E.O. No. 279 was settled in Miners Association of the Philippines v. Factoran, supra. This is of course incorrect for the issue in Miners Association was not the validity of E.O. No. 279 but that of DAO Nos. 57 and 82 which were issued pursuant thereto.

Nevertheless, petitioners' contentions have no merit.

It bears noting that there is nothing in E.O. No. 200 that prevents a law from taking effect on a date other than – even before – the 15-day period after its publication. Where a law provides for its own date of effectivity, such date prevails over that prescribed by E.O. No. 200. Indeed, this is the very essence of the phrase "unless it is otherwise provided" in Section 1 thereof. Section 1, E.O. No. 200, therefore, applies only when a statute does not provide for its own date of effectivity.

What is mandatory under E.O. No. 200, and what due process requires, as this Court held in Tañada v. Tuvera,217 is the publication of the law for without such notice and publication, there would be no basis for the application of the maxim "ignorantia legis n[eminem] excusat." It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law of which he had no notice whatsoever, not even a constructive one.

While the effectivity clause of E.O. No. 279 does not require its publication, it is not a ground for its invalidation since the Constitution, being "the fundamental, paramount and supreme law of the nation," is deemed written in the law.218 Hence, the due process clause,219 which, so Tañada held, mandates the publication of statutes, is read into Section 8 of E.O. No. 279. Additionally, Section 1 of E.O. No. 200 which provides for publication "either in the Official Gazette or in a newspaper of general circulation in the Philippines," finds suppletory application. It is significant to note that E.O. No. 279 was actually published in the Official Gazette220 on August 3, 1987.

From a reading then of Section 8 of E.O. No. 279, Section 1 of E.O. No. 200, and Tañada v. Tuvera, this Court holds that E.O. No. 279 became effective immediately upon its publication in the Official Gazette on August 3, 1987.

That such effectivity took place after the convening of the first Congress is irrelevant. At the time President Aquino issued E.O. No. 279 on July 25, 1987, she was still validly exercising legislative powers under the Provisional Constitution.221 Article XVIII (Transitory Provisions) of the 1987 Constitution explicitly states:

Sec. 6. The incumbent President shall continue to exercise legislative powers until the first Congress is convened.

The convening of the first Congress merely precluded the exercise of legislative powers by President Aquino; it did not prevent the effectivity of laws she had previously enacted.

There can be no question, therefore, that E.O. No. 279 is an effective, and a validly enacted, statute.

THE CONSTITUTIONALITY OF THE WMCP FTAA

Petitioners submit that, in accordance with the text of Section 2, Article XII of the Constitution, FTAAs should be limited to "technical or financial assistance" only. They observe, however, that, contrary to the language of the Constitution, the WMCP FTAA allows WMCP, a fully foreign-owned mining corporation, to extend more than mere financial or technical assistance to the State, for it permits WMCP to manage and operate every aspect of the mining activity. 222

Petitioners' submission is well-taken. It is a cardinal rule in the interpretation of constitutions that the instrument must be so construed as to give effect to the intention of the people who adopted it.223 This intention is to be sought in the constitution itself, and the apparent meaning of the words is to be taken as expressing it, except in cases where that assumption would lead to absurdity, ambiguity, or contradiction.224 What the Constitution says according to the text of the provision, therefore, compels acceptance and negates the power of the courts to alter it, based on the postulate that the framers and the people mean what they say.225 Accordingly, following the literal text of the Constitution, assistance accorded by foreign-owned corporations in the large-scale exploration, development, and utilization of petroleum, minerals and mineral oils should be limited to "technical" or "financial" assistance only.

WMCP nevertheless submits that the word "technical" in the fourth paragraph of Section 2 of E.O. No. 279 encompasses a "broad number of possible services," perhaps, "scientific and/or technological in basis."226 It thus posits that it may also well include "the area of management or operations . . . so long as such assistance requires specialized knowledge or skills, and are related to the exploration, development and utilization of mineral resources."227

This Court is not persuaded. As priorly pointed out, the phrase "management or other forms of assistance" in the 1973 Constitution was deleted in the 1987 Constitution, which allows only "technical or financial assistance." Casus omisus pro omisso habendus est. A person, object or thing omitted from an enumeration must be held to have been omitted intentionally.228 As will be shown later, the management or operation of mining activities by foreign contractors, which is the primary feature of service contracts, was precisely the evil that the drafters of the 1987 Constitution sought to eradicate.

Respondents insist that "agreements involving technical or financial assistance" is just another term for service contracts. They contend that the proceedings of the CONCOM indicate "that although the terminology 'service contract' was avoided [by the Constitution], the concept it represented was not." They add that "[t]he concept is embodied in the phrase 'agreements involving financial or technical assistance.'"229 And point out how members of the CONCOM referred to these agreements as "service contracts." For instance:

SR. TAN. Am I correct in thinking that the only difference between these future service contracts and the past service contracts under Mr. Marcos is the general law to be enacted by the legislature and the notification of Congress by the President? That is the only difference, is it not?

MR. VILLEGAS. That is right.

SR. TAN. So those are the safeguards[?]

MR. VILLEGAS. Yes. There was no law at all governing service contracts before.

SR. TAN. Thank you, Madam President.230 [Emphasis supplied.]

WMCP also cites the following statements of Commissioners Gascon, Garcia, Nolledo and Tadeo who alluded to service contracts as they explained their respective votes in the approval of the draft Article:

MR. GASCON. Mr. Presiding Officer, I vote no primarily because of two reasons: One, the provision on service contracts. I felt that if we would constitutionalize any provision on service contracts, this should always be with the concurrence of Congress and not guided only by a general law to be promulgated by Congress. x x x.231 [Emphasis supplied.]

x x x.

MR. GARCIA. Thank you.

I vote no. x x x.

Service contracts are given constitutional legitimization in Section 3, even when they have been proven to be inimical to the interests of the nation, providing as they do the legal loophole for the exploitation of our natural resources for the benefit of foreign interests. They constitute a serious negation of Filipino control on the use and disposition of the nation's natural resources, especially with regard to those which are nonrenewable.232 [Emphasis supplied.]

x x x

MR. NOLLEDO. While there are objectionable provisions in the Article on National Economy and Patrimony, going over said provisions meticulously, setting aside prejudice and personalities will reveal that the article contains a balanced set of provisions. I hope the forthcoming Congress will implement such provisions taking into account that Filipinos should have real control over our economy and patrimony, and if foreign equity is permitted, the same must be subordinated to the imperative demands of the national interest.

x x x.

It is also my understanding that service contracts involving foreign corporations or entities are resorted to only when no Filipino enterprise or Filipino-controlled enterprise could possibly undertake the exploration or exploitation of our natural resources and that compensation under such contracts cannot and should not equal what should pertain to ownership of capital. In other words, the service contract should not be an instrument to circumvent the basic provision, that the exploration and exploitation of natural resources should be truly for the benefit of Filipinos.

Thank you, and I vote yes.233 [Emphasis supplied.]

x x x.

MR. TADEO. Nais ko lamang ipaliwanag ang aking boto.

Matapos suriin ang kalagayan ng Pilipinas, ang saligang suliranin, pangunahin ang salitang "imperyalismo." Ang ibig sabihin nito ay ang sistema ng lipunang pinaghaharian ng iilang monopolyong kapitalista at ang salitang "imperyalismo" ay buhay na buhay sa National Economy and Patrimony na nating ginawa. Sa pamamagitan ng salitang "based on," naroroon na ang free trade sapagkat tayo ay mananatiling tagapagluwas ng hilaw na sangkap at tagaangkat ng yaring produkto. Pangalawa, naroroon pa rin ang parity rights, ang service contract, ang 60-40 equity sa natural resources. Habang naghihirap ang sambayanang Pilipino, ginagalugad naman ng mga dayuhan ang ating likas na yaman. Kailan man ang Article on National Economy and Patrimony ay hindi nagpaalis sa pagkaalipin ng ating ekonomiya sa kamay ng mga dayuhan. Ang solusyon sa suliranin ng bansa ay dalawa lamang: ang pagpapatupad ng tunay na reporma sa lupa at ang national industrialization. Ito ang tinatawag naming pagsikat ng araw sa Silangan. Ngunit ang mga landlords and big businessmen at ang mga komprador ay nagsasabi na ang free trade na ito, ang kahulugan para sa amin, ay ipinipilit sa ating sambayanan na ang araw ay sisikat sa Kanluran. Kailan man hindi puwedeng sumikat ang araw sa Kanluran. I vote no.234

[Emphasis supplied.]

This Court is likewise not persuaded.

As earlier noted, the phrase "service contracts" has been deleted in the 1987 Constitution's Article on National Economy and Patrimony. If the CONCOM intended to retain the concept of service contracts under the 1973 Constitution, it could have simply adopted the old terminology ("service contracts") instead of employing new and unfamiliar terms ("agreements . . . involving either technical or financial assistance"). Such a difference between the language of a provision in a revised constitution and that of a similar provision in the preceding constitution is viewed as indicative of a difference in purpose.235 If, as respondents suggest, the concept of "technical or financial assistance" agreements is identical to that of "service contracts," the CONCOM would not have bothered to fit the same dog with a new collar. To uphold respondents' theory would reduce the first to a mere euphemism for the second and render the change in phraseology meaningless.

An examination of the reason behind the change confirms that technical or financial assistance agreements are not synonymous to service contracts.

[T]he Court in construing a Constitution should bear in mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in light of the history of the times, and the condition and circumstances under which the Constitution was framed. The object is to ascertain the reason which induced the framers of the Constitution to enact the particular provision and the purpose sought to be accomplished thereby, in order to construe the whole as to make the words consonant to that reason and calculated to effect that purpose.236

As the following question of Commissioner Quesada and Commissioner Villegas' answer shows the drafters intended to do away with service contracts which were used to circumvent the capitalization (60%-40%) requirement:

MS. QUESADA. The 1973 Constitution used the words "service contracts." In this particular Section 3, is there a safeguard against the possible control of foreign interests if the Filipinos go into coproduction with them?

MR. VILLEGAS. Yes. In fact, the deletion of the phrase "service contracts" was our first attempt to avoid some of the abuses in the past regime in the use of service contracts to go around the 60-40 arrangement. The safeguard that has been introduced – and this, of course can be refined – is found in Section 3, lines 25 to 30, where Congress will have to concur with the President on any agreement entered into between a foreign-owned corporation and the government involving technical or financial assistance for large-scale exploration, development and utilization of natural resources.237 [Emphasis supplied.]

In a subsequent discussion, Commissioner Villegas allayed the fears of Commissioner Quesada regarding the participation of foreign interests in Philippine natural resources, which was supposed to be restricted to Filipinos.

MS. QUESADA. Another point of clarification is the phrase "and utilization of natural resources shall be under the full control and supervision of the State." In the 1973 Constitution, this was limited to citizens of the Philippines; but it was removed and substituted by "shall be under the full control and supervision of the State." Was the concept changed so that these particular resources would be limited to citizens of the Philippines? Or would these resources only be under the full control and supervision of the State; meaning, noncitizens would have access to these natural resources? Is that the understanding?

MR. VILLEGAS. No, Mr. Vice-President, if the Commissioner reads the next sentence, it states:

Such activities may be directly undertaken by the State, or it may enter into co-production, joint venture, production-sharing agreements with Filipino citizens.

So we are still limiting it only to Filipino citizens.

x x x.

MS. QUESADA. Going back to Section 3, the section suggests that:

The exploration, development, and utilization of natural resources… may be directly undertaken by the State, or it may enter into co-production, joint venture or production-sharing agreement with . . . corporations or associations at least sixty per cent of whose voting stock or controlling interest is owned by such citizens.

Lines 25 to 30, on the other hand, suggest that in the large-scale exploration, development and utilization of natural resources, the President with the concurrence of Congress may enter into agreements with foreign-owned corporations even for technical or financial assistance.

I wonder if this part of Section 3 contradicts the second part. I am raising this point for fear that foreign investors will use their enormous capital resources to facilitate the actual exploitation or exploration, development and effective disposition of our natural resources to the detriment of Filipino investors. I am not saying that we should not consider borrowing money from foreign sources. What I refer to is that foreign interest should be allowed to participate only to the extent that they lend us money and give us technical assistance with the appropriate government permit. In this way, we can insure the enjoyment of our natural resources by our own people.

MR. VILLEGAS. Actually, the second provision about the President does not permit foreign investors to participate. It is only technical or financial assistance – they do not own anything – but on conditions that have to be determined by law with the concurrence of Congress. So, it is very restrictive.

If the Commissioner will remember, this removes the possibility for service contracts which we said yesterday were avenues used in the previous regime to go around the 60-40 requirement.238 [Emphasis supplied.]

The present Chief Justice, then a member of the CONCOM, also referred to this limitation in scope in proposing an amendment to the 60-40 requirement:

MR. DAVIDE. May I be allowed to explain the proposal?

MR. MAAMBONG. Subject to the three-minute rule, Madam President.

MR. DAVIDE. It will not take three minutes.

The Commission had just approved the Preamble. In the Preamble we clearly stated that the Filipino people are sovereign and that one of the objectives for the creation or establishment of a government is to conserve and develop the national patrimony. The implication is that the national patrimony or our natural resources are exclusively reserved for the Filipino people. No alien must be allowed to enjoy, exploit and develop our natural resources. As a matter of fact, that principle proceeds from the fact that our natural resources are gifts from God to the Filipino people and it would be a breach of that special blessing from God if we will allow aliens to exploit our natural resources.

I voted in favor of the Jamir proposal because it is not really exploitation that we granted to the alien corporations but only for them to render financial or technical assistance. It is not for them to enjoy our natural resources. Madam President, our natural resources are depleting; our population is increasing by leaps and bounds. Fifty years from now, if we will allow these aliens to exploit our natural resources, there will be no more natural resources for the next generations of Filipinos. It may last long if we will begin now. Since 1935 the aliens have been allowed to enjoy to a certain extent the exploitation of our natural resources, and we became victims of foreign dominance and control. The aliens are interested in coming to the Philippines because they would like to enjoy the bounty of nature exclusively intended for Filipinos by God.

And so I appeal to all, for the sake of the future generations, that if we have to pray in the Preamble "to preserve and develop the national patrimony for the sovereign Filipino people and for the generations to come," we must at this time decide once and for all that our natural resources must be reserved only to Filipino citizens.

Thank you.239 [Emphasis supplied.]

The opinion of another member of the CONCOM is persuasive240 and leaves no doubt as to the intention of the framers to eliminate service contracts altogether. He writes:

Paragraph 4 of Section 2 specifies large-scale, capital-intensive, highly technological undertakings for which the President may enter into contracts with foreign-owned corporations, and enunciates strict conditions that should govern such contracts. x x x.

This provision balances the need for foreign capital and technology with the need to maintain the national sovereignty. It recognizes the fact that as long as Filipinos can formulate their own terms in their own territory, there is no danger of relinquishing sovereignty to foreign interests.

Are service contracts allowed under the new Constitution? No. Under the new Constitution, foreign investors (fully alien-owned) can NOT participate in Filipino enterprises except to provide: (1) Technical Assistance for highly technical enterprises; and (2) Financial Assistance for large-scale enterprises.

The intent of this provision, as well as other provisions on foreign investments, is to prevent the practice (prevalent in the Marcos government) of skirting the 60/40 equation using the cover of service contracts.241 [Emphasis supplied.]

Furthermore, it appears that Proposed Resolution No. 496,242 which was the draft Article on National Economy and Patrimony, adopted the concept of "agreements . . . involving either technical or financial assistance" contained in the "Draft of the 1986 U.P. Law Constitution Project" (U.P. Law draft) which was taken into consideration during the deliberation of the CONCOM.243 The former, as well as Article XII, as adopted, employed the same terminology, as the comparative table below shows:

DRAFT OF THE UP LAW CONSTITUTION PROJECT PROPOSED RESOLUTION NO. 496 OF THE CONSTITUTIONAL COMMISSION

ARTICLE XII OF THE 1987 CONSTITUTION

Sec. 1. All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries, flora and fauna and other natural resources of the Philippines are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development and utilization of natural resources shall be under the full control and supervision of the State. Such activities may be directly undertaken by the state, or it may enter into co-production, joint venture, production sharing agreements with Filipino citizens or corporations or associations sixty per cent of whose voting stock or controlling interest is owned by such citizens for a period of not more than twenty-five years, renewable for not more than twenty-five years and under such terms and conditions as may be provided by law. In case as to water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.

The National Assembly may by law allow small scale utilization of natural resources by Filipino citizens.

The National Assembly, may, by two-thirds vote of all its members by special law provide the terms and conditions under which a foreign-owned corporation may enter into agreements with the government involving either technical or financial assistance for large-scale exploration, development, or utilization of natural resources. [Emphasis supplied.]

Sec. 3. All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries, forests, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. Such activities may be directly undertaken by the State, or it may enter into co-production, joint venture, production-sharing agreements with Filipino citizens or corporations or associations at least sixty per cent of whose voting stock or controlling interest is owned by such citizens. Such agreements shall be for a period of twenty-five years, renewable for not more than twenty-five years, and under such term and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries or industrial uses other than the development for water power, beneficial use may be the measure and limit of the grant.

The Congress may by law allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming in rivers, lakes, bays, and lagoons.

The President with the concurrence of Congress, by special law, shall provide the terms and conditions under which a foreign-owned corporation may enter into agreements with the government involving either technical or financial assistance for large-scale exploration, development, and utilization of natural resources. [Emphasis supplied.]

Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In case of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.

The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fish-workers in rivers, lakes, bays, and lagoons.

The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources. [Emphasis supplied.]

The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution.

The insights of the proponents of the U.P. Law draft are, therefore, instructive in interpreting the phrase "technical or financial assistance."

In his position paper entitled Service Contracts: Old Wine in New Bottles?, Professor Pacifico A. Agabin, who was a member of the working group that prepared the U.P. Law draft, criticized service contracts for they "lodge exclusive management and control of the enterprise to the service contractor, which is reminiscent of the old concession regime. Thus, notwithstanding the provision of the Constitution that natural resources belong to the State, and that these shall not be alienated, the service contract system renders nugatory the constitutional provisions cited."244 He elaborates:

Looking at the Philippine model, we can discern the following vestiges of the concession regime, thus:

1. Bidding of a selected area, or leasing the choice of the area to the interested party and then negotiating the terms and conditions of the contract; (Sec. 5, P.D. 87)

2. Management of the enterprise vested on the contractor, including operation of the field if petroleum is discovered; (Sec. 8, P.D. 87)

3. Control of production and other matters such as expansion and development; (Sec. 8)

4. Responsibility for downstream operations – marketing, distribution, and processing may be with the contractor (Sec. 8);

5. Ownership of equipment, machinery, fixed assets, and other properties remain with contractor (Sec. 12, P.D. 87);

6. Repatriation of capital and retention of profits abroad guaranteed to the contractor (Sec. 13, P.D. 87); and

7. While title to the petroleum discovered may nominally be in the name of the government, the contractor has almost unfettered control over its disposition and sale, and even the domestic requirements of the country is relegated to a pro rata basis (Sec. 8).

In short, our version of the service contract is just a rehash of the old concession regime x x x. Some people have pulled an old rabbit out of a magician's hat, and foisted it upon us as a new and different animal.

The service contract as we know it here is antithetical to the principle of sovereignty over our natural resources restated in the same article of the [1973] Constitution containing the provision for service contracts. If the service contractor happens to be a foreign corporation, the contract would also run counter to the constitutional provision on nationalization or Filipinization, of the exploitation of our natural resources.245 [Emphasis supplied. Underscoring in the original.]

Professor Merlin M. Magallona, also a member of the working group, was harsher in his reproach of the system:

x x x the nationalistic phraseology of the 1935 [Constitution] was retained by the [1973] Charter, but the essence of nationalism was reduced to hollow rhetoric. The 1973 Charter still provided that the exploitation or development of the country's natural resources be limited to Filipino citizens or corporations owned or controlled by them. However, the martial-law Constitution allowed them, once these resources are in their name, to enter into service contracts with foreign investors for financial, technical, management, or other forms of assistance. Since foreign investors have the capital resources, the actual exploitation and development, as well as the effective disposition, of the country's natural resources, would be under their direction, and control, relegating the Filipino investors to the role of second-rate partners in joint ventures.

Through the instrumentality of the service contract, the 1973 Constitution had legitimized at the highest level of state policy that which was prohibited under the 1973 Constitution, namely: the exploitation of the country's natural resources by foreign nationals. The drastic impact of [this] constitutional change becomes more pronounced when it is considered that the active party to any service contract may be a corporation wholly owned by foreign interests. In such a case, the citizenship requirement is completely set aside, permitting foreign corporations to obtain actual possession, control, and [enjoyment] of the country's natural resources.246 [Emphasis supplied.]

Accordingly, Professor Agabin recommends that:

Recognizing the service contract for what it is, we have to expunge it from the Constitution and reaffirm ownership over our natural resources. That is the only way we can exercise effective control over our natural resources.

This should not mean complete isolation of the country's natural resources from foreign investment. Other contract forms which are less derogatory to our sovereignty and control over natural resources – like technical assistance agreements, financial assistance [agreements], co-production agreements, joint ventures, production-sharing – could still be utilized and adopted without violating constitutional provisions. In other words, we can adopt contract forms which recognize and assert our sovereignty and ownership over natural resources, and where the foreign entity is just a pure contractor instead of the beneficial owner of our economic resources.247 [Emphasis supplied.]

Still another member of the working group, Professor Eduardo Labitag, proposed that:

2. Service contracts as practiced under the 1973 Constitution should be discouraged, instead the government may be allowed, subject to authorization by special law passed by an extraordinary majority to enter into either technical or financial assistance. This is justified by the fact that as presently worded in the 1973 Constitution, a service contract gives full control over the contract area to the service contractor, for him to work, manage and dispose of the proceeds or production. It was a subterfuge to get around the nationality requirement of the constitution.248 [Emphasis supplied.]

In the annotations on the proposed Article on National Economy and Patrimony, the U.P. Law draft summarized the rationale therefor, thus:

5. The last paragraph is a modification of the service contract provision found in Section 9, Article XIV of the 1973 Constitution as amended. This 1973 provision shattered the framework of nationalism in our fundamental law (see Magallona, "Nationalism and its Subversion in the Constitution"). Through the service contract, the 1973 Constitution had legitimized that which was prohibited under the 1935 constitution—the exploitation of the country's natural resources by foreign nationals. Through the service contract, acts prohibited by the Anti-Dummy Law were recognized as legitimate arrangements. Service contracts lodge exclusive management and control of the enterprise to the service contractor, not unlike the old concession regime where the concessionaire had complete control over the country's natural resources, having been given exclusive and plenary rights to exploit a particular resource and, in effect, having been assured of ownership of that resource at the point of extraction (see Agabin, "Service Contracts: Old Wine in New Bottles"). Service contracts, hence, are antithetical to the principle of sovereignty over our natural resources, as well as the constitutional provision on nationalization or Filipinization of the exploitation of our natural resources.

Under the proposed provision, only technical assistance or financial assistance agreements may be entered into, and only for large-scale activities. These are contract forms which recognize and assert our sovereignty and ownership over natural resources since the foreign entity is just a pure contractor and not a beneficial owner of our economic resources. The proposal recognizes the need for capital and technology to develop our natural resources without sacrificing our sovereignty and control over such resources by the safeguard of a special law which requires two-thirds vote of all the members of the Legislature. This will ensure that such agreements will be debated upon exhaustively and thoroughly in the National Assembly to avert prejudice to the nation.249 [Emphasis supplied.]

The U.P. Law draft proponents viewed service contracts under the 1973 Constitution as grants of beneficial ownership of the country's natural resources to foreign owned corporations. While, in theory, the State owns these natural resources – and Filipino citizens, their beneficiaries – service contracts actually vested foreigners with the right to dispose, explore for, develop, exploit, and utilize the same. Foreigners, not Filipinos, became the beneficiaries of Philippine natural resources. This arrangement is clearly incompatible with the constitutional ideal of nationalization of natural resources, with the Regalian doctrine, and on a broader perspective, with Philippine sovereignty.

The proponents nevertheless acknowledged the need for capital and technical know-how in the large-scale exploitation, development and utilization of natural resources – the second paragraph of the proposed draft itself being an admission of such scarcity. Hence, they recommended a compromise to reconcile the nationalistic provisions dating back to the 1935 Constitution, which reserved all natural resources exclusively to Filipinos, and the more liberal 1973 Constitution, which allowed foreigners to participate in these resources through service contracts. Such a compromise called for the adoption of a new system in the exploration, development, and utilization of natural resources in the form of technical agreements or financial agreements which, necessarily, are distinct concepts from service contracts.

The replacement of "service contracts" with "agreements… involving either technical or financial assistance," as well as the deletion of the phrase "management or other forms of assistance," assumes greater significance when note is taken that the U.P. Law draft proposed other equally crucial changes that were obviously heeded by the CONCOM. These include the abrogation of the concession system and the adoption of new "options" for the State in the exploration, development, and utilization of natural resources. The proponents deemed these changes to be more consistent with the State's ownership of, and its "full control and supervision" (a phrase also employed by the framers) over, such resources. The Project explained:

3. In line with the State ownership of natural resources, the State should take a more active role in the exploration, development, and utilization of natural resources, than the present practice of granting licenses, concessions, or leases – hence the provision that said activities shall be under the full control and supervision of the State. There are three major schemes by which the State could undertake these activities: first, directly by itself; second, by virtue of co-production, joint venture, production sharing agreements with Filipino citizens or corporations or associations sixty per cent (60%) of the voting stock or controlling interests of which are owned by such citizens; or third, with a foreign-owned corporation, in cases of large-scale exploration, development, or utilization of natural resources through agreements involving either technical or financial assistance only. x x x.

At present, under the licensing concession or lease schemes, the government benefits from such benefits only through fees, charges, ad valorem taxes and income taxes of the exploiters of our natural resources. Such benefits are very minimal compared with the enormous profits reaped by theses licensees, grantees, concessionaires. Moreover, some of them disregard the conservation of natural resources and do not protect the environment from degradation. The proposed role of the State will enable it to a greater share in the profits – it can also actively husband its natural resources and engage in developmental programs that will be beneficial to them.

4. Aside from the three major schemes for the exploration, development, and utilization of our natural resources, the State may, by law, allow Filipino citizens to explore, develop, utilize natural resources in small-scale. This is in recognition of the plight of marginal fishermen, forest dwellers, gold panners, and others similarly situated who exploit our natural resources for their daily sustenance and survival.250

Professor Agabin, in particular, after taking pains to illustrate the similarities between the two systems, concluded that the service contract regime was but a "rehash" of the concession system. "Old wine in new bottles," as he put it. The rejection of the service contract regime, therefore, is in consonance with the abolition of the concession system.

In light of the deliberations of the CONCOM, the text of the Constitution, and the adoption of other proposed changes, there is no doubt that the framers considered and shared the intent of the U.P. Law proponents in employing the phrase "agreements . . . involving either technical or financial assistance."

While certain commissioners may have mentioned the term "service contracts" during the CONCOM deliberations, they may not have been necessarily referring to the concept of service contracts under the 1973 Constitution. As noted earlier, "service contracts" is a term that assumes different meanings to different people.251 The commissioners may have been using the term loosely, and not in its technical and legal sense, to refer, in general, to agreements concerning natural resources entered into by the Government with foreign corporations. These loose statements do not necessarily translate to the adoption of the 1973 Constitution provision allowing service contracts.

It is true that, as shown in the earlier quoted portions of the proceedings in CONCOM, in response to Sr. Tan's question, Commissioner Villegas commented that, other than congressional notification, the only difference between "future" and "past" "service contracts" is the requirement of a general law as there were no laws previously authorizing the same.252 However, such remark is far outweighed by his more categorical statement in his exchange with Commissioner Quesada that the draft article "does not permit foreign investors to participate" in the nation's natural resources – which was exactly what service contracts did – except to provide "technical or financial assistance."253

In the case of the other commissioners, Commissioner Nolledo himself clarified in his work that the present charter prohibits service contracts.254 Commissioner Gascon was not totally averse to foreign participation, but favored stricter restrictions in the form of majority congressional concurrence.255 On the other hand, Commissioners Garcia and Tadeo may have veered to the extreme side of the spectrum and their objections may be interpreted as votes against any foreign participation in our natural resources whatsoever.

WMCP cites Opinion No. 75, s. 1987,256 and Opinion No. 175, s. 1990257 of the Secretary of Justice, expressing the view that a financial or technical assistance agreement "is no different in concept" from the service contract allowed under the 1973 Constitution. This Court is not, however, bound by this interpretation. When an administrative or executive agency renders an opinion or issues a statement of policy, it merely interprets a pre-existing law; and the administrative interpretation of the law is at best advisory, for it is the courts that finally determine what the law means.258

In any case, the constitutional provision allowing the President to enter into FTAAs with foreign-owned corporations is an exception to the rule that participation in the nation's natural resources is reserved exclusively to Filipinos. Accordingly, such provision must be construed strictly against their enjoyment by non-Filipinos. As Commissioner Villegas emphasized, the provision is "very restrictive."259 Commissioner Nolledo also remarked that "entering into service contracts is an exception to the rule on protection of natural resources for the interest of the nation and, therefore, being an exception, it should be subject, whenever possible, to stringent rules."260 Indeed, exceptions should be strictly but reasonably construed; they extend only so far as their language fairly warrants and all doubts should be resolved in favor of the general provision rather than the exception.261

With the foregoing discussion in mind, this Court finds that R.A. No. 7942 is invalid insofar as said Act authorizes service contracts. Although the statute employs the phrase "financial and technical agreements" in accordance with the 1987 Constitution, it actually treats these agreements as service contracts that grant beneficial ownership to foreign contractors contrary to the fundamental law.

Section 33, which is found under Chapter VI (Financial or Technical Assistance Agreement) of R.A. No. 7942 states:

SEC. 33. Eligibility.—Any qualified person with technical and financial capability to undertake large-scale exploration, development, and utilization of mineral resources in the Philippines may enter into a financial or technical assistance agreement directly with the Government through the Department. [Emphasis supplied.]

"Exploration," as defined by R.A. No. 7942,

means the searching or prospecting for mineral resources by geological, geochemical or geophysical surveys, remote sensing, test pitting, trending, drilling, shaft sinking, tunneling or any other means for the purpose of determining the existence, extent, quantity and quality thereof and the feasibility of mining them for profit.262

A legally organized foreign-owned corporation may be granted an exploration permit,263 which vests it with the right to conduct exploration for all minerals in specified areas,264 i.e., to enter, occupy and explore the same.265 Eventually, the foreign-owned corporation, as such permittee, may apply for a financial and technical assistance agreement.266

"Development" is the work undertaken to explore and prepare an ore body or a mineral deposit for mining, including the construction of necessary infrastructure and related facilities.267

"Utilization" "means the extraction or disposition of minerals."268 A stipulation that the proponent shall dispose of the minerals and byproducts produced at the highest price and more advantageous terms and conditions as provided for under the implementing rules and regulations is required to be incorporated in every FTAA.269

A foreign-owned/-controlled corporation may likewise be granted a mineral processing permit.270 "Mineral processing" is the milling, beneficiation or upgrading of ores or minerals and rocks or by similar means to convert the same into marketable products.271

An FTAA contractor makes a warranty that the mining operations shall be conducted in accordance with the provisions of R.A. No. 7942 and its implementing rules272 and for work programs and minimum expenditures and commitments.273 And it obliges itself to furnish the Government records of geologic, accounting, and other relevant data for its mining operation.274

"Mining operation," as the law defines it, means mining activities involving exploration, feasibility, development, utilization, and processing.275

The underlying assumption in all these provisions is that the foreign contractor manages the mineral resources, just like the foreign contractor in a service contract.

Furthermore, Chapter XII of the Act grants foreign contractors in FTAAs the same auxiliary mining rights that it grants contractors in mineral agreements (MPSA, CA and JV).276 Parenthetically, Sections 72 to 75 use the term "contractor," without distinguishing between FTAA and mineral agreement contractors. And so does "holders of mining rights" in Section 76. A foreign contractor may even convert its FTAA into a mineral agreement if the economic viability of the contract area is found to be inadequate to justify large-scale mining operations,277 provided that it reduces its equity in the corporation, partnership, association or cooperative to forty percent (40%).278

Finally, under the Act, an FTAA contractor warrants that it "has or has access to all the financing, managerial, and technical expertise. . . ."279 This suggests that an FTAA contractor is bound to provide some management assistance – a form of assistance that has been eliminated and, therefore, proscribed by the present Charter.

By allowing foreign contractors to manage or operate all the aspects of the mining operation, the above-cited provisions of R.A. No. 7942 have in effect conveyed beneficial ownership over the nation's mineral resources to these contractors, leaving the State with nothing but bare title thereto.

Moreover, the same provisions, whether by design or inadvertence, permit a circumvention of the constitutionally ordained 60%-40% capitalization requirement for corporations or associations engaged in the exploitation, development and utilization of Philippine natural resources.

In sum, the Court finds the following provisions of R.A. No. 7942 to be violative of Section 2, Article XII of the Constitution:

(1) The proviso in Section 3 (aq), which defines "qualified person," to wit:

Provided, That a legally organized foreign-owned corporation shall be deemed a qualified person for purposes of granting an exploration permit, financial or technical assistance agreement or mineral processing permit.

(2) Section 23,280 which specifies the rights and obligations of an exploration permittee, insofar as said section applies to a financial or technical assistance agreement,

(3) Section 33, which prescribes the eligibility of a contractor in a financial or technical assistance agreement;

(4) Section 35,281 which enumerates the terms and conditions for every financial or technical assistance agreement;

(5) Section 39,282 which allows the contractor in a financial and technical assistance agreement to convert the same into a mineral production-sharing agreement;

(6) Section 56,283 which authorizes the issuance of a mineral processing permit to a contractor in a financial and technical assistance agreement;

The following provisions of the same Act are likewise void as they are dependent on the foregoing provisions and cannot stand on their own:

(1) Section 3 (g),284 which defines the term "contractor," insofar as it applies to a financial or technical assistance agreement.

Section 34,285 which prescribes the maximum contract area in a financial or technical assistance agreements;

Section 36,286 which allows negotiations for financial or technical assistance agreements;

Section 37,287 which prescribes the procedure for filing and evaluation of financial or technical assistance agreement proposals;

Section 38,288 which limits the term of financial or technical assistance agreements;

Section 40,289 which allows the assignment or transfer of financial or technical assistance agreements;

Section 41,290 which allows the withdrawal of the contractor in an FTAA;

The second and third paragraphs of Section 81,291 which provide for the Government's share in a financial and technical assistance agreement; and

Section 90,292 which provides for incentives to contractors in FTAAs insofar as it applies to said contractors;

When the parts of the statute are so mutually dependent and connected as conditions, considerations, inducements, or compensations for each other, as to warrant a belief that the legislature intended them as a whole, and that if all could not be carried into effect, the legislature would not pass the residue independently, then, if some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected, must fall with them.293

There can be little doubt that the WMCP FTAA itself is a service contract.

Section 1.3 of the WMCP FTAA grants WMCP "the exclusive right to explore, exploit, utilise[,] process and dispose of all Minerals products and by-products thereof that may be produced from the Contract Area."294 The FTAA also imbues WMCP with the following rights:

(b) to extract and carry away any Mineral samples from the Contract area for the purpose of conducting tests and studies in respect thereof;

(c) to determine the mining and treatment processes to be utilised during the Development/Operating Period and the project facilities to be constructed during the Development and Construction Period;

(d) have the right of possession of the Contract Area, with full right of ingress and egress and the right to occupy the same, subject to the provisions of Presidential Decree No. 512 (if applicable) and not be prevented from entry into private ands by surface owners and/or occupants thereof when prospecting, exploring and exploiting for minerals therein;

x x x

(f) to construct roadways, mining, drainage, power generation and transmission facilities and all other types of works on the Contract Area;

(g) to erect, install or place any type of improvements, supplies, machinery and other equipment relating to the Mining Operations and to use, sell or otherwise dispose of, modify, remove or diminish any and all parts thereof;

(h) enjoy, subject to pertinent laws, rules and regulations and the rights of third Parties, easement rights and the use of timber, sand, clay, stone, water and other natural resources in the Contract Area without cost for the purposes of the Mining Operations;

x x x

(i) have the right to mortgage, charge or encumber all or part of its interest and obligations under this Agreement, the plant, equipment and infrastructure and the Minerals produced from the Mining Operations;

x x x. 295

All materials, equipment, plant and other installations erected or placed on the Contract Area remain the property of WMCP, which has the right to deal with and remove such items within twelve months from the termination of the FTAA.296

Pursuant to Section 1.2 of the FTAA, WMCP shall provide "[all] financing, technology, management and personnel necessary for the Mining Operations." The mining company binds itself to "perform all Mining Operations . . . providing all necessary services, technology and financing in connection therewith,"297 and to "furnish all materials, labour, equipment and other installations that may be required for carrying on all Mining Operations."298> WMCP may make expansions, improvements and replacements of the mining facilities and may add such new facilities as it considers necessary for the mining operations.299

These contractual stipulations, taken together, grant WMCP beneficial ownership over natural resources that properly belong to the State and are intended for the benefit of its citizens. These stipulations are abhorrent to the 1987 Constitution. They are precisely the vices that the fundamental law seeks to avoid, the evils that it aims to suppress. Consequently, the contract from which they spring must be struck down.

In arguing against the annulment of the FTAA, WMCP invokes the Agreement on the Promotion and Protection of Investments between the Philippine and Australian Governments, which was signed in Manila on January 25, 1995 and which entered into force on December 8, 1995.

x x x. Article 2 (1) of said treaty states that it applies to investments whenever made and thus the fact that [WMCP's] FTAA was entered into prior to the entry into force of the treaty does not preclude the Philippine Government from protecting [WMCP's] investment in [that] FTAA. Likewise, Article 3 (1) of the treaty provides that "Each Party shall encourage and promote investments in its area by investors of the other Party and shall [admit] such investments in accordance with its Constitution, Laws, regulations and investment policies" and in Article 3 (2), it states that "Each Party shall ensure that investments are accorded fair and equitable treatment." The latter stipulation indicates that it was intended to impose an obligation upon a Party to afford fair and equitable treatment to the investments of the other Party and that a failure to provide such treatment by or under the laws of the Party may constitute a breach of the treaty. Simply stated, the Philippines could not, under said treaty, rely upon the inadequacies of its own laws to deprive an Australian investor (like [WMCP]) of fair and equitable treatment by invalidating [WMCP's] FTAA without likewise nullifying the service contracts entered into before the enactment of RA 7942 such as those mentioned in PD 87 or EO 279.

This becomes more significant in the light of the fact that [WMCP's] FTAA was executed not by a mere Filipino citizen, but by the Philippine Government itself, through its President no less, which, in entering into said treaty is assumed to be aware of the existing Philippine laws on service contracts over the exploration, development and utilization of natural resources. The execution of the FTAA by the Philippine Government assures the Australian Government that the FTAA is in accordance with existing Philippine laws.300 [Emphasis and italics by private respondents.]

The invalidation of the subject FTAA, it is argued, would constitute a breach of said treaty which, in turn, would amount to a violation of Section 3, Article II of the Constitution adopting the generally accepted principles of international law as part of the law of the land. One of these generally accepted principles is pacta sunt servanda, which requires the performance in good faith of treaty obligations.

Even assuming arguendo that WMCP is correct in its interpretation of the treaty and its assertion that "the Philippines could not . . . deprive an Australian investor (like [WMCP]) of fair and equitable treatment by invalidating [WMCP's] FTAA without likewise nullifying the service contracts entered into before the enactment of RA 7942 . . .," the annulment of the FTAA would not constitute a breach of the treaty invoked. For this decision herein invalidating the subject FTAA forms part of the legal system of the Philippines.301 The equal protection clause302 guarantees that such decision shall apply to all contracts belonging to the same class, hence, upholding rather than violating, the "fair and equitable treatment" stipulation in said treaty.

One other matter requires clarification. Petitioners contend that, consistent with the provisions of Section 2, Article XII of the Constitution, the President may enter into agreements involving "either technical or financial assistance" only. The agreement in question, however, is a technical and financial assistance agreement.

Petitioners' contention does not lie. To adhere to the literal language of the Constitution would lead to absurd consequences.303 As WMCP correctly put it:

x x x such a theory of petitioners would compel the government (through the President) to enter into contract with two (2) foreign-owned corporations, one for financial assistance agreement and with the other, for technical assistance over one and the same mining area or land; or to execute two (2) contracts with only one foreign-owned corporation which has the capability to provide both financial and technical assistance, one for financial assistance and another for technical assistance, over the same mining area. Such an absurd result is definitely not sanctioned under the canons of constitutional construction.304 [Underscoring in the original.]

Surely, the framers of the 1987 Charter did not contemplate such an absurd result from their use of "either/or." A constitution is not to be interpreted as demanding the impossible or the impracticable; and unreasonable or absurd consequences, if possible, should be avoided.305 Courts are not to give words a meaning that would lead to absurd or unreasonable consequences and a literal interpretation is to be rejected if it would be unjust or lead to absurd results.306 That is a strong argument against its adoption.307 Accordingly, petitioners' interpretation must be rejected.

The foregoing discussion has rendered unnecessary the resolution of the other issues raised by the petition.

WHEREFORE, the petition is GRANTED. The Court hereby declares unconstitutional and void:

(1) The following provisions of Republic Act No. 7942:

(a) The proviso in Section 3 (aq),

(b) Section 23,

(c) Section 33 to 41,

(d) Section 56,

(e) The second and third paragraphs of Section 81, and

(f) Section 90.

(2) All provisions of Department of Environment and Natural Resources Administrative Order 96-40, s. 1996 which are not in conformity with this Decision, and

(3) The Financial and Technical Assistance Agreement between the Government of the Republic of the Philippines and WMC Philippines, Inc.

SO ORDERED.

Davide, Jr., C.J., Puno, Quisumbing, Carpio, Corona, Callejo, Sr., and Tinga. JJ., concur.Vitug, J., see Separate Opinion.Panganiban, J., see Separate Opinion.Ynares-Santiago, Sandoval-Gutierrez and Austria-Martinez, JJ., joins J., Panganiban's separate opinion.Azcuna, no part, one of the parties was a client.